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First Week at the Supreme Court: Guns, Gender and Guidelines – Update for October 13, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SCOTUS GETS BACK TO WORK

This year’s Supreme Court term (known in judicial speak as “October Term 2026”) began last week with some interesting, if below-the-radar, developments.

Felon-in-Possession: Last spring, the 5th Circuit declared 18 USC § 922(g)(1) – the felon-in-possession statute – unconstitutional as applied to a defendant whose only prior felony was a state simple drug possession conviction. The Circuit ruled that there was no historical evidence that people possessing contraband that didn’t pose a danger to others were prohibited from owning guns.

The government – which usually gets its way when it wants Supreme Court review – asked SCOTUS to take up the case but hold it until it could apply its ruling in United States v. Hemani, last June’s holding that 18 USC § 922(g)(3) – the subsection that bars “habitual” drug users from having guns – violates the 2nd Amendment as applied to a Texas man who said that he smoked marijuana a few times a week.

The Hemani decision noted that it did not address the federal law “disarming individuals convicted of felonies (often including drug-related ones.”  After Hemani, Defendant Hembree urged the justices to leave the 5th Circuit’s ruling in place. “The decision in Hemani does not affect the outcome here,” he wrote in his response to the Government petition for certiorari, because it “says nothing about nonviolent felons being categorically and permanently disarmed.”

Last week, the Supremes agreed, denying the government review of the 5th Circuit decision. This means that the 5thCircuit joins the 3rd (Range v. Attorney General) and the 6th (United States v. Williams, sort of) in holding that § 922(g)(1) can violate the 2nd Amendment as applied to some people whose prior felonies don’t show dangerousness.

United States v. Hembree, 165 F.4th 909 (5th Cir. 2026)

United States v. Hembree, Case No. 25-1219 (Cert denied, October 5, 2026)

Do The Notes Count? For everyone who ever wondered whether you have to read the footnotes, the Supreme Court will reconsider the 30-year-old Stinson v. United States holding that courts must follow Sentencing Commission commentary that interprets or explains a Guideline “unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”

Stinson made a lot of sense back when courts were required to follow the Guidelines and the Chevron doctrine directed courts to defer to agency interpretation of statutes. But in 2019, in a major test of deference to agencies’ interpretations of their own regulations, the court ruled in Kisor v. Wilkie that courts must defer to an agency’s interpretation of its regulations only where the regulation is genuinely ambiguous on the question at issue.

In Beaird v. United States, the Supreme Court will consider whether Stinson still correctly captures the deference that courts must give to the Guidelines’ commentary. The degree of deference matters because a significant amount of detail about how the sentencing guidelines should be applied is found in the commentary, covering the gamut of federal crimes from fraud to firearm offenses.

The Beaird defendant claims his sentencing was wrongly calculated to include an enhanced base offense level for unlawful gun possession by counting a 17-round magazine attached to the firearm as a “large-capacity magazine.”

The sentencing Guideline applies an enhancement where the firearm has a “large-capacity magazine,” but exactly how large a magazine must be to ne “large capacity” is only defined in the commentary as a “magazine or similar device that could accept more than 15 rounds of ammunition.” That definition sweeps in just about any double-stack auto pistol on the market, including five of the most popular Glocks, Sigs, Smith & Wessons and HKs.

The defendant argues that the commentary, which unlike the guideline itself is not approved by Congress, improperly expands the scope of the guideline. That guideline, he contends, was intended to target only weapons that are exceptionally dangerous or inherently illegal, not industry-standard semiautomatic firearms.

Beaird v. United States, Case No. 25-5343 (argued October 13, 2026)

BOP Transgender Policy: Lawyers for Bureau of Prisons transgender inmates urged the Supreme Court on Thursday to leave in place a court order that bars the BOP from enforcing a new policy on healthcare that would prevent transgender inmates from obtaining hormone therapy and “social accommodations” (such as makeup, wigs, and padding).

The BOP adopted the policy earlier this year, following President Trump’s February 2025 executive order directing the attorney general to “ensure that no Federal funds are expended for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”

Three transgender inmates then went to federal court in Washington, DC, to block the enforcement of the policy. On August 26, Senior US District Judge Royce Lamberth issued an order barring the BOP from implementing the policy, and on September 18, the DC Circuit refused to reverse the order. On September 28, BOP went to the Supreme Court to ask that the order be blocked, complaining that the district court had “substitut[ed] its own policy judgment” for the BOP, “rel[ied] on evidence outside the administrative record… fault[ed] the agency for following presidential directions… [and] denied prison administrators the substantial deference they are due.”

The issue of the temporary order, on the SCOTUS “emergency” docket, will probably be decided next week. Ultimately, a decision on the merits of the underlying case could not just affect transgender inmates but define how much deference courts have to give “prison administrators.”

Trump v. Kingdom, Case No. 26A-416 (application for stay filed September 28, 2026)

~ Thomas L. Root

Loper Bright May Be Coming for BOP Time Credit Rules – Update for April 28, 2026

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

LOPER BRIGHT TO THE RESCUE ON FSA RULES?

Raahshjeem Benson (we’ll just call him ‘George’) was sentenced in December 2020. But he was not transferred to his designated Bureau of Prisons facility for 15 months after that, instead staying in a county lockup. When George finally got to his designated federal prison, the BOP administered his individualized risk and needs assessment, and he started earning FSA credits.

George asked for credits for the 15 post-sentence months he spent in county, where – according to him – he participated in programming or productive activities which should earn him First Step Act time credits under 18 USC § 3632. These credits can be applied to shave up to a year off a prison sentence, and any excess credits earned beyond that buy a prisoner more halfway house and home confinement at the end of a sentence.

But because George didn’t receive the individualized assessment of needs that First Step requires the BOP to perform on every prisoner in order to match him or her with the most effective programs until after he had completed 15 months of programs, the BOP refused to give him any credits for the programs he had taken before reaching his designated prison.

Benson filed a pro se 28 USC 2241 habeas petition, requesting that the BOP be ordered to award him about 150 FSA credits he said he earned for programs completed while in the county jail. Without conducting discovery or requiring a response from the Government, the district court dismissed his petition.

Last week, the 4th Circuit vacated the decision and sent the case back to the district court.  While it would be easy to read too much into the Circuit’s ruling, two holdings are significant.

First, after George’s needs assessment, the BOP calculated that he was at medium risk for recidivism under the PATTERN system. Medium-risk inmates can earn FSA credits but normally cannot use them until their recidivism risk falls to low or minimum. The government argued that since George couldn’t use any of the credits he wanted awarded to him, he had no standing to bring the habeas corpus.“Standing” is a constitutional concept: a petitioner who has nothing at stake in the suit lacks standing to bring the action, and the case is dismissed as moot.  For a controversy to be moot, the 4th held, it must lack at least one of the three required elements of Article III standing: (1) injury in fact, (2) causation, or (3) redressability. Because recidivism levels can change with prisoners’ age and completion of programs (among other reasons), the Circuit ruled that George had a reasonable chance of being able to use his FSA credits in the future. What’s more, the FSA lets medium- and high-risk inmates “petition to be transferred to prerelease custody or supervised release [upon] approv[al] by the warden of the prison,” based on determinations listed in 18 USC § 3624(g)(1)(D)(i)(II), so George had a chance of using the credits, even if it was not a very strong chance.

Thus, “the FSA does not squarely foreclose a prisoner’s eligibility for prerelease custody or supervised release based on a single determination that he has a “medium” risk of recidivism,” the Court said. While “it limits that prisoner’s options, [] it leaves two paths to eligibility… (1) two subsequent reassessments of “low” risk; or (2) the warden’s approval of the prisoner’s petition.” These paths are enough to give George standing to bring the habeas.

On the merits of George’s claim, the BOP argued on appeal that the statute requires “successful participation” in programs to earn FSA credits, and its rule requires that “successful participation” in programming must include a prior determination by BOP staff that the programs or productive activities have been recommended, based on the inmate’s individualized risk and needs assessment. 28 CFR § 523.41(c)(2). Because George was not evaluated until he reached prison, the agency argued, nothing he did while in county lockup could count. The BOP argued that its rule was a reasonable interpretation of the statute and thus the court had to accept the BOP’s interpretation under the well-known Chevron doctrine.

However, while George’s case was pending, the Supreme Court overruled Chevron in Loper Bright Enterprises v. Raimondo. The Loper Bright opinion held that courts were to decide questions of law without deferring to what the agencies charged with carrying out the laws thought they might mean. Thus, the 4th Circuit sent the case back for the district court to decide whether “successful participation” in programming requires that the BOP evaluate the inmate first.

George has a lot of hurdles to cross back in district court, including showing that he actually did engage in worthwhile programs and productive activities while in county jail. But the Circuit’s standing holding and application of Loper Bright non-deference are a significant victory for inmates and the first of many successful attacks on BOP rules of questionable rationality.

 

Benson v. Warden, Case No. 24-6713, 2026 U.S.App. LEXIS 11454 (4th Cir. April 22, 2026)

Chevron USA Inc. v. NRDC, 467 US 837 (1984)

Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024)

~ Thomas L. Root

SCOTUS ‘Chevron Deference’ Case May Hobble BOP – Update for May 8, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SCOTUS TAKES AIM AT CHEVRON DEFERENCE, AND WHY YOU SHOULD CARE

chevron230508Nearly 40 years ago, the Supreme Court ruled in Chevron USA, Inc., v. Natural Resources Defense Council that courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. Last Monday, the Supreme Court agreed to reconsider its ruling in Chevron.

“Chevron deference” – as the doctrine is known – has been applied in well over a thousand cases involving the Federal Bureau of Prisons over the past four decades. In Yi v. Federal Bureau of Prisons, for instance, the 4th Circuit ruled that “rather than apply a presumption of lenity to resolve the ambiguity, Chevron requires that we defer to the agency’s reasonable construction of the statute. Chevron deference is a tool of statutory construction whereby courts are instructed to defer to the reasonable interpretations of expert agencies charged by Congress to fill any gap left, implicitly or explicitly, in the statutes they administer.”

In Lopez v. Davis, for instance, the Supreme Court upheld the BOP’s denial of RDAP credit to people with drug convictions if they had a 2-level gun enhancement (USSG § 2D1.1(b)(1)). The Court focused on the statutory text (18 USC § 3621(e)(2)(B)), which instructs that the BOP ‘may’ reduce the sentence of a nonviolent offender who has successfully completed a drug treatment program, The Court found that Congress’s use of the permissive “may” meant that the BOP had the authority but not the duty to reduce the terms of imprisonment of people in RDAP, and, applying Chevron deference, “the Bureau, the agency empowered to administer the early release program, has filled the statutory gap in a way that is reasonable in light of the legislature’s revealed design.”

Currently, district courts have applied Chevron deference to the BOP’s interpretation of the First Step Act alone in over 150 reported cases. Chevron deference has permitted agencies to be nearly immune to judicial second-guessing on both major and minor questions. The case coming to SCOTUS raises Chevron in a rather prosaic circumstance.

A group of commercial fishing companies challenged a National Maritime Fisheries Service rule that requires the fishing industry to pay for the costs of observers who monitor compliance with fishery management plans.

Relying on Chevron, a divided US Court of Appeals for the DC Circuit rejected the companies’ challenge, holding that the law says the government can require fishing boats to carry monitors, it does not specifically address who must pay for the monitors. Because the NMFS’s interpretation of federal fishery law as authorizing industry-funded monitors was a reasonable one, the DC Circuit said, the court should defer to that interpretation.

Some members of the Supreme Court’s conservative majority have roundly criticized Chevron deference. Justice Thomas argued in 2015 that Chevron deference “wrests from Courts the ultimate interpretative authority to say what the law is, and hands it over to” the executive branch. He has been joined by Justice Gorsuch, who last fall argued in a dissent that the court “should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.”

fishaday230508The Washington Post said, “The dryness of the [Chevron] doctrine masks the enormity of what is at stake. Chevron holds that a federal court must defer to an agency’s interpretation of a statute when issuing a rule, provided the interpretation is “reasonable…” This might seem like a straightforward ruling; in fact, it authorized a massive shift in power from Congress and the courts to the president. Most of the administrative agencies subject to Chevron are run by presidential appointments. These officials might have subject matter expertise, but their knowledge does not negate the fact that they make inherently political judgments, which the Constitution envisioned would be made by elected legislators.”

The case will be argued and decided next year.

Loper Bright Enterprises v. Raimondo, Case No 22-451 (certiorari granted May 1, 2023)

SCOTUSBlog, Supreme Court will consider major case on power of federal regulatory agencies (May 1, 2023)

Chevron, USA Inc v. Natural Resources Defense Council, 467 US 837 (1984)

Yi v. Federal Bureau of Prisons, 412 F.3d 526 (4th Cir. 2005)

Lopez v. Davis, 531 U.S. 230 (2001)

Washington Post, The demise of the Chevron doctrine is nigh (May 4)

– Thomas L. Root