United States v. Anthony Goines

LUTTIG, Circuit Judge,

dissenting:

The straightforward issue in this case is whether the district court properly denied Goines’ motion for reduction of sentence under 18 U.S.C. § 3582(c)(2).

The majority correctly recognizes the necessary questions to be answered in resolving this issue, first, whether the weapon enhancement pursuant to United States Sentencing Guidelines Manual (“U.S.S.G.”) § 2Dl.l(b)(l) that was applied to Goines’ 18 U.S.C. § 922(g) conviction would have been barred by Amendment 599 had that amendment been in effect when Goines was sentenced and, second, if that enhancement would have been barred, whether Goines is eligible for relief under section 3582(c)(2) because that amendment lowered the sentencing range on which his term of imprisonment was based. But beyond this point, the majority and I are, to a large extent, in fundamental disagreement.

While I agree that Amendment 599 would have barred Goines’ weapon enhancement, I do so for reasons different from those of the majority. In particular, I conclude that Goines’ section 922(g) conviction was within the scope of relevant conduct for the drug-trafficking crime underlying his section 924(c) conviction, and thus is properly considered part of the “underlying offense” for purposes of Amendment 599.

More important than my disagreement with the majority on this first issue, however, is my disagreement with the majority on the second issue. As the majority itself concludes, Amendment 599 is clarifying only. It did not change the scope of Application Note 2 (“Note 2”) to U.S.S.G. § 2K2.4 (1998).1 Because Amendment 599 did not change the sentencing range made applicable to Goines by the Sentencing Commission, that amendment necessarily did not lower that range, which is the prerequisite for a sentence reduction under section 3582(c)(2). For this reason, Goines is not statutorily eligible for a reduction of his sentence under section 3582. The reasoning invoked by the majority in support of the contrary conclusion, I believe, comes perilously close to being, if it does not cross the line into, outright legislation.

I.

The .threshold question with which we are faced is whether Amendment 599 would have prevented the weapon enhancement Goines received on his section 922(g) conviction. The majority concludes, as do I, that the amendment would have barred that enhancement. Notable about the majority’s analysis, however, is its complete failure to explain how this is true under the text of Amendment 599. Instead, while concluding that Goines’ enhancement “falls within a gap between” Amendment 599’s restrictions — a conclusion that should prompt the majority to reach the opposite holding that Amendment 599 would not have barred Goines’ sentence enhancement — the majority then proceeds to simply state, without any reference to the language of Amendment 599 whatsoever, that the “best inference from th[e] juxtaposition of citations and commentary” in the Commission’s accompanying “Reason for Amendment” is that the Commission intended that “a sentence for *482a § 922(g) offense may not be enhanced based on conduct that also resulted in a § 924(c) conviction.” Ante at 473. Although I agree with the majority’s ultimate conclusion that Amendment 599 would have barred Goines’ enhancement, I cannot accept the majority’s analysis. If the enhancement at issue would not have been barred by the language of Amendment 599 — accounting, as we must, for the interpretive instructions provided by the Commission — then properly that should be the end of the inquiry.

I also am unsure whether, even assuming that the majority is correct as to the “best inference” of the Commission’s intent, that the weapon enhancement in this case was based on the same conduct that underlay Goines’ section 924(c) offense. It was the conduct underlying the section 924(c) offense that apparently was used to justify the cross-reference to U.S.S.G. § 2X1.1, which eventually led to imposition of the section 2Dl.l(b)(l) enhancement. See J.A. 68. The specified basis for the section 2Dl.l(b)(l) enhancement is different from the conduct specified in the section 924(c) count to which Goines pled guilty. The specified basis for the enhancement was the distribution of a different drug (marijuana, not methamphetamine), on a different day (October 22, not October 20), and with a different gun (a .38 caliber antique revolver, not a .45 caliber handgun).2 Compare J.A. 63-64 with J.A. 12-13.

But more importantly, I believe that the majority has overlooked the proper inquiry for determining the applicability of Amendment 599 in circumstances such as those before us. The relevant inquiry under that amendment is both broader in scope, and more complicated in application, than the majority’s discussion suggests, even if the majority’s conclusion as to the application of that amendment in the specific instance of identity between the conduct basis for the weapon enhancement and the conduct underlying the section 924(c) conviction may necessarily follow. In particular, I believe that a weapon enhancement is barred under Amendment 599 both in the circumstance where the enhancement is being applied in determining the sentence for the specific offense underlying a defendant’s section 924(c) conviction and in the circumstance where the enhancement is being applied in determining the sentence for any counts of conviction within the scope of relevant conduct for that specific underlying offense.

By its terms, the first paragraph of Amendment 599 (the one relevant to the issue here) limits its application to cases where “a sentence under this guideline [section 2K2.4] is imposed in conjunction with a sentence for an underlying offense .... ” U.S.S.G. supp. to app. C, amend. 599. If that has occurred, the amendment then precludes applying weapon enhancements “when determining the sentence for the underlying offense.” Id. However, the underlying offense for the section 924(c) count listed in the indictment was the drug trafficking crime of “possession an [sic] possession with intent to distribute methamphetamine” “on or about October 20, 1999,” J.A. 13, conduct which was subsumed under dismissed count one. Because no sentence was imposed on that count, the language of Amendment 599 would seem to dictate that the amendment’s bar would be inapplicable.

*483The Commission, however, has defined “offense” to mean “the offense of conviction and all relevant conduct under § 1B1.S (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context.” U.S.S.G. § 1B1.1, emt. n.l(k) (emphasis added). And in its Reason for Amendment, the Commission specifically stated its intention that courts apply this definition to “underlying offense” in Amendment 599:

The amendment directs that no guideline weapon enhancement should be applied when determining the sentence for the crime of violence or drug trafficking offense underlying the 18 U.S.C. § 924(e) conviction, nor for any conduct with respect to that offense for which the defendant is accountable under § 1B1.S (Relevant Conduct). Guideline weapon enhancements may be applied, however, when determining the sentence for counts of conviction outside the scope of relevant conduct for the underlying offense (e.g., a conviction for a second armed bank robbery for which no 18 U.S.C. § 924(c) conviction was obtained).

U.S.S.G. supp. to app. C, amend. 599 (emphasis added).

Since Goines stipulated in his plea agreement “that there is a sufficient factual basis to support each and every material allegation contained within” the indictment, see J.A. 20, those acts listed in count one (and surely those specifically underlying his section 924(c) conviction) would appear to be properly considered “offenses of conviction” for these purposes, even though no separate conviction was actually obtained.3 See U.S.S.G. § lB1.2(c). Therefore, if Goines’ section 922(g) offense was a count of conviction within the scope of relevant conduct to his underlying drug trafficking crime, then the weapon enhancement he received would have been barred by Amendment 599. See United States v. Brown, 332 F.3d 1341, 1345 n. 6 (11th Cir.2003) (concluding that “Amendment 599 abrogated Flennory to the extent that the new application note expanded the definition of underlying offense to include the relevant conduct punishable under U.S.S.G. § 1B1.3,” but declining to decide “whether a § 922(g) conviction constitutes relevant conduct within the meaning of Application Note 2”).

Because the district court applied the weapon enhancement to the section 922(g) conviction as the result of a cross-reference from the guideline applicable to that conviction, and after calculating a base offense level including the total amount of drugs found to have been distributed by Goines, I believe the district court necessarily concluded that Goines’ section 922(g) conviction was within the scope of relevant conduct for his underlying drug-trafficking crime. See U.S.S.G. § 1B1.3 (“Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two ... shall be determined on the basis of’ factors defining relevant conduct.) (emphasis added). It is, then, for this reason that the district court erred in its conclusion that Amendment 599 would not have barred Goines’ weapon enhancement.

II.

The fact that Amendment 599 would have barred the weapon enhancement Goines received on his section 922(g) offense does not necessarily mean, of course, *484that he is eligible to receive the benefit of that amendment through a sentence reduction under section 3582(c)(2). As to this second question, the majority concludes that Goines is so eligible because Amendment 599 lowered the sentencing range that was applied by the district court. Section 3582(c)(2), however, authorizes a sentence reduction only if the amendment lowers the sentencing range prescribed by the sentencing guidelines. Since Amendment 599 is clarifying, and thus does not make any change in the applicable guidelines, a sentence reduction under section 3582(c)(2) plainly is not authorized on the basis of that amendment. Indeed, the Commission’s binding interpretation as to when a section 3582(c)(2) reduction is authorized prevents a court from granting a sentence reduction based on a clarifying amendment, and the unambiguous meaning of section 3582(c)(2) precludes the Commission from authorizing such a reduction at all — the majority’s contrary conclusion notwithstanding.

A.

Although the majority recites the text of section 3582(c)(2) above, that text bears repeating here:

[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 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.

(2000) (emphasis added). Section 3582(c)(2) thus permits a sentence reduction for Goines if, inter alia, Amendment 599 “lower[ed]” the “sentencing range” on which his term of imprisonment was “based.” I would have thought there could be no doubt as to the interpretation of these terms. However, any doubt in this respect is entirely eliminated by reference to U.S.S.G. § 1B1.10 — the policy statement setting forth the Commission’s unambiguous view on the necessary conditions for a section 3582(c)(2) sentence reduction to be both “authorized” and “warranted.” In the Commission’s own words, a reduction in a defendant’s term of imprisonment under section 3582(c)(2) is “authorized” when “the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below.” U.S.S.G. § lB1.10(a). The Commission’s interpretation is unequivocal: eligibility for a section 3582(c)(2) reduction is “triggered only by an amendment listed in subsection (c) that lowers the applicable guideline range.” U.S.S.G. § 1B1.10, cmt. n.l (emphasis added).

We are bound to apply section lB1.10(a)’s direction as to when a section 3582(c)(2) sentence reduction is authorized. Although section 1B1.10 is a policy statement and not a guideline, we are obliged to follow those policy statements that, consistent with statutory dictates, prohibit specified action by a court. As the Supreme Court has made clear,

[t]he principle that the Guidelines Manual is binding on federal courts applies as well to policy statements.... “[WJhere ... 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.”

Stinson v. United States, 508 U.S. 36, 42, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (quoting Williams v. United States, 503 U.S. 193, 201, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992)). Section 1B1.10 meets this requirement, given its specific explication *485of the necessary conditions for a sentence reduction under section 3582(c)(2).4 And even if it did not, section 3582(c)(2) itself only allows a sentence reduction if such “is consistent with applicable policy statements issued by the Sentencing Commission,” which section 1B1.10 indisputably is.

Once section 3582(c)(2) is properly understood, the logic as to why it does not authorize a reduction in Goines’ sentence is simple and, I would have thought, self-evident. A sentence reduction under section 3582(c)(2) is only authorized when an amendment lowers the applicable guideline range as that range has been defined by the Sentencing Commission. And as the majority itself concludes, Amendment 599 “changes nothing concerning the legal effect of the guidelines, but merely clarifies what the Commission deems the guidelines to have already meant.” Ante at 474 (quoting United States v. Capers, 61 F.3d 1100, 1109 (4th Cir.1995)) (emphasis added). Because Amendment 599 made no change at all to the guideline range that could be correctly applied to Goines — i.e., the guideline range applicable to him — it necessarily did not lower that range.5

Admittedly, from the conclusions that Amendment 599 would have barred Goines’ weapon enhancement and that Note 2 has the same scope as Amendment 599, it follows that the district court committed legal error when it applied the en*486hancement during Goines’ original sentencing. That is, since Amendment 599 had no effect on the ability of courts to apply enhancements such as the one Goines received on his section 922(g) conviction, application of the instant enhancement would have been contrary to Note 2, as properly construed, both before and after the enactment of Amendment 599. But the fact that the district court so erred does not mean that Amendment 599 lowered the guideline range applicable to Goines, as is required to authorize a sentence reduction. Such error only means that the guideline range actually applied to Goines was not the guideline range that was, in fact, “applicable” to him. The proper way to seek redress for that error, however, is by argument on direct appeal and not, as the majority holds today, through motion under section 3582(c)(2).

Even if there had been prior Fourth Circuit precedent that required the conclusion reached by the district court — rendering Amendment 599 a “hybrid” amendment in the majority’s terminology — I would conclude the same. In such case, that circuit precedent would have also been in error, in that Note 2 would have barred an enhancement permitted by the precedent. To be sure, under these circumstances Amendment 599 would have changed the law within this circuit (at least in its prospective applications) because that law was previously defined by the precedent interpreting old Note 2. This still would not mean, however, that Amendment 599 lowered the guideline range applicable to Goines because that amendment still would have made no change in the scope of Note 2 as intended by the Commission.

B.

Additionally, I reject the argument made by Goines that, in the determination of whether a section 3582(c)(2) sentence reduction is authorized, “it is irrelevant whether Amendment 599 is substantive or clarifying,” and all that matters is that the Commission designated Amendment 599 in section lB1.10(c) as capable of retroactive application. Supplemental Br. of Appellant at 3-6. Goines contends that, in this regard, section 1B1.10 stands in contrast to U.S.S.G. § 1B1.11, for which the distinction between substantive and clarifying amendments is relevant. Section 1B1.11(b)(2) requires a court applying an earlier version of the Guidelines Manual than that in effect at sentencing to “consider subsequent amendments [to the guidelines], to the extent that such amendments are clarifying rather than substantive changes.” Goines argues from the fact that relief under section lBl.ll(b)(2) is explicitly predicated on this distinction, and relief under sections 3582(c)(2) and lB1.10(a) is not, that the distinction is irrelevant under the latter provisions.

It is true that Congress has “granted the Commission the unusual explicit power to decide whether and to what extent its amendments reducing sentences will be given retroactive effect .... in [section] 1B1.10....” Braxton v. United States, 500 U.S. 344, 348, 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991) (citing 28 U.S.C. § 994(u)) (second emphasis added). But those amendments must first actually reduce sentences in the manner dictated by the statutory directive, section 994(u). That section dictates that the Commission’s power to reduce sentences through designation of amendments as retroactively applicable applies “[i]f the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses.” Where an amendment does not change the scope of a guideline, the Commission cannot be said to have so reduced the guideline-recommended term of imprisonment. That neither Congress nor the Commission conditioned a section 3582(c)(2) sen-*487tenee reduction by terms on the existence of a “substantive,” as opposed to “clarifying,” change is of no moment. For in substantive effect, Congress so conditioned the sentence reduction, through its authorization of such only in circumstances where an amendment actually reduces the “term of imprisonment recommended in the guidelines.” Amendments that do not— otherwise known as clarifying amendments' — by definition fail to satisfy the statutory requirements. See United States v. LaBonte, 520 U.S. 751, 757, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997) (stating that “[b]road as [the Commission’s] discretion [in formulating guidelines] may be, however, it must bow to the specific directives of Congress_ If the Commission’s revised commentary is at odds with [the statutory directive’s] plain language, it must give way.”).

It is for this reason that, even were we not bound by the construction of section 3582(c)(2) provided in section lB1.10(a), I would be confident that section 1131.10(a) provided the correct, and indeed neces-sa'i'y, interpretation of the requirements for authorization of a section 3582(c)(2) sentence reduction. Accordingly, I believe the cases Goines cites in support of his argument are, to the extent they suggest that clarifying amendments can ever support a section 3582(c)(2) sentence reduction, simply in error. See, e.g., United States v. Lykes, 73 F.3d 140, 143 (7th Cir.1995) (“The question whether an amendment is substantive or clarifying ... is, however, irrelevant to the implementation of § 1B1.10 ... as long as the amendment in question reduces a term of imprisonment for some offense. Indeed, one might expect that such amendments would ordinarily be substantive.”) (emphasis added). And to the extent the Commission, in designating Amendment 599 as retroactively applicable, construed section 3582(c)(2) to authorize sentence reductions for amendments that are only clarifying, I would hold that its interpretation is contrary to statute and invalid. See United States v. Banks, 130 F.3d 621, 624-25 (4th Cir.1997) (stating that commentary is binding “[u]nless contrary to federal law”).

C.

Once section 3582(c)(2) is correctly interpreted, the implausibility of the majority’s preferred reading of that section becomes manifest, for even on the majority’s own construction of the relationship between Amendment 599 and Note 2, a sentence reduction under section 3582(c)(2) is not authorized on the basis of Amendment 599.

In its attempt to justify the opposite conclusion, the majority creates a false dichotomy between “broad” and “narrow” interpretations of the term “sentencing range” as used in section 3582(c)(2), stating that both are plausible, but that the former better serves various policy considerations identified by the majority. See ante at 475-76. It is not clear which interpretation, as a matter of necessity, is broader and which is narrower. But only one — the latter — is plausible.6 The other, the majority’s “broad” reading of section 3582(c)(2), requires a court to determine whether the sentencing range applied by the particular district court in question has been lowered by a retroactive amendment. As noted above, since the sentencing, or guideline, range actually applied by the district court to Goines was erroneous, *488then that range was, in fact, in applicable. Thus, it follows ineluctably that Amendment 599 made no change to the applicable guideline range, and thus that a reduction in Gomes’ sentence is not authorized under section 3582(c)(2).

The majority seems to recognize the implausibility of its preferred construction of section 3582(c)(2), because it declines to rely on the language of section 1B1.10(a) to support that construction, despite the fact that section 1B1.10 is directed to the precise circumstance facing us in this case: Its expressed goals are to “provide! ] guidance for a court when considering a motion under 18 U.S.C. § 3582(c)(2) and [to] implement! ] 28 U.S.C. § 994(u),” the statutory directive regarding the Commission’s power to authorize sentence reductions through retroactively applicable amendments. U.S.S.G. § 1B1.10, cmt. background. Unlike the language of section 3582(c)(2), the language of section lB1.10(a) is insusceptible, or certainly is not as easily susceptible, to the kind of misinterpretation to which the majority falls prey in its reading of section 3582(c)(2).

The majority’s explanation as to why the unambiguous language of section lB1.10(a) does not preclude its interpretation of section 3582(c)(2) is unconvincing. While admitting (as it must) that mine is the more natural reading of section lB1.10(a), the majority nevertheless rejects this reading of the provision, contending that it is incompatible with what it asserts is the Commission’s current interpretation of section 1B1.10(a), an interpretation that the majority maintains is necessarily implied by the Commission’s actions — though such has never been explicitly declared by the Commission.7

But the Commission’s interpretation is, like any agency’s interpretation of its own regulations, invalid if it is plainly inconsistent with that section’s necessary meaning. See Stinson, 508 U.S. at 45, 113 S.Ct. 1913 (making the rule that “an agency’s interpretation of its own regulations [which] does not violate the Constitution or a federal statute ... must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation” applicable to the Commission’s commentary interpreting the guidelines) (internal quotation marks omitted). And section 1B1.10(a) simply cannot bear the interpretation that the majority suggests is currently held by the Commission and which the majority today adopts for this circuit, a conclusion that, as explained below, not only obtains from section lB1.10(a)’s unambiguous meaning, but that is also required by the statutory directive that section 1B1.10(a) implements.

1.

I must confess that I actually do not see any way that the word “applicable” in section lB1.10(a) can legitimately be read to refer to the guideline range “applied” by the district court in the particular case in which sentence reduction is sought. In fact, upon reflecting on the two terms in juxtaposition, it is obvious that the Commission, when originally promulgating section lB1.10(a), could not have shared the majority’s interpretation of section 3582(c)(2). If it had, it would not have directed, as it did, that the amendment must lower the guideline range applicable to a defendant. Rather, it would have directed that it must lower the guideline range applied to that defendant, or something of similar focus. In fact, if the Com*489mission had originally interpreted section 3582(c)(2) as the majority contends it now does, applied would be so far a superior, and apparent, term for section lB1.10(a) that the use of applied to convey that “broad” meaning would be almost inconceivable.

That the Commission did not originally hold the majority’s interpretation of section lB1.10(a) is evidenced by examination of that section as it stood in 1989, when the section first took effect. Although the relevant language in section lB1.10(a) at that time is identical to its current form, none of the amendments then designated as retroactively applicable can be fairly construed as merely clarifying. See U.S.S.G. § 1B1.10(a), (d) (1989) (listing amendments 126, 130, 156, 176, and 269 as retroactively applicable). The fact that the Commission’s interpretation of subsection (a) may have expanded over time is irrelevant if, as is the case here, section IB 1.10(a) cannot bear the Commission’s current interpretation.8

The majority’s argument to the contrary cannot withstand careful examination. That argument examines a policy statement, section lB1.10(a) (which states that a reduction in sentence is “authorized” if an amendment “lower[s]” “the guideline range applicable to [a] defendant”), whose interpretive commentary recites that the pertinent conditions are “only” satisfied by those amendments “that lower[ ] the applicable guideline range,” yet concludes that section “lB1.10(a) does not in fact impose” a requirement that “an amendment must lower the ‘applicable’ guideline range” in order for that amendment to satisfy section lB1.10(a)’s conditions. Ante at 477-78 (quoting U.S.S.G. §§ 1B1.10(a), 1B1.10 cmt. n.l). According to the majority, this counterintuitive (to say the least) result is required because the natural reading of section lB1.10(a) “cannot [be] square[d]” with the Commission’s interpretation thereof. Id. at 472.

While the majority correctly assesses the relationship between the Commission’s interpretation and the plain language of section lB1.10(a), the majority misapprehends the scope of the deference we need accord the Commission. I do not believe, as the majority apparently does, that the Commission can avoid full judicial review of its interpretation of section lB1.10(a) by implicitly grounding that interpretation in a different subsection of section 1B1.10 altogether, i.e., through addition of clarifying amendments to section lB1.10(c).

That is not to say, of course, that I would not defer to that interpretation were it a plausible one. But the requirement that we accord controlling weight to the Commission’s interpretations of the guidelines — which is a species of “Seminole Rock deference,” the general principle of deference to an agency’s interpretation of its own regulations — does not apply at all when the guideline language is “unambiguous.” United States v. Deaton, 332 F.3d 698, 709 (4th Cir.2003) (citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)). In such cases, “the regulation’s plain language, not the agency’s interpretation, controls.” Id. Not only is section lB1.10(a), as detailed above, unambiguous, but the majority offers no case for its ambiguity beyond the fact of the Commission’s contrary interpretation. That, *490alone, is insufficient to justify, much less require, our deference.

2.

Moreover, the interpretation of section lB1.10(a) that I espouse is necessary to confine that section within the bounds of the duties imposed upon, and powers implicitly granted to, the Commission by the statute that section 1B1.10(a), by express terms, “implements”: section 994(u). As explained above, see supra at 486-87, the authority to authorize sentence reductions conferred by section 994(u) is limited to amendments that “reduce[ ] the term of imprisonment recommended in the guidelines”; however, the Commission’s current interpretation of section 1B1.10(a) (if that it be) would allow it to authorize sentence reductions based on amendments that do not lower any guideline-recommended term of imprisonment, but instead only clarify what the preexisting guidelines recommended. Simply put, that interpretation would exceed the Commission’s statutory authority and could not stand, as the majority effectively concedes when it observes that “[t]he plain language of § 994(u) — viewed without benefit of prior judicial interpretations — appears to authorize retroactive application of substantive amendments only.” Ante at 479-80.

The majority ultimately eschews reliance on the natural reading of the statute, however, seeking refuge instead in a strained reading of the Supreme Court’s decision in Braxton. The majority claims that, despite the plain statutory language to the contrary in section 994(u), the Brax-ton court decided that the Commission could designate clarifying amendments as retroactively applicable. The majority asserts that Braxton precludes us from construing section 994(u) in accordance with its plain meaning, even though the case was decided on other grounds, as the majority admits, and even though Braxton did not mention — or even suggest — the issue that divides this court.

Braxton, however, did not hold that the Commission’s section 994(u) power applies to clarifying amendments, and we are not bound by any construction — or more accurately, reconstruction — of its reasoning which suggests otherwise. At the time of Braxton, an application note for U.S.S.G. § 1B1.2 provided that, “in the case of a conviction by plea of guilty ... containing a stipulation that specifically establishes a more serious offense than the offense of conviction, [the court shall apply the guideline in such chapter] most applicable to the stipulated offense.” Braxton, 500 U.S. at 346, 111 S.Ct. 1854. The first of two issues raised in the case was whether, to be covered by this proviso, a stipulation needed to be contained in a formal plea agreement, an issue that had divided the courts of appeals. See id. at 346-47, 111 S.Ct. 1854. After Braxton’s petition for certio-rari was granted, “the Commission requested public comment on whether § lB1.2(a) should be ‘amended to provide expressly that such a stipulation must be as part of a formal plea agreement,’ which [wa]s the precise question raised by the first part of Braxton’s petition.... ” Id. at 348, 111 S.Ct. 1854 (1991) (quoting 56 Fed. Reg. 1891 (Jan. 17, 1991)). Observing that Congress may not have intended for the Court to have “initial[ ] and primar[y]” responsibility for resolving circuit conflicts over the guidelines (as would “[ojrdinarily” be the case), and after noting both the commission’s “duty to review and revise the Guidelines” and its “unusual explicit power ” to designate certain of its amendments as retroactively applicable, the Court “[chose] not to resolve the first question presented in the current case.” The Court reasoned that “the Commission has already undertaken a proceeding that will eliminate circuit conflict over the meaning of § IB 1.2” and that “the specific *491controversy before us can be decided on other grounds....” Id. at 348-349, 111 S.Ct. 1854.9

The majority’s fundamental error in its reading of Braxton lies in its assumption that, since Braxton referenced the Commission’s retroactive designation power in the context of a guideline for which a putatively clarifying amendment eventually issued, the Court must have concluded that this power applied to clarifying amendments. But there simply is no indication in the Braxton opinion that the Court was aware of what, if any, amendment the Commission would propose, much less that any amendment would necessarily be clarifying in the sense used here. Thus, that opinion cannot possibly be said to have turned on the nature of the amendment that the Commission finally promulgated.

For one, the opinion only notes that the Commission had begun a proceeding to resolve the issue; the opinion contains no indication of what any forthcoming amendment would, in fact, provide, nor whether that amendment would make a clarifying or substantive change to the guideline. The notice of proposed amendment from which the Court quoted provides no better indication of what form any amendment would take. To the contrary, since the request for comments is included under the heading “Miscellaneous Substantive, Clarifying, Conforming, and Technical Amendments,” but does not indicate which of these any amendment to section lB1.2(a) would be, the notice suggests that the Commission had not yet formally de-eided on the character of any anticipated amendment. See 56 Fed.Reg. 1891.10

In light of the above, and in light of the fact that after describing the Commission’s power in this regard, Braxton cites directly to section 994(u) — the “plain language” of which only covers substantive amendments — without comment, Braxton cannot be read as expanding the scope of the Commission’s section 994(u) power beyond the clear language of that directive. Rather, the opinion is better (if not eompellingly so) read as having used the “unusual” nature of the Commission’s power in this regard as evidence of the different role Congress envisioned for the Supreme Court as to guidelines issues, and no more — a point that would carry weight even if, as I contend, the Commission’s section 994(u) authority is limited to substantive amendments.

III.

Even if I were to accept the essential plausibility of the majority’s “broad” interpretation of section 3582(c)(2), I would reject the reasons it offers for preferring that construction over the one that comes naturally from the statute and is dictated by the policy statement. On this point, the majority provides three sets of justifications for its preferred interpretation, the first and third of which can be dismissed with relatively little effort, and in the second of which lies what is, perhaps, the majority’s most troubling assertion.

A.

The majority first contends that a “narrow” interpretation would interfere with *492the Commission’s intended role in resolving circuit conflicts over the guidelines, and thereby it would “shift[ ] responsibility for resolving [such] circuit conflicts” from the Commission to the Supreme Court. Ante at 476. I recognize that this circuit will not currently consider as clarifying those amendments that “cannot be reconciled with [our] circuit precedent” interpreting the old guideline. United States v. Neilssen, 136 F.3d 965, 969 (4th Cir.1998). I am unconvinced, however, that employing the proper interpretation of section 3582(c)(2) would necessarily, and significantly, increase the Supreme Court’s burden in this regard. To the extent there is the potential for such an increase, the courts of appeals, when constituted en banc, can reduce that burden by correcting panel guideline interpretations shown to be in error by subsequent clarifying amendments.

More to the point, however, the majority’s argument here incorrectly assumes that the Commission already legitimately has the power that the majority’s “broad” interpretation would, in fact, confer upon that body. But the Commission cannot “lose the authority,” ante at 476, which it never properly had. I simply do not see any evidence that Congress, in phrasing the exemption set forth in section 3582(c)(2), meant the “sentencing range” as applied by courts, and I see every indication that Congress meant the “sentencing range” as dictated by the language of Note 2 and the relevant commentary directing its construction. Again, I do not believe the first meaning even to be plausible.

As its third set of justifications for a “broad” construction, the majority concludes that its reading of section 3582(c)(2) would not “have effects that Congress sought to avoid.” Ante at 477. Of course, whether or not “the disruption of finality engendered by a broad interpretation of § 3582(c)(2) is consistent with the legislative design,” ante at 477, depends upon whether that interpretation is consistent with the statute at all. I do not believe that it is, and I do not believe any of the reasons given under this prong of analysis can justify the majority’s interpretation of section 3582(c)(2).

B.

As I suggested above, it is the majority’s second set of justifications — through which it argues that a “narrow” interpretation would “undermine the remedial scheme created by the Sentencing Reform Act,” ante at 476 — that epitomizes its analytical error. On this point, to recite the majority’s essential reasoning is to convince of its untenability. The majority reasons as follows: A harm occurs that should be remedied when a defendant is sentenced under an interpretation of the guidelines that is subsequently shown to be incorrect by a retroactively applicable amendment. Yet the “prospects for appellate relief are uncertain at best when the applicable guideline is ambiguous,” and “ § 2255 provides virtually no remedy at all.” Therefore, the majority concludes, the “broad” interpretation of section 3582(c)(2) best serves the purposes of the scheme established by the Sentencing Reform Act. Ante at 476-77.

In such fashion is “clarify” read to mean “lower.” This is not statutory interpretation' — this is open legislation.

We should not resort to what are admittedly unadulterated policy considerations to force a meaning onto a statute that it cannot reasonably support. It would be one thing if it were absurd to conclude that Congress would allow the Commission to authorize sentence reductions for amendments that make substantive changes, but not for those that only clarify the proper interpretation of the existing guideline. *493But there is nothing at all odd about the idea that Congress intended the “uncertain” avenue of direct appeal to be the primary means to address what are, at base, only errors of interpretation, and where the only effect of a clarifying amendment is to make a court’s error clearer now than it was at sentencing. Section 3582(c)(2) is reserved for when the Commission has made an actual change to the guideline which lowers the guideline range applicable to a defendant, a special case which justifies allowing the sentencing court — at its discretion — to give the defendant the benefit of that retroactive change.

IV.

In dissenting from the opinion of the majority, I do not assert any error in its conclusion that allowing the Commission to make clarifying amendments retroactively applicable to correct erroneous guideline interpretations would be consistent with the general purposes of the Sentencing Reform Act (though I do not necessarily agree, either). Were other circuits to reach the conclusion I have here, I would not be surprised if Congress actually granted the Commission such power, although I suspect there are many who would be opposed.

Rather, I believe, and would so hold, only that under the law as it presently exists, the Commission cannot authorize, and a court cannot grant, a section 3582(c)(2) sentence reduction based on an amendment which, like Amendment 599, did not reduce an applicable guideline range, but, rather, only clarified the Commission’s interpretation of the applicable guideline range.

Accordingly, I dissent.

. Unless otherwise indicated, citations in this opinion to “U.S.S.G." refer to the 2002 manual.

. In fact, I suspect that the presentence report’s choice of this conduct as the basis for the enhancement over the seemingly more obvious (and more culpable) conduct specified as the § 924(c) underlying offense in the indictment was an attempt to avoid the scope of Note 2's prohibition.

. In fact, given that an element of a section 924(c) offense is engaging in a prosecutable federal "crime” — either one of "violence” or "drug trafficking” — a conviction on a section 924(c) offense would seem inherently to render the specified underlying conduct an "offense of conviction,” at least as meant by Amendment 599.

. While the Williams court spoke in terms of a policy statement’s interpretation of a guideline, I have no doubt that this limitation applies equally to a policy statement interpreting a statute. See United States v. Headrick, 963 F.2d 777, 781 (5th Cir.1992) ("[PJolicy statements may carry [the force of guidelines] when they inform the application of a particular guideline or statute.") (emphasis added).

. A reduction in Goines’ sentence might be thought justified on the reasoning that, although it declined to concede the point expressly, the Commission did view Amendment 599 as substantive in that it expanded the scope of "underlying offense,” thus potentially lowering the guideline range applicable to Goines. (The government appears to embrace such an argument in its supplemental brief, though without explicitly labeling the amendment “substantive.”). Arguably, the Commission’s very listing of that amendment in section 1B1.10(c) reflects that it held this view. See, e.g., U.S.S.G. § 1B1.10, cmt. background ("The Commission has not included in this policy statement amendments that generally reduce the maximum of the guideline range by less than six months.”).

I hesitate, however, to conclude that Amendment 599 is substantive (at least as it applies to Goines’ circumstances), because of the utterly inconsequential change in language from Note 2 to Amendment 599. While Amendment 599 provides more specific direction as to the scope of "underlying offense,” the fact remains that the guidelines at the time Goines was sentenced (as they do today) defined "offense” to include "the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context.” U.S.S.G. § 1B1, cmt. n.l(Z) (1998) (emphasis added). Substituting this definition of "offense” into Note 2 would seem to render Note 2 identical in substantive scope to Amendment 599. This view, of course, is reinforced, if not fully confirmed, by the Commission's own characterization of the effect of its change, including its repeated characterization of the change as merely clarifying. See U.S.S.G., supp. to app. C, amend. 599 (Reason for Amendment). In particular, the Commission stated that “[t]he amendment clarifies application of the commentary, consistent with the definition of ‘offense’ found in § IB 1.1 (Application Note 1 (Z)) and with general guideline principles. It addresses disparate application arising from conflicting interpretations of the current guideline in different courts....” Id. (emphasis added).

In view of the above, and assuming that this conclusion applies to both paragraphs of Amendment 599, I think it is more likely that the Commission simply concluded in error that clarifying amendments could serve as predicates for a sentence reduction under section 3582(c)(2). There-fore, I defer to the majority’s characterization of the amendment.

. The majority places significant emphasis on the fact that no other court has reached the conclusion I have in this case. Without addressing these arguments in detail, I imagine that those earlier courts that, at least implicitly, reached the contrary interpretation of section 3582(c)(2) suffered (to the extent they gave much thought to the question at all) from interpretive errors similar to those made by the majority.

. Assuming that each of the ostensibly clarifying amendments listed in section IB 1.10(c) is clarifying in all respects, I do not disagree that such listings demonstrate the Commission’s view that section IB 1.10(a) can potentially be satisfied by clarifying amendments.

. But my position is not, as might be suggested by the majority's citation to Rust, ante at 478-79, that the Commission's interpretation is invalid because it represents an unexplained departure from the Commission's longstanding views, although that may well be the case; my point, again, is that the Commission's current interpretation is not a "plausible construction” of, i.e., is plainly inconsistent with, the language of section 1B1.10(a). Ehlert v. United States, 402 U.S. 99, 105, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971).

. I disagree with the majority's view that Braxton justified its decision to pass on the first issue in part because "the Sentencing Commission was fully empowered ... to rectify any harms that might have resulted from incorrect interpretations of the relevant guideline.” Ante at 480. That is too broad a reading of the Court’s explanation for bypassing the stipulation issue; the opinion does not nearly construe the Commission's powers so expansively.

. Although the phrasing of the Commission's request for comments might suggest that a clarifying amendment would be forthcoming, it certainly does not require that result.