In this previous post, I discussed United States v. Vivar-Lopez, 2019 WL 7041886 (5th Cir. Dec. 20, 2019) (per curiam), where the Fifth Circuit, applying plain error review, rejected a criminal defendant's argument that, after Kisor v. Wilkie, district courts should no longer defer to the commentary to an unambiguous provision of the Sentencing Guidelines under Auer. Well, the Court reached the same conclusion again recently in United States v. Cruz-Flores, 799 Fed.App'x 245 (5th Cir. Mar. 24, 2020) (Davis, Smith, Higginson) (per curiam). I realize this is all happening under plain error review, but I find the Court's position on this point troubling in principle. Here are the reasons I gave in my discussion of Vivar -Lopez:

In United States v. Vivar-Lopez, 2019 WL 7041886 (5th Cir. Dec. 20, 2019) (per curiam), William Vivar-Lopez appealed his 30-month sentence for illegal reentry, contending that the district court had erred by considering Application Note 3 of U.S.S.G. 2L1.2, which says that if a defendant receives offense-level enhancements for prior convictions under section 2L1.2(b), those prior convictions may garner criminal history points under section 4A1.1. Relying on Kisor, Vivar-Lopez argued that because section 2L1.2 is unambiguous,the district court shouldn't  have deferred to the commentary in Application Note 3. And without Application Note 3, he insisted, there was no basis for the district court's decision to add the criminal history points that resulted in offense-level enhancements to Vivar-Lopez's sentence.

The Fifth Circuit, in a per curiam opinion by Judges Davis, Smith, and Higginson, rejected that argument. The panel's reasoning is worth quoting in full:

As Vivar-Lopez concedes, we review for plain error, so he must show, as the first requirement, a forfeited error that is clear or obvious. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Kisor addressed the continuing viability of deference to an agency’s interpretations of its own regulations under Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). The Court in Kisor did not overrule Auer deference but merely restated the limitations on applying deference to an agency’s interpretations. Kisor, 139 S. Ct. at 2415−16, 2423. Kisor did not address the Sentencing Guidelines or the caselaw holding that the commentary to the Guidelines is authoritative unless it violates federal law or the Constitution, it is inconsistent with the Guideline being interpreted, or it constitutes a plainly erroneous reading of the Guideline. See Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).
Because there is no caselaw from the Supreme Court or this court ad-dressing the effect of Kisor on the Sentencing Guidelines in general or on Application Note 3 of § 2L1.2 in particular, there is no clear or obvious error. See United States v. Escalante-Reyes, 689 F.3d 415, 418 (5th Cir. 2012) (en banc); United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015).

Three points to ponder: First, the Court says that "Kisor did not overrule Auer deference but merely restated the limitations on applying deference to an agency's interpretations." That's not quite right, though. Indeed, the opening lines of Justice Kagan's opinion acknowledge that Kisor didn't just "compile" the "considerations that [the Court] ha[s] noted now and again" regarding "[w]hether to apply" Auer, but also "further delop[ed]" them. Later, in a part of the opinion joined by a majority of the Court, Justice Kagan confirmed that the Court, in Kisor, wasn't just "restat[ing]" the limits on Auer, but was "somewhat expand[ing]" on them. That was necessary, she added, "to clear up some mixed messages we have sent." One example she offered was Seminole Rock:

So, while it is true that the Court didn't overrule Auer (but see my previous post arguing that Kisor did, in fact, overrule Auer), it certainly didn't "merely restate[]" its limitations. The Court's opinion repeatedly emphasizes that it expands on those limitations.

Second, the panel opinion in Vivar-Lopez says that

Kisor did not address the Sentencing Guidelines or the caselaw holding that the commentary to the Guidelines is authoritative unless it violates federal law or the Constitution, it is inconsistent with the Guideline being interpreted, or it constitutes a plainly erroneous reading of the Guideline. See Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

But that isn't true, either. Justice Kagan cites Stinson in footnote 3 of the opinion as one example of the Court's "(pre-Auer) decisions applying Seminole Rock deference." And sure enough, Stinson applied the "classical" formulation of the deference doctrine that Justice Kagan later classified as one of the Court's "mixed messages" that Kisor sought to correct. I read Stinson, and it is fascinating. Check out this passage, and, as you read, ask yourself if it is consistent with Kisor's view of deference:

That view of judicial deference to agency interpretations cannot be squared with Kisor for a number of reasons the most obvious of which is that Kisor held that without "genuine ambiguity" there was no basis for even considering deference whereas Stinson expressly rejects that view, holding that "commentary explains the guidelines and provides concrete guidance as to how even unambiguous guidelines are to be applied in practice." Given it's obvious incompatibility with Kisor, and the Kisor opinion's citing it among the exemplars of prior statements of the Seminole Rock/Auer doctrine in need of clarification, it seems to me the panel in Vivar-Lopez was mistaken to say that Stinson's view remains defensible post-Kisor.

Third, while the panel was right that there is no precedent from the Supreme Court or the Fifth Circuit "addressing the effect of Kisor on the Sentencing Guidelines in general or on Application Note 3 of § 2L1.2 in particular," there is authority from the Sixth Circuit. In United States v. Owen, 940 F.3d 308, 314 (6th Cir. 2019), the Court said this:

The Application Notes and supporting commentary reflect the Commission’s interpretation of the Guidelines. Stinson v. United States, 508 U.S. 36, 41, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). That interpretation, of course, is not binding in the way an agency rule would be, where the rule has journeyed through a formal rule-making process, including the notice and comment aspects. See United States v. Havis, 927 F.3d 382, 385–86 (6th Cir. 2019) (en banc). Where an agency rule is considered ambiguous, we typically afford some deference to the agency’s interpretation of the rule. See Auer v. Robbins, 519 U.S. 452, 461–62, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997). But when to do so, and what standards to apply when we do, are at the moment matters of some debate. See Kisor v. Wilkie, ––– U.S. ––––, 139 S. Ct. 2400, 2416, 204 L.Ed.2d 841(2019) (noting that “not every reasonable agency reading of a genuinely ambiguous rule should receive Auer deference”); Havis, 927 F.3d at 386 (“[W]e need not accept an interpretation that is plainly erroneous or inconsistent with the corresponding guideline.”) (internal quotations omitted). For now, we need not wade into those murky waters. As no party has challenged § 2D1.1(b)(14)(D) as ambiguous, as the Application Note in question does not purport to add to or change the ordinary understanding of the section, as we largely embrace the interpretation included in the Application Note, and as no party has challenged any aspect of the Application Note, we see no issue in referencing the principles therein as an analytical starting point.

If you ask me, the Fifth Circuit brushed this argument aside too casually. Of course, I haven't read the briefing. It could be that it didn't have the arguments before in a way that permitted an informed discussion of the deeper nuances I've raised here. And in fairness, it was reviewing for plain error because Vivar-Lopez hadn't raised the Kisor point in the district court. Under the circumstances, I suppose the panel had its reasons for rejecting the argument out of hand. But it does raise an interesting question:

Can we identify the particular Auer/Seminole Rock precedents that are no longer viable post-Kisor?

If I had more time, I'd consider writing something more substantial on this issue. Maybe I'll get to it at some point.

Is Deference to the Commentary to the Sentencing Guidelines Defensible Post-Kisor?
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