United States v. Christina Elizabeth Colon
2013 U.S. App. LEXIS 2587
| 11th Cir. | 2013Background
- Colon pleaded guilty in 2006 to crack cocaine distribution and gun possession in furtherance; base offense level 26 for 17.9 g of crack.
- She received a 3-level reduction for acceptance of responsibility; total offense level 23; guidelines range 46–57 months for Count 1; Count 2 imposed 60 months consecutive; total 96 months.
- In 2008, Colon sought § 3582(c)(2) relief based on Amendment 706; district court reduced Count 1 to 27 months and total to 87 months with a downward variance.
- After Amendments 750/759 (post-FSA 2010), the district court denied further reduction because § 1B1.10(b)(2) limits below the amended range absent substantial assistance.
- Colon argued the post-Amendment 759 restrictions, authority of the policy statement, and APA notice requirements; district court denied; she appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Amendment 759 violate Ex Post Facto? | Colon: post-amendment restrictions increased punishment after 2005. | Colon: no increased punishment; amendments align with range. | No ex post facto violation. |
| Did § 1B1.10(b)(2) exceed § 994(u) authority by prohibiting further below-range reductions? | Colon: policy statement oversteps statutory authori‑ty. | US: Commission validly issued policy statement; authorized by § 994(u). | Policy statement valid; Commission proper under § 994(u). |
| Does Amendments 750/759 violate separation of powers by undoing earlier variances? | Colon: amendment overrides court’s downward variance. | US: amendments limit, not undo, prior departures; permissible under Congress’s control. | No separation of powers violation. |
| Is § 1B1.10 subject to APA notice-and-comment requirements? | Colon: binding policy statement should be APA-noticed. | Policy statements are not subject to APA notice-and-comment. | § 1B1.10 not subject to APA notice and comment. |
Key Cases Cited
- United States v. Berberena, 694 F.3d 514 (3d Cir. 2012) (upholds validity of § 1B1.10 modifications under § 994(u))
- United States v. Anderson, 686 F.3d 585 (8th Cir. 2012) (policy statements not APA-noticed guidelines)
- Weaver v. Graham, 450 U.S. 24 (Supreme Court 1981) (ex post facto focus on increased punishment after conduct)
- Mistretta v. United States, 488 U.S. 361 (Supreme Court 1989) (Congressional control of sentencing discretion)
- United States v. Fox, 631 F.3d 1128 (9th Cir. 2011) (APA notice-not-comment applicability to policy statements)
- United States v. Horn, 679 F.3d 397 (6th Cir. 2012) (agency authority to issue policy statements under § 994(u))