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Criminal Law Busywork at Supreme Court – Update for October 22, 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.

LAST WEEK AT THE SUPREME COURT

Maxwell v. Dinis (formerly Maxwell v. Thomas):      A few months ago, I reported on petitioner William Maxwell’s claim in the Supreme Court that he should be allowed to challenge the BOP’s refusal to place him in prerelease custody by applying his First Step Act time credits in a petition for habeas corpus under 28 USC § 2241. (The 5th Circuit ruled otherwise, holding that habeas “is not the proper vehicle” for such a claim, which instead should be brought in “a civil rights suit under Bivens”).

Since then, the Government has informed SCOTUS that it “agrees with petitioner that that holding is incorrect and has therefore filed a brief supporting vacatur of the judgment below.”  Last week, the Court granted the Government’s request for divided argument, a procedure that lets the Solicitor General use part of Bill’s argument time to make its own arguments in favor of his position.

The Court has appointed a private attorney to advocate for the side that the Government would usually argue.  An argument date has not yet been set.

Maxwell v. Dinis, Case No. 25-5930 (divided argument granted, October 13, 2026)

Beaird v. United States: Beaird asks whether a sentencing court must defer to the sentencing Guidelines commentary. The precise issue is whether the enhancement for having a gun with a “large capacity” magazine must follow the Guideline commentary defining such a magazine as being 15 rounds or more.

At oral argument last week, the Supreme Court seemed disinclined to tinker with the 33-year-old Stinson v. United States holding that Guidelines commentary that “interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” This is despite the fact that there is a substantial argument that the 2019 Kisor v. Wilkie holding – that limited the rule that courts defer to agency interpretation of its own ambiguous regulations – pretty much undid the Stinson holding.

Only Justice Neil Gorsuch seemed open to revisiting Stinson and Kisor in light of the 2025 Loper Bright holding that invalidated the rule that courts had to defer to how agencies interpreted statutes and rules.  SCOTUSBlog reported that “none of the other justices seemed particularly interested in adopting such a position.”

This is another case where the Government sided with the petitioner, arguing with Beaird that, principally because the guidelines are now advisory, Stinson–style deference to the commentary should no longer apply. As the oral argument suggested, the fact that both parties argue for one position is no guarantee that the Supremes will roll over and accept it.

SCOTUSBlog, Court unlikely to alter deference to sentencing guidelines commentary (October 16, 2026)

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

Berry v. United States:    As anyone who ever filed a post-conviction 28 USC § 2255 motion knows, a district court denial is not appealable unless the appellate court grants a certificate of appealability (COA). A COA should be a low bar – a holding that the issue presented is reasonably debatable by judges or otherwise significant enough to let the movant continue with an appeal.

As the National Association of Criminal Defense Attorneys puts it, a COA is thus “the gateway to both appointment of counsel and an appeal on the merits—and by extension to a meaningful appellate process that can develop well-reasoned circuit splits on difficult legal questions.”

Corey Berry lost his § 2255 motion, and then filed an application for COA pointing out that the 11th Circuit’s holding that he had to prove his sentence did not rely on the elements clause of 18 USC § 924(c) was contrary to the holdings of seven other circuits. Thus, he said, the issue was clearly debatable. The 11th disagreed, denying his COA.

Last week, the Supreme Court granted review, focusing on whether a COA should be granted when the issue the petitioner seeks to raise on appeal has been resolved against him by binding circuit precedent but has been decided in his favor by another circuit.

It’s been a decade since SCOTUS last decided a COA case (Buck v. Davis).  A new decision that balances granting COAs of merit with appellate court efficiency is long overdue.

Berry v. United States, Case No. 25-7026 (cert. granted, October 13, 2026)

~ Thomas L. Root

Sentencing Commission Proposes Acquitted Conduct Sentencing Change – Update for December 18, 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.

MOVING RIGHT ALONG…

USSC170511Last Thursday the U.S. Sentencing Commission acted with uncharacteristic alacrity, adopting proposed amendments for the 2024 amendment cycle about a month earlier than has been typical over the past 30 years.

The Commission proposes seven changes in Guideline policy in a 755-page release, the most anticipated of which is the use of acquitted conduct at sentencing.

The Commission proposes adopting one of three acquitted conduct options:

Option 1 would amend § 1B1.3, the “relevant conduct” Guideline, to provide that acquitted conduct is not relevant conduct for determining the guideline range. It would define “acquitted conduct” as conduct constituting an element of a charge of which the defendant has been acquitted by the court, except for conduct establishing the instant offense that was “found by the trier of fact beyond a reasonable doubt.”

Option 2 would amend the § 1B1.3 Commentary to provide that a downward departure may be warranted if the use of acquitted conduct has a “disproportionate impact” on the guideline range.

Option 3 would amend USSG § 6A1.3 (which addresses the standard of proof required to resolve Guidelines disputes) to provide that while a “preponderance of the evidence” standard generally is sufficient, acquitted conduct should not be considered unless it is established by clear and convincing evidence.

acquitted230106The Supreme Court last June denied 13 petitions for writ of certiorari related to use of acquitted conduct in sentencing. Four Justices felt the Commission should first address the issue. US District Judge Carlton W. Reeves, chairman of the USSC, said, “When the Supreme Court tells us to address an issue, the Commission listens… [A]ll options are on the table.”

The USSC proposal also addresses counting juvenile convictions for criminal history. The Commission proposed changes that would limit the impact of those convictions on criminal history scoring and expand consideration of a defendant’s youth at sentencing.

One piece of bad news is the Commission’s proposal to undo the effects of the 2019 Supreme Court Kisor v. Willkie decision. A year ago, the 3rd Circuit relied on Kisor in United States v. Banks to hold that the loss enhancement under USSG § 2B1.1(b)(1) includes only what was actually lost. The Circuit reasoned that the word “intended” appears only in the 2B1.1 commentary and not in the Guideline itself, and thus “the loss enhancement in the Guideline’s application notes impermissibly expands the word ‘loss’ to include both intended loss and actual loss.”

Sentencing for “intended loss” is the fraud equivalent of “ghost dope“:  Often, “intended loss” is what the government says it is, and that figure shoots the Guidelines sentencing range to the moon.

Banks sparked a debate on how much deference to give the Sentencing Commission’s interpretation of its own Guidelines. The 3rd said the USSC lacked authority to use its commentary – which is not subject to Congressional approval before adoption – to expand the meaning of “loss” to include what was intended but did not happen.

loss210312The USSC now intends to short-circuit the Kisor v. Willkie debate (and to kneecap the Banks decision) by moving “intended loss” from the commentary into the text of 2B1.1. Because that amendment will be subject to a possible (but improbable) veto by Congress veto, the Kisor v. Willkie problem with 2B1.1 will melt as fast as snowflakes on a hot stove.

The USSC drew its proposed amendment from policy priorities adopted last August. Not making the final cut were policy priorities on career offender (and not for the first time) and methamphetamine.

The proposed amendments will be open for public comment period until February 22, 2024. A public hearing will occur after that. Final proposed amendments will be sent to Congress by May 1 to become effective next November 1, 2024.

USSC, Proposed Amendments to the Sentencing Guidelines (Preliminary) (December 14, 2023)

USSC, US Sentencing Commission seeks comment on proposals addressing the impact of acquitted conduct, youthful convictions, and other issues (December 14, 2023)

USSC, Public Hearing (December 14, 2023)

USSC, Federal Register Notice of Final 2023-2024 Priorities (August 24, 2023)

United States v. Banks, 55 F.4th 246 (3d Cir. 2022)

Bloomberg Law, Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling (November 1, 2023)

– Thomas L. Root

A Year Later, Banks May Have Started What Chevron Could Finish – Update for November 10, 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.

FRAUD STORM BREWING OVER 3RD CIRCUIT BANKS RULING?

A defense attorney calls it “really a potential sea change in federal sentencing,” Bloomberg Law reported last week.

Fraud170406A year ago, the 3rd Circuit held in United States v. Banks that the loss enhancement under USSG § 2B1.1(b)(1) – the linchpin of economic crimes sentencing – is limited to actual loss. Relying on the 2019 Supreme Court Kisor v. Wilkie decision, the 3rd applied the ordinary meaning of “loss” to determine that § 2B1.1 includes only what was lost because the word “intended” is only mentioned in the § 2B1.1 commentary. The Circuit held that “the loss enhancement in the Guideline’s application notes impermissibly expands the word ‘loss’ to include both intended loss and actual loss.”

Bloomberg reported that the ruling has sparked a debate on how much deference to give the Sentencing Commission’s interpretation of its own Guidelines, including the loss scale that can dramatically increase the sentencing range in fraud crimes. The Guideline suggests in the commentary using the greater of actual or intended loss when determining sentences. But the 3rd said the USSC lacked authority to expand the meaning of “loss” to include what was intended but did not happen.

“We are getting these absurd results where nonviolent criminals are getting extraordinary sentences,” one defense attorney told Bloomberg.

loss210312Bloomberg said Banks “could significantly reduce prison time for defendants in securities and commodities cases since it is difficult to figure out actual losses in those situations… It could also impact charging decisions, especially in 3rd Circuit territory, where prosecutors may think twice about devoting resources to cases with small actual losses.”

But in the year since Banks was decided, defense attorneys have had limited success using the decision outside of the 3rd Circuit. In December, an Eastern District of _ichigan court in United States v. McKinney sided with the Banks ruling in a case involving a defendant who pleaded guilty to fraud against JPMorgan Chase. The judge reasoned that she didn’t have to defer to the Sentencing Commission because the definition of loss isn’t “genuinely ambiguous.” Later, the 6th Circuit cast some shade on relying on Banks in United States v. Xiaorong You, holding in a trade secrets theft case that “Banks’s attempt to impose a one-size-fits-all definition is not persuasive” and that the Guidelines commentary is entitled to deference.

Two other circuits, the 1st and 4th Circuits, have declined to take a position. In United States v. Limbaugh, the 4th declined to apply F.R.Crim.P. 52(b) “plain error” to an “intended loss” sentence, holding that the Banks holding “is a new and fast-developing area of the law, and as of now, we do not have the kind of robust consensus in other circuits that would allow us to label as “plain” any error committed here.” The 1st Circuit did the same in United States v. Gadson.

The issue is tied up with a 1993 SCOTUS ruling in Stinson v. United States that held Guidelines commentary is authoritative unless it violates the Constitution, violates a federal statute, or is inconsistent with, or a plainly erroneous reading of, the applicable Guideline. The 4th, 6th, 9th, and 11th Circuits all agree with the 3rd’s position that the Supreme Court in Kisor v. Willkie replaced Stinson’s highly deferential standard — to guideline commentary, at least — with a less deferential one.

conspiracy160606However, some other circuit courts have taken the opposite view. The 5th Circuit is the latest, ruling in the en banc United States v. Vargas decision that while the Guidelines are silent on the treatment of conspiracies, its commentary includes them and thus subjects a defendant to increased prison time. In deferring to the commentary, the 5th held that it is bound to follow Stinson, “like night follows day.” Under Stinson, the court went on to explain, the commentary is authoritative unless it is inconsistent with, or a plainly erroneous reading of, the applicable guideline.

Some commentators believe the Supreme Court will need to decide the issue. While SCOTUS has not taken up the issue, it will address Chevron deference this term, and the outcome of that could presage, if not settle, the Banks issue.

Bloomberg Law, Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling (November 1, 2023)

United States v. Banks, 55 F.4th 246 (3d Cir, Nov 30, 2022)

United States v. McKinney, 645 F. Supp. 3d 709 (E.D. Mich. 2022)

United States v. Xiaorong You, 74 F.4th 378 (6th Cir. 2023)

United States v. Limbaugh, No. 21-4449, 2023 U.S. App. LEXIS 317 (4th Cir., Jan. 6, 2023)

United States v. Gadson, 77 F.4th 16 (1st Cir. 2023)

Kisor v. Wilkie, 588 U.S. —, 139 S. Ct. 2400, 204 L. Ed. 2d 841 (2019)

Stinson v. United States, 508 U.S. 36 (1993)

United States v. Vargas, 77 F.3d 673 (5th Cir. 2023) (en banc)

Federalist Society, How Much Should Courts Defer to U.S. Sentencing Guidelines Commentary? (August 9, 2023)

– Thomas L. Root