United States v. Dunphy

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 08-6919

GENA MARIE DUNPHY,

Defendant-Appellant.



Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

John Preston Bailey, Chief District Judge.

(3:02-cr-00045-JPB-1)

Argued: October 29, 2008

Decided: January 5, 2009

Before WILKINSON and DUNCAN, Circuit Judges,

and Richard D. BENNETT, United States District Judge for

the District of Maryland, sitting by designation.

Affirmed by published opinion. Judge Duncan wrote the opin-

ion, in which Judge Wilkinson and Judge Bennett concurred.

COUNSEL

ARGUED: Brian Joseph Kornbrath, Federal Public Defender,

Clarksburg, West Virginia, for Appellant. William C. Brown,

UNITED STATES DEPARTMENT OF JUSTICE, Washing-

2 UNITED STATES v. DUNPHY

ton, D.C., for Appellee. ON BRIEF: Sharon L. Potter, United

States Attorney, Wheeling, West Virginia; Paul T. Camilletti,

Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Martinsburg, West Virginia, for

Appellee.

OPINION

DUNCAN, Circuit Judge:

In 2003, Gena Dunphy pleaded guilty to aiding and abet-

ting the possession of crack cocaine with intent to distribute

in violation of 21 U.S.C. § 841(a)(1). She was sentenced to

135 months imprisonment, the minimum sentence under the

Sentencing Guidelines in effect at that time. In 2008, Dunphy

moved the district court for a reduction of her sentence based

on an amendment to the guidelines that effectively lowered

the offense level with respect to offenses involving crack

cocaine.

The district court reduced Dunphy’s sentence to 108

months, the minimum available to her under the amended

guidelines, but declined to grant a further reduction below the

108-month minimum on the ground that it lacked authority to

do so. Dunphy timely appealed. Because the district court

properly interpreted the limits of its authority, we affirm.

I.

Dunphy pleaded guilty in May of 2003 to a single count of

aiding and abetting the possession of crack cocaine with

intent to distribute in violation of 21 U.S.C. § 841(a)(1). At

her sentencing hearing, the district court found, as stipulated

by the parties, that she was responsible for over 150 grams of

crack. Under the guidelines applicable at the time, that drug

quantity produced a base offense level of 34. See U.S.S.G.

UNITED STATES v. DUNPHY 3

§ 2D1.1(c)(3) (2002). Adding two levels for possession of a

firearm, and subtracting three levels for acceptance of respon-

sibility, the district court calculated Dunphy’s total offense

level at 33. With her category I criminal history, Dunphy’s

sentencing range was 135-168 months. The district court sen-

tenced Dunphy at the bottom of that range to a term of 135

months of imprisonment. Dunphy did not appeal.

Several years later, the Sentencing Commission issued

Amendment 706, which altered the drug quantity table set

forth in U.S.S.G. § 2D1.1 to effectively lower the base

offense level for offenses involving crack cocaine by two levels.1

The Commission added Amendment 706 to the list in the

U.S.S.G. § 1B1.10(c) policy statement that designates those

guidelines amendments which may be applied retroactively.2

Based on these amendments, Dunphy moved in the district

court for a reduction of her sentence pursuant to 18 U.S.C.

§ 3582(c)(2), which provides a limited exception to the rule

barring a court from modifying a sentence once it has been

imposed. Applying the amended drug quantity table to the

quantity of crack attributable to Dunphy in 2003, Dunphy’s

base offense level was reduced from 34 to 32. Applying the

two-level firearm enhancement and three-level subtraction for

acceptance of responsibility, Dunphy’s total offense level

became 31. This offense level yields an amended guideline

range of 108-135 months, reduced from the 135-168 months

applicable at her initial sentencing. The district court resen-

tenced Dunphy to 108 months, the bottom of the amended

guideline range.

1

Amendment 706 was further amended in the technical and conforming

amendments set forth in Amendment 711, which also became effective

November 1, 2007. Amendment 706 was incorporated through Amend-

ment 713. Amendment 712, discussed below, concerns separate changes

made to the U.S.S.G. § 1B1.10 policy statement.

2

A guideline amendment may be applied retroactively only when

expressly listed in U.S.S.G. § 1B1.10(c). United States v. McHan, 386

F.3d 620, 622 (4th Cir. 2004).

4 UNITED STATES v. DUNPHY

Dunphy nevertheless requested that the district court grant

a further reduction to a sentence below 108 months. She

acknowledged that with respect to defendants who were origi-

nally sentenced within the guideline range, as she had been,

the language of U.S.S.G. § 1B1.10(b)(2)(A) bars the district

court from reducing the defendant’s sentence to "a term that

is less than the minimum of the amended guideline range."

U.S.S.G. § 1B1.10(b)(2)(A); see also App. Note 3. She

argued, however, that the § 1B1.10(b) mandatory restriction

on the extent of the reduction was invalid for two reasons: (1)

because, as a constitutional matter, United States v. Booker,

543 U.S. 220 (2005), held that the guidelines were advisory

rather than mandatory; and (2) because, as a matter of statu-

tory construction, § 1B1.10(b) was inconsistent with the

requirement that the sentencing court apply the § 3553(a) fac-

tors. See J.A. 73-76.

The district court disagreed. It denied Dunphy’s motion

insofar as she sought a reduction below the minimum

amended guideline range on the ground that it lacked such

authority under § 3582(c)(2). J.A. 84-87. The court observed

that § 3582(c) proscribes the modification of a term of impris-

onment once it has been imposed, except under narrow cir-

cumstances provided in the statute, and permits a reduction

only if "consistent with applicable policy statements issued by

the Sentencing Commission." J.A. 83-85 (quoting

§ 3582(c)(2)). The court further pointed to the directive in 28

U.S.C. § 994(u) that if the Commission reduces a sentencing

range, it must determine the circumstances and the extent of

the reduction. J.A. 84. Citing authority from other circuits as

well, the district court concluded that Booker did not autho-

rize courts to deviate below the level authorized by the Sen-

tencing Guidelines and policy statements in the guidelines.

J.A. 83-86.

This appeal followed.

UNITED STATES v. DUNPHY 5

II.

The district court’s determination that it lacked authority to

reduce Dunphy’s sentence to a term below the amended

guideline range is a question of law that we review de novo.

United State v. Legree, 205 F.3d 724, 727 (4th Cir. 2000).

We begin our analysis with a consideration of the statutes

and guidelines involved. The congressional directive in 28

U.S.C. § 994(u) provides that "[i]f the Commission reduces

the term of imprisonment recommended in the guidelines

applicable to a particular offense or category of offenses, it

shall specify in what circumstances and by what amount the

sentences of prisoners serving terms of imprisonment may be

reduced." § 994(u). As the Supreme Court has explained with

respect to this provision, "Congress has granted the Commis-

sion the unusual explicit power to decide whether and to what

extent its amendments reducing sentences will be given retro-

active effect." Braxton v. United States, 500 U.S. 344, 348

(1991) (citing § 994(u)) (emphasis omitted).

In 18 U.S.C. § 3582(c), Congress mandated that courts

"may not modify a term of imprisonment once it has been

imposed." § 3582(c). However, § 3582(c) allows for specified

exceptions to this general rule. The exception relevant here

authorizes a district court to reduce a defendant’s term of

imprisonment when the Commission has subsequently low-

ered his or her sentencing range and made that reduction

retroactive. However, such sentence-reduction is authorized

only "if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission."

§ 3582(c)(2).

Under the express statutory language of § 994(u) and

§ 3582(c)(2), the Commission’s policy statements implement-

ing the statute’s authorization of retroactive sentence reduc-

tions are binding, just as the statutory restrictions on

reductions below a mandatory minimum are binding. See

6 UNITED STATES v. DUNPHY

United States v. Walsh, 26 F.3d 75, 77 (8th Cir. 1994) (hold-

ing that "Congress has made the policy statements set forth in

§ 1B1.10 the applicable law for determining whether a district

court has the authority to reduce a sentence in this situation.").

The guideline’s policy statement in U.S.S.G. § 1B1.10, identi-

fying the amendments which may be applied retroactively,

further emphasizes the limited nature of the relief available

under § 3582(c)(2). Subsection 1B1.10(a) provides, in rele-

vant part:

(1) In General. — In a case in which a defendant is

serving a term of imprisonment, and the guideline

range applicable to that defendant has subsequently

been lowered as a result of an amendment . . . , the

court may reduce the defendant’s term of imprison-

ment as provided by 18 U.S.C. § 3582(c)(2). . . .

(3) Limitation. — [P]roceedings under 18 U.S.C.

§ 3582(c)(2) and this policy statement do not consti-

tute a full resentencing of the defendant.

U.S.S.G. § 1B1.10(a) (as amended by Amendment 712 effec-

tive March 3, 2008) (emphasis added).

Subsection 1B1.10(b)(l), in turn, specifies the mechanism

for calculating the amended guideline range:

[T]he court shall determine the amended guideline

range that would have been applicable to the defen-

dant if the amendment(s) to the guidelines listed in

subsection (c) had been in effect at the time the

defendant was sentenced. In making such determina-

tion, the court shall substitute only the amendments

listed in subsection (c) for the corresponding guide-

line provisions that were applied when the defendant

was sentenced and shall leave all other guideline

application decisions unaffected.

UNITED STATES v. DUNPHY 7

U.S.S.G. § 1B1.10(b)(1) (as amended by Amendment 712

effective March 3, 2008) (emphases added).

Subsection 1B1.10(b)(2)(A), which applies when a defen-

dant (like Dunphy) received a within-guidelines sentence at

her original sentencing, limits the extent of the reduction to

the minimum of the amended guideline range. It states in per-

tinent part that "the court shall not reduce the defendant’s

term of imprisonment under 18 U.S.C. § 3582(c)(2) and this

policy statement to a term that is less than the minimum of the

amended guideline range." U.S.S.G. § 1B1.10(b)(2)(A). The

guidelines commentary reiterates this explicit limitation on

the extent of the reduction, stating:

Under subsection (b)(2), the amended guideline

range . . . limit[s] the extent to which the court may

reduce the defendant’s term of imprisonment under

18 U.S.C. 3582(c)(2) and this policy statement. Spe-

cifically, if the original term of imprisonment

imposed was within the guideline range applicable to

the defendant at the time of sentencing, the court

shall not reduce the defendant’s term of imprison-

ment to a term that is less than the minimum term

provided by the amended guideline range deter-

mined under subsection (b)(1).

U.S.S.G. § 1B1.10, App. Note 3 (as amended by Amendment

712 effective March 3, 2008) (emphasis added).

Moreover, proceedings under § 3582(c)(2) "do not consti-

tute a full resentencing of the defendant." U.S.S.G.

§ 1B1.10(a)(3); see Legree, 205 F.3d at 730 (holding that a

motion pursuant to § 3582(c) "is not a do-over of an original

sentencing proceeding" (citation omitted)); see also United

States v. McBride, 283 F.3d 612, 615 (3d Cir. 2002) (holding

that § 3582(c)(2) authorizes "a reduction of sentence" and not

a "full resentencing"); United States v. Bravo, 203 F.3d 778,

781 (11th Cir. 2000) (holding that § 3582(c)(2) "do[es] not

8 UNITED STATES v. DUNPHY

contemplate a full de novo resentencing" (quotation and cita-

tion omitted)). Rather, § 3582(c)(2) and U.S.S.G. § 1B1.10

are narrow provisions that allow a limited reduction of sen-

tence by the amount specified in an amendment, while prohib-

iting a complete reevaluation. See, e.g., United States v.

Hasan, 245 F.3d 682, 685-86 (8th Cir. 2001) (en banc) (find-

ing that a reduction below the amended guideline range is not

permitted); Bravo, 203 F.3d at 781 (affirming that the district

court "lacked jurisdiction to depart downward . . . to an extent

greater than that authorized under Section 3582(c) based on

the amended guideline provision"). In providing that sentenc-

ing reductions must be consistent with applicable policy state-

ments, § 3582(c)(2) thus creates a jurisdictional bar to

reducing sentences below the range authorized by the Com-

mission. See, e.g., United States v. Julien, 550 F. Supp. 2d

138, 139-40 (D. Me. 2008).

III.

A.

Dunphy advances two arguments on appeal, which we con-

sider in turn. First, she argues that limiting the extent of a

§ 3582(c)(2) sentencing reduction is the functional equivalent

of a mandatory application of the guidelines which Booker

and Kimbrough v. United States, 128 S. Ct. 558 (2007), pro-

hibit. However, this argument is unavailing.

In Booker, the Supreme Court concluded that the Sixth

Amendment requires that the jury, not the judge, find the facts

that establish the mandatory guideline range. The Court reme-

died that Sixth Amendment constitutional defect reflected in

the guidelines by severing the provisions that made them

mandatory. Because the guidelines are now advisory, the

courts must consider the guidelines as well as the other fac-

tors in 18 U.S.C. § 3553(a) in selecting an appropriate sen-

tence. Booker, 543 U.S at 245-68; see also Gall v. United

States, 128 S. Ct. 586, 594 (2007).

UNITED STATES v. DUNPHY 9

Nothing in Booker, however, expands the permissible

extent of sentencing reductions under § 3582(c)(2). Even

before Booker, the guidelines were not mandatory in

§ 3582(c) proceedings. Courts are not required to reduce a

sentence. Section 3582(c)(2) merely provides that they "may"

do so in certain circumstances. And even if a court does

reduce a sentence, it is not required to do so to the full extent

allowed by a retroactive guideline amendment. Instead, then,

as now, courts are to "consider[ ] the factors set forth in

§ 3553(a) to the extent that they are applicable" and reduce

the sentence "if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission."

§ 3582(c)(2). The § 3553(a) factors were always the guiding

principle under § 3582(c)(2), with the limitation that a reduc-

tion must be in accord with the Commission’s policy state-

ments.

Booker thus had no direct effect on § 3582(c)(2). While it

applied the now-familiar rule that "[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be sub-

mitted to a jury, and proved beyond a reasonable doubt,"

Booker, 543 U.S. at 231 (quoting Apprendi v. New Jersey,

530 U.S. 466, 490 (2000)), such a rule has no application to

proceedings under § 3582(c)(2), which can only decrease —

not increase — the defendant’s sentence.3

Booker’s remedial holding is likewise inapplicable. Booker

applies to full sentencing hearings — whether in an initial

sentencing or in a resentencing where the original sentence is

vacated for error. The Booker Court excised and severed the

provision — 18 U.S.C. § 3553(b)—that made the guidelines

3

Further, the limits § 3582(c)(2) and U.S.S.G. § 1B1.10 impose on the

extent of reductions are, at most, the equivalent of mandatory minimum

sentences, which the Sixth Amendment permits within an otherwise-

authorized sentencing range. See Harris v. United States, 536 U.S. 545,

566 (2002).

10 UNITED STATES v. DUNPHY

mandatory in such sentencing proceedings. It also excised the

related provision on appellate review, 18 U.S.C. § 3742(e).

"With these two sections excised (and statutory cross-

references to the two sections consequently invalidated)," the

Court held, "the remainder of the Act satisfies the Court’s

constitutional requirements." Booker, 543 U.S. at 259. Section

3582(c)(2) contains no cross-reference to § 3553(b) and there-

fore was not affected by Booker. Nor is there anything else in

Booker that directly addresses § 3582(c) proceedings.

The Court in Booker did apply its advisory guidelines rem-

edy to full sentencing hearings in which no Sixth Amendment

violation existed, concluding that Congress would not have

wanted the guidelines to be mandatory in some contexts and

advisory in others. Id. at 266. The Court rested its decision on

two observations; the fact that neither applies to reduction

proceedings under § 3582(c)(2) reinforces our conclusion

regarding the limits on the scope of that provision. First, the

Court observed that Congress would not have wanted to "im-

pose mandatory . . . limits upon a judge’s ability to reduce

sentences," but not to "impose those limits upon a judge’s

ability to increase sentences." Id. Congress would not have

wanted such "one-way lever[s]." Id. But Congress clearly

intended § 3582(c)(2) to be a "one-way lever" insofar as it

gives the sentencing court the option to leave a defendant’s

sentence alone or to reduce it, but does not permit the court

to increase the sentence.

Second, the Booker Court observed that making the guide-

lines partially advisory and partially mandatory in federal sen-

tencings would create significant "administrative

complexities." Id. However, given the limited scope of a pro-

ceeding under § 3582(c)(2), the "administrative complexities"

that led the Supreme Court to require all guideline provisions

to be advisory at full sentencing proceedings are not present

here. Id. On the contrary, a holding that Booker requires full

resentencings whenever a guideline is made retroactive would

create administrative complexities and vastly expand the

UNITED STATES v. DUNPHY 11

scope of a sentencing reduction proceeding under

§ 3582(c)(2).

Albeit in a slightly different context, the Third Circuit has

rejected the notion that Booker, by rendering the guidelines

advisory, overrides the requirements of § 3582(c). In United

States v. Wise, the defendants argued that they could gain

relief under the crack amendments immediately, even though

the amendments had not yet become effective. 515 F.3d 207

(3d Cir. 2008). The Court held that the defendants could not

obtain immediate relief under § 3582(c)(2) because

§ 1B1.10(c) did not yet list the relevant amendments. Id. at

221. The Court stated:

Some may argue that, because the Guidelines are no

longer mandatory, defendants need not wait to apply

for relief under § 3582(c)(2). That fundamentally

misunderstands the limits of Booker. Nothing in that

decision purported to obviate the congressional

directive on whether a sentence could be reduced

based on subsequent changes in the Guidelines. As

we have stated before, ‘[t]he language of the applica-

ble sections could not be clearer: the statute directs

the Court to the policy statement, and the policy

statement provides that an amendment not listed in

subsection (c) may not be applied retroactively pur-

suant to 18 U.S.C. § 3582(c)(2).’

Id. at 221 n.11 (quoting United States v. Thompson, 70 F.3d

279, 281 (3d Cir. 1995)). Although the guidelines are no lon-

ger mandatory, "that does not render optional" the statutory

directives regarding their application. See id. at 220.

Dunphy, however, relies on the decision in United States v.

Hicks in which the Ninth Circuit held that reducing a sentence

below the amended guideline range was permissible under

§ 3582(c). 472 F.3d 1167 (9th Cir. 2007). Hicks involved a

§ 3582(c) sentence reduction motion, based on a retroactive

12 UNITED STATES v. DUNPHY

guideline amendment related to possession of firearms, at a

time when a prior version of the § 1B1.10 policy statement

was in effect. The Hicks court found that reducing a sentence

below the amended guideline range was consistent with that

pre-Amendment 712 version of § 1B1.10. Id. at 1172-73. In

that respect, the Hicks court noted that "[t]he policy state-

ments are silent on the manner in which the modified ranges

should be used." Id.

However, the post-Amendment 712 version of the policy

statement in § 1B1.10, applicable in the instant case,

expressly provides that a § 3582(c)(2) proceeding "do[es] not

constitute a full resentencing of the defendant," U.S.S.G.

§ 1B1.10(a)(3), and it explicitly limits the extent of the autho-

rized reduction to "the minimum of the amended guideline

range," U.S.S.G. § 1B1.10(b)(2)(A). Thus, the Hicks court

was not confronted with the situation presented here, where

reducing a sentence below the amended guideline range

would be directly inconsistent with an applicable policy state-

ment of the Commission.

Hicks, however, went further and concluded that even if the

applicable policy statements had been inconsistent with

reducing a sentence below the amended guideline range, those

policy statements would have to "give way." 472 F.3d at

1173. In Hicks, the court’s view was that limiting the extent

of a § 3582(c)(2) sentencing reduction would amount to a

mandatory application of the guidelines that is prohibited by

Booker. Id. We find the Hicks analysis to be flawed because

it fails to consider two marked characteristics of a

§ 3582(c)(2) proceeding, which we discussed above: (1) this

proceeding allows only for downward adjustment and (2) this

proceeding is not a full resentencing hearing.4

4

In a recent decision, the Tenth Circuit also rejected the argument in

Hicks. United States v. Rhodes, 2008 WL 5102247 (10th Cir., December

5, 2008). The Tenth Circuit in Rhodes held, as we do here, that in resen-

tencing a defendant under 18 U.S.C. § 3582(c)(2) because of the retroac-

tive amendment of the guidelines regarding crack cocaine offenses, a

district court lacks the authority to impose a sentence that is less than the

minimum of the amended guideline range. Id. at *7.

UNITED STATES v. DUNPHY 13

In an unpublished decision in United States v. Outlaw, this

court rejected the defendant’s effort to obtain a further reduc-

tion under Booker. 281 F. App’x 220 (4th Cir. 2008). This

court held that "the relief Outlaw seeks is unavailable under

§ 3582(c)(2)," citing United States v. Moreno, 421 F.3d 1217,

1220 (11th Cir. 2005), for the proposition that "Booker is

inapplicable to § 3582(c) motions." Outlaw, 281 F. App’x at

220.

Given that Booker does not apply to defendants whose sen-

tences were final when Booker was decided, applying Booker

in § 3582(c) proceedings would create patent inequity among

convicted defendants.5 Section 3582(c)(2) was meant only to

permit courts to reduce certain defendants’ sentences to

account for retroactive guideline amendments. To grant these

defendants a further reduction that is not afforded to similarly

situated defendants would increase the unwarranted sentenc-

ing disparities Congress sought to reduce in the Sentencing

Reform Act.6

5

We note that the conclusion that Booker does not apply in proceedings

under § 3582(c)(2) is consistent with the courts of appeals’ uniform hold-

ings that defendants whose convictions are final have no right to resen-

tencing under Booker on collateral review under 28 U.S.C. § 2255. See

Cirilo-Munoz v. United States, 404 F.3d 527, 532-33 (1st Cir. 2005); Guz-

man v. United States, 404 F.3d 139, 141 (2d Cir. 2005); Lloyd v. United

States, 407 F.3d 608, 613-16 (3d Cir. 2005); United States v. Morris, 429

F.3d 65, 66-67 (4th Cir. 2005); United States v. Gentry, 432 F.3d 600,

602-05 (5th Cir. 2005); Humphress v. United States, 398 F.3d 855, 860-63

(6th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir.

2005); Never Misses A Shot v. United States, 413 F.3d 781, 783-84 (8th

Cir. 2005); United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir. 2005);

United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005); Varela

v. United States, 400 F.3d 864, 867-68 (11th Cir. 2005); In re Fashina,

486 F.3d 1300, 1306 (D.C Cir. 2007). It would be incongruous if courts

interpreted § 3582(c)(2) to trigger a full Booker resentencing when it (1)

provides for much more limited relief than § 2255, (2) concerns only sen-

tence reductions, and (3) raises no Sixth Amendment concerns.

6

If we were to adopt Dunphy’s argument, for instance, a defendant con-

victed of possession of a large quantity of powder cocaine and a small

14 UNITED STATES v. DUNPHY

Dunphy also cites Kimbrough for the propositions that

offense levels based on crack cocaine quantity specifically are

advisory and that, in deciding whether to depart downward

from the guideline range, courts may take into account the

disparity between sentencing for powder cocaine and crack

cocaine. See Appellant Br. at 12-13. However, nothing in

Kimbrough undercuts the district court’s judgment because

the Court in Kimbrough did not address § 3582(c) proceed-

ings.

B.

In addition to her Booker argument, Dunphy argues that the

express limitation on the extent of her sentence reduction

established by U.S.S.G. § 1B1.10(b) should be disregarded as

a matter of statutory interpretation. Dunphy claims that the

language in § 3582(c)(2) directing the court to "consider the

factors in § 3553(a) to the extent that they are applicable"

mandates a full resentencing in every case and precludes the

Commission from setting any limitation on the extent of a

§ 3582(c) reduction. See Appellant Br. 10. Any limitation set

by the Commission would, in Dunphy’s view, conflict with

quantity of crack cocaine could be eligible for full resentencing, even if

the quantity of powder cocaine was sufficient to yield the original base

offense level (so that the retroactive crack cocaine amendments alone

would not yield any reduction). The same situation would arise whenever

an offense that accompanied the crack cocaine offense was sufficient to

yield the original base offense level. Similarly, a full resentencing for

those eligible for potential reduction under retroactive amendments would

mean that they alone among those convicted would presumably have the

opportunity to bring events that happened subsequent to their original sen-

tencing to bear in their resentencing. Or, again, those eligible for potential

reduction under retroactive amendments would have the opportunity to re-

present original mitigating factors in the hopes that a different judge

would be more lenient than the original sentencing judge. These illustra-

tions also make apparent the additional administrative complexities that

would accompany a holding that would transform a § 3582(c)(2) proceed-

ing into a full re-sentencing hearing.

UNITED STATES v. DUNPHY 15

the mandate that the court consider the § 3553(a) factors. We

disagree.

Contrary to Dunphy’s argument, the reference in § 3582(c)

to consideration of the § 3553(a) factors does not invalidate

the limitations in the U.S.S.G. § 1B1.10(b) policy statement.

Rather, the reference in § 3582(c) is implemented through the

U.S.S.G. § 1B1.10 requirement that a court consider the

§ 3553(a) factors (including the guidelines) in determining:

(1) whether a reduction is warranted and (2) the extent of such

reduction. U.S.S.G. § 1B1.10, App. Note 1(B)(i).7 In that

manner, consideration is given to the § 3553(a) factors with-

out turning a § 3582(c) hearing into a full sentencing hearing

and without disregarding the § 3582(c) requirement that a

reduction be consistent with the Commission’s policy state-

ments. As the Eighth Circuit held in Hasan:

The language of the statute, 18 U.S.C. § 3582(c)(2),

is clear. The factors set forth in § 3553(a) and the

applicable policy statements are to be considered

only when making the decision whether to reduce a

term of imprisonment as a result of the Sentencing

Commission’s lowering of the sentencing range. The

statute does not say that the court may reduce the

term of imprisonment below the amended sentencing

range or that the § 3553(a) factors or the applicable

policy statements should be considered for such an

additional reduction.

Hasan, 245 F.3d at 685.

7

App. Note 1(B)(i) to U.S.S.G. § 1B1.10 provides:

In general. — Consistent with 18 U.S.C. § 3582(c)(2), the court

shall consider the factors set forth in 18 U.S.C. § 3553(a) in

determining: (I) whether a reduction of the defendant’s term of

imprisonment is warranted; and (II) the extent of such reduction,

but only within the limits described in [U.S.S.G. § 1B1.10(b)].

16 UNITED STATES v. DUNPHY

The district court here expressly considered the § 3553(a)

factors in making the determination (1) that a reduction of

Dunphy’s term of imprisonment was warranted and (2) that

the extent of the reduction for Dunphy should be to the mini-

mum of the amended guideline range. It properly did so in

accord with the limits described in U.S.S.G. § 1B1.10(b),

refusing to go below the minimum of the amended guideline

range.8 J.A. 82-83.

Dunphy also argues that the § 1B1.10(b) policy statement

and accompanying commentary are "not the type of policy

statement Congress had in mind in § 3582(c)(2)."9 Appellant

Br. 15. To support her argument, Dunphy references the

Supreme Court’s statement in Braxton, 500 U.S. at 348, that

"Congress has granted the Commission the unusual explicit

power to decide whether and to what extent its amendments

reducing sentences will be given retroactive effect, 28 U.S.C.

§ 994(u)." Appellant Br. 15. However, as Dunphy’s quotation

demonstrates, far from supporting Dunphy’s argument, Brax-

ton explicitly recognizes the Commission’s power under 28

U.S.C. § 994(u) to decide whether an amendment will be

given retroactive effect and to decide the extent of that retro-

active effect. See Braxton, 500 U.S. at 348. The Commission

has exercised that power in limiting the extent of § 3582(c)

reductions in § 1B1.10(b).

Dunphy further argues that § 1B1.10(b) is invalid under

28 U.S.C. § 994(a)(2). Appellant Br. 17-18. However,

§ 994(a)(2) expressly authorizes such policy statements, as it

describes the duty of the Commission to promulgate and dis-

8

Further, Dunphy’s proposed interpretation of § 3582(c) ignores the lan-

guage in that statute immediately following the reference to 3553(a) —

language that expressly conditions the availability of any reduction on

consistency with the Commission’s applicable policy statements.

9

Dunphy would apparently have this Court give full effect under

§ 3582(c) to the portion of § 1B1.10 designating Amendment 706 as retro-

active, see U.S.S.G. § 1B1.10(c), but conveniently ignore the remainder of

the same policy statement.

UNITED STATES v. DUNPHY 17

tribute general policy statements regarding how the guidelines

ought to be applied or implemented, "including the appropri-

ate use of . . . the sentence modification provisions set forth

in section[ ] . . . 3582(c) of title 18." § 994(a)(2). Nothing in

§ 994(a)(2) bars the Commission from issuing a policy state-

ment regarding the implementation of sentence reductions

under § 3582(c), as it has done in U.S.S.G. § 1B1.10.

Dunphy notes that the Commission described Amendment

706 as an interim measure to alleviate some of the problems

associated with the 100-to-1 powder/crack drug quantity ratio.

But that does not make the amended drug-quantity guideline

invalid in the present case. See U.S.S.G. § 2D1.1(c). Nor does

the Commission’s description of Amendment 706 as an

interim measure invalidate § 1B1.10(b), the policy statement

that, in conjunction with § 3582(c), controls the retroactive

effect of lowered guidelines.

IV.

When a sentence is within the guidelines applicable at the

time of the original sentencing, in an 18 U.S.C § 3582(c)

resentencing hearing, a district judge is not authorized to

reduce a defendant’s sentence below the amended guideline

range. Consequently, the district court’s order is

AFFIRMED.