Washington, D.C. — Today, the full U.S. Court of Appeals for the Sixth Circuit reversed its prior decision and ordered resentencing in United States v. Jeffery Havis. In no uncertain terms, the Sixth Circuit concluded that a sentencing enhancement, contained in U.S. Sentencing Commission commentary never approved by Congress, cannot be used as a basis for increasing a federal prison sentence. The Commission’s formal guidelines must be approved by Congress, but the Commission’s commentary bypassed that process here. Although prior Sixth Circuit precedent had required sentencing judges (and their appellate reviewers) to defer to guidelines commentary, today’s opinion rejected such deference out of hand. 

The New Civil Liberties Alliance filed the only amicus curiae brief in support of Havis, arguing that the Sixth Circuit’s existing version of so-called Stinson deference violated the Constitution. The court of appeals agreed with NCLA that while courts may consider an agency’s views and adopt them when persuasive, prior Sixth Circuit law erred by instructing judges to treat the Sentencing Commission’s commentary as “authoritative.” The court also adopted NCLA’s arguments that mandatory deference raises grave constitutional concerns over due process and the independence of the judiciary. The decision of the Sixth Circuit corrected circuit law and reined in one kind of undue—and unconstitutional—deference.

As a result of today’s decision, Mr. Havis, who was sentenced to 46 months in prison, will most likely get his sentenced reduced by more than half under the recommended Sentencing Guidelines. This decision will also impact hundreds of other criminal defendants within the Sixth Circuit.

“Today the Sixth Circuit forcefully told the U.S. Sentencing Commission that as an administrative agency it cannot establish federal sentencing policy without seeking Congressional approval. The Commission had decided on its own to dramatically increase the presumptive prison sentences for a whole class of federal defendants. This decision not only rebukes the Commission’s policy but will result in the much lower prison sentences that Congress actually approved.” —Caleb Kruckenberg, Litigation Counsel

“NCLA opposes all forms of unconstitutional judicial deference to administrative agencies. Although Stinson deference is less well known than Auer or Chevron deference, it is no less damaging to Americans who are subjected to it. By reversing Sixth Circuit law on this question, the court of appeals has chipped away at unconstitutional judicial deference doctrines. While gratifying, NCLA knows that there is much work left to be done, and we will keep chipping away at unconstitutional judicial deference doctrines until all of them are consigned to history.” —Mark Chenoweth, Executive Director and General Counsel


NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights. For more information visit us online: NCLAlegal.org.