UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JOHN MICHAEL FOX,
Defendant-Appellee
Decided February 7, 2011 Ninth Circuit Court of Appeals.
Issue : How much a sentence can be reduced based on a retroactive amendment to the Sentencing Guidelines in light of policy statement 1B1.10 and 18 U.S.C. § 3582.
Holding :
When the Commission makes a Guidelines amendment retroactive, a district court is authorized to reduce an otherwise final sentence that was based on the amended provision. But any reduction must be “consistent with applicable policy statements issued by the Sentencing Commission. The relevant Policy Statement, 1B1.10, makes clear that “proceedings under §3582(c) do not constitute a full resentencing” and are intended only to adjust a sentence in light of a Guidelines amendment. U.S.S.G. § 1B1.10(a)(3). It instructs courts proceeding under section 3582(c)(2) to substitute the amended Guidelines range for the original Guidelines range, and then to “leave all other guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1). A court may then grant a reduction within the amended Guidelines range, but may not reduce the defendant’s term of imprisonment “to a term that is less than the minimum of the amended guideline range.” § 1B1.10(b)(2)(A).
Facts :
Defendant was charged in a two-count indictment with possessing crack cocaine with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), and with carrying a .45 caliber handgun during and in relation to a drug crime, in violation of 18 U.S.C. § 924(c)(1). Fox entered into a plea agreement in which he pled guilty to the drug charge and, in exchange, the government dropped the gun charge.
The Sentencing Guidelines indicated that Fox should receive a prison term of 360 months to life. This calculation was based on the facts that Fox (1) possessed nearly two kilograms of crack cocaine, (2) committed his offense while possessing a gun, (3) exercised a leadership role in the offense, and (4) was in Criminal History Category IV.
The district judge sentenced Fox to 360 months in prison, the low end of the Guidelines range. The judge noted, however, that he would have downwardly departed, had the then-mandatory Sentencing Guidelines allowed him to do so. After serving approximately 132 months in prison, Fox moved to reduce his sentence based on retroactive amendments to the Sentencing Guidelines that lowered the base offense levels for crack-cocaine offenses. In 2007, the Sentencing Commission amended the Guidelines to reduce by two levels the base offense level associated with each quantity of crack cocaine. See U.S.S.G. Supp. App. C, Amdt. 706 (effective Nov. 1, 2007).
In 2008, the Commission made that amendment retroactive. The District Court recalculated Fox’s Guidelines range and found that his amended Guidelines range was 292-365 months. At the time, Ninth Circuit precedent held that United States v. Booker, 543 U.S. 220 (2005), which made the Guidelines advisory at initial sentencings, also allowed district courts to treat the Guidelines as advisory at sentence modification proceedings.
Freed from the amended Guidelines, the district court determined that a downward departure was warranted based on a number of factors unrelated to the retroactive amendments to the Guidelines, such as Fox’s good behavior in prison. The district court reduced Fox’s sentence to time served (134 months)-just 37% of the original sentence and only 46% of the bottom of the amended Guidelines range. See United States v. Hicks, 472 F.3d 1167, 1170 (9th Cir. 2007).
Relying on Hicks, the district court determined that it was not bound by the Sentencing Commission’s Policy Statement, which mandated that a sentence modification proceeding may not be used to reduce a sentence below the amended Guidelines range. See U.S.S.G. § 1B1.10(b)(2)(a).
Legal Discussion and Analysis : Dillon v. United States, 130 S. Ct. 2683 (2010) In Dillon, the Supreme Court explicitly rejected Hicks as “unpersuasive,” concluding that sentence modification proceedings “do not implicate the interests identified in Booker.” Accordingly, the Court held that nothing in Booker justifies a district court in ignoring Policy Statement 1B1.10.
When the Commission makes a Guidelines amendment retroactive, a district court is authorized to reduce an otherwise final sentence that was based on the amended provision. This is an exception to the rule that “[a] federal court generally ‘may not modify a term of imprisonment once it has been imposed.’ ” Dillon v. United States, 130 S. Ct. 2683, 2687 (2010) (quoting 18 U.S.C. § 3582(c)).
But any reduction must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. § 3582(c)(1)(A). The relevant Policy Statement, 1B1.10, makes clear that “proceedings under §3582(c) do not constitute a full resentencing” and are intended only to adjust a sentence in light of a Guidelines amendment. U.S.S.G. § 1B1.10(a)(3). It instructs courts proceeding under section 3582(c)(2) to substitute the amended Guidelines range for the original Guidelines range, and then to “leave all other guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1). A court may then grant a reduction within the amended Guidelines range, but may not reduce the defendant’s term of imprisonment “to a term that is less than the minimum of the amended guideline range.” § 1B1.10(b)(2)(A).
Congress has instructed the Sentencing Commission that Guidelines are “for use of a sentencing court in determining the sentence to be imposed in a criminal case,” including, inter alia, “a determination whether to impose . . . a term of imprisonment,” and “a determination as to . . . the appropriate length of . . . a term of imprisonment.” 28 U.S.C. § 994(a)(1)(A)-(B).
Policy Statements, by contrast, deal with the “application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes” of sentencing. Id. § 994(a)(2). Congress specified that Policy Statements should define “the appropriate use of the sentence modification provisions set forth in . . . 18 U.S.C. § 3582(c).” 28 U.S.C. § 994(a)(2)(C).
The Policy Statement here at issue, 1B1.10, performs a function that Congress explicitly contemplated Policy Statements would perform, viz., it clarifies “the appropriate use of sentence modification” proceedings. 28 U.S.C . . . § 994(a)(2)(C). Indeed, it makes clear that the only “appropriate use” of sentence modification proceedings under section 3582(c) is to adjust a sentence in light of a Guidelines amendment, and that section 3582(c) cannot appropriately be used as a “full resentencing” that reconsiders a sentence based on factors unrelated to a retroactive Guidelines amendment. U.S.S.G. § 1B1.10(a)(3).
Policy Statement 1B1.10 merely clarifies a point which was already discernable from the text and structure of 18 U.S.C. § 3582(c). See Dillon, 130 S. Ct. at 2691 (“Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding. Policy Statement 1B1.10 does not even apply until a sentence has already been imposed, at which point it merely limits the scope of sentence reduction proceedings, prohibiting district courts from using such proceedings to engage in plenary reconsideration of the sentences they already imposed.
Reversed and Remanded.