United States Court of Appeals
For the First Circuit
No. 12-1039
UNITED STATES,
Appellee,
v.
WYMAN HOGAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Howard, Stahl, and Thompson,
Circuit Judges.
John T. Ouderkirk, Jr. for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.
Judith H. Mizner, Assistant Federal Public Defender for the
Federal Public Defender for the Districts of Massachusetts, New
Hampshire and Rhode Island Federal Defender, amicus curiae.
July 5, 2013
THOMPSON, Circuit Judge. Appellant Wyman Hogan ("Hogan")
was sentenced to 262 months' imprisonment for crack-cocaine related
offenses in 2002. When the United States Sentencing Guidelines
("U.S.S.G.") were amended in 2007 to reduce crack-cocaine base
offense levels, Hogan moved for and was granted a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2). The guidelines were
amended again in 2011, retroactively lowering the base offense
levels further for crack-cocaine offenses. Hogan again moved for
a reduction of his sentence under § 3582(c)(2), but the district
court denied the motion. Hogan appeals, arguing the district court
erred in concluding he was ineligible to receive that reduction.
We affirm.
BACKGROUND
In 2001, a jury found Hogan guilty of conspiracy to
possess with intent to distribute and distribution of fifty grams
or more of cocaine and cocaine base, in violation of 21 U.S.C. §§
846 and 841(a)(1), and possession of cocaine base, in violation of
21 U.S.C. § 844(a). At Hogan's sentencing in 2002, the district
court determined his base offense level ("BOL") was 34. After
applying a three-level increase for an official victim enhancement
and a two-level increase for a leadership role enhancement, as well
as a downward adjustment of two levels for acceptance of
responsibility, the court found Hogan's total offense level ("TOL")
was 37. Although the Presentence Investigation Report ("PSR")
-2-
determined Hogan's criminal history category ("CHC") was VI, Hogan
requested and the court granted a downward departure pursuant to
U.S.S.G. § 4A1.3. The court departed to a CHC of III, on the basis
that the CHC of VI "over-represent[ed] the seriousness" of Hogan's
criminal history. That departure reduced Hogan's advisory
guideline range to 262 to 327 months and the court sentenced Hogan
to 262 months and five years of supervised release.
Six years later, Hogan moved to reduce his sentence
pursuant to 18 U.S.C. § 3582(c)(2), which permits district courts
to modify previously imposed sentences in certain circumstances to
take into account retroactive guideline amendments.1 Hogan's
motion was based on a 2007 amendment to the Sentencing Guidelines
which retroactively reduced base offense levels for crack-cocaine
offenses by two levels. See U.S.S.G. app. C, amends. 706, 713
(effective Nov. 1, 2007); United States v. Caraballo, 552 F.3d 6,
8 (1st Cir. 2008) (noting the amendment "adjust[ed] downward by two
levels the base offense level ascribed to various quantities of
crack cocaine" in the Guidelines Manual drug quantity table). The
government and Hogan stipulated to the retroactive application of
1
Under 18 U.S.C. § 3582(c)(2), a district court may reduce a
sentence previously imposed "in the case of a defendant who has
been sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission." 18 U.S.C. § 3582(c)(2). A court may reduce the
sentence "after considering the factors set forth in section
3553(a) to the extent that they are applicable" and if reducing the
sentence is "consistent with applicable policy statements issued by
the Sentencing Commission." Id.
-3-
the sentencing guideline amendment and agreed Hogan's BOL should be
reduced from 34 to 32, which reduced his TOL from 37 to 35, and
yielded a guideline range of 210 to 262 months. The parties
proposed the amended sentence should be 210 months. The district
court concluded that the version of U.S.S.G. § 1B1.10 in effect at
the time allowed it to apply the same departure in Hogan's CHC --
from CHC VI to CHC III -- it had applied at his initial sentencing.
See U.S.S.G. § 1B1.10(b)(2) (pre-2011 amendments) (providing that
"[i]f the original term of imprisonment imposed was less than the
term of imprisonment provided by the guideline range applicable to
the defendant at the time of sentencing," the defendant could be
granted "a reduction comparably less than the amended guideline
range"). Applying the CHC departure, the court determined the
revised guideline range was 210 to 262 months and agreed with the
parties that Hogan's sentence should be reduced to 210 months.
In 2011, the Sentencing Commission adopted Amendments 750
and 759, both effective November 1, 2011. Amendment 750
retroactively implemented the Fair Sentencing Act of 2010 ("FSA"),
which reduced the statutory penalties for crack-cocaine offenses.
See Fair Sentencing Act of 2010 § 2(a), Pub. L. No. 111-220, 124
Stat. 2372; U.S.S.G. app. C, amend. 750 (effective Nov. 1, 2011).
The change in drug amounts reduced the "100-to-1 crack-to-powder
ratio to 18-to-1." Dorsey v. United States, 132 S. Ct. 2321, 2329
(2012). While Amendment 750 made further retroactive reductions to
-4-
the crack-cocaine guidelines, Amendment 759 limited the
availability of relief for prisoners who received below-guideline
sentences in the first instance.
As part of Amendment 759, the Sentencing Commission
amended policy statement § 1B1.10(b)(2). Prior to Amendment 759,
§ 1B1.10(b)(2)(A) prohibited reducing a defendant's sentence under
18 U.S.C. § 3582(c)(2) "to a term that is less than the minimum of
the amended guideline range[.]" U.S.S.G. § 1B1.10(b)(2)(A) (2010).
There was an exception to this rule under § 1B1.10(b)(2)(B), which
allowed a "reduction comparably less than the amended guideline
range" in cases where "the original term of imprisonment imposed
was less than the term of imprisonment provided by the guideline
range applicable to the defendant at the time of sentencing." Id.
§ 1B1.10(b)(2)(B) (2010). Amendment 759 kept § 1B1.10(b)(2)(A)
intact, but changed the exception found in § 1B1.10(b)(2)(B) under
which a court could further reduce a defendant's sentence. Now, §
1B1.10(b)(2)(B) allows a reduction comparably less than the amended
guideline range only if the below-guideline sentence was due to the
defendant's substantial assistance to the government.
Specifically, newly-amended § 1B1.10(b)(2)(B) provides that if a
defendant's term of imprisonment "was less than the term of
imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing pursuant to a government motion
to reflect the defendant's substantial assistance to authorities,
-5-
a reduction comparably less than the amended guideline range . . .
may be appropriate." U.S.S.G. § 1B1.10(b)(2)(B) (2011). In
addition, the Commission amended Application Note 1 to §
1B1.10(b)(2) which says that the "guideline range" consisting of
"the offense level and criminal history category determined
pursuant to § 1B1.10(a) . . . is determined before consideration of
any departure provision in the Guidelines Manual or any variance."
Id. § 1B1.10 cmt. n.1.
Based on the retroactive application of the 2011
guideline amendments, Hogan moved to reduce his sentence pursuant
to 18 U.S.C. § 3582(c)(2). This time, the district court denied
Hogan's motion. The court concluded that although the retroactive
application of the 2011 guideline amendments resulted in a two-
level reduction in Hogan's BOL from 32 to 30, and a corresponding
reduction in his TOL from 35 to 33, the amended version of §
1B1.10(b)(2) did not entitle Hogan to a "reduction comparably less"
than his amended guideline because he had been sentenced to a
below-guideline sentence. United States v. Hogan, 00-CR-100-01-PB,
2011 WL 6337629, at *2 (D.N.H. Dec. 16, 2011).
The revised version of § 1B1.10(b)(2) under Amendment
759, the court said, did not permit it to apply the CHC III
departure in calculating Hogan's guideline range -- the same
departure the court had applied in 2002 at his initial sentencing
and in 2008 when granting Hogan's motion to reduce his sentence
-6-
based on the pre-2011 amendments.2 The court applied Hogan's
original CHC (VI), instead of the reduced CHC (III), and a TOL of
33 (reduced per the 2011 guideline amendments), resulting in an
amended guideline range of 235 to 293 months. Because the amended
guideline range exceeded Hogan's modified sentence of 210 months,
the court found the language of the newly-amended § 1B1.10(b)(2)
prohibited any further reduction to the 210-month sentence and that
Hogan was therefore ineligible for relief under 18 U.S.C. §
3582(c)(2). This is Hogan's appeal.
DISCUSSION
Hogan says the district court erred in concluding he was
ineligible under 18 U.S.C. § 3582(c)(2) for a sentence reduction.
As best we can tell, Hogan raises two arguments in his brief:
first, that the district court was wrong in finding the revised
commentary in Application Note 1 bars the district court from
applying his reduced CHC of III from his original sentencing in
calculating the amended guideline range; and second, that the
newly-amended U.S.S.G. § 1B1.10(b)(2) does not prohibit the
district court from considering his reduced CHC in further reducing
his below-guideline sentence.
2
Given the court's conclusion that it could not apply, as it
had before, the same CHC III departure, we infer that the court had
considered Application Note 1 to the amended § 1B1.10(b)(2)(B)
although it did not expressly mention it in its decision.
-7-
The sole issue on appeal is therefore whether Hogan, who
received a CHC reduction at his original sentencing, is entitled to
the application of the same or a similar reduction at re-sentencing
under § 3582(c) in light of the newly-amended sentencing guideline,
§ 1B1.10(b)(2), and its commentary, Application Note 1. Because
this is a purely legal question, our review is de novo. See United
States v. Roa-Medina, 607 F.3d 255, 258 (1st Cir. 2010).
Our starting point is 18 U.S.C. § 3582(c)(2), the statute
under which Hogan moved to reduce his sentence. Under §
3582(c)(2), a district court may reduce a sentence previously
imposed "in the case of a defendant who has been sentenced to a
term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission." 18 U.S.C.
§ 3582(c)(2). A court may reduce the sentence "after considering
the factors set forth in section 3553(a) to the extent that they
are applicable" and if reducing the sentence is "consistent with
applicable policy statements issued by the Sentencing Commission."
Id.
The parties agree that the applicable Commission policy
statement on § 3582(c)(2) sentence reductions is the newly-amended
U.S.S.G. § 1B1.10(b). Section 1B1.10(b) outlines the approach
courts are to take in determining whether and to what extent a
sentence reduction under 18 U.S.C. § 3582(c)(2) and the policy
statement is warranted. See U.S.S.G. § 1B1.10(b). Under §
-8-
1B1.10(b)(1), the court must first determine the amended guideline
range that would have applied to the defendant if the guideline
amendments specified in the policy statement (which include
Amendment 750) were in effect at the time of the defendant's
initial sentencing. Id. § 1B1.10(b)(1). In doing so, the court
may substitute only the amended guideline and must "leave all other
guideline application decisions unaffected." Id. Once a court
determines the amended guideline range, it must look to §
1B1.10(b)(2) to see whether and to what extent it can reduce the
defendant's sentence.
As we mentioned, Hogan's first challenge to the district
court's denial of relief under 18 U.S.C. § 3582(c)(2) attacks the
way the court calculated his amended guideline range pursuant to
U.S.S.G. § 1B1.10(b)(1). He argues the court should have applied
the downward departure he received in his criminal history category
at his initial sentencing when calculating the amended guideline
range. We disagree.
We need look no further than Application Note 1 to
determine whether § 1B1.10(b)(1) allows courts to consider
departures prior to determining the applicable guideline range.
The plain language of Application Note 1(A) makes clear that the
applicable guideline range calculated under § 1B1.10(b)(1)
corresponds to the offense level and criminal history category
which is "determined before consideration of any departure
-9-
provision in the Guidelines Manual." U.S.S.G. § 1B1.10 cmt. n.1(A)
(emphasis added). Thus, Application Note 1 prohibits courts from
applying departures prior to the determination of the amended
guideline range in a proceeding for a sentence reduction under 18
U.S.C. § 3582(c)(2). See United States v. Montanez, 11-4933-CRL,
2013 WL 2346409, at *4 (2d Cir. May 30, 2013); United States v.
Steele, 714 F.3d 751, 754 (2d Cir. 2013); United States v. Givens,
No. 12-14549, 2013 WL 1197899, at *2-3 (11th Cir. Mar. 26, 2013)
(unpublished); United States v. Valdez, 492 F. App'x 895, 898-99
(10th Cir. 2012) (unpublished).
A commentary provision, such as Application Note 1,
"which functions to interpret a guideline or explain how it is to
be applied" is binding as long as the Commentary does not conflict
with the Constitution, a federal statute, or the guideline at
issue. Stinson v. United States, 508 U.S. 36, 42–43 (1993)
(internal quotation marks and alterations omitted). We find
meritless Hogan's sole argument as to why the Application Note is
not binding. Hogan argues that Application Note 1 conflicts with
18 U.S.C. § 3582(c)(2) "to the extent [Application Note 1's]
application prohibits the court from reducing a defendant's
sentence" where the district court applied a downward departure to
lower his guideline range at his initial sentencing but can no
longer apply that departure to determine the amended guideline
range. Hogan's argument ignores the authority and "substantial
-10-
role" regarding sentence-modification proceedings that Congress
gave the Commission. Dillon v. United States, 130 S. Ct. 2683,
2691 (2010). Congress authorized the Commission to decide not only
whether to amend the Sentencing Guidelines, 28 U.S.C. § 994(o), and
to determine whether and to what extent an amendment would be
retroactive, id. § 994(u), but also to determine the extent to
which -- "by what amount" -- sentences may be reduced based on
those that it makes retroactive, Dillon, 130 S. Ct. at 2691. In 18
U.S.C. § 3582(c)(2), Congress explicitly stated that courts may
reduce a sentence only if the reduction is "consistent with
applicable policy statements issued by the Sentencing Commission."
18 U.S.C. § 3582(c)(2). And, courts are "require[d]" to "follow
the Commission's instructions in § 1B1.10 to determine the
prisoner's eligibility for a sentence modification and the extent
of the reduction authorized." Dillon, 130 S. Ct. at 2691. In
prohibiting further reductions to a defendant serving a below-
guideline sentence based on departures other than those granted
because of the defendant's substantial assistance, the Commission
has plainly indicated "by what amount" sentences may be reduced on
the basis of retroactive amendments. We reiterate, as the Supreme
Court has already made clear, that § 3582(c)(2) does not give the
defendant a resentencing opportunity. Id. at 2690 ("[Section]
3582(c)(2) does not authorize a sentencing or resentencing
proceeding."). Under § 3582(c)(2), Congress instead "intended to
-11-
authorize only a limited adjustment to an otherwise final
sentence," id. at 2691, "within the narrow bounds established by
the Commission," id. at 2694. Those narrow bounds, found in §
1B1.10 and the Application Note, constrained what the court could
do in modifying Hogan's sentence in this case. Id. at 2691 (noting
that "§ 1B1.10(b)(2) also confines the extent of the reduction
authorized").
To be sure, the Commission's decision to revise
Application Note 1 under the 2011 guideline amendments was careful
and deliberate. The Commission noted that the version of § 1B1.10
in effect prior to November 1, 2011 had "one rule for downward
departures (stating that 'a reduction comparably less than the
amended guideline range . . . may be appropriate') and another rule
for variances (stating 'that a further reduction generally would
not be appropriate')." U.S.S.G. app. C, amend. 759 (Reason for
Amendment). The difficulty in applying the distinction for cases
in which the term of imprisonment was less than the minimum of the
applicable guideline range prompted the Commission to determine
that in the context of § 1B1.10, "a single limitation applicable to
both departures and variances furthers the need to avoid
unwarranted sentencing disparities and avoids litigation in
individual cases." Id. The Commission said the "limitation that
prohibits a reduction below the amended guideline range in such
-12-
cases promotes conformity with the amended guideline range and
avoids undue complexity and litigation." Id.3
At oral argument, Hogan raised for the first time three
arguments concerning the enforceability of Application Note 1. He
contended that Application Note 1 is not binding because: (1) it
conflicts with the text of § 1B1.10(b)(1); (2) it conflicts with
the purpose of the FSA; and (3) the Commission failed to comply
with the Administrative Procedure Act, 5 U.S.C. § 551-559, notice-
and-comment requirements when amending the policy statement.4
3
Before the 2011 guideline amendments, the circuits were split
"about when, if at all, the court applies a departure provision
before determining the 'applicable guideline range' for purposes of
§ 1B1.10." U.S.S.G. app. C, amend. 759 (Reason for Amendment). As
the Commission has noted, we, along with the Second and Fourth
Circuits had held that, for § 1B1.10 purposes, at least some
departures -- i.e., departures under § 4A1.3 -- "are considered
before determining the applicable guideline range, while the Sixth,
Eighth, and Tenth Circuits have held that the only applicable
guideline range is the one established before any departures." Id.
(internal quotation marks and citations omitted). Recognizing the
circuit split, the Commission amended Application Note 1 to
"adopt[] the approach of the Sixth, Eighth, and Tenth Circuits" and
"clarify that the applicable guideline range referred to in §
1B1.10 is the guideline range determined . . . before consideration
of any departure provision in the Guidelines Manual or any
variance." Id.
4
Hogan's brief notes that the guideline amendments promulgated
by the Commission retroactively implemented the reduced statutory
penalties for crack-cocaine offenses under the FSA but does not
specifically argue that the 2011 guideline amendments are
inconsistent with the FSA. Instead, he makes the broad statement,
without explaining why, that the FSA and the guideline amendments
did not require the district court to return to the pre-departure
CHC of VI when determining the applicable guideline range under
U.S.S.G. § 1B1.10(b)(1) and in declining to further reduce Hogan's
sentence under § 1B1.10(b)(2).
-13-
Hogan made no mention of any of these arguments in his brief.
Thus, his argument that Application Note 1 is not binding based on
those grounds is waived. See United States v. Bayard, 642 F.3d 59,
66 n.10 (1st Cir. 2011) (noting that arguments raised at oral
argument but not in a party's initial brief are waived); United
States v. Giggey, 551 F.3d 27, 36-37 (1st Cir. 2008) (same).5
We now turn to Hogan's argument that § 1B1.10(b)(2) does
not preclude a reduction below the 210-month sentence he is
currently serving. Hogan says the CHC downward departure he
received at his original sentencing should apply to yield a
sentence reduction "comparably less than the amended guideline
range," U.S.S.G § 1B1.10(b)(2)(B), which in his case is 235 to 293
months applying a CHC of VI.
5
We invited the Federal Public Defender for the Districts of
Massachusetts, New Hampshire and Rhode Island to file an amicus
brief to address whether Hogan, who received a reduction in his CHC
at his original sentencing, is entitled to the application of the
same or a similar reduction upon consideration of a re-sentencing
motion under § 3582(c)(2).
At oral argument, counsel for Hogan "direct[ed]" us to the
pages on which the amicus's argument that Application Note 1 was
promulgated in violation of the non-delegation doctrine and
separation of powers doctrine appeared, and asked the argument be
"incorporated" in his brief. But such cursory allusion is the type
of "generalized reference" that is "insufficient to place the
putative adopter's weight behind the argument." In re Sony BMG
Music Entm't, 564 F.3d 1, 3 n.3 (1st Cir. 2009); see R.I. Dep't of
Envtl. Mgmt. v. United States, 304 F.3d 31, 47 n.6 (1st Cir. 2002).
We thank the Federal Public Defender for filing its amicus
brief. The amicus was of great assistance in helping us think
through the issue Hogan raised on appeal.
-14-
Our analysis starts and ends with the plain and
unambiguous language of § 1B1.10(b)(2)(A) and (B). Pursuant to §
1B1.10(b)(2)(A), a court cannot reduce a defendant's sentence under
"18 U.S.C. § 3582(c)(2) and this policy statement to a term that is
less than the minimum of the amended guideline range determined
under subdivision (1)." U.S.S.G. § 1B1.10(b)(2)(A).6 The only
exception to this rule is found in § 1B1.10(b)(2)(B). Under §
1B1.10(b)(2)(B), reductions "comparably less than the amended
guideline range" are permitted only in cases where the original
term of imprisonment was below the applicable guideline range
"pursuant to a government motion to reflect the defendant's
substantial assistance to authorities." Id. § 1B1.10(b)(2)(B).7
Every circuit court to have addressed the issue agrees that §
1B1.10(b)(2)(B) bars a district court from lowering a defendant's
below-guideline sentence unless the departure at his original
sentencing was based on his substantial assistance to the
government. See United States v. Berberena, 694 F.3d 514, 518-19
(3rd Cir. 2012); United States v. Anderson, 686 F.3d 585, 588 (8th
6
The Application Notes reiterate the limitation laid out in §
1B1.10(b)(2)(A) that, subject to the exception under subsection
(b)(2)(B), the court cannot reduce a defendant's sentence to a term
less than the minimum of the amended guideline range determined
under subdivision (1). U.S.S.G. § 1B1.10 cmt. n.3.
7
The Application Notes reinforce this interpretation, stating
that a defendant may seek a further reduction only if the initial
sentence was lowered pursuant to a substantial assistance motion by
the government. U.S.S.G. § 1B1.10 cmt. n.3.
-15-
Cir. 2012); United States v. Glover, 686 F.3d 1203, 1207 (11th Cir.
2012); accord United States v. Colon, 707 F.3d 1255, 1258 (11th
Cir. 2013); United States v. Lizalde, No. 10-50445, 2012 WL
6758274, at *2 n.2 (9th Cir. Dec. 19, 2012) (unpublished); Valdez,
492 F. App'x at 898-99; United States v. Beserra, 466 F. App'x 548,
550 (7th Cir. 2012) (unpublished). We see no reason to depart from
our sister circuits given the plain language of § 1B1.10(b)(2)(A)
and (B).
In the instant case, Hogan received a below-guideline
sentence but it was based on a departure in his CHC, not
substantial assistance to the government. So he does not fall
within the exception under § 1B1.10(b)(2)(B) to receive a
"reduction comparably less than the amended guideline range."
U.S.S.G. § 1B1.10(b)(2)(B). To obtain relief under § 3582(c), the
guideline amendments at issue must "lower[]" a defendant's
applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B) ("A
reduction in [a] defendant's term of imprisonment is not consistent
with this policy statement and therefore is not authorized under 18
U.S.C. § 3582(c)(2) if . . . [the amendment] does not have the
effect of lowering the defendant's applicable guideline range").
Here, they do not. Hogan's amended guideline range is 235 to 293
months and he received a below-guideline sentence of 210 months.
-16-
Accordingly, the district court committed no error in determining
that Hogan was ineligible for a sentence reduction under 18 U.S.C.
§ 3582(c)(2).
We, like the Second Circuit in Montanez, question as a
policy matter, why courts "should not have the discretion to give
defendants the benefit of § 4A1.3 departures during sentencing
reduction proceedings." 2013 WL 2346409, at *6. Because the
Commission has made clear that a defendant's "amended guideline
range" does not incorporate previously granted departures under §
4A1.3, a defendant's criminal history category that overstates his
past crimes during an initial sentencing will continue to do so
when that defendant moves for a reduction. We are troubled by the
extent to which the amended policy statement and Application Notes
severely limit the number of defendants (receiving below-guideline
sentences at initial sentencing based on § 4A1.3 departures
unrelated to substantial assistance) who will be able to obtain
relief under § 3582(c)(2) in light of the crack-cocaine guideline
amendments. Despite our concerns, in these instances the district
court's hands, as they were in this case, will be tied. Affirmed.
-17-