United States v. Harris ( 2009 )

BYE, Circuit Judge,

concurring in the judgment.

Because I am bound by Circuit precedent, see Drake v. Scott, 812 F.2d 395, 400 (8th Cir.1987), I reluctantly concur in the judgment. I write separately because I believe this Court erroneously concluded in United States v. Starks, 551 F.3d 839 (8th Cir.2009), that a district court does not have the authority to reduce a defendant’s sentence to a term below the amended guidelines range. See id. at 843. As noted in Starks, there is a circuit split on this issue. Compare United States v. Hicks, 472 F.3d 1167, 1169 (9th Cir.2007) (holding a district court has the authority to reduce a defendant’s sentence to a term below the amended guidelines range), with United States v. Rhodes, 549 F.3d 833, 841 (10th Cir.2008) (holding a district court does not have the authority to reduce a defendant’s sentence to a term below the amended guidelines range), United States v. Dunphy, 551 F.3d 247, 255 (4th Cir.2009) (same), United States v. Melvin, 556 F.3d 1190, 2009 WL 236053, at *3 (11th Cir. Feb.3, 2009) (same), United States v. Cunningham, 554 F.3d 703, 708-09 (7th Cir.2009) (same). Unlike the Starks court, I agree with the Ninth Circuit in Hicks.

18 U.S.C. § 3582(c)(2) grants the district court authority to resentence a defendant whose guidelines range has been retroactively lowered “if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” The “applicable policy statements” are found in the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.10. Section 1B1.10 makes the amended guidelines range mandatory upon resentencing by restricting the resentencing court’s authority to sentence outside of the amended guidelines range. See U.S.S.G. § lB1.10(b)(2)(A); id. app. note 3.

As the Hicks court concluded, however, § 1B1.10 cannot restrict a resentencing court’s discretion to sentence outside of the amended guidelines range because it is, like all of the guidelines, advisory under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Hicks, 472 F.3d at 1170. In Booker, the Supreme Court specifically rejected the government’s suggestion that the guidelines be considered advisory in certain cases but mandatory in all others. Id. at 266, 125 S.Ct. 738. Rather, the Court made clear the prohibition against a mandatory guidelines system applies in all contexts: “[A]s by now should be clear, [a] mandatory system is no longer an open choice.” Id. at 263, 125 S.Ct. 738. As such, to the extent § 1B1.10 has the effect of making the guidelines mandatory by limiting the district court’s ability to sentence outside of the amended guidelines range, Booker established it must be rendered advisory. Hicks, 472 F.3d at 1173.

In Starks, this Court relied upon the differences between original and resen-tencing procedures to conclude otherwise. 551 F.3d at 841-42. This distinction, however, is not persuasive because all of the guidelines are advisory. See Hicks, 472 F.3d at 1172 (“Mandatory Guidelines no longer exist, in [the resentencing] context or any other.”). Because Booker made clear the guidelines are no longer mandatory in any context, the guidelines should not be mandatory when resentencing a defendant. The district court thus should not be restricted to resentencing a defendant within the amended guidelines range.