In Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), the Supreme Court did away with the “Chevron Doctrine” essentially eliminating the Judiciary’s mandated deference to agency interpretations of ambiguous statutes. On the horizon, is what effect the Loper decision will have on the Federal District Court’s mandated utilization of the Sentencing Guidelines when sentencing defendants.

Over the past few years, I have had the good fortune to work on two high profile political corruption cases brought in the Eastern District of Pennsylvania. The Defendants in those matters John Dougherty (Local 98 Leader convicted of, inter alia, paying bribes to Philadelphia City Councilman Robert Henon) and Rahim Islam (CEO of Universal Community Homes convicted of, inter alia, paying bribes to a Milwaukee Public School official) were coincidentally sentenced within days of each other in July of this year. Both men were given significant sentences; Mr. Dougherty (6 years) and Mr. Islam (7 years). However, despite both Defendants putting the Government through its paces, both sentences fell well below what the Guidelines called for; Mr. Dougherty (11 – 14 years) and Mr. Islam (12 – 16 years).

Consistent with these two cases, federal judges have been reluctant to sentence Defendants within the Guidelines. In the years leading up to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) wherein the Supreme Court demoted the Guidelines from mandatory to merely advisory, federal judges would bemoan the fact that their hands were tied at sentencing and that they would most certainly have handed down a lesser sentence, but for, the mandatory nature of the Guidelines. Since the Booker decision, federal judges have generally made good on those promises with a healthy majority of sentences handed down since Booker departing or varying downward from the guidelines. For example, in 2022, only 44% of sentences handed down were within or above applicable guideline range. (2022 Federal Sentencing Statistics)

Now armed with the Loper decision, Defendants will further chip away at the mandate that federal district courts must consider the guidelines at sentencing. With regard to the Sentencing Commission’s Commentary to the Guidelines, since the Supreme Court’s 1993 decision in Stinson v. United States, 508 U.S. 36, 113 S. Ct. 1913, 1914, 123 L. Ed. 2d 598 (1993), the court has held that the Commentary found in the Guidelines must be considered authoritative “unless it violates the constitution or federal statutes, or is inconsistent with, or a plainly erroneous reading of the Guideline.” The court in Stinson relied on Chevron in finding the commentary authoritative stating that:

Although the analogy is not precise because Congress has a role in promulgating the Guidelines, we think the Government is correct in suggesting that the commentary be treated as an agency’s interpretation of its own legislative rule. The Sentencing Commission promulgates the Guidelines by virtue of an express congressional delegation of authority for rulemaking and through the informal rulemaking procedures in 5 U.S.C. §553. Thus, the Guidelines are the equivalent of legislative rules adopted by federal agencies. The functional purpose of commentary (of the kind at issue here) is to assist in the interpretation and application of those rules, which are within the Commission’s particular area of concern and expertise and which the Commission itself has the first responsibility to formulate and announce. In these respects, this type of commentary is akin to an agency’s interpretation of its own legislative rules. As we have often stated, provided an agency’s interpretation of its own regulations does not violate the Constitution or a federal statute, it must be given “controlling weight unless it is plainly erroneous or inconsistent with the regulation.”

Id. (internal citations omitted). Thus, a fair reading of Loper as applied to the Commentary in the Guidelines, unbinds federal district courts from deferring to Guideline Commentary in interpreting the Guidelines.

With the Loper decision arguably eliminating a trial court’s deference to the Guidelines Commentary, what is then in store for the guidelines themselves? The Supreme Court’s mandate in Booker and subsequently in Molina-Martinez v. United States, 578 U.S. 189, 189, 136 S. Ct. 1338, 1339, 194 L. Ed. 2d 444 (2016) that trial courts consider the Guidelines at sentencing, and justifying that requirement based on the Commission’s “expertise” amounts to the functional equivalent of Chevron deference. With courts sentencing Defendants within the guidelines less than 50% of the time, perhaps it’s time for federal courts, relying on the Loper decision, to move away from the Guidelines once and for all.

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