RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0121p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellant,

v.

GREGORY STEVEN HORN,

 Defendant-Appellee.

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No. 11-5470

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:01-cr-142-1—Thomas A. Wiseman, Jr., District Judge.

Argued: March 14, 2012

Decided and Filed: May 8, 2012 

Before: CLAY, ROGERS, and COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: John-Alex Romano, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellant. Michael C. Holley, OFFICE OF FEDERAL PUBLIC

DEFENDER, Nashville, Tennessee, for Appellee. ON BRIEF: John-Alex Romano,

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Harold B.

McDonough, Jr., ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee,

for Appellant. Michael C. Holley, C. Douglas Thoresen, OFFICE OF FEDERAL

PUBLIC DEFENDER, Nashville, Tennessee, for Appellee.

_________________

OPINION

_________________

ROGERS, Circuit Judge. Once again in this matter, the district court has

declined to follow a non-retroactivity determination of the United States Sentencing

Commission. In 2001, Defendant Gregory Horn was sentenced as a career offender

under U.S.S.G. § 4B1.1 following his guilty plea to bank robbery. Six years later, in

1
No. 11-5470 United States v. Horn Page 2

2007, the Sentencing Commission promulgated Amendment 709, which changed the

method by which a district court calculated prior offenses. After public comment, the

Commission declined to give Amendment 709 retroactive application. Had Amendment

709 been in effect when Horn was originally sentenced, he would not have been deemed

a career offender. In 2008, Horn moved for a sentence reduction under 18 U.S.C.

§ 3582(c)(2), requesting that the district court retroactively apply Amendment 709. The

district court granted the reduction, reasoning that the Commission’s retroactivity

decision was not binding under United States v. Booker, 543 U.S. 220 (2005), and under

the plain language of the Sentencing Reform Act (“SRA”), see 28 U.S.C. §§ 991–998.

Before this court addressed Horn’s appeal, the Supreme Court rejected the Booker

argument in Dillon v. United States, 130 S. Ct. 2683 (2010). Subsequently, this court

rejected the district court’s interpretation of the SRA, determined that the district court

lacked the authority to resentence Horn, and remanded for further proceedings. United

States v. Horn, 612 F.3d 524, 528 (6th Cir. 2010) (“Horn II”). On remand, the district

court again applied Amendment 709 retroactively. The district court found that the

Commission’s retroactivity decision was arbitrary and capricious, that the SRA did not

authorize the issuance of binding policy statements, and that the issuance of binding

policy statements violated the doctrine of separation of powers. This was an error

because the SRA authorizes the Commission to issue binding retroactivity decisions,

these retroactivity decisions do not present separation-of-powers problems, and the

Commission’s retroactivity decision was neither arbitrary nor capricious.

I.

The facts are undisputed. In 2001, Horn pled guilty to one count of bank

robbery, in violation of 18 U.S.C. § 2113(d). At sentencing, the district court determined

that Horn was a career offender under U.S.S.G. §4B1.1 (2001), resulting in a thenmandatory Guidelines range of 188 to 235 months’ imprisonment. The district court

sentenced Horn to 204 months’ imprisonment, which this court affirmed on direct

appeal. See United States v. Horn, 355 F.3d 610, 611–12 (6th Cir. 2004) (“Horn I”).
No. 11-5470 United States v. Horn Page 3

Effective November 1, 2007, the Sentencing Commission promulgated

Amendment 709, which altered the method of determining whether a defendant qualified

as a career offender. See U.S.S.G. App. C., Amend. 709. Under the amendment,

multiple sentences are counted as a single sentence if they were not separated by an

intervening arrest, and the sentences were imposed on the same day. See id.; U.S.S.G.

§ 4A1.2(a)(2)(2010). It is undisputed that if Amendment 709 were applied in Horn’s

case, he would not qualify as a career offender and his Guidelines range would be 92 to

115 months’ imprisonment. The Sentencing Commission did not, however, designate

Amendment 709 for retroactive application.

In 2008, Horn moved for a sentence reduction under 18 U.S.C § 3582(c)(2) based

on Amendment 709. Section 3582(c)(2) allows a district court to reduce a term of

imprisonment already imposed if certain conditions are met:

[I]n the case of a defendant who has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been

lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o),

upon motion of the defendant or the Director of the Bureau of Prisons,

or on its own motion, the court may reduce the term of imprisonment,

after considering the factors set forth in section 3553(a) to the extent that

they are applicable, if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2) (emphasis added). The district court granted the motion,

reasoning that (1) Guidelines policy statements cannot bind district courts, and

(2) Booker rendered the entirety of the Guidelines advisory. The district court further

determined that Amendment 709 should have been designated for retroactive

application. The district court resentenced Horn to 108 months’ imprisonment.

We reversed and remanded because the district court lacked the authority to

resentence Horn. Horn II, 612 F.3d at 527–28. We reasoned that “18 U.S.C.

§ 3582(c)(2) and U.S.S.G. § 1B1.10 provide that the Commission’s retroactivity

determinations control whether district courts may resentence defendants, and the

Commission has not designated Amendment 709 for retroactive application.” Id. at 527.

We noted that under 28 U.S.C. § 994(o) & (u), the Commission has the responsibility
No. 11-5470 United States v. Horn Page 4

to review and revise the Guidelines, and specify which amendments apply retroactively.

Id. These provisions grant “‘the Commission the unusual explicit power to decide

whether and to what extent its amendments reducing sentences will be given retroactive

effect.’” Id. (quoting Braxton v. United States, 500 U.S. 344, 348 (1991)). We noted that

the Commission had exercised this power through U.S.S.G. § 1B1.10(a)(2)(A), which

lists the amendments that apply retroactively. Finally, we rejected Horn’s argument that

neither 18 U.S.C. § 3582(c)(2) nor 28 U.S.C. §994(u) authorized the Commission to

issue binding policy statements. Horn relied on a dissent by Justice Stevens in Dillon

v. United States, 120 S. Ct. at 2701 (Stevens, J., dissenting), in which Justice Stevens

stated that policy statements were intended to advise, not bind. However, this court held

that “even Justice Stevens acknowledged that this argument does not apply to the

Commission’s retroactivity decisions at issue in this case because ‘§ 994(u) authorizes

the Commission to determine the retroactive effect of sentence reductions.’” Horn II,

612 F.3d at 528 (quoting Dillon, 130 S. Ct. at 2703 n.8 (Stevens, J., dissenting)). This

court reversed and remanded for resentencing consistent with its opinion.

On remand, the district court again applied Amendment 709 retroactively. The

district court gave three reasons for its decision. First, the district court reasoned that the

Commission’s retroactivity decision was arbitrary and capricious. The district court

inferred that the Commission had two reasons for not making Amendment 709

retroactive: the change was too complex; and requiring district courts to retroactively

apply the Amendment and the crack-cocaine amendments simultaneously would have

been too great a burden. The district court found this justification to be “manifestly

unjust.” Second, as a matter of statutory construction and to avoid separation-of-powers

concerns, the district court reasoned that the Commission could only issue binding

guidance about retroactivity through an actual guideline rather than a policy statement.

The district court analogized terms in the SRA to the terms used in application of the

Administrative Procedure Act, 5 U.S.C. §500, et seq. The court drew parallels between

“guidelines” and “legislative rules”; “commentary” and “interpretive rules”; and “policy

statements” and “general statements of policy.” Given these purported parallels, the

district court reasoned that policy statements issued by the Commission could only be
No. 11-5470 United States v. Horn Page 5

non-binding, and that a binding rule must take the form of a guideline. Third, the district

court concluded that the Commission’s issuance of a binding policy statement regarding

§3582(c)(2) proceedings created separation-of-powers concerns. The district court held

that the Commission, an independent agency, was effectively exercising legislative

power with no meaningful procedural check or limitation. The district court found it

significant that policy statements lacked three procedural checks on the Commission’s

power relied upon by the Supreme Court in Mistretta v. United States, 488 U.S. 361

(1989): a congressional veto, a notice-and-comment procedure, and intelligible

principles to guide Commission decision-making. The district court concluded that “an

administrative agency cannot be granted the power to issue legislative rules (unrelated

to any adjudication) without having any political accountability and without having to

follow any procedure whatsoever.” The district court concluded that the policy

statement did not constrain its discretion under § 3582(c)(2), and subsequently

resentenced Horn to 108 months’ imprisonment. The government appeals.

II.

The parties dispute whether the Sentencing Commission has the statutory power

to issue binding policy statements, whether such policy statements violate the doctrine

of separation of powers, and whether the Commission’s retroactivity decision with

regard to Amendment 709 was proper. For the following reasons, the Sentencing

Commission’s decision was statutorily and constitutionally valid, and was not arbitrary

and capricious.

1. Sentencing Reform Act

The SRA gave the Sentencing Commission the power to issue binding policy

statements with regard to the retroactive application of Guidelines amendments. The

starting point is 28 U.S.C. § 994(u), which states that “[i]f the Commission reduces the

term of imprisonment recommended in the guidelines applicable to a particular offense

or category of offenses, it shall specify in what circumstances and by what amount the

sentences of prisoners serving terms of imprisonment for the offense may be reduced.”
No. 11-5470 United States v. Horn Page 6

Section 994(u) does not specify which form the Commission’s retroactivity

determination should take—whether in the form of a guideline or policy statement—but

it establishes the Commission’s duty to specify whether any amendments are retroactive.

Other provisions of the SRA make clear that the Commission is to voice these

determinations through policy statements. Section 994(a)(2)(C) requires the

Commission to promulgate “general policy statements regarding application of the

guidelines . . . including the appropriate use of the sentence modification provisions set

forth in section[] . . . 3582(c) of title 18.” This section can only be read as a directive

for the Commission to issue policy statements regarding the retroactivity of Guidelines

amendments, though it does not by its terms make these policy statements binding. The

binding effect of the policy statements is mandated in turn by 18 U.S.C. § 3582(c)(2),

which empowers a district court to retroactively reduce a defendant’s sentence based on

a subsequent reduction in the Guidelines only “if such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.” The use of the

word “if” indicates that the district court’s power is conditioned upon the the

Commission’s policy statement. As the Dillon Court stated, “A court’s power under

§ 3582(c)(2) thus depends in the first instance on the Commission’s decision not just to

amend the Guidelines but to make the amendment retroactive.” Dillon, 130 S. Ct. at

2691. In sum: § 994(u) requires the Commission to specify whether an amendment is

retroactive, § 994(a)(2)(C) requires that this specification be in the form of a policy

statement, and § 3582(c)(2) makes those policy statements binding.

The structure of § 994(a) supports this conclusion. In that section, Congress

considered the difference between “guidelines” and “policy statements,” and directed

the Commission to use each in different situations. Congress opted to have the

Commission promulgate “general policy statements” with regard to the retroactive

application of guidelines. See 28 U.S.C. § 994(a)(2)(C). In contrast, in the same section

of the statute, Congress directed the Commission to promulgate guidelines only in three

scenarios: (1) “for use of a sentencing court in determining the sentence to be imposed

in a criminal case”; (2) “regarding the appropriate use of the provisions for revocation

of probation”; or (3) “for modification of the term or conditions of supervised release
No. 11-5470 United States v. Horn Page 7

and revocation of supervised release.” 28 U.S.C. § 994(a)(1) & (3). Congress expressly

contemplated what action it wanted the Commission to take, and directed the

Commission to promulgate a policy statement to control the retroactivity of an

amendment instead of a guideline. 

This conclusion is consistent with, and may be compelled by, this court’s

interpretation of the SRA in Horn II. We have already held that district courts are

bound, as a matter of statutory interpretation, by the pronouncements of the Commission

with regard to retroactivity. See Horn II, 612 F.3d at 527–28. Further, this court

specifically rejected Horn’s argument that the SRA does not authorize the Commission

to issue binding policy statements under 18 U.S.C. § 3582(c) and 28 U.S.C. § 994(u).

See Horn II, 612 F.3d at 527–28. This comports with a recent case from the Fifth

Circuit, where the court agreed that the text of § 3582(c)(2) evinces a congressional

intent that Commission policy statements regarding retroactivity be binding:

A common-sense reading of the above-quoted phrase “if such a reduction

is consistent with applicable policy statements” indicates that, regardless

of whether Congress wanted policy statements to be binding in the

sentencing context, it wished them to be binding in § 3582(c)

proceedings. If a sentence reduction is inconsistent with a policy

statement, it would violate § 3582(c)’s directive, so policy statements

must be binding.

United States v. Garcia, 655 F.3d 426, 435 (5th Cir. 2011). Recently, the Third Circuit

reached the same conclusion. See United States v. Smith, No. 11-1400, 2012 WL

208081 (3rd Cir. Jan. 25, 2012). 

In urging the opposite conclusion, Horn misinterprets the conditional language

of § 3582(c)(2). Horn contends that the phrase “consistent with” in § 3582(c) means that

policy statements are not binding. In support of this argument, Horn relies on a First

Circuit case that discusses the meaning of “consistent with” in a now-repealed statute

governing Department of Labor grants for the training of migrant farmworkers. Maine

v. U.S. Dep’t of Labor, 770 F.2d 236, 239 (1st Cir. 1985) (quoting 29 U.S.C.

§ 1672(c)(1)(repealed)). The statute in Maine required that the procedures for awarding

grants be “‘consistent with’ the government’s ‘standard procurement policies.’” Id. The
No. 11-5470 United States v. Horn Page 8

1

28 U.S.C. § 994(t) states, in relevant part:

The Commission, in promulgating general policy statements regarding the sentencing

modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should

be considered extraordinary and compelling reasons for sentence reduction, including

the criteria to be applied and a list of specific examples. Rehabilitation of the defendant

alone shall not be considered an extraordinary and compelling reason.

court held that “consistent with” did not mandate literal compliance with the

government’s standard procurement procedures, but rather allowed more flexibility. Id.

at 239. From this, Horn concludes that the phrase “consistent with” does not mandate

strict compliance with a binding rule in all contexts. This is true, but irrelevant.

Regardless of the meaning of the term “consistent with” in the context of migrant farm

workers, this court has already determined that “consistent with” requires literal

compliance with the Commission’s policy statements in the context of a § 3582(c)(2)

proceeding. We rejected a similar argument in Horn II, where we held that “[a] court’s

power under § 3582(c)(2) thus depends in the first instance on the Commission’s

decision not just to amend the Guidelines[,] but to make the amendment retroactive.”

612 F.3d at 527 (quoting Dillon, 130 S. Ct. at 2691–92). 

Further, Horn’s suggested comparison of 28 U.S.C. § 994(u) to (t) does not

compel a different conclusion.1 Horn correctly notes that § 994(u), on its own, does not

require the Commission to make its determinations of retroactivity through policy

statements. He contrasts this with § 994(t), which requires the Sentencing Commission

to “promulgate general policy statements regarding the sentencing modification

provision in [18 U.S.C. § 3582(c)(1)(A)].” Horn argues that because policy statements

are mentioned in § 994(t) but not in § 994(u), the Commission need not enforce its

retroactivity decision via policy statements. Horn’s argument then runs up against the

statutory language set forth above. He acknowledges that § 994(a)(2)(C) requires the

issuance of policy statements pertaining to § 3582(c)(2) proceedings, which appears to

destroy his contrast between § 994(u) and § 994(t). He then argues that nothing in

§ 994(a)(2)(C) requires the policy statement to be binding, but he again disregards the

fact that the district court is bound by any retroactivity policy statement under 18 U.S.C.
No. 11-5470 United States v. Horn Page 9

2

Horn made this “guidelines” versus “policy statement” statutory argument in Horn II, an

argument we implicitly rejected.

§ 3582(c)(2). This language demonstrates that differences between § 944(t) and §944(u)

are immaterial.

Similarly, Horn’s assertion that § 994(o) authorizes the issuance of guidelines

with regard to retroactivity is wrong. Section 994(o) directs the Commission to

“periodically . . . review and revise . . . the guidelines promulgated pursuant to the

provisions of this section.” 28 U.S.C. § 994(o). However, § 994(o) does not broaden

the definition of the term “guideline” or displace the division between guidelines and

policy statements set forth in § 994(a). 

Moving away from the plain language of the SRA, Horn analogizes the SRA to

the APA. However, this analogy is flawed in light of the express statutory language

discussed above.2 Horn relies on the fundamental premise that when the SRA was

passed, Congress was legislating “on the heels of four decades of experience and

litigation under the Administrative Procedure Act.” From this historical context, Horn

argues that Congress intended to import the APA concepts of “legislative rules,”

“interpretative rules,” and “policy statements” into the SRA. Regardless of whether this

is true, an inferred intent, premised on historical context, does not stand in the face of

explicit statutory language. Horn’s argument proves too much. Because Horn concedes

that Congress was legislating with full knowledge of the APA, the fact that Congress

specifically directed the Commission to issue a binding policy statement was no

accident. Unless unconstitutional, Congress is free to change the rules by which an

agency plays.

Horn then parses language from Justice Stevens’s dissent in Dillon, 130 S. Ct.

at 2694–2705, to support his statutory argument. In doing so, Horn ignores a critical

footnote in which Justice Stevens recognized that the SRA “authorizes the Commission

to determine the retroactive effect of sentence reductions.” Id. at 2703 n.8 (Stevens, J.,

dissenting). Justice Stevens distinguished the power to determine retroactivity from the

power at issue in Dillon, noting that “Congress has instructed the Commission to
No. 11-5470 United States v. Horn Page 10

perform a gate keeping function by determining which individuals are eligible for relief

pursuant to § 3582(c)(2).” Id.

The district court’s interpretation of the SRA is untenable. The district court

reasoned that the SRA requires the Commission to issue either non-binding policy

statements or guidelines regarding retroactivity. However, in the context of retroactivity,

a non-binding policy statement could never issue. As this court held in Horn II,

§ 3582(c)(2)’s conditional clause requires compliance with the Commission’s policy

statements regarding retroactivity. Even if the Commission were to attempt to

promulgate a non-binding policy statement, district courts would still be bound to follow

that policy statement under the express language of § 3582(c)(2). 

The district court also contended that the Commission should enact guidelines,

as opposed to policy statements, to enforce its retroactivity determination. Were this

court to adopt such a requirement, however, it would unnecessarily impinge upon the

powers of the Commission. The Supreme Court has acknowledged that the Commission

has “the unusual explicit power to decide whether and to what extent its amendments

reducing sentences will be given retroactive effect.” Braxton, 500 U.S. at 348. Because

of this power, district courts must follow the “policy statements issued by the Sentencing

Commission” regarding the retroactivity of Guidelines amendments. 18 U.S.C.

§ 3582(c)(2). Section 3582(c)(2) says nothing about a district court’s obligation to

follow the Commission’s guidelines regarding retroactivity—it only mentions policy

statements. Accordingly, were this court to require the Commission to issue guidelines

instead of policy statements, it is conceivable that a district court would not be bound by

such guidelines. This would rob the Commission of the very power recognized by the

Supreme Court.

2. Separation of Powers

The policy statements embodied in U.S.S.G. § 1B1.10 are constitutional under

separation-of-powers principles. Horn characterizes the policy statements as an

unauthorized power grab by the Sentencing Commission, absent any congressional

delegation of authority. This is incorrect. Congress has delegated the power to the
No. 11-5470 United States v. Horn Page 11

Commission to issue binding policy statements. See Garcia, 655 F.3d at 435; Smith,

2012 WL 208081, at *2. This delegation was constitutionally permissible because

Congress set forth intelligible principles to guide the retroactivity determination.

Further, the Commission’s authority to make retroactivity decisions does not otherwise

upset the balance of powers between the coordinate branches.

First, Congress’s delegation of authority was proper because it set forth

intelligible principles to guide the Commission’s actions. Under the nondelegation

doctrine, Congress generally cannot “delegate its legislative power to another Branch”

of the government. Mistretta v. United States, 488 U.S. 361, 372 (1989). However, a

delegation is permissible if Congress “lay[s] down by legislative act an intelligible

principle to which the person or body authorized to exercise the delegated authority is

directed to conform.” Id. (citations omitted). In 28 U.S.C. § 994(u), Congress directed

that “[i]f the Commission reduces the term of imprisonment recommended in the

guidelines applicable to a particular offense or category of offenses, it shall specify in

what circumstances and by what amount the sentences of prisoners serving terms of

imprisonment for the offense may be reduced.” By statute, the Commission may only

make Guidelines amendments retroactive if such retroactive effect “would further the

purposes set forth in [18 U.S.C. § 3553(a)(2)].” 28 U.S.C. § 994(a)(2). Further,

Congress prescribed the specific tool—policy statements—for the Commission to use

in regulating the retroactive effect of sentencing. Therefore, “both §§ 994(u) and

994(a)(2) limit and inform the Commission on how it must exercise its delegated

authority.” Smith, 2012 WL 208081, at *2. Horn concedes that Congress has set forth

intelligible principles for the purposes of the nondelegation doctrine. Appellee Br.

54–55.

Even viewing the issue outside the nondelegation context, the binding policy

statements do not otherwise upset the balance of powers. The starting point of a

separation-of-powers analysis with regard to the Sentencing Guidelines is the Supreme

Court’s opinion in Mistretta, 488 U.S. at 412. In that case, a group of prisoners

challenged the constitutionality of the SRA under the separation-of-powers doctrine.
No. 11-5470 United States v. Horn Page 12

The Supreme Court concluded that the SRA did not upset the constitutionally mandated

balance of powers by granting the Commission rulemaking power or by locating it with

the judicial branch. Id. at 384–97. In making this determination, the Court held that the

Commission’s powers were not united with the powers of the Judiciary; therefore, the

Commission did not aggrandize the power of the Judiciary. Id. at 393–94. The Court

reasoned that the Commission is an agency independent of the Judiciary in every

relevant sense: Congress “can revoke or amend any or all of the Guidelines as it sees fit

either within the 180-day waiting period or at any time”; the Commission’s members

were subject to the President’s limited power of removal; and the rulemaking was

subject to notice and comment. Id. Further, the Court noted that placement of the

Sentencing Commission within the judicial branch did not increase the branch’s

authority because sentencing decisions have been historically left to the Judiciary—the

Guidelines merely constituted an aggregation of those decisions. Id. at 395. Finally, the

Court held that placing the Commission within the judicial branch did not prevent the

branch from “accomplishing its constitutionally assigned functions.” Id. at 396 (internal

quotations omitted). The Court concluded that “Congress neither delegated excessive

legislative power nor upset the constitutionally mandated balance of powers among the

coordinate Branches.” Id. at 412. 

There is no merit to the argument that binding policy statements nonetheless

violate the separation-of-powers doctrine because they are not subject to intelligible

principles, congressional veto, or notice-and-comment. As discussed above, Congress

set forth intelligible principles for the Commission to follow. Further, policy statements

are subject to congressional review. Although policy statements are not subject to the

180-day waiting period applicable when the Commission passes a Guidelines

Amendment, see 28 U.S.C. § 994(p), Congress can direct the Commission to change its

retroactivity determination or pass a law overruling the Commission’s determination “at

any time.” See Mistretta, 488 U.S. at 394. When considering a Guidelines amendment,

Congress knows the Commission’s intent regarding retroactivity because where “the

Commission considers an amendment for retroactive application . . . , it shall

decide whether to make the amendment retroactive at the same meeting at
No. 11-5470 United States v. Horn Page 13

3

The minutes for the Commission’s December 11 meeting are available at:

http://www.ussc.gov/legislative_and_public_affairs/public_hearings_and_Meetings/20071211/200712

11_Minutes.pdf.

which it decides to promulgate the amendment.” U.S. Sentencing

Comm’n, Rules of Practice and Proc. 4.1 (available at

http://www.ussc.gov/Meetings_and_Rulemaking/Practice_Procedure_Rules.pdf).

Assuming the Commission follows its own mandatory rule, Congress knows the

Commission’s retroactivity determination during the 180-day review. There is no

evidence the Commission failed to follow its procedures with regard to Amendment 709.

Congress was accordingly free to dictate an alternative retroactivity determination during

the 180 days it considered Amendment 709. Even if the Commission failed to follow

its rule, Congress could have preempted the Commission’s retroactivity decision by

statute. Given these procedures, the Commission was fully accountable to Congress.

Next, the absence of a statutorily mandated notice-and-comment procedure for

policy statements does not raise serious separation-of-powers concerns. As a matter of

fact, in this case the Commission did solicit “public comment as to whether it should

designate the Amendment [709] for purely prospective application or for retroactive

application as well.” United States v. Horn, 590 F. Supp. 2d 976, 984 (M.D. Tenn.

2008). The Commission’s rules require it to solicit public comment on the retroactivity

of amendments. Rule 4.4 of the Sentencing Commission’s Rules of Practice and

Procedure states: “At the same time the Commission votes to publish proposed

amendments for comment, it shall request public comment on whether to make any

amendments retroactive.” Following this rule, the Commission requested public

comment on whether Amendment 709 should be made retroactive, 72 Fed. Reg. 41794,

41794–95 (July 31, 2007), held a public hearing on the issue, 72 Fed. Reg. 58345

(October 15, 2007), and voted on retroactivity at a public hearing on December 11,

2007.3

 Accordingly, the purported lack of notice-and-comment does not serve to

distinguish Mistretta: the Commission solicited public views and made its decision at

a public hearing. Although the Commission did not publish any public comments

regarding Amendment 709’s retroactivity—and thus did not formally comport with the
No. 11-5470 United States v. Horn Page 14

APA’s notice-and-comment procedure—this is of no moment. The public nature of the

proceedings provided an effective check and allayed the concerns voiced by the Court

in Mistretta. Morever, even if the Commission had abandoned its public comment rule,

the absence of public comment would not create a separation-of-powers issue. It is true

that the Mistretta Court relied, in part, on the presence of notice-and-comment to justify

upholding the SRA, a procedure the Commission is not statutorily mandated to follow

when issuing policy statements. See Mistretta, 488 U.S. at 394. However, the Mistretta

Court listed notice-and-comment as one of many ways in which the power of the

Commission was not united with that of the Judiciary. See id. at 393–94. As the

Mistretta Court noted, the power of the Commission is separate from the Judiciary’s

power in other ways: Congress can revoke or amend any policy statement of the

Commission at any time and the Commission’s members are subject to the President’s

limited powers of removal. See id. These additional procedures ensure that the power

of the Judiciary is not united with the power of the Commission in a manner meaningful

to a separation-of-powers analysis.

In the alternative, Horn argues that the Sentencing Commission aggrandizes the

power of the Legislative Branch. Horn contends that the Commission exercises

legislative powers; therefore, it must meet the requirements to pass a statute through

Congress. There are at least three flaws with this argument. First, the SRA explicitly

places the Sentencing Commission within the Judicial Branch, establishing the

Commission “as an independent commission in the judicial branch of the United States.”

28 U.S.C. § 991(a). Indeed, the Supreme Court has recognized that the Commission

resides in the judicial branch. Mistretta, 488 U.S. at 384–85. Second, Horn cites no

authority for the proposition that a rule passed by an agency violates the bicameral

passage and presentment requirements of Congress. Third, the Court recognized in

Mistretta that sentencing “never has been thought to be assigned by the Constitution to

the exclusive jurisdiction of any one of the three Branches of Government.” Id. at 364.

The Court explained the history of sentencing leading up to the SRA: 

Congress, of course, has the power to fix the sentence for a federal crime,

and the scope of judicial discretion with respect to a sentence is subject
No. 11-5470 United States v. Horn Page 15

to congressional control. Congress early abandoned fixed-sentence

rigidity, however, and put in place a system of ranges within which the

sentencer could choose the precise punishment. Congress delegated

almost unfettered discretion to the sentencing judge to determine what

the sentence should be within the customarily wide range so selected.

This broad discretion was further enhanced by the power later granted

the judge to suspend the sentence and by the resulting growth of an

elaborate probation system. Also, with the advent of parole, Congress

moved toward a “three-way sharing” of sentencing responsibility by

granting corrections personnel in the Executive Branch the discretion to

release a prisoner before the expiration of the sentence imposed by the

judge. Thus, under the indeterminate-sentence system, Congress defined

the maximum, the judge imposed a sentence within the statutory range

(which he usually could replace with probation), and the Executive

Branch’s parole official eventually determined the actual duration of

imprisonment.

Id. at 364–65 (internal citations omitted). Given the historic distribution of power, it

cannot be said that the Commission is exercising legislative power. If anything, the SRA

gives the Commission what was historically judicial power. As the Mistretta Court

recognized, judges historically determined the appropriate sentence for defendants based

on a variety of factors. Id. at 395. The Commission essentially aggregated those

determinations to promote uniformity. Id. This is a judicial function, not legislative, and

therefore not subject to the requirements for a passage of a statute. 

Horn’s reliance on the Supreme Court’s opinion in Free Enterprise Fund v.

Public Co. Accounting Oversight Board, 130 S. Ct. 3138 (2010), is misplaced. In Free

Enterprise, the Court considered a separation-of-powers challenge to the provisions in

the Sarbanes–Oxley Act that established the Public Company Accounting Oversight

Board (“Board”). Id. at 3151–61. The defendant contended that the Board lacked

political accountability due to a unique dual for-cause removal limitation. Id. at

3148–49. The Sarbanes-Oxley Act places the Board under the oversight of the

Securities and Exchange Commission. Id. at 3148. The SEC Commissioners could only

remove Board members “for cause.” Id. The SEC Commissioners, in turn, could only

be removed by the President “for cause.” The Court noted that, under certain

circumstances, Congress can create independent agencies run by officers whom the

President can only remove “for cause.” Id. at 3152 (citing Humphrey’s Executor v.
No. 11-5470 United States v. Horn Page 16

United States, 295 U.S. 602 (1935)). In those instances, the President is still vested with

the ability to review an officer’s conduct under the “good cause” standard. In the case

of the Board, however, the President loses the ability to review the officer’s conduct.

Free Enterprise, 130 S. Ct. at 3153. Instead, the President could only review the “good

cause” determination of the SEC Commissioner’s, a decision in which he can only

intervene if it is so unreasonable as to constitute “inefficiency, neglect of duty, or

malfeasance in office.” Id. at 3154. The Court found this diffusion of power to violate

the separation of powers, because the President was no longer the judge of the Board’s

conduct. Id. The Court held “that the dual for-cause limitations on the removal of Board

members contravene the Constitution’s separation of powers.” Id. at 3151.

Horn’s case does not involve a dual for-cause limitation on the President’s power

to remove members of the Sentencing Commission. The President may remove

members of the Sentencing Commission: “[t]he Chair, Vice Chairs, and members of the

Commission shall be subject to removal from the Commission by the President only for

neglect of duty or malfeasance in office or for other good cause shown.” 28 U.S.C.

§ 991(a). The Court has consistently approved this type of “for cause” removal

limitation since its decision in Humphrey’s Executor. Accordingly, the concerns raised

in Free Enterprise are inapplicable to the instant case. 

 Finally, Horn has no constitutional right to have his sentence reduced under

18 U.S.C. § 3582(c)(2). Horn contends that a separation-of-powers violation can occur

even if the Commission did not encroach on the powers of another branch. Horn argues

that “‘[t]he dynamic between and among the branches is not the only object of the

Constitution’s concern. The structural principles secured by separation of powers

protect the individual as well.’” Appellee Br. 56 (quoting Bond v. United States, 131 S.

Ct. 2355, 2365 (2011)). The Supreme Court, however, has stated that the “concern of

encroachment and aggrandizement . . . has animated our separation-of-powers

jurisprudence.” Mistretta, 488 U.S. at 382. Although individuals have standing to raise

separation-of-powers claims—the issue in Bond v. United States—that is not the
No. 11-5470 United States v. Horn Page 17

animating inquiry of a separation-of-powers analysis. As the Supreme Court has

previously noted:

the sentence-modification proceedings authorized by § 3582(c)(2) are not

constitutionally compelled. We are aware of no constitutional

requirement of retroactivity that entitles defendants sentenced to a term

of imprisonment to the benefit of subsequent Guidelines amendments.

Rather, § 3582(c)(2) represents a congressional act of lenity intended to

give prisoners the benefit of later enacted adjustments to the judgments

reflected in the Guidelines.

Dillon, 130 S. Ct. at 2692. Viewed in this way, § 3582(c)(2) proceedings do not

implicate an individual’s right to assert a constitutional claim.

3. Arbitrary and Capricious

Finally, the Commission’s retroactivity decision with regard to Amendment 709

was not arbitrary and capricious. While it is questionable that we even have authority to

review the Commission’s retroactivity decisions under this standard, we assume without

deciding that we do. See United States v. Martin, 438 F.3d 621, 635–36 (6th Cir. 2006).

An agency’s rule is arbitrary and capricious if:

the agency has relied on factors which Congress has not intended it to

consider, entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.

Motor Vehicle Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Here,

after soliciting public comment on the issue of retroactivity, the Commission held a

public meeting on December 11, 2007. At the meeting, two Commission members

explained why Amendment 709 should not be applied retroactively. The minutes of that

meeting state:

The Chair called for a motion as suggested by Mr. Cohen [to make

Amendment 709 retroactive]. Hearing none, the Chair stated that

Amendment 709 will not become retroactive for lack of a motion to that

effect. The Chair opened the floor for comments on the issue.

Commissioner Howell stated three reasons not to make Amendment 709

retroactive. First, the criminal history amendment was intended to clarify
No. 11-5470 United States v. Horn Page 18

4

U.S.S.G. § 4A1.3 states in pertinent part: “If reliable information indicates that the defendant’s

criminal history category substantially over-represents the seriousness of the defendant’s criminal history

or the likelihood that the defendant will commit other crimes, a downward departure may be warranted.”

the criminal history rules and not to address a fundamental fairness

concern as with certain other amendments given retroactive effect.

Second, it is difficult to determine how many defendants may be affected

by making the amendment retroactive. Third, retroactive application of

the amendment would require additional fact-finding in particular cases

and result in an extraordinary burden on the courts.

Vice Chair Steer agreed with Commissioner Howell’s statements. Vice

Chair Steer noted further that §4A1.3 (Departures Based on Inadequacy

of Criminal History Category) contains a policy statement on downward

departures that applies in a case in which the defendant’s criminal history

may overstate the seriousness of the offense, which addresses concerns

which might otherwise argue for retroactivity for Amendment 709.

U.S. Sentencing Comm’n Public Meeting Minutes at 3 (December 11, 2007). In making

this decision, the Commission considered the factors Congress intended it to consider,

namely whether retroactivity would “further the purposes set forth in [18 U.S.C.

§ 3553(a)(2)].” See 28 U.S.C. § 994(a)(2). The Commission determined that

retroactivity was unnecessary to “reflect the seriousness of the offense . . . and to provide

just punishment for the offense,” see 18 U.S.C. § 3553(a), because Amendment 709 was

a clarification that was not intended to address fundamental fairness. This conclusion

was buttressed by Vice Chair Steer’s acknowledgment that concerns about retroactivity

were properly addressed by the policy statement contained in U.S.S.G. § 4A1.3.4

Accordingly, the Commission considered the factors Congress intended it to consider.

The Commission considered the purpose of the amendment, the impact on prisoners in

light of other guidelines, the impact on the courts, and the uncertainty of how many

inmates would be impacted by the amendment. Further, Horn cannot point to any

important aspect of the problem that the Commission failed to consider. Finally, this

decision did not run counter to evidence presented to the Commission or seem

implausible. For these reasons, the Commission’s decision was not arbitrary or

capricious.
No. 11-5470 United States v. Horn Page 19

As it did in its first opinion, the district court improperly focused on a statement

at a summit regarding crack-cocaine retroactivity in declaring Amendment 709 arbitrary

and capricious. See Horn, 590 F. Supp. 2d at 985 (district court relying on same

statement in granting first sentence reduction). At the summit, Vice Chair Castillo

stated, “In terms of the criminal history [amendment made through Amendment 709],

we purposely, because of the complexity of the reductions made in criminal history,

coupled with what was going on with crack, we purposely did not make that retroactive.”

This statement in part confirms, and in part contradicts, the official record of the public

meeting. When reviewing the agency determination, it is preferable to rely on the

official meeting minutes and statements issued by the agency rather than a stray

comment uttered at a conference regarding crack-cocaine. Because neither party can

point this court to the context of the statement, and neither party made a transcript

available to this court, we rely on the official minutes of the Commission.

III.

For the foregoing reasons, we reverse and remand the order of the district court,

with the instruction that the district court not apply Amendment 709 retroactively.