Should the Sentencng Commission Get Auer Deference for the Number of “Images” in a Video?

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Today the U.S. Court of Appeals for the Sixth Circuit decided an interesting case concerning Auer deference, the sentencing guidelines, and how to determine the nu,ber of “images” in a video. In United States v. Phillips, the panel affirmed a district court’s decision that Trinity Phillips merited a five-level sentencing enhancement due to his possession of child pornography. The panel split over the rationale, however.

Judge Boggs delivered the opinion of the court, for himself and Judge Davis, concluding that the court should defer to the U.S. Sentencing Commission’s conclusion that a single pornographic video should count as 75 images for the purposes of sentencing enhancements. According to Judge Boggs, the term “image” as used in the sentencing guidelines is ambiguous as applied to a video, and the Sentencing Commission’s interpretation was worthy of Auer deference, even as narrowed by the Supreme Court’s decision in Kisor v. Wilkie. 

Judge Larsen disagreed, and wrote a separate opinion conrurring in the judgment. According to Judge Larsen, the sentencing guidelines are not ambiguous and the decision to equate a single video with 75 images is a policy choice, not the resolution of an ambiguity.

Judge Larsen’s separate opinion begins:

How is a court to respond when the question before it involves the interpretation of an agency rule? Over decades, we lower courts developed a habit of deferring reflexively to the agency’s interpretation under Seminole Rock and Auer, rather than first tackling the interpretative question ourselves, to see whether the rule was “genuinely ambiguous.” Kisor v. Wilkie, 139 S. Ct 2400, 2414 (2019). Three years ago, the Supreme Court told us to stop. The Court did not mince words: “[T]he possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it—genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.” Id. In United States v. Riccardi, this court confirmed that Kisor‘s admonition applied to the Sentencing Guidelines too. 989 F.3d 476, 486 (6th Cir. 2021). These were important decisions. They reminded us that judges have a duty to interpret the law, even when administrative agencies are involved. But old habits are hard to break. Today’s decision is proof. No fair reading of Kisor and Riccardi would permit us to defer to the Sentencing Commission’s conclusion that the word “image” means 1/75th of every video. Nevertheless, the majority opinion rolls right through Kisor‘s stop sign, reflexively deferring to an agency’s non-interpretation of an unambiguous Sentencing Guideline. So I concur in the judgment only.

According to Judge Larsen, an “image” is a “still representation,” and therefore a video contains as many image as it contains frames. Under this approach, Phillips’ conduct still qualified for a five-level enahncement. On this basis, Judge Larsen concurred in the judgment and agreed that the district court’s sentence should be affirmed.

More from her opinion:

Is “1/75th of a video” one of the reasonable meanings of “image” derived from the statutory interpretation of § 2G2.2(b)(7)? No. In its discussion of ambiguity, the majority opinion identifies three possible meanings of “image”: (1) a video, (2) a frame, and (3) the ill-defined meaning it intends to convey with its Bergman hypothetical. Maj. Op. at 11–12. Notably absent from that list is the 75:1 rule chosen by the Commission. Faced with a situation in which “[t]here can be no thought of deference,” Kisor, 139 S. Ct. at 2419, the majority opinion nevertheless defers. . . .

The upshot is that the Commission’s 75:1 rule is not, by any measure, an interpretation of the Guideline. It is a substantive policy choice to which this court does not owe—indeed cannot owe—any deference. Riccardi, 989 F.3d at 487; Havis, 927 F.3d at 386. That inevitable conclusion suffices to reject the majority opinion and the Commission’s rule. . . .

Between the briefing and the majority opinion, three options remain: “Image” might mean (1) a video, (2) a frame, or (3) something like “imagery,” “impression,” or “scene.” If option one, Phillips’s preferred approach, is right, then his Guidelines range would be reduced. If option two—the government’s fallback position—is correct, then Phillips’s Guidelines range remains the same. If option three—the majority’s conjecture based on a hypothetical viewing of a Scandinavian art-house film—prevails, then I cannot work out how Phillips’s Guidelines range would be affected. The majority, tellingly, makes no attempt to explain either.

Happily, the answer is clear. An “image” means exactly what one would think: a “still representation” of something. And, in the context of a video, that means a “frame.” . . .

I recognize that people may disagree over whether the frame-based rule, the 75:1 rule, or some other rule, would better serve the goal of differentiating offenders based on their culpability. We might debate how commonly child-pornography defendants possess short videos, whether offenders who film their victims with a slow-motion camera should be punished more severely, or even whether possessing a video is categorically worse than possessing still photos, and by how much. But what seems beyond peradventure is that there is room for disagreement. And once that’s true, the absurdity canon has no place in a court’s analysis. Pub. Citizen, 491 U.S. at 471 (Kennedy, J., concurring in the judgment). When a court discards the plain meaning of a text on the basis of anything less than an “impossible” result, id., as the majority has done here, it makes a policy choice, and “elevates the judicial over the legislative branch,” Logan, 453 F.3d at 806. . . .

To recap: Once the 75:1 rule is rejected, three candidates for the definition of “image” remain—video, frame, or imagery/impression/scene. Of these three, only “frame” has any support in the text of the Guideline and neither the government nor the majority opinion deploys any tool of statutory interpretation to reject “frame.” The majority opinion makes no effort to show that its Ingmar-Bergman-inspired definition could reasonably apply. And any attempt to create ambiguity based on absurdity is self-defeating, not to mention a flagrant violation of precedent. For all that handwringing, we’re right back where we started: “Images” means exactly what you’ll find in every dictionary—a “still representation”; and vis-à-vis a video, an “image” is a “frame.” Because “there is only one reasonable construction” of the Guideline, the “court has no business deferring to any other reading, no matter how much the [Commission] insists it would make more sense.” Kisor, 139 S. Ct. at 2415. The majority opinion’s (hopefully anomalous) rush to defer returns us to the world of old Auer. I cannot join it in doing so.

One other little tidbit: I found it interesting that in his opinion for the court, when discussing “the motivating principle of Auer deference,” Judge Boggs cited a portion of Justice Kagan’s Kisor opinion (Part II.A) that was only joined by three other justices, and thus represented a plurality opinion, not the opinion of the Court. Indeed, reading Kisor it appears that the Chief Justice was careful to only join those portions of the opinion detailing the new test for Auer deference and affirming the importance of respecting precedent, and not those suggesting that Auer was correct or articulating a defense of Auer defernee on the merits.

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