“‘latitude [it retains] in organizing [its] internal operations.’ ” American Hosp. Ass’n, 834 F.2d at 1047 (citation omitted). Indeed, the protocol is an enforcement tool that aids surveyors in investigating nursing home compliance, and as recognized in American Hospital Association, “[e]nforcement plans by agencies to direct their enforcement activity warrant considerable deference.” Id. at 1050. The instant protocol is also similar to many agency guidebooks or handbooks that have been held to be exempt from notice and comment proceedings. Essentially, the survey protocol is a compliance handbook issued to federal and state officials charged with conducting the surveys in compliance with OBRA ’87’s requirements. See Cmty. Nutrition Institute v. Young, 818 F.2d 943, 949 (D.C.Cir.1987) (<HOLDING>); see also United States Dep’t of Labor v. Kast
holding that even without booker constitutional error in the district courts application of the guidelines there could be nonconstitutional error where the court applied the guidelines in a mandatory fashion holding district courts are entitled to vary from the guidelines based on a policy disagreement with those guidelines holding that the application of the guidelines in effect at sentencing rather than at the time of defendants conduct does not violate the ex post facto clause even if the current guidelines suggest a harsher sentence because the guidelines are only advisory not binding recognizing that agencies may develop written guidelines without the risk of having a court transmogrify those guidelines into binding norms holding that commentary accompanying guidelines is binding