Dillon v. United States

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DILLON v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 09–6338. Argued March 30, 2010—Decided June 17, 2010
In 1993, petitioner Dillon was convicted of, inter alia, crack and powder
cocaine offenses, which produced a base offense level of 38 and a
Guidelines range of 262-to-327 months’ imprisonment. The court
sentenced him at the bottom of the range for those counts. After the
Sentencing Commission amended the Guidelines to reduce the base
offense level associated with each quantity of crack cocaine, USSG
Supp. App. C, Amdt. 706, and made that amendment retroactive,
USSG Supp. App. C, Amdt. 713, Dillon moved for a sentence reduc
tion under 18 U. S. C. §3582(c)(2). That provision authorizes a
district court to reduce an otherwise final sentence pursuant to a
Guidelines amendment if a reduction is consistent with the Commis
sion’s policy statements. The relevant policy statement, USSG
§1B1.10, precludes a court from reducing a sentence “to a term that is
less than the minimum of the amended guidelines range” except in
limited circumstances. In addition to the two-level reduction author
ized by the amendment, Dillon sought a variance below the amended
Guidelines range, contending that United States v. Booker, 543 U. S.
220, authorized the exercise of such discretion. The District Court
imposed a sentence at the bottom of the revised range but declined to
grant a further reduction. Finding Booker inapplicable to §3582(c)(2)
proceedings, the court concluded that the Commission’s directives in
§1B1.10 constrained it to impose a sentence within the amended
Guidelines range. The Third Circuit affirmed.
Held: Booker’s holdings do not apply to §3582(c)(2) proceedings and
therefore do not require treating §1B1.10(b) as advisory. Pp. 6–14.
(a) The statute’s text and narrow scope belie Dillon’s characteriza
tion of proceedings under §3582(c)(2) as “resentencing” proceedings
governed by the same principles as other sentencing proceedings. In
2 DILLON v. UNITED STATES
Syllabus
stead, §3582(c)(2) authorizes only a limited adjustment to an other
wise final sentence. This conclusion is further supported by the sub
stantial 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) estab
lishes a two-step inquiry: A court must (1) determine the scope of the
reduction, if any, authorized by §1B1.10, and then (2) consider
whether the authorized reduction is warranted according to the ap
plicable §3553(a) factors. At step one, the court must follow the
Commission’s instructions in §1B1.10 to impose a term of imprison
ment within the amended Guidelines range unless the sentencing
court originally imposed a below-Guidelines sentence. §1B1.10(b)(2).
Because reference to §3553(a) is appropriate only at step two, that
provision does not transform §3582(c)(2) proceedings into plenary re
sentencing proceedings. Pp. 6–10.
(b) Given §3582(c)(2)’s limited scope and purpose, proceedings un
der that section do not implicate Booker. The section represents a
congressional act of lenity intended to give prisoners the benefit of
later enacted adjustments to the judgments reflected in the Guide
lines. 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 ex
ercise of discretion within that range. That exercise does not contra
vene the Sixth Amendment, even if it is informed by judge-found
facts. Apprendi v. New Jersey, 530 U. S. 466, 481. Thus, Dillon’s
Sixth Amendment rights were not violated by the District Court’s
adherence to §1B1.10’s instruction to consider a reduction only within
the amended Guidelines range. Dillon’s argument that Booker’s re
medial opinion nonetheless requires the Guidelines to be treated as
advisory in such proceedings is unpersuasive given that proceedings
under §3582(c)(2) are readily distinguishable from other sentencing
proceedings. Pp. 10–13.
(c) Also rejected is Dillon’s argument that the District Court should
have corrected other mistakes in his original sentence, namely, a
Booker error resulting from the initial sentencing court’s treatment of
the Guidelines as mandatory and an alleged error in the calculation
of his criminal-history category. Because those aspects of Dillon’s
sentence were not affected by the crack-cocaine Guidelines amend
ment, they are outside the scope of the §3582(c)(2) proceeding, and
the District Court properly declined to address them. Pp. 13–14.
572 F. 3d 146, affirmed.
Cite as: 560 U. S. ____ (2010) 3
Syllabus
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, and BREYER, JJ.,
joined. STEVENS, J., filed a dissenting opinion. ALITO, J., took no part
in the decision of the case.
Cite as: 560 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
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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 Com
mission.” §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 Commis
sion 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 advi
sory to remedy the Sixth Amendment problems associated
with a mandatory sentencing regime, requires treating
§1B1.10(b) as nonbinding. We conclude that Booker does
2 DILLON v. UNITED STATES
Opinion of the Court
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’ applica
tion. 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 sup
ported 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 cir
cumstances violated the Sixth Amendment right of crimi
nal 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
Cite as: 560 U. S. ____ (2010) 3
Opinion of the Court
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 de
termine when and to what extent a revision will be retro
active, §994(u).
With respect to drug-trafficking offenses, the Sentencing
Guidelines establish a defendant’s base offense level ac
cording 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 se
lected by Congress in setting mandatory minimum sen
tences 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 co
caine. 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 consis
tent with applicable policy statements issued by the Sen
tencing 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
4 DILLON v. UNITED STATES
Opinion of the Court
unaffected.” §1B1.10(b)(1).1 Under §3582(c)(2), a court
may then grant a reduction within the amended Guide
lines 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 cir
cumstances, 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 guide
line range.”
II
A jury convicted petitioner Percy Dillon in 1993 of con
spiracy 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 mini
mum sentence of 5 years for the firearm offense, to be
served consecutively to the sentence for the drug offenses.
——————
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.
2 Section 3553(a) provides that a “court shall impose a sentence suffi
cient, 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).
Cite as: 560 U. S. ____ (2010) 5
Opinion of the Court
At sentencing, the District Court made additional find
ings of fact and concluded that Dillon was responsible for
1.5 kilograms of crack and 1.6 kilograms of powder co
caine. Under USSG §2D1.1, those drug quantities pro
duced a base offense level of 38. After offsetting adjust
ments 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,3 that offense level produced a then
mandatory Guidelines range of 262-to-327 months’ im
prisonment for the drug counts.
The court sentenced Dillon at the bottom of the Guide
lines 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. Perceiv
ing no basis for departing from the then-mandatory Sen
tencing 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 convic
tions 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 amend
ment 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,
——————
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.
6 DILLON v. UNITED STATES
Opinion of the Court
Dillon contended that a variance from the amended Guide
lines 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.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 congres
sional 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 circum
——————
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.
Cite as: 560 U. S. ____ (2010) 7
Opinion of the Court
stances. §3582(b). Section 3582(c)(2) establishes an ex
ception to the general rule of finality “in the case of a
defendant who has been sentenced to a term of imprison
ment 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 appli
cable policy statements issued by the Sentencing Commis
sion.” §3582(c)(2).
Characterizing proceedings under §3582(c)(2) as “resen
tencing” 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 like
wise 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 characteriza
tion of proceedings under that section. By its terms,
§3582(c)(2) does not authorize a sentencing or resentenc
ing proceeding. Instead, it provides for the “modif[ication
of] a term of imprisonment” by giving courts the power to
8 DILLON v. UNITED STATES
Opinion of the Court
“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 modi
fication provisio[n]”), with 18 U. S. C. §3742(f) (authoriz
ing 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 lim
ited 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 Commis
sion 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).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 Guide
lines 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 imple
mented that power through §1B1.10).
Read in this context, §3582(c)(2)’s reference to §3553(a)
——————
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.
Cite as: 560 U. S. ____ (2010) 9
Opinion of the Court
does not undermine our narrow view of proceedings under
the former provision. Section 3582(c)(2) instructs a dis
trict 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 reduc
tion 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 pro
ceeding 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 modifi
cation and the extent of the reduction authorized. Specifi
cally, §1B1.10(b)(1) requires the court to begin by “deter
min[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 sen
tencing. “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) pro
ceedings, §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 substitu
tion. §1B1.10(b)(2)(A). Only if the sentencing court origi
nally imposed a term of imprisonment below the Guide
lines range does §1B1.10 authorize a court proceeding
10 DILLON v. UNITED STATES
Opinion of the Court
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 proceed
ings 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 circum
stances 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 impli
cate the interests identified in Booker. Notably, the sen
tence-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
Cite as: 560 U. S. ____ (2010) 11
Opinion of the Court
benefit of subsequent Guidelines amendments. Rather,
§3582(c)(2) represents a congressional act of lenity in
tended to give prisoners the benefit of later enacted ad
justments 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 impli
cate 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.
12 DILLON v. UNITED STATES
Opinion of the Court
Hicks, 472 F. 3d 1167, 1170 (2007).6 Relying on our rejec
tion 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 administra
tive challenges. See 543 U. S., at 266. As already ex
plained, 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 differ
ences between the proceedings are highly significant.
Second, the dissent gives short shrift to the fact that,
after Booker, the Commission retains at least some au
——————
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).
Cite as: 560 U. S. ____ (2010) 13
Opinion of the Court
thority to bind the courts. Through §994(u), Congress
charged the Commission with determining “in what cir
cumstances and by what amount” the sentences of prison
ers affected by Guidelines amendments “may be reduced.”
No one disputes that the Commission’s retroactivity de
terminations made pursuant to the first part of that au
thorization are binding. See post, at 17, and n. 8. This
aspect of the Commission’s power emphatically under
mines 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 Commis
sion 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 cor
rected the Booker error that resulted from the initial
sentencing court’s treatment of the Guidelines as manda
tory, 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) pro
ceedings 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
14 DILLON v. UNITED STATES
Opinion of the Court
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 Commis
sion’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.
Cite as: 560 U. S. ____ (2010) 1
STEVENS, J., dissenting
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 STEVENS, dissenting.
When sentencing petitioner Percy Dillon for crack co­
caine-related offenses in 1993, the District Court stated
that 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
imprisonment—nearly 27 years behind bars. The judge
later explained that, were it within his discretion, he
would have sentenced Dillon to 5 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 that discretion. Instead, the District
Court was compelled to mete out a punishment that it
believed 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).
The punishment Dillon received was so high, in part,
because at the time of his conviction our drug laws pun­
ished crack cocaine offenses 100 times more severely than
powder cocaine offenses. In 2007, as the Court explains,
see ante, at 3, the United States Sentencing Commission
(Commission) proposed a partial fix to this disparity,
lowering its Guidelines Manual1 ranges for crack cocaine
——————
1 The Guidelines Manual itself contains two types of provisions:
2 DILLON v. UNITED STATES
STEVENS, J., dissenting
offenses to a 20:1 ratio. See United States Sentencing
Commission, Guidelines Manual Supp. App. C, Amdt. 706
(Nov. 2009) (USSG) (effective Nov. 1, 2007). Pursuant to
its congressional mandate, see 28 U. S. C. §994(u), the
Commission made this change retroactive for those indi­
viduals, like Dillon, who were still serving sentences for
crack cocaine offenses. See USSG Supp. App. C, Amdt.
713 (effective Mar. 3, 2008).
Although Dillon does not have a constitutional right to
obtain the benefit of the Commission’s change, it is undis­
puted that he has a statutory right to do so. Under 18
U. S. C. §3582(c)(2), a federal prisoner “who has been
sentenced to a term of imprisonment based on a sentenc­
ing range that has subsequently been lowered” by the
Commission may seek a sentence reduction, but only after
the court “consider[s] the factors set forth in section
3553(a),” and only “if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.” Dillon sought such relief. His 322-month
sentence was reduced to a 270-month sentence—still 17½
years more than the sentencing judge thought necessary
as an initial matter.
In his §3582(c)(2) proceeding, Dillon alleged that his
circumstances warranted an additional reduction in light
of the fact that his sentence was “greater than necessary”
to effectuate the goals of our sentencing system, §3553(a).
He also emphasized that he has been a model inmate
during his 17 years in federal prison. Once again, how­
ever, the District Court felt that its hands were tied, this
——————
guidelines, see 28 U. S. C. §994(a)(1), and policy statements, see
§944(a)(2). I use “Guidelines” in this opinion to refer to both the guide­
lines as described in §994(a)(1), as well as more generally to all of the
provisions in the Guidelines Manual. The section numbers of both
types of provisions are enumerated identically within the Commission’s
Guidelines Manual, but their effects, as discussed in more detail herein,
are different.
Cite as: 560 U. S. ____ (2010) 3
STEVENS, J., dissenting
time because USSG §1B1.10(b)(2) purports to place a
mandatory limit on the extent of any sentence reduction
that a court may order pursuant to §3582(c)(2). And so,
giving the Commission’s statement the effect of law, the
District Court denied Dillon further relief.
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 state­
ment as a mandatory command rather than an advisory
recommendation is unfaithful to Booker. It is also on
dubious constitutional footing, as it permits the Commis­
sion to exercise a barely constrained form of lawmaking
authority. And it is manifestly unjust. I would therefore
hold that in the context of a §3582(c)(2) sentence modifica­
tion proceeding, the District Court may consider, but is
not bound by, any applicable policy statements promul­
gated by the Commission. In other words, I would apply
Booker’s remedial holding to §3582(c)(2) proceedings.
I
Although I did not join JUSTICE BREYER’s remedial
opinion for the Court in Booker, it is nevertheless clear to
me that its scope applies to §3582(c)(2) proceedings.
As an initial matter, it is of no moment that the Booker
Court did not excise any portion of §3582 when crafting its
remedy. At the time, there was nothing in §3582(c)(2)—
separate and apart from the Guidelines’ general manda­
tory nature—that would have limited the District Court’s
discretion in a §3582(c)(2) proceeding. There was, conse­
quently, nothing that needed excising. Relief under
§3582(c)(2) is available if it is “consistent with” the Com­
mission’s related policy statement. And when we decided
Booker, the particular policy statement at issue,
4 DILLON v. UNITED STATES
STEVENS, J., dissenting
§1B1.10(b), had no explicit binding effect.2
Prior to our decision in Booker, the Guidelines were
mandatory only by virtue of congressional mandate, and
not by virtue 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 purports to have the effect of reinstating
a mandatory Guidelines regime within the context of a
sentence modification proceeding. It is now the Commis­
sion’s policy statement, and not an explicit congressional
mandate, that makes the Guidelines ranges binding under
§3582(c)(2).
As a matter of textual analysis, divorced from judicial
precedent, it is certainly reasonable for the Court to find
that the Commission can set mandatory limits on sentence
reductions under §3582(c)(2). But it is a mistake, in my
view, to take such a narrow approach to the question
presented by this case. The Court has turned a blind eye
to the fundamental sea-change that was our decision in
Booker.
——————
2 From 1989 to 1994, the policy statement in §1B1.10 also contained
what could be described fairly as a limitation on the “amount” of an
available sentence reduction. See USSG §1B1.10(c)(2) (Nov. 1990) (“[A]
reduction in a defendant’s term of imprisonment . . . may, in no event,
exceed the number of months by which the maximum of the guideline
range applicable to the defendant . . . has been lowered”). In 1994, as
part of Amendment 504 to the Guidelines Manual, the Commission
deleted this provision, explaining that this “rather complex subsection”
was an “unnecessary restriction on the court’s consideration of a
revised sentence.” USSG, App. C, Amdt. 504 (effective Nov. 1, 1994).
Later, in an “Application Note,” the Commission indicated that “the
amended guideline range” “limit[s] the extent to which an eligible
defendant’s sentence may be reduced.” Id., Amdt. 548 (effective Nov. 1,
1997). The bottom line is that it was the Guidelines’ mandatory nature,
and not the effect of a policy statement, that made the Guidelines
ranges binding in an 18 U. S. C. §3582(c)(2) proceeding.
Cite as: 560 U. S. ____ (2010) 5
STEVENS, J., dissenting
It is useful to put Booker in context. During the delib­
erations that led to the enactment of the Sentencing Re­
form Act of 1984, 18 U. S. C. §3551 et seq., 28 U. S. C.
§991, et seq., Congress considered—and rejected—a pro­
posal that would have made the Guidelines only advisory.
See Mistretta v. United States, 488 U. S. 361, 387 (1989).
Ultimately, the decision to authorize the Commission to
issue rules that “have the force and effect of laws” gener­
ated a serious debate over the constitutionality of the
Commission itself. See id., at 413 (SCALIA, J., dissenting).
While we resolved that constitutional debate in the
Commission’s favor in Mistretta, it became apparent dur­
ing the next two decades that the mandatory character of
the Guidelines, coupled with the practice of judicial fact­
finding, not only produced a host of excessively severe
sentences but also created an unacceptable risk of depriv­
ing 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 convic­
tion, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt”); Ring v.
Arizona, 536 U. S. 584, 602 (2002) (holding that “[i]f a
State makes an increase in a defendant’s authorized pun­
ishment 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. Washington, 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)).
Over a series of cases, we arrived at our present under­
standing of determinate sentencing schemes: They are
constitutionally infirm if they mandate enhanced punish­
ments based on facts found only by a judge by a prepon­
6 DILLON v. UNITED STATES
STEVENS, J., dissenting
derance of the evidence. By restoring the principles out­
lined in landmark cases such as In re Winship, 397 U. S.
358 (1970), Apprendi and its progeny fundamentally
changed the landscape of modern sentencing law,3 and in
so doing paved the way for Booker.
The Booker Court considered whether the Sentencing
Reform Act’s mandatory determinate sentencing scheme
infringed 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 recognized that if the Guidelines “could be read as
merely advisory 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 Amendment.” Id., at 233. But we
rejected such an advisory reading 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.
In light of the potential for mandatory Guidelines sen­
tences to violate the Constitution, the Court had to elect
among possible remedies. As I explained in my dissent
from the Court’s second Booker opinion (the remedial one),
there was no need to find any constitutional infirmity in
any provision of the Sentencing Reform Act to provide
——————
3 See United States v. O’Brien, 560 U. S. ___, ___, and n. 1 (2010)
(STEVENS, J., concurring) (slip op., at 1–2, and n. 1) (discussing a
significant sentencing policy trend in 1970’s and 1980’s, involving a
shift to mandatory, determinate sentencing schemes based on judicial
factfinding by a preponderance standard).
Cite as: 560 U. S. ____ (2010) 7
STEVENS, J., dissenting
relief for the defendants in Booker, or to apply the Guide­
lines in a mandatory fashion in future cases—so long as
juries were allowed to decide the factual issues raised by
requests for enhanced sentences. See id., at 272–303
(STEVENS, J., dissenting in part). Notwithstanding the
fact that the Court could have retained the Guidelines’
mandatory prescriptive effect in a manner consonant with
the jury-trial right, the Court nevertheless adopted a
broad remedy that recast the Guidelines in their entirety.
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.
Instead, the Court’s decision to make the Guidelines dis­
cretionary 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 invalidating 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 foresight, it would not have elected—in
any respect—a mandatory sentencing regime.
The Court openly acknowledged this methodology:
“In essence, in what follows, we explain both (1) why
Congress would likely have preferred the total invali­
dation of the Act to an Act with the Court’s Sixth
Amendment requirement engrafted onto it, and (2)
why Congress would likely have preferred the excision
of some of the Act, namely the Act’s mandatory lan­
guage, to the invalidation of the entire Act. That is to
say, in light of today’s holding, we compare maintain­
ing the Act as written with jury factfinding added (the
dissenters’ proposed remedy) to the total invalidation
8 DILLON v. UNITED STATES
STEVENS, J., dissenting
of the statute, and conclude that Congress would have
preferred the latter. We then compare our own rem­
edy to the total invalidation of the statute, and con­
clude that Congress would have preferred our rem­
edy.” 543 U. S., at 249.
Thus, rather than “maintaining the Act as written with
jury factfinding added,” ibid., the Court opted to alter the
Commission’s power in a more fundamental way: It did
away with a fixed, determinate sentencing regime based
on mandatory Guidelines. Henceforth the Commission
would guide and advise federal courts in the exercise of
their sentencing authority. But the Commission would
not bind.
The Court held as follows:
“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 sev­
ered and excised, as must one other statutory section,
§3742(e) (2000 ed. and Supp. IV), which depends upon
the Guidelines’ mandatory nature. So modified, the
federal sentencing statute, see Sentencing Reform Act
of 1984 (Sentencing Act), as amended, 18 U. S. C.
§3551 et seq., 28 U. S. C. §991 et seq., makes the
Guidelines effectively advisory. It requires a sentenc­
ing court to consider Guidelines ranges, see 18 U.S.C.
§3553(a)(4) (Supp. IV), but it permits the court to tai­
lor the sentence in light of other statutory concerns as
well, see §3553(a).” Id., at 245–246.
The only fair way to read the Booker majority’s remedy
is that it eliminated the mandatory features of the Guide­
lines—all of them.4 It is true that the Court explicitly
——————
4 See also, e.g., Booker, 543 U. S., at 246 (opinion for the Court by
Cite as: 560 U. S. ____ (2010) 9
STEVENS, J., dissenting
severed only two specific statutory sections. But there
was not, at the time, even a whisper of a suggestion that
any other mandatory provision existed or that any should
be preserved.5
Were it not clear from the foregoing discussion of Booker
itself, our post-Booker decisions have repeatedly empha­
sized 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 for 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 [Sentencing 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 sen­
tence should apply”); Gall v. United States, 552 U. S. 38,
——————
BREYER, J.) (“The other approach, which we now adopt, would (through
severance and excision of two provisions) make the Guidelines system
advisory while maintaining a strong connection between the sentence
imposed and the offender’s real conduct—a connection important to the
increased uniformity of sentencing that Congress intended its Guide­
lines system to achieve” (emphasis added)); id., at 254 (“Congress would
have preferred no mandatory system to the system the dissenters
envisage”); id., at 264 (“Finally, the Act without its ‘mandatory’ provi­
sion and related language remains consistent with Congress’ initial and
basic sentencing intent. . . . The system remaining after excision, while
lacking the mandatory features that Congress enacted, retains other
features that help to further these objectives” (emphasis added)); ibid.
(“The district courts, while not bound to apply the Guidelines, must
consult those Guidelines and take them into account when sentencing”
(emphasis added)).
5 It seems, however, that at least one additional provision of the Sen­
tencing Reform Act should have been excised, but was not, in order to
accomplish the Court’s remedy. Section §3742(g)(2), prescribes that the
Guidelines are to have binding effect upon a remand for a new sentence
in a direct appeal: “The court shall not impose a sentence outside the
applicable guidelines range . . . .”
10 DILLON v. UNITED STATES
STEVENS, J., dissenting
46 (2007) (“As a result of our decision [in Booker], the
Guidelines are now advisory, and appellate review 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 re­
quires 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. ___, ___ (2009) (per curiam) (slip op., at 5)
(“[W]e now clarify that district courts are entitled to reject
and vary categorically from the crack-cocaine Guidelines
based on a policy disagreement with those Guidelines”).6
Our case law is quite clear: The Guidelines no longer have
mandatory and binding effect, and the sentencing court
may not presume them correct or reasonable when it
considers an individual sentencing decision.
In light of this history, the limited nature of the
§3582(c)(2) proceeding is beside the point. Nothing turns
——————
6 See also Spears, 555 U. S., at ___ (slip op., at 6) (“[D]istrict courts
are entitled to vary from the crack-cocaine guidelines in a mine-run
case where there are no ‘particular circumstances’ that would otherwise
justify a variance from the Guidelines’ sentencing range”); Kimbrough,
552 U. S., at 101 (“The Government acknowledges that the Guidelines
‘are now advisory’ and that, as a general matter, ‘courts may vary [from
Guidelines ranges] based solely on policy considerations, including
disagreements with the Guidelines’ ”); id., at 113–114 (SCALIA, J.,
concurring) (“[T]he district court is free to make its own reasonable
application of the §3553(a) factors, and to reject (after due considera­
tion) the advice of the Guidelines. If there is any thumb on the scales;
if the Guidelines must be followed even where the district court’s
application of the §3553(a) factors is entirely reasonable; then the
‘advisory’ Guidelines would, over a large expanse of their application,
entitle the defendant to a lesser sentence but for the presence of certain
additional facts found by judge rather than jury. This, as we said in
Booker, would violate the Sixth Amendment”); Gall, 552 U. S., at 50
(sentencing court “may not presume that the Guidelines range is
reasonable”).
Cite as: 560 U. S. ____ (2010) 11
STEVENS, J., dissenting
on whether the proceeding is best understood as a resen­
tencing or as a sentence modification procedure. Nor is it
relevant that Dillon has no right to be present at a pro­
ceeding under §3582(c)(2), ante, at 9–10, or that a sentence
reduction proceeding may not be “constitutionally com­
pelled,” ante, at 10–11. The Court’s general reliance on
Booker in this case, see ante, at 11–12, is odd because the
Booker Court explained its belief “that Congress would not
have authorized a mandatory system in some cases and a
nonmandatory system in others,” 543 U. S., at 266. Yet,
this is precisely the system the Court approves today.
Approaching this case as the Booker Court did, one must
ask whether it is likely that a fully informed Congress
would have created this kind of Commission: one endowed
with vast responsibilities for drafting advisory Guidelines
and policy statements, but also with the tiniest sliver of
lawmaking power to tie the hands of a district court’s
exercise of grace under §3582(c)(2). I think the answer is
obvious.
II
My understanding of the scope of the Booker remedy is
reinforced by an additional consideration: The Commis­
sion’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 re­
jected 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 Commission to create this type of
policy statement or to circumvent a decision such as
Booker on its own accord.
We have been quite permissive of congressional delega­
12 DILLON v. UNITED STATES
STEVENS, J., dissenting
tions in our separation-of-powers jurisprudence. “So long
as Congress ‘shall lay down by legislative act an intelligi­
ble principle to which the person or body authorized to
[exercise the delegated authority] is directed to conform,
such legislative action is not a forbidden delegation of
legislative power.’ ” Mistretta, 488 U. S., at 372 (quoting J.
W. Hampton, Jr., & Co. v. United States, 276 U. S. 394,
409 (1928)). Few legislative actions have been found to
offend this principle. 488 U. S., at 373.
More than 20 years ago, the Court upheld the constitu­
tionality of the Commission’s work from just such an
attack in Mistretta. We took sanctuary then in the fact
that, in enacting the Sentencing Reform Act and creating
the Commission, Congress had “se[t] forth more than
merely an ‘intelligible principle’ or minimal standard” for
the exercise of the Commission’s discretion, and had “ ‘ex­
plain[ed] what the Commission should do and how it
should do it, and se[t] out specific directives to govern
particular situations.’ ” Id., at 379. To this end, Congress
gave the Commission clear “goals,” id., at 374; specified
the “ ‘purposes of sentencing,’ ” ibid.; “prescribed the spe­
cific tool”—“the guidelines system”—the Commission was
to use in its work, ibid.; set limits on the appropriate
Guidelines ranges the Commission was to promulgate, id.,
at 375; and set forth “seven factors” and “11 factors,”
respectively, to assist the Commission with “its formula­
tion of offense categories” and its establishment of “catego­
ries of defendants” for sentencing purposes, id., at 375–
376.
We explained that “although Congress granted the
Commission substantial discretion in formulating guide­
lines, in actuality it legislated a full hierarchy of punish­
ment—from near maximum imprisonment, to substantial
imprisonment, to some imprisonment, to alternatives—
and stipulated the most important offense and offender
characteristics to place defendants within these catego­
Cite as: 560 U. S. ____ (2010) 13
STEVENS, J., dissenting
ries.” Id., at 377. There was, accordingly, no “concern of
encroachment and aggrandizement that has animated our
separation-of-powers jurisprudence and aroused our vigi­
lance 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)).
JUSTICE SCALIA disagreed. He argued forcefully that
Congress’ creation of the Commission was itself “a pure
delegation of legislative power” and therefore an abuse of
separation of powers. 488 U. S., at 420 (dissenting opin­
ion). “Congress’ commitment of such broad policy respon­
sibility to any institution,” in JUSTICE SCALIA’s view,
violated a core principle of our governing system: that
“basic policy decisions governing society are to be made by
the Legislature.” Id., at 415.
Although we acknowledged in Mistretta that Congress
had permissibly granted substantial powers to the Com­
mission to set law and policy on sentencing generally, we
had no occasion to consider whether it had spoken with
sufficient clarity respecting the Commission’s authority to
prescribe sentence reductions. That question has now
reared its head, and in my view it raises separation-of­
powers concerns significantly more difficult than those
presented in Mistretta.
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 “sen­
tence modification 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
14 DILLON v. UNITED STATES
STEVENS, J., dissenting
discretion within an 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] recommenda­
tions as to how” to “trea[t]” “in the future” “existing dis­
parities which are not adequately cured by the guide­
lines”). 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.
Given that distinction, it is significant that Congress
elected to use the Commission’s policy-statement power to
set limitations on the sentencing modification procedures,
rather than invoking the Commission’s Guidelines power.
The Commission is now trying to use a policy statement to
have the mandatory effect of a guideline—inverting the
Sentencing Reform Act’s original design. I find no provi­
sion within §994(a)(2) that would authorize the Commis­
sion, via a policy statement, to create a binding Guidelines
regime. With respect to the type of action the Commission
has taken, there is certainly no provision that even ap­
proximates the detailed prescriptions on the Commission’s
power we considered in Mistretta.
Moreover, not only does nothing in §994(a)(2) appear to
authorize this type of policy statement, but there is also
nothing that appears to authorize the Commission, by its
own fiat, to limit the effect of our decision in Booker.
How to respond to Booker, and whether to retain man­
datory Guidelines, was a decision for Congress—and
Congress alone. Booker expressly left “[t]he ball” “in
Congress’ court,” explaining that “[t]he National Legisla­
Cite as: 560 U. S. ____ (2010) 15
STEVENS, J., dissenting
ture is equipped to devise and install, long term, the sen­
tencing system, compatible with the Constitution, that
Congress judges best for the federal system of justice.”
543 U. S., at 265; see also supra, at 3–4. That Congress
has declined to disturb Booker in the five years since its
issuance demonstrates not only that JUSTICE BREYER is
more clairvoyant than I am, but also that Congress has
acquiesced to a discretionary Guidelines regime. Con­
gress’ silence has deprived the Commission of any “intelli­
gible principle[s],” J. W. Hampton, 276 U. S., at 409, by
which to steer its consideration of the appropriate re­
sponse to Booker. And without such guidance, I fear that,
in promulgating USSG §1B1.10, the Commission may
have made the type of “basic policy decisio[n]” that
JUSTICE SCALIA reminded us is the province of the Legis­
lature, Mistretta, 488 U. S., at 415 (dissenting opinion).
Prior to the Commission’s 2008 overhaul of its policy
statement in §1B1.10—and even under the applicable
policy statement in effect when the Court decided
Booker—nothing in the Guidelines, see supra, at 3–4, and
n. 2, as understood in light of Booker, would have pre­
cluded Dillon from obtaining the type of discretionary
sentence reduction he now seeks (assuming he was so
eligible). Standing in Dillon’s way presently are two pro­
visions of §1B1.10, revised contemporaneously with the
Commission’s decision to make its amendments to the
crack cocaine offense Guidelines retroactive.
There can be no question that the purpose of the Com­
mission’s amendments to its policy statement in §1B1.10
was to circumvent the Booker remedy. See Brief for Fed­
eral Public 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 dis­
claimed that proceedings 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 defen­
16 DILLON v. UNITED STATES
STEVENS, J., dissenting
dant’s term of imprisonment under 18 U. S. C. §3582(c)(2)
and this policy statement to a term that is less than the
minimum of the amended guideline range determined”
under the new range. §1B1.10(b)(2)(A). In other words,
the Commission told federal courts that its Guidelines, at
least in §3582(c)(2) proceedings, remain mandatory and
binding.
Had the Commission taken it upon itself, by issuance of
a general policy statement, to make its Guidelines manda­
tory but subject to jury findings in all cases, we would
either strike down such an act on separation-of-powers
grounds or apply the same remedy we did in Booker to
render the statement advisory. It makes little difference,
in my view, that the Commission has only rejected the
Booker remedy in this single procedure. The encroach­
ment is the same, if only more subtle. Any legislative
response to Booker was a decision for Congress to make—
not the Commission.
III
Separate from the arguments noted above, the Court’s
decision today may reflect a concern that a contrary hold­
ing would discourage the Commission from issuing retro­
active amendments to the Guidelines, owing to a fear of
burdening the district courts. In what might be described
as a subtle threat, the Commission has highlighted this
point in its amicus brief supporting the Government. The
brief explains that holding for Dillon would introduce
uncertainty into the Commission’s “assessments about the
effects of retroactivity decisions,” making these decisions
“very difficult” and “weigh[ing] against making Guideline
amendments retroactive in the future.” Brief for United
States Sentencing Commission as Amicus Curiae 21.7
——————
7 The Government’s argument along these lines is less subtle: “To
forbid the Sentencing Commission from limiting the scope of Section
3582(c)(2) sentence reduction proceedings to the scope of the amend­
Cite as: 560 U. S. ____ (2010) 17
STEVENS, J., dissenting
Even if that explanation were accurate, it should not
influence our assessment of the legal question before us.
The Commission has a statutory obligation to review and
amend Guidelines ranges. 28 U. S. C. §994(o). And Con­
gress has commanded that the Commission “shall specify
in what circumstances” 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 adjusting existing sentences under
[§3582(c)(2)] when guidelines are simply refined in a way
that might cause isolated instances 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 pre­
sumption that some form of retroactive relief is appropri­
ate when a Guidelines amendment is nontrivial.8 I cannot
——————
ments themselves would inevitably discourage the Sentencing Commis­
sion from ever authorizing sentence reductions.” Brief for United
States 37.
8 As the Court notes, I do agree that §994(u) authorizes the Commis­
sion to determine the retroactive effect of sentence reductions. Ante, at
13. I understand §994(u) as directing the Commission to prescribe the
retroactive effect, if any, of its Guidelines amendments. The power to
make retroactivity determinations is meaningfully different, however,
from the other power the Court claims for the Commission. In granting
the former power, Congress has instructed the Commission to perform
a gate keeping function by determining which individuals are eligible
for relief pursuant to §3582(c)(2). By contrast, the other power the
Court claims for the Commission today is the type of mandatory sen­
tencing authority at issue in Booker. Contrary to the Court’s conclu­
sion, the Commission after Booker does not have the power to bind the
district court in setting a particular sentence.
I also cannot accept the Court’s broad understanding of the power
the Commission derives from §994(u), see ante, at 8, because it suffers
from the same delegation concerns I discussed above, see supra, 11–16.
18 DILLON v. UNITED STATES
STEVENS, J., dissenting
accept that the Commission would ignore its obligations,
and would withhold retroactive application of a Guidelines
reduction, simply because a judge would have discretion
to enter a below-Guidelines sentence in a §3582(c)(2)
proceeding.
Undoubtedly, discretionary application of the Guidelines
in §3582(c)(2) proceedings would impose a greater burden
on the district courts. Such a process would require case­
specific evaluations rather than the rote, two-level reduc­
tions the Commission envisioned when it made Amend­
ment 706 retroactive. But it is important to remember
that §3582(c)(2) already requires the district court to
consider the §3553(a) factors when it determines whether
to grant a reduction, as well as the extent of the reduction.
And any additional consideration of evidence proffered to
justify a downward departure need not create a great deal
of work. Indeed, it need not create any particular adver­
sarial process at all: The Commission could simply advise
the district courts to review paper submissions, including
the original presentence report and objections, as well as
any new submissions. By now, courts are intimately
familiar with our post-Booker sentencing regime and the
discretionary application of the §3553(a) factors.
The facts of Dillon’s case show why any additional bur­
den on the courts caused by applying Booker’s remedial
holding likely pales in comparison to the benefit of achiev­
ing more tailored, proportionate sentences for those indi­
viduals currently serving terms of imprisonment that
exceed what is “necessary” to meet the goals of our sen­
tencing system, §3553(a). Dillon was 23 years old when he
was sentenced to nearly 27 years’ imprisonment for his
——————
I do not think the Commission’s authority encompasses the ability to
promulgate binding Guidelines via policy statements. And this matter
is separate from its power to promulgate Guidelines—a power unaf­
fected by our decision in Booker.
Cite as: 560 U. S. ____ (2010) 19
STEVENS, J., dissenting
drug crimes. His attorney urged the District Court to
enter a below-Guidelines sentence because of, inter alia,
the gross disparity between sentences for crack and pow­
der cocaine offenses. App. 8–9. It would take another 14
years for this Court to agree, finally, in Kimbrough, 552
U. S. 85, that sentencing courts could consider this unjust
disparity.
But the District Court, constrained by the then­
mandatory Guidelines, increased Dillon’s sentence based
on judge-found facts by more than 10 years over the sen­
tence authorized by the jury’s verdict. See Brief for Peti­
tioner 2, and n. 2. The court could only lament: “I person­
ally 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 Guide­
lines.” 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.
Dillon has done just that. He has participated in out­
reach efforts in the communities in which he has been
imprisoned, doing extensive work with adolescents to steer
them away from a life of drugs and crime. Brief for Peti­
tioner 5–6. Working with two universities, he has facili­
tated the initiation of an African-American Studies pro­
gram at Hunters Point Family, a Bay Area organization
devoted to assisting at-risk youth. He has also played a
large role in initiating a similar program at his prison
facility. Berkeley’s Prison Outreach Coordinator stated to
the District Court that “without [Dillon’s] insight and
advice, our project would not have succeeded and grown
20 DILLON v. UNITED STATES
STEVENS, J., dissenting
the way it has.” Id., at 6 (internal quotation marks omit­
ted). Dillon has also prepared himself for a successful life
once he returns to society. He has obtained his general
equivalency diploma (GED), taken vocational classes in
property management, and has job prospects awaiting him
upon release. Id., at 6–7.
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 §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
Given the circumstances of his case, I can scarcely think
of a greater waste of this Nation’s precious resources. Cf.
Barber v. Thomas, ante, at ___ (2010) (slip op., at 1)
(KENNEDY, J., dissenting) (“And if the only way to call
attention to the human implications of this case is to
speak in terms of economics, then it should be noted that
the Court’s interpretation comes at a cost to the taxpayers
of untold millions of dollars”). Dillon’s continued impris­
onment is a truly sad example of what I have come to view
as an exceptionally, and often mindlessly, harsh federal
punishment scheme.
IV
Neither the interests of justice nor common sense lends
any support to the decision to preserve the single sliver of
the Commission’s lawmaking power that the Court resur­
——————
9 See Hanlon, Hecker, & Gopstein, Expanding the Zones: A Modest
Proposal to Increase the Use of Alternatives to Incarceration in Federal
Sentencing, 24 ABA Criminal Justice, No. 4, pp. 26, 28 (Winter 2010)
(“In fiscal year 2008, it cost $25,894.50 to incarcerate an offender in a
federal Bureau of Prisons facility for 12 months”).
Cite as: 560 U. S. ____ (2010) 21
STEVENS, J., dissenting
rects today. I had thought Booker dismantled the manda­
tory Guidelines regime. The Court ought to finish the job.
I respectfully dissent.