PUBLISH 

UNITED STATES COURT 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 Defender, Las Cruces, New Mexico, for 

Defendant-Appellant. 

Damon P. Martinez, United States Attorney, and C. Paige Messec, 

Assistant United States Attorney, Albuquerque, New Mexico, for PlaintiffAppellee. 

_________________________________ 

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

 

*

 We conclude that oral argument would not materially help us to 

decide this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

Thus, we are deciding 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 States Supreme Court. 

The practice of this court permits the remaining two panel judges, if in 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 23, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

_________________________________ 

This appeal involves the constitutionality of a provision 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. Sentencing Commission 

amends the guidelines by reducing the applicable guideline range. 

 Mr. Percy Holcomb invoked § 1B1.10(b)(2)(B) in 2014, seeking 

reduction of the sentence that he had received in 2002. But in 2011, the 

U.S. Sentencing Commission tightened § 1B1.10(b)(2)(B)’s eligibility 

requirements. This tightening worked against Mr. Holcomb: Under the 

2002 version, he would have been eligible for relief; under the 2014 

version, he was not. The district court applied the 2014 version and held 

that Mr. Holcomb was ineligible for relief under § 1B1.10(b)(2)(B). 

 According to Mr. Holcomb, application of the 2014 version resulted 

in a violation of the Ex Post Facto 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 relief under the Ex Post Facto Clause, Congress 

authorized the Sentencing Commission to determine the retroactivity of its 

 

agreement, to act as a quorum in resolving 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 that this court allows remaining panel judges to 

act as a quorum to resolve an appeal). In this case, the two remaining panel 

members are in agreement. 

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amendments, and § 1B1.10(b)(2)(B) did not usurp a judicial function. 

Accordingly, we affirm. 

1. Standard of Review 

In determining these challenges 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. Holcomb, the Constitution’s Ex Post Facto Clause 

required application of the guideline version that was in effect when the 

crime was committed (2000). We rejected a virtually 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 States 
4 

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 decided. But one 

panel cannot overrule another, and we are obligated to follow Kurtz. 

United States v. Spaulding, 802 F.3d 1110, 1124-25 (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 the Sentencing Commission 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 departure. This is not true. At the 

original sentencing, Mr. Holcomb obtained a downward variance; no one is 

taking that variance away. See Diggs, 768 F.3d at 646 (“[T]he Commission 

did not require the district court to withdraw a specific variance . . . .”). In 

2011, the Sentencing Commission simply limited the extent to which a 

court could issue a new downward variance when reducing the 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 the 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 that the Commission can prohibit a 

departure or variance only if the reason for the departure or variance 

relates to the substance of the retroactive amendment. This contention is 

invalid. Congress directed the U.S. Sentencing Commission to determine 

“in what circumstances and by what amount” a sentence can be reduced 

when the applicable guideline range is lowered. 28 U.S.C. § 994(u). The 

Sentencing Commission complied with this directive by enacting § 1B1.10. 

Braxton v. United States, 500 U.S. 342, 348 (1991). 

 For one or both of these reasons, every circuit 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 challenges § 1B1.10 on the ground that the 

Sentencing Commission usurped the judiciary’s sentencing authority. We 

reject this challenge. 
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The Sentencing Commission did not enact § 1B1.10 in a vacuum. As 

noted above, the Commission adopted § 1B1.10 because 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 amending § 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 agree with these circuit 

courts and similarly conclude that the Sentencing Commission 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.