Does United States v. Booker apply to resentencing proceedings under 18 U.S.C. 3582(c)(2)?

By Anna Christensen
on Mar 29, 2010 at 8:30 pm

Here, Troy D. Cahill of Akin Gump previews Dillon v. United States, in which the Court will hear oral arguments tomorrow morning.  Check the Dillon v. United States (09-6338) SCOTUSwiki page for additional updates.

Throughout the country, thousands of defendants are incarcerated as a result of having been convicted for a federal offense involving crack cocaine.  On March 30, the Court will hear oral argument in Dillon v. United States (No. 09-6338), a case that will decide whether and to what extent those prisoners are eligible to take advantage of a 2007 amendment (the “Crack Guidelines Amendment”) to the United States Sentencing Guidelines intended to alleviate the “urgent and compelling” problem created by the differential treatment of crack cocaine and powder cocaine offenders as a result of the Anti-Drug Abuse Act of 1986.  The principal question before the Court in Dillon is whether, when considering a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), the district court is bound by Sentencing Guidelines policy statements purporting to limit the availability of relief under Section 3582(c)(2).

In 1993, petitioner Percy Dillon was convicted of various drug and weapons offenses, including conspiracy to distribute and possess with the intent to distribute in excess of fifty grams of crack cocaine.  Based on the then-mandatory Sentencing Guidelines, Mr. Dillon’s Guidelines range was 322 to 387 months.  The district court sentenced Mr. Dillon to the lowest end of that range, 322 months.

In 2007, the United States Sentencing Commission promulgated the Crack Guidelines Amendment to prospectively reduce base offense levels for most crack cocaine offenses by two levels.  The following year, the Sentencing Commission voted to make the Crack Guidelines Amendment retroactive and, at the same time, amended § 1B1.10 of the Sentencing Guidelines, a policy statement that addresses the reduction of terms of imprisonment based on amended Guidelines ranges.

18 U.S.C. § 3582(c)(2), which was enacted as part of the original Sentencing Reform Act, authorizes the district court to reduce a term of imprisonment for a defendant “who has been sentenced . . . based on a sentencing range that has subsequently been lowered by the Sentencing Commission, pursuant to 28 U.S.C. § 994(o).”  The statute directs the court, in deciding whether and by how much to reduce the term of imprisonment, to “consider[] the factors set forth in section 3553(a) to the extent that they are applicable” and to be “consistent with applicable policy statements issued by the Sentencing Commission.”

As amended by the Sentencing Commission, § 1B1.10 purports to limit the availability of a sentencing reduction under Section 3582(c)(2).  As an initial matter, § 1B1.10 announces that “proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant.”  Moreover, it provides that “any” reduction under Section 3582(c)(2) “shall be consistent with this policy statement,” and it refers to “18 U.S.C. § 3582(c)(2) and this policy statement” as equivalent authority.  It also asserts that the amended Sentencing Guidelines range is binding, instructing 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.”

Relying on the Crack Guidelines Amendment, Mr. Dillon sought the two-level reduction in his base offense level provided in the Amendment and argued that his sentence should be further reduced under United States v. Booker and 18 U.S.C. § 3553(a).  Deeming itself bound by § 1B1.10, the district court sentenced Mr. Dillon to 270 months imprisonment, which was the bottom of his amended Sentencing Guidelines Range and afforded him the benefit of the Crack Guidelines Amendment.  The court stated that “it would be patently inconsistent” with § 1B1.10 “to impose a term of imprisonment lower than the bottom of the amended Guideline range.”

The Third Circuit affirmed.  In its view, the district court “ ‘correctly concluded that it lacked the authority to further reduce [Dillon’s] sentence [] … [b]ecause USSG § 1B1.10 is binding on the District Court pursuant to 3582(c)[.]’ ”  According to the Third Circuit, the constitutional holding of Booker did not apply to Section 3582(c)(2) proceedings because “[n]owhere in Booker did the Supreme Court mention § 3582(c)(2),” which “may only reduce a defendant’s sentence and not increase it.”  Moreover, it concluded, Booker‘s remedial holding was inapplicable because Booker applies only to “full sentencing hearings” rather than “sentence modification proceedings under § 3582(c)(2).”  Mr. Dillon filed a petition for a writ of certiorari, which the Court granted on December 7, 2009.

In his brief on the merits, Mr. Dillon argues that, after Booker, district courts considering motions under Section 3582(c)(2) are not bound by policy statements that accompany the Sentencing Guidelines.  Mr. Dillon reasons that there is “no practical or functional difference” between resentencing proceedings under Section 3582(c)(2) and any other resentencing because courts follow the same statutory procedures and consider the same statutory factors.  Furthermore, Mr. Dillon argues, because Booker applies at other resentencing proceedings, it also applies to sentencing proceedings under Section 3582(c)(2).  The result, he contends, is that neither § 1B1.10 nor any other Sentencing Guidelines policy statement can bind a sentencing court’s discretion or otherwise limit a sentencing court’s ability in a proceeding under Section 3582(c)(2) to impose a sentence sufficient, but not greater than necessary, to accomplish the goals of sentencing.  Any other result, he argues, will “resurrect the mandatory Guidelines system Booker invalidated.”  And in any event, his case should be remanded for a resentencing with instructions that the district court correct the calculation of his criminal history category.

In its brief on the merits, the United States counters that Mr. Dillon “misapprehends the nature of Section 3582(c)(2) sentence-reduction proceedings and the role the Sentencing Guidelines  play in them.”  According to the United States, Section 3582(c)(2) provides a limited exception to the statutory rule that sentences of imprisonment may not be modified, but it further requires that any modification be “consistent with applicable policy statements issued by the Sentencing Commission.”  Treating the Sentencing Guidelines policy statement as mandatory does not raise concerns under Booker, the United States explains, because it only “applies when a court engages in a plenary sentencing.”  And Section 3582(c)(2) proceedings do not implicate the Sixth Amendment rule applied in Booker because proceedings under Section 3582(c)(2) can only lower and not increase a defendant’s sentence.  Finally, the United States warns, the rule advocated by Mr. Dillon would “undermine principles of finality” and would “inevitably affect the Sentencing Commission’s calculus in deciding whether to make its Guidelines amendments retroactive in the first place.”  With regard to Mr. Dillon’s claim that his criminal history category was miscalculated, the United States argues that Mr. Dillon is not entitled to sentencing relief unrelated to the Guidelines amendment that authorized the Section 3582(c)(2) proceeding.  In any event, the United States argues, Mr. Dillon failed to establish any error in the calculation of his criminal history category.

The Washington Legal Foundation (WLF) filed an amicus brief in support of Mr. Dillon.  It outlines two reasons why the Court should rule in Mr. Dillon’s favor without reaching whether, after Booker, district courts considering motions under Section 3582(c)(2) are bound to follow policy statements that accompany the Sentencing Guidelines.  First, a policy statement in the Sentencing Guidelines cannot trump congressional direction that federal sentencing procedures require the individualized consideration of defendants.  Second, any doubt about Section 3582’s meaning should be resolved in favor of allowing individualized discretion during re-sentencing, because any other construction raises colorable constitutional issues.

The Federal Public and Community Defenders and the National Association of Federal Defenders also filed an amicus brief in support of Mr. Dillon in which they argue that because § 1B1.10 purports to establish mandatory decrees that control a court’s resentencing decision, it conflicts with the plain language and statutory structure of the Sentencing Reform Act.

The United States Sentencing Commission filed an amicus brief in support of the United States.  It contends that § 1B1.10 carries out its obligation under 28 U.S.C. § 994(u) to specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.  The regime that Mr. Dillon seeks – in which any amendment made retroactive would potentially afford each eligible defendant a full resentencing – would overburden the judicial system and diminish retroactivity’s usefulness as a tool for promoting fairness in sentencing.