NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 11

- 4264

_____________ UNITED STATES OF AMERICA

v. JERRY L. STRAIN, Appellant

_______________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 09

- cr
- 291) District Judge: Hon. Christopher C. Conner

_______________ Submitted Under Third Circuit LAR 34.1(a) November 15, 2012 Before: SCIRICA, FISHER, and JORDAN, Circuit Judges

. (Filed : November 16, 2012 )

_______________ OPINION OF THE COURT

_______________ JORDAN, Circuit Judge

. Jerry L. Strain appeals a sentence imposed by the United States District Court for the Middle District of Pennsylvania

. He had received a variance when he was orig inal ly

sentence d but not when the District Court later amended his sentence to reflect a retroactive change to the United States Sentencing Guidelines. In his view, the denial of2 a variance in the amended sentence constitutes error. For the reasons that follow, we will
affirm.
I. Background In December 2009, Strain ple a d ed guilty to a charge of conspiracy to distribute and possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846

. At sentencing, the pertinent Guideline s range was deter mined to be 108 to 135 months’ imprisonment

. Strain moved for a do wnward variance from this range, and, a fter analyzing the factors in 18 U.S.C. § 3553(a), the District Court granted that motion and sentenced him to 90 months’ imprisonment (approximately a 17 percent variance below
the minimum of 108 months ) , followed by three years of supervised release

. As a result of the Fair Sentencing Act of 2010 , t he Guideline s range s for crack
offense s were reduced to lessen the disparity between those offenses an d offenses involving pow d er cocaine

. See Amend ment 7 50, U.S. Sentencing Guidelines a pp. C , at
392

– 93 (2011)

. T ho se changes were made r etroactive on November 1, 2011. U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.10(c)

. In light of the retroacti vity of
the amendments , Strain filed a motion to r educe his s entence

. W ithout opposition from the government (App. at 102) , the District Court granted Strain’s motion and his
amended Guidelines range became 70 to 90 months’ imprisonment. Strain also aske d the
District Court to grant a 17 percent variance, as the Court had in imposing the initial sentence. The Court rejected that request , citing Guidelines § 1B 1 .1 0, which prevents courts from departing or varying after re

- sentencing a defendant pursuant t o an am ended
G uideline s range except to reflect substantial assistance

. Id. § 1B1.10 (b)(2)(A)

. The3 District Court sentenced Strain to 70 months’ imprisonment, which was the minimum
recommend ed under the amended range
. S train filed this timely appeal , co ntending that the District Court’s reliance on § 1B1.10 was in error

. II. Discussion 1 Section 1B1.10 of the Guidelines provides, “[T] he court shall not reduce the
de fendant’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

... .” Id. § 1B1.10 (b)(2)(A). Strain argues that the United States Sentencing Commission ( the “Commission”) lacked the authority to promulgate § 1B1.10 because that provision impermissibly inter feres with aspects of an original sentence , such as the propriety of a
variance

. Strain further argues that adoption of §1B1.10 violates separation of powers principle s because it “constitutes unconstrained rule making and interferes with the judicial fun ction

. ” ( Appellant Br. 12. ) Both arguments are unavailing

. We recently addressed those same arguments in United States v. Berberena, No.
11

- 4540,

--- F.3d

-- - , 2012 WL 3937666 (3d Cir. Sept. 11, 2012)

. In Berberena , we first
considered the issue of the Commission’s authority to promulgate § 1B1.10 and indicated that the Commission had authority to limit variances in light of three statutory provisions: 28 U.S.C. §§ 994(a) and (u), and 18 U.S.C. § 3582(c) (2). Id. at *3

- 4

. We explained that

1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisd iction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We exercise plenary review over the District Court’s interpretation of the Guidelines. United States v. Kennedy , 554 F.3d 415, 418 (3d Cir. 2009). We review for clear error any factual findings t hat support a sentencing determination

. Id.4 “ § 994 (u) re quires the Commission to specify [by what amount sentence s may be reduced
based on ret roactive 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

. ”
Id. at *5 (alteration in original) (internal quotation marks omitted)

. Therefore , “t hese provisions s ink [Strain’s] contention that the Commission exceeded its statutory authority by prohibiting courts from reducing a prisoner’s sentence below his amended Gui delines range except to reflect substantial assistance.” Id.
As to Strain ’ s separation of powers argument, our opinion in Berberena explained that Congress’ s delegation of authority to the Commission did not violate separation of
power s principle s becau se “a delegation of legislative power is permissible if Congress
‘l ay[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 *6 (alteration in orig inal) ( quoting Mistretta v. United States , 488 U.S. 361, 372 (1989) )

. And given the clarity of § § 994 (a) and (u), and § 3582 (c)(2), the “ intelligible principle ” requirement “ easily has be en met here.” Id

. 2
As a result of our rejection in Berberena of the same arguments that Strain presses
here , his appeal lacks merit.

2 To be sure, Berberena explained that the Sentencing Commission’s revision of § 1B1.10(b) did constrain the ability of courts entertaining § 3582(c)(2) motions to reduce sentences. Yet, it did not impermissi bly interfere with the judicial function and comported with separation of powers principles. Cf. Berberena , 2012 WL 3937666, at *8 (“Congress explicitly placed the Commission within the judicial branch because of the role that branch has historically play ed in sentencing.”).5 III. Conclusion
For the foregoing reasons , we will affirm the sentence imposed by the District
Court

.