Case Information
*1 Before: REINHARDT, KLEINFELD, and CHRISTEN, Circuit Judges.
Melvin Adams appeals the district court’s order denying his motion for
reduction of sentence under 18 U.S.C. § 3582(c)(2). We have jurisdiction under 28
U.S.C. § 1291 to review the discretionary denial of a § 3582(c)(2) sentence
reduction motion.
United States v. Trujillo
,
Section 3582(c)(2) allows modification of a term of imprisonment when: (1)
the sentence is based on a sentencing range that has subsequently been lowered by
the Sentencing Commission; and (2) such reduction is consistent with applicable
policy statements issued by the Sentencing Commission.
Id.
The primary
applicable policy statement here is United States Sentencing Guideline
(“U.S.S.G.”) § 1B1.10, which states that a defendant is eligible for a sentence
reduction if “the guideline range
applicable to that defendant
has subsequently
been lowered as a result of an amendment to the Guidelines . . . .” U.S.S.G. §
1B1.10(a)(1) (emphasis added). The commentary to § 1B1.10 clarifies that
eligibility for a reduction of sentence is triggered only by an amendment that
lowers the applicable guideline range, and the guideline range is determined
“before consideration of any departure provision in the Guidelines Manual or any
variance.” U.S.S.G. § 1B1.10 cmt. n. 1(A) (2011).
See United States v. Pleasant
,
Here, Adams was ineligible for a sentence reduction because he failed § 3582(c)(2)’s second prong — that a sentence reduction must be consistent with *3 applicable policy statements issued by the Sentencing Commission. [1] Before he was sentenced by Judge Takasugi, Adams conceded that he “is a career offender under the Guidelines” because of his prior convictions. Therefore, even though Judge Takasugi appears to have based Adams’s initial sentence on U.S.S.G. § 2D1.1’s crack cocaine guideline, the “applicable” guideline was U.S.S.G. § 4B1.1’s career offender guideline. Since the Sentencing Commission did not lower the guidelines for career offenders, Adams was ineligible for a sentence reduction.
Adams argues that his case is distinguishable from Pleasant , noting that Judge Takasugi never found that Adams was a career offender . But as already mentioned, Adams conceded at the time of sentencing that his prior convictions put him in the career offender category. In summarizing Adams’s sentencing memorandum, Judge Takasugi noted that “[t]he defendant does concede he is a career offender.” It is not significant that Judge Takasugi failed to make an express finding concerning an uncontested issue. [2]
*4
Adams also argues that the 2011 amendment to Application Note 1(A) of
Guideline § 1B1.10 violates the United States Constitution’s Ex Post Facto Clause.
But amended Note 1(A) does not present “a sufficient risk of increasing the
measure of punishment attached to the covered crimes.”
Peugh v United States
,
Adams also argues that the current version of § 1B1.10 violates the Administrative Procedure Act’s notice-and-comment and report-and-wait *5 requirements. But the Sentencing Reform Act’s statutory scheme makes clear that policy statements such as § 1B1.10 are subject to neither the APA’s 180-day waiting period nor the notice-and-comment requirements for formally promulgated rules. After considering the differences between Guidelines and policy statements in 28 U.S.C. § 994(a), Congress imposed different requirements for the Commission’s use of each tool. Section 994(x) states that “[t]he provisions of section 553 of title 5, relating to publication in the Federal Register and public hearing procedure, shall apply to the promulgation of guidelines pursuant to this section.” 28 U.S.C. § 994(x) (emphasis added). Section 994(x) does not refer to policy statements. [3] See United States v. Tercero , No. 12-10404, slip op. at 11 (9th Cir. Oct. 31, 2013).
Finally, Adams argues that the Commission usurped judicial and Congressional authority by adopting Application Note 1(A). But Congress directed that the Sentencing Commission “shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” 28 U.S.C. § 994(u). The Commission is directed to do *6 so by adopting binding policy statements. 28 U.S.C. § 994(a)(2)(C) (The Commission “shall promulgate . . . general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes set forth in [18 U.S.C. § 3553(a)(2)], including the appropriate use of . . . the sentence modification provision[] set forth in section[] . . . 3582(c).”). That is exactly what it has done with § 1B1.10. As such, Adams’s argument fails.
AFFIRMED.
Notes
[*] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
[1] The parties do not contest that Adams satisfied § 3582(c)(2)’s first prong.
[2] U.S.S.G. § 4B1.1(b).
[3] As the Third Circuit noted in
United States v. Berberena
, “[u]nlike in
certain surrounding provisions . . ., § 994(x) makes no reference to the
Commission’s issuance of policy statements. The omission can only be interpreted
to exclude policy statements from § 994(x)’s application of the APA’s
notice-and-comment provisions.”