Sunday, March 7, 2021

Guidelines commentary and zones of ambiguity

Is your client looking at a sentence driven by a sentencing guideline commentary? Does that commentary interpret a genuinely ambiguous guideline? Does the commentary fall within the identified zone of ambiguity? What is a "zone of ambiguity" anyway?

Guideline commentary can only interpret a guideline--it can't add to it. But the test for when courts may rely on the commentary is complicated and disputed.

It's time to update our understanding of that test. Read these two recent cases from the Sixth Circuit (loss commentary) and the Third Circuit (career-offender commentary). Watch for a ruling on the cert petition in Tabb (career-offender commentary; distributed for conference of 3/19/2021).

And urge your district court to wake up from its "slumber of reflexive deference" to the sentencing guidelines commentary.

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