RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 12a0121p.06 

### UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

_________________

U NITED S TATES OF A MERICA , Plaintiff-Appellant,

v.
G REGORY S TEVEN H ORN , Defendant-Appellee. X - - - -> , - - N 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. MichaelC. Holley, OFFICE OF FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellee. ON BRIEF: John-Alex Romano, UNITED STATES DEPARTMENT OF JUST ICE, 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 Hornwas sentenced as a career offender under U.S.S.G. § 4B1.1 following his guilty plea to bank robbery. Six years later, in

1No. 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 originallysentenced, 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 c ourt 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 Re form Act (“SRA”), see 28 U.S.C. §§ 991–998. Before this court addressed Horn’s ap peal, 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 arb itrary 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, Hornpled guilty to one count of bank robbery, in violation of 18 U. S.C. § 2113(d). At sentencing, the district court determinedthat 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 offende r and his Guidelines range would be 92 to 115 months’ imprisonment. The Senten cing 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 Di rector 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 th e 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 responsibilityNo. 11-5470 United States v. Horn Page 4

to review and revise the Guidelines, and sp ecify 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 retroactivel y. 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 th at 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 retroac tive 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 decisi on. First, the district court reasoned that the Commission’s retroactivity decision was arbitr ary 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 c onstruction 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 beNo. 11-5470 United States v. Horn Page 5

non-binding, and that a binding rule must take th e form of a guideline. Third, the district court concluded that the Commission’s issuan ce 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-maki ng. 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 di strict 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 th e Commission’s retroactivity decision with regard to Amendment 709 was proper. For the following reasons, the Sentencing Commission’s decision was statutorily and c onstitutionally 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 st ates that “[i]f the Commission reduces the term of imprisonment recommended in the guide lines applicable to a particular offense or category of offenses, it shall specify inwhat 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 retroac tively 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 inst ance 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 c ontrast, in the same section of the statute, Congress directed the Commi ssion 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 appr opriate use of the provisions for revocation of probation”; or (3) “for modification of th e term or conditions of supervised releaseNo. 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 statemen t 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 w ith 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 phr ase “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 governme nt’s ‘standard procurement policies.’” Id. TheNo. 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 compelli ng 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 “consis tent with” in the context of migrant farm workers, this court has already determined that “consistent with” requires literal compliance with the Commission’s policy stat ements 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 inthe 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 flawedin 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 heel s of four decades of experience and litigation under the Administrative Procedure Act. ” From this historical context, Horn argues that Congress intended to import th e 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 argumen t proves too much. Because Horn concedes that Congress was legislating with full knowle dge 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 recognizedthat the SRA “authorizes the Commission to determine the retroactive e ffect of sentence reductions.” Id. at 2703 n.8 (Stevens, J., dissenting). Justice Stevens distinguished th e power to determine retroactivity from the power at issue in Dillon , noting that “Congress has instructed the Commission toNo. 11-5470 United States v. Horn Page 10

perform a gate keeping function by determini ng 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 Commi ssion 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, di strict courts would still be bound to follow that policy statement under the express language of § 3582(c)(2).

The district court also contended th at 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 C ourt 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 th e “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 nothi ng 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 conceivabl e that a district c ourt would not be bound by such guidelines. This would rob the Commi ssion 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 theNo. 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 Co mmission’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 authori zed 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 par ticular 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 reduce d.” 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 Commissi on 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 b een 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 constituti onally 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 Commi ssion 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 di rect the Commission to change its retroactivity determination or pass a la w 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 th e same meeting atNo. 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_a ffairs/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_Rulemak ing/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 theNo. 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 presen ce 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 me mbers 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 pow er 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 w ith this argument. First, the SRA explicitly places the Sentencing Commission within the Judicial Branch, establishing the Commission “as an independent commission in th e 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 subjectNo. 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, withthe 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 expi ration 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). Give n the historic distribution of power, it cannot be said that the Commission is exerci sing 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 esse ntially 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 instan ces, 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 Pr esident 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 di ffusion of power to violate the separation of powers, because the Presid ent was no longer the judge of the Board’s conduct. Id. The Court held “that the dual for-cau se 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]heChair, Vice Chairs, and members of the Commission shall be subject to removal fr om 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 rightto 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 th e 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 secu red 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, how ever, has stated that the “concern of encroachment and aggrandizement . . . has animated our separation-of-powers jurisprudence.” Mistretta , 488 U.S. at 382. Although indivi duals have standing to raise separation-of-powers claims—the issue in Bond v. United States —that is not theNo. 11-5470 United States v. Horn Page 17

animating inquiry of a separation-of-power s 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. View ed 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 d ecision with regard to Amendment 709 was not arbitrary and capricious. While it is que stionable 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 decisi on that runs counter to the evidence before the agency, or is so implausibl e 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 retroac tive 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 clarifyNo. 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) cont ains 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 Mi nutes at 3 (December 11, 2007). In making this decision, the Commission considered the factors Congress intended it to consider, namely whether retroactivitywould “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 st atement 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 th e amendment, the impact on prisoners in light of other guidelines, the impact on th e 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 retroac tivity 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 reduc tion). 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 stat ement, 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.