This appeal raises the question whether a defendant who obtains a reduced sentencing-guidelines offense level for accepting responsibility may benefit retroactively from an amendment to those guidelines, enacted ten weeks after he was sentenced. The amendment would have permitted a further reduction in his offense level had it been effective when he was sentenced. The district court refused to grant the further reduction on the grounds that the amendment was not retroactive. For the reasons set forth below, we affirm.
I
Dullen was charged with possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). He pleaded not guilty at his arraignment on January 21, 1992. On May 11, eight days before trial, he changed his plea to guilty. Because he “accepted responsibility” for his acts, he earned a two-level reduction from his offense level of 18. U.S.S.G. § 8E1.1 (prior to 1992 amendment). He had a criminal history category of VI. Accordingly, his guideline sentencing range was 46-57 months, and the court sentenced him to 46 months’ imprisonment. Dullen accepted his sentence without appeal.
On November 1,1992, only ten weeks after Dullen’s sentencing, U.S.S.G. § 3E1.1 was amended by Amendment 459. Amendment 459 provides an extra one-level decrease in offense level to a defendant: (a) who accepts responsibility for his offense; (b) who has a total offense level of 16 or more; and (e) who assists the authorities in the investigation or prosecution of his misconduct by taking one or both of the following steps:
(1) timely providing complete information to the government concerning his own involvement in the offense; or
(2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently.
U.S.S.G. app. C, amend. 459 (1992).
On January 13, 1993, Dullen moved, under 18 U.S.C. § 3582(c), for a sentence modification, seeking to benefit from the additional one-level reduction. Such a reduction would lower his sentencing range by at least five months, to 41-51 months. However, the district court ruled on January 28 that the amendment of U.S.S.G. § 3E1.1 came too late to benefit Dullen because criminals should be sentenced based on “the guidelines in effect on the date the defendant is sentenced.” Dullen brings this timely appeal from the district court’s denial of his Motion for Reduction of Sentence.
II
When the United States Sentencing Commission lowers a particular sentencing range, by amending its Guidelines after a convict’s sentencing date, a court may act to modify the penalty that it had imposed earlier under the stricter regime. However, such a modification is proper only “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Indeed, “[t]he principle that the Guidelines Manual is binding on federal courts applies as well to policy statements [issued by the Sentencing Commission].”
Stinson v. United States,
— U.S. -, -,
Where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the guidelines [that is specifically enumerated in U.S.S.G. § lB1.10(d) ], a reduction in the defendant’s term of imprisonment may be considered under 18 U.S.C. § 3582(c)(2). If none of the amendments listed in subsection (d) is applicable, a reduction in the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) is not consistent with this policy statement.
U.S.S.G. § lB1.10(a). Subsection (d) enumerates a number of amendments that apply retroactively. However, Amendment 459 is not among them.
When sentencing a convict, the court “shall consider ... the kinds of sentence and the sentencing range established for the applicable category of offense ... that are in effect on the
date
the defendant is
sentenced
[and] any pertinent policy statement issued by the Sentencing Commission ... that is in effect on the
date
the defendant is sentenced....” 18 U.S.C. § 3553(a)(4), (5) (emphasis added). Similarly, this court has stated that “[t]he version of the guidelines in effect at the
time of sentencing
is ordinarily applied.”
United States v. Jennings,
Other circuits’ rulings parallel this court’s view. For example, in
United States v. Havener,
The Second Circuit has ruled in the same manner. In one recent case, a previously sentenced convict sought retroactive application of Amendment 459 to U.S.S.G. § 3E1.1 — exactly as Dullen does here. The Second Circuit rejected the claim, holding that “Congress did not wish appellate courts on direct review to revise a sentence in light of changes made by the [Sentencing] Commission after the sentence has been imposed.”
United States v. Caceda,
The Eighth Circuit has also recently held that it would not grant retroactive effect to Amendment 459 because that amendment was not among those designated in section lB1.10(d) for retroactive application.
United States v. Dowdy,
The Ninth and Tenth Circuits recently held that they, too, would not apply Amendment 459 retroactively.
See United States v. Cueto,
Thus, the First, Second, Fourth, Eighth, Ninth, and Tenth Circuits have all considered the precise subject that is raised on Dullen’s appeal. Furthermore, district courts in both the Fifth and Seventh Circuits have also held that Amendment 459 does not have retroactive effect.
United States v. Guerra,
Amendment 459 is not listed in U.S.S.G. § lB1.10(d), which exists precisely for the purpose of identifying those amendments that are intended to be effective retroactively. Its raison d’etre, to motivate defendants to plead responsibility for their acts, has no relevance to a case like Dullen’s, in which the defendant apparently decided, eight days before his trial was to begin, that the prospect of a two-level reduction in base offense level was motivation enough to plead guilty. Amendment 459 did not exist on Dullen’s sentencing date, and this court stated in Jennings that we apply the version of the guidelines that is in effect at sentencing time.
Ill
We are also unpersuaded by Dullen’s creative effort to couch his appeal in constitutional terms. Unlike others who have sought a retroactive reduction, Dullen has also stated a constitutional argument, contending that the Sentencing Commission violated his right to substantive due process by failing to follow its own rationale when it chose not to accord retroactive effect to Amendment 459.
The Commission’s reasoning is often included in the “Commentary,” including “Application Notes” and “Background,” that follows many Guidelines sections. This additional material often assists in the interpretation of the Guidelines text. Indeed, commentary that serves to interpret a guideline provision or to explain how it is to be applied is controlling and is “akin to an agency’s interpretation of its own legislative rules.”
Stinson,
— U.S. at-,
Although the Guidelines seek to achieve uniformity in sentencing and to avoid unwarranted sentencing disparities, they are not directed at resolving all conceivable disparities between all prisoners who have been sentenced in the past and all who will be sentenced in the future. If they were so directed, then all amendments would apply retroactively, not only those particularly designated in section lB1.10(d).
IV
For the foregoing reasons, the decision by the district court to deny Dullen’s motion for a retroactive offense-level reduction is AFFIRMED.