OPINION OF THE COURT
DILLON V. UNITED STATES
560 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 09-6338
PERCY DILLON, PETITIONER
v. UNITED
STATES
on writ of certiorari to the united states court of
appeals for the third circuit
[June 17, 2010]
Justice Sotomayor delivered the
opinion of the Court.
A federal court generally “may
not modify a term of imprisonment once it has been imposed.” 18 U.
S. C. §3582(c). Congress has provided an exception to that
rule “in the case of a defendant who has been sentenced to a term
of imprisonment based on a sentencing range that has subsequently
been lowered by the Sentencing Commission.” §3582(c)(2). In those
circumstances, §3582(c)(2) authorizes a court to reduce the term of
imprisonment “if such a reduction is consistent with” applicable
Commission policy statements. The policy statement governing
§3582(c)(2) proceedings instructs courts not to reduce a term of
imprisonment below the minimum of an amended sentencing range
except to the extent the original term of imprisonment was below
the range then applicable. See United States Sentencing Commission,
Guidelines Manual §1B1.10(b)(2) (Nov. 2009) (USSG). This case
presents the question whether our decision in
United
States v.
Booker,
543 U. S. 220 (2005),
which rendered the Guidelines advisory to remedy the Sixth
Amendment problems associated with a mandatory sentencing regime,
requires treating §1B1.10(b) as nonbinding. We conclude that
Booker does not demand that result.
I
The Sentencing Reform Act of 1984
(SRA or Act), 98 Stat. 1987, established the Sentencing Commission
and authorized it to promulgate Sentencing Guidelines and to issue
policy statements regarding the Guidelines’ application. See 28 U.
S. C. §§991, 994(a). The Act also charged the Commission with
periodically reviewing and revising the Guidelines. See
§994(
o). When a revision reduces the Guidelines range for
a given offense, the Commission must determine “in what
circumstances and by what amount the sentences of prisoners serving
terms of imprisonment for the offense may be reduced.” §994(u).
As enacted, the SRA made the
Sentencing Guidelines binding. See
Booker, 543 U. S., at
233–234. Except in limited circumstances, district courts lacked
discretion to depart from the Guidelines range. See
Burns
v.
United States,
501 U. S. 129, 133
(1991). Under that regime, facts found by a judge by a
preponderance of the evidence often increased the mandatory
Guidelines range and permitted the judge to impose a sentence
greater than that supported by the facts established by the jury
verdict or guilty plea. See
Booker, 543 U. S., at 235. We
held in
Booker that treating the Guidelines as mandatory
in these circumstances violated the Sixth Amendment right of
criminal defendants to be tried by a jury and to have every element
of an offense proved by the Government beyond a reasonable doubt.
Id., at 243–244.
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
generally 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 departures. 543 U. S., at
259. “With these two sections excised (and statutory
cross-references to the two sections consequently invalidated),” we
held that “the remainder of the Act satisfies the Court’s
constitutional requirements.”
Ibid. Booker thus
left intact other provisions of the SRA, including 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).
With respect to drug-trafficking offenses, the
Sentencing Guidelines establish a defendant’s base offense level
according to the type and weight of the drug. See USSG §§2D1.1(a),
(c). When the Commission first promulgated the Guidelines in 1987,
it adopted the 100-to-1 ratio selected by Congress in setting
mandatory minimum sentences in the Anti-Drug Abuse Act of 1986, 100
Stat. 3207. Under that framework, the Commission “treated every
gram of crack cocaine as the equivalent of 100 grams of powder
cocaine.”
Kimbrough v.
United States,
552 U. S. 85, 96 (2007).
The Commission later sought to alleviate the disparity produced by
this ratio. After several failed attempts at reform, see
id., at 99, the Commission in 2007 amended the Guidelines
to reduce by two levels the base offense level associated with each
quantity of crack cocaine. See USSG Supp. App. C, Amdt. 706
(effective Nov. 1, 2007). In 2008, the Commission made that
amendment retroactive. See
id., Amdt. 713 (effective Mar.
3, 2008).
When the Commission makes a Guidelines
amendment retroactive, 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 Commission.
The relevant policy statement, USSG §1B1.10, instructs 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).[
Footnote 1] Under §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.”[
Footnote 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.”
II
A jury convicted petitioner Percy
Dillon in 1993 of conspiracy to distribute and to possess with the
intent to distribute more than 500 grams of powder cocaine and more
than 50 grams of crack cocaine in violation of 21 U. S. C.
§846, possession with the intent to distribute more than 500 grams
of powder cocaine in violation of §841(a)(1), and use of a firearm
during and in relation to a drug-trafficking offense in violation
of 18 U. S. C. §924(c)(1). Dillon’s convictions exposed him to
a statutory sentencing range of 10 years to life for the
conspiracy, 5-to-40 years for cocaine possession, and a mandatory
minimum sentence of 5 years for the firearm offense, to be served
consecutively to the sentence for the drug offenses.
At sentencing, the District Court
made additional findings of fact and concluded that Dillon was
responsible for 1.5 kilograms 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
responsibility, §3E1.1, and reckless endangerment during flight,
§3C1.2, Dillon’s total offense level remained 38. Coupled with a
criminal-history category of II,[
Footnote 3] that offense level produced a then-mandatory
Guidelines range of 262-to-327 months’ imprisonment for the drug
counts.
The court sentenced Dillon at the bottom of
the Guidelines range for those counts, followed by a mandatory
60-month sentence for the firearm count, for a total sentence of
322 months’ imprisonment. At Dillon’s sentencing, the court
described the term of imprisonment as “entirely too high for the
crime [Dillon] committed.” App. 13. Perceiving no basis for
departing from the then-mandatory Sentencing Guidelines, the
District Court felt constrained to impose a sentence within the
prescribed range. The Court of Appeals for the Third Circuit
affirmed Dillon’s convictions and sentence on appeal. See 100
F. 3d 949 (1996).
After the Sentencing Commission made the
amendment to the crack-cocaine Guidelines retroactive in 2008,
Dillon filed a
pro se motion for a sentence reduction
pursuant to §3582(c)(2). In the motion, Dillon asked the court to
grant not just the two-level reduction authorized by the amendment
but also a further reduction consistent with the sentencing factors
found in §3553(a). Based largely on his postsentencing conduct,
including his determined pursuit of educational and
community-outreach opportunities, Dillon contended that a variance
from the amended Guidelines range was warranted in his case. He
further urged that, after
Booker, the court was authorized
to grant such a variance because the amended Guidelines range was
advisory notwithstanding any contrary statement in §1B1.10.
The District Court reduced Dillon’s sentence
to 270 months—the term at the bottom of the revised Guidelines
range.[
Footnote 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 proceeding and accordingly
held that it lacked authority to impose a sentence inconsistent
with §1B1.10.
The Third Circuit affirmed. 572 F. 3d
146, 150 (2009). The court noted that §3582(c)(2) is codified in a
different section than the provisions invalidated in
Booker and contains no cross-reference to those
provisions. Finding no other indication that
Booker
“obviate[d] the congressional directive in §3582(c)(2) that a
sentence reduction pursuant to that section be consistent with
Sentencing Commission policy statements,” 572 F. 3d, at 149,
the Third Circuit held that §1B1.10 is binding. It therefore agreed
that the District Court lacked authority to reduce Dillon’s
sentence below the amended Guidelines range.
We granted certiorari to consider
Booker’s applicability to §3582(c)(2) proceedings. 558 U.
S. ___ (2009).
III
A
“[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 sentencing 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, Congress has authorized courts to “reduce the term of
imprisonment, after considering the factors set forth in section
3553(a) to the extent that they are applicable, if such a reduction
is consistent with applicable policy statements issued by the
Sentencing Commission.” §3582(c)(2).
Characterizing proceedings under
§3582(c)(2) as “resentencing” proceedings, Dillon contends that
“[t]here is no practical or functional difference between a
resentencing pursuant to §3582(c)(2) and any other resentencing.”
Brief for Petitioner 18. Accordingly, Dillon urges, the same
principles that govern other sentencing proceedings likewise govern
§3582(c)(2) proceedings, and courts have authority under
§3582(c)(2) to vary from the revised Guidelines range consistent
with §3553(a), see
Kimbrough, 552 U. S., at 101. Dillon
cites as support for this view §3582(c)(2)’s instruction to
consider the factors in §3553(a) in determining whether a sentence
reduction is warranted. Under Dillon’s approach,
Booker
would preclude the Commission from issuing a policy statement that
generally forecloses below-Guidelines sentences at §3582(c)(2)
proceedings, as USSG §1B1.10 purports to do. Dillon thus asks us to
excise the mandatory language of §1B1.10(b)(2)(A) and treat that
provision as advisory, just as we did the offending statutory
provisions in
Booker.
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 imprisonment” by giving courts the power to “reduce” an
otherwise final sentence in circumstances specified by the
Commission. 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 remand” and describing
the proceeding as a “resentenc[ing]” (capitalization omitted)). It
is also notable that the provision applies only to a limited class
of prisoners—namely, those whose sentence was based on a sentencing
range subsequently 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.
The substantial role Congress gave the
Commission with respect to sentence-modification proceedings
further supports this conclusion. The SRA charges the Commission
both with deciding whether to amend the Guidelines,
§994(
o), and with determining whether and to what extent
an amendment will be retroactive, §994(u).[
Footnote 5] A court’s power under §3582(c)(2) thus
depends in the first instance on the Commission’s decision not just
to amend the Guidelines but to make the amendment retroactive. The
court is also constrained by the Commission’s statements dictating
“by what amount” the sentence of a prisoner serving a term of
imprisonment affected by the amendment “may be reduced.” §994(u);
see also
Braxton v.
United States,
500 U. S. 344, 348
(1991) (noting that the Commission implemented that power through
§1B1.10).
Read in this context, §3582(c)(2)’s reference
to §3553(a) does not undermine our narrow view of proceedings under
the former provision. Section 3582(c)(2) instructs a district court
to “conside[r] the factors set forth in section 3553(a) to the
extent that they are applicable,” but it authorizes a reduction on
that basis only “if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission”—namely,
§1B1.10. The statute thus establishes a two-step inquiry. A court
must first determine that a reduction is consistent with §1B1.10
before it may consider whether the authorized reduction is
warranted, either in whole or in part, according to the factors set
forth in §3553(a).
Following this two-step approach, a district
court proceeding under §3582(c)(2) does not impose a new sentence
in the usual sense. At step one, §3582(c)(2) requires the court to
follow the Commission’s instructions in §1B1.10 to determine the
prisoner’s eligibility for a sentence modification and the extent
of the reduction authorized. Specifically, §1B1.10(b)(1) requires
the court to begin by “determin[ing] the amended guideline range
that would have been applicable to the defendant” had the relevant
amendment been in effect at the time of the initial sentencing. “In
making such determination, the court shall substitute only the
amendments listed in subsection (c) for the corresponding guideline
provisions that were applied when the defendant was sentenced and
shall leave all other guideline application decisions unaffected.”
Ibid.
Consistent with the limited nature of
§3582(c)(2) proceedings, §1B1.10(b)(2) also confines the extent of
the reduction authorized. Courts generally may “not reduce the
defendant’s term of imprisonment under 18 U. S. C. §3582(c)(2)
… to a term that is less than the minimum of the amended guideline
range” produced by the substitution. §1B1.10(b)(2)(A). Only if the
sentencing court originally imposed a term of imprisonment below
the Guidelines range does §1B1.10 authorize a court proceeding
under §3582(c)(2) to impose a term “comparably” below the amended
range. §1B1.10(b)(2)(B).
At step two of the inquiry, §3582(c)(2)
instructs a court to consider any applicable §3553(a) factors and
determine whether, in its discretion, the reduction authorized by
reference to the policies relevant at step one is warranted in
whole or in part under the particular circumstances of the case.
Because reference to §3553(a) is appropriate only at the second
step of this circumscribed inquiry, it cannot serve to transform
the proceedings under §3582(c)(2) into plenary resentencing
proceedings.
This understanding of §3582(c)(2) as a narrow
exception to the rule of finality finds further support outside the
statute. Federal Rule of Criminal Procedure 43 requires that a
defendant 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 sentencing, 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.
B
Given the limited scope and
purpose of §3582(c)(2), we conclude that proceedings under that
section do not implicate the interests identified in
Booker. Notably, the sentence-modification proceedings
authorized by §3582(c)(2) are not constitutionally compelled. We
are aware of no constitutional requirement of retroactivity that
entitles defendants sentenced to a term of imprisonment to the
benefit of subsequent Guidelines amendments. Rather, §3582(c)(2)
represents a congressional act of lenity intended to give prisoners
the benefit of later enacted adjustments to the judgments reflected
in the Guidelines.
Viewed that way, proceedings
under §3582(c)(2) do not implicate 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 prescribed
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 individual case,” and
the exercise of such discretion does not contravene 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) proceedings give
judges no more than this circumscribed discretion, “[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. ___, ___ (2009) (slip op., at 8).
Accordingly, Dillon’s Sixth Amendment rights were not violated by
the District Court’s adherence to the instruction in §1B1.10 to
consider a reduction only within the amended Guidelines range.
Dillon contends that, even if §3582(c)(2) does
not implicate the constitutional rights vindicated in
Booker—something the dissent appears to concede—the
remedial aspect of the Court’s decision applies to proceedings
under that section and requires that the Guidelines be treated as
advisory in such proceedings just as they are in other sentencing
proceedings. In support of his position, Dillon invokes the Ninth
Circuit’s reasoning in
United States v.
Hicks,
472 F. 3d 1167, 1170 (2007).[
Footnote 6] Relying on our rejection in
Booker of
a remedy that would have made the Guidelines advisory only in
certain cases—namely, when treating them as binding would run afoul
of the Sixth Amendment, see 543 U. S., at 265–267—the Ninth Circuit
held that
Booker precludes treating the Guidelines as
mandatory for purposes of §3582(c)(2) and advisory in other
contexts, see
Hicks, 472 F. 3d, at 1171–1172.
This argument is unpersuasive. The incomplete
remedy we rejected in
Booker would have required courts to
treat the Guidelines differently in similar proceedings, leading
potentially to unfair results and considerable administrative
challenges. 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 unfairness that led us in
Booker to
reject the Government’s argument for a partial fix.
The dissent’s contrary conclusion rests on two
erroneous premises. First, the dissent ignores the fundamental
differences between sentencing and sentence-modification
proceedings and asserts without explanation that “[n]othing turns
on” the distinction between them.
Post, at 11. For the
reasons stated above, the statutory differences between the
proceedings are highly significant. Second, the
dissent gives short shrift to the fact that, after
Booker,
the Commission retains at least some authority to bind the courts.
Through §994(u), Congress charged the Commission with determining
“in what circumstances and by what amount” the sentences of
prisoners affected by Guidelines amendments “may be reduced.” No
one disputes that the Commission’s retroactivity determinations
made pursuant to the first part of that authorization are binding.
See
post, at 17, and n. 8. This aspect of the
Commission’s power emphatically undermines the dissent’s insistence
that the Guidelines after
Booker are “completely
advisory.”
Post, at 9. Moreover, while the dissent
criticizes our approach for leaving the Commission with only the
“the tiniest sliver of lawmaking power,”
post, at 11, the
dissent would leave the Commission with an even smaller and less
explicable sliver by dissecting the authority granted by
§994(u).
For all of these reasons, we conclude that
neither
Booker’s constitutional nor remedial holding
requires the result that Dillon urges.
IV
Dillon additionally contends that
the District Court erred in failing to correct two mistakes in his
original sentence. Under his view of §3582(c)(2), a district court
is required to recalculate a defendant’s sentence. Thus, any
mistakes committed at the initial sentencing are imposed anew if
they are not corrected. According to Dillon, the District Court in
the instant proceeding should have corrected the
Booker
error that resulted from the initial sentencing court’s treatment
of the Guidelines as mandatory, and it should have adjusted his
criminal-history category, which he now contends was erroneously
inflated.
Dillon’s arguments in this regard
are premised on the same misunderstanding of the scope of
§3582(c)(2) proceedings dispelled above. As noted, §3582(c)(2) does
not authorize a resentencing. Instead, it permits a sentence
reduction within the narrow bounds established by the Commission.
The relevant policy statement instructs that a court proceeding
under §3582(c)(2) “shall substitute” the amended Guidelines range
for the initial range “and shall leave all other guideline
application decisions unaffected.” §1B1.10(b)(1). Because the
aspects of his sentence that Dillon seeks to correct were not
affected by the Commission’s amendment to §2D1.1, they are outside
the scope of the proceeding authorized by §3582(c)(2), and the
District Court properly declined to address them.
* * *
For the foregoing reasons, the
judgment of the Court of Appeals is
Affirmed.
Justice Alito took no part in the
decision of this case.
Footnote 1
The Sentencing Commission substantially
revised §1B1.10 in March 2008, see USSG Supp. App. C, Amdt. 712
(Nov. 2009) (effective Mar. 3, 2008), roughly three months before
the District Court’s decision in this case. Because the current
version of the relevant Guidelines provisions is not meaningfully
different from the version in effect at the time of the District
Court’s decision, references in this opinion are to the current,
2009 edition of the Guidelines.
Footnote 2
Section 3553(a) provides that a “court shall
impose a sentence sufficient, but not greater than necessary, to
comply with the purposes set forth in paragraph (2) of this
subsection,” and it enumerates several factors a court “shall
consider” in determining an appropriate sentence, including “the
nature and circumstances of the offense and the history and
characteristics of the defendant,” §3553(a)(1).
Footnote 3
The Probation Office based Dillon’s
criminal-history assessment on two prior misdemeanor convictions,
one for possession of marijuana and one for resisting arrest.
Dillon did not object to that calculation of his criminal-history
score.
Footnote 4
The revised sentence reflects a 210-month
term of imprisonment for the narcotics offenses and a mandatory,
consecutive 60-month term for the firearm offense.
Footnote 5
We do not respond to the dissent’s
separation-of-powers discussion, see
post, at 11–16
(opinion of Stevens, J.), as that issue is not fairly encompassed
within the questions presented and was not briefed by the
parties.
Footnote 6
The Ninth Circuit subsequently agreed to
consider en banc
Booker’s applicability to §3582(c)(2)
proceedings. See
United States v.
Fox, 583
F. 3d 596 (2009). The matter was stayed pending our decision
in this case. No. 08–30445 (CA9, Dec. 8, 2009).
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