FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30445
Plaintiff-Appellant,
v. D.C. No.
3:96-CR-00080-JKS
JOHN MICHAEL FOX,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Senior District Judge, Presiding
Argued and Submitted
December 9, 2010—Seattle, Washington
Filed February 7, 2011
Before: Diarmuid F. O’Scannlain and Richard C. Tallman,
Circuit Judges, and Barry T. Moskowitz, District Judge.*
Opinion by Judge O’Scannlain
*The Honorable Barry T. Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
2279
UNITED STATES v. FOX 2281
COUNSEL
Kirby A. Heller, U.S. Department of Justice, Washington,
D.C., argued the cause for the United States, and filed the
briefs. Karen L. Loeffler, United States Attorney for the Dis-
trict of Alaska, and Stephan A. Collins, Assistant U.S. Attor-
ney for the District of Alaska, were also on the briefs.
Kevin F. McCoy, Assistant Federal Defender, Anchorage,
Alaska, argued the cause for the defendant-appellee, and filed
the briefs.
2282 UNITED STATES v. FOX
OPINION
O’SCANNLAIN, Circuit Judge:
We examine how much a sentence can be reduced based on
a retroactive amendment to the Sentencing Guidelines.
I
In 1996, a federal grand jury issued a two-count indictment
charging John Michael Fox with possessing crack cocaine
with the intent to distribute it, in violation of 21 U.S.C.
§ 841(a)(1), and with carrying a .45 caliber handgun during
and in relation to a drug crime, in violation of 18 U.S.C.
§ 924(c)(1). Fox entered into a plea agreement in which he
pled guilty to the drug charge and, in exchange, the govern-
ment dropped the gun charge.
The Sentencing Guidelines indicated that Fox should
receive a prison term of 360 months to life. This calculation
was based on the facts that Fox (1) possessed nearly two kilo-
grams of crack cocaine, (2) committed his offense while pos-
sessing a gun, (3) exercised a leadership role in the offense,
and (4) was in Criminal History Category IV. The district
judge sentenced Fox to 360 months in prison, the low end of
the Guidelines range. The judge noted, however, that he
would have downwardly departed, had the then-mandatory
Sentencing Guidelines allowed him to do so.
On June 30, 2008, after serving approximately 132 months
in prison, Fox moved to reduce his sentence based on retroac-
tive amendments to the Sentencing Guidelines that lowered
the base offense levels for crack-cocaine offenses.1 The dis-
1
In 2007, the Sentencing Commission amended the Guidelines to reduce
by two levels the base offense level associated with each quantity of crack
cocaine. See U.S.S.G. Supp. App. C, Amdt. 706 (effective Nov. 1, 2007).
In 2008, the Commission made that amendment retroactive. See id., Amdt.
713 (effective Mar. 3, 2008).
UNITED STATES v. FOX 2283
trict court recalculated Fox’s Guidelines range and found that
his amended Guidelines range was 292-365 months. At the
time, Ninth Circuit precedent held that United States v.
Booker, 543 U.S. 220 (2005), which made the Guidelines
advisory at initial sentencings, also allowed district courts to
treat the Guidelines as advisory at sentence modification pro-
ceedings. See United States v. Hicks, 472 F.3d 1167, 1170
(9th Cir. 2007). Relying on Hicks, the district court deter-
mined that it was not bound by the Sentencing Commission’s
Policy Statement, which mandated that a sentence modifica-
tion proceeding may not be used to reduce a sentence below
the amended Guidelines range. See U.S.S.G.
2
§ 1B1.10(b)(2)(a) (policy statement). Freed from the
amended Guidelines, the district court determined that a
downward departure was warranted based on a number of fac-
tors unrelated to the retroactive amendments to the Guide-
lines, such as Fox’s good behavior in prison. The district court
reduced Fox’s sentence to time served (134 months)—just
37% of the original sentence and only 46% of the bottom of
the amended Guidelines range.
On timely appeal, the government argued that Hicks misin-
terpreted Booker, and moved for initial hearing en banc so
that Hicks could be overruled. The Ninth Circuit granted the
petition for initial hearing en banc, see United States v. Fox,
583 F.3d 596 (9th Cir. 2009), but then stayed proceedings in
this case in light of the then-pending Supreme Court case Dil-
lon v. United States, 130 S. Ct. 2683 (2010), which was
decided last June.
In Dillon, the Supreme Court explicitly rejected Hicks as
“unpersuasive,” concluding that sentence modification pro-
ceedings “do not implicate the interests identified in Booker.”
2
Because the citations for Sentencing Guidelines and Policy Statements
are otherwise indistinguishable, we indicate Policy Statements in paren-
thesis following their citations and, in text, we refer to “U.S.S.G.
§ 1B1.10(b)” as “Policy Statement 1B1.10(b).”
2284 UNITED STATES v. FOX
Dillon, 130 S. Ct. at 2692-93. Accordingly, the Court held
that nothing in Booker justifies a district court in ignoring Pol-
icy Statement 1B1.10. See Dillon, 130 S. Ct. at 2693.
After Dillon, the government moved for summary reversal
of the district court’s modification of Fox’s sentence in this
case. Fox opposed the motion, arguing that, although Dillon
foreclosed his constitutional argument, a merits panel should
still consider his alternative argument that his reduced sen-
tence be affirmed on statutory grounds. Fox’s statutory argu-
ment is that Policy Statement 1B1.10 is invalid because it was
promulgated in violation of a number of procedural require-
ments. Because the statutory question was deemed worthy of
consideration by a three-judge panel, the en banc Court
vacated its order for initial hearing en banc, and the case was
assigned to this panel. No further briefing was ordered.
II
The Sentencing Reform Act of 1984 (“SRA”), 98 Stat.
1987, established the United States Sentencing Commission
and authorized it to promulgate Sentencing Guidelines and to
issue Policy Statements. See 28 U.S.C. §§ 991, 994(a). The
SRA also charged the Commission with periodically review-
ing and revising the Guidelines. See id. § 994(o). When an
amendment reduces the Guidelines range for a given offense,
the Commission must determine “in what circumstances and
by what amount the sentences of prisoners serving terms of
imprisonment for the offense may be reduced.” Id. § 994(u).
[1] When the Commission makes a Guidelines amendment
retroactive, a district court is authorized to reduce an other-
wise final sentence that was based on the amended provision.3
3
This is an exception to the rule that “[a] federal court generally ‘may
not modify a term of imprisonment once it has been imposed.’ ” Dillon v.
United States, 130 S. Ct. 2683, 2687 (2010) (quoting 18 U.S.C.
§ 3582(c)).
UNITED STATES v. FOX 2285
18 U.S.C. § 3582(c). But any reduction must be “consistent
with applicable policy statements issued by the Sentencing
Commission.” Id. § 3582(c)(1)(A). The relevant Policy State-
ment, 1B1.10, makes clear that “proceedings under [section]
3582(c) do not constitute a full resentencing” and are intended
only to adjust a sentence in light of a Guidelines amendment.
U.S.S.G. § 1B1.10(a)(3) (policy statement). It instructs courts
proceeding under section 3582(c)(2) to substitute the
amended Guidelines range for the original Guidelines range,
and then to “leave all other guideline application decisions
unaffected.” U.S.S.G. § 1B1.10(b)(1) (policy statement). A
court may then grant a reduction within the amended Guide-
lines range, but may not reduce the defendant’s term of
imprisonment “to a term that is less than the minimum of the
amended guideline range.” Id. § 1B1.10(b)(2)(A) (policy
statement).
[2] Congress has instructed the Sentencing Commission
that Guidelines are “for use of a sentencing court in determin-
ing the sentence to be imposed in a criminal case,” including,
inter alia, “a determination whether to impose . . . a term of
imprisonment,” and “a determination as to . . . the appropriate
length of . . . a term of imprisonment.” 28 U.S.C.
§ 994(a)(1)(A)-(B). Policy Statements, by contrast, deal with
the “application of the guidelines or any other aspect of sen-
tencing or sentence implementation that in the view of the
Commission would further the purposes” of sentencing. Id.
§ 994(a)(2).4 Of particular relevance here, Congress specified
that Policy Statements should define “the appropriate use of
4
To be precise, section 994(a)(2) states that Policy Statements should
“further the purposes set forth in [18 U.S.C. § 3553(a)(2)].” Section
3553(a)(2) sets forth the general purposes of sentencing. These purposes
are: “(A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense; (B) to afford ade-
quate deterrence to criminal conduct; (C) to protect the public from further
crimes of the defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other correctional
treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2).
2286 UNITED STATES v. FOX
. . . the sentence modification provisions set forth in . . . 18
U.S.C. § 3582(c).” 28 U.S.C. § 994(a)(2)(C).
The Sentencing Commission must jump through more pro-
cedural hoops to issue a Guideline than to issue a Policy
Statement. Most notably, when issuing Guidelines, the Sen-
tencing Commission must comply with the Administrative
Procedure Act’s notice and comment provisions, id. § 994(x),
and must submit the Guideline to Congress 180 days before
it takes effect, along with a statement of the Commission’s
reasons for issuing the Guideline, id. § 994(p). Congress, of
course, can override both Guidelines and Policy Statements
by statute.
III
A
The Supreme Court explicitly rejected Fox’s main
argument—that Policy Statement 1B1.10(b) is invalid under
Booker. Fox is thus left with the fallback argument that Policy
Statement 1B1.10(b) performs the function of a Guideline,
thereby circumventing the procedural requirements for pro-
mulgating a Guideline. Such reasoning directly conflicts with
the statutory scheme enacted by Congress, which explicitly
contemplates Policy Statements like 1B1.10(b).
As noted, Congress has defined a broad subject area that
Policy Statements may appropriately govern and has specifi-
cally provided that Policy Statements may indicate “the
appropriate use of . . . the sentence modification provisions
set forth in . . . [18 U.S.C. § 3582(c)].” 28 U.S.C.
§ 994(a)(2)(C). This is consistent with section 3582(c) itself,
which states that district courts “may not modify a term of
imprisonment once it has been imposed,” unless, inter alia,
“such a reduction is consistent with applicable Policy State-
ments issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c).
UNITED STATES v. FOX 2287
[3] The Policy Statement here at issue, 1B1.10, performs
a function that Congress explicitly contemplated Policy State-
ments would perform, viz., it clarifies “the appropriate use of
. . . sentence modification” proceedings. 28 U.S.C.
§ 994(a)(2)(C). Indeed, it makes clear that the only “appropri-
ate use” of sentence modification proceedings under section
3582(c) is to adjust a sentence in light of a Guidelines amend-
ment, and that section 3582(c) cannot appropriately be used
as a “full resentencing” that reconsiders a sentence based on
factors unrelated to a retroactive Guidelines amendment.
U.S.S.G. § 1B1.10(a)(3) (policy statement). In fact, Policy
Statement 1B1.10 merely clarifies a point which was already
discernable from the text and structure of 18 U.S.C.
§ 3582(c). See Dillon, 130 S. Ct. at 2691 (“Section
3582(c)(2)’s text, together with its narrow scope, shows that
Congress intended to authorize only a limited adjustment to
an otherwise final sentence and not a plenary resentencing
proceeding.”).
B
Fox tries to avoid 1B1.10’s clear statutory grounding by
imagining restrictions on the use of Policy Statements that
Congress has not imposed. He insists that Policy Statements
may concern only the application of the Guidelines or the
implementation of sentences, drawing a distinction between
“actual guidelines” and the policy statements that “interpret”
and “explain” them. This argument misrepresents 28 U.S.C.
§ 994(a)(2), which, as noted, posits that Policy Statements
may regard the “application of the guidelines or any other
aspect of sentencing or sentence implementation that in the
view of the Commission would further the purposes” of sen-
tencing, including “the appropriate use” of “the sentence
modification provisions.” Id. (emphasis added).
Next, Fox notes, correctly, that only Guidelines can advise
district courts on “whether to impose . . . a term of imprison-
ment,” and “the appropriate length of . . . a term of imprison-
2288 UNITED STATES v. FOX
ment.” 28 U.S.C. § 994(a)(1)(A), (B). But Fox erroneously
charges that Policy Statement 1B1.10 “determines the sen-
tence to be imposed in a criminal case.” It does not. Policy
Statement 1B1.10 does not even apply until a sentence has
already been imposed, at which point it merely limits the
scope of sentence reduction proceedings, prohibiting district
courts from using such proceedings to engage in plenary
reconsideration of the sentences they already imposed.
Of course, Policy Statement 1B1.10 may affect the length
of the sentence which a defendant ultimately serves. This is
unremarkable, since procedural rules are always capable of
affecting substantive outcomes. See Hanna v. Plumer, 380
U.S. 460, 468-69 (1965). Because Policy Statements, among
other functions, interpret Guidelines, it is not surprising that
they will, at times, affect the length of sentences. In fact, the
Supreme Court has expressly held that Policy Statements may
authoritatively determine the application of a particular
Guideline, even where it affects the length of the defendant’s
sentence. See Williams, 503 U.S. 193, 201 (1992) (“Where, as
here, a Policy Statement prohibits a district court from taking
a specified action, the statement is an authoritative guide to
the meaning of the applicable Guideline. An error in interpret-
ing such a Policy Statement could lead to an incorrect deter-
mination that a departure was appropriate.”); cf. Stinson v.
United States, 508 U.S. 36, 43 (1993) (holding that the Sen-
tencing Commission’s mere “commentary” is binding on fed-
eral courts, even where it affects whether the defendant is
sentenced as a “career offender”). Although these decisions
came in the pre-Booker context of mandatory Sentencing
Guidelines, they still reflect post-Booker the Supreme Court’s
recognition that Policy Statements properly serve as interpre-
tative authority controlling application of the Guidelines.
Fox also makes a constitutional avoidance argument,
asserting that Policy Statements like 1B1.10 “raise serious
separation of powers problems” by allowing the Sentencing
Commission “to create new law, and even overrule court deci-
UNITED STATES v. FOX 2289
sions, without any democratic process or oversight.” This
argument conflicts with Supreme Court precedent, which has
upheld the SRA’s broad delegation of legislative power to the
Sentencing Commission against a separation of powers chal-
lenge. See United States v. Mistretta, 488 U.S. 361, 412
(1989). Further, Fox’s argument defies the Supreme Court’s
express recognition in Williams and Stinson that Policy State-
ments may control how district courts apply the Guidelines.
Accordingly, Policy Statement 1B1.10 does not raise constitu-
tional concerns.
IV
[4] For the foregoing reasons, we REVERSE the district
court’s sentence modification and REMAND for imposition
of a sentence not inconsistent with this opinion.
REVERSED and REMANDED.