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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 Assistant Federal Defender 601 W. Fifth Avenue, Suite 800 Anchorage, AK 99501 (907) 646-3400

Jeffrey L. Fisher Pamela S. Karlan Stanford Law School Supreme Court Litigation Clinic 559 Nathan Abbot Way Stanford, CA 94305 (650) 724-7081

Attorneys for Appellee

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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii STATEMENT OF THE CASE ..................................................................................1 SUMMARY OF ARGUMENT .................................................................................8 ARGUMENT ...........................................................................................................10 I.Treating the Federal Sentencing Guidelines as Binding in a Section 3582 Proceeding Would Violate the Sixth Amendment. ................12 II.Treating the Federal Sentencing Guidelines as Binding in a Section 3582 Proceeding Would Violate Bookers Remedial, Statutory Holding. .........................................................................................23 III.Wholly Apart From Booker Considerations, 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. ...........................................................................30 CONCLUSION ........................................................................................................40 CERTIFICATE OF COMPLIANCE .......................................................................41 CERTIFICATE OF SERVICE ................................................................................42

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TABLE OF AUTHORITIES Cases Apprendi 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. Gonzalez-Flores, 418 F.3d 1093 (9th Cir. 2005) ............................2 United States v. Gutierrez-Ramirez, 405 F.3d 352 (5th Cir. 2005) .........................13 United States v. Handy, 570 F. Supp. 2d 437 (E.D.N.Y. 2008) ..............................33 United States v. Harris, 556 F.3d 887 (8th Cir. 2009) ............................................25 United States v. Iacullo, 316 Fed. Appx 858 (11th Cir. 2008)...............................15 United States v. Kimbrew, 406 F.3d 1149 (9th Cir. 2005) ......................... 12, 13, 15 United States v. Kirby, 282 Fed. Appx 376 (6th Cir. 2008) ...................................15 United States v. Lafayette, ___ F.3d ___, 2009 WL 3574217 (D.C. Cir. Nov. 3, 2009) ................................................................................ 11, 20 United States v. LaFromboise, 427 F.3d 680 (9th Cir. 2005) .................................12 United States v. Leniear, 574 F.3d 668 (9th Cir. 2009)...........................................21 United States v. Morgan, 376 F.3d 1002 (9th Cir. 2004) ........................................34 United States v. Pedrazza, 550 F.3d 1218 (10th Cir. 2008) ....................................24 United States v. Piper, 35 F.3d 611 (1st Cir. 1994).......................................... 32, 33 United States v. Polanco, No. 02 Cr. 442-02(GEL), 2008 WL 144825 (S.D.N.Y. Jan. 15, 2008) .........................................................30 United States v. R.L.C., 503 U.S. 291 (1992) ..........................................................24 United States v. Ragland, 568 F. Supp. 2d 19 (D.D.C. 2008) ......................... passim United States v. Ragland, No. 08-3092, 2008 WL 4826028 (D.C. Cir. Nov. 5, 2008) .......................................................................................11 United States v. Shelby, No. 95-CR-C9, 2008 WL 2622828 (N.D. Ill. June 30, 2008) .......................................................................................12

iv

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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 Statutes 5 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 Provisions U.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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Other Authorities 72 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), and United 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. The 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 the government 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
1

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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. In Hicks 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. The Booker Court 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 that Booker abolished 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 of Booker at his resentencing, id. at 1173. After Hicks 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 used when 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 between Booker and 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

The 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 under Booker, 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 in Hicks, 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 in Booker, and contrary to this Courts holding in Hicks, 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 by Booker, 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 after Booker could 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

10

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Fox were being sentenced for the first time today. 3 The government argues, however, that the district court erred in applying Bookers principles to 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 that Booker prohibits 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 with Hicks as well. See United States v. Blakely, No. 3:02-CR-209-K, 2009 WL 174265, at *4-11 (N.D. Tex. Jan. As elaborated supra 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. The government filed a notice of appeal in Ragland, 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 treating Hicks 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). 11
4 3

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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 with Hicks. 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 in that case. I. Treating the Federal Sentencing Guidelines as Binding in a Section 3582 Proceeding Would Violate the Sixth Amendment. A. The government acknowledges that Booker, like any other constitutional ruling, applies to all initial sentencing[s] that post-date the ruling and to 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 Booker applies in resentencings even when the defendant was sentenced before Booker and 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., CiriloMunoz v. United States, 404 F.3d 527, 533 n.7 (1st Cir. 2005) (noting agreement 12

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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 a Booker error); 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) (Booker applies 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. The sentence 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 5163 months, instead of 41-51 months. Kimbrew, 406 F.3d at 1154. This Court explained that on remand, of course, the district court . . . should sentence [the defendant] in accordance with the Supreme Courts decision [in Booker]. Id.

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It might appear at first blush that defendants who were initially sentenced before Booker but obtain a resentencing after Booker for reasons having nothing to do with that decision receive a windfall of sorts. But such defendants right to the benefit of Booker simply 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 for Booker to be decided before his latest sentence was imposed. 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 Booker than are any of the other defendants who happened to have been sentenced after Booker was decided. The fact is that when Butler was sentenced, Booker had 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 14

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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, and Stewart, 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-Booker era 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 that Booker does 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 in Hicks, 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 rejected Hicks, 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. 1920. 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 in Hicks 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 Guidelines provision 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 that Booker applies to such resentencings, even if Booker did 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 rejected Hicks 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 Courts Apprendi, Blakely, and Booker jurisprudence 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) (quoting Apprendi, 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-Booker era, Booker must be applied in Section 3582 proceedings as well. 2. The government also argues that Booker does 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 longer than 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]f Hicks is correct, it is because a section 3582(c)(2) sentence reduction requires a new Guidelines calculation, and it is that calculation . . . that raises a Booker problem.). 3. The government next suggests that Bookers 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 in Bookercompliant 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 including Booker 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 also Evitts 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 of Marbury 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. Requiring federal 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 3582 Proceeding Would Violate Bookers Remedial, Statutory Holding. The Booker decision includes not just a constitutional ruling but also a new construction of the Sentencing Reform Act for all cases going forward. As Hicks correctly observed, U.S.S.G. 1B1.10 improperly attempts to resurrect the binding guidelines scheme that Booker excised 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 Of 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. 23
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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 sentenced unambiguously 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. In Booker, 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

The 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 under United 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 by Bookers 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 apply Bookers remedial holding in Section 3582 proceedings because Bookers 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 because Booker severed only 18 U.S.C. 3553(b) and 3742, and not Section 3582, Booker cannot 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 in Booker. 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 after Booker was decided. U.S.S.G. 1B1.10(b)(2)(A) (emphasis added). 7

In January 2005, when Booker was decided, the applicable policy statement 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 should consider the 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). 26

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2. Citing Bookers 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 turns Booker on its head. The Supreme Court rejected the one-way lever scenario in Booker in 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 conduct Booker-compliant resentencings whenever a

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guideline is made retroactive. Gvt. Supp. Br. 19. Rather, all Fox asks is that this Court reaffirm Hickss holding that district courts must conduct Booker-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 a Booker-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 under Booker does 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, Booker squarely 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 that Booker and Apprendi 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 of Booker by 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 Booker at resentencing of defendant who had been originally sentenced before Booker, even though his co-defendant could not obtain the benefit of Booker 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-Booker arises 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 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. 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 in Hicks: 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

Before 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 been unconstitutional 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. Polanco No. 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).

Even 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. 31

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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. Unlike guidelines, 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 statements to 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 the function 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

Neither 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 the Commission . . . 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 34

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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 in that 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. 35

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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 used when 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 used when 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 used when 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 consider the 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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CONCLUSION For the foregoing reasons, this Court should affirm the judgment of the district court. Respectfully submitted this 9th day of November, 2009.

Kevin F. McCoy Assistant Federal Defender 601 W. Fifth Avenue, Suite 800 Anchorage, AK 99501 (907) 646-3400

s/ Jeffrey L. Fisher Jeffrey L. Fisher Pamela S. Karlan Stanford Law School Supreme Court Litigation Clinic 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 14point 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

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