United States v. Fox
2011 U.S. App. LEXIS 2339
| 9th Cir. | 2011Background
- Fox pled guilty to the drug offense; the gun charge was dropped as part of the plea.
- Guidelines at sentencing would have imposed 360 months to life based on crack quantity, gun involvement, leadership role, and Criminal History IV.
- Fox was sentenced to 360 months, at the low end of the Guidelines range, with the judge noting potential downward departure if allowed by then-mandatory Guidelines.
- In 2008, retroactive crack-down amendments lowered base offense levels; Fox sought a sentence reduction under 18 U.S.C. § 3582(c) and § 1B1.10.
- The district court recalculated to 292–365 months and, following Hicks, treated Guidelines as advisory for modification, then granted a downward departure for non-retroactive factors, reducing to time served (134 months).
- On appeal, the government argued Hicks misread Booker; Dillon later held 1B1.10 must be followed; Fox pressed statutory grounds challenging 1B1.10 as invalid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 1B1.10 is valid as a policy statement under Booker doctrine. | Fox argues 1B1.10 is invalid as inconsistent with Booker. | Fox contends 1B1.10 functions as an improper Guideline circumventing procedural requirements. | Policy Statement 1B1.10 valid; Congress authorized Policy Statements to govern sentence-modification use. |
| Whether Dillon forecloses Fox's constitutional challenge to 1B1.10. | Dillon rejected Booker-based concerns but allowed statutory challenge. | Dillon forecloses the constitutional argument and supports 1B1.10's use. | Dillon did not require disregarding 1B1.10; the central issue remains valid under statutory framework. |
| Whether 1B1.10 governs the scope of sentence modification proceedings. | Policy statement improperly limits full resentencing and ignores non-retroactive factors. | 1B1.10 clarifies that modification is limited to the effects of retroactive amendments. | 1B1.10 limits modifications to responses to retroactive amendments and not plenary resentencing. |
| Whether the district court erred in treating the advisory status of the Guidelines as controlling for modification. | Hicks allowed advisory treatment of Guidelines at modification. | Dillon dictates that 1B1.10 is still controlling as the policy statement. | The district court erred in authorizing a broad departure; the court must adhere to 1B1.10 and related policy statements. |
Key Cases Cited
- Dillon v. United States, 130 S. Ct. 2683 (2010) (limits modification to narrow adjustment under § 3582(c) and Policy Statements)
- United States v. Booker, 543 U.S. 220 (2005) (guided that Guidelines are advisory after Booker)
- United States v. Hicks, 472 F.3d 1167 (9th Cir.2007) (treated Guidelines as advisory in sentence-modification context)
- Williams v. United States, 503 U.S. 193 (1992) (policy statements can control application of Guidelines)
- Stinson v. United States, 508 U.S. 36 (1993) (treatment of Commission commentary as binding on Courts)
- Mistretta v. United States, 488 U.S. 361 (1989) (upheld broad delegation to Sentencing Commission)
- United States v. Dillon, 560 U.S. __ (2010) (Supreme Court decision addressing 3582(c) scope)