Deference and sentencing

Defendant’s sentence based on the United States Sentencing Commission’s interpretation

United States v. McIntosh, No. 23-1899 (3d Cir., Dec. 23, 2024), covers firearms policy outside the arena of 922 (g) prohibitors. The case discusses the legal doctrine of Auer deference given to federal agencies in regards to their interpretation of rules and regulations. Specifically, this case delves into sentencing “enhancements” for stealing a firearm capable of accepting a “large capacity magazine” and possession of a firearm “in connection with another felony offense.”
Federal courts follow an official set of Sentencing  Guidelines that categorize different types of offenses by seriousness, then mete out various increases and decreases depending on the facts of te case and mitigating or aggravating factors about the victims, defendant, and the nature of how he carried out the crime. After applying all the relevant factors the Guidelines refer the court to a specific chart, which assigns a sentence timeline corresponding to the judge’s findings. Federal law, 18 U.S.C. § 3553, commands federal courts to apply the Guidelines. The Supreme Court has held that the Constitution requires the Guidelines to be “advisory” rather than binding on Article III courts. However, judges still must explain their reasons for not following the Guidelines for each departure. When a defendant appeals his sentence, the Supreme Court held that appellate courts are to presume that a trial judge’s sentence is reasonable if it follows the Guidelines.
The U.S. Sentencing Commission, an independent agency comprised of a few judges and highly-credentialed lawyers, publishes the Sentencing Guidelines, and amends them. The Commission also publishes an official Commentary on the Guidelines, which provides clarification about the Commission’s intended meaning of various sections. The Guidelines are intricate and sometimes confusing, so courts often refer to the Commission’s Commentary for illumination – and that is what happened in McIntosh. The level of deference courts should give to this commentary has been a subject of debate, particularly after the Supreme Court’s decision in Kisor v. Wilkie.
The Guidelines cover firearms; especially ones used in the commission of a crime. It is important to note that these are not additional charges that the defendant faced – they are not “crimes,” and a defendant is not convicted of violating these rules. Instead, these rules come up after the conviction, at the sentencing, as factors that can result in a longer sentence. The guidelines at issue were the following:
2K2.1(a)(4)(B): This enhancement applies when defendant, who is prohibited from possessing firearms, is also convicted of a crime involving a “semiautomatic firearm that is capable of accepting a large capacity magazine” (greater than 15 rounds)
2K2.1(b)(6)(B): This enhancement applies when defendant “possessed any firearm in connection with another felony offense”
The Commentary, clarifies to gives definitions for “large capacity magazine” and “another felony offense”
“Large Capacity Magazine” Enhancement: U.S.S.G. § 2K2.1(a)(4)(B) covers possessing a “semiautomatic firearm that is capable of accepting a large capacity magazine,” Note 2 defines “large capacity magazine” as more than 15 rounds of ammunition
“Another Felony Offense” Enhancement: U.S.S.G. § 2K2.1(b)(6)(B) covers possessing a firearm “in connection with another felony offense”. Application Note 14 (B) clarifies that this enhancement applies even if a firearm is found and taken during the commission of an unrelated to firearms crime 

Kisor v. Wilkie contained a dissenting opinion by Justice Kagan, who required numerous factors for courts to consider before deferring to federal agencies about the interpretation of their regulations. The Third Circuit has since distilled Kisor to a three-part test, for when relevant Guideline wording is truly ambiguous and whether the Commission’s interpretation is “reasonable,” and “whether the character and context of the agency interpretation entitles it to controlling weight.”

It concluded that “in connection to another felony” and “large capacity magazine” were both inherently ambiguous terms, and that the two notes defining these terms were reasonable. Because the Commission undertook notice-and-comment rulemaking for this Commentary as well as the Guidelines, it was not merely a post-hoc rationalization, but was something the agency had carefully considered beforehand, and had followed APA rules and subjected the changes to public comment (a step some agencies skip). Thus the Commission's notes satisfied the third part of the test. The court clarified that the Sentencing Commission has the authority to conclude that the possession of certain kinds of firearms by prohibited persons is especially dangerous, even if possession of such weapons by the general public is not otherwise prohibited by law. Deference to the commentary is unnecessary as the Guidelines’ text is clear enough on its own, and suggested that there are Second Amendment constitutional muster problems with the sentencing enhancement as it applies to “large capacity magazines.”
The discussion of how to define “large capacity magazine” is particularly interesting, especially because Second Amendment challenges to state bans on such magazines are currently pending on appeal in various courts.  Defendant attacked the Commentary’s interpretation from several angles, all of which the court rejected. He challenged the history of the Guidelines, which was originally included after the enactment of the 1994 assault weapon ban. After the federal assault weapons ban sun-setted in 2004, the Commission amended § 2K2.1(a), removing all references to the expired law 18 U.S.C. § 921(a)(30). The revised Guidelines replaced the deleted phrases with the term “semiautomatic firearm capable of accepting a large capacity magazine, effectively reviving the federal assault weapons ban's teeth. The Commission then defined this phrase in Note 2 by stating that a semiautomatic firearm with a magazine capable of accepting more than 15 rounds of ammunition. This is a phenomenon where one statute expires, but other related laws and regulations that referenced the now-defunct law are still on the books, and are left unamended, or are vaguely revised necessitating clarification from the agency tasked with making said revisions.
These cases highlight the ongoing debate over the level of deference applied to Sentencing Commission’s interpretations especially after Kisor v. Wilkie. Deference is appropriate when the commentary clarifies genuinely ambiguous Guidelines provisions and falls within the Commission’s expertise. 
Loper Bright Enterprises v. Raimondo which overruled Chevron deference under which courts would defer to ATF's reasonable interpretation of ambiguous united states code statutes (as opposed to agency? regulations, the issue in McIntosh). Loper Bright held that courts must exercise independent judgment to determine the best reading of a statute. Loper Bright did not address deference to agency interpretations of their own regulations so Auer deference remains largely unaffected. Therefore, the lower courts have continued to defer to the Sentencing Commission’s Commentary under Kisor.