Dillon v. United States, 560 U.S. 817 (2010)

(a) The statute’s text and narrow scope belie Dillon’s characterization of proceedings under § 3582(c)(2) as “resentencing” proceedings gov erned by the same principles as other sentencing proceedings. Instead, § 3582(c)(2) authorizes only a limited adjustment to an otherwise final sentence. This conclusion is further supported by the substantial role Congress gave the Commission with respect to sentence-modification proceedings, charging it with determining whether and to what extent a Guidelines amendment will be retroactive, 28 U. S. C. § 994(u), and authorizing a court to grant a reduction under § 3582(c)(2) only “if [it] is consistent with applicable policy statements issued by the Sentencing Commission.” Section 3582(c)(2) establishes a two-step inquiry: A court must (1) determine the scope of the reduction, if any, authorized p. 818by § 1B1.10, and then (2) consider whether the authorized reduction is warranted according to the applicable § 3553(a) factors. At step one, the court must follow the Commission’s instructions in § 1B1.10 to im pose a term of imprisonment within the amended Guidelines range un less the sentencing court originally imposed a below-Guidelines sen tence. § 1B1.10(b)(2). Because reference to § 3553(a) is appropriate only at step two, that provision does not transform § 3582(c)(2) proceed ings into plenary resentencing proceedings. Pp. 824–828.

To remedy the constitutional problem, we rendered the Guidelines advisory by invalidating two provisions of the SRA: 18 U. S. C. § 3553(b)(1) (2000 ed., Supp. IV), which gen erally required a sentencing court to impose a sentence within the applicable Guidelines range, and § 3742(e) (2000 ed. and Supp. IV), which prescribed the standard of review on appeal, including de novo review of Guidelines depar tures. 543 U. S., at 259. “With these two sections excised (and statutory cross-references to the two sections conse quently invalidated),” we held that “the remainder of the Act p. 821satisfies the Court’s constitutional requirements.” Ibid. Booker thus left intact other provisions of the SRA, includ ing those giving the Commission authority to revise the Guidelines, 28 U. S. C. § 994(o) (2006 ed.), and to determine when and to what extent a revision will be retroactive, § 994(u).

When the Commission makes a Guidelines amendment ret roactive, 18 U. S. C. § 3582(c)(2) authorizes a district court to reduce an otherwise final sentence that is based on the amended provision. Any reduction must be consistent with applicable policy statements issued by the Sentencing Com mission. The relevant policy statement, USSG § 1B1.10, in structs courts proceeding under § 3582(c)(2) to substitute the amended Guidelines range while “leav[ing] all other guideline application decisions unaffected.” § 1B1.10(b)(1).1 p. 822Under § 3582(c)(2), a court may then grant a reduction within the amended Guidelines range if it determines that one is warranted “after considering the factors set forth in section 3553(a) to the extent that they are applicable.”2 Except in limited circumstances, however, § 1B1.10(b)(2)(A) forecloses a court acting under § 3582(c)(2) from reducing a sentence “to a term that is less than the minimum of the amended guideline range.”

At sentencing, the District Court made additional findings of fact and concluded that Dillon was responsible for 1.5 kilo grams of crack and 1.6 kilograms of powder cocaine. Under USSG § 2D1.1, those drug quantities produced a base offense level of 38. After offsetting adjustments for acceptance of p. 823responsibility, § 3E1.1, and reckless endangerment during flight, § 3C1.2, Dillon’s total offense level remained 38. Cou pled with a criminal-history category of II,3 that offense level produced a then-mandatory Guidelines range of 262 to 327 months’ imprisonment for the drug counts.

The District Court reduced Dillon’s sentence to 270 months—the term at the bottom of the revised Guidelines p. 824range.4 But the court declined to go further. Concluding that the sentencing proceedings at issue in Booker are readily distinguishable from those under § 3582(c)(2), the court found Booker’s holdings inapplicable to the instant pro ceeding and accordingly held that it lacked authority to im pose a sentence inconsistent with § 1B1.10.

“[A] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment” and may not be modified by a district court except in limited circumstances. § 3582(b). Section 3582(c)(2) establishes an exception to the general rule of finality “in the case of a defendant who has been sentenced to a term of imprisonment based on a sen tencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U. S. C. 994(o)” and made retroactive pursuant to § 994(u). In such cases, Con gress has authorized courts to “reduce the term of imprison p. 825ment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduc tion is consistent with applicable policy statements issued by the Sentencing Commission.” § 3582(c)(2).

The language of § 3582(c)(2) belies Dillon’s characterization of proceedings under that section. By its terms, § 3582(c)(2) does not authorize a sentencing or resentencing proceeding. Instead, it provides for the “modif[ication of] a term of im prisonment” by giving courts the power to “reduce” an oth erwise final sentence in circumstances specified by the Com mission. Compare 28 U. S. C. § 994(a)(2)(C) (referring to § 3582(c)(2) as a “sentence modification provisio[n]”) with 18 U. S. C. § 3742(f) (authorizing courts of appeals to remand “for further sentencing” upon a finding of error) and § 3742(g) (establishing the terms of “sentencing upon re mand” and describing the proceeding as a “resentenc[ing]” (capitalization omitted)). It is also notable that the provi sion applies only to a limited class of prisoners—namely, p. 826those whose sentence was based on a sentencing range sub sequently lowered by the Commission. Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.

This understanding of § 3582(c)(2) as a narrow exception to the rule of finality finds further support outside the statute. p. 828Federal Rule of Criminal Procedure 43 requires that a de fendant be present at “sentencing,” see Rule 43(a)(3), but it excludes from that requirement proceedings that “involv[e] the correction or reduction of sentence under Rule 35 or 18 U. S. C. § 3582(c),” Rule 43(b)(4). Like § 3582(c)(2), Rule 35 delineates a limited set of circumstances in which a sentence may be corrected or reduced. Specifically, it authorizes a court to “correct a sentence that resulted from arithmetical, technical, or other clear error” within 14 days after sentenc ing, Rule 35(a), and it authorizes a reduction for substantial assistance on the Government’s motion, Rule 35(b). Rule 43 therefore sets the proceedings authorized by § 3582(c)(2) and Rule 35 apart from other sentencing proceedings.

Viewed that way, proceedings under § 3582(c)(2) do not im plicate the Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt. Taking the original sentence as given, any facts found by a judge at a § 3582(c)(2) proceeding do not serve to increase the pre scribed range of punishment; instead, they affect only the judge’s exercise of discretion within that range. “[J]udges in this country have long exercised discretion of this nature in imposing sentence within [established] limits in the indi vidual case,” and the exercise of such discretion does not p. 829contravene the Sixth Amendment even if it is informed by judge-found facts. Apprendi v. New Jersey, 530 U. S. 466, 481 (2000) (emphasis in original). Because § 3582(c)(2) pro ceedings give judges no more than this circumscribed discre tion, “[t]here is no encroachment here by the judge upon facts historically found by the jury, nor any threat to the jury’s domain as a bulwark at trial between the State and the accused.” Oregon v. Ice, 555 U. S. 160, 169 (2009). Ac cordingly, Dillon’s Sixth Amendment rights were not vio lated by the District Court’s adherence to the instruction in § 1B1.10 to consider a reduction only within the amended Guidelines range.

This argument is unpersuasive. The incomplete remedy we rejected in Booker would have required courts to treat the Guidelines differently in similar proceedings, leading po tentially to unfair results and considerable administrative p. 830challenges. See 543 U. S., at 266. As already explained, the sentence-modification proceedings authorized by § 3582(c)(2) are readily distinguishable from other sentencing proceedings. Given the substantially different purpose of § 3582(c)(2) and the circumscribed nature of proceedings under that section, requiring courts to honor § 1B1.10(b)(2)’s instruction not to depart from the amended Guidelines range at such proceedings will create none of the confusion or un fairness that led us in Booker to reject the Government’s argument for a partial fix.

Justice Alito took no part in the decision of this case. Justice Stevens, dissenting. When sentencing petitioner Percy Dillon for crack-cocaine-related offenses in 1993, the District Court stated p. 832that the punishment Dillon received was “entirely too high for the crime [he] committed.” App. 13. Bound by a sen tencing regime that was mandatory at the time, the judge had no choice but to sentence Dillon to 322 months of impris onment—nearly 27 years behind bars. The judge later ex plained that, were it within his discretion, he would have sentenced Dillon to five years of imprisonment. Id., at 62. Had Dillon been sentenced after our decision in United States v. Booker, 543 U. S. 220 (2005), the judge would have had substantially more discretion. Instead, the District Court was compelled to mete out a punishment that it be lieved to be grossly disproportionate to the offense and, therefore, “greater than necessary” to meet the goals of our criminal justice system, 18 U. S. C. § 3553(a).

Today, the Court holds that in this one limited nook of sentencing law, the Commission retains the power to bind judges that we struck down in Booker. In my view, the Court’s decision to treat the Commission’s policy statement as a mandatory command rather than an advisory recommen dation is unfaithful to Booker. It is also on dubious constitu tional footing, as it permits the Commission to exercise a barely constrained form of lawmaking authority. And it is manifestly unjust. I would therefore hold that in the con text of a § 3582(c)(2) sentence modification proceeding, the p. 834District Court may consider, but is not bound by, any applica ble policy statements promulgated by the Commission. In other words, I would apply Booker’s remedial holding to § 3582(c)(2) proceedings.

Prior to our decision in Booker, the Guidelines were man datory only by virtue of congressional mandate, and not by p. 835virtue of Commission decree. See 18 U. S. C. § 3553(b)(1). Following Booker, the Commission’s policy statement in § 1B1.10 took effect in March 2008. That statement, I will explain more fully in Part II, infra, is now the only source of binding authority in § 3582(c)(2) proceedings, as it pur ports to have the effect of reinstating a mandatory Guide lines regime within the context of a sentence modification proceeding. It is now the Commission’s policy statement, and not an explicit congressional mandate, that makes the Guidelines ranges binding under § 3582(c)(2).

While we resolved that constitutional debate in the Com mission’s favor in Mistretta, it became apparent during the next two decades that the mandatory character of the Guide lines, coupled with the practice of judicial factfinding, not only produced a host of excessively severe sentences but also created an unacceptable risk of depriving defendants of long-settled constitutional protections. See, e. g., Apprendi v. New Jersey, 530 U. S. 466, 490 (2000) (holding that “[o]ther than the fact of a prior conviction, any fact that increases p. 836the penalty for a crime beyond the prescribed statutory max imum must be submitted to a jury, and proved beyond a rea sonable doubt”); Ring v. Arizona, 536 U. S. 584, 602 (2002) (holding that “[i]f a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt”); Blakely v. Washing ton, 542 U. S. 296, 304 (2004) (holding that “[w]hen a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority” (citation omitted)).

The Booker Court considered whether the Sentencing Re form Act’s mandatory determinate sentencing scheme in fringed the jury-trial right. In the first of two opinions, we held that the two applications of the Guidelines before us violated the Sixth Amendment because the sentencing judge in each case imposed a more severe sentence than the facts found by the jury warranted. 543 U. S., at 235. We recog nized that if the Guidelines “could be read as merely advi sory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amend p. 837ment.” Id., at 233. But we rejected such an advisory read ing of the Guidelines, as they then stood. Id., at 234. To satisfy constitutional guarantees, we explained that any fact that has the effect of increasing the mandatory range must be “established by a plea of guilty or . . . must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id., at 244. Otherwise, the sentence would violate the Sixth (and the Fifth) Amendment.

That change did not respond to a determination that the mandatory Guidelines regime itself violated the Sixth Amendment. Neither my opinion for the Court with re spect to our constitutional holding, nor Justice Breyer’s remedial opinion, contained any such determination. In stead, the Court’s decision to make the Guidelines discretion ary rested entirely on the majority’s judgment that Congress would have preferred that result to either an increase in the jury’s role in making factual findings or a decision invalidat ing the entire regime. Id., at 249. When Congress was wrestling with the Sentencing Reform Act of 1984, it did not foresee Apprendi, Ring, and Blakely. The Court made a policy-based prediction that, were Congress to have had such p. 838foresight, it would not have elected—in any respect—a man datory sentencing regime.

“We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory, 18 U. S. C. § 3553(b)(1) (Supp. IV), incompatible with today’s constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section, § 3742(e) (2000 ed. and Supp. IV), which depends upon the Guide lines’ mandatory nature. So modified, the federal sen tencing statute, see Sentencing Reform Act of 1984 (Sentencing Act), as amended, 18 U. S. C. § 3551 et seq., p. 83928 U. S. C. § 991 et seq., makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18 U. S. C. § 3553(a)(4) (Supp. IV), but it permits the court to tailor the sentence in light of other statutory concerns as well, see § 3553(a).” Id., at 245–246.

Were it not clear from the foregoing discussion of Booker itself, our post-Booker decisions have repeatedly emphasized the completely advisory nature of the Guidelines. See, e. g., Cunningham v. California, 549 U. S. 270, 286–287 (2007) (“Under the system described in Justice Breyer’s opinion p. 840for the Court in Booker, judges would no longer be tied to the sentencing range indicated in the Guidelines. But they would be obliged to ‘take account of ’ that range along with the sentencing goals Congress enumerated in the [Sentenc ing Reform Act of 1984] at 18 U. S. C. § 3553(a)”); Rita v. United States, 551 U. S. 338, 351 (2007) (“[T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply”); Gall v. United States, 552 U. S. 38, 46 (2007) (“As a result of our decision [in Booker], the Guidelines are now advisory, and appellate re view of sentencing decisions is limited to determining whether they are ‘reasonable’ ”); Kimbrough v. United States, 552 U. S. 85, 101 (2007) (“In sum, while the statute still requires a court to give respectful consideration to the Guidelines, Booker permits the court to tailor the sentence in light of other statutory concerns as well” (internal quotation marks and citation omitted)); Spears v. United States, 555 U. S. 261, 265–266 (2009) (per curiam) (“[W]e now clarify that district courts are entitled to reject and vary categori cally from the crack cocaine Guidelines based on a policy dis agreement with those Guidelines”).6 Our case law is quite p. 841clear: The Guidelines no longer have mandatory and binding effect, and the sentencing court may not presume them cor rect or reasonable when it considers an individual sentenc ing decision.

My understanding of the scope of the Booker remedy is reinforced by an additional consideration: The Commission’s policy statement, to which the Court today allows binding effect, may exceed the scope of the Commission’s powers. No one disputes that Congress could have rejected the Court’s remedial holding in Booker if it so wished. Instead, it is the Commission that has rejected Booker’s application to § 3582(c)(2), by purporting to give mandatory force to its own policy statement. That action presses the bounds of the authority Congress validly gave the Commission in 1984, for it is not clear that Congress has authorized the Commis p. 842sion to create this type of policy statement or to circumvent a decision such as Booker on its own accord.

We explained that “although Congress granted the Com mission substantial discretion in formulating guidelines, in actuality it legislated a full hierarchy of punishment—from near maximum imprisonment, to substantial imprisonment, to some imprisonment, to alternatives—and stipulated the p. 843most important offense and offender characteristics to place defendants within these categories.” Id., at 377. There was, accordingly, no “concern of encroachment and aggran dizement that has animated our separation-of-powers juris prudence and aroused our vigilance against the ‘hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power.’ ” Id., at 382 (quoting INS v. Chadha, 462 U. S. 919, 951 (1983)).

First, I am doubtful that Congress authorized the type of “policy statement” we find in USSG § 1B1.10. Congress instructed the Commission to promulgate “general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes set forth in section 3553(a)(2) of title 18 . . . including the appropriate use of,” inter alia, various “sentence modifica tion provisions.” 28 U. S. C. § 994(a)(2). As envisioned by the Sentencing Reform Act, the role of policy statements was merely to inform the judge’s exercise of discretion within p. 844an otherwise mandatory Guidelines regime. See S. Rep. No. 98–225, p. 167 (1983) (explaining that the “sentencing judge is required to take the policy statements into account in deciding what sentence to impose,” but that departure from a policy statement is not itself grounds for appeal); see also id., at 166 (identifying potential use of policy statement to “offe[r] recommendations as to how” to “trea[t]” “in the future” “existing disparities which are not adequately cured by the guidelines”). Congress reserved binding effect for the Commission’s “guidelines,” which the Commission was to promulgate pursuant to a distinct statutory provision, § 994(a)(1). The Sentencing Reform Act thus drew a basic distinction: Guidelines would bind; policy statements would advise.

How to respond to Booker, and whether to retain manda tory Guidelines, was a decision for Congress—and Congress alone. Booker expressly left “[t]he ball” “in Congress’ court, ” explaining that “[t]he National Legislature is equipped to devise and install, long term, the sentencing sys p. 845tem, compatible with the Constitution, that Congress judges best for the federal system of justice.” 543 U. S., at 265; see also supra, at 834–835. That Congress has declined to disturb Booker in the five years since its issuance demon strates not only that Justice Breyer is more clairvoyant than I am, but also that Congress has acquiesced to a discre tionary Guidelines regime. Congress’ silence has deprived the Commission of any “intelligible principle[s],” J. W. Hamp ton, 276 U. S., at 409, by which to steer its consideration of the appropriate response to Booker. And without such guid ance, I fear that, in promulgating USSG § 1B1.10, the Com mission may have made the type of “basic policy decisio[n]” that Justice Scalia reminded us is the province of the Leg islature, Mistretta, 488 U. S., at 415 (dissenting opinion).

There can be no question that the purpose of the Commis sion’s amendments to its policy statement in § 1B1.10 was to circumvent the Booker remedy. See Brief for Federal Pub lic and Community Defenders et al. as Amici Curiae 3–9 (describing history of promulgation of current version of § 1B1.10). To this end, the Commission disclaimed that pro ceedings under § 3582(c)(2) “constitute a full resentencing of the defendant.” USSG § 1B1.10(a)(3). And it advised that “the court shall not reduce the defendant’s term of imprison ment under 18 U. S. C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended g uidel i ne range deter mi ned” under the new range. p. 846§ 1B1.10(b)(2)(A). In other words, the Commission told fed eral courts that its Guidelines, at least in § 3582(c)(2) pro ceedings, remain mandatory and binding.

Even if that explanation were accurate, it should not in fluence our assessment of the legal question before us. The Commission has a statutory obligation to review and amend p. 847Guidelines ranges. 28 U. S. C. § 994(o). And Congress has commanded that the Commission “shall specify in what cir cumstances” an amendment is retroactive, indicating that most, if not all, substantial amendments are to receive some type of retroactive effect. § 994(u); see also S. Rep. No. 98–225, at 180 (“It should be noted that the Committee does not expect that the Commission will recommend adjust ing existing sentences under [§ 3582(c)(2)] when guidelines are simply refined in a way that might cause isolated in stances of existing sentences falling above the old guidelines or when there is only a minor downward adjustment in the guidelines”). In other words, while Congress has left the retroactivity decision to the Commission’s discretion, it has done so with the presumption that some form of retroactive relief is appropriate when a Guidelines amendment is non trivial.8 I cannot accept that the Commission would ignore its obligations, and would withhold retroactive application of a Guidelines reduction, simply because a judge would p. 848have discretion to enter a below-Guidelines sentence in a § 3582(c)(2) proceeding.

But the District Court, constrained by the then-mandatory Guidelines, increased Dillon’s sentence based on judge-found p. 849facts by more than 10 years over the sentence authorized by the jury’s verdict. See Brief for Petitioner 2, and n. 2. The court could only lament: “I personally don’t believe that you should be serving 322 months. But I feel I am bound by those Guidelines and I don’t feel there is any grounds for . . . depart[ing] from those Guidelines.” App. 12–13. The court acknowledged: “I don’t say to you that these penalties are fair. I don’t think they are fair.” Id., at 13. The court also implored Dillon to make something of the hand he had dealt himself: “I hope that while you are in prison . . . that you will take some time to consider the direction that your life will take when you do return to society. . . . It is only through people like you if you spread the word that other young men of your age will hesitate to get involved in [dealing drugs].” Ibid.

The Government concedes that Dillon has undertaken “significant institutional rehabilitation and education.” Brief for United States 11. The Court of Appeals acknowl edged that “[i]f Booker did apply in proceedings pursuant to p. 850§ 3582, Dillon would likely be an ideal candidate for a non-Guidelines sentence.” 572 F. 3d 146, 147 (CA3 2009). And yet, now, the Government will continue to spend more than $25,000 a year to keep Dillon behind bars until his release date.9