1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________ 

Nos. 11-4540 and 12-1103

_____________

 

UNITED STATES OF AMERICA 

v. 

JOEL BERBERENA,

Appellant 

_____________

UNITED STATES OF AMERICA

v.

DENROY GAYLE,

Appellant

_____________

Appeals from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Nos. 2-01-cr-00363-019 and

2-05-cr-00357-001)

District Judges: Honorable Berle M. Schiller and

Honorable Lawrence F. Stengel

_____________ 
2

Argued July 11, 2012

Before: RENDELL, SMITH and BARRY, Circuit Judges

(Opinion Filed: September 11, 2012) 

_____________

Sarah S. Gannett, Esq. [ARGUED]

Brett G. Sweitzer, Esq.

Christy Unger, Esq.

Federal Community Defender Office

for the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

 Counsel for Appellants

Robert A. Zauzmer, Esq.

Bernadette A. McKeon, Esq. [ARGUED]

Zane David Memeger, Esq.

Jose R. Arteaga, Esq.

Thomas M. Zaleski, Esq.

Office of United States Attorney

Suite 1250

615 Chestnut Street

Philadelphia, PA 19106

 Counsel for Appellee 

_____________

OPINION OF THE COURT 

_____________
3

RENDELL, Circuit Judge.

Defendants Joel Berberena and Denroy Gayle appeal 

from orders entered in response to their 18 U.S.C. § 

3582(c)(2) motions for sentence reductions to reflect 

amendments to the United States Sentencing Guidelines that 

narrow the disparity between sentences for crack cocaine and 

powder cocaine offenses.

1

 They urge that their respective

District Courts were not bound by Guidelines § 1B1.10, a 

newly revised policy statement that limits the extent to which

a sentence may be reduced below the prisoner‟s amended 

Guidelines range. Defendants contend that, by preventing 

district courts from straying from the amended Guidelines 

range to account for departures and variances awarded as part 

of a prisoner‟s sentence, the Commission (1) exceeded its 

statutory authority, (2) violated separation-of-powers

principles, and (3) failed to comply with the Administrative 

Procedure Act‟s (“APA”) notice-and-comment requirements. 

For the following reasons, we will affirm the District Courts‟ 

refusal to reduce Defendants‟ sentences below their amended 

Guidelines ranges.

I.

In 2003, Berberena pled guilty to conspiracy to 

distribute crack cocaine and powder cocaine, in violation of 

21 U.S.C. § 846; possession of crack cocaine with intent to 

 

1 Defendants‟ criminal cases were unrelated below. 

Defendants filed an unopposed motion to consolidate their 

appeals, as they raised the same issues. The Clerk of this 

Court granted the motion, consolidating the two appeals for 

all purposes.
4

distribute, in violation of 21 U.S.C. § 841(a)(1); and

possession of powder cocaine with intent to distribute, in 

violation of 21 U.S.C. § 841(a)(1). After his sentence was 

vacated in light of United States v. Booker, 543 U.S. 220 

(2005), the District Court resentenced him, calculating an 

advisory Guidelines range of 210-262 months but varying

downward to impose a sentence of 150 months in prison.

2

 In 

2009, Berberena moved for a sentence reduction in light of 

Amendment 706 to the Guidelines, which reduced the base 

offense levels for most crack-related offenses. His amended 

Guidelines range was 168-210 months. The District Court 

granted Berberena a variance from the amended range 

proportional to the variance it awarded him previously and 

reduced his sentence to 135 months.

In 2006, a jury convicted Gayle of possession of a 

firearm by a convicted felon, in violation of 18 U.S.C. § 

922(g)(1); possession of crack cocaine with intent to 

distribute, in violation of 21 U.S.C. § 841(a)(1); and

possession of a firearm in furtherance of a drug trafficking 

crime, in violation of 18 U.S.C. § 924(c). In 2007, the 

District Court calculated a Guidelines range of 168-210

months for the § 922(g) and § 841(a) convictions, but varied 

downward to 120 months based upon the nature and 

circumstances of the offense and Gayle‟s personal history and 

characteristics. Because Gayle‟s § 924(c) conviction carried 

a mandatory consecutive 60-month sentence, the District 

Court sentenced him to a total of 180 months in prison.

In 2010, Congress passed the Fair Sentencing Act

(“FSA”) to “restore fairness to Federal cocaine sentencing” 

 

2

The record does not indicate the District Court‟s 

reason for granting Berberena a downward variance.
5

by changing the threshold quantities of crack cocaine that 

trigger mandatory minimum sentences. Pub. L. 111-220, § 2,

124 Stat. 2372, 2372 (2010). Pursuant to its authority to 

amend the Guidelines consistent with the FSA, id. § 8, the 

Commission promulgated Amendment 750. This amendment 

reduced the crack-related offense levels in § 2D1.1 of the 

Guidelines. The Commission made Amendment 750

retroactive by adding it to the list of amendments on the basis 

of which prisoners can move for reduced sentences. See 

U.S.S.G., App. C., amd. 759. That list appears in subsection 

(c) of the Commission‟s policy statement at § 1B1.10 of the 

Guidelines, which governs sentence reductions as a result of 

amendments to the Guidelines.

After the new crack-related offense levels became 

effective, both Berberena and Gayle moved for sentence 

reductions under 18 U.S.C. § 3582(c)(2).

3

 As a result of 

 

3

Section 3582(c)(2) establishes an exception to the 

general rule that a court may not modify a term of 

imprisonment once it has been imposed. It provides:

[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) . . . the court 

may reduce the term of 

imprisonment, after considering 

the factors set forth in section 

3553(a) to the extent that they are 
6

Amendment 750, Berberena‟s range changed from 168-210 

months to 135-168 months. Having already been sentenced 

to 135 months‟ imprisonment, Berberena sought a further

reduction from the low end of the new range proportional to 

the variance he received previously. The range for Gayle‟s § 

922(g) and § 841(a) convictions changed from 168-210 

months to 110-137 months, to which the mandatory 

consecutive 60-month sentence for his § 924(c) conviction 

would be added. Gayle similarly urged the court to reduce 

his 120-month sentence for the first two offenses below the 

minimum of the amended range to account for the downward 

variance it granted him originally. 

The government opposed Defendants‟ motions. It 

cited the Commission‟s most recent revision to the policy 

statement at § 1B1.10, which prohibits courts from reducing a 

“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.” U.S.S.G. § 1B1.10(b)(2)(A). The 

earlier version of the policy statement had permitted prisoners 

who, like Defendants, originally received below-Guidelines 

sentences to obtain reductions below their amended ranges in 

proportion to their earlier departures or variances. Id. § 

1B1.10(b)(2)(B) (2010) (amended 2011). However, it 

provided that, while comparable reductions to account for 

departures “may be appropriate,” comparable reductions to 

 

applicable, if such a reduction is 

consistent with applicable policy 

statements issued by the 

Sentencing Commission.

18 U.S.C. § 3582(c)(2).
7

account for variances “generally would not be appropriate.”

4

 

Concluding that the “distinction [between departures and 

variances] has been difficult to apply and has prompted 

litigation,” the Commission further closed the variance door, 

so to speak, in adopting Amendment 750. See Notice of Final 

Action Regarding Amendment to Policy Statement 1B1.10, 

76 Fed. Reg. 41332, 41334 (July 13, 2011). The result was 

the policy statement that the District Courts applied here. It 

prohibits a reduction below the low end of a prisoner‟s new 

 

4

In full, the earlier version of the limitation at issue 

read:

If the original term of 

imprisonment imposed was less 

than the term of imprisonment 

provided by the guideline range 

applicable to the defendant at the 

time of sentencing, a reduction 

comparably less than the amended 

guideline range . . . may be 

appropriate. However, if the 

original term of imprisonment 

constituted a non-guideline 

sentence determined pursuant to 

18 U.S.C. § 3553(a) and United 

States v. Booker, 543 U.S. 220 

(2005), a further reduction 

generally would not be 

appropriate.

U.S.S.G. § 1B1.10(b)(2)(B) (2010) (amended 2011).

 
8

range, even if the prisoner originally received a belowGuidelines sentence. The only exception is for defendants 

whose below-Guidelines sentences were based on a 

“government motion to reflect the defendant‟s substantial 

assistance to authorities.” Only then is a reduction below the 

bottom of a prisoner‟s amended range allowed. U.S.S.G. § 

1B1.10(b)(2)(B).5

 

5

The current version of § 1B1.10(b)(2) reads:

(A) Limitation.—Except as 

provided in subdivision (B), the 

court shall not reduce the 

defendant‟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 subdivision (1) 

of this subsection.

(B) Exception for Substantial 

Assistance.—If the term of 

imprisonment imposed was less 

than the term of imprisonment 

provided by the guideline range 

applicable to the defendant at the 

time of sentencing pursuant to a 

government motion to reflect the 

defendant‟s substantial assistance 

to authorities, a reduction 

comparably less than the amended 
9

Before the District Courts, the government cited §

3582(c)(2)‟s requirement that sentence reductions be 

“consistent with applicable policy statements issued by the 

Sentencing Commission” to argue that § 1B1.10(b)(2)(A)‟s 

limitation was binding. Defendants, however, urged that the 

revised version of § 1B1.10 exceeded the Commission‟s

statutory authority, violated separation-of-powers principles, 

and failed to comply with the APA‟s notice-and-comment 

requirements. Neither convinced the District Judges before 

whom they filed their § 3582(c)(2) motions to ignore the 

policy statement and reduce their sentences below the 

amended Guidelines ranges. Instead, the District Judges 

abided by the revised limitation. Berberena‟s motion was 

denied because his original sentence of 135 months was at the 

bottom of the new range. Gayle‟s motion was granted in part

only, resulting in a 170-month sentence at the bottom of the 

new range—110 months for the § 922(g) and § 841(a) 

convictions, and 60 consecutive months for the § 924(c) 

conviction.

6

 

guideline range determined under 

subdivision (1) of this subsection 

may be appropriate.

U.S.S.G. § 1B1.10(b)(2)(A)-(B).

6

Proportional reductions to account for the variances 

originally received by each would have resulted in a sentence 

of approximately 109 months for Berberena and 139 months 

for Gayle.
10

Both Defendants timely appealed.

7

II.

On appeal, Defendants advance the same arguments 

they urged below.8 They contend that the Commission‟s 

revised limitation on proportional reductions suffers from 

three infirmities, each of which, they say, suffices to deprive 

it of binding effect. First, they argue that the Commission 

exceeded its authority under the Sentencing Reform Act 

(“SRA”) by effectively undoing variances and departures 

awarded to a prisoner when he was originally sentenced. 

Second, they argue that, in revising § 1B1.10, the 

 

7 We have jurisdiction pursuant to 28 U.S.C. § 1291 

and 18 U.S.C. § 3742(a). Generally, a district court‟s denial 

of a sentence reduction is reviewed only for abuse of 

discretion. United States v. Mateo, 560 F.3d 152, 154 (3d 

Cir. 2009). But when, as here, a defendant raises purely legal 

issues of statutory and constitutional interpretation, we 

exercise plenary review. United States v. Doe, 564 F.3d 305, 

307 n.2 (3d Cir. 2009).

8

These are issues of first impression in this circuit. 

Two of our sister courts of appeals, however, have considered 

them in some detail. In United States v. Horn, the Sixth 

Circuit Court of Appeals rejected Defendants‟ arguments as 

they related to the Commission‟s binding retroactivity 

determinations. See 679 F.3d 397 (6th Cir. 2012). And more

recently, in United States v. Anderson, the Eighth Circuit 

Court of Appeals rejected Defendants‟ arguments with 

respect to the Commission‟s limitation on below-Guidelines 

reductions—the same limitation at issue here. See 686 F.3d 

585 (8th Cir. 2012).
11

Commission exercised legislative and judicial authority in 

violation of separation-of-powers principles. Last, they argue 

that the Commission‟s notice-and-comment procedure was 

inadequate to render the limitation an otherwise valid, binding

rule. We consider each argument in turn.

A. Commission Authority

Congress granted the Commission the power to issue 

binding policy statements regarding the extent to which 

sentences may be reduced based upon retroactive Guidelines 

amendments. The Commission exercised that authority when 

it limited courts‟ discretion to reduce a prisoner‟s sentence 

below his amended Guidelines range.

The starting point for our analysis of the 

Commission‟s authority is the SRA. Most pertinent here is 

28 U.S.C. § 994(u), pursuant to which the Commission 

amended § 1B1.10. See Notice of Final Action Regarding 

Amendment to Policy Statement 1B1.10, 76 Fed. Reg. at 

41332 (“The Sentencing Commission hereby gives notice of 

an amendment to a policy statement and commentary made 

pursuant to its authority under 28 U.S.C. 994(a) and (u).”). 

That provision states:

If 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 
12

imprisonment for the offense may 

be reduced.

28 U.S.C. § 994(u) (emphasis added). The SRA, then, 

authorizes the Commission to decide not only whether—“in 

what circumstances”—an amendment is to apply retroactively

but also the extent to which—“by what amount”—sentences 

may be reduced based on those that it makes retroactive. See 

Dillon v. United States, 130 S. Ct. 2683, 2691 (2010) (“The 

SRA charges the Commission . . . with determining whether 

and to what extent an amendment will be retroactive.” (citing 

28 U.S.C. § 994(u))). Congress therefore delegated to the 

Commission the power it exercised when revising § 1B1.10. 

In prohibiting reductions below a prisoner‟s amended 

Guidelines range, the Commission plainly indicated “by what 

amount” sentences may be reduced on the basis of retroactive 

amendments. See United States v. Anderson, 686 F.3d 585, 

589 (8th Cir. 2012) (“By limiting reductions below the 

amended guideline range to an amount comparable to an 

earlier reduction for substantial assistance, the Commission 

has specified the „circumstances and by what amount‟ a 

sentence may be reduced.” (quoting 28 U.S.C. § 994(u))).

Another provision in the SRA authorizes—indeed, 

requires—the Commission to exercise its authority over 

sentence reductions by issuing policy statements. In Section 

994(a), “Congress considered the difference between 

„guidelines‟ and „policy statements,‟ and directed the 

Commission to use each in different situations.” United 

States v. Horn, 679 F.3d 397, 402 (6th Cir. 2012). Congress 

sought for the Commission to issue policy statements to 

address, among other topics, “the appropriate use of . . . the 

sentence modification provisions set forth in section[] . . . 

3582(c) of title 18.” 28 U.S.C. § 994(a)(2)(C). The Sixth 
13

Circuit Court of Appeals has concluded that “[t]his section 

can only be read as a directive for the Commission to issue 

policy statements regarding the retroactivity of Guidelines 

amendments.” Horn, 679 F.3d at 401. The same is true with 

respect to the Commission‟s related authority—also based in 

§ 994(u)—to determine the extent to which prisoners‟ 

sentences may be reduced based upon those amendments it 

makes retroactive.9

Defendants attempt to cabin the Commission‟s 

authority by claiming that Congress did not intend for the 

Commission to disrupt elements of a prisoner‟s original 

sentence that are unrelated to the amendment pursuant to

 

9

In urging the opposite conclusion, Defendants 

unconvincingly compare § 994(u) and § 994(t). Section 

994(t) specifically directs the Commission to issue policy 

statements addressing a sentence modification procedure 

similar to § 3582(c)(2). 28 U.S.C. § 994(t) (“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 . . . .”). According to Defendants, the absence of a 

similar reference to policy statements in § 994(u) 

demonstrates that it “does not contemplate issuance of 

binding policy statements to implement § 3582(c).” 

Appellants‟ Br. at 37. Confusingly, though, they 

simultaneously acknowledge that § 994(a)(2)(C) “requires the 

Commission to issue policy statements that will pertain to § 

3582(c)(2) proceedings.” Id. This “appears to destroy [the]

contrast between § 994(u) and § 994(t).” Horn, 679 F.3d at 

403.
14

which he seeks a reduction. They argue that the Commission 

has improperly “undone” aspects of below-Guidelines

sentences by forbidding judges from reimposing variances 

and departures they previously deemed appropriate. Reply 

Br. at 3. This argument misses the mark. We cannot intuit an 

intent unmoored from Congress‟ directives. As demonstrated 

above, § 994(u) authorizes the Commission to issue policy 

statements regarding when and how sentences may be 

reduced based on its amendments to the Guidelines. 

Nowhere did Congress require that the Commission permit

judges to fashion a reduction with exactly the same tools—

departures and variances—they originally used to set an 

appropriate sentence. See Anderson, 686 F.3d at 589-90

(“The statutory framework does not require the Commission 

to make all downward departures and variances applied to the 

original sentence available when creating a basis for 

sentencing reduction.”). Rather than undo the effect of

previous departures and variances, the Commission has 

merely limited the extent to which new ones can be awarded 

in § 3582(c)(2) proceedings. 

Indeed, the text of § 3582(c)(2) makes clear that 

Congress contemplated that the Commission would have the 

power to impose limits on these types of sentence reductions, 

by making the Commission‟s policy statements binding. 

Section 3582(c)(2) provides:

[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 . . . , the 

court may reduce the term of 
15

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). While Defendants 

contend that the “consistent with” language does not 

necessarily make § 1B1.10 binding, we disagree.

10

 Indeed, in

United States v. Doe, we rejected such an interpretation and 

do not revisit that decision here. 564 F.3d 305, 310 (3d Cir.

2009) (“Under the express statutory language of § 3582(c)(2) 

and § 994(u), the Commission‟s policy statements 

implementing retroactive sentence reduction are binding.”). 

“If a sentence reduction is inconsistent with a policy 

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

 

10 Defendants claim that there are other provisions of 

the SRA that contain similar “consistent with” language, but 

with respect to which the Commission has not issued binding 

policy statements. They point to 18 U.S.C. § 3582(c)(1)(A), 

which requires that sentence reductions for extraordinary and 

compelling reasons be consistent with applicable policy 

statements of the Commission. But, Defendants fail to 

recognize that the policy statement that governs such 

reductions lists circumstances that qualify as extraordinary 

and compelling under § 3582(c)(1)(A), thereby restricting 

district courts just like § 1B1.10. See U.S.S.G. § 1B1.13 cmt. 

n.1. 
16

statements must be binding.” United States v. Garcia, 655 

F.3d 426, 435 (5th Cir. 2011).

The Supreme Court‟s opinion in Dillon v. United 

States reinforces our view that § 3582(c)(2) requires district 

courts to comply with the Commission‟s policy statements. 

There, the Court interpreted § 3582(c)(2) as “requir[ing] the 

court to follow the Commission’s instructions in § 1B1.10 to 

determine the prisoner‟s eligibility for a sentence 

modification and the extent of the reduction authorized.” 

Dillon, 130 S. Ct. at 2691 (emphasis added). The Court‟s use 

of the term “requires” cannot reasonably be read to make the 

Commission‟s decisions regarding the extent to which 

sentences may be reduced anything but mandatory. In fact, it 

is the mandatory nature of the Commission‟s limitation on 

sentence reductions that gave rise to the very Booker

argument considered, and rejected, by the Court in Dillon. 

See, e.g., id. at 2690 (“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.”). 

Moreover, the unfettered judicial discretion that 

Defendants seek to preserve is at odds with the narrow scope 

of § 3582(c)(2) sentence reduction proceedings. In Dillon, 

the Supreme Court made abundantly clear that sentence 

reduction proceedings pursuant to § 3582(c)(2) are not 

wholesale resentencings.11 Id. (“Section 3582(c)(2) does not 

 

11 In their briefs, Defendants remind us that Dillon

predated the revision to § 1B1.10 that is at issue here. See 

130 S. Ct. at 2691-92. We, however, fail to understand how 

that fact pertains to whether the Commission was authorized 
17

authorize a sentencing or resentencing proceeding.”). 

“Congress intended to authorize only a limited adjustment to 

an otherwise final sentence,” id. at 2691, “within the narrow 

bounds established by the Commission,” id. at 2694. The 

Court inferred Congress‟ intent not just from the text of 

§ 3582(c)(2) but also from the Commission‟s considerable

control over sentence reduction proceedings under § 994(u). 

Id. at 2691-92. It noted that, in addition to depending on the 

Commission‟s decision to make an amendment retroactive, 

courts are “constrained by [its] statements dictating „by what 

amount‟ the sentence of a prisoner . . . affected by [an]

amendment „may be reduced.” Id. at 2691. For us to say that 

the Commission does not have the power to impose such 

constraints would therefore run afoul of Dillon. 

As the Sixth Circuit Court of Appeals aptly 

summarized: “§ 994(u) requires the Commission to specify 

[by what amount sentences may be reduced based on 

retroactive amendments], § 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.” Horn,

679 F.3d at 401-02. Together, these provisions sink 

 

to make the revision. In deciding that district courts may not 

correct mistakes in a prisoner‟s original sentence, the Court 

emphasized how § 3582(c)(2) only “permits a sentence 

reduction within the narrow bounds established by the 

Commission.” Id. at 2694. Like the errors the Court deemed 

outside the scope of reduction proceedings in Dillon, the 

comparable reductions Defendants seek here are outside the 

“narrow bounds established by the Commission.” Id. It just 

so happens that the Commission has, as it may, further 

narrowed those bounds since Dillon.
18

Defendants‟ contention that the Commission exceeded its 

statutory authority by prohibiting courts from reducing a 

prisoner‟s sentence below his amended Guidelines range

except to reflect substantial assistance.

B. Separation of Powers

Defendants‟ argument that the new version of § 

1B1.10‟s limitation violates separation-of-powers principles 

fares no better. They submit that the Commission‟s issuance 

of a binding policy statement suffers from two problems: 

first, it constitutes the exercise of legislative authority without 

necessary accountability to Congress; and, second, it infringes 

upon the exercise of judicial authority by courts. 

1. Legislative Authority

As we noted above, Congress authorized the 

Commission to issue binding policy statements that limit the 

extent to which prisoners may benefit from retroactive 

Guidelines amendments. We cannot agree that Congress‟

delegation of that authority to the Commission violates

separation-of-powers principles.

“[R]ooted in the principle of separation of powers that 

underlies our tripartite system of Government,” the 

nondelegation doctrine generally prevents Congress from 

“delegat[ing] its legislative power to another Branch.” 

Mistretta v. United States, 488 U.S. 361, 371-72 (1989). 

However, a delegation of legislative power 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. at 372

(citations omitted). “Congress need not expressly authorize 
19

every determination made by the Commission.” Garcia, 655 

F.3d at 435. The Supreme Court has “upheld, . . . without 

deviation, Congress‟ ability to delegate power under broad 

standards.” Mistretta, 488 U.S. at 373.

In Mistretta, the Supreme Court rejected a 

nondelegation challenge to the SRA‟s broad grant of 

authority to the Commission. Id. at 374. It held that 

Congress‟ delegation of authority was “sufficiently specific 

and detailed to meet constitutional requirements.” Id. In 

support of its holding, the Court cited the considerable 

direction Congress gave the Commission on how to go about 

establishing a federal sentencing regime. The Court

described at length how, in 28 U.S.C. § 994, Congress

specified the purposes the Commission must serve, the tools 

the Commission must use, the factors the Commission must 

consider, and other terms by which the Commission must 

abide in promulgating Guidelines. Id. at 374-77. On the 

basis of those provisions, the Court held that the SRA “sets 

forth more than merely an ‘intelligible principle’ or minimal 

standards.” Id. at 379 (emphasis added). 

Given that only an intelligible principle is required, 

“[t]he threshold for a constitutionally valid delegation is 

much lower than was the delegation in Mistretta.” Garcia, 

655 F.3d at 435. That threshold easily has been met here. 

“[B]oth §§ 994(u) and 994(a)(2) limit and inform the 

Commission on how it must exercise its delegated authority.” 

United States v. Smith, 459 Fed. App‟x 99, 101 (3d Cir. 

2012). In § 994(u), Congress articulated the contours of the 

Commission‟s power: to “specify in what circumstances and 

by what amount the sentences of prisoners serving terms of 

imprisonment for [an] offense may be reduced” whenever it 

lowers the applicable Guidelines range for that offense. 28 
20

U.S.C. § 994(u). In § 994(a), Congress further guided the 

Commission‟s exercise of that authority. First, it “prescribed 

the specific tool—policy statements—for the Commission to 

use in regulating the retroactive effect of sentencing.” Horn, 

679 F.3d at 405. Second, it required that any policy 

statements issued on the subject “further the purposes set 

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

These provisions are of the same type as those on which the 

Mistretta Court relied and therefore satisfy us, as they have 

other courts, that Congress has “delineate[d] the general 

policy, the public agency which is to apply it, and the 

boundaries of this delegated authority.”

12 Mistretta, 488 U.S. 

at 373. This is all that is constitutionally required. 

Even outside the nondelegation context, we fail to see 

how the Commission‟s revision of § 1B1.10 upsets the

constitutionally prescribed balance of power. Defendants

contend that when the Commission binds courts in § 

3582(c)(2) proceedings it “lacks the political accountability 

demanded by the separation of powers doctrine.” Appellants‟ 

Br. at 40. Their argument relies upon Mistretta‟s analysis of

the Commission‟s location within the judicial branch. The 

defendants in Mistretta argued that the SRA 

unconstitutionally expanded the power of the judicial branch 

by “uniting within [it] the . . . quasi-legislative power of the 

Commission with the judicial power of the courts.” Mistretta, 

 

12 For other decisions rejecting nondelegation 

challenges to the Commission‟s issuance of § 1B1.10, see 

Anderson, 686 F.3d at 590; Horn, 679 F.3d at 404; Smith, 459 

Fed. App‟x at 101; Garcia, 655 F.3d at 435; United States v. 

Fox, 631 F.3d 1128, 1133 (9th Cir. 2011); United States v. 

Dukes, 420 Fed. App‟x 237, 237 (4th Cir. 2011).
21

488 U.S. at 393. The Court concluded that the Commission‟s 

powers are not united with the judiciary‟s power because the 

Commission is an independent agency accountable to 

Congress and the public. Id. 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,” and the Commission‟s 

“rulemaking is subject to the notice and comment 

requirements of the Administrative Procedure Act.” Id. at 

393-94 (citing 28 U.S.C. §§ 994(p) and (x)).

Although the Commission‟s policy statements are 

subject to neither the 180-day waiting period nor the APA‟s 

notice-and-comment requirements, its revision of § 1B1.10 

did not violate the separation-of-powers doctrine. The

purpose of those measures—to make the Commission 

accountable—was fulfilled. “Although policy statements are

not subject to the 180-day waiting period applicable when the 

Commission passes a Guidelines Amendment, Congress can 

direct the Commission to change its retroactivity 

determination or pass a law overruling the Commission‟s 

determination „at any time.‟”

13

 Horn, 679 F.3d at 405-06

 

13 We emphasize that the Commission “endeavor[s] to 

include amendments to policy statements and commentary in 

any submission of guideline amendments to Congress.” U.S. 

Sentencing Comm‟n, Rules of Practice and Proc. 4.1. 

Assuming, as we do, that the Commission followed its own 

rules when revising § 1B1.10, Congress was aware of the 

decision to further limit sentence reductions over the 180 days 

during which it considered Amendment 750. It was 

“accordingly free to dictate an alternative . . . determination 

during the 180 days.” Horn, 679 F.3d at 406. 
22

(quoting Mistretta, 488 U.S. at 394) (internal citation 

omitted); see also United States v. Fox, 631 F.3d 1128, 1131 

(9th Cir. 2011) (“Congress, of course, can override both 

Guidelines and Policy Statements by statute.”). The 

Commission, then, remains fully accountable to Congress

when it issues binding policy statements like § 1B1.10. 

Moreover, the Commission did solicit public views about § 

1B1.10(b)‟s limitation on sentence reductions and made its 

decision to make the limitation more stringent at a public 

hearing. See 76 Fed. Reg. 24960 (May 3, 2011); U.S. 

Sentencing Comm‟n, Public Meeting Minutes (June 30, 

2011).

14 “The public nature of the proceedings provided an 

effective check and allayed the concerns voiced by the Court 

in Mistretta.” Horn, 679 F.3d at 406.

No legislative power imbalance of constitutional 

dimensions resulted from the Commission‟s decision to set a 

limit on sentence reductions pursuant to § 3582(c)(2). 

Congress validly delegated to the Commission authority to 

make that decision, drafted the statute that made it binding on 

courts, and retained the power to legislate over it. The 

legislative authority Defendants ascribe to the Commission

was not unfettered or otherwise improper. 

2. Judicial Authority

The Commission‟s revision of § 1B1.10(b) did, 

admittedly, constrain the ability of courts entertaining § 

3582(c)(2) motions to reduce sentences. On that basis, 

 

14 The minutes of the Commission‟s June 30, 2011 

meeting are available at http://www.ussc.gov/Legislative_

and_Public_Affairs/Public_Hearings_and_Meetings/2011063

0/Meeting_Minutes.pdf.
23

Defendants contend that it interfered with the judicial 

function and thereby violated separation-of-powers

principles. We do not agree for several reasons.

To start, we note that Congress, without question,

possesses authority to restrict the judiciary‟s discretion in 

fashioning sentences. See Mistretta, 488 U.S. at 364 

(“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 to congressional control.”). And it is 

Congress that bound courts to the limitation in § 1B1.10, by

expressly requiring that sentence reductions based on 

amendments to the Guidelines be consistent with the

Commission‟s policy statements. See supra Section II.A.

“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).” Horn, 679 F.3d at 404. The 

Commission, therefore, is not acting alone in constraining

judicial discretion; it is instead crafting policy statements that

the legislative branch itself makes binding. 

Even were we to consider the Commission‟s 

imposition of a binding limitation on courts separate and apart 

from the language of § 3582(c)(2), no separation-of-powers 

issue arises. In the SRA, Congress explicitly placed the 

Commission within the judicial branch because of the role 

that branch has historically played in sentencing. See 28 

U.S.C. § 991(a) (establishing the Commission “as an 

independent commission in the judicial branch of the United 

States”). The Commission‟s location within the same branch 

as the courts suggests that no imbalance between the branches 

of government resulted from its revision of § 1B1.10. In fact, 

the Mistretta Court approved of the Commission‟s location in 
24

that branch precisely because its functions were “attendant” 

to courts‟ role in determining appropriate sentences. 488 U.S. 

at 391. That is, the Court based its rejection of a separationof-powers challenge to the SRA in part on the Commission‟s 

exercise of the very function Defendants find so 

objectionable, i.e., its promulgation of “Guidelines [that] bind 

judges and courts in the exercise of their uncontested 

responsibility to pass sentence in criminal cases.” Id. The 

Commission‟s establishment of a limit on sentence reductions 

falls squarely within this function.

Defendants‟ arguments do not convince us otherwise. 

They emphasize the Court‟s conclusion in Mistretta that the 

Commission‟s “powers are not united with powers of the 

Judiciary in a way that has meaning for separation-of-powers 

analysis” in part because “it is not a court[ and] does not 

exercise judicial power.” Mistretta, 488 U.S. at 393. By 

interfering with the sentencing decisions of courts, 

Defendants argue, the Commission acts as a court and thereby 

upsets the constitutionally prescribed balance of power. 

Appellants‟ Br. at 41. However, to start, we reiterate that

Dillon emphasized that reductions are not sentencings, 130 S. 

Ct. at 2690, such that the decisions with which § 1B1.10

interferes are not of the same nature as those considered in 

Mistretta. What is more, the Mistretta Court concluded that 

the Commission did not exercise judicial power well before 

Booker—when the Commission‟s ability to limit courts‟ 

sentencing discretion was at its zenith. See 488 U.S. at 367 

(describing the SRA as making “the Sentencing 

Commission‟s guidelines binding on the courts”). The

Commission no more interferes with the sentencing decisions 

of courts by limiting the extent to which sentences may be 
25

reduced than when it established mandatory sentencing 

ranges under the pre-Booker regime.

The Commission‟s retention of the “tiniest sliver,”

Dillon, 130 S. Ct. at 2693, of authority to restrict courts

proceeding under § 3582(c)(2) therefore fully comports with

separation-of-powers principles. Defendants‟ fears about the 

effect of the Commission‟s revision to § 1B1.10 on the 

structural protections of the Constitution “prove . . . to be 

„more smoke than fire.‟” Mistretta, 488 U.S. at 384.

C. Notice-and-Comment

Defendants‟ last remaining argument does not detain 

us for long because it is based on a faulty premise. 

Defendants contend that the Commission‟s failure to comply 

with the APA‟s notice-and-comment procedure bars 

enforcement of § 1B1.10. However, the Commission is not 

required to abide by the APA‟s notice-and-comment 

provisions when issuing policy statements. Its purported 

failure to do so, then, does not invalidate the new limitation 

on sentence reductions.

The statutory scheme established by the SRA makes 

clear that the Commission is only subject to the APA‟s 

notice-and-comment provisions when promulgating 

Guidelines. After differentiating between the subjects that 

may be addressed via Guidelines and policy statements, 28 

U.S.C. § 994(a), Congress imposed different requirements for 

the Commission‟s use of each tool. Section 994(x) provides 

that “[t]he provisions of section 553 of title 5, relating to 

publication in the Federal Register and public hearing 

procedure, shall apply to the promulgation of guidelines

pursuant to this section.” 28 U.S.C. § 994(x) (emphasis 
26

added). Unlike in certain surrounding provisions, see 28 

U.S.C. §§ 994(t) and (v), § 994(x) makes no reference to the 

Commission‟s issuance of policy statements. The omission

can only be interpreted to exclude policy statements from § 

994(x)‟s application of the APA‟s notice-and-comment 

provisions.15 See Fox, 631 F.3d at 1131 (“The Sentencing 

Commission must jump through more procedural hoops to 

issue a Guideline than to issue a Policy Statement.” (citing,

inter alia, 28 U.S.C. § 994(x))). 

We cannot agree with Defendants that the mandatory 

nature of § 1B1.10 alters this reasoning or result. Appellants‟ 

Br. at 50. Defendants contend that administrative law 

principles prevent agencies from avoiding notice-andcomment by announcing binding precedent in general 

statements of policy. Id. (citing Ctr. for Auto. Safety v. Nat’l 

Highway Traffic Safety Admin., 452 F.3d 798, 807 (D.C. Cir. 

2006)). Such administrative law principles, however, are of 

limited application to this case. “Congress decided that the 

Sentencing Commission would not be an „agency‟ under the 

APA when it established the Commission as an independent 

entity in the judicial branch.” Wash. Legal Found. v. U.S. 

Sentencing Comm’n, 17 F.3d 1446, 1450 (D.C. Cir. 1994); 

see also id. (“Congress . . . decided that the Commission 

 

15 Curiously, Defendants‟ separation-of-powers 

argument is based in large part on the fact that the 

Commission is not subject to the same procedural 

requirements when issuing policy statements as when 

promulgating Guidelines. In fact, Defendants actually relied 

heavily on the inapplicability of APA notice-and-comment to 

argue that the Commission escaped necessary accountability 

when revising § 1B1.10.
27

would not be subject to the provisions of the APA except as 

specifically enumerated.”). And even were the Commission 

subject to the rules governing other agencies, the principle to 

which Defendants refer would still be of dubious applicability 

because, as we stated earlier, it was Congress—not the 

Commission—that made § 1B1.10 binding.

Given that the Commission is not obligated to abide by 

the APA‟s notice-and-comment provisions when issuing 

policy statements, we need not address the adequacy of the 

notice-and-comment procedures it used to revise § 1B1.10‟s 

limitation on sentence reductions. The Commission properly 

issued the policy statement, and it is therefore valid.

III.

For the foregoing reasons, we will affirm both the 

order denying Berberena‟s motion for a sentence reduction 

and the order granting in part Gayle‟s motion for a sentence 

reduction.