When Congress created the U.S. Sentencing Commission in 1984, it intended to reduce disparities in criminal sentencing at the federal level by developing a set of guidelines, which trial judges now reference during sentencing.

However, the guidelines are also accompanied by commentary – notes that clarify and expand upon the meaning of the guidelines. In recent years, federal appeals courts have reached different conclusions about when judges should apply the commentary and when they should ignore it.

Last month, the federal appeals court based in Denver weighed in, deciding it is appropriate to apply the sentencing commentary unless it runs contrary to federal law or the guidelines themselves.

“Neither the guideline provisions nor the commentary has any binding legal authority to begin with,” clarified Judge Gregory A. Phillips in the June 23 opinion from the U.S. Court of Appeals for the 10th Circuit. Regardless, he added, there is “nothing tyrannical about judicial deference to the commentary.”

The effect of the decision is to give greater weight to the Sentencing Commission’s annotations to its guidelines, which, in the case of Quindell Tyree Maloid, added at least 14 months to his criminal sentence.

Case: United States v. Maloid

Decided: June 23, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Gregory A. Phillips (author)

Michael R. Murphy

Allison H. Eid (concurrence)

Background: Major Case Alert: Is the Fifth Circuit About to Transform How Courts Apply Sentencing Guidelines?

Maloid pleaded guilty to being a felon in possession of a firearm, and the government initially agreed he faced between 30 and 37 months in prison. However, the U.S. Probation Office calculated a minimum sentence of 51 months for Maloid because of his previous conviction in Colorado for conspiracy to commit felony menacing.

That offense, the office believed, amounted to a violent crime under the sentencing guidelines. The guidelines themselves define violent crime as the use or attempted use of force against another. But the commentary expands upon that definition, including “conspiring” to commit such an offense as violent crime.

U.S. District Court Senior Judge William J. Martínez agreed the commentary applied and he sentenced Maloid to 51 months in 2021. At the same time, he complained that the U.S. Supreme Court and appeals courts had not “done a better job of guiding us” about whether to classify offenses as violent crime.

Maloid challenged the application of Colorado’s conspiracy law to his sentence, but he also disputed the weight trial judges should place on the Sentencing Commission’s commentary based on recent developments.

For decades, the Supreme Court held that the commentary was “authoritative” unless contradicted by federal law or the guidelines themselves. Then, in 2019, the court issued Kisor v. Wilkie, finding a government agency’s interpretation of its own rules does not deserve a court’s deference unless the rule is “genuinely ambiguous.”

Although Kisor involved the U.S. Department of Veterans Affairs, federal courts soon began to reconsider how to treat the Sentencing Commission’s interpretation of its guidelines through the commentary.

For some appeals courts, the answer was that Kisor applied to the commentary.

“Now the winds have changed,” wrote Judge Stephanos Bibas of the Philadelphia-based Third Circuit. “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.”

The federal government has also accepted that Kisor requires judges to examine sentencing commentary more critically. In November 2022, the solicitor general’s office acknowledged in a filing to the Supreme Court that Kisor provides the “authoritative standards for determining whether particular commentary is entitled to deference.”

However, the 10th Circuit was not convinced.

Maloid, on appeal, urged a three-judge panel of the 10th Circuit to find the sentencing guidelines themselves unambiguously excluded conspiracies from the definition of violent crime. Therefore, the court should not give weight to the commentary that asserts otherwise.

Phillips, in the panel’s opinion, noted that the Kisor decision pertained to executive branch agencies, not the Sentencing Commission.

“That’s a critical distinction,” he wrote. 

The Sentencing Commission is not a policymaking body, but an entity providing guidance to judges, Phillips elaborated. Judges retain discretion to deviate from the sentencing guidelines, and Congress can exercise its power to reject any amendments the Sentencing Commission proposes.

“In sharp contrast lie executive agencies, which can aggrandize their own authority by implementing vague executive policy and then divining new rules from that policy,” Phillips wrote.

Consequently, Martínez was within his authority to rely on the commentary to hand down a harsher sentence to Maloid. Phillips noted that in November, proposed changes to the sentencing guidelines will take effect, with the explicit inclusion of conspiracies in the definition of violent crime.

Attorney Adam Mueller said the Supreme Court will potentially have to resolve the split between those appeals courts that still permit judges to lean on the sentencing commentary and those that have now adopted the Kisor decision’s more skeptical approach.

“In most cases, given how the guidelines function, the commentary will increase a defendant’s recommended sentencing range,” he said. “The upshot is that this decision will likely result in longer sentences.”

Judge Allison H. Eid wrote separately to say that while she agreed with the outcome in Maloid’s case, she saw “no need to opine” on whether Kisor affected the Sentencing Commission.

Earlier this year, the Supreme Court turned down an appeal that sought to clarify how lower courts should now treat the sentencing commentary.

The case is United States v. Maloid.