Amicus Brief: U.S. v. Zimmian Tabb

Washington, DC (December 16, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, today filed a petition in the U.S. Supreme Court for a writ of certiorari in Marcus Broadway v. United States. Mr. Broadway is challenging the lower court’s use of “Stinson deference” to sentence him as a “career offender” based on language in interpretive commentary issued by the United States Sentencing Commission that does not appear in the Sentencing Guidelines themselves.

Separately, NCLA also filed an amicus brief with the Supreme Court today in support of a petition for writ of certiorari in Zimmian Tabb v. United States, which also challenges the use of Stinson deference to interpret the Career Offender Guideline. In both cases, NCLA is asking the Court to rule that judges must not defer to the Commission’s views when interpreting a Guideline, especially when doing so would widen the scope of a Guideline or lengthen a defendant’s sentence.

Throughout his case, Mr. Broadway has maintained that the application of Stinson deference to brand and punish him as a career offender under the Guidelines violated the rule of lenity and Supreme Court precedent. NCLA agrees and contends that the rule of lenity dictates that courts cannot defer to an agency’s interpretation of an ambiguous criminal rule.

NCLA argues in its briefs that the growing circuit split on how the Court’s 2019 decision in Kisor v. Wilkie limited Stinson deference has led to unjust inconsistencies in sentencing nationwide. The rule of lenity requires courts to interpret ambiguities in favor of criminal defendants. Under Kisor, courts must apply traditional tools of statutory construction—like lenity—before resorting to deference. The Broadway case deserves the Supreme Court’s attention because the circuits are currently split on whether lenity precedes Stinson deference.

Deference to an agency’s interpretation of its own rules is unconstitutional—particularly in cases with criminal penalties. Stinson deference can unjustly force people to spend more time in prison than Congress required, which raises serious due-process and separation-of-powers concerns. A judge’s deferring to one of the parties before the court exhibits a bias that violates due process too. Stinson also commands federal judges to abandon their duty to provide independent judgment in violation of Article III and the judicial oath.

NCLA is asking the court to grant Mr. Broadway’s petition along with pending petitions in Tabb v. U.S. and Lovato v. United States, which present substantially similar issues of how and when Stinson deference is appropriate or whether it must be overturned as unconstitutional.

NCLA released the following statements: 

“Mr. Broadway faces over 2,000 days in prison beyond the penalty that Congress set for his crime of distributing a small quantity of a controlled substance. Because the Court has sent mixed signals about Stinson deference and the rule of lenity for years now, the circuit courts are divided on the issue. It’s time for the Court to clarify that lenity takes priority over deference and that the Sentencing Commission cannot use its commentary to amend the Sentencing Guidelines.”

— Jared McClain, Litigation Counsel, NCLA 

“Even though the sentencing guidelines are advisory, courts have accorded the Sentencing Commission—a group of unelected bureaucrats—overwhelming deference in the application of harsh criminal penalties. Stinson deference is directly responsible for scores of unjust sentences across the nation. These petitions give the Court an opportunity to set things right.”

— Caleb Kruckenberg, Litigation Counsel, NCLA 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Washington, DC (May 6, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group filed an amicus brief yesterday in U.S. v. Zimmian Tabb, urging the U.S. Court of Appeals for the Second Circuit to abandon “Stinson Deference.” This judicial deference doctrine requires federal judges to defer to commentary the United States Sentencing Commission (U.S.S.C.) has written interpreting the U.S. Sentencing Guidelines (U.S.S.G.). A growing list of circuits are re-examining the unconstitutional application of deference to the U.S.S.C.’s commentary in imposing criminal sentences.

A 1993 Supreme Court decision, Stinson v. United States, commands federal judges to abandon their duty of independent judgment in violation of Article III and the judicial oath, and to assign weight to a non-judicial entity’s interpretation of the law when imposing criminal sentences. It also raises serious due process concerns when it requires courts to display bias in favor of the government and against a defendant. Due process is usually thought to require lenity in the interpretation of criminal statutes, to ensure that criminal offenses are very well defined.

A three-judge panel for the Second Circuit in Tabb deferred to the U.S.S.C.’s commentary and increased the length of Mr. Tabb’s prison sentence. In cases like this, Stinson deference unjustly forces real people to spend more time in prison. NCLA is asking the full court to rehear the case en banc and overturn its use of Stinson deference.

Where the circuits were once unified in reflexively granting such deference, two circuits have now rethought that approach—the DC Circuit in United States v. Winstead (2018) and the Sixth Circuit in United States v. Havis. NCLA filed an amicus brief in Havis. More recently, the Third Circuit in U.S. v. Nasir decided to grant en banc review of its precedent to re-examine whether “it remains appropriate to defer to the U.S. Sentencing Commission’s commentary.” NCLA told that court deference is not appropriate.

As this trend illustrates, the very idea of an Article III court “deferring” to mere commentary of the Sentencing Commission presents grave constitutional concerns, and none of these concerns has been considered or discussed in the Supreme Court rulings that established this type of deference. Stinson itself involved commentary that worked in the defendant’s favor, so the constitutional issues did not surface.

NCLA released the following statements:

“The major problem with Stinson—and reflexive deference to the Sentencing Commission—may, ironically, be the way out. In a rush to accept the Sentencing Commission’s legal interpretations, the Stinson progeny of cases failed to consider the 500-year-old rule of lenity. The Second Circuit now has an opportunity to rule that lenity takes priority over agency deference.”

—Jared McClain, Staff Counsel, NCLA

“While judicial abdication of independence under deference regimes always violates due process, Stinson demands this violation in criminal proceedings. Over 500 years of law requires judges to interpret any ambiguity in criminal laws in favor of leniency. The Second Circuit would do well to join its sister circuits in rethinking its approach and reclaiming judicial independence.”

—Kara Rollins, Litigation Counsel, NCLA 

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

For more information visit us online at NCLAlegal.org.

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