Def Supp Br

7/30/2019 Def Supp Br

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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

Case: 08-30445 11/09/2009 Page: 1 of 50 ID: 7123869 DktEntry: 62


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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

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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

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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

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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

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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

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vii

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

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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.

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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

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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

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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).

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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.

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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

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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


Documents

Def Supp Br