United States v. Holcomb ( 2017 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 23, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 16-2077
PERCY HOLCOMB,
Defendant-Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 2:01-CR-00218-LH-1)
_________________________________
Submitted on the briefs. *
Stephen P. McCue, Federal Public Defender, and Darcy Blue Riley,
Assistant Federal Public Defender, Las Cruces, New Mexico, for
Defendant-Appellant.
Damon P. Martinez, United States Attorney, and C. Paige Messec,
Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-
Appellee.
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Before O’BRIEN and BACHARACH, Circuit Judges.  
*
We conclude that oral argument would not materially help us to
decide this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
Thus, we are deciding the appeal based on the briefs.

The Honorable Neil Gorsuch was a judge of this Court when the
appeal began, but he is now a member of the United States Supreme Court.
The practice of this court permits the remaining two panel judges, if in
_________________________________
This appeal involves the constitutionality of a provision in the U.S.
Sentencing Guidelines: § 1B1.10(b)(2)(B). Under this provision, the
district court can reduce a sentence when the U.S. Sentencing Commission
amends the guidelines by reducing the applicable guideline range.
Mr. Percy Holcomb invoked § 1B1.10(b)(2)(B) in 2014, seeking
reduction of the sentence that he had received in 2002. But in 2011, the
U.S. Sentencing Commission tightened § 1B1.10(b)(2)(B)’s eligibility
requirements. This tightening worked against Mr. Holcomb: Under the
2002 version, he would have been eligible for relief; under the 2014
version, he was not. The district court applied the 2014 version and held
that Mr. Holcomb was ineligible for relief under § 1B1.10(b)(2)(B).
According to Mr. Holcomb, application of the 2014 version resulted
in a violation of the Ex Post Facto Clause, exceeded the Sentencing
Commission’s statutory authority, and usurped the judiciary’s authority to
determine an appropriate sentence. We reject these challenges: Our
precedent forecloses relief under the Ex Post Facto Clause, Congress
authorized the Sentencing Commission to determine the retroactivity of its
agreement, to act as a quorum in resolving the appeal. See 28 U.S.C.
§ 46(d) (2012); see also United States v. Wiles, 106 F.3d 1516, 1516, at n*
(10th Cir. 1997) (noting that this court allows remaining panel judges to
act as a quorum to resolve an appeal). In this case, the two remaining panel
members are in agreement.
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amendments, and § 1B1.10(b)(2)(B) did not usurp a judicial function.
Accordingly, we affirm.
1. Standard of Review
In determining these challenges to § 1B1.10(b)(2)(B), we engage in
de novo review. United States v. LeRoy, 984 F.2d 1095, 1096 (10th Cir.
1993).
2. Ex Post Facto Clause
According to Mr. Holcomb, the Constitution’s Ex Post Facto Clause
required application of the guideline version that was in effect when the
crime was committed (2000). We rejected a virtually identical claim in
United States v. Kurtz, 819 F.3d 1230, 1237 (10th Cir. 2016). There we
explained that § 1B1.10 does not increase the punishment; instead, the
provision simply narrows courts’ discretion to decrease a sentence. Id. at
1236; see also United States v. Womack, 833 F.3d 1237, 1240 (10th Cir.
2016) (holding that the Ex Post Facto Clause is not violated by a guideline
amendment that narrows the district court’s discretion to reduce a
sentence). Our holding in Kurtz is consistent with the holdings of every
other circuit court to address the question. See United States v. Ramirez,
846 F.3d 615, 625 (2d Cir. 2017); United States v. Kruger, 838 F.3d 786,
790-92 (6th Cir. 2016); United States v. Thompson, 825 F.3d 198, 200, 206
(3d Cir. 2016), cert. denied, 137 S. Ct. 326 (2016); United States v.
Waters, 771 F.3d 679, 680-81 (9th Cir. 2014) (per curiam); United States
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v. Diggs, 768 F.3d 643, 645-46 (7th Cir. 2014); United States v. Colon, 707
F.3d 1255, 1258-59 (11th Cir. 2013).
Mr. Holcomb contends that Kurtz was wrongly decided. But one
panel cannot overrule another, and we are obligated to follow Kurtz.
United States v. Spaulding, 802 F.3d 1110, 1124-25 (10th Cir. 2015).
Under Kurtz, application of the 2014 version of § 1B1.10 did not violate
the Ex Post Facto Clause.
3. Statutory Authorization for the Enactment of § 1B1.10
Mr. Holcomb also argues that the Sentencing Commission exceeded
its statutory authority by amending § 1B1.10. We reject this argument.
Mr. Holcomb first argues that the new version of § 1B1.10 takes
away his prior downward variance or departure. This is not true. At the
original sentencing, Mr. Holcomb obtained a downward variance; no one is
taking that variance away. See Diggs, 768 F.3d at 646 (“[T]he Commission
did not require the district court to withdraw a specific variance . . . .”). In
2011, the Sentencing Commission simply limited the extent to which a
court could issue a new downward variance when reducing the sentence
under 18 U.S.C. § 3582(c)(2). See United States v. Berberena, 694 F.3d
514, 518, 521 (3d Cir. 2012) (“Rather than undo the effect of previous
departures and variances, the Commission has merely limited the extent to
which new ones can be awarded in § 3582(c)(2) proceedings.”).
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Second, Mr. Holcomb contends that the Commission can prohibit a
departure or variance only if the reason for the departure or variance
relates to the substance of the retroactive amendment. This contention is
invalid. Congress directed the U.S. Sentencing Commission to determine
“in what circumstances and by what amount” a sentence can be reduced
when the applicable guideline range is lowered. 28 U.S.C. § 994(u). The
Sentencing Commission complied with this directive by enacting § 1B1.10.
Braxton v. United States, 500 U.S. 342, 348 (1991).
For one or both of these reasons, every circuit court to address the
issue has held that § 1B1.10 is authorized by statute. Diggs, 768 F.3d at
646-47; United States v. Davis, 739 F.3d 1222, 1225 (9th Cir. 2014);
United States v. Hogan, 722 F.3d 55, 60 (1st Cir. 2013); United States v.
Erskine, 717 F.3d 131, 136-39 (2d Cir. 2013); United States v. Colon, 707
F.3d 1255, 1259-60 (11th Cir. 2013); Berberena, 694 F.3d at 520-23;
United States v. Anderson, 686 F.3d 585, 589-90 (8th Cir. 2012). We agree
with these circuit courts and similarly conclude that § 1B1.10 is authorized
by statute.
4. Commission’s Usurpation of Judicial Authority
Mr. Holcomb also challenges § 1B1.10 on the ground that the
Sentencing Commission usurped the judiciary’s sentencing authority. We
reject this challenge.
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The Sentencing Commission did not enact § 1B1.10 in a vacuum. As
noted above, the Commission adopted § 1B1.10 because of an express
delegation from Congress, which enjoys the power to curtail the judiciary’s
discretion over sentencing. See pp. 4-5, above (delegation of authority by
Congress); Mistretta v. United States, 488 U.S. 361, 364 (1989) (Congress
can curb the judiciary’s discretion over sentencing). Thus, every circuit
court to address the issue has held that the Sentencing Commission did not
usurp the judiciary’s sentencing authority by amending § 1B1.10. See
Davis, 739 F.3d at 1225; Erskine, 717 F.3d at 139-40; Colon, 707 F.3d at
1260-61; Berberena, 694 F.3d at 525-26. We agree with these circuit
courts and similarly conclude that the Sentencing Commission did not
usurp the judiciary’s authority.
5. Conclusion
We conclude that the tightening of § 1B1.10 does not violate the Ex
Post Facto Clause, exceed Congress’s delegation of authority to the
Sentencing Commission, or usurp the judiciary’s power over sentencing
decisions. Accordingly, we affirm.
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