United States Court of Appeals, District of Columbia Circuit
Argued February 7, 2014.
Appeal from the United States District Court, for the District of Columbia. (No. 1:06-cr-00171-1).
Tony Axam Jr., Assistant Federal Public Defender, argued the cause for appellant. With him on the briefs was A.J. Kramer, Federal Public Defender.
Sarah G. Boyce, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman and Elizabeth Danello, Assistant U.S. Attorneys. SuzAnne C. Nyland, Assistant U.S. Attorney, entered an appearance.
Before: GARLAND, Chief Judge, SRINIVASAN, Circuit Judge, and SILBERMAN, Senior Circuit Judge.
Per Curiam: " [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," Congress has authorized the sentencing court to " reduce the term of imprisonment... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). In January 2009, appellant Carl Taylor was sentenced to 180 months in prison for conspiracy to distribute and possess with intent to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 846. In November 2011, the U.S. Sentencing Commission gave retroactive effect to an amendment to the U.S. Sentencing Guidelines lowering base offense levels for offenses involving crack cocaine. Shortly thereafter, Taylor moved the district court to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).
The district court denied Taylor's motion. It did so on the ground that it was bound by U.S.S.G. § 1B1.10(b)(2)(A), a Sentencing Commission policy statement, which provides that, except in a circumstance not relevant here, " the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2)... to a term that is less than the minimum of the amended guideline range." Because the lower bound of the applicable amended range was 188 months, greater than Taylor's original 180-month sentence, no reduction was available. The district court also rejected Taylor's arguments that § 1B1.10(b)(2) is invalid because it was promulgated without notice and comment as allegedly required by the Sentencing Reform Act of 1984 (SRA), 18 U.S.C. § § 3551 et seq., 28 U.S.C. § § 991 et seq., and because it violated nondelegation and separation of powers principles.
Taylor then filed the instant appeal, raising the same contentions that he advanced in the district court. All seven circuit courts that have considered similar challenges have upheld § 1B1.10 as a lawful exercise of the Sentencing Commission's powers. See generally United States v. Davis, 739 F.3d 1222 (9th Cir. 2014); United States v. Erskine, 717 F.3d 131 (2d Cir. 2013); United States v. Colon, 707 F.3d 1255 (11th Cir. 2013); United States v. Berberena, 694 F.3d 514 (3d Cir. 2012); United States v. Harris, 688 F.3d 950 (8th Cir. 2012); United States v. Anderson, 686 F.3d 585 (8th Cir. 2012); United States v. Horn, 679 F.3d 397 (6th Cir. 2012); United States v. Garcia, 655 F.3d 426 (5th Cir. 2011). We now do the same.
Taylor first argues that § 1B1.10(b)(2)(A) is invalid under the SRA because it is binding on courts and was not promulgated through notice-and-comment procedures. The SRA, however, requires such procedures only for sentencing guidelines. 28 U.S.C. § 994(x). Because the challenged provision is a policy statement, not a guideline, the SRA's notice-and-comment requirement does not apply. See id. Recognizing this problem, Taylor further argues that the Sentencing Commission cannot bind courts in sentence reduction proceedings through a policy statement; a binding pronouncement must be a guideline,
he says, and therefore must go through notice ...