Justices consider challenge to federal criminal sentencing guidelines

On Tuesday, the Supreme Court heard arguments in a case that could change how much latitude judges have to determine sentencing in gun possession convictions.

In Beaird v. United States, the Court is considering a sentencing process based on its precedent in Stinson v. United States (1993), which has defined the level of deference in criminal sentencing given to federal judges. The U.S. Sentencing Commission, an independent agency in the judicial branch of government, publishes Federal Sentencing Guidelines for judges to follow, along with commentary to help judges interpret the guidelines.

In Stinson, a unanimous Court gave great deference to the commentary in sentencing decisions, holding that “the Guidelines Manual’s commentary which interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”

Kendrick Jarrell Beaird is challenging the Stinson precedent. Beaird filed his appeal in forma pauperis, under the conditions of a Court rule that allowed him to waive filing fees with the representation from public defenders.

The Path to the Court

Beaird was arrested for possession of a gun following a felony conviction. A Northern District of Texas grand jury indicted Beaird under 18 U.S.C922(g)(1), a statute that punishes someone previously convicted of a felony from possessing a firearm that has moved in their possession via interstate commerce. Beaird failed at the trial court in his claims alleging violations of the Second Amendment and Commerce Clause, and he pleaded guilty.

A federal judge consulted the Federal Sentencing Guidelines for someone possessing a “semiautomatic firearm that is capable of accepting a large capacity magazine.” Beaird was found in possession a Glock capable of holding 17 rounds of ammunition. The Sentencing Commission’s official commentary on the federal guidelines called for 63 to 78 months of imprisonment for possession of a semiautomatic firearm that “had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition.”

The judge sentenced Beaird to 72 months of imprisonment, to be followed by three years of supervised release. In his appeal, Beaird’s defense argued that commentary on the sentencing guidelines had improperly expanded the definition of a large-capacity magazine. The Fifth Circuit Court of Appeals upheld the decision and sentencing. In taking this case, the Supreme Court limited arguments to the holding in Stinson as it applied in Beard’s case.

Beaird’s appeal took several turns. Initially, the Solicitor General responded to the Court that Beaird’s petition should be denied. But once the Court accepted the case limited to the Stinson guidelines precedent, the United States asked the Supreme Court to vacate the appeals court decision so the lower courts could consider the case focusing on the Stinson precedent. Then, the Supreme Court moved to appoint an amicus curiae, Anthony J. Dick of Washington, D.C., to argue the position that Stinson correctly defined the deference that courts must give to the commentary on Sentencing Guidelines.

The Arguments at the Court

During arguments, public defender Kevin Joel Page, representing Beaird, faced repeated questions from the justices about changing the Court’s precedent in Stinson and granting more discretion to federal judges in sentencing.

“The proper rule for deference to guideline commentary is no deference. Nothing in the text of the Sentencing Reform Act suggests that courts must ever defer to commentary when interpreting a guideline, let alone defer . . . according to the extreme rule of Stinson,” argued Page.

“What concerns me about your arguments is that you’re suggesting that they are separable in some way which is really not the way in which the guidelines were devised,” said Justice Ketanji Brown Jackson, who served as assistant special counsel of the U.S. Sentencing Commission from 2003 to 2005 and as a commissioner and vice chair from 2010 to 2014.

Jackson told Page that his argument represented “a fundamental misunderstanding” of the guidelines and commentary, which she said are linked together. “When you are a judge, you’re using both to reach the right answer under the guidelines, and there is a right answer as to what the guideline range is,” she said.

While Page noted Stinson and other precedents allowed a judge to ignore the commentary if it is not consistent with the guidelines for sentencing, Jackson believed Page’s position allowed a judge to ignore both.

Justice Sonia Sotomayor seemed skeptical of Page’s arguments, stating “you’re creating a sea of confusion for district court judges to fill in the blanks.”

Several justices pointed to the Court’s precedent in United States v. Booker (2005), which held that the guidelines were advisory and not mandatory. Justices Clarence Thomas and Neil Gorsuch asked Deputy Solicitor General Eric J. Feigin how the Court should account for the Booker precedent in this case.

“We do not think that the commentary as it’s been promulgated by the Commission can either be viewed right now as a policy statement or as a guideline,” Feigin told Gorsuch.

Justice Samuel Alito wondered what would happen in the Court overturned Stinson and cases had to be reconsidered. Feigin countered that, “I think we’d argue that in a lot of those cases, the courts reached the correct result notwithstanding having referenced the commentary.”

The Court-appointed amicus curiae, Anthony J. Dick, echoed the Court’s landmark decision in Marbury v. Madison in his opening statement. “It is emphatically the province of the judiciary to say what the law is, but the advisory sentencing guidelines are not the law. They are advisory. As a result, when interpreting the guidelines, the question is not what the law is but, rather, what is the non-binding advice that the Commission is offering about what type of sentence should be imposed?”

“Stinson should be upheld. There's no reason to create the chaos that would come from overruling it,” he concluded.

Dick faced extensive questioning from Justice Neil Gorsuch, who disagreed with Dick’s characterization of Stinson. “It’s a nice reconceptualization of Stinson, but that's not what Stinson said,” Gorsuch noted.

“What about the topsy-turvy problem that we have binding commentary—advisory guidelines?” Gorsuch asked Dick in one exchange, referencing the Booker precedent. After Dick refuted any problem, Gorsuch remarked, “[Y]ou say this is all good with Booker, but, boy, the more you make these things binding, you’re creeping up to a Booker problem again.”

After arguments concluded, Chief Justice John Roberts thanked Dick for his service as amicus curiae.

For now, the justices will consider the Stinson precedent in context of several other precedents mentioned during arguments that could affect how federal judges take Sentencing Commission’s commentary into account. The question is whether Stinson will remain as the basis for such precedents going forward, or whether the Court will create a new test in its place clearly allowing judges more latitude in sentencing decisions?

Scott Bomboy is the editor in chief of the National Constitution Center.