1 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ No. 11

- 1400

__________ UNITED STATES OF AMERICA

v. ERSKINE SMITH, II , Appellant

On Appeal from the United States District Court for the Western District of Pennsylvania (D. C. No. 2

- 92

- cr
- 00146

- 001 ) District Judge: Ho norable Maurice B. Cohill, Jr.

Submitted under Third Circuit LAR 34.1(a)

on October 27 , 2011
Before: FISHER , VANASKIE , and ROTH , Circuit Judges

(Opinion filed: January 25, 2012 )

O P I N I O N

ROTH , Circuit Judge : Erskine Smith , II , appeals the District Court’s denial of his motion to reduce his

s entence pursuant to 18 U.S.C. § 3582(c)(2)

. He specifically contends the court erred
when it concluded th at Congress properly delegated its authority to the Sentencing2

Commission to promulgate binding policy statements and that the President’s power to appoint the members of the Commission did not violate the separation of powers principle

. For the reasons e xpressed below, we will affirm the judgment of the District
Court.
I. Background We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis. On April 23, 1993, after pleading guilty to various counts of drug related offenses, including five counts of possession with intent to distribute crack cocaine, the District Court sentenced Smith to 360 months of imprisonment and five years of supervised
release. His conviction and sentence w ere subsequently affirmed by this Court. See
United States v. Smith , 14 F.3d 50 (3d Cir. 1993). On November 23, 2009, Smith filed a
motion pursuant to 18 U.S.C. § 3582(c)(2) to reduce his sentence. 1 In this motion, Smith argued that he was entitled to a sentencing reduction because Amendment 706 2 of the

1 S ection 3582(c)(2) permits a court to reduce a defendant’s term of imprisonment when his sentence was “ based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C . § 3582(c)(2). “T he court may [, however, only] reduce the [defendant’s] term of imprisonment [] after considering the factors set forth in section 3553(a) . . . [and] if such a reduction is consistent with applicable policy statements issued by the Senten cing Commission.” Id

. The applicable policy statement, U.S.S.G. § 1B1.10 , provides that “ [a] reduction in the defendant's term of imprisonment is not consistent with this policy statement, ” U.S.S.G. § 1B1.10(a)(2), if the amendment “does not have the effe ct of lowering the defendant's applicable guideline range,” i d. at § 1B1.10 (a)(2)(B)

.

2 The United States Sentencing Commission adopted Amendment 706 to address the disparities between sentences based on crack and powder cocaine. The Amendment3

Sentencing Guidelines retroactively lowered the base offense levels for crack cocaine
offense s
. Smith conceded , however, that as a career offender , t he Amendment did not have the effect of mathematically lowering his Guideline s range
. See United States v.
Mateo , 560 F.3d 152, 15 5 (3d Cir. 2009)

. Thus , he was ineligible for a sentencing reduction pursuant to § 3582(c)(2) because U.S.S.G. § 1B1.10(a)(2 ) prohibits the

r eduction of a defendant’s term of imprisonment when the amendment “does not have the effect of lowering the defendant’s applicable guidelines range

. ” U.S.S.G. § 1B1.10(a)(2) (B) ; see United States v. Doe , 564 F.3d 305, 315 (3d Cir. 2009 )

. A cknowledging that § 1B1.10(a)(2) is binding upon the District Court and bars his
sentence reduction , Smith argued that Congress violated the non

- delegation doctrine when it delegated legislative authority to the Commission that could restrict the jurisdict ion of federal courts. The District Court disagreed and denied the motion. Smith appealed.
II. Discussion We have jurisdiction pursuant t o 18 U.S.C. §§ 1291 and 3742(a), and exercise plenary review when a defendant raises purely legal issues of statu tory and constitutional interpretation. See United States v. Coleman , 451 F.3d 154, 156 (3d Cir. 2006).
The non

- delegation doctrine generally prohibits Congress from “delegat[ing] its legislative power to another Branch” of government. Mistretta v. Unit ed States , 488 U.S.

lowered th e ratio between crack and powder cocaine offenses, resulting in lower guideline offense levels for crack cocaine offenses than existed before the Amendment. See Mateo , 560 F.3d at 154. The Sentencing Commission also declared Amendment 706 to be retroactiv e. See id

.4

361, 372 (1989) (citing Field v. Clark , 143 U.S. 649, 692 (1892)) . However, this doctrine is not violated if Congress “lay[s] down by legislative act an intelligible principle to which the person or body authorized to exercise the dele gated authority is
directed to conform.” Id. (quoting J.W. Hampton, Jr., & Co. v. United States , 276 U.S. 398, 408 (1928)). In § 3582(c), Congress directed that courts may only modify a defendant’s
sentence in limited circumstances where (1) the defendan t’s term of imprisonment was

“ based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o),” (2) the district court considered “the factors set forth in section 3553(a) to the extent that they are applicable,” and (3) “ such a reduction is consistent with applicable policy statements issued by the Sentencing
Commission. ” 18 U.S.C. § 3582(c)(2). In 28 U.S.C. § 994, Congress outlined the duties of the Commission. In particular, § 994(a)(2) granted t he Commission the authority to “promulgate,” 28 U.S.C. § 994(a), “general policy statements regarding application of the guidelines . . . that in the view of the Commission would further the purposes set forth in section 3553(a)(2),” id . at § 994(a)(2). S ection 994(u) directed that “[i]f the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.” 28 U.S.C. § 994(u). Thus, § 994(u) clearly expresses Congress’s intent to make the Commission’s policy statements binding in § 3582(c) proceedings. Doe , 564 F.3d at 310; see United5

States v. G arcia , 655 F.3d 426, 435 (10th Cir. 2011) ( “ A common
- sense reading [of § 994(u)] . . . indicates that” Congress intended policy statements “to be b inding in § 3582(c) proceedings ” ). Moreover, Congress set forth an intelligible principle in these provision s to guide the Commission. In § 994(u) Congress directed that , if the
Commission “reduces the term of imprisonment” recommend in the Guidelines , it must “specify in what circumstances and by what amount” a sentence may be reduced . 28 U.S.C. § 994(u). Con gress also informed the Commission in § 994(a)(2) that any policy statements must further the purposes of § 3553(a). Id. at § 994(a)(2). Thus, both §§ 994(u) and 994(a)(2) limit and inform the Commission on how it must exercise its delegated authority. 3 See Mistretta , 488 U.S. at 374 (“ Congress' delegation of authority to the Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements”); s ee also Garcia , 655 F.3d at 435

. 4
III. Conclusion For the foregoing reasons, we will affirm the judgment of the District Court

.

3 The Courts of Appeals for the Ninth and Tenth Circuit s ha ve also concluded that U.S. S.G. § 1B1.10 does not violate the separation of powers or non

- delegation principles

. See United States v. Fox , 631 F.3d 1128, 1133 (9th Cir. 2011) ; Unite d States v. Dryden , 563 F.3d 1168, 1170 (10th Cir. 2009)

.

4 Smith also cont ends that the Feeney Amendment violates the separation of powers principle by unconstitutionally modifying the composition of the seven member Commission. In particular, he asser ts that , when Congress approved the Feeney Amendment, it unconstitutionally delegated its power to define an Article III court's jurisdiction to the Executive Branch by virtue of the President's power to appoint the members of the Sentencing Commission

. A fter considering this argument, we conclude it is meritless and will not address it further. See Mistretta , 488 U.S. at 393

- 94 (noting that Congress did not violate the separation of powers doctrine when it created the Commission because “the Commission is fully accountable to Congress, which can revoke or amend any or all of the Guidelines as it sees fit”).