Recalibrating Deference in Sentencing

Authors

• Meghana Nemali, Fordham University School of Law

Keywords

U.S. Sentencing Commission; Deference; Stinson; Stinson V. United States; Kisor; Kisor V. Wilkie; Booker; United States V. Booker; Loper Bright; Loper Bright Enterprises V. Raimondo; Sentencing Guidelines; Sentencing Commentary; Commentary; Criminal Law; Sentencing Reform Act; Administrative Law; Chevron; Administrative Agency

Abstract

The U.S. Sentencing Commission (the “Commission”) is responsible for promoting consistency, transparency, and fairness in federal sentencing. In pursuit of this mandate, the Commission publishes the U.S. Sentencing Guidelines (the “Guidelines”), which are accompanied by official commentary. In Stinson v. United States, the U.S. Supreme Court endowed the commentary with controlling authority. However, nearly three decades later, the Court in Kisor v. Wilkie granted courts greater discretion in deciding whether to defer to the commentary. Moreover, in 2024, the Court eliminated the absolute deference regime for administrative agency determinations in Loper Bright Enterprises v. Raimondo. As a result, federal courts are divided over the commentary’s authority. This divergence has led to inconsistent sentencing outcomes for litigants, contrary to the Commission’s aims.

This Note examines the circuit split over the degree of deference owed to the commentary and analyzes early efforts by circuit courts to place Loper Bright within this debate. This Note then argues that deference is an improper framework for understanding judicial treatment of the Commission. Instead, the Commission’s structure and statutory authority distinguish it from administrative agencies and merit controlling weight for its commentary. However, even under a deference model, this Note argues that the Supreme Court in Stinson established a unique regime for the commentary that survives both Kisor and Loper Bright. Affording this controlling authority to the commentary, this Note contends, most effectively advances the Commission’s mandate to promote consistency and fairness in federal sentencing.

Recommended Citation

Meghana Nemali, Recalibrating Deference in Sentencing, 94 Fordham L. Rev. 2377 (2026).
Available at: https://ir.lawnet.fordham.edu/flr/vol94/iss6/8