The University of New Hampshire Law Review
Abstract
The United States Sentencing Commission provides commentary to its Guidelines in the form of application notes, background information, and conclusions. Federal judges utilize the United States Sentencing Guidelines and commentary to deliver a sentence that is sufficient but not more than necessary to deter citizens from committing crimes. In 1993, the Supreme Court held in Stinson v. United States that the commentary should be given substantial deference in all cases, including those where the relevant guideline is unambiguous. The Stinson Court reached its opinion after analogizing the Guidelines and commentary with administrative law and an executive agency’s interpretation of its own regulation. Recent administrative law developments have reopened this question. In 2019, the Supreme Court in Kisor v. Wilkie scaled back the administrative law deference principles briefly mentioned in Stinson. The Kisor Court created a four-part test which only permits substantial deference to an executive agency’s interpretation of its own regulation if 1) the regulation is ambiguous on its face; 2) the regulation is genuinely ambiguous after exhausting all traditional statutory interpretation tools; 3) the agency’s reading of the regulation is reasonable; and 4) the agency has substantive expertise on the regulation. In the wake of Kisor, a circuit split has emerged about whether and to what degree Kisor alters Stinson’s commentary deference. This Note examines the circuit split and argues that Kisor has no impact on Stinson. Thus, the Supreme Court should continue applying Stinson’s substantial deference standard to the Guidelines commentary in order to promote federal sentencing uniformity goals.
Repository Citation
23 U.N.H. L. Rev. 87 (2025).