54 F.4th 374
6th Cir.2022Background
- Trinity Phillips pled guilty to receiving and possessing child pornography; investigators recovered 172 still images and 91 videos from his devices.
- U.S.S.G. § 2G2.2(b)(7) increases offense level based on the number of “images”; commentary (Application Note 6) instructs that each video counts as 75 images (the “75:1 Rule”).
- Probation applied the 75:1 Rule (91 videos × 75 = 6,825 plus 172 stills = 6,997 images), producing a five-level enhancement; Phillips objected, arguing each video should count as one image.
- The district court accepted the 75:1 conversion (and noted it likely would have found >600 images even without it) and sentenced Phillips to 151 months.
- On appeal Phillips argued recent Supreme Court guidance in Kisor v. Wilkie narrowed Auer deference so the Sentencing Commission’s commentary no longer warranted deference; he urged a different (video=1 or frame-based) counting method.
- The Sixth Circuit (majority: Boggs, joined by Davis) affirmed: the 75:1 Rule survives Kisor and was a reasonable, officially adopted interpretation entitled to deference; Judge Larsen concurred only in the judgment, arguing the 75:1 Rule is a substantive policy choice (not an interpretation) and that “image” should mean a video frame.
Issues
| Issue | Plaintiff's Argument (Phillips) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Kisor eliminated deference to Sentencing Commission commentary so the 75:1 Rule cannot be applied | Kisor restricts Auer; the Commission’s 75:1 commentary fails Kisor and is not entitled to deference | Kisor permits deference if a regulation is genuinely ambiguous and the agency’s interpretation is reasonable and meets Kisor’s markers | Court: Kisor controls but the 75:1 Rule satisfies Kisor; deference to the commentary is appropriate and the district court did not err |
| Whether “image” (for §2G2.2(b)(7)) is genuinely ambiguous and how videos map to the image table | “Image” should be read to treat each video as one image (or otherwise reject the 75:1 fiction) | Term is ambiguous as applied to videos; Commission reasonably adopted 75:1 to operationalize Congress’s image-based tiers | Court: “Image” is ambiguous in this context; traditional tools of interpretation support finding genuine ambiguity |
| Whether the 75:1 Rule lies within the zone of ambiguity and is a reasonable construction | 75:1 is arbitrary and effectively a policy choice outside any reasonable textual meaning | 75:1 reflects the Commission’s reasonable response to the task of mapping videos to the image tiers given Congress’s chosen ranges | Court: 75:1 is within the zone of ambiguity and is a reasonable interpretation of the image table |
| Whether the character/context of the Commission’s interpretation warrants controlling weight under Kisor | Commentary is a post-hoc policy decision, not an authoritative, expert construction; thus it should get little or no weight | The Commission’s commentary is official, informed by expertise and notice, and reflects fair and considered judgment—Kisor’s markers are met | Court: The interpretation is official, implicates the Commission’s expertise, and reflects fair and considered judgment; it merits deference and controlling weight |
Key Cases Cited
- Stinson v. United States, 508 U.S. 36 (1993) (held Sentencing Guidelines commentary can be given deference akin to Auer)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (clarified limits and prerequisites for Auer deference)
- United States v. Riccardi, 989 F.3d 476 (6th Cir. 2021) (applied Kisor framework to Guidelines commentary)
- United States v. Geerken, 506 F.3d 461 (6th Cir. 2007) (recognized ambiguity in counting images and treated the Commission’s count as clarifying)
- United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (discussed procedural differences between Guidelines and commentary)
- Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008) (addressed deference issues where terminology originates from statute)