PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7298
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIAM HENRY MULDROW, a/k/a William Cooper, a/k/a Willie,
a/k/a Fred Washington,
Defendant – Appellant.
No. 15-7608
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUIS GOMEZ,
Defendant – Appellant.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:03-cr-00555-AW-3; 8:95-cr-00267-DKC-14)
Argued: October 26, 2016 Decided: December 27, 2016
Before DUNCAN and AGEE, Circuit Judges, and Bruce H. HENDRICKS,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Agee and Judge Hendricks joined.
ARGUED: Sapna Mirchandani, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellants. Sujit Raman,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellants. Rod J. Rosenstein, United States Attorney, Debra L.
Dwyer, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
2
DUNCAN, Circuit Judge:
Defendants William Henry Muldrow (“Muldrow”) and Luis Gomez
(“Gomez”) challenge the district court’s determination that the
Guidelines commentary--as amended by United States Sentencing
Guideline Amendment 759 (“Amendment 759”)--requires a district
court at resentencing to calculate the “applicable guideline
range” without applying any departures or variances from a
defendant’s original sentencing range. For the reasons that
follow, we affirm the district court and join all of our sister
circuits that have considered the issue in holding that
Amendment 759 binds sentencing courts.
I.
A.
Both Defendants were convicted of drug offenses in
unrelated cases--Muldrow in 2006 and Gomez in 1996. This court
consolidated their appeals.
Muldrow pleaded guilty to one count of conspiracy to
distribute and possess with intent to distribute five or more
grams of cocaine and oxycodone, on January 19, 2006. At his
sentencing on March 29, 2006, the district court adopted the
findings of the presentence report with one exception. It
departed from a criminal history category VI to a category V
because it found Muldrow’s criminal history category
3
overrepresented the seriousness of his criminal record.
U.S.S.G. § 4A1.3. Employing an offense level 34 and a post-
departure criminal history category V, the district court
calculated a guideline range of 235 to 293 months and sentenced
Muldrow to 235 months in prison.
A jury convicted Gomez of one count of conspiracy to
distribute cocaine, and one count of possession with intent to
distribute cocaine, on June 29, 1996. At sentencing, the
district court calculated his guideline range based on an
offense level 44 and a criminal history category III, resulting
in a then-mandatory guideline sentence of life imprisonment. On
November 6, 1996, the court imposed a life sentence, but
subsequently granted Gomez’s 28 U.S.C. § 2255 petition in part,
vacating his sentence. The district court recalculated Gomez’s
guideline range as 360 months to life imprisonment based on an
offense level of 41 and a criminal history category II. Like
Muldrow, Gomez received a downward departure under § 4A1.3
because the district court found that a criminal history
category III overstated the seriousness of his criminal record.
The court resentenced Gomez on February 27, 2006, imposing a
below-guideline-range sentence of 340 months.
B.
In 2014 and 2015, Defendants separately filed motions for
resentencing under 18 U.S.C. § 3582(c)(2) based on the
4
retroactive application of United States Sentencing Guideline
Amendment 782. U.S.S.G., app. C., amend. 782 (2014) (“Amendment
782”). Amendment 782 reduced the base offense level for drug
offenses by two levels. Id. The United States Sentencing
Commission (“Commission”) has the power to make its amendments
retroactive, and although it has done so sparingly, it did so
with Amendment 782 by listing it in subsection (d) of § 1B1.10
of the Guidelines Manual. U.S.S.G. § 1B1.10(d); United States v.
Williams, 808 F.3d 253, 263 (4th Cir. 2015). Before the
district court, the parties agreed that Defendants are eligible
for relief under Amendment 782, which altered the Defendants’
“amended guideline range.” They dispute the extent of relief
authorized based on the calculation of this range.
Each Defendant argued that the district court should
calculate his guideline range at resentencing by using the post-
departure criminal history category determined at his original
sentencing. However, the district court did not reduce the
sentences to the extent Defendants requested. At resentencing,
the district court instead chose to calculate their ranges using
their pre-departure criminal history categories. After
recalculating the guideline ranges in this manner, the district
court reduced each Defendant’s sentence to the low end of his
amended guideline range.
5
For Muldrow, the district court granted relief in part on
July 29, 2015, reducing his sentence from 235 months to
210 months--the low end of the amended guideline range using a
pre-departure criminal history category. For Gomez, the
district court granted relief in part on October 6, 2015,
reducing Gomez’s sentence from 340 months to 324 months--the low
end of the amended guideline range using a pre-departure
criminal history category.
The district court based its decisions to use a pre-
departure criminal history category on a separate guideline
amendment--Amendment 759. U.S.S.G., app. C., amend. 759 (2011).
Specifically, the district court found that Amendment 759
(1) precluded the district court from considering § 4A1.3
departures during resentencing, and (2) abrogated this court’s
prior decision in United States v. Munn, 595 F.3d 183 (4th Cir.
2010), which had adopted Defendants’ desired approach. Both
Defendants appealed.
II.
On appeal, Defendants argue that the district court
incorrectly deemed itself bound by Amendment 759, and thus,
erred in not granting them greater relief. According to
Defendants, the district court should have applied § 4A1.3
departures when calculating their applicable guideline ranges.
6
The government counters that the district court properly
followed Amendment 759 in calculating Defendants’ applicable
guideline range because Amendment 759 is consistent with the
Guidelines and abrogated Munn.
“We review a district court's decision to reduce a sentence
under § 3582(c)(2) for abuse of discretion and its ruling as to
the scope of its legal authority under § 3582(c)(2) de novo.”
United States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013). For
the reasons that follow, we affirm the district court.
A.
Our decision today respects a congressionally mandated--and
Supreme Court sanctioned--balance between the interpretive power
of the Commission and our duties as an Article III court. With
the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq.,
Congress established the Commission and authorized it to
(1) promulgate Sentencing Guidelines and (2) issue policy
statements governing application of the Guidelines.
See 28 U.S.C. §§ 991, 994(a); Stinson v. United States, 508 U.S.
36, 40–41 (1993). The Commission also issues commentary to the
guideline provisions and policy statements. Stinson, 508 U.S.
at 41. 1 In interpreting the Guidelines, commentary “is
1 Commentary has several different purposes:
(Continued)
7
authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous
reading, of that guideline.” Id. at 38. 2
In addition, Congress entrusted the Commission with the
power, and duty, to periodically review and revise the guideline
provisions, policy statements, and commentary.
28 U.S.C. §§ 994(o), 994(p), 994(u); United States v. Braxton,
500 U.S. 344, 348 (1991). This power includes the ability “to
override our precedent through amendments to the Guidelines.”
First, it may interpret the guideline or explain how
it is to be applied. Failure to follow such
commentary could constitute an incorrect application
of the guidelines, subjecting the sentence to possible
reversal on appeal. See 18 U.S.C. § 3742. Second,
the commentary may suggest circumstances which, in the
view of the Commission, may warrant departure from the
guidelines. Such commentary is to be treated as the
legal equivalent of a policy statement. Finally, the
commentary may provide background information,
including factors considered in promulgating the
guideline or reasons underlying promulgation of the
guideline. As with a policy statement, such
commentary may provide guidance in assessing the
reasonableness of any departure from the guidelines.
U.S.S.G. § 1B1.7; see also Stinson, 508 U.S. at 41.
2 In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court invalidated statutory provisions that made the
Guidelines Mandatory, and held that courts must treat the
Guidelines as advisory. 543 U.S. at 265. Although the Court
decided Stinson before Booker, we have no reason to reject the
Stinson holding regarding commentary’s binding effect. See
United States v. Shell, 789 F.3d 335, 340 (4th Cir. 2015)
(citing Stinson as good law).
8
Williams, 808 F.3d at 258. With this framework in mind, we turn
to the Guidelines applicable to sentencing reductions.
B.
Under the Sentencing Reform Act, a federal court generally
“may not modify a term of imprisonment once it has been
imposed.” 18 U.S.C. § 3582(c). However, Congress has provided
an exception to that rule: when the Commission makes a
Guidelines amendment retroactive, a district court may reduce an
otherwise final sentence based on the amended provision, as long
as the reduction remains consistent with applicable Commission
policy statements. Id.
In considering whether and by how much to reduce a sentence
under § 3582(c)(2), a district court follows a two-step inquiry.
Dillon v. United States, 560 U.S. 817, 826 (2010). The court
first “follow[s] the Commission’s instructions in § 1B1.10 to
determine the prisoner’s eligibility for a sentence modification
and the extent of the reduction authorized.” Id. at 827.
Specifically, § 1B1.10(b)(1) requires the court to “determine
the amended guideline range that would have been applicable to
the defendant if the amendment(s) to the guidelines listed in
subsection (d) had been in effect at the time” of the
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defendant’s initial sentencing. U.S.S.G. § 1B1.10(b)(1). 3 At
step two, a district court considers relevant sentencing factors
to determine whether, in its discretion, a reduction “is
warranted in whole or in part under the particular circumstances
of the case.” Dillon, 560 U.S. at 827.
C.
This appeal--and the issue in Munn--concerns how a court
calculates the amended guideline range at step one. In
particular, the parties dispute whether the resentencing court
calculates the range using a pre-departure criminal history
category or a post-departure criminal history category. In
Munn--decided prior to Amendment 759--this court held that a
defendant’s applicable guideline range is determined after
applying any departures. 595 F.3d at 192–95. Therefore, the
defendant in Munn--a career offender who received a departure
for overrepresentation of criminal history at his original
sentencing--was entitled to have the district court factor in
departures before calculating his applicable guideline range for
3Section 1B1.10 (Reduction in Term of Imprisonment as a
Result of Amended Guideline Range (Policy Statement)) prohibits
courts from reducing a term of imprisonment below an amended
guideline range’s minimum except in certain cases in which the
defendant originally received a downward departure for providing
substantial assistance to the government.
U.S.S.G. § 1B1.10(b)(2). Defendants do not seek terms below
their amended guideline ranges. Instead, they challenge the
application of Amendment 759 to their resentencing.
10
resentencing purposes. Id. at 184–85, 194–95. Other circuits
interpreted the Guidelines similarly. See United States v.
Flemming, 617 F.3d 252, 272 (3d Cir. 2010); United States v.
Cardosa, 606 F.3d 16, 21–22 (1st Cir. 2010); United States v.
McGee, 553 F.3d 225, 229–30 (2d Cir. 2009) (per curiam)
superseded by United States v. Montanez, 717 F.3d 287 (2d Cir.
2013) (per curiam). However, three other circuits decided that
the applicable guideline range for resentencing was the range
produced prior to any discretionary departures, reasoning that a
district court cannot depart from a range before it is
established. United States v. Pembrook, 609 F.3d 381, 384 (6th
Cir. 2010); United States v. Darton, 595 F.3d 1191, 1197 (10th
Cir. 2010); United States v. Blackmon, 584 F.3d 1115, 1116–17
(8th Cir. 2009) (per curiam).
In response to this circuit split, the Commission
promulgated Amendment 759. U.S.S.G., app. C., amend. 759
(2011). Amendment 759 revised the commentary to § 1B1.10, at
Application Note 1(A), by defining “applicable guideline range”
as “the guideline range that corresponds to the offense level
and criminal history category determined pursuant to § 1B1.1(a),
which 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) (emphasis added); U.S.S.G.,
app. C., amend. 759 (2011). In so doing, Amendment 759
11
explicitly “adopt[ed] the approach of the Sixth, Eighth, and
Tenth Circuits.” U.S.S.G., app. C., amend. 759 (Reason for
Amendment).
III.
The issue on appeal is a narrow one. Defendants do not
contest that the Commission can resolve circuit splits and
abrogate our prior precedent by promulgating amendments.
Instead, they argue that the district court erroneously deemed
itself bound by the revised commentary to § 1B1.10 found in
Amendment 759 for two reasons: (1) the commentary conflicts with
the Guidelines text, and (2) Amendment 759 is not one which by
its nature applies retroactively. 4 We consider each argument in
turn.
A.
If the commentary conflicts with the Guidelines text, it
cannot bind courts. Stinson, 508 U.S. at 38. In deciding
whether commentary conflicts with the Guidelines text, we
recognize that the Commission “has the first responsibility to
formulate and announce” how guideline provisions should be
interpreted. Id. at 45. Cognizant of our role vis-à-vis the
4 Defendants do not argue that the commentary conflicts with
the statute. Defendants also do not challenge that the district
court has discretion to grant or deny relief at step two of the
§ 3582(c)(2) process.
12
Commission, this court rarely invalidates part of the commentary
as inconsistent with the Guidelines text. See United States v.
Shell, 789 F.3d 335, 357 (4th Cir. 2015) (Wilkinson, J.,
dissenting). This is unsurprising given that “[t]he functional
purpose of commentary (of the kind at issue here) is to assist
in the interpretation and application of those rules, which are
within the Commission’s particular area of concern and
expertise.” Stinson, 508 U.S. at 45.
1.
To argue that the commentary, as amended by Amendment 759,
conflicts with the Guidelines, Defendants first point to the
text of § 1B1.10(b)(1). That section instructs resentencing
courts calculating the “amended guideline range” to “substitute
only” the retroactive amendments listed in § 1B1.10(d) and
“leave all other guideline application decisions unaffected.”
U.S.S.G. § 1B1.10(b)(1). Defendants claim that this means
courts must calculate the amended guideline range without
excluding any factor that was taken into account at the original
sentencing--that is, “to mirror whatever sentencing findings it
originally made.” Appellants’ Br. at 25. Under Defendants’
view, the revised commentary in Application Note 1(A) conflicts
with the text of § 1B1.10 because that commentary “expressly
prohibits courts from incorporating ‘any departure’ or ‘any
13
variance’ into the guideline calculation.” Appellants’ Br.
at 25.
However, Amendment 759 does not conflict with the text.
Amendment 759 revised Application Note 1(A) to define the
“applicable guideline range” as “the guideline range that
corresponds to the offense level and criminal history category
determined pursuant to § 1B1.1(a), which 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).
“Consistent with that definition, U.S.S.G. § 1B1.1(a) makes no
mention of departures” or variances. Montanez, 717 F.3d at 292.
Rather, a district court calculates departures and variances
pursuant to §§ 1B1.1(b) and 1B1.1 (c), respectively, only after
determining the applicable guideline range under § 1B1.1(a).
See id.; U.S.S.G., app. C., amend. 741 (Reason for Amendment)
(explaining the three-step process for calculating sentences).
Logically, the phrase in § 1B1.10(b)(1)--“shall leave all other
guideline application decisions unaffected”--refers to decisions
sentencing courts make in establishing the amended guideline
range, which, pursuant to § 1B1.1(a), does not take into account
14
departures or variances. Therefore, Amendment 759’s clarifying
definition is consistent with § 1B1.10 of the Guidelines text. 5
5 Defendants also argue that there is a material difference
between “applicable guideline range,” in § 1B1.10(a), and
“amended guideline range,” in § 1B1.10(b). They assert that
these phrases refer to different things--eligibility for
sentencing reductions and the extent of relief available,
respectively. Because Amendment 759 inserted a definition to
“applicable guideline range,” Defendants contend that definition
only affects eligibility. From this premise they argue that
Amendment 759 does not preclude a sentencing court from
considering departures. This argument fails. As the Second
Circuit explained, such a position
ignores the relationship between the “applicable
guideline range” and the “amended guideline range.”
Under § 1B1.10(a)(2)(B), a defendant is not eligible
for a reduction if an amendment “does not have the
effect of lowering the defendant’s applicable
guideline range.” In the absence of any change to the
applicable guideline range, speaking of an “amended
guideline range” makes little sense. Where an
amendment does change the applicable guideline range,
however, the court can calculate a new “applicable”
range by “substitut[ing] . . . the amend[ed guideline
provisions] for the corresponding . . . provisions
that were applied when the defendant was sentenced.”
U.S.S.G. § 1B1.10(b)(1). Section 1B1.10(b)(1) defines
this new, applicable range as the “amended guideline
range.” The phrase “amended guideline range,” then,
is simply the name by which the guidelines distinguish
one applicable guideline range--i.e., the one that
incorporates guideline amendments--from another--i.e.,
the one that applied under earlier versions of the
guidelines. It follows, then, that courts should use
the same procedure to calculate both the applicable
guideline range and the amended guideline range,
departing from that procedure in the case of the
amended guideline range only to “substitute . . . the
[relevant guideline] amendments.” Id. Under the
guidelines, courts applying this procedure should not
“consider[] any departure provision in the Guidelines
(Continued)
15
2.
In another effort to manufacture an inconsistency,
Defendants next point to § 1B1.1--the application instructions
for an original sentencing--to suggest that the commentary
conflicts with § 1B1.10. Section 1B1.1(a)(6) directs a
sentencing judge to “[d]etermine the defendant’s criminal
history category as specified in Part A of Chapter Four.”
U.S.S.G. § 1B1.1(a)(6). Downward departures for
overrepresentation of criminal history appear in Chapter Four--
specifically at § 4A1.3(b). U.S.S.G. § 4A1.3(b). Under this
line of argument, § 4A1.3 departures are integral to determining
the applicable guideline range under § 1B1.1(a)(6). Thus,
Amendment 759’s definition of “applicable guideline range,”
which excludes such departures, conflicts with § 1B1.10(b)(1)’s
instruction to “leave all other guideline application
decisions”--including those in § 1B1.1(a)(6)--“unaffected.”
U.S.S.G. § 1B1.10(b)(1).
This argument reads more into § 1B1.1(a)(6) than the text
can support. Section 1B1.1(a)(6) instructs sentencing courts to
determine a defendant’s criminal history category, but it does
Manual or any variance.” U.S.S.G. § 1B1.10
cmt. n.1(A).
Montanez, 717 F.3d at 293 (alteration in original).
16
not instruct them to follow each section in Part A of Chapter
Four. Part A of Chapter Four has three sections, and only the
first two sections directly govern how to determine the
"criminal history category." Section 4A1.1 is titled "Criminal
History Category" and § 4A1.2 is titled "Definitions and
Instructions for Computing Criminal History."
U.S.S.G. §§ 4A1.1, 4A1.2. By contrast, § 4A1.3 is titled
"Departures Based on Inadequacy of Criminal History Category
(Policy Statement)." U.S.S.G. § 4A1.3. That § 1B1.1(a)(6)
instructs a sentencing judge to determine the criminal history
category does not give the judge a license to factor in a
departure for overrepresentation of criminal history at that
stage. See United States v. Watkins, No. 15-6205, 2016 WL
3924240, at *4 (6th Cir. July 21, 2016) (unpublished) (citing
Pembrook, 609 F.3d at 385–86). “[A] court does not depart under
§ 4A1.3 when calculating a defendant’s applicable guideline
range, but instead departs from the applicable guideline range
under § 4A1.3 after having calculated that range.” Montanez,
717 F.3d at 292. Holding to the contrary leads to a nonsensical
circularity. A district court cannot factor in a departure from
a range in calculating the range itself. See Pembrook, 609 F.3d
at 385. “This leads inescapably to the conclusion that a
defendant’s applicable guideline range under U.S.S.G. § 1B1.10
is his pre-departure guideline range.” Id.
17
Here, we see no inconsistency between the Guidelines and
the commentary as revised by Amendment 759. We decline to
strain the text to create one.
B.
Defendants next contend that Amendment 759 does not apply
retroactively. But this argument misses the point. The
question is not whether Amendment 759 applies retroactively, but
rather whether the district court properly applied Amendment 759
to Defendants who were resentenced after Amendment 759 took
effect.
Normally, a sentencing court must apply the edition of the
Guidelines in effect at the time “the defendant is sentenced.”
U.S.S.G. § 1B1.11(a). However, § 3582(c)(2) “requires a
sentencing court to adhere to the Commission's policy statement
in Guidelines section 1B1.10 when assessing a motion for a
sentence reduction.” Williams, 808 F.3d at 262. The commentary
to § 1B1.10 at Application Note 8, as amended by Amendment 759,
instructs that “[c]onsistent with subsection (a) of § 1B1.11
(Use of Guidelines Manual in Effect on Date of Sentencing), the
court shall use the version of the policy statement that is in
effect on the date on which the court reduces the defendant’s
term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).”
U.S.S.G. § 1B1.10, cmt. n.8; see also U.S.S.G., app. C.,
amend. 759 (2011) (originally adding current application note 8
18
as application note 6). 6 Because Amendment 759 “went into effect
prior to the district court’s resolution of [Defendants’]
§ 3582(c)(2) motion[s], the court was required to assess the
motion[s] in light of the now applicable policy statement” as
elucidated in the binding commentary revised by Amendment 759.
Williams, 808 F.3d at 262.
Nevertheless, Defendants still contend that Munn, decided
prior to Amendment 759, should apply to their resentencing. But
“our precedent in the sentence-reduction context must give way
if it conflicts with the Commission's amendments.” Id. at 259;
see also Braxton, 500 U.S. at 348. The Commission specifically
stated that it promulgated Amendment 759 in response to a split
among the circuits, and rejected the approach taken by this
court in Munn. U.S.S.G., app. C., amend. 759 (Reason for
Amendment). As the Supreme Court has recognized, “Congress
necessarily contemplated that the Commission would periodically
review the work of the courts, and would make whatever
clarifying revisions to the Guidelines conflicting judicial
decisions might suggest.” Braxton, 500 U.S. at 348; see also
28 U.S.C. § 994(p). As an amendment to the binding commentary,
Amendment 759 applies to Defendants unless it is inconsistent
6 Defendants also argue that application note 8 is
inconsistent with the Guidelines. But in Williams this court
recognized that application note 8 is consistent with both
§ 3582(c)(2) and the Guidelines. See 808 F.3d at 262–63.
19
with the Constitution, a federal statute, or the Guidelines.
Stinson, 508 U.S. at 38. We rejected above Defendants’ argument
that the revised commentary introduces an inconsistency. See
supra Part III.A. Today we join the Second Circuit in formally
recognizing that with Amendment 759 “the Commission has
foreclosed the exact approach that [Defendants] now advocate.”
Montanez, 717 F.3d at 294.
IV.
Defendants’ argument hinges on finding an inconsistency
between the commentary and text of the Guidelines. We fail to
see one, and decline Defendants’ invitation to “recreate the
split that the Commission hoped to resolve.” Id. at 292 n.2.
For this and the foregoing reasons, the judgment of the district
court is
AFFIRMED.
20