RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0219p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
UNITED STATES OF AMERICA,
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No. 09-5090
v.
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Defendant-Appellee. -
GREGORY STEVEN HORN,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 01-00142-001—Thomas A. Wiseman, Jr., District Judge.
Argued: June 16, 2010
Decided and Filed: July 26, 2010
Before: CLAY, ROGERS, and COOK, Circuit Judges.
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COUNSEL
ARGUED: Harold B. McDonough, Jr., ASSISTANT UNITED STATES ATTORNEY,
Nashville, Tennessee, for Appellant. Michael C. Holley, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Nashville, Tennessee, for Appellee. ON BRIEF: Harold B.
McDonough, Jr., ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for
Appellant. Michael C. Holley, C. Douglas Thoresen, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Nashville, Tennessee, for Appellee. Mark Osler, BAYLOR LAW SCHOOL,
Waco, Texas, for Amici Curiae.
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OPINION
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ROGERS, Circuit Judge. Gregory Steven Horn pled guilty in 2001 to armed bank
robbery. He received a 204-month sentence based on the district court’s determination that
he was a career offender. In 2008, Horn filed a motion for resentencing based on Guidelines
Amendment 709, arguing that he was not a career offender under the amendment because
his two prior robbery convictions would no longer count as separate offenses. The
1
No. 09-5090 USA v. Horn Page 2
Sentencing Commission has declined to designate Amendment 709 for retroactive
application. The district court nevertheless granted Horn’s motion for resentencing,
concluding that, both as a matter of statutory construction and as an application of United
States v. Booker, 543 U.S. 220 (2005), the Sentencing Commission’s designation of
amendments as non-retroactive does not bind district courts. The Government now appeals,
arguing that under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, the district court lacked
the authority to apply Amendment 709 retroactively. Because, under the provisions
identified by the Government, the Sentencing Commission’s retroactivity determinations
control whether a defendant may be resentenced based on a subsequent Guidelines
amendment, the district court lacked the authority to resentence Horn.
In September 2001, Gregory Steven Horn entered a SunTrust Bank branch in
Nashville, Tennessee, and forced his way to the bank counter. Horn drew a handgun,
pointed it toward the teller’s head, and demanded money. The teller complied with Horn’s
demand but included a dye pack and bait bills in the money provided to Horn. Horn
departed the bank in a maroon vehicle. A short time later, police officers discovered Horn
and the vehicle at a nearby gas station. When the officers approached Horn, Horn ignored
their commands to stop and fled in the vehicle. Horn was involved in two traffic accidents
while attempting to evade the ensuing police pursuit, and he was forced to abandon the
maroon vehicle after the second accident. Police officers eventually located Horn hiding
under a parked truck and arrested him. The maroon vehicle contained nearly all of the stolen
money, much of which was covered by the exploded dye pack. Horn pled guilty in
November 2001 to armed bank robbery in violation of 18 U.S.C. § 2113(d).
The SunTrust robbery was not Horn’s first crime. Most relevant to this appeal, Horn
committed two armed robberies in January 1998. On January 6, Horn and an accomplice
robbed the manager of a Giant Food Store at gunpoint in Anne Arundel County, Maryland.
On January 26, Horn, acting alone, robbed a man in Glen Burnie, Maryland. Police officers
arrested Horn on January 27. The state charged Horn separately for the two armed robberies,
and the two cases were never consolidated. The state court, however, sentenced Horn on the
same day for both crimes.
No. 09-5090 USA v. Horn Page 3
Because (1) Horn was at least eighteen at the time of the SunTrust robbery, (2) the
robbery was a crime of violence, and (3) the two Maryland robberies were also crimes of
violence, Horn was designated a career offender under the sentencing guidelines. See
U.S.S.G. § 4B1.1. This designation increased Horn’s offense level to 34, and his total
offense level was 31 after an adjustment for acceptance of responsibility. The district court’s
designation of Horn as a career offender also increased his criminal history category to VI,
resulting in a Guidelines range of 188-235 months’ imprisonment. After a hearing, the
district court sentenced Horn to 204 months’ imprisonment. This court affirmed the sentence
on appeal over Horn’s challenge that the district court should not have treated the two
Maryland robberies as separate offenses for purposes of U.S.S.G. § 4B1.1. United States v.
Horn, 355 F.3d 610, 615 (6th Cir. 2004).
Effective November 1, 2007, the United States Sentencing Commission
(Commission) promulgated Amendment 709, which altered the way in which the Guidelines
determined whether prior crimes would be treated as single or separate offenses. See
U.S.S.G. app. C, amend. 709. Under the amendment, multiple offenses for which sentences
are imposed on the same day are counted as a single offense unless there was an intervening
arrest between the offenses. See id.; U.S.S.G. § 4A1.2(a)(2). In Horn’s case, application of
the amended Guidelines would result in the two Maryland robberies’ not being counted as
separate offenses, and thus Horn would not be a career offender under the amended
Guidelines.
In February 2008, Horn moved pro se for a modification of his sentence under
Amendment 709. The district court appointed counsel for Horn, and Horn’s appointed
counsel filed a supplemental motion for resentencing. The Government filed a response,
arguing that the district court lacked the authority to resentence Horn because the
Commission had not listed Amendment 709 as having retroactive application. The district
court held that the court had the authority to resentence Horn because (1) Guidelines policy
statements cannot bind the discretion of district courts and (2) Booker rendered the entirety
of the Guidelines advisory. The district court further determined that Amendment 709 ought
to have been designated as retroactive, and thus that Horn was entitled to resentencing. On
January 7, 2009, the district court held a resentencing hearing. The court determined that,
absent the career offender classification, Horn’s total offense level was 26 and his criminal
No. 09-5090 USA v. Horn Page 4
history category was IV, resulting in a Guidelines range of 92-115 months. At the
conclusion of the hearing, the court reduced Horn’s sentence to 108 months’ imprisonment.
The Government now appeals, arguing that the district court exceeded its authority by
resentencing Horn.
The district court lacked the authority to resentence Horn because 18 U.S.C.
§ 3582(c)(2) and U.S.S.G. § 1B1.10 provide that the Commission’s retroactivity
determinations control whether district courts may resentence defendants, and the
Commission has not designated Amendment 709 for retroactive application. Under
28 U.S.C. § 994(o), the Commission “periodically shall review and revise, in consideration
of comments and data coming to its attention, the guidelines promulgated pursuant to the
provisions of this section.” Section 994(u) specifies, “If the Commission reduces the term
of imprisonment recommended in the guidelines applicable to a particular offense or
category of offenses, it shall specify in what circumstances and by what amount the
sentences of prisoners serving terms of imprisonment for the offense may be reduced.” The
controlling nature of these determinations is provided by 18 U.S.C. § 3582(c)(2), which
states that courts have the authority to reduce a defendant’s term of imprisonment only “if
such a reduction is consistent with applicable policy statements issued by the Sentencing
Commission.”
The Supreme Court has interpreted these provisions as granting “the Commission
the unusual explicit power to decide whether and to what extent its amendments reducing
sentences will be given retroactive effect.” Braxton v. United States, 500 U.S. 344, 348
(1991). In Dillon v. United States, 560 U.S. ___, ___, No. 09-6338, 2010 WL 2400109, at
*6 (2010), the Supreme Court explained the basis for the statement in Braxton:
The [Sentencing Reform Act] charges the Commission both with deciding
whether to amend the Guidelines, § 994(o), and with determining whether
and to what extent an amendment will be retroactive, § 994(u). A court’s
power under § 3582(c)(2) thus depends in the first instance on the
Commission’s decision not just to amend the Guidelines but to make the
amendment retroactive.
(footnote omitted). The Commission’s power to “set[] forth the amendments that justify
sentence reduction” is implemented in U.S.S.G. § 1B1.10. Braxton, 500 U.S. at 348; see
also Dillon, 560 U.S. at ___, 2010 WL 2400109, at *6. Section 1B1.10(a)(2)(A) states, “A
No. 09-5090 USA v. Horn Page 5
reduction in the 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 . . . [n]one of the amendments
listed in subsection (c) is applicable to the defendant.” Because Amendment 709 is not listed
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in subsection (c), the district court did not have the authority to resentence Horn.
Horn resists this conclusion, arguing that neither 18 U.S.C. § 3582(c)(2) nor
28 U.S.C. § 994(u) authorizes the Commission to issue binding policy statements. Horn
points to Justice Stevens’s solo dissent in Dillon, which reveals Justice Stevens’s doubts
that Congress authorized the type of “policy statement” we find in
[U.S.S.G.] § 1B1.10. Congress instructed the Commission to 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 section
3553(a)(2) of title 18 . . . including the appropriate use of,” inter alia,
various “sentence modification provisions.” As envisioned by the
Sentencing Reform Act, the role of policy statements was merely to
inform the judge’s exercise of discretion within an otherwise mandatory
Guidelines regime. Congress reserved binding effect for the
Commission’s “guidelines,” which the Commission was to promulgate
pursuant to a distinct statutory provision, § 994(a)(1). The Sentencing
Reform Act thus drew a basic distinction: Guidelines would bind; policy
statements would advise.
560 U.S. at ___-___, 2010 WL 2400109, at *15 (dissenting opinion) (citations omitted).
But even Justice Stevens acknowledged that this argument does not apply to the
Commission’s retroactivity decisions at issue in this case because “§ 994(u) authorizes
the Commission to determine the retroactive effect of sentence reductions.” Id. at ___,
2010 WL 2400109, at *17 n.8.2
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In a footnote in Dillon, the Court reserved the question of whether this delegation of authority
to make retroactivity determinations raised separation-of-powers concerns, an issue that is likewise not
raised in the present appeal. 560 U.S. at ___, 2010 WL 2400109, at *6 n.5.
2
Supreme Court statements also reject Horn’s argument that Braxton does not apply because
§ 994(u) does not apply to amendments, including Amendment 709, that concern a defendant’s criminal
history rather than a defendant’s offense. Indeed, the Court has stated that § 994(u) applied to Amendment
506, which amended the same Career Offender guideline—U.S.S.G. § 4B1.1—that is at issue in this case.
United States v. LaBonte, 520 U.S. 751, 755 (1997).
No. 09-5090 USA v. Horn Page 6
Additionally, the Supreme Court’s primary holding in Dillon rejects Horn’s
contention that the limitations imposed by § 3582(c)(2) are advisory in light of Booker.
Id. at ___, 2010 WL 2400109, at *7 (majority opinion). In this respect, Dillon ratified
this court’s holding in United States v. Washington, 584 F.3d 693, 700 (6th Cir. 2009).
For these reasons, the district court lacked the authority to reduce Horn’s
sentence, and we REVERSE the judgment of the district court and REMAND this case
for further proceedings consistent with this opinion.