United States v. Denroy Gayle

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

Nos. 11-4540 and 12-1103
_____________

UNITED STATES OF AMERICA

v.

JOEL BERBERENA,
Appellant
_____________

UNITED STATES OF AMERICA

v.

DENROY GAYLE,
Appellant
_____________

Appeals from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Nos. 2-01-cr-00363-019 and
2-05-cr-00357-001)
District Judges: Honorable Berle M. Schiller and
Honorable Lawrence F. Stengel
_____________

1
 Argued July 11, 2012

Before: RENDELL, SMITH and BARRY, Circuit Judges

(Opinion Filed: September 11, 2012)
_____________

Sarah S. Gannett, Esq. [ARGUED]
Brett G. Sweitzer, Esq.
Christy Unger, Esq.
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
Counsel for Appellants

Robert A. Zauzmer, Esq.
Bernadette A. McKeon, Esq. [ARGUED]
Zane David Memeger, Esq.
Jose R. Arteaga, Esq.
Thomas M. Zaleski, Esq.
Office of United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee

_____________

OPINION OF THE COURT
_____________

2
RENDELL, Circuit Judge.

Defendants Joel Berberena and Denroy Gayle appeal
from orders entered in response to their 18 U.S.C. §
3582(c)(2) motions for sentence reductions to reflect
amendments to the United States Sentencing Guidelines that
narrow the disparity between sentences for crack cocaine and
powder cocaine offenses.1 They urge that their respective
District Courts were not bound by Guidelines § 1B1.10, a
newly revised policy statement that limits the extent to which
a sentence may be reduced below the prisoner‟s amended
Guidelines range. Defendants contend that, by preventing
district courts from straying from the amended Guidelines
range to account for departures and variances awarded as part
of a prisoner‟s sentence, the Commission (1) exceeded its
statutory authority, (2) violated separation-of-powers
principles, and (3) failed to comply with the Administrative
Procedure Act‟s (“APA”) notice-and-comment requirements.
For the following reasons, we will affirm the District Courts‟
refusal to reduce Defendants‟ sentences below their amended
Guidelines ranges.

I.

In 2003, Berberena pled guilty to conspiracy to
distribute crack cocaine and powder cocaine, in violation of
21 U.S.C. § 846; possession of crack cocaine with intent to
1
Defendants‟ criminal cases were unrelated below.
Defendants filed an unopposed motion to consolidate their
appeals, as they raised the same issues. The Clerk of this
Court granted the motion, consolidating the two appeals for
all purposes.

3
distribute, in violation of 21 U.S.C. § 841(a)(1); and
possession of powder cocaine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1). After his sentence was
vacated in light of United States v. Booker, 543 U.S. 220
(2005), the District Court resentenced him, calculating an
advisory Guidelines range of 210-262 months but varying
downward to impose a sentence of 150 months in prison.2 In
2009, Berberena moved for a sentence reduction in light of
Amendment 706 to the Guidelines, which reduced the base
offense levels for most crack-related offenses. His amended
Guidelines range was 168-210 months. The District Court
granted Berberena a variance from the amended range
proportional to the variance it awarded him previously and
reduced his sentence to 135 months.

In 2006, a jury convicted Gayle of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §
922(g)(1); possession of crack cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1); and
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c). In 2007, the
District Court calculated a Guidelines range of 168-210
months for the § 922(g) and § 841(a) convictions, but varied
downward to 120 months based upon the nature and
circumstances of the offense and Gayle‟s personal history and
characteristics. Because Gayle‟s § 924(c) conviction carried
a mandatory consecutive 60-month sentence, the District
Court sentenced him to a total of 180 months in prison.

In 2010, Congress passed the Fair Sentencing Act
(“FSA”) to “restore fairness to Federal cocaine sentencing”
2
The record does not indicate the District Court‟s
reason for granting Berberena a downward variance.

4
by changing the threshold quantities of crack cocaine that
trigger mandatory minimum sentences. Pub. L. 111-220, § 2,
124 Stat. 2372, 2372 (2010). Pursuant to its authority to
amend the Guidelines consistent with the FSA, id. § 8, the
Commission promulgated Amendment 750. This amendment
reduced the crack-related offense levels in § 2D1.1 of the
Guidelines. The Commission made Amendment 750
retroactive by adding it to the list of amendments on the basis
of which prisoners can move for reduced sentences. See
U.S.S.G., App. C., amd. 759. That list appears in subsection
(c) of the Commission‟s policy statement at § 1B1.10 of the
Guidelines, which governs sentence reductions as a result of
amendments to the Guidelines.

After the new crack-related offense levels became
effective, both Berberena and Gayle moved for sentence
reductions under 18 U.S.C. § 3582(c)(2).3 As a result of

3
Section 3582(c)(2) establishes an exception to the
general rule that a court may not modify a term of
imprisonment once it has been imposed. It provides:

[I]n 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 pursuant
to 28 U.S.C. 994(o) . . . the court
may reduce the term of
imprisonment, after considering
the factors set forth in section
3553(a) to the extent that they are

5
Amendment 750, Berberena‟s range changed from 168-210
months to 135-168 months. Having already been sentenced
to 135 months‟ imprisonment, Berberena sought a further
reduction from the low end of the new range proportional to
the variance he received previously. The range for Gayle‟s §
922(g) and § 841(a) convictions changed from 168-210
months to 110-137 months, to which the mandatory
consecutive 60-month sentence for his § 924(c) conviction
would be added. Gayle similarly urged the court to reduce
his 120-month sentence for the first two offenses below the
minimum of the amended range to account for the downward
variance it granted him originally.

The government opposed Defendants‟ motions. It
cited the Commission‟s most recent revision to the policy
statement at § 1B1.10, which prohibits courts from reducing a
“defendant‟s term of imprisonment 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). The
earlier version of the policy statement had permitted prisoners
who, like Defendants, originally received below-Guidelines
sentences to obtain reductions below their amended ranges in
proportion to their earlier departures or variances. Id. §
1B1.10(b)(2)(B) (2010) (amended 2011). However, it
provided that, while comparable reductions to account for
departures “may be appropriate,” comparable reductions to

applicable, if such a reduction is
consistent with applicable policy
statements issued by the
Sentencing Commission.

18 U.S.C. § 3582(c)(2).

6
account for variances “generally would not be appropriate.”4
Concluding that the “distinction [between departures and
variances] has been difficult to apply and has prompted
litigation,” the Commission further closed the variance door,
so to speak, in adopting Amendment 750. See Notice of Final
Action Regarding Amendment to Policy Statement 1B1.10,
76 Fed. Reg. 41332, 41334 (July 13, 2011). The result was
the policy statement that the District Courts applied here. It
prohibits a reduction below the low end of a prisoner‟s new

4
In full, the earlier version of the limitation at issue
read:

If 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, a reduction
comparably less than the amended
guideline range . . . may be
appropriate. However, if the
original term of imprisonment
constituted a non-guideline
sentence determined pursuant to
18 U.S.C. § 3553(a) and United
States v. Booker, 543 U.S. 220
(2005), a further reduction
generally would not be
appropriate.

U.S.S.G. § 1B1.10(b)(2)(B) (2010) (amended 2011).

7
range, even if the prisoner originally received a below-
Guidelines sentence. The only exception is for defendants
whose below-Guidelines sentences were based on a
“government motion to reflect the defendant‟s substantial
assistance to authorities.” Only then is a reduction below the
bottom of a prisoner‟s amended range allowed. U.S.S.G. §
1B1.10(b)(2)(B).5

5
The current version of § 1B1.10(b)(2) reads:

(A) Limitation.—Except as
provided in subdivision (B), the
court shall not reduce the
defendant‟s term of imprisonment
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)
of this subsection.

(B) Exception for Substantial
Assistance.—If the 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 pursuant to a
government motion to reflect the
defendant‟s substantial assistance
to authorities, a reduction
comparably less than the amended

8
 Before the District Courts, the government cited §
3582(c)(2)‟s requirement that sentence reductions be
“consistent with applicable policy statements issued by the
Sentencing Commission” to argue that § 1B1.10(b)(2)(A)‟s
limitation was binding. Defendants, however, urged that the
revised version of § 1B1.10 exceeded the Commission‟s
statutory authority, violated separation-of-powers principles,
and failed to comply with the APA‟s notice-and-comment
requirements. Neither convinced the District Judges before
whom they filed their § 3582(c)(2) motions to ignore the
policy statement and reduce their sentences below the
amended Guidelines ranges. Instead, the District Judges
abided by the revised limitation. Berberena‟s motion was
denied because his original sentence of 135 months was at the
bottom of the new range. Gayle‟s motion was granted in part
only, resulting in a 170-month sentence at the bottom of the
new range—110 months for the § 922(g) and § 841(a)
convictions, and 60 consecutive months for the § 924(c)
conviction.6

guideline range determined under
subdivision (1) of this subsection
may be appropriate.

U.S.S.G. § 1B1.10(b)(2)(A)-(B).
6
Proportional reductions to account for the variances
originally received by each would have resulted in a sentence
of approximately 109 months for Berberena and 139 months
for Gayle.

9
 Both Defendants timely appealed.7

II.

On appeal, Defendants advance the same arguments
they urged below.8 They contend that the Commission‟s
revised limitation on proportional reductions suffers from
three infirmities, each of which, they say, suffices to deprive
it of binding effect. First, they argue that the Commission
exceeded its authority under the Sentencing Reform Act
(“SRA”) by effectively undoing variances and departures
awarded to a prisoner when he was originally sentenced.
Second, they argue that, in revising § 1B1.10, the
7
We have jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a). Generally, a district court‟s denial
of a sentence reduction is reviewed only for abuse of
discretion. United States v. Mateo, 560 F.3d 152, 154 (3d
Cir. 2009). But when, as here, a defendant raises purely legal
issues of statutory and constitutional interpretation, we
exercise plenary review. United States v. Doe, 564 F.3d 305,
307 n.2 (3d Cir. 2009).
8
These are issues of first impression in this circuit.
Two of our sister courts of appeals, however, have considered
them in some detail. In United States v. Horn, the Sixth
Circuit Court of Appeals rejected Defendants‟ arguments as
they related to the Commission‟s binding retroactivity
determinations. See 679 F.3d 397 (6th Cir. 2012). And more
recently, in United States v. Anderson, the Eighth Circuit
Court of Appeals rejected Defendants‟ arguments with
respect to the Commission‟s limitation on below-Guidelines
reductions—the same limitation at issue here. See 686 F.3d
585 (8th Cir. 2012).

10
Commission exercised legislative and judicial authority in
violation of separation-of-powers principles. Last, they argue
that the Commission‟s notice-and-comment procedure was
inadequate to render the limitation an otherwise valid, binding
rule. We consider each argument in turn.

A. Commission Authority

Congress granted the Commission the power to issue
binding policy statements regarding the extent to which
sentences may be reduced based upon retroactive Guidelines
amendments. The Commission exercised that authority when
it limited courts‟ discretion to reduce a prisoner‟s sentence
below his amended Guidelines range.

The starting point for our analysis of the
Commission‟s authority is the SRA. Most pertinent here is
28 U.S.C. § 994(u), pursuant to which the Commission
amended § 1B1.10. See Notice of Final Action Regarding
Amendment to Policy Statement 1B1.10, 76 Fed. Reg. at
41332 (“The Sentencing Commission hereby gives notice of
an amendment to a policy statement and commentary made
pursuant to its authority under 28 U.S.C. 994(a) and (u).”).
That provision states:

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

11
 imprisonment for the offense may
be reduced.

28 U.S.C. § 994(u) (emphasis added). The SRA, then,
authorizes the Commission to decide not only whether—“in
what circumstances”—an amendment is to apply retroactively
but also the extent to which—“by what amount”—sentences
may be reduced based on those that it makes retroactive. See
Dillon v. United States, 130 S. Ct. 2683, 2691 (2010) (“The
SRA charges the Commission . . . with determining whether
and to what extent an amendment will be retroactive.” (citing
28 U.S.C. § 994(u))). Congress therefore delegated to the
Commission the power it exercised when revising § 1B1.10.
In prohibiting reductions below a prisoner‟s amended
Guidelines range, the Commission plainly indicated “by what
amount” sentences may be reduced on the basis of retroactive
amendments. See United States v. Anderson, 686 F.3d 585,
589 (8th Cir. 2012) (“By limiting reductions below the
amended guideline range to an amount comparable to an
earlier reduction for substantial assistance, the Commission
has specified the „circumstances and by what amount‟ a
sentence may be reduced.” (quoting 28 U.S.C. § 994(u))).

Another provision in the SRA authorizes—indeed,
requires—the Commission to exercise its authority over
sentence reductions by issuing policy statements. In Section
994(a), “Congress considered the difference between
„guidelines‟ and „policy statements,‟ and directed the
Commission to use each in different situations.” United
States v. Horn, 679 F.3d 397, 402 (6th Cir. 2012). Congress
sought for the Commission to issue policy statements to
address, among other topics, “the appropriate use of . . . the
sentence modification provisions set forth in section[] . . .
3582(c) of title 18.” 28 U.S.C. § 994(a)(2)(C). The Sixth

12
Circuit Court of Appeals has concluded that “[t]his section
can only be read as a directive for the Commission to issue
policy statements regarding the retroactivity of Guidelines
amendments.” Horn, 679 F.3d at 401. The same is true with
respect to the Commission‟s related authority—also based in
§ 994(u)—to determine the extent to which prisoners‟
sentences may be reduced based upon those amendments it
makes retroactive.9

Defendants attempt to cabin the Commission‟s
authority by claiming that Congress did not intend for the
Commission to disrupt elements of a prisoner‟s original
sentence that are unrelated to the amendment pursuant to

9
In urging the opposite conclusion, Defendants
unconvincingly compare § 994(u) and § 994(t). Section
994(t) specifically directs the Commission to issue policy
statements addressing a sentence modification procedure
similar to § 3582(c)(2). 28 U.S.C. § 994(t) (“The
Commission, in promulgating general policy statements
regarding the sentencing modification provisions in section
3582(c)(1)(A) of title 18, shall describe what should be
considered extraordinary and compelling reasons for sentence
reduction . . . .”). According to Defendants, the absence of a
similar reference to policy statements in § 994(u)
demonstrates that it “does not contemplate issuance of
binding policy statements to implement § 3582(c).”
Appellants‟ Br. at 37. Confusingly, though, they
simultaneously acknowledge that § 994(a)(2)(C) “requires the
Commission to issue policy statements that will pertain to §
3582(c)(2) proceedings.” Id. This “appears to destroy [the]
contrast between § 994(u) and § 994(t).” Horn, 679 F.3d at
403.

13
which he seeks a reduction. They argue that the Commission
has improperly “undone” aspects of below-Guidelines
sentences by forbidding judges from reimposing variances
and departures they previously deemed appropriate. Reply
Br. at 3. This argument misses the mark. We cannot intuit an
intent unmoored from Congress‟ directives. As demonstrated
above, § 994(u) authorizes the Commission to issue policy
statements regarding when and how sentences may be
reduced based on its amendments to the Guidelines.
Nowhere did Congress require that the Commission permit
judges to fashion a reduction with exactly the same tools—
departures and variances—they originally used to set an
appropriate sentence. See Anderson, 686 F.3d at 589-90
(“The statutory framework does not require the Commission
to make all downward departures and variances applied to the
original sentence available when creating a basis for
sentencing reduction.”). Rather than undo the effect of
previous departures and variances, the Commission has
merely limited the extent to which new ones can be awarded
in § 3582(c)(2) proceedings.

Indeed, the text of § 3582(c)(2) makes clear that
Congress contemplated that the Commission would have the
power to impose limits on these types of sentence reductions,
by making the Commission‟s policy statements binding.
Section 3582(c)(2) provides:

[I]n 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 . . . , the
court may reduce the term of

14
 imprisonment, after considering
the factors set forth in section
3553(a) to the extent that they are
applicable, if such a reduction is
consistent with applicable policy
statements issued by the
Sentencing Commission.

18 U.S.C. § 3582(c)(2) (emphasis added). While Defendants
contend that the “consistent with” language does not
necessarily make § 1B1.10 binding, we disagree.10 Indeed, in
United States v. Doe, we rejected such an interpretation and
do not revisit that decision here. 564 F.3d 305, 310 (3d Cir.
2009) (“Under the express statutory language of § 3582(c)(2)
and § 994(u), the Commission‟s policy statements
implementing retroactive sentence reduction are binding.”).
“If a sentence reduction is inconsistent with a policy
statement, it would violate § 3582(c)‟s directive, so policy

10
Defendants claim that there are other provisions of
the SRA that contain similar “consistent with” language, but
with respect to which the Commission has not issued binding
policy statements. They point to 18 U.S.C. § 3582(c)(1)(A),
which requires that sentence reductions for extraordinary and
compelling reasons be consistent with applicable policy
statements of the Commission. But, Defendants fail to
recognize that the policy statement that governs such
reductions lists circumstances that qualify as extraordinary
and compelling under § 3582(c)(1)(A), thereby restricting
district courts just like § 1B1.10. See U.S.S.G. § 1B1.13 cmt.
n.1.

15
statements must be binding.” United States v. Garcia, 655
F.3d 426, 435 (5th Cir. 2011).

The Supreme Court‟s opinion in Dillon v. United
States reinforces our view that § 3582(c)(2) requires district
courts to comply with the Commission‟s policy statements.
There, the Court interpreted § 3582(c)(2) as “requir[ing] the
court 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 (emphasis added). The Court‟s use
of the term “requires” cannot reasonably be read to make the
Commission‟s decisions regarding the extent to which
sentences may be reduced anything but mandatory. In fact, it
is the mandatory nature of the Commission‟s limitation on
sentence reductions that gave rise to the very Booker
argument considered, and rejected, by the Court in Dillon.
See, e.g., id. at 2690 (“Under Dillon‟s approach, Booker
would preclude the Commission from issuing a policy
statement that generally forecloses below-Guidelines
sentences at § 3582(c)(2) proceedings, as USSG § 1B1.10
purports to do.”).

Moreover, the unfettered judicial discretion that
Defendants seek to preserve is at odds with the narrow scope
of § 3582(c)(2) sentence reduction proceedings. In Dillon,
the Supreme Court made abundantly clear that sentence
reduction proceedings pursuant to § 3582(c)(2) are not
wholesale resentencings.11 Id. (“Section 3582(c)(2) does not
11
In their briefs, Defendants remind us that Dillon
predated the revision to § 1B1.10 that is at issue here. See
130 S. Ct. at 2691-92. We, however, fail to understand how
that fact pertains to whether the Commission was authorized

16
authorize a sentencing or resentencing proceeding.”).
“Congress intended to authorize only a limited adjustment to
an otherwise final sentence,” id. at 2691, “within the narrow
bounds established by the Commission,” id. at 2694. The
Court inferred Congress‟ intent not just from the text of
§ 3582(c)(2) but also from the Commission‟s considerable
control over sentence reduction proceedings under § 994(u).
Id. at 2691-92. It noted that, in addition to depending on the
Commission‟s decision to make an amendment retroactive,
courts are “constrained by [its] statements dictating „by what
amount‟ the sentence of a prisoner . . . affected by [an]
amendment „may be reduced.” Id. at 2691. For us to say that
the Commission does not have the power to impose such
constraints would therefore run afoul of Dillon.

As the Sixth Circuit Court of Appeals aptly
summarized: Ҥ 994(u) requires the Commission to specify
[by what amount sentences may be reduced based on
retroactive amendments], § 994(a)(2)(C) requires that this
specification be in the form of a policy statement, and §
3582(c)(2) makes those policy statements binding.” Horn,
679 F.3d at 401-02. Together, these provisions sink

to make the revision. In deciding that district courts may not
correct mistakes in a prisoner‟s original sentence, the Court
emphasized how § 3582(c)(2) only “permits a sentence
reduction within the narrow bounds established by the
Commission.” Id. at 2694. Like the errors the Court deemed
outside the scope of reduction proceedings in Dillon, the
comparable reductions Defendants seek here are outside the
“narrow bounds established by the Commission.” Id. It just
so happens that the Commission has, as it may, further
narrowed those bounds since Dillon.

17
Defendants‟ contention that the Commission exceeded its
statutory authority by prohibiting courts from reducing a
prisoner‟s sentence below his amended Guidelines range
except to reflect substantial assistance.

B. Separation of Powers

Defendants‟ argument that the new version of §
1B1.10‟s limitation violates separation-of-powers principles
fares no better. They submit that the Commission‟s issuance
of a binding policy statement suffers from two problems:
first, it constitutes the exercise of legislative authority without
necessary accountability to Congress; and, second, it infringes
upon the exercise of judicial authority by courts.

1. Legislative Authority

As we noted above, Congress authorized the
Commission to issue binding policy statements that limit the
extent to which prisoners may benefit from retroactive
Guidelines amendments. We cannot agree that Congress‟
delegation of that authority to the Commission violates
separation-of-powers principles.

“[R]ooted in the principle of separation of powers that
underlies our tripartite system of Government,” the
nondelegation doctrine generally prevents Congress from
“delegat[ing] its legislative power to another Branch.”
Mistretta v. United States, 488 U.S. 361, 371-72 (1989).
However, a delegation of legislative power is permissible if
Congress “lay[s] down by legislative act an intelligible
principle to which the person or body authorized to [exercise
the delegated authority] is directed to conform.” Id. at 372
(citations omitted). “Congress need not expressly authorize

18
every determination made by the Commission.” Garcia, 655
F.3d at 435. The Supreme Court has “upheld, . . . without
deviation, Congress‟ ability to delegate power under broad
standards.” Mistretta, 488 U.S. at 373.

In Mistretta, the Supreme Court rejected a
nondelegation challenge to the SRA‟s broad grant of
authority to the Commission. Id. at 374. It held that
Congress‟ delegation of authority was “sufficiently specific
and detailed to meet constitutional requirements.” Id. In
support of its holding, the Court cited the considerable
direction Congress gave the Commission on how to go about
establishing a federal sentencing regime. The Court
described at length how, in 28 U.S.C. § 994, Congress
specified the purposes the Commission must serve, the tools
the Commission must use, the factors the Commission must
consider, and other terms by which the Commission must
abide in promulgating Guidelines. Id. at 374-77. On the
basis of those provisions, the Court held that the SRA “sets
forth more than merely an ‘intelligible principle’ or minimal
standards.” Id. at 379 (emphasis added).

Given that only an intelligible principle is required,
“[t]he threshold for a constitutionally valid delegation is
much lower than was the delegation in Mistretta.” Garcia,
655 F.3d at 435. That threshold easily has been met here.
“[B]oth §§ 994(u) and 994(a)(2) limit and inform the
Commission on how it must exercise its delegated authority.”
United States v. Smith, 459 Fed. App‟x 99, 101 (3d Cir.
2012). In § 994(u), Congress articulated the contours of the
Commission‟s power: to “specify in what circumstances and
by what amount the sentences of prisoners serving terms of
imprisonment for [an] offense may be reduced” whenever it
lowers the applicable Guidelines range for that offense. 28

19
U.S.C. § 994(u). In § 994(a), Congress further guided the
Commission‟s exercise of that authority. First, it “prescribed
the specific tool—policy statements—for the Commission to
use in regulating the retroactive effect of sentencing.” Horn,
679 F.3d at 405. Second, it required that any policy
statements issued on the subject “further the purposes set
forth in [18 U.S.C. §] 3553(a)(2).” 28 U.S.C. § 994 (a)(2).
These provisions are of the same type as those on which the
Mistretta Court relied and therefore satisfy us, as they have
other courts, that Congress has “delineate[d] the general
policy, the public agency which is to apply it, and the
boundaries of this delegated authority.”12 Mistretta, 488 U.S.
at 373. This is all that is constitutionally required.

Even outside the nondelegation context, we fail to see
how the Commission‟s revision of § 1B1.10 upsets the
constitutionally prescribed balance of power. Defendants
contend that when the Commission binds courts in §
3582(c)(2) proceedings it “lacks the political accountability
demanded by the separation of powers doctrine.” Appellants‟
Br. at 40. Their argument relies upon Mistretta‟s analysis of
the Commission‟s location within the judicial branch. The
defendants in Mistretta argued that the SRA
unconstitutionally expanded the power of the judicial branch
by “uniting within [it] the . . . quasi-legislative power of the
Commission with the judicial power of the courts.” Mistretta,

12
For other decisions rejecting nondelegation
challenges to the Commission‟s issuance of § 1B1.10, see
Anderson, 686 F.3d at 590; Horn, 679 F.3d at 404; Smith, 459
Fed. App‟x at 101; Garcia, 655 F.3d at 435; United States v.
Fox, 631 F.3d 1128, 1133 (9th Cir. 2011); United States v.
Dukes, 420 Fed. App‟x 237, 237 (4th Cir. 2011).

20
488 U.S. at 393. The Court concluded that the Commission‟s
powers are not united with the judiciary‟s power because the
Commission is an independent agency accountable to
Congress and the public. Id. Congress “can revoke or amend
any or all of the Guidelines as it sees fit either within the 180-
day waiting period or at any time,” and the Commission‟s
“rulemaking is subject to the notice and comment
requirements of the Administrative Procedure Act.” Id. at
393-94 (citing 28 U.S.C. §§ 994(p) and (x)).

Although the Commission‟s policy statements are
subject to neither the 180-day waiting period nor the APA‟s
notice-and-comment requirements, its revision of § 1B1.10
did not violate the separation-of-powers doctrine. The
purpose of those measures—to make the Commission
accountable—was fulfilled. “Although policy statements are
not subject to the 180-day waiting period applicable when the
Commission passes a Guidelines Amendment, Congress can
direct the Commission to change its retroactivity
determination or pass a law overruling the Commission‟s
determination „at any time.‟”13 Horn, 679 F.3d at 405-06

13
We emphasize that the Commission “endeavor[s] to
include amendments to policy statements and commentary in
any submission of guideline amendments to Congress.” U.S.
Sentencing Comm‟n, Rules of Practice and Proc. 4.1.
Assuming, as we do, that the Commission followed its own
rules when revising § 1B1.10, Congress was aware of the
decision to further limit sentence reductions over the 180 days
during which it considered Amendment 750. It was
“accordingly free to dictate an alternative . . . determination
during the 180 days.” Horn, 679 F.3d at 406.

21
(quoting Mistretta, 488 U.S. at 394) (internal citation
omitted); see also United States v. Fox, 631 F.3d 1128, 1131
(9th Cir. 2011) (“Congress, of course, can override both
Guidelines and Policy Statements by statute.”). The
Commission, then, remains fully accountable to Congress
when it issues binding policy statements like § 1B1.10.
Moreover, the Commission did solicit public views about §
1B1.10(b)‟s limitation on sentence reductions and made its
decision to make the limitation more stringent at a public
hearing. See 76 Fed. Reg. 24960 (May 3, 2011); U.S.
Sentencing Comm‟n, Public Meeting Minutes (June 30,
2011).14 “The public nature of the proceedings provided an
effective check and allayed the concerns voiced by the Court
in Mistretta.” Horn, 679 F.3d at 406.

No legislative power imbalance of constitutional
dimensions resulted from the Commission‟s decision to set a
limit on sentence reductions pursuant to § 3582(c)(2).
Congress validly delegated to the Commission authority to
make that decision, drafted the statute that made it binding on
courts, and retained the power to legislate over it. The
legislative authority Defendants ascribe to the Commission
was not unfettered or otherwise improper.

2. Judicial Authority

The Commission‟s revision of § 1B1.10(b) did,
admittedly, constrain the ability of courts entertaining §
3582(c)(2) motions to reduce sentences. On that basis,

14
The minutes of the Commission‟s June 30, 2011
meeting are available at http://www.ussc.gov/Legislative_
and_Public_Affairs/Public_Hearings_and_Meetings/2011063
0/Meeting_Minutes.pdf.

22
Defendants contend that it interfered with the judicial
function and thereby violated separation-of-powers
principles. We do not agree for several reasons.

To start, we note that Congress, without question,
possesses authority to restrict the judiciary‟s discretion in
fashioning sentences. See Mistretta, 488 U.S. at 364
(“Congress, of course, has the power to fix the sentence for a
federal crime, and the scope of judicial discretion with respect
to a sentence is subject to congressional control.”). And it is
Congress that bound courts to the limitation in § 1B1.10, by
expressly requiring that sentence reductions based on
amendments to the Guidelines be consistent with the
Commission‟s policy statements. See supra Section II.A.
“Even if the Commission were to attempt to promulgate a
non-binding policy statement, district courts would still be
bound to follow that policy statement under the express
language of § 3582(c)(2).” Horn, 679 F.3d at 404. The
Commission, therefore, is not acting alone in constraining
judicial discretion; it is instead crafting policy statements that
the legislative branch itself makes binding.

Even were we to consider the Commission‟s
imposition of a binding limitation on courts separate and apart
from the language of § 3582(c)(2), no separation-of-powers
issue arises. In the SRA, Congress explicitly placed the
Commission within the judicial branch because of the role
that branch has historically played in sentencing. See 28
U.S.C. § 991(a) (establishing the Commission “as an
independent commission in the judicial branch of the United
States”). The Commission‟s location within the same branch
as the courts suggests that no imbalance between the branches
of government resulted from its revision of § 1B1.10. In fact,
the Mistretta Court approved of the Commission‟s location in

23
that branch precisely because its functions were “attendant”
to courts‟ role in determining appropriate sentences. 488 U.S.
at 391. That is, the Court based its rejection of a separation-
of-powers challenge to the SRA in part on the Commission‟s
exercise of the very function Defendants find so
objectionable, i.e., its promulgation of “Guidelines [that] bind
judges and courts in the exercise of their uncontested
responsibility to pass sentence in criminal cases.” Id. The
Commission‟s establishment of a limit on sentence reductions
falls squarely within this function.

Defendants‟ arguments do not convince us otherwise.
They emphasize the Court‟s conclusion in Mistretta that the
Commission‟s “powers are not united with powers of the
Judiciary in a way that has meaning for separation-of-powers
analysis” in part because “it is not a court[ and] does not
exercise judicial power.” Mistretta, 488 U.S. at 393. By
interfering with the sentencing decisions of courts,
Defendants argue, the Commission acts as a court and thereby
upsets the constitutionally prescribed balance of power.
Appellants‟ Br. at 41. However, to start, we reiterate that
Dillon emphasized that reductions are not sentencings, 130 S.
Ct. at 2690, such that the decisions with which § 1B1.10
interferes are not of the same nature as those considered in
Mistretta. What is more, the Mistretta Court concluded that
the Commission did not exercise judicial power well before
Booker—when the Commission‟s ability to limit courts‟
sentencing discretion was at its zenith. See 488 U.S. at 367
(describing the SRA as making “the Sentencing
Commission‟s guidelines binding on the courts”). The
Commission no more interferes with the sentencing decisions
of courts by limiting the extent to which sentences may be

24
reduced than when it established mandatory sentencing
ranges under the pre-Booker regime.

The Commission‟s retention of the “tiniest sliver,”
Dillon, 130 S. Ct. at 2693, of authority to restrict courts
proceeding under § 3582(c)(2) therefore fully comports with
separation-of-powers principles. Defendants‟ fears about the
effect of the Commission‟s revision to § 1B1.10 on the
structural protections of the Constitution “prove . . . to be
„more smoke than fire.‟” Mistretta, 488 U.S. at 384.

C. Notice-and-Comment

Defendants‟ last remaining argument does not detain
us for long because it is based on a faulty premise.
Defendants contend that the Commission‟s failure to comply
with the APA‟s notice-and-comment procedure bars
enforcement of § 1B1.10. However, the Commission is not
required to abide by the APA‟s notice-and-comment
provisions when issuing policy statements. Its purported
failure to do so, then, does not invalidate the new limitation
on sentence reductions.

The statutory scheme established by the SRA makes
clear that the Commission is only subject to the APA‟s
notice-and-comment provisions when promulgating
Guidelines. After differentiating between the subjects that
may be addressed via Guidelines and policy statements, 28
U.S.C. § 994(a), Congress imposed different requirements for
the Commission‟s use of each tool. Section 994(x) provides
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

25
added). Unlike in certain surrounding provisions, see 28
U.S.C. §§ 994(t) and (v), § 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.15 See Fox, 631 F.3d at 1131 (“The Sentencing
Commission must jump through more procedural hoops to
issue a Guideline than to issue a Policy Statement.” (citing,
inter alia, 28 U.S.C. § 994(x))).

We cannot agree with Defendants that the mandatory
nature of § 1B1.10 alters this reasoning or result. Appellants‟
Br. at 50. Defendants contend that administrative law
principles prevent agencies from avoiding notice-and-
comment by announcing binding precedent in general
statements of policy. Id. (citing Ctr. for Auto. Safety v. Nat’l
Highway Traffic Safety Admin., 452 F.3d 798, 807 (D.C. Cir.
2006)). Such administrative law principles, however, are of
limited application to this case. “Congress decided that the
Sentencing Commission would not be an „agency‟ under the
APA when it established the Commission as an independent
entity in the judicial branch.” Wash. Legal Found. v. U.S.
Sentencing Comm’n, 17 F.3d 1446, 1450 (D.C. Cir. 1994);
see also id. (“Congress . . . decided that the Commission

15
Curiously, Defendants‟ separation-of-powers
argument is based in large part on the fact that the
Commission is not subject to the same procedural
requirements when issuing policy statements as when
promulgating Guidelines. In fact, Defendants actually relied
heavily on the inapplicability of APA notice-and-comment to
argue that the Commission escaped necessary accountability
when revising § 1B1.10.

26
would not be subject to the provisions of the APA except as
specifically enumerated.”). And even were the Commission
subject to the rules governing other agencies, the principle to
which Defendants refer would still be of dubious applicability
because, as we stated earlier, it was Congress—not the
Commission—that made § 1B1.10 binding.

Given that the Commission is not obligated to abide by
the APA‟s notice-and-comment provisions when issuing
policy statements, we need not address the adequacy of the
notice-and-comment procedures it used to revise § 1B1.10‟s
limitation on sentence reductions. The Commission properly
issued the policy statement, and it is therefore valid.

III.

For the foregoing reasons, we will affirm both the
order denying Berberena‟s motion for a sentence reduction
and the order granting in part Gayle‟s motion for a sentence
reduction.

27