Marcus Broadway v. United States

CASE SUMMARY

Mr. Broadway is challenging the lower court’s use of “Stinson deference” to sentence him as a “career offender” based on language in interpretive commentary issued by the United States Sentencing Commission that does not appear in the Sentencing Guidelines themselves.

NCLA is asking the Court to rule that judges must not defer to the Commission’s views when interpreting a Guideline, especially when doing so would widen the scope of a Guideline or lengthen a defendant’s sentence.

Throughout his case, Mr. Broadway has maintained that the application of Stinson deference to brand and punish him as a career offender under the Guidelines violated the rule of lenity and Supreme Court precedent. NCLA agrees and contends that the rule of lenity dictates that courts cannot defer to an agency’s interpretation of an ambiguous criminal rule.

NCLA argues in its briefs that the growing circuit split on how the Court’s 2019 decision in Kisor v. Wilkie limited Stinson deference has led to unjust inconsistencies in sentencing nationwide. The rule of lenity requires courts to interpret ambiguities in favor of criminal defendants. Under Kisor, courts must apply traditional tools of statutory construction—like lenity—before resorting to deference. The Broadway case deserves the Supreme Court’s attention because the circuits are currently split on whether lenity precedes Stinson deference.

Deference to an agency’s interpretation of its own rules is unconstitutional—particularly in cases with criminal penalties. Stinson deference can unjustly force people to spend more time in prison than Congress required, which raises serious due-process and separation-of-powers concerns. A judge’s deferring to one of the parties before the court exhibits a bias that violates due process too. Stinson also commands federal judges to abandon their duty to provide independent judgment in violation of Article III and the judicial oath.

NCLA is asking the court to grant Mr. Broadway’s petition along with pending petitions in Tabb v. U.S. and Lovato v. United States, which present substantially similar issues of how and when Stinson deference is appropriate or whether it must be overturned as unconstitutional.

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CASE STATUS: Active

CASE START DATE: December 16, 2020

DECIDING COURT: U.S. Supreme Court

ORIGINAL COURT: U.S. District Court for the Western District of Arkansas

CASE DOCUMENTS

April 7, 2021 | Reply Brief for the Petitioner
Click here to read the full document.
January 21, 2021 | Brief of the Due Process Institute as Amicus Curiae in Support of Petitioner
Click here to read the full document.
December 16, 2020 | Petition for Writ of Certiorari
Click here to read the full document.

PRESS RELEASES

April 7, 2021 | NCLA Asks Supreme Court to Eliminate or Limit Judicial Deference to Sentencing Commission

Washington, DC (April 7, 2021) – If Marcus Broadway lived in Tennessee, over the state line from his home in Arkansas, he would not have been labeled a “career offender” and thus not sentenced to significantly more prison time than Congress prescribed for his crime. The New Civil Liberties Alliance filed a reply brief today with the U.S. Supreme Court in support of a petition for a writ of certiorari in Marcus Broadway v. United States. Mr. Broadway’s petition challenges the Eighth Circuit’s use of “Stinson deference” to adopt the U.S. Sentencing Commission’s interpretation of the Sentencing Guidelines. The growing circuit split over how the Supreme Court’s 2019 decision in Kisor v. Wilkie limited Stinson deference has led to unjust inconsistencies in sentencing nationwide, including in Mr. Broadway’s case.

In Stinson v. United States, the Supreme Court ruled that courts must defer to the Commission’s commentary interpreting the Sentencing Guidelines. But, as the government admitted in its opposition to Mr. Broadway’s petition, Kisor set forth the authoritative standards for determining when there is ambiguity whereby courts may defer to commentary to a particular Guideline. Congress created the Guidelines to promote national uniformity in the way judges calculate criminal sentences, yet the split in the circuit courts over how Kisor affected the Stinson deference doctrine has made that uniformity impossible.

NCLA contends that the application of Stinson deference in Mr. Broadway’s sentencing violated the rule of lenity, which instructs courts to apply the more lenient reading of an ambiguous criminal provision. Additionally, the doctrine of constitutional avoidance, the right of due process, and the separation of powers preclude applying Stinson deference when commentary to a Guideline would increase a sentence.

The unconstitutional application of Stinson deference is set to cost Mr. Broadway up to 81 months of freedom. Each term that passes, the federal courts sentence another 75,000 defendants pursuant to the Guidelines—2,000 of whom face severe sentence enhancements under the ambiguous Career-Offender Guideline. NCLA argues that it’s time for the Court to overturn Stinson deference—or at least clarify that lenity takes priority over deference and that the Sentencing Commission cannot use its commentary to amend the Sentencing Guidelines.

NCLA released the following statements:

“Mr. Broadway’s petition raises important constitutional issues that deprive thousands of defendants of their liberty each year. The government’s only real response is that the lower federal courts shouldn’t have to waste time ensuring that criminal sentences comply with current Supreme Court precedent. It’s already clear what the law requires; Mr. Broadway hopes that the Court will take this opportunity to resolve the division among the lower courts.”
— Jared McClain, Litigation Counsel, NCLA

“Unelected bureaucrats have no business ordering federal judges to increase someone’s prison sentence. But that is what happened to Mr. Broadway. And that is what is happening every day in federal courts nationwide. The Court must set this right.”
— Caleb Kruckenberg, Litigation Counsel, NCLA

For more information visit the case page here.

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.

Download the full document

December 16, 2020 | NCLA Tells U.S. Supreme Court Why Deference to Sentencing Commission Violates Constitution

Washington, DC (December 16, 2020) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, today filed a petition in the U.S. Supreme Court for a writ of certiorari in Marcus Broadway v. United States. Mr. Broadway is challenging the lower court’s use of “Stinson deference” to sentence him as a “career offender” based on language in interpretive commentary issued by the United States Sentencing Commission that does not appear in the Sentencing Guidelines themselves.

Separately, NCLA also filed an amicus brief with the Supreme Court today in support of a petition for writ of certiorari in Zimmian Tabb v. United States, which also challenges the use of Stinson deference to interpret the Career Offender Guideline. In both cases, NCLA is asking the Court to rule that judges must not defer to the Commission’s views when interpreting a Guideline, especially when doing so would widen the scope of a Guideline or lengthen a defendant’s sentence.

Throughout his case, Mr. Broadway has maintained that the application of Stinson deference to brand and punish him as a career offender under the Guidelines violated the rule of lenity and Supreme Court precedent. NCLA agrees and contends that the rule of lenity dictates that courts cannot defer to an agency’s interpretation of an ambiguous criminal rule.

NCLA argues in its briefs that the growing circuit split on how the Court’s 2019 decision in Kisor v. Wilkie limited Stinson deference has led to unjust inconsistencies in sentencing nationwide. The rule of lenity requires courts to interpret ambiguities in favor of criminal defendants. Under Kisor, courts must apply traditional tools of statutory construction—like lenity—before resorting to deference. The Broadway case deserves the Supreme Court’s attention because the circuits are currently split on whether lenity precedes Stinson deference.

Deference to an agency’s interpretation of its own rules is unconstitutional—particularly in cases with criminal penalties. Stinson deference can unjustly force people to spend more time in prison than Congress required, which raises serious due-process and separation-of-powers concerns. A judge’s deferring to one of the parties before the court exhibits a bias that violates due process too. Stinson also commands federal judges to abandon their duty to provide independent judgment in violation of Article III and the judicial oath.

NCLA is asking the court to grant Mr. Broadway’s petition along with pending petitions in Tabb v. U.S. and Lovato v. United States, which present substantially similar issues of how and when Stinson deference is appropriate or whether it must be overturned as unconstitutional.

NCLA released the following statements: 

“Mr. Broadway faces over 2,000 days in prison beyond the penalty that Congress set for his crime of distributing a small quantity of a controlled substance. Because the Court has sent mixed signals about Stinson deference and the rule of lenity for years now, the circuit courts are divided on the issue. It’s time for the Court to clarify that lenity takes priority over deference and that the Sentencing Commission cannot use its commentary to amend the Sentencing Guidelines.”

— Jared McClain, Litigation Counsel, NCLA 

“Even though the sentencing guidelines are advisory, courts have accorded the Sentencing Commission—a group of unelected bureaucrats—overwhelming deference in the application of harsh criminal penalties. Stinson deference is directly responsible for scores of unjust sentences across the nation. These petitions give the Court an opportunity to set things right.”

— Caleb Kruckenberg, Litigation 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.

Download the full document

OPINION

MEDIA MENTIONS