Amicus Brief: U.S. v. Malik Nasir

AMICUS BRIEF SUMMARY

On December 1, 2020, the United States Court of Appeals for the Third Circuit, sitting en banc in United States v. Malik Nasir, rejected deference to the U.S. Sentencing Commission based on the Supreme Court’s decision last year in Kisor v. Wilkie, which “cut back on what had been understood to be uncritical and broad deference to agency interpretations.”

NCLA filed an amicus brief in the case, urging the federal court to re-examine the circuit’s treatment of “Stinson Deference.”  The 1993 Supreme Court decision, Stinson v. United States, commands federal judges to abandon their duty of independent judgment in violation of Article III and the judicial oath and to assign weight to a non-judicial entity’s interpretation of the law when imposing criminal sentences. It also raises serious due-process and separation-of-powers concerns when it causes courts to mandate judicial bias against a defendant, instead of lenity toward him.

Although the majority in the Third Circuit interpreted the text of the Guidelines in Mr. Nasir’s favor, Judge Stephen Bibas wrote separately to highlight the larger problems with Stinson deference that NLCA had raised in its amicus brief.  Judge Bibas agreed that the rule of lenity dictates that courts cannot defer to an agency’s interpretation of an ambiguous rule when doing so would increase a criminal penalty. In his powerful concurrence, Judge Bibas reasoned that “[w]hatever the virtues” of administrative deference may be, “those virtues cannot outweigh life and liberty” in criminal cases.

The Third Circuit is now part of a growing chorus of circuits correcting an erroneous and unconstitutional application of judicial deference.  NCLA has also helped convince the Sixth Circuit to limit its use of Stinson deference and has filed briefs with the United States Supreme Court in several challenging the failures of the Second, Eighth, and Tenth Circuits to revisit the issue in light of Kisor v. Wilkie.

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CASE: U.S. v. Malik Nasir

COURT: U.S. Court of Appeals for the Third Circuit

DOCUMENT: No. 18-2888

COUNSEL FOR THE NEW CIVIL LIBERTIES ALLIANCE: Mark Chenoweth, Caleb Kruckenberg, Jared McClain

FILED: April 22, 2020

CASE DOCUMENTS

December 1, 2020 | Opinion of the U.S. Court of Appeals for the Third Circuit
Click here to read the full document.
April 22, 2020 | Amicus Curiae Brief of the New Civil Liberties Alliance in Support of Malik Nasir
Click here to read the full document.

PRESS RELEASES

December 1, 2020 | Victory! NCLA Applauds Third Circ. for Rejecting Deference to US Sentencing Guidelines Commentary

Washington, DC (December 1, 2020) – Today the U.S. Court of Appeals for the Third Circuit sitting en banc, issued its ruling in United States v. Nasir. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed an amicus brief in this case asking the Court to overturn its prior interpretation of the 1993 Supreme Court decision in Stinson v. United States, which required district courts to defer to the U.S. Sentencing Commission’s commentary to the Sentencing Guidelines when sentencing a criminal defendant.

NCLA argued that deference to an agency’s interpretation of its own rules is unconstitutional—particularly in cases with criminal penalties. Stinson commands federal judges to abandon their duty of independent judgment in violation of Article III and the judicial oath and to assign weight to a non-judicial entity’s interpretation of the law when imposing criminal sentences. Stinson deference can also unjustly force people to spend more time in prison than Congress required, which raises serious due-process and separation-of-powers concerns.

Today’s Third Circuit decision rejected deference to the Sentencing Commission based on the Supreme Court’s decision last year in Kisor v. Wilkie, which “cut back on what had been understood to be uncritical and broad deference to agency interpretations.” Concurring with the Court’s decision, Judge Stephanos Bibas wrote separately to explain that “the narrow scope” of the Court’s ruling “hints at a broader problem.” That problem is one that NCLA raised in its amicus brief: the rule of lenity dictates that courts cannot defer to an agency’s interpretation of an ambiguous rule when doing so would increase a criminal penalty. In his powerful concurrence, Judge Bibas reasoned that “[w]hatever the virtues” of administrative deference may be, “those virtues cannot outweigh life and liberty” in criminal cases.

The Third Circuit is now part of a growing chorus of circuits correcting an erroneous and unconstitutional application of judicial deference. NCLA applauds the Third Circuit for today’s ruling and especially commends Judge Bibas’s noteworthy concurrence. We will continue working to convince judges that their constitutional office requires them to prioritize due process over deference to administrative agencies. As a result of today’s decision, Mr. Nasir will be resentenced without a career offender enhancement.

NCLA released the following statements:

“Judge Bibas’s concurrence cuts right to the heart of the matter. The problems with Stinson deference extend far beyond its application in a single case. Courts cannot defer to the commentary of the Sentencing Guidelines and still afford due process to criminal defendants.”

— Jared McClain, Litigation Counsel, NCLA

“NCLA is pleased that yet another circuit court of appeals has followed the Sixth Circuit in Havis and undone its use of Stinson deference. NCLA has been at the forefront of these cases, filing amicus briefs in nearly all of them. We anticipate that the U.S. Supreme Court will itself put a final nail in Stinson’s coffin one day soon.”

Mark Chenoweth, Executive Director and General Counsel, NCLA 

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group 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 at NCLAlegal.org.

Download the full document

April 22, 2020 | Two NCLA Amicus Briefs in Third and Tenth Circuits Challenge Judicial Deference to U.S. Sentencing Commission’s Guidelines Commentary

Washington, DC (April 22, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group today filed amicus briefs in two similar cases, U.S. v. Malik Nasir and U.S. v. Daniel Lovato, urging federal courts to re-examine those circuits’ treatment of “Stinson Deference.” These cases present an opportunity for the U.S. Courts of Appeals in the Third and Tenth Circuits to join a growing chorus of circuits correcting an erroneous and unconstitutional application of judicial deference.

The 1993 Supreme Court decision, Stinson v. United States, commands federal judges to abandon their duty of independent judgment in violation of Article III and the judicial oath, and to assign weight to a non-judicial entity’s interpretation of the law when imposing criminal sentences. It also raises serious due-process and separation-of-powers concerns when it causes courts to mandate judicial bias against a defendant, instead of lenity toward him.

In both Nasir and Lovato, the courts deferred to the U.S. Sentencing Commission’s commentary on its sentencing guidelines, and thereby increased the length of each man’s prison sentence. In cases like these, Stinson deference unjustly forces people to spend more time in prison than Congress required.

Where the circuits were once unified in reflexively granting such deference, two circuits have now rethought that approach—the DC Circuit in United States v. Winstead (D.C. Cir. 2018) and the Sixth Circuit in United States v. Havis (6th Cir. 2019), for which NCLA filed a successful amicus brief. More recently, the Third Circuit in U.S. v. Nasir independently decided to grant en banc review of its precedent to re-examine whether “it remains appropriate to defer to the U.S. Sentencing Commission’s commentary.” NCLA has urged the Court to agree that deference is not appropriate.

As this trend illustrates, the very idea of an Article III court “deferring” to mere commentary of the Sentencing Commission presents grave constitutional concerns, and none of these concerns has been considered or discussed in the Supreme Court rulings that established this deference regime in the first place. Stinson itself involved commentary that worked in the defendant’s favor, so the constitutional issues did not surface.

Rather than wait for the Supreme Court to resolve this growing split in authority, NCLA urges the en banc Third Circuit to overturn circuit precedent and the Tenth Circuit to follow its sister circuits and grant the petition for rehearing en banc in U.S. v. Lovato.

NCLA released the following statements:

“Courts cannot allow an administrative agency to increase a person’s prison sentence out of ‘deference’ to its interpretation of the law. The Courts of Appeals must start acting like judges again and take back responsibility to say what the law is.”

Caleb Kruckenberg, Litigation Counsel, NCLA

“The major problem with Stinson—and reflexive deference to the Sentencing Commission—may, ironically, be the way out.  In a rush to accept the Sentencing Commission’s legal interpretations, the Stinson progeny of cases failed to consider the 500-year-old rule of lenity.  Nasir and Lovato present an opportunity for the Third and Tenth Circuits to prioritize the rule of lenity over deference and, in turn, prioritize the Constitution over bad case law.”

Jared McClain, Staff Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group 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 at NCLAlegal.org.

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BLOG

December 03, 2020 | En Banc Third Circuit Knocks the U.S. Sentencing Commission Down a Few Pegs

En Banc Third Circuit Knocks the U.S. Sentencing Commission Down a Few Pegs

Determining an appropriate punishment for criminal convictions is a delicate business. Traditionally judges have had a lot of latitude in figuring out what makes the most sense based on a particular case.

But judges are people too, and they carry the same biases and limitations as everyone else. This, unfortunately, includes racial biases. As a result, defendants from minority populations are more likely to be sentenced to prison and to serve longer sentences than white defendants convicted of the same crimes.

To address this serious problem, in 1984, Congress decided to outsource federal sentencing to an agency. Instead of having judges make gut-level decisions, Congress established the U.S. Sentencing Commission, with the goal that sentencing could be transformed into a predictable science. The Commission created a several-hundred page Sentencing Guidelines Manual where you could put in all sorts of facts about the defendant, and it would spit out a sentencing range that a judge was forced to apply.

The Guidelines had two basic components. First were the actual Guidelines, which are written like convoluted math problems. These set the sentence and had to be submitted to Congress by the Commission before they became effective. Congress could veto any part of the Guidelines if it disagreed with them. Second, because the Guidelines were so complex and confusing, the Commission added “Application Notes,” which were not sent to Congress for approval. These were supposed to provide nothing more than helpful information about using the manual.

The problem is that the Guidelines were a ratchet and cut out judicial leniency. The bureaucratic “experts” at the Commission were good at creating new reasons to increase sentences but rarely allowed judges to reduce them.

As you might expect, a lot of the legal workaround federal sentencing deals with arguments about when, exactly, the Guidelines’ nasty enhancements apply. This, in turn, raised an important question about what happens when the answer isn’t clear from the Guidelines themselves but is answered by the Application Notes. In United States v. Stinson, the Supreme Court decided that determinations in the Application Notes should be given “deference” unless they are “plainly erroneous or inconsistent with the regulation.” In other words, even if the sentencing judge disagrees with the Sentencing Commission’s view in the Application Notes of what the Guidelines actually mean, she must apply them consistently with the Commission’s guidance.

Malik Nasir’s case shows why this is a problem. Mr. Nasir was convicted in federal court for charges related to selling marijuana in Dover, Delaware (which, by the way, has been decriminalized by the state of Delaware). Mr. Nasir was ultimately sentenced to 210 months in prison as a “career offender” based on the Application Notes.

Under the Sentencing Guidelines, anyone convicted of a federal “controlled substance offense” with “at least two prior felony convictions” of “a controlled substance offense” is a career offender. This designation is significant—no matter what the person’s actual criminal history or the normal offense level, they get rocketed up to the top of the sentencing table. The recommended sentence starts at 17.5 years and goes up from there.

In Mr. Nasir’s case, the precise guideline range would depend on a host of factors, but without a career offender enhancement, his recommended sentence for selling marijuana would have been, at most24-30 months in prison. The career offender designation likely added at least 15 years to his prison term.

But whether Mr. Nasir was a “career offender” depended on the Application Notes. The Guidelines themselves talk only about prior “controlled substance offenses,” but one of Mr. Nasir’s prior convictions was for attempting to possess cocaine. That isn’t the same thing as actually possessing it. But the Application Notes say that courts are supposed to include prior offenses involving attempts, conspiracies, and other inchoate varieties of offenses. Following the Commission’s guidance and Third Circuit precedent, the judge sentenced him to 210 months in prison.

When he appealed, the Third Circuit decided to hear his case, en banc, to take up the issue of whether it’s really acceptable for an administrative agency to direct judges to dramatically increase a person’s time in prison based on its mere commentary. You might have guessed that NCLA has strong feelings about this, and we filed an amicus brief in support of Mr. Nasir.

As we argued to the Court, there are two main problems with having an agency tell judges how to read the Sentencing Guidelines. First, it is a judge’s constitutional obligation to decide for herself what the law means and what is an appropriate sentence for a criminal defendant. A rule of deference to the Commission takes that decision away from the judge. It also forces the judge to adopt a bias against a defendant and in favor of the Commission’s often harsh view of what is a proper sentence. Second, it violates the rule of lenity, which is a constitutional principle that if a law that imposes or extends criminal punishment is unclear, a judge must give the defendant the benefit of the doubt. This is because it is unfair to punish people more harshly than what was clearly intended by Congress when it approved the Guidelines. Deference to the Application Notes goes the other way—it makes judges increase sentences in ways Congress might not have intended.

The Third Circuit agreed. In a major ruling, the Court declared it would no longer grant the Application Notes the same level of deference it had previously given them. Citing recent language from the Supreme Court that “cut back on what had been understood to be uncritical and broad deference to agency interpretations,” the Court declared its intent to decide for itself what the Guidelines mean, which were “interpretive issues … naturally in[] a judge’s bailiwick.”

The Court also emphasized NCLA’s concern about the proper roles of judges in answering these questions. It warned, “If we accept that the commentary can do more than interpret the guidelines, that it can add to their scope, we allow circumvention of the checks Congress put on the Sentencing Commission, a body that exercises considerable authority in setting rules that can deprive citizens of their liberty.”

In a concurring opinion, Judge Stephanos Bibas emphasized NCLA’s other major concern—the rule of lenity. He wrote, “Rather than defer to the commentary, we should use lenity to interpret ambiguous Guidelines.” Adopting NCLA’s position, Judge Bibas stressed, “Whatever the virtues of giving experts flexibility to adapt rules to changing circumstances in civil cases, in criminal justice those virtues cannot outweigh life and liberty. Efficiency and expertise do not trump justice.”

This ruling has important implications moving forward. For many people in the Third Circuit, it will have profound effects on their sentences. But as an en banc opinion, it will help influence other courts to reconsider their old precedent. Most Circuits still defer to the Application Notes, but challenges are pending across the country. Hopefully soon, the Supreme Court will take up this issue and, once and for all, declare this species of agency deference a dead letter.

OPINION