United States of America v. Melvin Adams

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MELVIN ADAMS,
Defendant - Appellant.
No. 12-50194
D.C. No. 2:07-cr-00386-CAS-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted October 9, 2013
Pasadena, California
Before: REINHARDT, KLEINFELD, and CHRISTEN, Circuit Judges.
Melvin Adams appeals the district court’s order denying his motion for
reduction of sentence under 18 U.S.C. § 3582(c)(2). We have jurisdiction under 28
U.S.C. § 1291 to review the discretionary denial of a § 3582(c)(2) sentence
reduction motion. United States v. Trujillo, 713 F.3d 1003, 1008 n.3 (9th Cir.
FILED
NOV 20 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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2013). We review de novo whether a district court has jurisdiction to resentence a
defendant under § 3582. United States v. Wesson, 583 F.3d 728, 730 (9th Cir.
2009). We affirm the district court’s ruling.
Section 3582(c)(2) allows modification of a term of imprisonment when: (1)
the sentence is based on a sentencing range that has subsequently been lowered by
the Sentencing Commission; and (2) such reduction is consistent with applicable
policy statements issued by the Sentencing Commission. Id. The primary
applicable policy statement here is United States Sentencing Guideline
(“U.S.S.G.”) § 1B1.10, which states that a defendant is eligible for a sentence
reduction if “the guideline range applicable to that defendant has subsequently
been lowered as a result of an amendment to the Guidelines . . . .” U.S.S.G. §
1B1.10(a)(1) (emphasis added). The commentary to § 1B1.10 clarifies that
eligibility for a reduction of sentence is triggered only by an amendment that
lowers the applicable guideline range, and the guideline range 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). See United States v. Pleasant,
704 F.3d 808, 810–11 (9th Cir. 2013).
Here, Adams was ineligible for a sentence reduction because he failed §
3582(c)(2)’s second prong — that a sentence reduction must be consistent with
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applicable policy statements issued by the Sentencing Commission. 1 Before he
was sentenced by Judge Takasugi, Adams conceded that he “is a career offender
under the Guidelines” because of his prior convictions. Therefore, even though
Judge Takasugi appears to have based Adams’s initial sentence on U.S.S.G. §
2D1.1’s crack cocaine guideline, the “applicable” guideline was U.S.S.G. §
4B1.1’s career offender guideline. Since the Sentencing Commission did not
lower the guidelines for career offenders, Adams was ineligible for a sentence
reduction.
Adams argues that his case is distinguishable from Pleasant, noting that
Judge Takasugi never found that Adams was a career offender. But as already
mentioned, Adams conceded at the time of sentencing that his prior convictions put
him in the career offender category. In summarizing Adams’s sentencing
memorandum, Judge Takasugi noted that “[t]he defendant does concede he is a
career offender.” It is not significant that Judge Takasugi failed to make an
express finding concerning an uncontested issue.2
1 The parties do not contest that Adams satisfied § 3582(c)(2)’s first
prong.
2 See U.S.S.G. § 4B1.1(b).
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Adams also argues that the 2011 amendment to Application Note 1(A) of
Guideline § 1B1.10 violates the United States Constitution’s Ex Post Facto Clause.
But amended Note 1(A) does not present “a sufficient risk of increasing the
measure of punishment attached to the covered crimes.” Peugh v United States,
133 S. Ct. 2072, 2089 (2013) (quotation marks and citations omitted). It cannot be
said that, as compared to when he committed the offense, Adams was exposed to a
risk of more punishment when the Commission clarified that the availability of a
new and rare resentencing remedy is limited to those who had been sentenced
based upon a subsequently reduced guideline. Separately, “there can be no ex post
facto problem if an amendment to the Guidelines merely clarifies its existing
substance as opposed to changing its substance.” United States v Johns, 5 F.3d
1267, 1269 (9th Cir. 1993). That is what amended Note 1(A) does. By its own
terms, the Sentencing Commission amended Note 1(A) “to clarify that the
applicable guideline range referred to in §1B1.10 is 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 .
. . or any variance.” See 76 Fed. Reg. 41332 (emphasis added).
Adams also argues that the current version of § 1B1.10 violates the
Administrative Procedure Act’s notice-and-comment and report-and-wait
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requirements. But the Sentencing Reform Act’s statutory scheme makes clear that
policy statements such as § 1B1.10 are subject to neither the APA’s 180-day
waiting period nor the notice-and-comment requirements for formally promulgated
rules. After considering the differences between Guidelines and policy statements
in 28 U.S.C. § 994(a), Congress imposed different requirements for the
Commission’s use of each tool. Section 994(x) states that “[t]he provisions of
section 553 of title 5, relating to publication in the Federal Register and public
hearing procedure, shall apply to the promulgation of guidelines pursuant to this
section.” 28 U.S.C. § 994(x) (emphasis added). Section 994(x) does not refer to
policy statements.3 See United States v. Tercero, No. 12-10404, slip op. at 11 (9th
Cir. Oct. 31, 2013).
Finally, Adams argues that the Commission usurped judicial and
Congressional authority by adopting Application Note 1(A). But Congress
directed that the Sentencing Commission “shall specify in what circumstances and
by what amount the sentences of prisoners serving terms of imprisonment for the
offense may be reduced.” 28 U.S.C. § 994(u). The Commission is directed to do
3 As the Third Circuit noted in United States v. Berberena, “[u]nlike in
certain surrounding provisions . . ., § 994(x) makes no reference to the
Commission’s issuance of policy statements. The omission can only be interpreted
to exclude policy statements from § 994(x)’s application of the APA’s
notice-and-comment provisions.” 694 F.3d 514, 526–27 (3rd Cir. 2012).
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so by adopting binding policy statements. See 28 U.S.C. § 994(a)(2)(C) (The
Commission “shall 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 [18 U.S.C. §
3553(a)(2)], including the appropriate use of . . . the sentence modification
provision[] set forth in section[] . . . 3582(c).”). That is exactly what it has done
with § 1B1.10. As such, Adams’s argument fails.
AFFIRMED.
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