sentence modification motions. Second, Fox contended that the limitation established by U.S.S.G. § 1B1.10(b)(2)(A) was invalid because the Sentencing Commission promulgated this guideline limitation in violation of the Sentencing Reform Act’sadministrative law making requirements.
Docket No. 62 (Supplemental Brief for Appellee, at 30 - 39).2.
Dillon v. United States, ___
U.S. ____, 2010 WL 2400109(June 17, 2010) addressed and resolved only Fox’s first argument.
has noapplication to Fox’s second argument - that U.S.S.G. § 1B1.10(b)(2)(A) is invalid because it was promulgated in violation of the Sentencing Reform Act’sadministrative law making requirements.3.The remedy when an agency promulgates a rule in violation of theAdministrative Procedures Act is to vacate the current rule and reinstate the earlier rule previously in force.
Docket No. 62 (Supplemental Brief for Appellee, at 39).Since the previous version of Section 1B1.10 was advisory, Mr. Fox’s reduced sentence must be affirmed for this alternative non-
related reason.4.Accordingly, the government’s request for summary reversalshould be denied and the matter referred to a three-judge panel for argument on Fox’salternative basis for affirmance..2
Case: 08-30445 06/21/2010 Page: 2 of 5 ID: 7379374 DktEntry: 81