FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-30193

Plaintiff-Appellee, D.C. No.

v.  CR-93-00002-4-

a-HRH AARON HICKS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Alaska

H. Russel Holland, Chief District Judge, Presiding

Argued and Submitted

December 5, 2006—Seattle, Washington

Filed January 11, 2007

Before: Betty B. Fletcher and M. Margaret McKeown,

Circuit Judges, and William W Schwarzer,* District Judge.

Opinion by Judge B. Fletcher

*The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation. 

321
COUNSEL

Robert K. Stewart, Davis Wright Tremaine LLP, Anchorage,

Alaska, Lissa W. Shook, Davis Wright Tremaine LLP, Seattle, Washington, for the defendant-appellant. 

Deborah M. Smith, Assistant United States Attorney, Anchorage, Alaska, for the plaintiff-appellee.

OPINION

B. FLETCHER, Circuit Judge: 

In this appeal, we consider whether United States v.

Booker’s requirement that the district courts treat the United

States Sentencing Guidelines as advisory applies to the resentencing of defendants pursuant to 18 U.S.C. § 3582(c). See

United States v. Booker, 543 U.S. 220, 245-46 (2005). We

hold that it does. Because the district court considered the

Guidelines mandatory when resentencing appellant Aaron

Hicks, we vacate his sentence and remand to the district court

for further proceedings. 

I. FACTS

Aaron Hicks was convicted and sentenced in 1993 for conspiring to distribute crack cocaine and for maintaining a place

for drug trafficking, in violation of 21 U.S.C. §§ 841, 843,

846, and 856, and 18 U.S.C. §§ 371 and 1028. Hicks was also

convicted of using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c). The Presentence Report (“PSR”) calculated a base

offense level of 38. It was increased two points for his role in

the conspiracy and two additional points for his possession of

a firearm in the course of drug trafficking.1 Combining the

1The latter enhancement would ultimately prove to be the catalyst for

this appeal. 

324 UNITED STATES v. HICKS
adjusted offense level of 42 with Hicks’s Category I criminal

history score yielded a Guideline range of 360 months to life.

The PSR also recommended a consecutive 60-month sentence

for the firearm violation. The district court adopted the PSR’s

recommendations and sentenced Hicks, who was 22 at the

time, to 420 months in prison. 

At sentencing, the court noted its distaste for the length of

the sentence imposed: 

Mr. Hicks, it’s — I really take no pleasure in imposing a sentence of this magnitude. I’m required by

law to do — which I’m required by law to do, but

I want to say that, you know, your father, Aaron

Beard, who is very substantially responsible for, I

believe, your participation and conduct in this matter

is — has been acquitted in this case. Comparing the

penalty imposed upon you and the fact that he’s been

acquitted is a matter which I have no control over,

but which I must say I do regret. 

Tr. of Sentencing Hr’g, July 7, 2003, at 8. 

Effective November 1, 2000, the Sentencing Commission

adopted Amendment 599, an explicitly retroactive amendment that modified the Guidelines applicable to § 924(c)

offenses.2 U.S. Sentencing Guidelines Manual § 2K2.4 [hereinafter USSG], cmt. n.2 (2000); USSG § 1B1.10(a) & (c). The

amended application note states: 

If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense,

do not apply any specific offense characteristic for

possession, brandishing, use, or discharge of an

explosive or firearm when determining the sentence

2This adoption was made pursuant to 28 U.S.C. § 994(o), as required by

18 U.S.C. § 3582(c)(2). 

UNITED STATES v. HICKS 325
for the underlying offense. A sentence under this

guideline accounts for any explosive or weapon

enhancement for the underlying offense of conviction, including any such enhancement that would

apply based on conduct for which the defendant is

accountable under § 1B1.3 . . . . 

USSG § 2K2.4, cmt. n.2 (2000). Amendment 599 eliminated

Hicks’s two-level enhancement for firearm possession

because the firearm originally used to enhance his sentence

had also been a part of the offense that constituted his

§ 924(c) conviction. Without this enhancement, Hicks’s

offense level would have been 40, resulting in a Guidelines

range of 292 to 365 months. USSG ch. 5, pt. A. 

Following the adoption of Amendment 599, but before

Hicks moved to reduce his sentence, the Supreme Court

issued its opinion in United States v. Booker, 543 U.S. 220

(2005). On December 7, 2005, Hicks moved to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that his

possession of a firearm led to both a two-level weapon

enhancement and a mandatory consecutive sentence under

§ 924(c). Hicks expressly reserved the right to brief the

impact of Booker on any ensuing sentencing calculation,

should the court choose to grant his motion. 

The government filed a partial non-opposition to Hicks’s

motion, agreeing that the two-level reduction was appropriate

but opposing his Booker request. In the government’s opinion,

Booker had no effect on a § 3582(c)(2) sentence reduction

proceeding. Hicks filed a brief in response, arguing that

Booker gave the court discretion to impose a sentence below

the applicable Guideline range, and that the court should

resentence Hicks to a 150-month term. At the court’s behest,

the government filed a sur-reply in which it argued that a further reduction in Hicks’s sentence would be inconsistent with

applicable policy statements in the Guidelines. 

326 UNITED STATES v. HICKS
After considering the briefing from both sides, the district

court reduced Hicks’s sentence to 292 months but rejected

defendant’s Booker argument, asserting that a further reduction was inconsistent with the policy statements and beyond

the court’s authority. Hicks appeals this determination.

II. DISCUSSION

This case presents the court with two related questions.3

First, it requires us to decide whether § 3582(c)(2) proceedings fall within the scope of Booker. Second, if they fall

within Booker’s ambit, it raises the question of whether policy

statements by the Sentencing Commission nonetheless preclude the application of Booker to § 3582(c)(2). Because

Booker abolished the mandatory application of the Sentencing

Guidelines in all contexts, and because reliance on its holding

is not inconsistent with any applicable policy statement, we

reverse the district court and hold that Booker applies to

§ 3582(c)(2) proceedings. 

A. Applicability of Booker to § 3582(c)(2)

[1] As a general matter, courts may not alter a term of

imprisonment once it has been imposed. See 18 U.S.C.

§ 3582(c); United States v. Hovsepian, 307 F.3d 922, 927 (9th

Cir. 2002) (“District courts do not have inherent authority to

resentence defendants at any time.”) (quoting United States v.

Stump, 914 F.2d 170, 172 (9th Cir. 1990)). However,

§ 3582(c)(2) creates an exception 

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 pursuant to 28 U.S.C. 994(o), upon

motion of the defendant or the Director of the

3Both questions are issues of first impression, not only in the Ninth Circuit, but in any federal court of appeals. 

UNITED STATES v. HICKS 327
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.4

18 U.S.C. § 3582(c)(2). Under this section, a district court can

re-sentence a defendant, like Hicks, whose sentencing range

has been lowered by the Sentencing Commission pursuant to

28 U.S.C. § 994(o). This allows the district court to recalculate the defendant’s sentencing range using the newly

reduced Guideline, and then determine an appropriate sentence in accordance with the § 3553(a) factors. See id. The

open question is whether the district court’s new Guideline

calculation imposes a mandatory sentencing range or an advisory one. We believe the clear language of Booker makes the

range advisory. 

[2] Booker explicitly stated that, “as by now should be

clear, [a] mandatory system is no longer an open choice.”

Booker, 543 U.S. at 263; see also id. at 264 (noting that district courts are “not bound to apply the Guidelines”).

Although the Court acknowledged that Congress had intended

to create a mandatory Guidelines system, Booker stressed that

this was not an option: “[W]e repeat, given today’s constitutional holding, [a mandatory Guideline regime] is not a choice

that remains open. . . . [W]e have concluded that today’s holding is fundamentally inconsistent with the judge-based sentencing system that Congress enacted into law.” Id. at 265.

The Court never qualified this statement, and never suggested,

explicitly or implicitly, that the mandatory Guideline regime

survived in any context. 

4Other exceptions are created by 18 U.S.C. §§ 3582(c)(1)(A)(i),

(c)(1)(A)(ii), and (c)(1)(B). Fed. R. Crim. P. 35 also provides an exception

to the general rule. 

328 UNITED STATES v. HICKS
[3] In fact, the Court emphasized that the Guidelines could

not be construed as mandatory in one context and advisory in

another. When the government suggested, in Booker, that the

Guidelines be considered advisory in certain, constitutionallycompelled cases, but mandatory in others, the Court quickly

dismissed this notion, stating, “we do not see how it is possible to leave the Guidelines as binding in other cases. . . . [W]e

believe that Congress would not have authorized a mandatory

system in some cases and a nonmandatory system in others,

given the administrative complexities that such a system

would create.” Id. at 266. In short, Booker expressly rejected

the idea that the Guidelines might be advisory in certain contexts but not in others, and Congress has done nothing to

undermine this conclusion. Because a “mandatory system is

no longer an open choice,” id. at 263, district courts are necessarily endowed with the discretion to depart from the Guidelines when issuing new sentences under § 3582(c)(2). 

The government offers two arguments in opposition, but

neither is persuasive. First, the government asserts that only

the Sentencing Commission can grant authority for resentencing under § 3582(c)(2). The government notes that

§ 3582(c)(2) allows for re-sentencing only when “a sentencing range . . . has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 944(o).” 18 U.S.C.

§ 3582(c)(2). The government also cites United States v.

Price, 438 F.3d 1005, 1007 (10th Cir. 2006), for the proposition that “Booker does not provide a basis for a sentence

reduction under § 3582(c)(2).”

5

This position completely misapprehends appellant’s argument. Hicks is not arguing that he deserves a § 3582(c)(2) resentencing because of Booker. His entitlement is based on 18

5Price itself cites similar cases from the Third, Fourth, Fifth, Seventh,

and Eleventh Circuits that stand for this proposition. Id. at 1007 n.2. The

Second Circuit has reached a similar conclusion. See United States v.

Mitchell, 122 Fed. Appx. 539, 541 (2d Cir. 2005). 

UNITED STATES v. HICKS 329
U.S.C. § 3582(c)(2), as the government concedes. Hicks

argues that when the district court reconsiders his sentence

pursuant to § 3582(c)(2) — a proceeding that occurred only

because the Sentencing Commission lowered the applicable

sentencing range — the district court should have discretion

to impose a non-Guidelines sentence. 

Price, and the other cases cited by the government, address

a wholly distinct issue: whether Booker itself provides the

requisite authority to reopen sentencing proceedings under

§ 3582(c). As discussed above, every court to consider this

argument has rejected it because § 3582(c)(2) allows resentencing only when the Commission lowers an applicable

Guideline. Booker did not lower any sentencing ranges; it

simply rendered the Guidelines advisory. Here, Hicks was

already eligible for a § 3582(c)(2) re-sentencing because the

Sentencing Commission had lowered the applicable Guidelines range. Therefore, the government’s reliance on these

cases and the quoted statutory language is misplaced. 

Next, the government argues that Booker is inapplicable

because a § 3582(c)(2) proceeding is not a “full resentencing,” but merely a modification of the defendant’s sentence. See 18 U.S.C. § 3582(c) (“The court may not modify a

term of imprisonment once it has been imposed except that

. . .”) (emphasis added). The government also cites United

States v. Stockdale, 129 F.3d 1066 (9th Cir. 1997), for this

proposition. In Stockdale, the court considered whether the

safety valve statute, 18 U.S.C. § 3553(f) applied to

§ 3582(c)(2) proceedings. In determining that it did not, the

court explained, “[t]he safety valve statute applies during sentencing, not in subsequent reduction proceedings.”

6

 Hicks

counters by citing United States v. Ono, 72 F.3d 101, 102 (9th

Cir. 1995), which stated, “the purpose of a § 3582 motion is

resentencing.” 

6The court also noted that the “inferences from grammar” undergirding

its decision “might be a bit thin.” Stockdale, 129 F.3d at 1069. 

330 UNITED STATES v. HICKS
While § 3582(c)(2) proceedings do not constitute full

resentencings, their purpose is to give defendants a new sentence. This resentencing, while limited in certain respects, still

results in the judge calculating a new Guideline range, considering the § 3553(a) factors, and issuing a new sentence based

on the Guidelines. The dichotomy drawn by the government,

where full re-sentencings are performed under an advisory

system while “reduction proceedings,” or “modifications,”

rely on a mandatory Guideline system, is false. As discussed

above, Booker excised the statutes that made the Guidelines

mandatory and rejected the argument that the Guidelines

might remain mandatory in some cases but not in others.

Booker, 543 U.S. at 263-66. Mandatory Guidelines no longer

exist, in this context or any other. 

B. Consistency with Applicable Policy Statements

[4] Section 3582(c)(2) permits the court to reduce a defendant’s sentence after considering the § 3553(a) factors “if

such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(2). The government argues that applying the Guidelines in an advisory fashion is inconsistent with the policy

statements set forth in USSG § 1B1.10(b), § 1B1.10 app. n.2,

and § 1B1.10 cmt. background. However, none of these policy statements is applicable to the question of whether, after

Booker, a court can go below the Guidelines’ minimum when

modifying a sentence under § 3582(c)(2). Further, even if

they are read to address this question, they do not prohibit the

application of the Guidelines in an advisory fashion. Finally,

under Booker, to the extent that the policy statements would

have the effect of making the Guidelines mandatory (even in

the restricted context of § 3582(c)(2)), they must be void. 

Section 1B1.10(b) of the Guidelines states: 

In determining whether, and to what extent, a reduction in the term of imprisonment is warranted for a

UNITED STATES v. HICKS 331
defendant eligible for consideration under 18 U.S.C.

§ 3582(c)(2), the court should consider the term of

imprisonment that it would have imposed had the

amendment(s) to the guidelines listed in subsection

(c) been in effect at the time the defendant was sentenced. . . . 

USSG § 1B1.10(b). Application note 2 adds: 

In determining the amended guideline range under

subsection (b), the court shall substitute only the

amendments listed in subsection (c) for the corresponding guideline provisions that were applied

when the defendant was sentenced. All other guideline application decisions remain unaffected. 

USSG § 1B1.10 app. n.2. Finally, the “Background” portion

of § 1B1.10 states, in part: 

The authorization of such a discretionary reduction

does not otherwise affect the lawfulness of a previously imposed sentence, does not authorize a reduction in any other component of the sentence, and

does not entitle a defendant to a reduced term of

imprisonment as a matter of right. 

USSG § 1B1.10 cmt. background. 

[5] The government argues that a departure from the

Guideline ranges would contravene these policy statements

primarily because it would produce an outcome which would

not have been permissible in 1993, even utilizing the amended

Guidelines, and because such a departure would impermissibly change application decisions which were not affected by

the Guidelines amendments. However, as USSG § 1B1.10(b)

states only that the court “should consider the term of imprisonment that it would have imposed had the amendment[ ] . . .

been in effect” in 1993, and not that it may only impose that

332 UNITED STATES v. HICKS
sentence, departing from the 1993 sentence would not conflict

with the language of the policy statement. Similarly, just

because Hicks is not entitled to a sentence reduction as a matter of right does not mean that he may not be entitled to one

as a matter of discretion. 

Even if the government is correct in its assertion that all

Hicks is entitled to is a removal of the two-level enhancement, the newly calculated range could still be applied in an

advisory, rather than mandatory fashion. The policy statements are silent on the manner in which the modified ranges

should be used. As they were enacted pre-Booker, they

assume a mandatory Guidelines regime, but this assumption

does not provide a statutory reason to treat them as mandatory

when the rest of the Guidelines are now advisory. 

[6] Finally, as discussed above, Booker makes clear that the

Guidelines are no longer mandatory in any context — its

effect is not restricted to the “de novo resentencing” which the

government seeks to distinguish. Booker was not a mere statutory change which can be set aside to allow us to pretend it

is 1993 for the purpose of modifying Hicks’ sentence; rather,

it provides a constitutional standard which courts may not

ignore by treating Guidelines ranges as mandatory in any context. Thus, to the extent that the policy statements are inconsistent with Booker by requiring that the Guidelines be treated

as mandatory, the policy statements must give way. 

SENTENCE VACATED AND REMANDED.

UNITED STATES v. HICKS 333