Deference to the Commentary

The Supreme Court hears Beaird v. United States on Tuesday 13 October, and the case has an unusual cast. The October hearing list gives it one hour and three lawyers: Kevin Joel Page, an assistant federal public defender in Dallas, for the petitioner, Kendrick Jarrell Beaird; Eric J. Feigin, a deputy solicitor general, for the United States as “respondent in support of vacatur”; and Anthony J. Dick of Washington, as a lawyer the Court appointed. The government is not defending the judgment it won below, so the Court found someone who would.

The question is one sentence long. On 20 April the Court granted review “limited to the following question: Whether Stinson v. United States, 508 U. S. 36 (1993), still correctly states the rule for the deference that courts must give the commentary to the Sentencing Guidelines,” according to the docket. On 6 May it invited Dick to argue that Stinson still does. On 1 October it granted the Solicitor General’s motion for divided argument.

Who writes the commentary, and how

Congress established the Sentencing Commission “as an independent commission in the judicial branch,” as the government’s brief puts it, quoting 28 U.S.C. § 991(a). It has seven members. Under its own rules, promulgating guidelines, policy statements or commentary takes “the affirmative vote of at least four members” at a public meeting.

The guidelines themselves go through two statutory steps that commentary does not. Amendments must be published for notice and comment, and they must be submitted to Congress, which can block them before they take effect. The government’s brief states the gap directly: “The statutory notice-and-comment and congressional-review requirements of 28 U.S.C. 994(p) and (x) do not apply to the Commission’s policy statements and commentary.” The Commission’s Rule 4.3, quoted in Beaird’s brief, says it “may promulgate commentary and policy statements, and amendments thereto, without regard to the provisions of 28 U.S.C. § 994(x).” The same rules say it “will endeavor to provide, to the extent practicable, comparable opportunities for public input” on commentary.

What gives commentary its force is a guideline the Commission titled “Significance of Commentary,” § 1B1.7, which says commentary may “interpret the guideline or explain how it is to be applied.” In Stinson the Court held that such commentary is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, the guideline it interprets.

One application note, twelve months

Section 2K2.1(a)(3) of the guidelines raises the base offence level when the offence involved a semiautomatic firearm “capable of accepting a large capacity magazine” and the defendant has a qualifying earlier conviction. The guideline text does not define the phrase. Application Note 2 does: a magazine “that could accept more than 15 rounds of ammunition.”

Beaird pleaded guilty in the Northern District of Texas to possessing a firearm after a felony conviction. The parties describe the arrest differently. The government says a Dallas police officer saw him point a firearm at another person in October 2022, and that officers recovered a Glock “with an inserted magazine that was capable of holding 17 rounds of ammunition.” Beaird’s brief says it was an unloaded Glock 17 carrying the standard magazine the pistol is sold with. The enhancement turns on capacity, so the difference does not change the calculation.

According to Beaird’s brief, the commentary “increased the Guidelines range from 51-63 months of imprisonment to 63-78 months,” and he received 72 months. The government’s brief confirms the 63-to-78 range and the sentence. On those figures, one application note moved the bottom of the range up by twelve months and the top by fifteen. Those are this publication’s calculations.

The Fifth Circuit treated the note as binding. Its en banc court had held in United States v. Vargas that “under Stinson, the commentary controls even unambiguous guidelines,” a holding the government’s brief now calls an “untenable conclusion.” Beaird’s brief cites decisions of the Third, Sixth, Ninth and Eleventh Circuits that apply the limits of Kisor v. Wilkie (2019), the Court’s later case on agencies’ readings of their own rules, before deferring.

Three positions on one precedent

Beaird asks the Court to hold that commentary gets no deference at all. His fallback is Kisor, which, his brief says, “properly applied” will “leave courts in much the same place as a no-deference regime.” The government says Stinson is compatible with Kisor but that the Fifth Circuit ignored Kisor’s limits, and asks for the judgment to be vacated and the case sent back.

The appointed amicus defends Stinson on different ground. His brief argues that “this case involves an express authorization, not any ‘presumption’ of implied delegation,” because Congress authorised the Commission to issue policy statements on how the guidelines should be applied. He calls the process objection “almost entirely academic,” since the Commission has long issued commentary alongside the guidelines through the same notice-and-comment process. In this case that appears to be so: the government’s brief traces the magazine definition to a Commission notice in the Federal Register in January 2006 and a submission to Congress that May.

What the ruling may not change

The Commission can answer whatever the Court decides. It submits amendments to Congress every year, and its 2026 package, submitted to Congress on 30 April, take effect on 1 November, three weeks after the argument. A ruling against deference would make the text of a guideline matter more than its notes, and the Commission could move the notes into the text.

For Beaird himself, the stakes may be smaller than the question. At sentencing, according to the joint appendix, the district judge said that “even if the guideline range was not calculated or applied correctly,” he “would have imposed the same sentence.” The government’s brief says it is “unlikely” that clarifying the rule would produce a new sentence in this case. The Court is being asked to settle how much weight a body’s notes carry in every federal sentencing, in the case of a man whose sentence may stay the same.

Sources

The argument details are from the Court’s October hearing list. The question presented and the orders of 20 April, 6 May and 1 October are from the docket for No. 25-5343. The Commission’s status, rules and history, the arrest account, the Vargas quotation and the government’s position are from the government’s brief. Rule 4.3, the sentencing ranges, the arrest account and the list of circuits are from Beaird’s brief. The amicus quotations are from the court-appointed amicus brief, and the judge’s statement is from the joint appendix. The amendment dates are from the Commission’s Federal Register notice. The arithmetic is this publication’s.