December 27, 2016
UNITED STATES OF AMERICA, Plaintiff - Appellee,
WILLIAM HENRY MULDROW, a/k/a William Cooper, a/k/a Willie, a/k/a Fred Washington, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
LUIS GOMEZ, Defendant-Appellant.
Argued: October 26, 2016
from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:03-cr-00555-AW-3; 8:95-cr-00267-DKC-14)
Mirchandani, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellants.
Raman, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.
Wyda, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Baltimore, Maryland, for Appellants.
Rosenstein, United States Attorney, Debra L. Dwyer, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
DUNCAN and AGEE, Circuit Judges, and Bruce H. HENDRICKS,
United States District Judge for the District of South
Carolina, sitting by designation.
by published opinion. Judge Duncan wrote the opinion, in
which Judge Agee and Judge Hendricks joined.
DUNCAN, Circuit Judge:
William Henry Muldrow ("Muldrow") and Luis Gomez
("Gomez") challenge the district court's
determination that the Guidelines commentary--as amended by
United States Sentencing Guideline Amendment 759
("Amendment 759")--requires a district court at
resentencing to calculate the "applicable guideline
range" without applying any departures or variances from
a defendant's original sentencing range. For the reasons
that follow, we affirm the district court and join all of our
sister circuits that have considered the issue in holding
that Amendment 759 binds sentencing courts.
Defendants were convicted of drug offenses in unrelated
cases--Muldrow in 2006 and Gomez in 1996. This court
consolidated their appeals.
pleaded guilty to one count of conspiracy to distribute and
possess with intent to distribute five or more grams of
cocaine and oxycodone, on January 19, 2006. At his sentencing
on March 29, 2006, the district court adopted the findings of
the presentence report with one exception. It departed from a
criminal history category VI to a category V because it found
Muldrow's criminal history category overrepresented the
seriousness of his criminal record. U.S.S.G. § 4A1.3.
Employing an offense level 34 and a post-departure criminal
history category V, the district court calculated a guideline
range of 235 to 293 months and sentenced Muldrow to 235
months in prison.
convicted Gomez of one count of conspiracy to distribute
cocaine, and one count of possession with intent to
distribute cocaine, on June 29, 1996. At sentencing, the
district court calculated his guideline range based on an
offense level 44 and a criminal history category III,
resulting in a then-mandatory guideline sentence of life
imprisonment. On November 6, 1996, the court imposed a life
sentence, but subsequently granted Gomez's 28 U.S.C.
§ 2255 petition in part, vacating his sentence. The
district court recalculated Gomez's guideline range as
360 months to life imprisonment based on an offense level of
41 and a criminal history category II. Like Muldrow, Gomez
received a downward departure under § 4A1.3 because the
district court found that a criminal history category III
overstated the seriousness of his criminal record. The court
resentenced Gomez on February 27, 2006, imposing a
below-guideline-range sentence of 340 months.
and 2015, Defendants separately filed motions for
resentencing under 18 U.S.C. § 3582(c)(2) based on the
retroactive application of United States Sentencing Guideline
Amendment 782. U.S.S.G., app. C., amend. 782 (2014)
("Amendment 782"). Amendment 782 reduced the base
offense level for drug offenses by two levels. Id.
The United States Sentencing Commission
("Commission") has the power to make its amendments
retroactive, and although it has done so sparingly, it did so
with Amendment 782 by listing it in subsection (d) of §
1B1.10 of the Guidelines Manual. U.S.S.G. § 1B1.10(d);
United States v. Williams, 808 F.3d 253, 263 (4th
Cir. 2015). Before the district court, the parties agreed
that Defendants are eligible for relief under Amendment 782,
which altered the Defendants' "amended guideline
range." They dispute the extent of relief authorized
based on the calculation of this range.
Defendant argued that the district court should calculate his
guideline range at resentencing by using the post-departure
criminal history category determined at his original
sentencing. However, the district court did not reduce the
sentences to the extent Defendants requested. At
resentencing, the district court instead chose to calculate
their ranges using their pre-departure criminal history
categories. After recalculating the guideline ranges in this
manner, the district court reduced each Defendant's
sentence to the low end of his amended guideline range.
Muldrow, the district court granted relief in part on July
29, 2015, reducing his sentence from 235 months to 210
months--the low end of the amended guideline range using a
pre-departure criminal history category. For Gomez, the
district court granted relief in part on October 6, 2015,
reducing Gomez's sentence from 340 months to 324
months--the low end of the amended guideline range using a
pre-departure criminal history category.
district court based its decisions to use a pre-departure
criminal history category on a separate guideline
amendment--Amendment 759. U.S.S.G., app. C., amend. 759
(2011). Specifically, the district court found that Amendment
759 (1) precluded the district court from considering §
4A1.3 departures during resentencing, and (2) abrogated this
court's prior decision in United States v. Munn,
595 F.3d 183 (4th Cir. 2010), which had adopted
Defendants' desired approach. Both Defendants appealed.
appeal, Defendants argue that the district court incorrectly
deemed itself bound by Amendment 759, and thus, erred in not
granting them greater relief. According to Defendants, the
district court should have applied § 4A1.3 departures
when calculating their applicable guideline ranges. The
government counters that the district court properly followed
Amendment 759 in calculating Defendants' applicable
guideline range because Amendment 759 is consistent with the
Guidelines and abrogated Munn.
review a district court's decision to reduce a sentence
under § 3582(c)(2) for abuse of discretion and its
ruling as to the scope of its legal authority under §
3582(c)(2) de novo." United States v. Mann, 709
F.3d 301, 304 (4th Cir. 2013). For the reasons that follow,
we affirm the district court.
decision today respects a congressionally mandated--and
Supreme Court sanctioned--balance between the interpretive
power of the Commission and our duties as an Article III
court. With the Sentencing Reform Act of 1984, 18 U.S.C.
§ 3551 et seq., Congress established the
Commission and authorized it to (1) promulgate Sentencing
Guidelines and (2) issue policy statements governing
application of the Guidelines. See 28 U.S.C.
§§ 991, 994(a); Stinson v. United States,
508 U.S. 36, 40-41 (1993). The Commission also issues
commentary to the guideline provisions and policy statements.
Stinson, 508 U.S. at 41. In interpreting the Guidelines, commentary
"is authoritative unless it violates the Constitution or
a federal statute, or is inconsistent with, or a plainly
erroneous reading, of that guideline." Id. at
addition, Congress entrusted the Commission with the power,
and duty, to periodically review and revise the guideline
provisions, policy statements, and commentary. 28 U.S.C.
§§ 994(o), 994(p), 994(u); United States v.
Braxton, 500 U.S. 344, 348 (1991). This power includes
the ability "to override our precedent through
amendments to the Guidelines." Williams, 808
F.3d at 258. With this framework in mind, we turn to the
Guidelines applicable to sentencing reductions.
the Sentencing Reform Act, a federal court generally
"may not modify a term of imprisonment once it has been
imposed." 18 U.S.C. § 3582(c). However, Congress
has provided an exception to that rule: when the Commission
makes a Guidelines amendment retroactive, a district court
may reduce an otherwise final sentence based on the amended
provision, as long as the reduction remains consistent with
applicable Commission policy statements. Id.
considering whether and by how much to reduce a sentence
under § 3582(c)(2), a district court follows a two-step
inquiry. Dillon v. United States, 560 U.S. 817, 826
(2010). The court first "follow[s] the Commission's
instructions in § 1B1.10 to determine the prisoner's
eligibility for a sentence modification and the extent of the
reduction authorized." Id. at 827.
Specifically, § 1B1.10(b)(1) requires the court to
"determine the amended guideline range that would have
been applicable to the defendant if the amendment(s) to the
guidelines listed in subsection (d) had been in effect at the
time" of the defendant's initial sentencing.
U.S.S.G. § 1B1.10(b)(1). At step two, a district court considers
relevant sentencing factors to determine whether, in its
discretion, a reduction "is warranted in whole or in
part under the particular circumstances of the case."
Dillon, 560 U.S. at 827.
appeal--and the issue in Munn--concerns how a court
calculates the amended guideline range at step one. In
particular, the parties dispute whether the resentencing
court calculates the range using a pre-departure criminal
history category or a post-departure criminal history
category. In Munn--decided prior to Amendment
759--this court held that a defendant's applicable
guideline range is determined after applying any
departures. 595 F.3d at 192-95. Therefore, the defendant in
Munn--a career offender who received a departure for
overrepresentation of criminal history at his original
sentencing--was entitled to have the district court factor in
departures before calculating his applicable guideline range
for resentencing purposes. Id. at 184-85, 194-95.
Other circuits interpreted the Guidelines similarly. See
United States v. Flemming, 617 F.3d 252, 272 (3d Cir.
2010); United States v. Cardosa, 606 F.3d 16, 21-22
(1st Cir. 2010); United States v. McGee, 553 F.3d
225, 229-30 (2d Cir. 2009) (per curiam) superseded by
United States v. Montanez, 717 F.3d 287 (2d Cir. 2013)
(per curiam). However, three other circuits decided that the
applicable guideline range for resentencing was the range
produced prior to any discretionary departures, reasoning
that a district court cannot depart from a range before it is
established. United States v. Pembrook, 609 F.3d
381, 384 (6th Cir. 2010); United States v. Darton,
595 F.3d 1191, 1197 (10th Cir. 2010); United States v.
Blackmon, 584 F.3d 1115, 1116-17 (8th Cir. 2009) (per
response to this circuit split, the Commission promulgated
Amendment 759. U.S.S.G., app. C., amend. 759 (2011).
Amendment 759 revised the commentary to § 1B1.10, at
Application Note 1(A), by defining "applicable guideline
range" as "the guideline range that corresponds to
the offense level and criminal history category determined
pursuant to § 1B1.1(a), which is determined
before consideration of any departure provision in
the Guidelines Manual or any variance." U.S.S.G. §
1B1.10 cmt. n.1(A) (2011) (emphasis added); U.S.S.G., app.
C., amend. 759 (2011). In so doing, Amendment 759 explicitly
"adopt[ed] the approach of the Sixth, Eighth, and Tenth
Circuits." U.S.S.G., app. C., amend. 759 (Reason for
issue on appeal is a narrow one. Defendants do not contest
that the Commission can resolve circuit splits and abrogate
our prior precedent by promulgating amendments. Instead, they
argue that the district court erroneously deemed itself bound
by the revised commentary to § 1B1.10 found in Amendment
759 for two reasons: (1) the commentary conflicts with the
Guidelines text, and (2) Amendment 759 is not one which by
its nature applies retroactively. We consider each argument in turn.
commentary conflicts with the Guidelines text, it cannot bind
courts. Stinson, 508 U.S. at 38. In deciding whether
commentary conflicts with the Guidelines text, we recognize
that the Commission "has the first responsibility to
formulate and announce" how guideline provisions should
be interpreted. Id. at 45. Cognizant of our role
vis-à-vis the Commission, this court rarely
invalidates part of the commentary as inconsistent with the
Guidelines text. See United States v. Shell, 789
F.3d 335, 357 (4th Cir. 2015) (Wilkinson, J., dissenting).
This is unsurprising given that "[t]he functional
purpose of commentary (of the kind at issue here) is to
assist in the interpretation and application of those rules,
which are within the Commission's particular area of
concern and expertise." Stinson, 508 U.S. at
argue that the commentary, as amended by Amendment 759,
conflicts with the Guidelines, Defendants first point to the
text of § 1B1.10(b)(1). That section instructs
resentencing courts calculating the "amended guideline
range" to "substitute only" the retroactive
amendments listed in § 1B1.10(d) and "leave all
other guideline application decisions unaffected."
U.S.S.G. § 1B1.10(b)(1). Defendants claim that this
means courts must calculate the amended guideline range
without excluding any factor that was taken into
account at the original sentencing--that is, "to mirror
whatever sentencing findings it originally made."
Appellants' Br. at 25. Under Defendants' view, the
revised commentary in Application Note 1(A) conflicts with
the text of § 1B1.10 because that commentary
"expressly prohibits courts from incorporating
'any departure' or 'any
variance' into the guideline calculation."
Appellants' Br. at 25.
Amendment 759 does not conflict with the text. Amendment 759
revised Application Note 1(A) to define the "applicable
guideline range" as "the guideline range that
corresponds to the offense level and criminal history
category determined pursuant to § 1B1.1(a), which is
determined before consideration of any departure provision in
the Guidelines Manual or any variance." U.S.S.G. §
1B1.10 cmt. n.1(A). "Consistent with that definition,
U.S.S.G. § 1B1.1(a) makes no mention of departures"
or variances. Montanez, 717 F.3d at 292. Rather, a
district court calculates departures and variances pursuant
to §§ 1B1.1(b) and 1B1.1 (c), respectively, only
after determining the applicable guideline range under §
1B1.1(a). See id.; U.S.S.G., app. C., amend. 741
(Reason for Amendment) (explaining the three-step process for
calculating sentences). Logically, the phrase in §
1B1.10(b)(1)--"shall leave all other guideline
application decisions unaffected"--refers to decisions
sentencing courts make in establishing the amended guideline
range, which, pursuant to § 1B1.1(a), does not take into
account departures or variances. Therefore, Amendment
759's clarifying definition is consistent with §
1B1.10 of the Guidelines text.
another effort to manufacture an inconsistency, Defendants
next point to § 1B1.1--the application instructions for
an original sentencing--to suggest that the commentary
conflicts with § 1B1.10. Section 1B1.1(a)(6) directs a
sentencing judge to "[d]etermine the defendant's
criminal history category as specified in Part A of Chapter
Four." U.S.S.G. § 1B1.1(a)(6). Downward departures
for overrepresentation of criminal history appear in Chapter
Four--specifically at § 4A1.3(b). U.S.S.G. §
4A1.3(b). Under this line of argument, § 4A1.3
departures are integral to determining the applicable
guideline range under § 1B1.1(a)(6). Thus, Amendment
759's definition of "applicable guideline range,
" which excludes such departures, conflicts with §
1B1.10(b)(1)'s instruction to "leave all other
guideline application decisions"--including those in
§ 1B1.1(a)(6)--"unaffected." U.S.S.G. §
argument reads more into § 1B1.1(a)(6) than the text can
support. Section 1B1.1(a)(6) instructs sentencing courts to
determine a defendant's criminal history category, but it
does not instruct them to follow each section in Part A of
Chapter Four. Part A of Chapter Four has three sections, and
only the first two sections directly govern how to determine
the "criminal history category." Section 4A1.1 is
titled "Criminal History Category" and § 4A1.2
is titled "Definitions and Instructions for Computing
Criminal History." U.S.S.G. §§ 4A1.1, 4A1.2.
By contrast, § 4A1.3 is titled "Departures Based on
Inadequacy of Criminal History Category (Policy
Statement)." U.S.S.G. § 4A1.3. That §
1B1.1(a)(6) instructs a sentencing judge to determine the
criminal history category does not give the judge a license
to factor in a departure for overrepresentation of criminal
history at that stage. See United States v. Watkins,
No. 15-6205, 2016 WL 3924240, at *4 (6th Cir. July 21, 2016)
(unpublished) (citing Pembrook, 609 F.3d at 385-86).
"[A] court does not depart under § 4A1.3 when
calculating a defendant's applicable guideline range, but
instead departs from the applicable guideline range
under § 4A1.3 after having calculated that
range." Montanez, 717 F.3d at 292. Holding to
the contrary leads to a nonsensical circularity. A district
court cannot factor in a departure from a range in
calculating the range itself. See Pembrook, 609 F.3d
at 385. "This leads inescapably to the conclusion that a
defendant's applicable guideline range under U.S.S.G.
§ 1B1.10 is his pre-departure guideline range."
we see no inconsistency between the Guidelines and the
commentary as revised by Amendment 759. We decline to strain
the text to create one.
next contend that Amendment 759 does not apply retroactively.
But this argument misses the point. The question is not
whether Amendment 759 applies retroactively, but rather
whether the district court properly applied Amendment 759 to
Defendants who were resentenced after Amendment 759
a sentencing court must apply the edition of the Guidelines
in effect at the time "the defendant is sentenced."
U.S.S.G. § 1B1.11(a). However, § 3582(c)(2)
"requires a sentencing court to adhere to the
Commission's policy statement in Guidelines section
1B1.10 when assessing a motion for a sentence
reduction." Williams, 808 F.3d at 262. The
commentary to § 1B1.10 at Application Note 8, as amended
by Amendment 759, instructs that "[c]onsistent with
subsection (a) of § 1B1.11 (Use of Guidelines Manual in
Effect on Date of Sentencing), the court shall use the
version of the policy statement that is in effect on the date
on which the court reduces the defendant's term of
imprisonment as provided by 18 U.S.C. §
3582(c)(2)." U.S.S.G. § 1B1.10, cmt. n.8; see
also U.S.S.G., app. C., amend. 759 (2011) (originally
adding current application note 8 as application note
6). Because Amendment 759 "went
into effect prior to the district court's resolution of
[Defendants'] § 3582(c)(2) motion[s], the court was
required to assess the motion[s] in light of the now
applicable policy statement" as elucidated in the
binding commentary revised by Amendment 759.
Williams, 808 F.3d at 262.
Defendants still contend that Munn, decided prior to
Amendment 759, should apply to their resentencing. But
"our precedent in the sentence-reduction context must
give way if it conflicts with the Commission's
amendments." Id. at 259; see also
Braxton, 500 U.S. at 348. The Commission specifically
stated that it promulgated Amendment 759 in response to a
split among the circuits, and rejected the approach taken by
this court in Munn. U.S.S.G., app. C., amend. 759
(Reason for Amendment). As the Supreme Court has recognized,
"Congress necessarily contemplated that the Commission
would periodically review the work of the courts, and would
make whatever clarifying revisions to the Guidelines
conflicting judicial decisions might suggest."
Braxton, 500 U.S. at 348; see also 28
U.S.C. § 994(p). As an amendment to the binding
commentary, Amendment 759 applies to Defendants unless it is
inconsistent with the Constitution, a federal statute, or the
Guidelines. Stinson, 508 U.S. at 38. We rejected
above Defendants' argument that the revised commentary
introduces an inconsistency. See supra Part III.A.
Today we join the Second Circuit in formally recognizing that
with Amendment 759 "the Commission has foreclosed the
exact approach that [Defendants] now advocate."
Montanez, 717 F.3d at 294.
argument hinges on finding an inconsistency between the
commentary and text of the Guidelines. We fail to see one,
and decline Defendants' invitation to "recreate the
split that the Commission hoped to resolve."
Id. at 292 n.2. For this and the foregoing reasons,
the judgment of the district court is
 Commentary has several different
First, it may interpret the guideline or explain how
it is to be applied. Failure to follow such commentary could
constitute an incorrect application of the guidelines,
subjecting the sentence to possible reversal on appeal.
See 18 U.S.C. § 3742. Second, the commentary
may suggest circumstances which, in the view of the
Commission, may warrant departure from the guidelines. Such
commentary is to be treated as the legal equivalent of a
policy statement. Finally, the commentary may provide
background information, including factors considered in
promulgating the guideline or reasons underlying promulgation
of the guideline. As with a policy statement, such commentary
may provide guidance in assessing the reasonableness of any
departure from the guidelines.
U.S.S.G. § 1B1.7; see also Stinson, 508
U.S. at 41.
 In United States v. Booker,
543 U.S. 220 (2005), the Supreme Court invalidated statutory
provisions that made the Guidelines Mandatory, and held that
courts must treat the Guidelines as advisory. 543 U.S. at
265. Although the Court decided Stinson before
Booker, we have no reason to reject the
Stinson holding regarding commentary's binding
effect. See United States v. Shell, 789 F.3d 335,
340 (4th Cir. 2015) (citing Stinson as good
 Section 1B1.10 (Reduction in Term of
Imprisonment as a Result of Amended Guideline Range (Policy
Statement)) prohibits courts from reducing a term of
imprisonment below an amended guideline range's minimum
except in certain cases in which the defendant originally
received a downward departure for providing substantial
assistance to the government. U.S.S.G. § 1B1.10(b)(2).
Defendants do not seek terms below their amended guideline
ranges. Instead, they challenge the application of Amendment
759 to their resentencing.
 Defendants do not argue that the
commentary conflicts with the statute. Defendants also do not
challenge that the district court has discretion to grant or
deny relief at step two of the § 3582(c)(2)
 Defendants also argue that there is a
material difference between "applicable guideline range,
" in § 1B1.10(a), and "amended guideline
range, " in § 1B1.10(b). They assert that these
phrases refer to different things--eligibility for
sentencing reductions and the extent of relief
available, respectively. Because Amendment 759 inserted a
definition to "applicable guideline range, "
Defendants contend that definition only affects eligibility.
From this premise they argue that Amendment 759 does not
preclude a sentencing court from considering departures. This
argument fails. As the Second Circuit explained, such a
ignores the relationship between the "applicable
guideline range" and the "amended guideline
range." Under § 1B1.10(a)(2)(B), a defendant is not
eligible for a reduction if an amendment "does not have
the effect of lowering the defendant's applicable
guideline range." In the absence of any change to the
applicable guideline range, speaking of an "amended
guideline range" makes little sense. Where an amendment
does change the applicable guideline range, however, the
court can calculate a new "applicable" range by
"substitut[ing] . . . the amend[ed guideline provisions]
for the corresponding . . . provisions that were applied when
the defendant was sentenced." U.S.S.G. §
1B1.10(b)(1). Section 1B1.10(b)(1) defines this new,
applicable range as the "amended guideline range."
The phrase "amended guideline range, " then, is
simply the name by which the guidelines distinguish one
applicable guideline range--i.e., the one that
incorporates guideline amendments--from
another--i.e., the one that applied under earlier
versions of the guidelines. It follows, then, that courts
should use the same procedure to calculate both the
applicable guideline range and the amended guideline range,
departing from that procedure in the case of the amended
guideline range only to "substitute . . . the [relevant
guideline] amendments." Id. Under the
guidelines, courts applying this procedure should not
"consider any departure provision in the Guidelines
Manual or any variance." U.S.S.G. § 1B1.10 cmt.
Montanez, 717 F.3d at 293 (alteration in
 Defendants also argue that application
note 8 is inconsistent with the Guidelines. But in
Williams this court recognized that application note
8 is consistent with both § 3582(c)(2) and the
Guidelines. See 808 F.3d at 262-63.