PUBLISH UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. PERCY HOLCOMB, Defendant-Appellant. No. 16-2077

__________________ _______________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:01-CR-00218-LH-1)

__________________ _______________ Submitted on the briefs. * Stephen P. McCue, Federal Public Defender, and Darcy Blue Riley, Assistant Federal Public Defend er, Las Cruces, New Mexico, for Defendant-Appellant. Damon P. Martinez, United States Attorney, and C. Paige Messec, Assistant United States Attorney, Albuquer que, New Mexico, for PlaintiffAppellee.

__________________ _______________ Before O’BRIEN and BACHARACH , Circuit Judges.  

* We conclude that oral argument would not material ly help us to decide this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we are decidi ng the appeal based on the briefs.

  The Honorable Neil Gorsuch was a judge of this Court when the appeal began, but he is now a member of the United Stat es Supreme Court. The practice of this court permits th e remaining two panel judges, if in FILED United States Court of Appeals Tenth Circuit 

### March 23, 2017 Elisabeth A. Shumaker Clerk of Court2 __________________ _______________ This appeal involves the constituti onality of a provis ion in the U.S. Sentencing Guidelines: § 1B1.10(b)( 2)(B). Under this provision, the district court can reduce a sentence when the U.S. Se ntencing Commission amends the guidelines by reducing the applic able guideline range. Mr. Percy Holcomb invoked § 1B 1.10(b)(2)(B) in 2014, seeking reduction of the sentence that he had received in 2002 . But in 2011, the U.S. Sentencing Co mmission tightened § 1B1.10 (b)(2)(B)’s eligibility requirements. This tight ening worked against Mr. Holcomb: Under the 2002 version, he would have been eligible fo r relief; under the 2014 version, he was not. The district court applied the 2014 version and held that Mr. Holcomb was in eligible for relief unde r § 1B1.10(b)(2)(B). According to Mr. Holc omb, application of th e 2014 version resulted in a violation of the Ex Post Fact o Clause, exceeded the Sentencing Commission’s statutory authority, and usurped the judiciary’s authority to determine an appropriate sentence. We reject these challenges: Our precedent forecloses re lief under the Ex Post Facto Clause, Congress authorized the Sent encing Commission to determine the re troactivity of its

agreement, to act as a quorum in reso lving the appeal. See 28 U.S.C. § 46(d) (2012); see also United States v. Wiles , 106 F.3d 1516, 1516, at n* (10th Cir. 1997) (noting th at this court allows re maining panel judges to act as a quorum to re solve an appeal). In this case, the two remaining panel members are in agreement. `3 amendments, and § 1B1.10(b)(2)(B) di d not usurp a judicial function. Accordingly, we affirm. 1. Standard of Review In determining these ch allenges to § 1B1.10(b )(2)(B), we engage in de novo review. United States v. LeRoy , 984 F.2d 1095, 1096 (10th Cir. 1993). 2. Ex Post Facto Clause According to Mr. Holc omb, the Constitution’s Ex Post Facto Clause required application of the guideline ve rsion that was in effect when the crime was committed (2000). We rejected a virtua lly identical claim in United States v. Kurtz , 819 F.3d 1230, 1237 (10th Cir. 2016). There we explained that § 1B1.10 does not increase the punishment; instead, the provision simply narrows courts’ discretion to decrease a sentence. Id. at 1236; see also United States v. Womack , 833 F.3d 1237, 1240 (10th Cir. 2016) (holding that the Ex Post Facto Clause is not violated by a guideline amendment that narrows the district court’s discretion to reduce a sentence). Our holding in Kurtz is consistent with the holdings of every other circuit court to address the question. See United States v. Ramirez , 846 F.3d 615, 625 (2d Cir. 2017); United States v. Kruger , 838 F.3d 786, 790-92 (6th Cir. 2016); United States v. Thompson , 825 F.3d 198, 200, 206 (3d Cir. 2016), cert. denied , 137 S. Ct. 326 (2016); United States v. Waters , 771 F.3d 679, 680- 81 (9th Cir. 2014) (per curiam); United States4 v. Diggs , 768 F.3d 643, 645-46 (7th Cir. 2014); United States v. Colon , 707 F.3d 1255, 1258-59 ( 11th Cir. 2013). Mr. Holcomb contends that Kurtz was wrongly deci ded. But one panel cannot overrule another, and we are obligated to follow Kurtz

. United States v. Spaulding , 802 F.3d 1110, 1124-2 5 (10th Cir. 2015). Under Kurtz , application of the 2014 version of § 1B1.10 did not violate the Ex Post Facto Clause. 3. Statutory Authorization for the Enactment of § 1B1.10 Mr. Holcomb also argues that th e Sentencing Co mmission exceeded its statutory authority by amending § 1B1.10. We reject this argument. Mr. Holcomb first argues that the new version of § 1B1.10 takes away his prior downward variance or de parture. This is not true. At the original sentencing, Mr. Holcomb obta ined a downward vari ance; no one is taking that variance away. See Diggs , 768 F.3d at 646 (“[T]he Commission did not require the district court to with draw a specific vari ance . . . .”). In 2011, the Sentencing Comm ission simply limited the exte nt to which a court could issue a new downward variance when reducing th e sentence under 18 U.S.C. § 3582(c)(2). See United States v. Berberena , 694 F.3d 514, 518, 521 (3d Cir. 2012 ) (“Rather than undo th e 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.”).5 Second, Mr. Holcomb contends th at the Commission can prohibit a departure or variance only if the r eason for the departure or variance relates to the substance of the retroa ctive amendment. This contention is invalid. Congress directed the U.S. Sentencing Commission to determine “in what circumstances and by what amount” a senten ce can be reduced when the applicable guideline range is lowere d. 28 U.S.C. § 994(u). The Sentencing Commission comp lied with this directive by enacting § 1B1.10. Braxton v. United States , 500 U.S. 342, 348 (1991). For one or both of thes e reasons, every circu it court to address the issue has held that § 1B1.10 is authorized by statute. Diggs , 768 F.3d at 646-47; United States v. Davis , 739 F.3d 1222, 1225 (9th Cir. 2014); United States v. Hogan , 722 F.3d 55, 60 (1st Cir. 2013); United States v. Erskine , 717 F.3d 131, 136-39 (2d Cir. 2013); United States v. Colon , 707 F.3d 1255, 1259-60 ( 11th Cir. 2013); Berberena , 694 F.3d at 520-23; United States v. Anderson , 686 F.3d 585, 589-90 (8th Cir. 2012). We agree with these circuit courts and similarly conclude that § 1B1. 10 is authorized by statute. 4. Commission’s Usurpation of Judicial Authority Mr. Holcomb also ch allenges § 1B1.10 on the ground that the Sentencing Commission us urped the judiciary’s se ntencing au thority. We reject this challenge.6 The Sentencing Commission did not enact § 1B1.10 in a vacuum. As noted above, the Commissi on adopted § 1B1.10 be cause of an express delegation from Congress, which enjoys the power to curtail the judiciary’s discretion over sentencing. See pp. 4-5, above (delegation of authority by Congress); Mistretta v. United States , 488 U.S. 361, 364 (1989) (Congress can curb the judiciary’s discretion over sentencing). Thus, every circuit court to address the issue has held that the Sentencing Commission did not usurp the judiciary’s sentencing authority by amen ding § 1B1.10. See Davis , 739 F.3d at 1225; Erskine , 717 F.3d at 139-40; Colon , 707 F.3d at 1260-61; Berberena , 694 F.3d at 525-26. We ag ree with these circuit courts and similarly conclude that the Sentencing Co mmission did not usurp the judiciary’s authority. 5. Conclusion We conclude that the tightening of § 1B1.10 does not violate the Ex Post Facto Clause, exceed Congress’s delegation of authority to the Sentencing Commission, or usurp the judiciary’s power over sentencing decisions. Accordingly, we affirm.