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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 08-30445
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JOHN MICHAEL FOX,
Defendant-Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SUPPLEMENTAL BRIEF FOR APPELLEE
Kevin F. McCoy Jeffrey L. Fisher
Assistant Federal Defender Pamela S. Karlan
601 W. Fifth Avenue, Suite 800 Stanford Law School Supreme
Anchorage, AK 99501 Court Litigation Clinic
(907) 646-3400 559 Nathan Abbot WayStanford, CA 94305
(650) 724-7081
Attorneys for Appellee
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... iiSTATEMENT OF THE CASE ..................................................................................1SUMMARY OF ARGUMENT .................................................................................8ARGUMENT ...........................................................................................................10
I. Treating the Federal Sentencing Guidelines as Binding in aSection 3582 Proceeding Would Violate the Sixth Amendment. ................ 12
II. Treating the Federal Sentencing Guidelines as Binding in aSection 3582 Proceeding Would ViolateBookers Remedial,
Statutory Holding. .........................................................................................23III.Wholly Apart FromBookerConsiderations, the Policy Statement
Requiring Courts To Impose New Sentences in Section 3582
Proceedings Within Guidelines Ranges Is Invalid Because Its
Promulgation Violated the Sentencing Reform Acts Administrative
Lawmaking Requirements. ........................................................................... 30CONCLUSION ........................................................................................................40
CERTIFICATE OF COMPLIANCE ....................................................................... 41
CERTIFICATE OF SERVICE ................................................................................42
i
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TABLE OF AUTHORITIES
CasesApprendi v. New Jersey,530 U.S. 466 (2000) .............................................. 1, 18, 19
Bartlett v. Bowen,816 F.2d 695 (D.C. Cir. 1987) ................................................... 23
Braxton v. United States, 500 U.S. 344 (1991)........................................................34
Cirilo-Munoz v. United States, 404 F.3d 527 (1st Cir. 2005) ..................................12
Evitts v. Lucey, 469 U.S. 387 (1985) .......................................................................21
Ferrara v. United States, 384 F. Supp. 2d 384 (D. Mass. 2005) .............................13
Gagnon v. Scarpelli, 411 U.S. 778 (1973) ...............................................................21
Graham v. Richardson, 403 U.S. 365 (1971) ..........................................................21
Gunderson v. Hood,268 F.3d 1149 (9th Cir. 2001) ................................................34
Hicks v. United States, 472 F.3d 1167 (9th Cir. 2007) .................................... passim
Kimbrough v. United States,552 U.S. 85 (2007) ...................................................... 7
King v. United States, No. CIV A. 2:03-0473, CRIM. 2:02-0041-01,
2006 WL 1867349 (S.D. W. Va. June 30, 2006) .................................................13
Long Island Care at Home, Ltd. v. Coke,551 U.S. 158 (2007) ....................... 36, 37
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ...............................................22
Miller v. Florida, 482 U.S. 423 (1987) .................................................................... 38
Natl Black Media Coal. v. FCC,791 F.2d 1016 (2d Cir. 1986) ............................37
Natural Res. Def. Council v. EPA,279 F.3d 1180 (9th Cir. 2002) .................. 36, 38
Northwest Austin Mun. Dist. No. One v. Holder,129 S. Ct. 2504 (2009) ..............23
ii
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Paulsen v. Daniels,413 F.3d 999 (9th Cir. 2005) ............................................ 34, 39
Pickus v. U.S. Bd. of Parole,507 F.2d 1107 (D.C. Cir. 1974) ................................34
Ring v. Arizona, 536 U.S. 584 (2002) ...................................................................... 19
Sec. Life Ins. Co. v. Meyling,146 F.3d 1184 (9th Cir. 1998) ..................................31
Spears v. United States, 129 S. Ct. 840 (2009) ........................................................ 24
Stinson v. United States,508 U.S. 36 (1993) .................................................... 25, 31
United States v. Banuelos,322 F.3d 700 (9th Cir. 2003) ........................................11
United States v. Barrett,No. 6:98-cr-270-Orl-22KRS,2008 WL 938926 (M.D. Fla. Apr. 3, 2008) .........................................................12
United States v. Batchelder,442 U.S. 114 (1979) ...................................................24
United States v. Bernardo Sanchez, 569 F.3d 995 (9th Cir. 2009) .........................16
United States v. Blakely,No. 3:02-CR-209-K, 2009 WL 174265
(N.D. Tex. Jan. 23, 2009) .............................................................................. 11, 17
United States v. Booker, 543 U.S. 220 (2005) ................................................. passim
United States v. Butler,139 Fed. Appx 510 (4th Cir. 2005) .................................. 14
United States v. Caraballo, 552 F.3d 6 (1st Cir. 2008) ...........................................22
United States v. Carr, 557 F.3d 93 (2d Cir. 2009) .................................................. 15
United States v. Doe, 398 F.3d 1254 (10th Cir. 2005) ............................................13
United States v. Fiorillo, No. CR-94-427-JLQ, 04-CV-729-JLQ,
2006 WL 2844564 (N.D. Cal. Oct. 2, 2006) ........................................................29
United States v. Forty Estremera,498 F. Supp. 2d 468 (D.P.R. 2007)...................12
United States v.Gleich, 397 F.3d 608 (8th Cir. 2005) ............................................13
iii
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United States v. Sioux Nation,448 U.S. 371 (1980) ................................................22
United States v. Sipai,582 F.3d 994 (9th Cir. 2009) ...............................................21
United States v. Stewart, 420 F.3d 1007 (9th Cir. 2005) .................................. 12, 15
United States v. Thomas, 572 F.3d 945 (D.C. Cir. 2009) ........................................ 15
United States v. Verporter,196 Fed. Appx 839 (11th Cir. 2006) .......................... 13
United States v. Washington, 66 F.3d 1101 (9th Cir. 1995) ....................................34
United States v. Wesson,583 F.3d 728 (9th Cir. 2009) ...........................................20
Williams v. United States,503 U.S. 193 (1993) ................................... 24, 31, 32, 35
Yakus v. United States, 321 U.S. 414 (1944) .................................................... 22, 23
Statutes5 U.S.C. 553 ................................................................................................... 32, 36
5 U.S.C. 553(b)(3)................................................................................................. 36
18 U.S.C. 2 ....................................................................................................... 1, 11
18 U.S.C 3553(a) ............................................................................................. 4, 28
18 U.S.C. 3553(b) ................................................................................................. 26
18 U.S.C. 3582 .............................................................................................. passim
18 U.S.C. 3582(c) ......................................................................................... passim
18 U.S.C. 3582(c)(2) ..................................................................................... passim
18 U.S.C. 3742 ......................................................................................................26
21 U.S.C. 841(a)(1) .......................................................................................... 1, 11
v
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28 U.S.C. 994(a)(1) ............................................................................................... 33
28 U.S.C. 994(a)(1)(B) .................................................................................. 31, 35
28 U.S.C. 994(a)(2) ........................................................................................ 31, 35
28 U.S.C. 994(o) ................................................................................................... 32
28 U.S.C. 994(p) ................................................................................................... 32
28 U.S.C. 994(u) ...................................................................................... 26, 34, 35
28 U.S.C. 994(x) ............................................................................................ 32, 35
Guidelines ProvisionsU.S.S.G. 1B1.10 (2008) ................................................................................ passim
U.S.S.G. 1B1.10 cmt. n.1(B) (2008) ...................................................... 4, 5, 15, 17
U.S.S.G. 1B1.10 cmt. n.3 (2008) ............................................................................ 6
U.S.S.G. 1B1.10(b)(1) (2008) .................................................................... 4, 14, 15
U.S.S.G. 1B1.10(b)(2)(A) (2008) ................................................................. passim
U.S.S.G. app. C (2008) .............................................................................................. 4
U.S.S.G. app. C, Amend. No. 712 (2008) ...............................................................37
U.S.S.G. app. C, Amend. No. 713 (2008) ...............................................................37
U.S.S.G. 1B1.10(b) (2004) ............................................................................ 26, 39
U.S.S.G. 2D1.1(c)(17) (1995) ................................................................................. 1
U.S.S.G. ch. 5, pt. A, sentencing tbl. (1995) ............................................................. 1
vi
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Other Authorities72 Fed. Reg. 41,794 (July 31, 2007) ......................................................... 5, 6, 36, 37
73 Fed. Reg. 217 (Jan. 2, 2008) ................................................................................. 6
U.S. Sentg Commn, Rules of Practice and Procedure,
62 Fed. Reg. 38598 (July 18, 1997) .....................................................................32
S. Rep. No. 98-225 (1984) ....................................................................................... 31
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STATEMENT OF THE CASE
1. In 1996, the government charged Appellee John Michael Fox and
Shawn Young with aiding and abetting the possession with intent to distribute a
controlled substance, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2. ER
42-43. Young pleaded guilty first and provided substantial assistance to the
government. SER 2-8. Fox also pleaded guilty, and, as the government itself
conceded, acted in good faith and told the Government [all] he knew about drug
dealing. CR 137, pp. 2-3. But he was unable to benefit from any substantial
assistance motion because he could not tell the government anything Young had
not already told it. Id.; ER 35.
The indictment had not specified the type or quantity of drugs allegedly
involved in Foxs and Youngs crime. ER 42-43. Hence, based solely on the facts
necessarily encompassed in the offense of conviction, Foxs maximum sentence
under the then-binding Federal Sentencing Guidelines would have been about one
year. See U.S.S.G. 2D1.1(c)(17) (1995); id. ch. 5, pt. A, sentencing tbl.
Nonetheless, in violation of the Sixth Amendment as later explicated in
Apprendi v. New Jersey,530 U.S. 466 (2000), andUnited States v. Booker,543
U.S. 220 (2005), the district court determined that facts beyond those necessarily
encompassed in Foxs guilty plea were present in the case. ER 38-39. Most
importantly, the district court found that the drug at issue was crack cocaine and
1
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that Fox possessed 1988.4 grams of that substance. ER 38-39. The district court
also found that Fox possessed a dangerous weapon and had a leadership role in the
offense. ER 35, 38. These findings, under the then-prevailing 100:1 ratio for
crack-versus-powder cocaine offenses, enhanced Foxs guidelines range to 360
months to life. ER 39.1
The district court viewed this range as far too high. The district court
characterized Fox as a very intelligent, very capable individual with tremendous
potential someone who could be in the upper percentile of the earners in this
community if he put the same effort into his education and into work that hes put
into other areas. ER 37-39. In the courts view, therefore, a sentence
somewhere more in the level of eight to ten years would be more than adequate to
meet all of the statutory goals for sentencing; anything more than 10 years would
be overkill. ER 39. Nonetheless, because it was bound by the guidelines, the
district court sentenced Fox to a minimum term of 360 months (30 years). ER 39.
1The government concedes that it constituted Apprendi error to enhance
Foxs sentence based on the district courts factual findings because the
government failed to allege them in its indictment. Gvt. Supp. Br. 21 n.5. Using
these facts to enhance Foxs sentence also violated the Sixth Amendment because
no jury ever found them beyond a reasonable doubt and Fox never admitted them
pursuant to a valid waiver of his Sixth Amendment right to a jury trial. While thegovernment suggests that Foxs stipulation to some of these facts at his pre-Booker
(and pre-Apprendi) original sentencing constituted such a waiver, Gvt. Reply Br.
5-6, that is not so. A defendant waives his Sixth Amendment right to a jury trial
only if his plea agreement expressly abandons that right on sentencing-enhancing
facts. See United States v. Gonzalez-Flores, 418 F.3d 1093, 1103 (9th Cir. 2005).
The plea agreement here did not do so.
2
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The district judge concluded by expressing his hope that Fox would see the
errors of his previous ways and use the time he must spend in prison to complete
his education and to prepare himself for work in the community. ER 39.
The district court sentenced Young, Foxs fellow aider and abetter, to 33
months a dramatically shorter sentence made possible because Young won the
race to the U.S. Attorney and was able to shop Fox before Fox could shop Young.
CR 137, pp. 2-3; see also SER 2-8 (Youngs sentence calculations).
2. Over the next several years while in prison, Fox did exactly the things that
the district court had hoped for and predicted. Fox completed a thirty-hour drug
education program; underwent counseling and anger management sessions;
pursued vocational training; and earned his High School Equivalency Certificate.
ER 9. He worked at numerous jobs while in prison, displaying hard work ethics,
tak[ing] pride and initiative in his work, and demonstrating great leadership
skills. ER 9 (quoting Foxs supervisor). Fox also was a model prisoner in
every other way. ER 9. He was never once disciplined while incarcerated a
rarity indeed. ER 9.
3. In 2007, the Sentencing Commission revised the guidelines applicable to
crack cocaine offenses. Recognizing that the 100:1 ratio produced an urgent and
compelling problem that significantly undermine[d] Congresss purposes in
3
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enacting the Sentencing Reform Act, the Commission reduced the base offense
level for all crack cocaine offenses by two levels. U.S.S.G. app. C, at 221 (2008).
4. Part of the original Sentencing Reform Act, 18 U.S.C. 3582(c)(2),
permits a defendant to make a motion for relief when the Sentencing Commission
has amended the guidelines range applicable to that defendants offense and made
that amendment retroactive. Upon receiving a Section 3582 motion from a
defendant who is eligible for a shortened sentence, a court first determines whether
it believes that it a sentence reduction is warranted in the defendants particular
case. 18 U.S.C. 3582(c)(2). In making that assessment, the Sentencing
Commission directs the court to consider the list of sentencing factors outlined in
18 U.S.C 3553(a), the defendants post-sentencing conduct, and whether
resentencing the defendant to a shorter term would threaten public safety.
U.S.S.G. 1B1.10 cmt. n.1(B). If the court concludes that a shorter sentence is
warranted, it then commences a resentencing. 18 U.S.C. 3582(c)(2). During this
resentencing, the court substitutes the new, retroactive guidelines range for the
now-invalid guidelines range while carrying forward all other guidelines
calculations. U.S.S.G. 1B1.10(b)(1). The judge then selects a new prison term
in light of the defendants post-sentencing behavior, various public safety factors,
and all of the factors outlined in Section 3553(a), including the nature and
4
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circumstances of the offense, the history and characteristics of the defendant, and
the need to avoid unwanted sentence disparities. U.S.S.G. 1B1.10 cmt. n.1(B).
5. InHicks v. United States, 472 F.3d 1167 (9th Cir. 2007), this Court
confronted the question of whether, in the wake of the Supreme Courts decision in
Booker, a district court may treat the Federal Sentencing Guidelines as binding in
Section 3582 proceedings. TheBookerCourt held that the guidelines violate the
Sixth Amendment when they require courts to increase defendants sentences
above otherwise binding limits based on facts not proven to a jury beyond a
reasonable doubt. Booker, 543 U.S. at 244. To cure this constitutional infirmity,
the Supreme Court rendered the guidelines advisory, holding that mandatory
guidelines are no longer an open choice. Booker, 543 U.S. at 263. Concluding
thatBookerabolished the mandatory application of the Sentencing Guidelines in
all contexts,Hicks, 472 F.3d at 1169, and that any Sentencing Commission policy
to the contrary would have to give way, this Court concluded that Hicks was
entitled to the benefit ofBookerat his resentencing, id. at 1173.
AfterHicks and after having amended the crack guidelines, the Sentencing
Commission announced that it intended to consider making the crack amendment
retroactive. 72 Fed. Reg. 41,794-95 (July 31, 2007). It also requested comment
regarding whether, if it amend[ed] 1B1.10(c) to include [the crack] amendment,
it should also amend 1B1.10(c) to provide guidance to the courts on the
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procedure to be usedwhen applying an amendment retroactively under 18 U.S.C.
3582(c)(2). Id.
After receiving comments and holding a public hearing, the Commission
made the crack amendment retroactive and issued policy guidance on procedures
to be used in applying it retroactively. 73 Fed. Reg. 217 (Jan. 2, 2008). In
addition, although the Commission had not advised the public it was considering
doing so, it also promulgated a new policy statement accompanying U.S.S.G.
1B1.10 designed to control when, and to what extent, a sentencing reduction is
considered consistent with the policy statement and therefore authorized under 18
U.S.C. 3582(c)(2).Id. Whereas the Commissions policy betweenBookerand
Hicks had been that courts imposing new sentences under Section 3582 needed to
consult the guidelines but were not bound by them, Gvt. Opening Br. 6 n.2; infra at
26 n.9, the Commissions new policy statement, save for an exception not relevant
here, prohibits district court judges from imposing a new sentence in a Section
3582(c)(2) proceeding that is less than the minimum term of imprisonment
provided by the amended guideline range. U.S.S.G. 1B1.10 cmt. n.3.2
2The amended policy statement permits judges to sentence a defendant below
the amended guidelines range only 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. U.S.S.G. 1B1.10 cmt. n.3.6
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6. Based on the Sentencing Commissions decision to make the crack
amendments retroactive, Fox moved for resentencing under Section 3582(c)(2).
ER 3. Fox requested a new sentence below his amended guideline range, arguing
that underBooker, the district court should treat the revised guidelines range as
advisory only. ER 8. Fox also emphasized that, as an African American man
subject to the crack guidelines, the Supreme Courts decision in Kimbrough v.
United States, 552 U.S. 85 (2007), reinforced the district courts discretion to new
impose a below-guideline in the interests of justice.
The district court first determined that Fox was eligible for a new sentence
based on the crack guideline amendments. ER 7-8. The court then decided to
exercise its discretion to commence a resentencing of Fox. ER 8-10. It reduced
Foxs base offense level by the two levels specified in the amendments, carrying
forward all of its earlier findings and calculations. ER 5-6. This resulted in a new
guidelines range of 292-365 months. ER 6. Again, this range struck the district
court as excessive. ER 7. It explained that it believed at the time of the original
sentencing . . . that a sentence of roughly 120 months is sufficient to comply with
all the purposes set forth in 3553(a) and that that belief had only been
bolstered by Foxs model behavior while incarcerated. ER 9.
Relying on this Courts opinion inHicks, the district court concluded that the
guidelines did not bind it this time and resentenced Fox to a new term of 134
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months (eleven years and two months). ER 8-10. In the district courts view, the
unwarranted disparity between the guidelines treatment of crack and powder
cocaine offenses, coupled with Foxs strong work ethic and hard work at
rehabilitation, justified this downward variance from the guidelines recommended
range. ER 9-10.
Foxs new sentence amounted to time served, ER 10, and, on December
16, 2008, he was released from prison. Since his release, Fox has found gainful
employment with a home contracting company and reconnected with his family.
And he is continuing to work to rebuild his life.
7. The government now appeals, seeking to put Fox back in prison for at
least fourteen more years. The government contends that, notwithstanding the
Supreme Courts decision inBooker, and contrary to this Courts holding inHicks,
the Federal Sentencing Guidelines remain binding in Section 3582 proceedings. If
that is correct, the lowest possible new sentence Fox may receive is 292 months.
ER 6.
SUMMARY OF ARGUMENT
This Court should affirm the district courts judgment resentencing Fox to
134 months, for the district court correctly proceeded on the assumption that it did
not have to tether itself to Foxs unconstitutional and unjust original sentence when
imposing a new sentence under 18 U.S.C. 3582(c).
8
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I. Requiring the district court to treat the guidelines as binding in Foxs
resentencing would contravene the Sixth Amendments prohibition against
imposing a sentence that is longer than would be permissible based solely on the
facts encompassed in the guilty verdict. It is immaterial that Foxs original
sentence became final prior to the Supreme Courts decision in United States v.
Booker, 543 U.S. 220 (2005), which established this Sixth Amendment rule with
respect to the mandatory federal guideline system. It is hornbook law that once a
court reopens a sentence and imposes a new one, that new sentence must comport
with existing law. And contrary to the governments suggestions, this elementary
principle does not apply differently to a resentencing in a Section 3582 proceeding
than it does to any other resentencing. The exercise the district court goes through
in a Section 3582 resentencing is exactly the same, and the output is exactly the
same (a new sentence based on a new guidelines calculation), as any other
resentencing.
II. Treating the guidelines as binding when imposing a new sentence under
Section 3582 also would violate the Sentencing Reform Act. The Act, as altered
byBooker, requires that all guidelines and policy statements governing the length
of sentences be treated as effectively advisory. Booker, 543 U.S. at 245. There
is no basis to exempt policy statements concerning new sentences imposed under
Section 3582 from that now-controlling statutory rule.
9
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III. Even if courts afterBookercould treat the guidelines as binding when
imposing a new sentence under Section 3582, the Sentencing Commissions
directive ordering courts to do so would still be invalid because the Commission
failed to comply with the Sentencing Reform Acts administrative lawmaking
requirements in promulgating it. In particular, the Act requires the Commission to
give notice and seek comment before enacting any guideline that is, any
legislative rule that concerns the appropriate length of prison terms. Although
the Commission labeled its directive to follow the guidelines as a policy
statement, the Commissions directive is really a legislative rule. And the
Commission failed to provide any fair notice before enacting it.
ARGUMENT
The government does not dispute that the district court reasonably exercised
its discretion in deciding to resentence Fox under the newly retroactive Federal
Sentencing Guidelines governing crack cocaine offenses. Nor does the
government contest that the new 134-month sentence that the district court has
imposed is reasonable under current law. And the government effectively
concedes that the result it seeks resentencing sentencing Fox within the current
guideline range, on the theory that that new range is binding would violate the
Sixth Amendment as construed in United States v. Booker, 543 U.S. 220 (2005), if
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Fox were being sentenced for the first time today.3
The government argues,
however, that the district court erred in applyingBookers principlesto Foxs new
sentence because that sentence is the result of a motion brought under 18 U.S.C.
3582(c)(2).
The government is incorrect. In United States v. Hicks, 472 F.3d 1167 (9th
Cir. 2007), this Court correctly held thatBookerprohibits courts from treating the
Federal Sentencing Guidelines as binding when conducting any resentencing,
including a resentencing under Section 3582(c)(2). The U.S. District Court for the
District of Columbia has agreed with this conclusion, and it remains the law in that
jurisdiction. See United States v. Ragland,568 F. Supp. 2d 19, 22-27 (D.D.C.
2008).4
Four other federal courts have agreed withHicks as well. See United
States v. Blakely,No. 3:02-CR-209-K, 2009 WL 174265, at *4-11 (N.D. Tex. Jan.
3As elaboratedsupra at 1, the maximum guidelines sentence Fox could
receive under a binding guideline system for the general offense of aiding and
abetting the possession with intent to distribute a controlled substance, in violation
of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2, would be about one year in prison. Cf.
United States v. Banuelos,322 F.3d 700, 706-07 (9th Cir. 2003) (general offense
constitutes elements in the statute and nothing more). The government, however,
seeks a new sentence under a binding-guideline regime of at least 292 months
based on facts concerning the drug type and quantity allegedly involved in the
offense, Foxs alleged possession of a dangerous weapon, and his alleged
leadership role in the offense. Gvt. Supp. Br. 2, 5.
4The government filed a notice of appeal inRagland, but later moved to
dismiss the appeal. See United States v. Ragland, No. 08-3092, 2008 WL 4826028
(D.C. Cir. Nov. 5, 2008). The D.C. Circuit has since reserved the question, while
treatingHicks as correct for purposes of analyzing a different issue. United States
v. Lafayette,___ F.3d ___, 2009 WL 3574217, at * 3 (D.C. Cir. Nov. 3, 2009).
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23, 2009); United States v. Shelby,No. 95-CR-C9,2008 WL 2622828, at *2 (N.D.
Ill. June 30, 2008); United States v. Barrett,No. 6:98-cr-270-Orl-22KRS, 2008
WL 938926, at *4 & n.4 (M.D. Fla. Apr. 3, 2008); United States v. Forty
Estremera, 498 F. Supp. 2d 468, 471-72 (D.P.R. 2007). To be sure, these four
district court decisions have been abrogated by federal appellate decisions among
the several to disagree withHicks. See Gvt. Supp. Br. 14 (citing cases). But
nothing in any of these federal appellate decisions or in the governments brief
here should cause this Court to abandon its previous holding inthat case.
I. Treating the Federal Sentencing Guidelines as Binding in a Section 3582Proceeding Would Violate the Sixth Amendment.
A. The government acknowledges thatBooker, like any other constitutional
ruling,applies to all initial sentencing[s] that post-date the ruling andto all
resentencing[s] where the original sentence is vacated for error. Gvt. Supp. Br.
16. Indeed, this Court and other federal courts of appeals have made clear that
Bookerapplies in resentencings even when the defendant was sentenced before
Bookerand his sentence was vacated for reasons having nothing at all to do with
that decision. See United States v. LaFromboise, 427 F.3d 680, 684 n.6 (9th Cir.
2005) (need to recalculate offender score); United States v. Stewart, 420 F.3d
1007, 1021-22 (9th Cir. 2005) (same); United States v. Kimbrew, 406 F.3d 1149,
1154 (9th Cir. 2005) (erroneous offense-level enhancement); see also, e.g., Cirilo-
Munoz v. United States, 404 F.3d 527, 533 n.7 (1st Cir. 2005) (noting agreement
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across federal courts that the advisory guidelines regime is to be used after
Booker, even where remands for resentencing were not caused by aBookererror);
United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 n.14 (5th Cir. 2005); United
States v. Doe, 398 F.3d 1254, 1261 n.9 (10th Cir. 2005); United States v.Gleich,
397 F.3d 608, 615 (8th Cir. 2005). It is immaterial to this general principle
whether a defendants original sentence became final and was vacated on habeas
review or was vacated and remanded on direct review. See United States v.
Verporter,196 Fed. Appx 839, 841 (11th Cir. 2006) (Bookerapplies in
resentencing following limited habeas relief); King v. United States, No. CIV A.
2:03-0473, CRIM. 2:02-0041-01, 2006 WL 1867349, at *4 (S.D. W. Va. June 30,
2006) (same); Ferrara v. United States, 384 F. Supp. 2d 384, 435 (D. Mass. 2005)
(same).
In Kimbrew, for example, the district court sentenced the defendant to 60
months under the pre-Booker, mandatory-guidelines system. Thesentence
included an offense-level enhancement for receiving and selling stolen property.
This Court held on appeal that that enhancement was improper and remanded to
the district court for resentencing because it had triggered a guideline range of 51-
63 months, instead of 41-51 months. Kimbrew,406 F.3dat 1154. This Court
explained that on remand, of course, the district court . . . should sentence [the
defendant] in accordance with the Supreme Courts decision [inBooker]. Id.
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It might appear at first blush that defendants who were initially sentenced
beforeBookerbut obtain a resentencing afterBookerfor reasons having nothing to
do with that decision receive a windfall of sorts. But such defendants right to the
benefit ofBookersimply reflects the reality that when a federal court enters a new
judgment, that judgment must avoid violating current law. As the Fourth Circuit
explained in a decision that was not sufficiently remarkable to warrant publication:
It could certainly be said that Butler was fortunate that the district
court twice sentenced him incorrectly, thus continuing his case long
enough forBookerto be decided before his latest sentence wasimposed. But, it is not unusual for temporal happenstance to control
whether a criminal defendant receives the benefit of a Supreme Court
decision. And Butler is no less deserving of benefitting from
Bookerthan are any of the other defendants who happened to have
been sentenced afterBookerwas decided. The fact is that when
Butler was sentenced,Bookerhad already been decided, and that is all
that matters.
United States v. Butler,139 Fed. Appx 510, 512 (4th Cir. 2005).
That is all that matters here as well. When the district court decided to grant
Fox a resentencing, the resentencing it was required to conduct was in all relevant
respects identical to any other resentencing. In a Section 3582 resentencing, just as
in any other resentencing in which a defendants original offense level has been
shown to be erroneous, the district court recalculates a new offense level using the
current version of the guidelines. See U.S.S.G 1B1.10(b)(1). In a Section 3582
resentencing, just as in any other resentencing proceeding, the court must consider
the factors listed in 18 U.S.C. 3553(a), as well as the defendants post-sentencing
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conduct and various public safety factors, in crafting a new sentence. U.S.S.G.
1B1.10 cmt n.1(B)(i)-(iii). And as even the government acknowledges, in a
Section 3582 proceeding, just as in any other resentencing proceeding, the court
imposes a new sentence in place of the old one. Gvt. Supp. Br. 19.
To be sure, courts conducting a Section 3582 resentencing may not adjust
any guideline applications besides those affected by the retroactive amendment(s)
at issue. U.S.S.G. 1B1.10(b)(1). But that, once again, is no different than other
resentencings, such as the ones this Court ordered in Kimbrew, 406 F.3d at 1149,
andStewart, 420 F.3d at 1007, in which previous guideline calculations (as well as
any other findings or conclusions of law) that are not found invalid on appeal
become the law of the case. See United States v. Thomas, 572 F.3d 945, 948-50
(D.C. Cir. 2009) (invoking law-of-the-case doctrine to foreclose challenge to
determination in original sentencing that was not disturbed on appeal); United
States v. Carr, 557 F.3d 93, 102 (2d Cir. 2009) (same); United States v. Iacullo,
316 Fed. Appx 858, 859-60 (11th Cir. 2008) (same); United States v. Kirby, 282
Fed. Appx 376, 380 (6th Cir. 2008) (same).
The only way, therefore, in which a Section 3582 proceeding differs from
any other resentencing proceeding in the post-Bookerera is that the Sentencing
Commission forbids a judge in a Section 3582 proceeding from imposing a
sentence that is lower than the minimum of the currently applicable guideline
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range. U.S.S.G. 1B1.10(b)(2)(A). But that does not mean thatBookerdoes not
apply; it means that the Commissions policy statement violates the Sixth
Amendment. It requires courts, contrary to the Supreme Courts holding in
Booker, to treat the guidelines as binding and to sentence defendants such as Fox in
a mandatory-guidelines system to longer terms than would permissible solely on
the facts necessarily encompassed by the crimes of conviction. Accordingly, as
this Court stated inHicks, that policy statement must give way. 472 F.3d at
1173.
B. None of the governments reasons for refusing to follow this
straightforward Sixth Amendment analysis withstands scrutiny.
1. Quoting the Guidelines Manual and echoing the federal courts of appeals
that have rejectedHicks, the government argues that Section 3582 proceedings,
unlike other resentencings, do not constitute a full resentencing of the defendant.
Gvt. Supp. Br. 11 (quoting U.S.S.G. 1B1.10(a)(3)); see also Gvt. Supp. Br. 19-
20. To the extent the government is using the term full resentencing in the sense
that this Court used it in United States v. Bernardo Sanchez, 569 F.3d 995, 998
(9th Cir. 2009) namely, as meaning that the district court must consider the
Section 3553(a) factors as well as other post-sentence developments the
government is plainly wrong. That, as just explained, is exactly what the
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Sentencing Commissions policy statements require district courts to do in Section
3582 proceedings. See U.S.S.G. 1B1.10 cmt. n.1(B)(i)-(iii).
To the extent the government means something different perhaps pointing
out that Section 3582 resentencings do not require district courts to start over from
scratch this Court correctly perceived inHicks that this argument rests on a
false . . . dichotomy. 472 F.3d at 1171; accord Ragland,568 F. Supp. 2d at 27
(this can only be viewed as a semantic argument);Blakely,2009 WL 174265, at
*5, 8 (The Ninth Circuit effectively dealt with this argument by explaining that it
rested on a false . . . dichotomy). For the reasons explained above, there is no
practical, functional, or legal difference between a Section 3582 proceeding and
any other resentencing in which a district court reopens a previous judgment to
alter one guideline calculation. See supra at 14-15.
Nevertheless, because the not a full resentencing argument is so
fundamental to the governments position, it is worth setting forth the
governments substantive argument on this point in its entirety. The government
asserts that other courts of appeals have recognized that:
Unlike in a full sentencing proceeding, Section 3582(c)(2), at most,
authorizes the district court to substitute the amended Guidelinesprovision for the original one, but requires the court to leave all other
Guidelines determinations intact. And, although the substitution of
the amended [Guideline] may result in a revised Guidelines range, the
district court is not free to sentence above that range, as it could
(within constitutional limits) in a full resentencing.
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Gvt. Supp. Br. 20.
Neither of these alleged differences withstands analysis. The first alleged
difference that a district court in a Section 3582 proceeding is limited to altering
one component of the defendants original guidelines calculation is, as should
now be plain, actually not a difference at all. As explained above, it is
commonplace for a district court conducting an ordinary resentencing to have
authority only to alter one guidelines calculation. See supra at 14-15. Yet this
Court and others uniformly hold thatBookerapplies to such resentencings, even if
Bookerdid not exist when the original sentence was imposed. See supra at 12-13.
The second alleged difference that a district court in a Section 3582
proceeding may not impose a new sentence above the current guidelines range is
irrelevant because it deals solely with the length of sentence a district court may
impose, not with the question whether a Section 3582 proceeding is procedurally
any different than any other resentencing. Besides, there is nothing in the Sixth
Amendment or any other provision of the Constitution that precludes a court from
showing mercy, or that requires sentencing laws to make upward enhancements
from guidelines ranges as available as downward variations. See Apprendi v. New
Jersey, 530 U.S. 466, 491 n.16 (2000). But the Sixth Amendment does preclude
sentencing laws from requiring a court to impose a sentence that is longer than
would be permissible based on the offense of conviction alone. See id. at 490;
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Booker, 543 U.S. at 244. That is what the policy statement requiring courts to treat
amended guidelines ranges as binding in Section 3582 proceedings does, and that
is why it is unconstitutional.
Reduced to its essence, therefore, the governments position just like the
holdings of the courts that have rejectedHicks amounts to nothing more than
labeling: The Guidelines Manual says that resentencings under Section 3582 do not
constitute full resentencings; ergo, such resentencings are not the same as other
resentencings. But if there is one thing that the Supreme CourtsApprendi,
Blakely,andBookerjurisprudence teaches, it is that when the right to jury trial is at
issue, label[s] do not control; actual realities do. Apprendi, 530 U.S. at 476, 494.
The dispositive question in this area of law, in other words, is one not of form,
but of effect. Ring v. Arizona, 536 U.S. 584, 602 (2002) (quotingApprendi, 530
U.S. at 494). Because the substantive operation and effect of a Section 3582
proceeding is in all relevant respects the same as any other resentencing in the
post-Bookerera,Bookermust be applied in Section 3582 proceedings as well.
2. The government also argues thatBookerdoes not apply to Section 3582
proceedings because such proceedings can only decrease not increase the
defendants sentence. Gvt. Supp. Br. 14. That argument misses the forest for the
trees. While a Section 3582 proceeding, just like any other resentencing, can result
in a new sentence that reduces an offenders term of imprisonment compared to the
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term he originally received, this does not save the new sentence from Sixth
Amendment scrutiny when, as here, the resentencing court continues to treat the
guidelines as binding and imposes a sentence that is longerthan would otherwise
be allowed based solely on the elements of the crimes of conviction. That is, once
it is clear that a Section 3582 proceeding imposes a new sentence, it necessarily
follows that a district court cannot treat the guidelines as binding and use a
defendants previous, unconstitutional sentence as a baseline for a new sentence.
See Lafayette,___ F.3d ___, 2009 WL 3574217, at * 3 ([I]fHicks is correct, it is
because a section 3582(c)(2) sentence reduction requires a new Guidelines
calculation, and it is that calculation . . . that raises aBookerproblem.).
3. The government next suggests thatBookers holding does not apply
because district courts are never required to reduce a sentence at all. Gvt. Supp.
Br. 17. It is true that courts need not initiate Section 3582 proceedings, just as the
Sentencing Commission need not deem any particular amendment to the guidelines
retroactive or any particular defendant eligible for a Section 3582 resentencing.
(For these reasons, nothing in the Sixth Amendment forbids courts from giving
binding effect to the Sentencing Commissions policy statements respecting
eligibility for Section 3582 resentencings. See United States v. Wesson,583 F.3d
728 (9th Cir. 2009) (giving binding effect to policy statement rendering career
offenders ineligible for Section 3582 resentencings); United States v. Sipai,582
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F.3d 994, 995-96 (9th Cir. 2009) (giving binding effect to policy statement
rendering individuals who initially received below-guidelines sentences inBooker-
compliant sentencings ineligible for Section 3582 resentencings); United States v.
Leniear,574 F.3d 668, 674 (9th Cir. 2009) (giving binding effect to policy
statements rendering individuals whose sentencing ranges are not altered by crack
amendments ineligible for Section 3582 relief)). But once a district court decides
to grant a defendants motion for a Section 3582 resentencing and commences with
such a resentencing, the Court must comply with constitutional requirements
includingBooker during that resentencing.
4. Finally, the government asserts that Fox is required to explain why
Congress, in providing some relief to defendants serving otherwise final sentences,
is constitutionally precluded from limiting that relief. Gvt. Supp. Br. 16. The
answer is simple: When Congress (or, as here, the Sentencing Commission) acts, it
must act consistent with the Constitution. Accordingly, the Supreme Court has
ruled in countless contexts that Congress cannot deny persons constitutional
protections simply because it confers a proceeding as an act of grace. Gagnon v.
Scarpelli, 411 U.S. 778, 782 n.4 (1973); see alsoEvitts v. Lucey, 469 U.S. 387, 401
(1985) (when Congress provides a means for challenging criminal convictions that
it need not provide, Congress must nonetheless act in accord with the dictates of
the Constitution); Graham v. Richardson, 403 U.S. 365, 374 (1971) ([T]his
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Court now has rejected the concept that constitutional rights turn upon whether a
governmental benefit is characterized as a right or as a privilege.). The
Sentencing Commission, therefore, may no more limit the relief district courts may
provide in resentencings under Section 3582 in a manner inconsistent with the
Sixth Amendment than it could limit the class of people eligible for such
reductions to white people or women. Once Congress and the Sentencing
Commission decide to allow certain judgments to be vacated and to allow
resentencings, the government loses any ability to claim that some interest in
finality trumps the Constitution. United States v. Caraballo, 552 F.3d 6, 9 (1st Cir.
2008).
Any holding to the contrary would raise serious separation of powers
concerns. Building on the basic tenets ofMarbury v. Madison, 5 U.S. (1 Cranch)
137, 147 (1803), Supreme Court Justices have made clear that Congress may not
confer jurisdiction on a federal court and then direct that it be exercised in a
manner inconsistent with constitutional requirements or, what in some instances
may be the same thing, without regard to them. Yakus v. United States, 321 U.S.
414, 468 (1944) (Rutledge, J., dissenting), cited with approval in United States v.
Sioux Nation,448 U.S. 371, 392 (1980). [W]henever the judicial power is called
into play, it is responsible directly to the fundamental law and no other authority
can intervene to force or authorize the judicial body to disregard it. Yakus, 321
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U.S. at 468 (Rutledge, J., dissenting); see also Bartlett v. Bowen,816 F.2d 695,
707 (D.C. Cir. 1987) (courts must apply all applicable laws in rendering their
decisions (emphasis added)).
There is no law more fundamental than the Constitution. Requiringfederal
courts to treat the guidelines as binding because the Sentencing Commission has
forbidden courts from applying the Sixth Amendment in the context of imposing
new sentences would thus infringe on the courts duty to faithfully apply the
Constitution in resolving cases and controversies.5
II. Treating the Federal Sentencing Guidelines as Binding in a Section 3582Proceeding Would Violate Bookers Remedial, Statutory Holding.
TheBookerdecision includes not just a constitutional ruling but also a new
construction of the Sentencing Reform Act for all cases going forward. AsHicks
correctly observed, U.S.S.G. 1B1.10 improperly attempts to resurrect the binding
guidelines scheme thatBookerexcised from the Sentencing Reform Act by
forbidding district courts from imposing sentences below amended guidelines
ranges. Hicks, 472 F.3d at 1173. And to the extent there is doubt on this score, the
5Of course, this Court could remedy or even avoid this constitutional
issue, as well as the Sixth Amendment problem with treating the guidelines as
binding in 3582 resentencings, by construing the policy statement in U.S.S.G. 1B1.10(b)(2)(A) as advisory that is, as recommending, but not requiring, that
district courts impose new sentences no lower than the minimum of amended
guideline ranges when imposing new sentences under Section 3582. See, e.g.,
Northwest Austin Mun. Dist. No. One v. Holder,129 S. Ct. 2504, 2508, 2513
(2009) (constitutional avoidance canon). That is how the district court treated the
policy statement here. ER 7-8.
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rule of lenity requires that doubt to be resolved in favor of Fox. See United States
v. Pedrazza,550 F.3d 1218, 1222 (10th Cir. 2008) (McKay, J., dissenting) ([I]t
cannot be argued that the statute and implementing guidelines applicable at the
time this defendant was sentencedunambiguously barred the district court from
varying below the guidelines in the resentencing proceeding. I would thus apply
the rule of lenity to this statutory scheme.).6
A. InBooker, the government urged the Supreme Court to render the
guidelines advisory in some cases and to leave them binding in others. Booker,
543 U.S. at 265-67. The Court rejected that argument, holding that binding
guidelines are no longer an open choice. Id. at 263. What is more, the Supreme
Court has specifically reaffirmed that holding twice with respect to crack offense
guidelines, making clear that the guidelines are advisory only. Spears v. United
States, 129 S. Ct. 840, 842 (2009) (per curiam) (quoting United States v.
Kimbrough, 128 S. Ct. 558, 564 (2007)). By the same token, although the
Supreme Court held in 1993 that policy statements were binding, Williams v.
United States,503 U.S. 193 (1993), this holding obviously does not survive
Booker. Now that the guidelines themselves are advisory only, it necessarily
6The rule of lenity applies to sentencing as well as substantive provisions
of criminal law. United States v. Batchelder,442 U.S. 114, 121 (1979); see also
United States v. R.L.C.,503 U.S. 291, 307-09 (1992) (Scalia, J., concurring)
(applying lenity to resolve sentencing dispute involving the guidelines).
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follows that the same is true of policy statements concerning the length of a
sentence a defendant should receive.
In light of the reality that the guidelines and attendant policy statements
concerning the length of a sentence a defendant should receive are no longer
mandatory in any context,Hicks, 472 F.3d at 1173, the instruction in U.S.S.G.
1B1.10(b)(2)(A) to treat amended guidelines ranges as binding in Section 3582
proceedings must itself be treated as advisory. As Judge Bye has put it, 1B1.10
cannot restrict a resentencing courts discretion to sentence outside of the amended
guidelines range because it is, like all of the guidelines [establishing sentencing
ranges], advisory underUnited States v. Booker. United States v. Harris, 556
F.3d 887, 889 (8th Cir. 2009) (Bye, J., concurring).
Any other result would render U.S.S.G. 1B1.10(b)(2)(A) invalid on its
face. As the Supreme Court has made clear, directions in the Guidelines Manual
are valid only insofar as they are consistent with federal statutory law. Stinson v.
United States,508 U.S. 36, 38 (1993). And the Sentencing Reform Act, as
modified byBookers remedial holding, prohibits guidelines sentencing ranges
from being treated as mandatory. Accordingly, to the extent there is an
unavoidable conflict between the Act as modified and U.S.S.G. 1B1.10, the latter
must fall. [T]he Sentencing Commission cannot abrogate federal law. Ragland,
568 F. Supp. 2d at 23-24.
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B. The government protests that there is no need to applyBookers remedial
holding in Section 3582 proceedings becauseBookers concerns about a mixed
mandatory-advisory guidelines system do not apply to such proceedings. Gvt.
Supp. Br. 18. Each of the governments arguments in this respect lacks merit.
1. The government asserts that becauseBookersevered only 18 U.S.C.
3553(b) and 3742, and not Section 3582,Bookercannot have any impact on
proceedings arising under Section 3582. Gvt. Supp. Br. 16-17. This conclusion
ignores the fact that Section 3582 was not at issue inBooker. Even if it had been,
the Supreme Court would not necessarily have had to sever any of it. Section 3582
(just like 28 U.S.C. 994(u)) compels constitutional violations only when
combined with the directives in U.S.S.G. 1B1.10 to treat the guidelines as
binding. And the language in U.S.S.G. 1B1.10 rendering the guidelines binding
the court shall not reduce the defendants term of imprisonment . . . to a term that
is less than the minimum of the amended guideline range was not promulgated
until afterBookerwas decided. U.S.S.G. 1B1.10(b)(2)(A) (emphasis added).7
7 In January 2005, whenBookerwas decided, the applicable policystatement read only: In determining whether and to what extent a reduction in the
term of imprisonment is warranted for a defendant eligible for consideration under
18 U.S.C. 3582(c)(2), the court shouldconsiderthe term of imprisonment that it
would have imposed had the amendment(s) to the guidelines listed in subsection
(c) been in effect at the time the defendant was sentenced. U.S.S.G. 1B1.10(b)
(2004) (emphasis added).
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2. CitingBookers conclusion that Congress would not have wanted a
system of one-way levers that circumscribes judges ability to depart in one
direction while leaving their departure discretion unfettered in the other direction,
see Booker, 543 U.S. at 257-58, the government argues that since Congress
plainly did intend Section 3582 to be a one-way lever,Bookers rationale must
not apply in this context. Gvt. Supp. Br. 18.
That argument turnsBookeron its head. The Supreme Court rejected the
one-way lever scenario inBookerin order to require courts always to treat the
guidelines as advisory, not to allow for exceptions. The inescapable conclusion is
that courts must treat the guidelines in Section 3582 proceedings as advisory as
well.
3. The government argues that the Sentencing Reform Act allows the
guidelines to be binding in Section 3582 resentencings because a requirement that
full resentencings be conducted whenever a guideline is retroactive which in
many cases occurs years after the original sentencing hearing would create major
administrative complexities by vastly expanding the intended scope of a sentencing
reduction proceeding under Section 3582(c)(2). Gvt. Supp. Br. 19. This
argument founders on several levels.
First,Hicks did not hold and there would be no reason to hold here that
district courts must conductBooker-compliant resentencings whenever a
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guideline is made retroactive. Gvt. Supp. Br. 19. Rather, all Fox asks is that this
Court reaffirmHickss holding that district courts must conductBooker-compliant
resentencings when (i) an individual to whom a retroactive guideline applies
qualifies under the Sentencing Commissions own policy statements for
resentencing; and (ii) district courts decide to exercise their discretion to conduct a
resentencing, see 18 U.S.C. 3582(c)(2).
Second, conducting aBooker-complaint sentencing hearing does not take
any more time or resources than conducting the type of hearing the government
desires. In fact, the Sentencing Commission already requires district courts to do
everything in Section 3582 proceedings that they do in any other resentencing. See
supra at 14-16. The only difference is that the Sentencing Commission limits the
amount that a district court may vary downward from the applicable guidelines
range based on the factors listed in 18 U.S.C. 3553(a). Giving district courts the
full discretion they enjoy in that respect underBookerdoes not create a single
administrative difficulty.
Third,Bookers remedial holding is explicitly premised on the assumption
that a uniformly advisory guidelines system will prove more administrable for
lower courts. Booker,543 U.S. at 266-68. Indeed,Bookersquarely rejected the
governments argument that it should limit its remedial holding to situations where
advisory guidelines would be especially convenient, explaining that such a two-
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system proposal seems unlikely to further Congress basic objective of promoting
uniformity in sentencing.Id. at 267. Such is the case here.
4. Finally, relying on the fact thatBookerandApprendi are not generally
retroactive, the government argues that there is no reason why the subset of
defendants whose sentences are opened for the limited purpose of applying a
retroactive amendment to the crack guidelines should be excepted from [that]
rule. Gvt. Supp. Br. at 22. However, the reason is in fact quite straightforward:
these defendants resentencings occur post-Booker. These defendants thus receive
the benefit ofBookerby virtue of the normal application of resentencing
procedures, under which whenever someone receives a new sentence, that sentence
must comply with current law. See Ragland,568 F. Supp. 2d at 26-27; supra at
14-16; cf. United States v. Fiorillo, No. CR-94-427-JLQ, 04-CV-729-JLQ, 2006
WL 2844564, at *14 (N.D. Cal. Oct. 2, 2006) (district court properly applied
Bookerat resentencing of defendant who had been originally sentenced before
Booker,even though his co-defendant could not obtain the benefit ofBooker
because his original sentence was never vacated and replaced with a new one).
It is worth emphasizing in closing that the supposed anomaly of carving out
a subset of crack cocaine offenders for resentencing post-Bookerarises
exclusively from the Sentencing Commissions own decision to make its new
crack cocaine guidelines retroactive. That being so, the real anomaly would be to
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sentence someone today under a system that the Supreme Court declared
unconstitutional more than [four] years ago,Ragland,568 F. Supp. 2d at 26-27,
especially when the Sentencing Commission has opened the door to resentencing
because the defendants original sentence was not just unconstitutional but also
substantively unfair.8
III. Wholly Apart From Booker Considerations, the Policy StatementRequiring Courts To Impose New Sentences in Section 3582
Proceedings Within Guidelines Ranges Is Invalid Because Its
Promulgation Violated the Sentencing Reform Acts Administrative
Lawmaking Requirements.
Even if the Sentencing Commission had the power to require courts to
impose new sentences in Section 3582 proceedings within revised guidelines
ranges, courts could still not enforce Section 1B1.10(b)(2)(A), for a reason that
other circuits to address that policy statement thus far have overlooked and that this
Court did not need to reach inHicks:Section 1B1.10(b)(2)(A) contravenes the
Sentencing Reform Acts administrative requirements for amending the Guidelines
Manual. Specifically, the SRA requires the Sentencing Commission to provide
8Before being elevated to the Second Circuit, Judge Lynch similarly
observed that it would be, to say no more, ironic if the relief available to a
defendant who received a sentence that is now recognized to have beenunconstitutional because imposed under mandatory guidelines based on non-jury
fact findings and unwise because the guideline under which he was sentences was
excessively severe, can be limited by a still-mandatory guideline. United States v.
PolancoNo. 02 Cr. 442-02(GEL), 2008 WL 144825, at *2 (S.D.N.Y. Jan. 15,
2008).
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proper notice and seek comments before promulgating substantive rules that
function as guidelines. The Commission failed to do so here.9
1. The SRA provides that the Sentencing Commission may issue two kinds
of guidance. First, the Commission promulgates guidelines for courts to use in
determining the sentence to be imposed in a criminal case, including the
appropriate length of . . . a term of imprisonment. 28 U.S.C. 994(a)(1)(B).
Second, the Commission promulgates policy statements to guide courts in
apply[ing] the guidelines or implement[ing] sentences in other ways. Id.
994(a)(2). [G]uidelines are the equivalent of legislative rules adopted by federal
agencies, Stinson, 508 U.S. 36 at 45, whereas policy statements are limited to
interpreting and explaining how to apply the Guidelines, Williams,503 U.S. at
212 (White, J., dissenting); see also id. at 200 (majority agreeing with this
distinction); S. Rep. No. 98-225, at 167-68 (1984), reprinted in 1984 U.S.C.C.A.N.
3182, 3350-3351 (noting that policy statements may be more general in nature
than the Guidelines and that courts should merely consult[] policy statements in
calculating appropriate sentences).
9Even though the district court did not base its decision on this legal theory,
this Court can affirm on any ground supported by the record. Sec. Life Ins. Co.
v. Meyling,146 F.3d 1184, 1190 (9th Cir. 1998). That maxim applies here because
the argument is a pure legal issue that depends only on reviewing the
Commissions public notices and promulgations.
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Because guidelines make substantive law, and policy statements merely
provide guidance respecting the meaning of [an] applicable Guideline, Williams,
503 U.S. at 201, the two kinds of enactments are subject to very different
procedural checks. Unlikeguidelines, the Commission need not review and revise
policy statements based on its ongoing consultations with federal criminal justice
experts and the public comments and empirical data constantly coming to the
Commissions attention. 28 U.S.C. 994(o). Nor, unlike guidelines, does the
Commission need to submit policy statementsto Congress with a statement of
reasons for promulgating them, under the understanding that the promulgations
will become law unless Congress disapproves them. Id. 994(p). And, most
pertinent here, the Commission must follow the procedures in 5 U.S.C. 553 of
the Administrative Procedures Act that pertain to agency rulemaking, including the
requirements of providing proper notice and seeking public comment, before any
guideline takes effect. 28 U.S.C. 994(x). Policy statements, however, are not
subject to these notice-and-comment procedures. See, e.g., United States v. Piper,
35 F.3d 611, 619 (1st Cir. 1994); U.S. Sentg Commn, Rules of Practice and
Procedure, 62 Fed. Reg. 38598 (July 18, 1997) (The Commission may promulgate
commentary and policy statements, and amendments thereto, without regard to the
provisions of 28 U.S.C. 994(x).).
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Fidelity to these administrative requirements demands strict adherence to the
dichotomy between guidelines and policy statements. If the Commission were
allowed to issue policy statements that served the function of guidelines without
following administrative lawmaking requirements, it could evade the procedural
safeguards that Congress has built into the federal guidelines system. What is
more, allowing the Commission to evade these protections merely by labeling new,
freestanding, substantive law as policy statements would raise serious
separation-of-powers problems, for it would permit the Sentencing Commission to
create new law, and even overrule court decisions, without any democratic process
or oversight whatsoever. See, e.g., United States v. Handy,570 F. Supp. 2d 437,
467-68 (E.D.N.Y. 2008) (collecting scholarly writings to this effect).
Therefore, as in other areas of administrative law where promulgating
legislative rules requires complying with greater procedural burdens than
promulgating interpretive rules, courts reviewing the legitimacy of the policy
statements cannot simply accept the Commissions labeling of a provision as such.
If a provision serves thefunction of a guideline that is, if it imposes freestanding
requirements that determin[e] the sentence to be imposed in a criminal case, 28
U.S.C. 994(a)(1) it must be treated as such and subjected to the procedural
requirements for promulgating guidelines. See Piper,35 F.3d at 619 (upholding
application note promulgated without notice or comment because the statement
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was nothing more than an interpretive aid); compare United States v. Morgan,
376 F.3d 1002, 1012 (9th Cir. 2004) (explaining that this Court can reject the
Commissions label altogether if it characterizes a substantive change to the
guidelines as a mere clarification and discussing another case, United States v.
Washington,66 F.3d 1101, 1103-04 (9th Cir. 1995), doing just that); Gunderson v.
Hood,268 F.3d 1149, 1154 n.27 (9th Cir. 2001) (Program statements are
supposed to be interpretive, but that does not mean that they always are. The label
an agency attaches to its pronouncement is clearly not dispositive.); Pickus v. U.S.
Bd. of Parole,507 F.2d 1107, 1112 (D.C. Cir. 1974) (citing decisions from
[s]everal courts to the same effect). If the Commission promulgates a policy
statement that actually functions as a guideline without providing proper notice
and affording an opportunity to comment, the policy statement is invalid, even if it
could have been adopted according to the procedures for promulgating a guideline.
See, e.g., Paulsen v. Daniels,413 F.3d 999 (9th Cir. 2005) (violation of APAs
notice-and-comment provisions rendered Bureau of Prison rule invalid).10
10Neither 28 U.S.C. 994(u) nor 18 U.S.C. 3582(c)(2) gives the
Commission any more leeway to promulgate substantive rules in the form of
policy statements than is otherwise allowed. Section 994(u) provides that theCommission . . . shall specify in what circumstances and by what amount the
sentences of prisoners serving terms of imprisonment [for offenses whose
guidelines ranges have been reduced] may be reduced. This section gives the
Commission the power to decide to what extent its amendments reducing
sentences will be given retroactive effect. Braxton v. United States, 500 U.S. 344,
348 (1991). But nothing in this section suggests that the Commission may issue
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2. Despite the Sentencing Commissions labeling Section 1B1.10(b)(2)(A)
as a policy statement, it is properly viewed as a guideline. It involves neither
apply[ing] the guidelines nor implement[ing] sentences in any other way. 28
U.S.C. 994(a)(2); compare Williams,503 U.S. at 201 (enforcing policy statement
that was an authoritative guide to the meaning of the applicable Guideline).
(Indeed, neither the Commission in its enactment nor the government in its brief
even attempts to tie Section 1B1.10(b)(2)(A) to any guideline.) Instead, Section
1B1.10(b)(2)(A) purports to do just what a guideline does: advise a court regarding
the appropriate length of . . . a term of imprisonment. 28 U.S.C. 994(a)(1)(B).
Section 1B1.10(b)(2)(A) therefore must be considered a guideline and scrutinized
for compliance with the administrative procedural requirements dictated in 28
U.S.C. 994(x).
Indeed, the Sentencing Commission apparently recognized as much when
internally considering the idea that became Section 1B1.10(b)(2)(A). Although the
Commission rarely issues notices or holds hearings in conjunction with potential
policy statements where guidelines would be the appropriate mechanism for
rendering such decisions. For its part, Section 3582(c)(2) provides that courts may
reduce terms of imprisonment if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission. Once again, nothing inthat section suggests that policy statements can do the work of guidelines. Rather,
the Commission has the power under Section 994(u) to issue legitimate policy
statements, and the text of Section 3582(c) simply contemplates that the
Commission may also issue policy statements concerning which new guidelines
are retroactive and how to interpret any guidelines regulating Section 3582
proceedings.
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amendments to Section 1B1.10, it did so here. In 2007, after it amended the crack
guidelines, the Commission published a request for comment regarding whether
that amendment should be included in subsection (c) of 1B1.10 as [an
amendment] that may be applied retroactively to previously sentenced defendants.
72 Fed. Reg. 41,794-95 (July 31, 2007). The Commission also requested comment
regarding whether, if it amend[ed] 1B1.10(c) to include [the crack]
amendment[], it should also amend 1B1.10(c) to provide guidance to the courts
on the procedure to be usedwhen applying an amendment retroactively under 18
U.S.C. 3582(c)(2). Id.
3. Although the Sentencing Commission provided a notice before amending
Section 1B1.10 to require courts to treat the guidelines as binding in Section 3582
resentencings, its actions violated the notice-and-comment requirements dictated in
Section 994(x) and, by incorporation, 5 U.S.C. 553. Those requirements
demand, among other things, that the Commission provide notice of a proposed
new guideline either the terms or substance of the proposed rule or a description
of the subjects and issues involved. 5 U.S.C. 553(b)(3). Under this statutory
provision, the final rule the agency adopts must be a logical outgrowth of the rule
proposed. Long Island Care at Home, Ltd. v. Coke,551 U.S. 158, 174 (2007)
(internal citations and quotation marks omitted); accord Natural Res. Def. Council
v. EPA,279 F.3d 1180, 1186 (9th Cir. 2002). In particular:
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[I]f the final rule deviates too sharply from the proposal, affected
parties will be deprived of notice and an opportunity to respond to the
proposal. . . . The test that has been set forth is whether the agencys
notice would fairly apprise interested persons of the subjects and
issues [of the rulemaking].
Natl Black Media Coal. v. FCC,791 F.2d 1016, 1022 (2d Cir. 1986) (internal
citations and quotation marks omitted), cited with approval in Long Island Care,
551 U.S. at 174. The object, in short, is one of fair notice. Long Island Care,
551 U.S. at 174.
The Commission here failed to provide any fair notice that it was
considering rendering the guidelines binding in Section 3582(c)(2) proceedings.
The notice the Commission issued stated simply that it was considering
amend[ing] 1B1.10(c) to provide guidance to the courts on the procedure to be
usedwhen applying an amendment retroactively under 18 U.S.C. 3582(c)(2).
72 Fed. Reg. at 41,795 (emphasis added). The Commission did not issue any
proposed language amending that policy statement. Yet after holding its public
hearing on that general subject, the Commission promulgated Section
1B1.10(b)(2)(A), which changed the Commissions policy statement concerning
Section 3582 resentencings to make the guidelines binding. The Commission
declared that this change was necessary to explain when and to what extent a
sentence reduction under Section 3582 would be legitimate. U.S.S.G. app. C,
Amend. Nos. 712, 713 (effective March 3, 2008).
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As the Commissions own words indicate, Section 1B1.10(b)(2)(A) does not
relate in any way to the procedure to be usedwhen applying an amendment
retroactively under 18 U.S.C. 3582(c)(2). Procedur[al] matters the
Commission might have addressed could have been things such as when or how
motions for resentencing should be filed, how district courts should conduct
hearings on such motions, or how district courts should document findings they
make. Section 1B1.10(b)(2)(A) does not regulate any of those things. Rather, the
directive forbidding district courts from imposing new sentences below the bottom
of amended guideline ranges is pure substance; it regulates the length of sentences
that district courts may impose. See Miller v. Florida, 482 U.S. 423, 434 (1987)
(amendment to sentencing guidelines pertaining to permissible length of sentence
is substantive in nature: Although the distinction between substance and
procedure may sometimes prove elusive, here the change at issue appears to have
little about it that could be deemed procedural). As such, the Commissions
promulgation deviated dramatically from the Commissions published notice and
did not afford interested parties a fair opportunity to comment on the issue.
Natural Res. Def. Council,279 F.3d at 1186-88 (invalidating rule because the
public was never notified that [the agency] was proposing to redefine the allowable
zone of deposit, nor was the public afforded the opportunity to comment on the
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proposed change). It also deprived Congress of the ability to reject the
Commissions new rule before it became law.
4. The remedy when an agency has promulgated a rule in violation of APA
requirements is to reinstate the rule previously in force. Paulsen, 413 F.3d at
1008. Before the Commission promulgated Section 1B1.10(b)(2)(A), the policy
statement in Section 1B1.10 provided simply that a court imposing a new sentence
in a Section 3582 proceeding should considerthe term of imprisonment that it
would have imposed had the amendment(s) to the guidelines listed in subsection
(c) been in effect at the time the defendant was sentenced. U.S.S.G. 1B1.10(b)
(2004) (emphasis added). This policy statement required courts to consult the
guidelines, but it did not require courts to follow them. Gvt. Opening Br. 6 n.2.
Here, the district court considered that term, and concluded that it was excessive.
ER 7. That determination was legitimate under the prior version of the rule and
should therefore be upheld.
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40
CONCLUSION
For the foregoing reasons, this Court should affirm the judgment of the
district court.
Respectfully submitted this 9th
day of November, 2009.
s/ Jeffrey L. Fisher
Kevin F. McCoy Jeffrey L. Fisher
Assistant Federal Defender Pamela S. Karlan
601 W. Fifth Avenue, Suite 800 Stanford Law School SupremeAnchorage, AK 99501 Court Litigation Clinic
(907) 646-3400 559 Nathan Abbot Way
Stanford, CA 94305
(650) 724-7081
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CERTIFICATE OF COMPLIANCE
I certify that pursuant to this Courts Order dated September, 29, 2009, the
foregoing supplemental brief is proportionately spaced in Times New Roman 14-
point type, and contains 8593 words.
By s/Jeffrey L. Fisher
Jeffrey L. Fisher
Attorney for Appellee
November 9, 2009
41
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CERTIFICATE OF SERVICE
I hereby certify that on November 9, 2009, I electronically filed the
foregoing with the Clerk for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
s/ Jeffrey L. Fisher
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