Digesting a concurring opinion by The Honorable Stephanos Bibas
U.S. Court of Appeals for the Third Circuit, Case No. 18-2888
Decided December 1, 2020
Judge Bibas had no role in WLF’s selecting or editing this opinion for our Circulating Opinion feature.
Introduction: In Nasir, 2020 WL 7041357, the Third Circuit, sitting en banc, reviewed a criminal defendant’s conviction and sentencing. Though it affirmed his conviction in part, the court rejected the District of Delaware’s application of a “career offender” enhancement under the U.S. Sentencing Guidelines. Judge Bibas concurred with the court’s conclusion that because one of Nasir’s convictions was for an inchoate drug crime, Nasir did not qualify for the sentencing enhancement. Judge Bibas wrote separately to stress that the U.S. Supreme Court’s Kisor decision requires judges to use “traditional tools of construction” when interpreting an agency’s reading of its own rule. In the context of reviewing a commentary to a Sentencing Guideline provision, Judge Bibas would apply the rule of lenity, which requires courts to construe penal laws narrowly and resolve ambiguities in favor of the defendant’s liberty interest. The concise and precisely reasoned concurrence is must reading for anyone opposing administrative agencies’ actions in court.
BIBAS, Circuit Judge, concurring in part.
Judges interpret the law. That applies to the U.S. Sentencing Guidelines too. If the Sentencing Commission’s commentary sweeps more broadly than the plain language of the guideline it interprets, we must not reflexively defer. The judge’s lodestar must remain the law’s text, not what the Commission says about that text.
So too here. The plain text of the Guidelines’ career-offender enhancement does not include inchoate crimes. The commentary says that it does. The majority rightly rejects this extra-textual invitation to expand a serious sentencing enhancement, and I join Part II.D of its opinion.
But the narrow scope of today’s holding hints at a broader problem. For decades, we and every other circuit have followed the Supreme Court’s guidance in Stinson. That meant we gave nearly dispositive weight to the Sentencing Commission’s commentary, not the Guidelines’ plain text. 508 U.S. at 44–46; see also, e.g., United States v. Keller, 666 F.3d 103, 108–09 (3d Cir. 2011); United States v. Boggi, 74 F.3d 470, 474–75 (3d Cir. 1996).
Now the winds have changed. In Kisor, the Supreme Court awoke us from our slumber of reflexive deference: agency interpretations might merit deference, but only when the text of a regulation is truly ambiguous. Before deferring, we must first exhaust our traditional tools of statutory construction. Anything less is too narrow a view of the judicial role.
We must look at things afresh. Old precedents that turned to the commentary rather than the text no longer hold. See Hassen v. Gov’t of the V.I., 861 F.3d 108, 114 n.5 (3d Cir. 2017) (noting that we may revisit our precedents when they conflict with intervening Supreme Court precedent). Tools of statutory interpretation have thus been thrust to the fore. And one tool among many stands out as well suited to the task: the rule of lenity. As we rework our Sentencing Guidelines cases, lenity is the tool for the job.
I. The Rule of Lenity’s Virtues
As Chief Justice Marshall explained, the rule of lenity is venerable. “The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). It first arose to mitigate draconian sentences. As English statutes kept expanding the death penalty and curtailing mercy, courts tempered them by construing them narrowly. Livingston Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv. L. Rev. 748, 749–51 (1935). The canon was well established by the time of Blackstone. 1 William Blackstone, Commentaries *88. And it took root in our law soon thereafter. Wiltberger, 18 U.S. (5 Wheat.) at 95.
Under the rule of lenity, courts must construe penal laws strictly and resolve ambiguities in favor of the defendant. See, e.g., Liparota v. United States, 471 U.S. 419, 427 (1985); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 296 (2012). The touchstone is the text: the “ordinary,” evidently intended meaning of “the words of the statute.” Wiltberger, 18 U.S. (5 Wheat.) at 95.
The rule of lenity serves three core values of the Republic. First, it is entwined with notice and thus due process. See McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.); United States v. R.L.C., 503 U.S. 291, 309 (1992) (Scalia, J., concurring). It gives citizens fair warning of what conduct is illegal, ensuring that ambiguous statutes do not reach beyond their clear scope.
Second is the separation of powers. As Chief Justice Marshall explained, the rule of lenity stems from “the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.” Wiltberger, 18 U.S. (5 Wheat.) at 95. If Congress wants to criminalize certain conduct or set certain penalties, it must do so clearly.
And third but perhaps most importantly, the rule of lenity serves our nation’s strong preference for liberty. As Judge Henry Friendly explained, lenity expresses our “instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.” Henry J. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967). That approach fits with one of the core purposes of our Constitution, to “secure the Blessings of Liberty” for all citizens. U.S. Const. pmbl. Penal laws pose the most severe threats to life and liberty, as the Government seeks to brand people as criminals and lock them away. To guard against those threats, the rule of lenity favors respect for individual rights. Wiltberger, 18 U.S. (5 Wheat.) at 95. Together with the Double Jeopardy and Cruel and Unusual Punishments Clauses, lenity is a longstanding safeguard against excessive punishment. John F. Stinneford, Dividing Crime, Multiplying Punishments, 48 U.C. Davis L. Rev. 1955, 1982–2001 (2015).
II. Lenity, Sentencing, and Kisor
An agency’s reading of its own regulation used to be almost dispositive. That applied equally to the U.S. Sentencing Commission and its commentary. Stinson, 508 U.S. at 44–46. But no more. Now, before a court defers to an agency interpretation, first it “must exhaust all the ‘traditional tools’ of construction.” Kisor, 139 S. Ct. at 2415 (quoting Chevron USA Inc. v. NRDC, 467 U.S. 837, 843 n.9 (1984)). “[O]nly when that legal toolkit is empty and the interpretive question still has no single right answer” may we give Auer deference to an agency’s reading of its own rule. Id.; see Auer v. Robbins, 519 U.S. 452, 461 (1997).
A key tool in that judicial toolkit is the rule of lenity. Rather than defer to the commentary, we should use lenity to interpret ambiguous Guidelines. Even though the Guidelines are advisory, they exert a law-like gravitational pull on sentences. See United States v. Booker, 543 U.S. 220, 265 (2005) (Breyer, J., remedial majority opinion); Peugh v. United States, 569 U.S. 530, 543–44 (2013); U.S. Sentencing Comm’n, 2019 Annual Report and Sourcebook of Federal Sentencing Statistics 8 (reporting that last year, 75% of offenders received sentences that were either within the Guidelines range or justified by a Guidelines ground for departure). So courts must still attend to the rule and its animating principles.
Lenity’s third, key purpose applies here. True, one can debate the relevance of its first two purposes: whether the commentary gives enough notice and whether congressional approval of guidelines with their commentary respects the separation of powers. Compare Mistretta v. United States, 488 U.S. 361, 380–411 (1989), with id. at 422–27 (Scalia, J., dissenting). But in any event, the presumption of liberty remains crucial to guarding against overpunishment. When a guideline is ambiguous, the rule of lenity calls for adopting the more lenient of two plausible readings. It helps ensure that “criminal punishment … represents the moral condemnation of the community.” United States v. Bass, 404 U.S. 336, 348 (1971).
There is no compelling reason to defer to a Guidelines comment that is harsher than the text. Whatever the virtues of giving experts flexibility to adapt rules to changing circumstances in civil cases, in criminal justice those virtues cannot outweigh life and liberty. Efficiency and expertise do not trump justice. Though expertise improves things for the future, sentencing requires justice tethered to the past. The rule of lenity takes precedence as a shield against excessive punishment and stigma.
That does not mean that lenity displaces all commentary. Only when a comment to an otherwise ambiguous guideline has a clear tilt toward harshness will lenity tame it. Some provisions may have no consistent tilt across all defendants. If so, Auer deference might still apply.
Here, however, the guideline’s plain text does not include inchoate offenses. The commentary says it does, making it harsher. So we rightly refuse to defer.
* * * * *
Courts play a vital role in safeguarding liberty and checking punishment. That includes reading the Sentencing Guidelines. Some provisions are ambiguous. But as Kisor teaches, instead of deferring to the commentary the moment ambiguity arises, judges must first exhaust our legal toolkit. This will require work; our old precedents relying strictly on the commentary no longer bind. In undertaking this task, we must not forget the rule of lenity.