United States v. Thomas Kruger, 838 F.3d 786

Thomas Kruger pleaded guilty in 2008 to possessing pseudoephedrine with intent to manufacture methamphetamine and was sentenced in January 2009 to 120 months’ imprisonment (below the Guidelines range of 188–235 months).
U.S. Sentencing Guidelines in 2008 produced Kruger’s Base Offense Level 34 and Criminal History Category VI; the district court varied downward based on sentencing factors.
In 2014 the Sentencing Commission adopted Amendment 782, which would have lowered Kruger’s amended Guidelines range to 151–188 months if applied retroactively.
In 2011 the Commission promulgated Amendment 759, amending U.S.S.G. § 1B1.10(b) to categorically bar § 3582(c)(2) reductions to terms below the minimum of the amended Guidelines range.
Kruger moved under 18 U.S.C. § 3582(c)(2) in 2014 for a sentence reduction based on Amendment 782; the Probation Office, the government, and the district court concluded Amendment 759 made him ineligible.
Kruger appealed, arguing Amendment 759’s bar to retroactive relief violates the Ex Post Facto Clause by disadvantaging him.

Issue	Kruger’s Argument	Government’s Argument	Held
Whether Amendment 759 violates the Ex Post Facto Clause by denying retroactive application of Amendment 782 to defendants whose original sentence was below the amended guideline minimum	Amendment 759 retroactively increases punishment because it strips a previously available avenue (per § 1B1.10 pre-2011) for a potential sentence reduction	Amendment 759 does not increase punishment; it only forecloses a speculative, non-entitled benefit (Amendment 782 did not exist at sentencing), so no ex post facto violation	The Sixth Circuit affirmed: no Ex Post Facto violation — Amendment 759 does not retroactively increase Kruger’s punishment

Weaver v. Graham, 450 U.S. 24 (1981) (ex post facto protects rights that existed at time of offense, e.g., gain-time statutes)
Lynce v. Mathis, 519 U.S. 433 (1997) (retroactive cancellation of earned early-release credits can violate Ex Post Facto Clause)
Peugh v. United States, 569 U.S. 530 (2013) (test: whether change presents sufficient risk of increasing punishment)
Cal. Dep’t of Corr. v. Morales, 514 U.S. 499 (1995) (speculative/attenuated effects insufficient for ex post facto claim)
Garner v. Jones, 529 U.S. 244 (2000) (remand for factual development when change in law may increase incarceration risk)
Dillon v. United States, 560 U.S. 817 (2010) (no constitutional right to retroactive application of later Guidelines amendments)
United States v. Diggs, 768 F.3d 643 (7th Cir. 2014) (denial of § 3582(c)(2) relief by later amendment not an ex post facto violation)
United States v. Colon, 707 F.3d 1255 (11th Cir. 2013) (same)
United States v. Waters, 771 F.3d 679 (9th Cir. 2014) (same)
United States v. Thompson, 825 F.3d 198 (3d Cir. 2016) (same)
United States v. Hinson, [citation="637 F. App'x 526"] (10th Cir. 2016) (same)