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 number 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 concurring 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.
