United States Court of Appeals

For the First Circuit

No. 12-1039

UNITED STATES,

Appellee,

v.

WYMAN HOGAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Howard, Stahl, and Thompson,

Circuit Judges.

John T. Ouderkirk, Jr. for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom

John P. Kacavas, United States Attorney, was on brief, for

appellee.

Judith H. Mizner, Assistant Federal Public Defender for the

Federal Public Defender for the Districts of Massachusetts, New

Hampshire and Rhode Island Federal Defender, amicus curiae.

July 5, 2013
THOMPSON, Circuit Judge. Appellant Wyman Hogan ("Hogan")

was sentenced to 262 months' imprisonment for crack-cocaine related

offenses in 2002. When the United States Sentencing Guidelines

("U.S.S.G.") were amended in 2007 to reduce crack-cocaine base

offense levels, Hogan moved for and was granted a sentence

reduction pursuant to 18 U.S.C. § 3582(c)(2). The guidelines were

amended again in 2011, retroactively lowering the base offense

levels further for crack-cocaine offenses. Hogan again moved for

a reduction of his sentence under § 3582(c)(2), but the district

court denied the motion. Hogan appeals, arguing the district court

erred in concluding he was ineligible to receive that reduction. 

We affirm.

BACKGROUND

In 2001, a jury found Hogan guilty of conspiracy to

possess with intent to distribute and distribution of fifty grams

or more of cocaine and cocaine base, in violation of 21 U.S.C. §§

846 and 841(a)(1), and possession of cocaine base, in violation of

21 U.S.C. § 844(a). At Hogan's sentencing in 2002, the district

court determined his base offense level ("BOL") was 34. After

applying a three-level increase for an official victim enhancement

and a two-level increase for a leadership role enhancement, as well

as a downward adjustment of two levels for acceptance of

responsibility, the court found Hogan's total offense level ("TOL")

was 37. Although the Presentence Investigation Report ("PSR")

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determined Hogan's criminal history category ("CHC") was VI, Hogan

requested and the court granted a downward departure pursuant to

U.S.S.G. § 4A1.3. The court departed to a CHC of III, on the basis

that the CHC of VI "over-represent[ed] the seriousness" of Hogan's

criminal history. That departure reduced Hogan's advisory

guideline range to 262 to 327 months and the court sentenced Hogan

to 262 months and five years of supervised release.

Six years later, Hogan moved to reduce his sentence

pursuant to 18 U.S.C. § 3582(c)(2), which permits district courts

to modify previously imposed sentences in certain circumstances to

take into account retroactive guideline amendments.1 Hogan's

motion was based on a 2007 amendment to the Sentencing Guidelines

which retroactively reduced base offense levels for crack-cocaine

offenses by two levels. See U.S.S.G. app. C, amends. 706, 713

(effective Nov. 1, 2007); United States v. Caraballo, 552 F.3d 6,

8 (1st Cir. 2008) (noting the amendment "adjust[ed] downward by two

levels the base offense level ascribed to various quantities of

crack cocaine" in the Guidelines Manual drug quantity table). The

government and Hogan stipulated to the retroactive application of

1

Under 18 U.S.C. § 3582(c)(2), a district court may reduce a

sentence previously imposed "in the case of a defendant who has

been sentenced to a term of imprisonment based on a sentencing

range that has subsequently been lowered by the Sentencing

Commission." 18 U.S.C. § 3582(c)(2). A court may reduce the 

sentence "after considering the factors set forth in section 

3553(a) to the extent that they are applicable" and if reducing the

sentence is "consistent with applicable policy statements issued by

the Sentencing Commission." Id.

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the sentencing guideline amendment and agreed Hogan's BOL should be

reduced from 34 to 32, which reduced his TOL from 37 to 35, and

yielded a guideline range of 210 to 262 months. The parties

proposed the amended sentence should be 210 months. The district

court concluded that the version of U.S.S.G. § 1B1.10 in effect at

the time allowed it to apply the same departure in Hogan's CHC --

from CHC VI to CHC III -- it had applied at his initial sentencing. 

See U.S.S.G. § 1B1.10(b)(2) (pre-2011 amendments) (providing that

"[i]f 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," the defendant could be

granted "a reduction comparably less than the amended guideline

range"). Applying the CHC departure, the court determined the

revised guideline range was 210 to 262 months and agreed with the

parties that Hogan's sentence should be reduced to 210 months.

In 2011, the Sentencing Commission adopted Amendments 750

and 759, both effective November 1, 2011. Amendment 750

retroactively implemented the Fair Sentencing Act of 2010 ("FSA"),

which reduced the statutory penalties for crack-cocaine offenses. 

See Fair Sentencing Act of 2010 § 2(a), Pub. L. No. 111-220, 124

Stat. 2372; U.S.S.G. app. C, amend. 750 (effective Nov. 1, 2011). 

The change in drug amounts reduced the "100-to-1 crack-to-powder

ratio to 18-to-1." Dorsey v. United States, 132 S. Ct. 2321, 2329

(2012). While Amendment 750 made further retroactive reductions to

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the crack-cocaine guidelines, Amendment 759 limited the

availability of relief for prisoners who received below-guideline

sentences in the first instance.

As part of Amendment 759, the Sentencing Commission

amended policy statement § 1B1.10(b)(2). Prior to Amendment 759,

§ 1B1.10(b)(2)(A) prohibited reducing a defendant's sentence 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) (2010). 

There was an exception to this rule under § 1B1.10(b)(2)(B), which

allowed a "reduction comparably less than the amended guideline

range" in cases where "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." Id.

§ 1B1.10(b)(2)(B) (2010). Amendment 759 kept § 1B1.10(b)(2)(A)

intact, but changed the exception found in § 1B1.10(b)(2)(B) under

which a court could further reduce a defendant's sentence. Now, §

1B1.10(b)(2)(B) allows a reduction comparably less than the amended

guideline range only if the below-guideline sentence was due to the

defendant's substantial assistance to the government. 

Specifically, newly-amended § 1B1.10(b)(2)(B) provides that if a

defendant's term of imprisonment "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,

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a reduction comparably less than the amended guideline range . . .

may be appropriate." U.S.S.G. § 1B1.10(b)(2)(B) (2011). In

addition, the Commission amended Application Note 1 to §

1B1.10(b)(2) which says that the "guideline range" consisting of

"the offense level and criminal history category determined

pursuant to § 1B1.10(a) . . . is determined before consideration of

any departure provision in the Guidelines Manual or any variance." 

Id. § 1B1.10 cmt. n.1.

Based on the retroactive application of the 2011

guideline amendments, Hogan moved to reduce his sentence pursuant

to 18 U.S.C. § 3582(c)(2). This time, the district court denied

Hogan's motion. The court concluded that although the retroactive

application of the 2011 guideline amendments resulted in a twolevel reduction in Hogan's BOL from 32 to 30, and a corresponding

reduction in his TOL from 35 to 33, the amended version of §

1B1.10(b)(2) did not entitle Hogan to a "reduction comparably less"

than his amended guideline because he had been sentenced to a

below-guideline sentence. United States v. Hogan, 00-CR-100-01-PB,

2011 WL 6337629, at *2 (D.N.H. Dec. 16, 2011).

The revised version of § 1B1.10(b)(2) under Amendment

759, the court said, did not permit it to apply the CHC III

departure in calculating Hogan's guideline range -- the same

departure the court had applied in 2002 at his initial sentencing

and in 2008 when granting Hogan's motion to reduce his sentence

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based on the pre-2011 amendments.2 The court applied Hogan's

original CHC (VI), instead of the reduced CHC (III), and a TOL of

33 (reduced per the 2011 guideline amendments), resulting in an

amended guideline range of 235 to 293 months. Because the amended

guideline range exceeded Hogan's modified sentence of 210 months,

the court found the language of the newly-amended § 1B1.10(b)(2)

prohibited any further reduction to the 210-month sentence and that

Hogan was therefore ineligible for relief under 18 U.S.C. §

3582(c)(2). This is Hogan's appeal.

DISCUSSION

Hogan says the district court erred in concluding he was

ineligible under 18 U.S.C. § 3582(c)(2) for a sentence reduction. 

As best we can tell, Hogan raises two arguments in his brief: 

first, that the district court was wrong in finding the revised

commentary in Application Note 1 bars the district court from

applying his reduced CHC of III from his original sentencing in

calculating the amended guideline range; and second, that the

newly-amended U.S.S.G. § 1B1.10(b)(2) does not prohibit the

district court from considering his reduced CHC in further reducing

his below-guideline sentence.

2

Given the court's conclusion that it could not apply, as it

had before, the same CHC III departure, we infer that the court had

considered Application Note 1 to the amended § 1B1.10(b)(2)(B)

although it did not expressly mention it in its decision. 

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The sole issue on appeal is therefore whether Hogan, who

received a CHC reduction at his original sentencing, is entitled to

the application of the same or a similar reduction at re-sentencing

under § 3582(c) in light of the newly-amended sentencing guideline,

§ 1B1.10(b)(2), and its commentary, Application Note 1. Because

this is a purely legal question, our review is de novo. See United

States v. Roa-Medina, 607 F.3d 255, 258 (1st Cir. 2010). 

Our starting point is 18 U.S.C. § 3582(c)(2), the statute

under which Hogan moved to reduce his sentence. Under §

3582(c)(2), a district court may reduce a sentence previously

imposed "in the case of a defendant who has been sentenced to a

term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission." 18 U.S.C.

§ 3582(c)(2). A court may reduce the sentence "after considering

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

are applicable" and if reducing the sentence is "consistent with

applicable policy statements issued by the Sentencing Commission." 

Id.

The parties agree that the applicable Commission policy

statement on § 3582(c)(2) sentence reductions is the newly-amended

U.S.S.G. § 1B1.10(b). Section 1B1.10(b) outlines the approach

courts are to take in determining whether and to what extent a

sentence reduction under 18 U.S.C. § 3582(c)(2) and the policy

statement is warranted. See U.S.S.G. § 1B1.10(b). Under §

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1B1.10(b)(1), the court must first determine the amended guideline

range that would have applied to the defendant if the guideline

amendments specified in the policy statement (which include

Amendment 750) were in effect at the time of the defendant's

initial sentencing. Id. § 1B1.10(b)(1). In doing so, the court

may substitute only the amended guideline and must "leave all other

guideline application decisions unaffected." Id. Once a court

determines the amended guideline range, it must look to §

1B1.10(b)(2) to see whether and to what extent it can reduce the

defendant's sentence.

As we mentioned, Hogan's first challenge to the district

court's denial of relief under 18 U.S.C. § 3582(c)(2) attacks the

way the court calculated his amended guideline range pursuant to

U.S.S.G. § 1B1.10(b)(1). He argues the court should have applied

the downward departure he received in his criminal history category

at his initial sentencing when calculating the amended guideline

range. We disagree.

We need look no further than Application Note 1 to

determine whether § 1B1.10(b)(1) allows courts to consider

departures prior to determining the applicable guideline range. 

The plain language of Application Note 1(A) makes clear that the

applicable guideline range calculated under § 1B1.10(b)(1)

corresponds to the offense level and criminal history category

which is "determined before consideration of any departure

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provision in the Guidelines Manual." U.S.S.G. § 1B1.10 cmt. n.1(A)

(emphasis added). Thus, Application Note 1 prohibits courts from

applying departures prior to the determination of the amended

guideline range in a proceeding for a sentence reduction under 18

U.S.C. § 3582(c)(2). See United States v. Montanez, 11-4933-CRL,

2013 WL 2346409, at *4 (2d Cir. May 30, 2013); United States v.

Steele, 714 F.3d 751, 754 (2d Cir. 2013); United States v. Givens,

No. 12-14549, 2013 WL 1197899, at *2-3 (11th Cir. Mar. 26, 2013)

(unpublished); United States v. Valdez, 492 F. App'x 895, 898-99

(10th Cir. 2012) (unpublished).

A commentary provision, such as Application Note 1,

"which functions to interpret a guideline or explain how it is to

be applied" is binding as long as the Commentary does not conflict

with the Constitution, a federal statute, or the guideline at

issue. Stinson v. United States, 508 U.S. 36, 42–43 (1993)

(internal quotation marks and alterations omitted). We find

meritless Hogan's sole argument as to why the Application Note is

not binding. Hogan argues that Application Note 1 conflicts with

18 U.S.C. § 3582(c)(2) "to the extent [Application Note 1's]

application prohibits the court from reducing a defendant's

sentence" where the district court applied a downward departure to

lower his guideline range at his initial sentencing but can no

longer apply that departure to determine the amended guideline

range. Hogan's argument ignores the authority and "substantial

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role" regarding sentence-modification proceedings that Congress

gave the Commission. Dillon v. United States, 130 S. Ct. 2683,

2691 (2010). Congress authorized the Commission to decide not only

whether to amend the Sentencing Guidelines, 28 U.S.C. § 994(o), and

to determine whether and to what extent an amendment would be

retroactive, id. § 994(u), but also to determine the extent to

which -- "by what amount" -- sentences may be reduced based on

those that it makes retroactive, Dillon, 130 S. Ct. at 2691. In 18

U.S.C. § 3582(c)(2), Congress explicitly stated that courts may

reduce a sentence only if the reduction is "consistent with

applicable policy statements issued by the Sentencing Commission." 

18 U.S.C. § 3582(c)(2). And, courts are "require[d]" 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. In

prohibiting further reductions to a defendant serving a belowguideline sentence based on departures other than those granted

because of the defendant's substantial assistance, the Commission

has plainly indicated "by what amount" sentences may be reduced on

the basis of retroactive amendments. We reiterate, as the Supreme

Court has already made clear, that § 3582(c)(2) does not give the

defendant a resentencing opportunity. Id. at 2690 ("[Section]

3582(c)(2) does not authorize a sentencing or resentencing

proceeding."). Under § 3582(c)(2), Congress instead "intended to

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authorize only a limited adjustment to an otherwise final

sentence," id. at 2691, "within the narrow bounds established by

the Commission," id. at 2694. Those narrow bounds, found in §

1B1.10 and the Application Note, constrained what the court could

do in modifying Hogan's sentence in this case. Id. at 2691 (noting

that "§ 1B1.10(b)(2) also confines the extent of the reduction

authorized").

To be sure, the Commission's decision to revise

Application Note 1 under the 2011 guideline amendments was careful

and deliberate. The Commission noted that the version of § 1B1.10

in effect prior to November 1, 2011 had "one rule for downward

departures (stating that 'a reduction comparably less than the

amended guideline range . . . may be appropriate') and another rule

for variances (stating 'that a further reduction generally would

not be appropriate')." U.S.S.G. app. C, amend. 759 (Reason for

Amendment). The difficulty in applying the distinction for cases

in which the term of imprisonment was less than the minimum of the

applicable guideline range prompted the Commission to determine

that in the context of § 1B1.10, "a single limitation applicable to

both departures and variances furthers the need to avoid

unwarranted sentencing disparities and avoids litigation in

individual cases." Id. The Commission said the "limitation that

prohibits a reduction below the amended guideline range in such

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cases promotes conformity with the amended guideline range and

avoids undue complexity and litigation." Id.3

At oral argument, Hogan raised for the first time three

arguments concerning the enforceability of Application Note 1. He

contended that Application Note 1 is not binding because: (1) it

conflicts with the text of § 1B1.10(b)(1); (2) it conflicts with

the purpose of the FSA; and (3) the Commission failed to comply

with the Administrative Procedure Act, 5 U.S.C. § 551-559, noticeand-comment requirements when amending the policy statement.4

3Before the 2011 guideline amendments, the circuits were split

"about when, if at all, the court applies a departure provision

before determining the 'applicable guideline range' for purposes of

§ 1B1.10." U.S.S.G. app. C, amend. 759 (Reason for Amendment). As

the Commission has noted, we, along with the Second and Fourth

Circuits had held that, for § 1B1.10 purposes, at least some

departures -- i.e., departures under § 4A1.3 -- "are considered

before determining the applicable guideline range, while the Sixth,

Eighth, and Tenth Circuits have held that the only applicable

guideline range is the one established before any departures." Id.

(internal quotation marks and citations omitted). Recognizing the

circuit split, the Commission amended Application Note 1 to

"adopt[] the approach of the Sixth, Eighth, and Tenth Circuits" and

"clarify that the applicable guideline range referred to in §

1B1.10 is the guideline range determined . . . before consideration

of any departure provision in the Guidelines Manual or any

variance." Id.

4Hogan's brief notes that the guideline amendments promulgated

by the Commission retroactively implemented the reduced statutory

penalties for crack-cocaine offenses under the FSA but does not

specifically argue that the 2011 guideline amendments are

inconsistent with the FSA. Instead, he makes the broad statement,

without explaining why, that the FSA and the guideline amendments

did not require the district court to return to the pre-departure

CHC of VI when determining the applicable guideline range under

U.S.S.G. § 1B1.10(b)(1) and in declining to further reduce Hogan's

sentence under § 1B1.10(b)(2).

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Hogan made no mention of any of these arguments in his brief. 

Thus, his argument that Application Note 1 is not binding based on

those grounds is waived. See United States v. Bayard, 642 F.3d 59,

66 n.10 (1st Cir. 2011) (noting that arguments raised at oral

argument but not in a party's initial brief are waived); United

States v. Giggey, 551 F.3d 27, 36-37 (1st Cir. 2008) (same).5

We now turn to Hogan's argument that § 1B1.10(b)(2) does

not preclude a reduction below the 210-month sentence he is

currently serving. Hogan says the CHC downward departure he

received at his original sentencing should apply to yield a

sentence reduction "comparably less than the amended guideline

range," U.S.S.G § 1B1.10(b)(2)(B), which in his case is 235 to 293

months applying a CHC of VI. 

5We invited the Federal Public Defender for the Districts of

Massachusetts, New Hampshire and Rhode Island to file an amicus

brief to address whether Hogan, who received a reduction in his CHC

at his original sentencing, is entitled to the application of the

same or a similar reduction upon consideration of a re-sentencing

motion under § 3582(c)(2). 

At oral argument, counsel for Hogan "direct[ed]" us to the

pages on which the amicus's argument that Application Note 1 was

promulgated in violation of the non-delegation doctrine and

separation of powers doctrine appeared, and asked the argument be

"incorporated" in his brief. But such cursory allusion is the type

of "generalized reference" that is "insufficient to place the

putative adopter's weight behind the argument." In re Sony BMG

Music Entm't, 564 F.3d 1, 3 n.3 (1st Cir. 2009); see R.I. Dep't of

Envtl. Mgmt. v. United States, 304 F.3d 31, 47 n.6 (1st Cir. 2002). 

We thank the Federal Public Defender for filing its amicus

brief. The amicus was of great assistance in helping us think

through the issue Hogan raised on appeal.

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Our analysis starts and ends with the plain and

unambiguous language of § 1B1.10(b)(2)(A) and (B). Pursuant to §

1B1.10(b)(2)(A), a court cannot reduce a defendant's sentence 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)." U.S.S.G. § 1B1.10(b)(2)(A).6 The only

exception to this rule is found in § 1B1.10(b)(2)(B). Under §

1B1.10(b)(2)(B), reductions "comparably less than the amended

guideline range" are permitted only in cases where the original

term of imprisonment was below the applicable guideline range

"pursuant to a government motion to reflect the defendant's

substantial assistance to authorities." Id. § 1B1.10(b)(2)(B).7

Every circuit court to have addressed the issue agrees that §

1B1.10(b)(2)(B) bars a district court from lowering a defendant's

below-guideline sentence unless the departure at his original

sentencing was based on his substantial assistance to the

government. See United States v. Berberena, 694 F.3d 514, 518-19

(3rd Cir. 2012); United States v. Anderson, 686 F.3d 585, 588 (8th

6

The Application Notes reiterate the limitation laid out in §

1B1.10(b)(2)(A) that, subject to the exception under subsection

(b)(2)(B), the court cannot reduce a defendant's sentence to a term

less than the minimum of the amended guideline range determined

under subdivision (1). U.S.S.G. § 1B1.10 cmt. n.3. 

7

The Application Notes reinforce this interpretation, stating

that a defendant may seek a further reduction only if the initial

sentence was lowered pursuant to a substantial assistance motion by

the government. U.S.S.G. § 1B1.10 cmt. n.3. 

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Cir. 2012); United States v. Glover, 686 F.3d 1203, 1207 (11th Cir.

2012); accord United States v. Colon, 707 F.3d 1255, 1258 (11th

Cir. 2013); United States v. Lizalde, No. 10-50445, 2012 WL

6758274, at *2 n.2 (9th Cir. Dec. 19, 2012) (unpublished); Valdez,

492 F. App'x at 898-99; United States v. Beserra, 466 F. App'x 548,

550 (7th Cir. 2012) (unpublished). We see no reason to depart from

our sister circuits given the plain language of § 1B1.10(b)(2)(A)

and (B).

In the instant case, Hogan received a below-guideline

sentence but it was based on a departure in his CHC, not

substantial assistance to the government. So he does not fall

within the exception under § 1B1.10(b)(2)(B) to receive a

"reduction comparably less than the amended guideline range." 

U.S.S.G. § 1B1.10(b)(2)(B). To obtain relief under § 3582(c), the

guideline amendments at issue must "lower[]" a defendant's

applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B) ("A

reduction in [a] defendant's term of imprisonment is not consistent

with this policy statement and therefore is not authorized under 18

U.S.C. § 3582(c)(2) if . . . [the amendment] does not have the

effect of lowering the defendant's applicable guideline range"). 

Here, they do not. Hogan's amended guideline range is 235 to 293

months and he received a below-guideline sentence of 210 months.

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Accordingly, the district court committed no error in determining

that Hogan was ineligible for a sentence reduction under 18 U.S.C.

§ 3582(c)(2). 

We, like the Second Circuit in Montanez, question as a

policy matter, why courts "should not have the discretion to give

defendants the benefit of § 4A1.3 departures during sentencing

reduction proceedings." 2013 WL 2346409, at *6. Because the

Commission has made clear that a defendant's "amended guideline

range" does not incorporate previously granted departures under §

4A1.3, a defendant's criminal history category that overstates his

past crimes during an initial sentencing will continue to do so

when that defendant moves for a reduction. We are troubled by the

extent to which the amended policy statement and Application Notes

severely limit the number of defendants (receiving below-guideline

sentences at initial sentencing based on § 4A1.3 departures

unrelated to substantial assistance) who will be able to obtain

relief under § 3582(c)(2) in light of the crack-cocaine guideline

amendments. Despite our concerns, in these instances the district

court's hands, as they were in this case, will be tied. Affirmed.

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