For the Defense - Vol. 7, Issue 4 - 24

Nasir, Adair, and the
Return of Textualism to
Federal Sentencing
T
his past June, the Third Circuit issued its decision in United
States v. Adair1
decision in United States v. Nasir2
which built upon the Court's previous
and has significant
consequences for federal sentencing proceedings. In Adair, the
Third Circuit made two important pronouncements regarding
the sentencing enhancement under U.S.S.G. § 3B1.1(a). First,
the Court refined the definitions of organizers and leaders of
criminal activity. Second, the Court discussed the nature of the
government's obligation to move for a reduction in sentence
for acceptance of responsibility under U.S.S.G. § 3E1.1 (Spoiler
Alert: There is no such obligation.). Together, Adair and Nasir
signal the Third Circuit's renewed emphasis on the plain language
of the Sentencing Guidelines, and growing disregard of the
Sentencing Commission's explanatory comments. Following Nasir
and Adair, cases that relied upon the Guidelines' commentary
are no longer precedential. Indeed, as recently as November 30,
2022, the Third Circuit applied Nasir and Adair to eliminate the
concept of " intended loss " under U.S.S.G. § 2B.1 - a huge win for
defense practitioners.3
Given the rate at which things seem to be
changing, both courts and counsel would be wise to consider how
these cases will influence sentencing decisions moving forward.
24 For The Defense l Vol. 7, Issue 4
Lauren Anthony,
Sarah Hyser-Staub,
and James Clancy
Background: Reliance Upon Guidelines Commentary Prior to Nasir
and Adair
The United States Sentencing Guidelines are promulgated by the
United States Sentencing Commission, " a bipartisan, independent
agency " created by Congress in 1984 " to reduce sentencing
disparities and promote transparency and proportionality in
sentencing. " 4
The Commission provides commentary to the
Guidelines, which is intended to aid in their application. In some
instances, the commentary expands upon the Guidelines, offering
definitions and even multi-factor tests.
Historically, courts likened the Guidelines commentary to an
agency's interpretation of its own regulations. The courts thus
afforded the commentary significant deference.5
This concept
was known as " Seminole Rock deference " or " Auer deference, "
after the Supreme Court's decisions of the same names.6
However,
in 2019, the Supreme Court significantly limited Seminole Rock
and Auer in Kisor v. Wilkie.7
that agency deference should be applied only if a regulation is
ambiguous. In Kisor, the Court set forth a multi-step analysis for
The Supreme Court held in Kisor

For the Defense - Vol. 7, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 7, Issue 4

Contents
For the Defense - Vol. 7, Issue 4 - 1
For the Defense - Vol. 7, Issue 4 - 2
For the Defense - Vol. 7, Issue 4 - Contents
For the Defense - Vol. 7, Issue 4 - 4
For the Defense - Vol. 7, Issue 4 - 5
For the Defense - Vol. 7, Issue 4 - 6
For the Defense - Vol. 7, Issue 4 - 7
For the Defense - Vol. 7, Issue 4 - 8
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