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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

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

SCOTUS Adds Guidelines Case to Docket – Update for April 30, 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.

PRIME TIME AT SCOTUS

The Supreme Court is entering the busy season, with cases yet to be decided on compassionate release, § 922(g), venue, appeal waivers and suits for prison violation of the Religious Land Use and Institutionalized Persons Act of 2000, still to go.

Add to that a grant of certiorari last week to examine to what degree guideline commentary should be applied when sentencing criminal defendants — a question that has caused confusion among the circuit courts and led to unreasonable discrepancies in punishments. Specifically, the Court asks whether Stinson v. United States “still correctly states the rule for the deference that courts must give the commentary to the Sentencing Guidelines.”

In Stinson, the Supreme Court held that commentary issued by the United States Sentencing Commission that interprets or explains a guideline is authoritative and binding on federal courts unless it violates the Constitution or a federal statute, or is plainly erroneous.

The Sentencing Commission’s guidelines commentary advises judges on how to calculate an appropriate sentence based on the nature of the crime and the defendant’s criminal history. The commentary clarifies the guidelines through application notes, conclusions and background information. But unlike the Guidelines themselves, the commentary is not subject to Congressional review.

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

The sentencing guideline itself applies an enhancement where the firearm has a “large-capacity magazine,” but it does not expressly define what that means.

The Sentencing Commission’s official commentary defines the term to include a semiautomatic firearm that “had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition.” The defendant argues that the commentary improperly expands the scope of the guideline. In his view, the enhancement was intended to target weapons that are exceptionally dangerous or inherently illegal, not industry-standard semiautomatic firearms.

The case will not be argued until the fall and decided early in 2027.

Ohio State University law professor Doug Berman wrote last week that the issue is an important one that transcends gun possession enhancements: I will likely need a series of future posts (and likely also some Substack essays) to fully explain the backstory and possible impacts of this case for federal sentencing law and also perhaps administrative law. For now, I will… wonder[] aloud if the Justices’ ongoing work on the still-pending federal compassionate release cases might have gotten them ever more focused on the law-making activities of the US Sentencing Commission.”

Beaird v. United States, Case No. 25-5343 (certiorari granted April 20, 2026)

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

Courthouse News Service, Justices to reconsider power of federal sentencing advice (April 20, 2027)

Sentencing Law and Policy, Supreme Court grants cert on long simmering issue of whether federal sentencing guideline commentary should still garner deference from courts (April 20, 2026)

~ 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