PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-7500

ANTHONY GOINES,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Virginia, at Abingdon.

James P. Jones, District Judge.

(CR-99-74)

Argued: May 9, 2003

Decided: January 28, 2004

Before WILKINS, Chief Judge, and WILKINSON and

LUTTIG, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge Wilkins

wrote the majority opinion, in which Judge Wilkinson joins. Judge

Luttig wrote a dissenting opinion. 

COUNSEL

ARGUED: Justin Sanjeeve Antonipillai, ARNOLD & PORTER,

Washington, D.C., for Appellant. Eric Matthew Hurt, Assistant

United States Attorney, Abingdon, Virginia, for Appellee. ON

BRIEF: John L. Brownlee, United States Attorney, Abingdon, Virginia, for Appellee. 
OPINION

WILKINS, Chief Judge:

Anthony Goines appeals the denial of his motion to reduce his sentence pursuant to 18 U.S.C.A. § 3582(c)(2) (West 2000). We vacate

and remand for further proceedings. 

I.

In January 2000, Goines pled guilty to carrying a firearm during

and in relation to a drug trafficking crime, see 18 U.S.C.A. § 924(c)

(West 2000), and being an unlawful drug user in possession of a firearm, see 18 U.S.C.A. § 922(g)(3) (West 2000). These convictions

arose from Goines’ possession of a firearm while he was selling and

using illegal drugs. 

The district court sentenced Goines to 60 months imprisonment for

the § 924(c) offense and a consecutive term of 24 months for the

§ 922(g) offense. These terms were the product of separate analyses

under the sentencing guidelines because § 924(c) requires a consecutive sentence. See 18 U.S.C.A. § 924(c)(1)(D)(ii); U.S. Sentencing

Guidelines Manual § 5G1.2(a) (1998).1 With respect to the § 922(g)

conviction, the district court, following the cross-references in

U.S.S.G. § 2K2.1(c)(1)(A) and U.S.S.G. § 2X1.1(a), applied the

guideline for drug trafficking, U.S.S.G. § 2D1.1. The court ultimately

arrived at an adjusted offense level of 17, which included a two-level

enhancement based on Goines’ possession of a firearm during his

drug transactions. See U.S.S.G. § 2D1.1(b)(1). This offense level,

combined with Goines’ criminal history category of I, yielded a sentencing range of 24 to 30 months. The court sentenced Goines at the

bottom of this range. Goines did not appeal. 

After the district court entered its judgment, the Sentencing Commission adopted Amendment 599. This amendment modifies Application Note 2 ("Note 2") to U.S.S.G. § 2K2.4, which governs sentencing

1All citations to "U.S.S.G." in this opinion refer to the 1998 guidelines

manual, and all citations to "U.S.S.G. App. C." refer to the 2002 manual.

2 UNITED STATES v. GOINES
for § 924(c) offenses. As is relevant here, Amendment 599 modified

Note 2 to include the following language:

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 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 (Relevant Conduct). . . . 

If the explosive or weapon that was possessed . . . in the

course of the underlying offense also results in a conviction

that would subject the defendant to an enhancement under

. . . §2K2.1(b)(5) (pertaining to possession of any firearm or

ammunition in connection with another felony offense), do

not apply that enhancement. A sentence under this guideline

accounts for the conduct covered by th[at] enhancement[ ]

because of the relatedness of that conduct to the conduct that

forms the basis for the conviction under . . . § 924(c) . . . .

For example, if in addition to a conviction for an underlying

offense of armed bank robbery, the defendant was convicted

of being a felon in possession under 18 U.S.C. § 922(g), the

enhancement under §2K2.1(b)(5) would not apply. 

U.S.S.G. App. C, amend. 599 (internal quotation marks omitted).2 In

restricting the application of certain enhancements, the Commission

sought "to avoid the duplicative punishment that results when sentences are increased under both the statutes and the guidelines for

substantially the same harm." Id. (Reason for Amendment). 

Relying on Amendment 599, Goines filed a § 3582(c)(2) motion

asserting that his sentence should be recalculated without the

§ 2D1.1(b)(1) enhancement. In response, the Government conceded

2The modifications to Note 2 enacted in Amendment 599 now appear

in Application Note 4 to U.S.S.G. § 2K2.4. 

UNITED STATES v. GOINES 3
that Goines was legally eligible for a sentence reduction but urged

that his motion be denied based on other considerations that are relevant under § 3582(c)(2). The district court, however, refused to accept

the Government’s concession and ruled that there was no legal basis

for reducing Goines’ sentence. The court reasoned that the restrictions

enacted by Amendment 599 do not apply to Goines because the

offense for which he received a weapons enhancement—a violation

of § 922(g)—was not the offense underlying his § 924(c) conviction.

II.

We initially consider whether Goines’ § 2D1.1(b)(1) enhancement

was proper under Amendment 599. Although the district court held

that it was, both Goines and the Government maintain that this was

error. We agree with the parties. 

As is relevant here, federal law provides three ways to penalize a

defendant who unlawfully possessed a firearm and used or carried it

during a drug trafficking offense. First, the defendant may be convicted and sentenced under § 924(c). Second, if the defendant is convicted of a drug trafficking offense (or sentenced under the drug

trafficking guideline as the result of a cross-reference), U.S.S.G.

§ 2D1.1(b)(1) provides for a two-level enhancement "[i]f a dangerous

weapon (including a firearm) was possessed." And third, if the defendant is convicted of unlawful possession of a firearm, his sentence

may be enhanced for using the firearm "in connection with another

felony offense." U.S.S.G. § 2K2.1(b)(5). 

Note 2 addresses the circumstances in which more than one of

these penalties may apply. Even before it was modified by Amendment 599, Note 2 provided that a defendant who had been convicted

of a drug trafficking offense and a § 924(c) violation could not

receive a § 2D1.1(b)(1) enhancement in addition to a sentence for the

§ 924(c) conviction. See U.S.S.G. § 2K2.4, comment. (n.2) ("Where

a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for

the possession, use, or discharge of an explosive or firearm . . . is not

to be applied in respect to the guideline for the underlying offense.").

Amendment 599 makes clear that it is also improper to impose a

§ 2K2.1(b)(5) enhancement on a defendant who has been convicted

4 UNITED STATES v. GOINES
of a firearms offense along with a § 924(c) violation. See U.S.S.G.

App. C, amend. 599. 

Goines’ case falls within a gap between these restrictions. He was

convicted of a firearms possession offense, not the drug trafficking

offense "underlying" his § 924(c) conviction, but his sentence for that

conviction was computed pursuant to the drug trafficking guideline

(§ 2D1.1), rather than the firearms possession guideline (§ 2K2.1).

Nevertheless, Amendment 599 applies. 

It appears that the Commission adopted the relevant portion of

Amendment 599 in response to the decision of the Eleventh Circuit

in United States v. Flennory, 145 F.3d 1264 (11th Cir. 1998). In Flennory, as in this case, the defendant pled guilty to violations of

§ 922(g) and § 924(c), and the district court computed the § 922(g)

sentence by cross-referencing § 2D1.1. See id. at 1266-67. The Eleventh Circuit upheld this sentence, rejecting the defendant’s claim that

his sentence was unlawful under Note 2. See id. at 1269. 

The commentary to Amendment 599 contrasts Flennory with

United States v. Smith, 196 F.3d 676 (6th Cir. 1999), which expressly

rejected Flennory in order to avoid imposing multiple enhancements

based on the same conduct. See U.S.S.G. App. C, amend. 599 (Reason for Amendment) (citing Smith, 196 F.3d at 679-82). The paragraph of commentary following these citations explains that the

purpose of the amendment is to avoid duplicative punishments. See

id. The best inference from this juxtaposition of citations and commentary is that, in adopting Amendment 599, the Sentencing Commission intended to repudiate Flennory and provide that a sentence

for a § 922(g) offense may not be enhanced based on conduct that

also resulted in a § 924(c) conviction. Indeed, the Eleventh Circuit

has held that Amendment 599 overrules its decision in Flennory. See

United States v. Brown, 332 F.3d 1341, 1345-46, 1345 n.6 (11th Cir.

2003). We agree and conclude that if Goines had been sentenced after

Amendment 599 was adopted, he would not have been subject to a

§ 2D1.1(b)(1) enhancement. 

III.

Although Goines’ § 2D1.1(b)(1) enhancement was not proper

under Amendment 599, this does not necessarily mean that he is eligiUNITED STATES v. GOINES 5
ble for relief under § 3582(c)(2). Section 3582(c)(2) authorizes the

district court to reduce the sentence imposed on "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), . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing

Commission." 

The applicable policy statement, U.S.S.G. § 1B1.10, expressly provides that Amendment 599 may be applied retroactively in a

§ 3582(c)(2) proceeding. See U.S.S.G. App. C, amend. 607 ( adding

Amendment 599 to the list of retroactive guideline amendments in

§ 1B1.10(c)). Our precedent suggests that nothing more is required in

order for Amendment 599 to be a proper basis for a § 3582(c)(2)

motion. See United States v. Fletcher, 74 F.3d 49, 56 (4th Cir. 1996)

(stating that, because the amendment relied on by the movant was

listed in § 1B1.10, "a sentence reduction is authorized . . . pursuant

to 18 U.S.C. § 3582(c)(2)"). Fletcher, however, did not address the

question before us—namely, whether an amendment that merely clarifies the meaning of the relevant guideline "lower[s]" the "sentencing

range" for purposes of § 3582(c)(2). 

As we will explain below, the answer to this question depends on

whether the term "sentencing range" refers to the range intended by

the Sentencing Commission or the range actually applied by the district court in a particular case. We hold that the "sentencing range" is

the range actually applied by the district court. 

A.

We begin our analysis with a brief discussion of guidelines amendments, which will help frame our inquiry into the meaning of

§ 3582(c)(2). By statute, the Sentencing Commission must "periodically . . . review and revise" the guidelines. 28 U.S.C.A. § 994(o)

(West 1993). In carrying out this function, the Commission may promulgate both clarifying and substantive amendments. See generally

United States v. Butner, 277 F.3d 481, 489 (4th Cir.) (explaining how

to distinguish clarifying amendments from substantive amendments),

cert. denied, 536 U.S. 932 (2002). 

6 UNITED STATES v. GOINES
A clarifying amendment "changes nothing concerning the legal

effect of the guidelines, but merely clarifies what the Commission

deems the guidelines to have already meant." United States v. Capers,

61 F.3d 1100, 1109 (4th Cir. 1995) (internal quotation marks omitted). The Commission often uses clarifying amendments to resolve

disagreements among courts of appeals. See United States v. Innie, 77

F.3d 1207, 1209 (9th Cir. 1996). A clarifying amendment must be

given effect at sentencing and on appeal, even when the sentencing

court uses an edition of the guidelines manual that predated adoption

of the amendment. See U.S.S.G. § 1B1.11(b)(2), p.s.; Capers, 61 F.3d

at 1109. 

Unlike a clarifying amendment, a substantive amendment "has the

effect of changing the law in this circuit." Capers, 61 F.3d at 1110.

Substantive amendments typically reflect new policy choices by the

Commission. See, e.g., U.S.S.G. App. C., amend. 634 (Reason for

Amendment) (explaining that Commission amended money laundering guidelines because old guidelines did not sufficiently account for

seriousness of offense or defendant’s degree of involvement). A

defendant is not entitled to the benefit of a substantive amendment

that was adopted after the guidelines manual used at the defendant’s

sentencing unless the Sentencing Commission has designated the

amendment for retroactive application. See U.S.S.G. § 1B1.10(a), p.s.

Even if an amendment is designed merely to elucidate the original

intent of the Commission, we will regard it as substantive if it conflicts with our precedent. See Capers, 61 F.3d at 1110. Thus, some

amendments that would otherwise be considered clarifying will be

treated as substantive amendments in this circuit. We will refer to

such amendments as "hybrid amendments." 

The amendment at issue here, Amendment 599, does not conflict

with any decision of this court. For this reason, and in light of the factors set forth in Butner, we conclude that Amendment 599 is a clarifying amendment. Accord United States v. Aquino, 242 F.3d 859, 865

(9th Cir. 2001). 

B.

We now turn to the task of interpreting § 3582(c)(2). In construing

this statute, we "must account for [its] full text, language as well as

UNITED STATES v. GOINES 7
punctuation, structure, and subject matter." United States Nat’l Bank

of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993);

see id. ("Over and over we have stressed that in expounding on a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object

and policy." (internal quotation marks omitted)). 

Considering the language alone, we perceive two possible readings

of the relevant language of § 3582(c)(2). A narrow reading would

authorize a sentence reduction when the "sentencing range [prescribed by the sentencing guidelines] has subsequently been lowered"

by a retroactive amendment. By contrast, a broad reading would allow

a defendant’s sentence to be reduced if the "sentencing range [applied

by the district court] has subsequently been lowered" by a retroactive

amendment. The narrow reading would bar § 3582(c)(2) motions

relying on clarifying and hybrid amendments, as those amendments

do not change the meaning of the guideline and thus do not alter the

range intended by the guidelines, although the sentencing court may

have applied a different range. The broad reading, by contrast, would

allow a defendant to file a § 3582(c)(2) motion based on any amendment given retroactive application by the Commission, so long as his

sentencing range under the amended guideline would be lower than

the range applied by the district court. 

Both of these readings are plausible.3 However, after examining the

3The dissent rejects our characterization of the broad reading as plausible. As the dissent notes, however, § 3582(c)(2) refers to "the ‘sentencing

range’ on which [the defendant’s] term of imprisonment was ‘based.’"

Post, at 23 (quoting 18 U.S.C.A. § 3582(c)(2)). The range on which

Goines’ sentence was based was the range applied by the sentencing

court, not the range that that court would have applied if it had interpreted the guidelines correctly. Thus, the language of § 3582(c)(2) amply

supports the broad interpretation. 

Moreover, while the dissent "would have thought there could be no

doubt as to the interpretation of" § 3582(c)(2), post, at 23, we consider

it significant that there is no case law supporting the narrow reading. It

is likewise significant that the Government did not endorse the narrow

reading even when afforded the opportunity to do so in this appeal.

Indeed, so far as we can tell, no party and no judge other than our col8 UNITED STATES v. GOINES
role of guideline amendments, the general remedial structure associated with the sentencing guidelines, and the consequences of adopting

a broad rather than a narrow construction of § 3582(c)(2), we conclude that the broad reading better effectuates the congressional intent

underlying § 3582(c)(2). 

1.

The Sentencing Reform Act of 1984, Pub. L. No. 98-473, ch. II,

98 Stat. 1987-2040 (1984), created the Sentencing Commission and

gave it the power to promulgate and amend sentencing guidelines. See

generally 28 U.S.C.A. § 994 (West 1993 & Supp. 2003). In conferring this power, "Congress necessarily contemplated that the Commission would periodically review the work of the courts, and would

make whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest." Braxton v. United States, 500 U.S. 344,

348 (1991). In other words, Congress anticipated that the Commission

would use the amendment process to resolve disagreements among

courts of appeals. See Douglas A. Berman, The Sentencing Commission as Guidelines Supreme Court: Responding to Circuit Conflicts,

7 Fed. Sentencing Rep. 142, 142 (1994). 

This activity by the Commission is essential to the proper functioning of the guidelines. One of the main goals of the Sentencing Reform

Act was "the elimination of unwarranted sentencing disparity." S.

Rep. No. 98-225, at 52 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,

3235. Divergent interpretations of the guidelines, however, can result

in wildly disparate sentences. See William W. Wilkins, Jr. & John R.

Steer, The Role of Sentencing Guideline Amendments in Reducing

Unwarranted Sentencing Disparity, 50 Wash. & Lee L. Rev. 63, 71-

72 (1993). Moreover, the Supreme Court has noted that Congress

apparently intended for the Sentencing Commission to have substantial responsibility for resolving disputes among the circuits. See Braxton, 500 U.S. at 348. Consequently, the amendment process is a

league has ever even mentioned the narrow reading—let alone embraced

it. This does not prove that the broad reading is correct, but it is compelling evidence that the broad reading is sufficiently plausible for us to

adopt it if it is supported by other indications of congressional intent. 

UNITED STATES v. GOINES 9
significant tool for resolving circuit conflicts in order to ensure uniform application of the guidelines. 

Clarifying and hybrid amendments are thus necessary to address

disagreements among the courts of appeals. While it does not necessarily follow that such amendments should be applied to defendants

whose judgments have become final, "Congress has granted the Commission the unusual explicit power to decide whether and to what

extent its amendments reducing sentences will be given retroactive

effect." Id. (emphasis omitted). The amendment and retroactivity

powers operate in tandem: The Commission decides how to modify

the guidelines and also decides how such modifications should be

implemented. This is appropriate, as the Commission has both the

authority and the obligation to enact policies designed to achieve the

underlying purposes of the Sentencing Reform Act. See, e.g., 28

U.S.C.A. § 994(c) (listing factors for Commission to consider in formulating guidelines). 

An interpretation of § 3582(c)(2) that precluded sentence reductions based on clarifying or hybrid amendments would curtail the

ability of the Commission to eliminate sentencing disparities through

the amendment process. Although the Commission would retain the

power to prevent future misapplications of the guidelines, it would

lose the authority to correct past errors, thereby undermining its ability to amend the guidelines in the manner and sequence best calculated to promote the goals of the Sentencing Reform Act. This would

likely lead to the Supreme Court having to assume a greater role in

resolving circuit conflicts in order to correct errors that could not be

remedied by the Commission. Because this redistribution of the burden of rectifying erroneous applications of the guidelines would conflict with the congressional allocation of authority, an interpretation

of § 3582(c)(2) leading to such a redistribution—i.e., a narrow interpretation barring motions based on clarifying or hybrid amendments

—should be avoided. 

2.

In addition to shifting responsibility for resolving circuit conflicts,

a narrow reading of § 3582(c)(2) would undermine the remedial

scheme created by the Sentencing Reform Act. Under this scheme, a

10 UNITED STATES v. GOINES
defendant whose sentence was computed improperly under the guidelines has, at most, three remedies. First, he can challenge the sentence

on direct appeal. See 18 U.S.C.A. § 3742(a) (West 2000). Second, he

can file an application for post-conviction relief pursuant to 28

U.S.C.A. § 2255 (West Supp. 2003). See 18 U.S.C.A. § 3582(c)(1)(B)

(West Supp. 2003) (authorizing district courts to modify sentences "to

the extent . . . expressly permitted by statute"). And third, if the Commission adopts a retroactive amendment demonstrating that the guidelines were applied incorrectly, the defendant can file a § 3582(c)(2)

motion. 

While we certainly encourage the full exercise of appeal rights, we

also recognize that the prospects for appellate relief are uncertain at

best when the applicable guideline is ambiguous. Such ambiguities

may result in disagreements among courts of appeals, with some

courts endorsing more severe sentences than the Commission

intended. The Supreme Court is not likely to correct those sentences;

as noted above, the Commission bears substantial responsibility for

resolving circuit conflicts. Thus, direct review may not provide an

adequate remedy for a defendant sentenced incorrectly based on an

ambiguous guideline. 

For its part, § 2255 provides virtually no remedy at all. The Sentencing Reform Act does not bar § 2255 relief based on incorrect

application of the guidelines, but Supreme Court decisions predating

the Act state that, in the absence of "a complete miscarriage of justice," § 2255 review is limited to constitutional and jurisdictional

challenges. E.g., Stone v. Powell, 428 U.S. 465, 477 n.10 (1976)

(internal quotation marks omitted). Thus, guideline claims ordinarily

are not cognizable in § 2255 proceedings. See United States v.

Mikalajunas, 186 F.3d 490, 496 (4th Cir. 1999); accord Jones v.

United States, 178 F.3d 790, 796 (6th Cir. 1999); Burke v. United

States, 152 F.3d 1329, 1331-32 (11th Cir. 1998). 

This leaves § 3582(c)(2). A narrow interpretation of § 3582(c)(2),

however, would bar relief based on amendments that merely elucidate

—rather than change—the meaning of the relevant guidelines. This

would effectively eliminate all opportunities for correction of a sentence that was consistent with circuit precedent at the time of sentencUNITED STATES v. GOINES 11
ing but inconsistent with the intent of the Commission, as expressed

in a subsequent hybrid amendment.

We could hold that a miscarriage of justice occurs—and thus

§ 2255 relief is available—in cases in which the defendant’s sentence

was consistent with circuit precedent but would be erroneous under

a hybrid amendment adopted after the defendant’s judgment became

final. Such a rule would enable us to adopt a narrow interpretation of

§ 3582(c)(2) without entirely foreclosing guidelines-based collateral

challenges. This approach, however, would shift collateral litigation

from a procedure specifically created for guidelines claims to a procedure generally reserved for correction of constitutional and jurisdictional errors. 

We do not believe that Congress intended this result. Nor do we

believe that Congress—having "necessarily contemplated" conflicting

interpretations of the guidelines, Braxton, 500 U.S. at 348, and having

posited a relatively circumscribed role for the Supreme Court in

resolving such conflicts—intended for direct review to serve as the

sole remedy for guideline errors. We therefore conclude that a broad

interpretation of § 3582(c)(2) best implements the remedial scheme

established by the Sentencing Reform Act. 

3.

Although it appears from the analysis above that a broad reading

of § 3582(c)(2) reflects the intent of Congress better than a narrow

reading, we must also consider whether a broad reading would have

effects that Congress sought to avoid. We conclude that it would not.

Whether construed broadly or narrowly, § 3582(c)(2) impairs the

finality of criminal judgments. We acknowledge that this concern is

greater under the broad reading, because that reading affords more

leeway for post-judgment motions. Nevertheless, under either reading

of the statute, such motions are permitted only in cases that have been

selected by the Sentencing Commission. As noted above, Congress

endowed the Commission with broad powers to authorize retroactive

application of guideline amendments. In so doing, Congress delegated

to the Commission the authority to decide when a final judgment may

12 UNITED STATES v. GOINES
be revised. Thus, the disruption of finality engendered by a broad

interpretation of § 3582(c)(2) is consistent with the legislative design.

Another potential problem resulting from the broad interpretation

is that it may confer a windfall on defendants who could have

obtained relief on appeal. As we have discussed, however, the prospects for appellate relief are uncertain at best when a guideline or its

commentary is ambiguous. Furthermore, a broad interpretation of

§ 3582(c)(2) does not diminish defendants’ incentive to raise possibly

meritorious sentencing claims on appeal, as § 3582(c)(2), unlike

direct review, requires the intervention of the Sentencing Commission

and, additionally, is subject to the discretion of the district court.

Accordingly, a broad construction of § 3582(c)(2) does not interfere

with any general policy favoring correction of errors on direct review.

C.

The dissent contends that our analysis of § 3582(c)(2) is incorrect

in light of U.S.S.G. § 1B1.10(a) and 28 U.S.C.A. § 994(u). We

respectfully disagree. 

1.

Section 1B1.10(a) states:

Where a defendant is serving a term of imprisonment, and

the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the

Guidelines Manual listed in subsection (c) below, a reduction in the defendant’s term of imprisonment is authorized

under 18 U.S.C. § 3582(c)(2). If none of the amendments

listed in subsection (c) is applicable, a reduction in the

defendant’s term of imprisonment under 18 U.S.C.

§ 3582(c)(2) is not consistent with this policy statement and

thus is not authorized. 

The accompanying commentary reiterates that "[e]ligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an

amendment listed in subsection (c) that lowers the applicable guideline range." U.S.S.G. § 1B1.10, comment. (n.1). 

UNITED STATES v. GOINES 13
As construed by the dissent, § 1B1.10(a) establishes two discrete

prerequisites that an amendment must satisfy in order to support a

§ 3582(c)(2) motion: the amendment must be listed in § 1B1.10(c),

and it must lower the "applicable" guideline range. It is undisputed

that Amendment 599 satisfies the first of these requirements. We

believe that this is sufficient, and that § 1B1.10(a) does not in fact

impose the second requirement postulated by the dissent. 

We readily acknowledge that the word "applicable," as used in

§ 1B1.10(a), seems to refer to the range prescribed by the guidelines

rather than the range applied by the sentencing court. But we cannot

square this interpretation with the inclusion of clarifying amendments

in § 1B1.10(c).4 Because the sole purpose of that subsection is to

identify amendments that may be applied retroactively in § 3582(c)(2)

proceedings, we cannot imagine why the Commission would include

within § 1B1.10(c) any amendment that did not meet the Commission’s own requirements for retroactive application. Cf. U.S.S.G.

App. C., amend. 423 (modifying a proviso restricting § 3582(c)(2)

motions and indicating that the Commission only lists amendments in

§ 1B1.10 if they satisfy all the requirements for eligibility for

§ 3582(c)(2) relief). 

The dissent resolves this conundrum by treating the inclusion of

clarifying amendments in § 1B1.10(c) as an invalid reading of

§ 1B1.10(a). But § 1B1.10(c) is not a subordinate enactment interpreting § 1B1.10(a); on the contrary, it is part of the same provision as

§ 1B1.10(a), adopted by the same agency and entitled to the same

weight, even if it represents a departure from views previously

4While many of the amendments listed in § 1B1.10(c) effect substantive changes in the guidelines, others—like the one in question—are

solely clarifying amendments. These clarifying amendments include

Amendments 433, 454, 484, and 591. See U.S.S.G. App. C., amend. 433

(explaining that amendment "clarifies" several aspects of U.S.S.G.

§ 4B1.2); id. amend. 454 (explaining that amendment "clarifies"

U.S.S.G. § 3A1.1); id. amend. 484 (explaining that the amendment "addresses an inter-circuit conflict" by providing a clearer definition for a

term used in § 2D1.1); id. amend. 591 (Reason for Amendment)

(explaining that the amendment "addresses a circuit conflict" by "clarify-

[ing]" multiple aspects of the guidelines). 

14 UNITED STATES v. GOINES
announced by the Commission, see Rust v. Sullivan, 500 U.S. 173,

186 (1991). Thus, in order to implement § 1B1.10 in its entirety, we

are forced to choose between stretching the meaning of the word "applicable" or rendering portions of § 1B1.10(c) nugatory. 

We choose the former course, for two reasons. First, as the dissent

recounts, the relevant text of § 1B1.10(a) predates the inclusion of

clarifying amendments in § 1B1.10(c); thus, § 1B1.10(c) represents

the Commission’s current views on retroactivity of guidelines amendments, and we must give effect to this reading, so long as it is consistent with applicable statutes.5 Cf. Stinson v. United States, 508 U.S.

36, 46-47 (1993) (rejecting the Commission’s statement regarding the

role of guidelines commentary and instead relying on "the uses to

which the Commission in practice has put such commentary"). Second, requiring § 3582(c)(2) petitioners to demonstrate that they are

relying on substantive amendments would enhance the role of the

courts in the § 3582(c)(2) process while limiting the discretion of the

Sentencing Commission to give retroactive effect to its guideline revisions. Faced with a choice between limiting our own discretion and

limiting that of the agency with primary responsibility for formulating

and administering the guidelines, we prefer to limit our own discretion (at least until Congress, the Supreme Court, or the Commission

instructs otherwise). Accordingly, we interpret § 1B1.10 to authorize

§ 3582(c)(2) motions based on any amendment listed in § 1B1.10(c),

without regard to whether that amendment is substantive or clarifying.

2.

The final provision cited by the dissent to illuminate the meaning

of § 3582(c)(2) is 28 U.S.C.A. § 994(u), which states:

If 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 circum5The dissent maintains that the inclusion of clarifying amendments in

§ 1B1.10(c) is not consistent with the relevant statutes, § 3582(c)(2) and

§ 994(u). We have already set forth our understanding of § 3582(c)(2).

We will discuss § 994(u) infra in Part III.C.2. 

UNITED STATES v. GOINES 15
stances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.

The dissent contends that this provision precludes the Commission

from giving retroactive effect to clarifying amendments. 

The plain language of § 994(u)—viewed without benefit of prior

judicial interpretations—appears to authorize retroactive application

of substantive amendments only. However, we may not construe this

statute without considering the views expressed by the Supreme Court

in Braxton v. United States, 500 U.S. 344 (1991). In Braxton, the

Supreme Court cited § 994(u) to support the proposition that "Congress has granted the Commission the unusual explicit power to

decide whether and to what extent its amendments reducing sentences

will be given retroactive effect." Id. at 348 (emphasis omitted). Significantly, the Court relied on this power in the course of declining

to resolve a circuit conflict that the Commission had undertaken to

resolve with a clarifying amendment. See id. at 347-48; see also

U.S.S.G. App. C., amend. 434 (resolving the issue left open in Braxton). 

Although the Court ultimately granted relief to Braxton on other

grounds, those grounds were "closely tied to the facts of the present

case." Braxton, 500 U.S. at 349. In other words, the Supreme Court

eschewed a broadly applicable legal decision in favor of a decision

narrowly limited to the facts of a particular case, in contravention of

the Court’s usual preference for avoiding narrow, fact-specific decisions, cf. Sup. Ct. R. 10 (stating that Supreme Court will only grant

certiorari "for compelling reasons" and that such reasons ordinarily

involve disputes among lower courts or "important question[s] of federal law"). Moreover, the primary reason for this choice was that the

Sentencing Commission was fully empowered to address the broader

legal issue and to rectify any harms that might have resulted from

incorrect interpretations of the relevant guideline. Indeed, the Court

speculated—consistently with our analysis of § 3582(c)(2)—that this

power may be so great as to give the Commission a role at least equal

to that of the Supreme Court in resolving disputes concerning the

interpretation of the sentencing guidelines. See Braxton, 500 U.S. at

348 (stating that the Court ordinarily regards the task of resolving disputes among circuit courts as "initially and primarily ours" but that

16 UNITED STATES v. GOINES
"this may not be Congress’ intent with respect to the Sentencing

Guidelines"). 

Under these circumstances, it would be inappropriate to treat the

statements of the Supreme Court regarding § 994(u) as mere dictum.

Instead, these statements reflect a determination that the Commission

has the power to give retroactive effect to clarifying amendments.

This determination is binding here. We therefore conclude that neither

§ 994(u) nor U.S.S.G. § 1B1.10(a) precludes Goines from bringing

this § 3582(c)(2) action based on Amendment 599. 

IV.

For the foregoing reasons, we hold that a defendant may rely on a

clarifying or hybrid amendment to support a § 3582(c)(2) motion, so

long as the amendment has been designated for retroactive application

and would result in application of a sentencing range lower than the

range applied at the original sentencing proceeding. We further hold

that Amendment 599 meets these criteria. Accordingly, we conclude

that the district court erred in ruling that Goines was ineligible for

§ 3582(c)(2) relief as a matter of law. 

The Government agrees with this conclusion but asserts that

Goines nevertheless is not entitled to § 3582(c)(2) relief because no

modification of his sentence is warranted under 18 U.S.C.A.

§ 3553(a) (West 2000). See 18 U.S.C.A. § 3852(c)(2) (providing that

district court may reduce sentence based on retroactive change to

guidelines "after considering the factors set forth in section 3553(a)").

That question, however, should be considered by the district court in

the first instance. Accordingly, we vacate the decision of the district

court and remand for consideration of whether Goines’ sentence

should be reduced. 

VACATED AND REMANDED

LUTTIG, Circuit Judge, dissenting: 

The straightforward issue in this case is whether the district court

properly denied Goines’ motion for reduction of sentence under 18

U.S.C. § 3582(c)(2). 

UNITED STATES v. GOINES 17
The majority correctly recognizes the necessary questions to be

answered in resolving this issue, first, whether the weapon enhancement pursuant to United States Sentencing Guidelines Manual

("U.S.S.G.") § 2D1.1(b)(1) that was applied to Goines’ 18 U.S.C.

§ 922(g) conviction would have been barred by Amendment 599 had

that amendment been in effect when Goines was sentenced and, second, if that enhancement would have been barred, whether Goines is

eligible for relief under section 3582(c)(2) because that amendment

lowered the sentencing range on which his term of imprisonment was

based. But beyond this point, the majority and I are, to a large extent,

in fundamental disagreement. 

While I agree that Amendment 599 would have barred Goines’

weapon enhancement, I do so for reasons different from those of the

majority. In particular, I conclude that Goines’ section 922(g) conviction was within the scope of relevant conduct for the drug-trafficking

crime underlying his section 924(c) conviction, and thus is properly

considered part of the "underlying offense" for purposes of Amendment 599. 

More important than my disagreement with the majority on this

first issue, however, is my disagreement with the majority on the second issue. As the majority itself concludes, Amendment 599 is clarifying only. It did not change the scope of Application Note 2 ("Note

2") to U.S.S.G. § 2K2.4 (1998).1 Because Amendment 599 did not

change the sentencing range made applicable to Goines by the Sentencing Commission, that amendment necessarily did not lower that

range, which is the prerequisite for a sentence reduction under section

3582(c)(2). For this reason, Goines is not statutorily eligible for a

reduction of his sentence under section 3582. The reasoning invoked

by the majority in support of the contrary conclusion, I believe, comes

perilously close to being, if it does not cross the line into, outright legislation. 

1Unless otherwise indicated, citations in this opinion to "U.S.S.G."

refer to the 2002 manual. 

18 UNITED STATES v. GOINES
I.

The threshold question with which we are faced is whether Amendment 599 would have prevented the weapon enhancement Goines

received on his section 922(g) conviction. The majority concludes, as

do I, that the amendment would have barred that enhancement. Notable about the majority’s analysis, however, is its complete failure to

explain how this is true under the text of Amendment 599. Instead,

while concluding that Goines’ enhancement "falls within a gap

between" Amendment 599’s restrictions — a conclusion that should

prompt the majority to reach the opposite holding that Amendment

599 would not have barred Goines’ sentence enhancement — the

majority then proceeds to simply state, without any reference to the

language of Amendment 599 whatsoever, that the "best inference

from th[e] juxtaposition of citations and commentary" in the Commission’s accompanying "Reason for Amendment" is that the Commission intended that "a sentence for a § 922(g) offense may not be

enhanced based on conduct that also resulted in a § 924(c) conviction." Ante at 5. Although I agree with the majority’s ultimate conclusion that Amendment 599 would have barred Goines’ enhancement,

I cannot accept the majority’s analysis. If the enhancement at issue

would not have been barred by the language of Amendment 599 —

accounting, as we must, for the interpretive instructions provided by

the Commission — then properly that should be the end of the

inquiry.

I also am unsure whether, even assuming that the majority is correct as to the "best inference" of the Commission’s intent, that the

weapon enhancement in this case was based on the same conduct that

underlay Goines’ section 924(c) offense. It was the conduct underlying the section 924(c) offense that apparently was used to justify the

cross-reference to U.S.S.G. § 2X1.1, which eventually led to imposition of the section 2D1.1(b)(1) enhancement. See J.A. 63. The specified basis for the section 2D1.1(b)(1) enhancement is different from

the conduct specified in the section 924(c) count to which Goines

pled guilty. The specified basis for the enhancement was the distribution of a different drug (marijuana, not methamphetamine), on a different day (October 22, not October 20), and with a different gun (a

.38 caliber antique revolver, not a .45 caliber handgun).2 Compare

J.A. 63-64 with J.A. 12-13.

2

In fact, I suspect that the presentence report’s choice of this conduct

as the basis for the enhancement over the seemingly more obvious (and

UNITED STATES v. GOINES 19
But more importantly, I believe that the majority has overlooked

the proper inquiry for determining the applicability of Amendment

599 in circumstances such as those before us. The relevant inquiry

under that amendment is both broader in scope, and more complicated

in application, than the majority’s discussion suggests, even if the

majority’s conclusion as to the application of that amendment in the

specific instance of identity between the conduct basis for the weapon

enhancement and the conduct underlying the section 924(c) conviction may necessarily follow. In particular, I believe that a weapon

enhancement is barred under Amendment 599 both in the circumstance where the enhancement is being applied in determining the

sentence for the specific offense underlying a defendant’s section

924(c) conviction and in the circumstance where the enhancement is

being applied in determining the sentence for any counts of conviction within the scope of relevant conduct for that specific underlying

offense. 

By its terms, the first paragraph of Amendment 599 (the one relevant to the issue here) limits its application to cases where "a sentence

under this guideline [section 2K2.4] is imposed in conjunction with

a sentence for an underlying offense . . . ." U.S.S.G. supp. to app. C,

amend. 599. If that has occurred, the amendment then precludes

applying weapon enhancements "when determining the sentence for

the underlying offense." Id. However, the underlying offense for the

section 924(c) count listed in the indictment was the drug trafficking

crime of "possession an [sic] possession with intent to distribute

methamphetamine" "on or about October 20, 1999," J.A. 13, conduct

which was subsumed under dismissed count one. Because no sentence

was imposed on that count, the language of Amendment 599 would

seem to dictate that the amendment’s bar would be inapplicable. 

The Commission, however, has defined "offense" to mean "the

offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise

clear from the context." U.S.S.G. § 1B1.1, cmt. n.1(k) (emphasis

added). And in its Reason for Amendment, the Commission specifimore culpable) conduct specified as the § 924(c) underlying offense in

the indictment was an attempt to avoid the scope of Note 2’s prohibition.

20 UNITED STATES v. GOINES
cally stated its intention that courts apply this definition to "underlying offense" in Amendment 599: 

The amendment directs that no guideline weapon enhancement should be applied when determining the sentence for

the crime of violence or drug trafficking offense underlying

the 18 U.S.C. § 924(c) conviction, nor for any conduct with

respect to that offense for which the defendant is accountable under § 1B1.3 (Relevant Conduct). Guideline weapon

enhancements may be applied, however, when determining

the sentence for counts of conviction outside the scope of

relevant conduct for the underlying offense (e.g., a conviction for a second armed bank robbery for which no 18

U.S.C. § 924(c) conviction was obtained). 

U.S.S.G. supp. to app. C, amend. 599 (emphasis added). 

Since Goines stipulated in his plea agreement "that there is a sufficient factual basis to support each and every material allegation contained within" the indictment, see J.A. 20, those acts listed in count

one (and surely those specifically underlying his section 924(c) conviction) would appear to be properly considered "offenses of conviction" for these purposes, even though no separate conviction was

actually obtained.3See U.S.S.G. § 1B1.2(c). Therefore, if Goines’

section 922(g) offense was a count of conviction within the scope of

relevant conduct to his underlying drug trafficking crime, then the

weapon enhancement he received would have been barred by Amendment 599. See United States v. Brown, 332 F.3d 1341, 1345 n.6 (11th

Cir. 2003) (concluding that "Amendment 599 abrogated Flennory to

the extent that the new application note expanded the definition of

underlying offense to include the relevant conduct punishable under

U.S.S.G. § 1B1.3," but declining to decide "whether a § 922(g) conviction constitutes relevant conduct within the meaning of Application Note 2"). 

3

In fact, given that an element of a section 924(c) offense is engaging

in a prosecutable federal "crime" — either one of "violence" or "drug

trafficking" — a conviction on a section 924(c) offense would seem

inherently to render the specified underlying conduct an "offense of conviction," at least as meant by Amendment 599. 

UNITED STATES v. GOINES 21
Because the district court applied the weapon enhancement to the

section 922(g) conviction as the result of a cross-reference from the

guideline applicable to that conviction, and after calculating a base

offense level including the total amount of drugs found to have been

distributed by Goines, I believe the district court necessarily concluded that Goines’ section 922(g) conviction was within the scope

of relevant conduct for his underlying drug-trafficking crime. See

U.S.S.G. § 1B1.3 ("Unless otherwise specified, (i) the base offense

level where the guideline specifies more than one base offense level,

(ii) specific offense characteristics and (iii) cross references in Chapter Two . . . shall be determined on the basis of" factors defining relevant conduct.) (emphasis added). It is, then, for this reason that the

district court erred in its conclusion that Amendment 599 would not

have barred Goines’ weapon enhancement. 

II.

The fact that Amendment 599 would have barred the weapon

enhancement Goines received on his section 922(g) offense does not

necessarily mean, of course, that he is eligible to receive the benefit

of that amendment through a sentence reduction under section

3582(c)(2). As to this second question, the majority concludes that

Goines is so eligible because Amendment 599 lowered the sentencing

range that was applied by the district court. Section 3582(c)(2), however, authorizes a sentence reduction only if the amendment lowers

the sentencing range prescribed by the sentencing guidelines. Since

Amendment 599 is clarifying, and thus does not make any change in

the applicable guidelines, a sentence reduction under section

3582(c)(2) plainly is not authorized on the basis of that amendment.

Indeed, the Commission’s binding interpretation as to when a section

3582(c)(2) reduction is authorized prevents a court from granting a

sentence reduction based on a clarifying amendment, and the unambiguous meaning of section 3582(c)(2) precludes the Commission

from authorizing such a reduction at all — the majority’s contrary

conclusion notwithstanding.

A.

Although the majority recites the text of section 3582(c)(2) above,

that text bears repeating here: 

22 UNITED STATES v. GOINES
[I]n 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

. . . 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.

(2000) (emphasis added). Section 3582(c)(2) thus permits a sentence

reduction for Goines if, inter alia, Amendment 599 "lower[ed]" the

"sentencing range" on which his term of imprisonment was "based."

I would have thought there could be no doubt as to the interpretation

of these terms. However, any doubt in this respect is entirely eliminated by reference to U.S.S.G. § 1B1.10 — the policy statement setting forth the Commission’s unambiguous view on the necessary

conditions for a section 3582(c)(2) sentence reduction to be both "authorized" and "warranted." In the Commission’s own words, a reduction in a defendant’s term of imprisonment under section 3582(c)(2)

is "authorized" when "the guideline range applicable to that defendant

has subsequently been lowered as a result of an amendment to the

Guidelines Manual listed in subsection (c) below." U.S.S.G.

§ 1B1.10(a). The Commission’s interpretation is unequivocal: eligibility for a section 3582(c)(2) reduction is "triggered only by an

amendment listed in subsection (c) that lowers the applicable guideline range." U.S.S.G. § 1B1.10, cmt. n.1 (emphasis added). 

We are bound to apply section 1B1.10(a)’s direction as to when a

section 3582(c)(2) sentence reduction is authorized. Although section 1B1.10 is a policy statement and not a guideline, we are obliged

to follow those policy statements that, consistent with statutory dictates, prohibit specified action by a court. As the Supreme Court has

made clear, 

[t]he principle that the Guidelines Manual is binding on federal courts applies as well to policy statements. . . . "[W]here

. . . a policy statement prohibits a district court from taking

a specified action, the statement is an authoritative guide to

the meaning of the applicable Guideline." 

UNITED STATES v. GOINES 23
Stinson v. United States, 508 U.S. 36, 42 (1993) (quoting Williams v.

United States, 503 U.S. 193, 201 (1992)). Section 1B1.10 meets this

requirement, given its specific explication of the necessary conditions

for a sentence reduction under section 3582(c)(2).4 And even if it did

not, section 3582(c)(2) itself only allows a sentence reduction if such

"is consistent with applicable policy statements issued by the Sentencing Commission," which section 1B1.10 indisputably is. 

Once section 3582(c)(2) is properly understood, the logic as to why

it does not authorize a reduction in Goines’ sentence is simple and,

I would have thought, self-evident. A sentence reduction under section 3582(c)(2) is only authorized when an amendment lowers the

applicable guideline range as that range has been defined by the Sentencing Commission. And as the majority itself concludes, Amendment 599 "changes nothing concerning the legal effect of the

guidelines, but merely clarifies what the Commission deems the

guidelines to have already meant." Ante at 7 (quoting United States

v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995)) (emphasis added).

Because Amendment 599 made no change at all to the guideline

range that could be correctly applied to Goines — i.e., the guideline

range applicable to him — it necessarily did not lower that range.5

4While the Williams court spoke in terms of a policy statement’s interpretation of a guideline, I have no doubt that this limitation applies

equally to a policy statement interpreting a statute. See United States v.

Headrick, 963 F.2d 777, 781 (5th Cir. 1992) ("[P]olicy statements may

carry [the force of guidelines] when they inform the application of a particular guideline or statute.") (emphasis added). 

5A reduction in Goines’ sentence might be thought justified on the reasoning that, although it declined to concede the point expressly, the

Commission did view Amendment 599 as substantive in that it expanded

the scope of "underlying offense," thus potentially lowering the guideline

range applicable to Goines. (The government appears to embrace such an

argument in its supplemental brief, though without explicitly labeling the

amendment "substantive."). Arguably, the Commission’s very listing of

that amendment in section 1B1.10(c) reflects that it held this view. See,

e.g., U.S.S.G. § 1B1.10, cmt. background ("The Commission has not

included in this policy statement amendments that generally reduce the

maximum of the guideline range by less than six months."). 

I hesitate, however, to conclude that Amendment 599 is substantive (at

least as it applies to Goines’ circumstances), because of the utterly incon24 UNITED STATES v. GOINES
Admittedly, from the conclusions that Amendment 599 would have

barred Goines’ weapon enhancement and that Note 2 has the same

scope as Amendment 599, it follows that the district court committed

legal error when it applied the enhancement during Goines’ original

sentencing. That is, since Amendment 599 had no effect on the ability

of courts to apply enhancements such as the one Goines received on

his section 922(g) conviction, application of the instant enhancement

would have been contrary to Note 2, as properly construed, both

before and after the enactment of Amendment 599. But the fact that

the district court so erred does not mean that Amendment 599 lowered the guideline range applicable to Goines, as is required to authorize a sentence reduction. Such error only means that the guideline

range actually applied to Goines was not the guideline range that was,

in fact, "applicable" to him. The proper way to seek redress for that

error, however, is by argument on direct appeal and not, as the majority holds today, through motion under section 3582(c)(2). 

sequential change in language from Note 2 to Amendment 599. While

Amendment 599 provides more specific direction as to the scope of "underlying offense," the fact remains that the guidelines at the time Goines

was sentenced (as they do today) defined "offense" to include "the

offense of conviction and all relevant conduct under § 1B1.3 (Relevant

Conduct) unless a different meaning is specified or is otherwise clear

from the context." U.S.S.G. § 1B1, cmt. n.1(l) (1998) (emphasis added).

Substituting this definition of "offense" into Note 2 would seem to render

Note 2 identical in substantive scope to Amendment 599. This view, of

course, is reinforced, if not fully confirmed, by the Commission’s own

characterization of the effect of its change, including its repeated characterization of the change as merely clarifying. See U.S.S.G., supp. to app.

C, amend. 599 (Reason for Amendment). In particular, the Commission

stated that "[t]he amendment clarifies application of the commentary,

consistent with the definition of "offense" found in § 1B1.1 (Application

Note 1(l)) and with general guideline principles. It addresses disparate

application arising from conflicting interpretations of the current guideline in different courts . . . ." Id. (emphasis added). 

In view of the above, and assuming that this conclusion applies to both

paragraphs of Amendment 599, I think it is more likely that the Commission simply concluded in error that clarifying amendments could serve

as predicates for a sentence reduction under section 3582(c)(2). Therefore, I defer to the majority’s characterization of the amendment. 

UNITED STATES v. GOINES 25
Even if there had been prior Fourth Circuit precedent that required

the conclusion reached by the district court — rendering Amendment

599 a "hybrid" amendment in the majority’s terminology — I would

conclude the same. In such case, that circuit precedent would have

also been in error, in that Note 2 would have barred an enhancement

permitted by the precedent. To be sure, under these circumstances

Amendment 599 would have changed the law within this circuit (at

least in its prospective applications) because that law was previously

defined by the precedent interpreting old Note 2. This still would not

mean, however, that Amendment 599 lowered the guideline range

applicable to Goines because that amendment still would have made

no change in the scope of Note 2 as intended by the Commission.

B.

Additionally, I reject the argument made by Goines that, in the

determination of whether a section 3582(c)(2) sentence reduction is

authorized, "it is irrelevant whether Amendment 599 is substantive or

clarifying," and all that matters is that the Commission designated

Amendment 599 in section 1B1.10(c) as capable of retroactive application. Supplemental Br. of Appellant at 3-6. Goines contends that,

in this regard, section 1B1.10 stands in contrast to U.S.S.G. § 1B1.11,

for which the distinction between substantive and clarifying amendments is relevant. Section 1B1.11(b)(2) requires a court applying an

earlier version of the Guidelines Manual than that in effect at sentencing to "consider subsequent amendments [to the guidelines], to the

extent that such amendments are clarifying rather than substantive

changes." Goines argues from the fact that relief under section

1B1.11(b)(2) is explicitly predicated on this distinction, and relief

under sections 3582(c)(2) and 1B1.10(a) is not, that the distinction is

irrelevant under the latter provisions. 

It is true that Congress has "granted the Commission the unusual

explicit power to decide whether and to what extent its amendments

reducing sentences will be given retroactive effect . . . . in [section]

1B1.10 . . . ." Braxton v. United States, 500 U.S. 344, 348 (1991) (citing 28 U.S.C. § 994(u)) (second emphasis added). But those amendments must first actually reduce sentences in the manner dictated by

the statutory directive, section 994(u). That section dictates that the

Commission’s power to reduce sentences through designation of

26 UNITED STATES v. GOINES
amendments as retroactively applicable applies "[i]f the Commission

reduces the term of imprisonment recommended in the guidelines

applicable to a particular offense or category of offenses." Where an

amendment does not change the scope of a guideline, the Commission

cannot be said to have so reduced the guideline-recommended term

of imprisonment. That neither Congress nor the Commission conditioned a section 3582(c)(2) sentence reduction by terms on the existence of a "substantive," as opposed to "clarifying," change is of no

moment. For in substantive effect, Congress so conditioned the sentence reduction, through its authorization of such only in circumstances where an amendment actually reduces the "term of

imprisonment recommended in the guidelines." Amendments that do

not — otherwise known as clarifying amendments — by definition

fail to satisfy the statutory requirements. See United States v.

LaBonte, 520 U.S. 751, 757 (1997) (stating that "[b]road as [the Commission’s] discretion [in formulating guidelines] may be, however, it

must bow to the specific directives of Congress . . . . If the Commission’s revised commentary is at odds with [the statutory directive’s]

plain language, it must give way."). 

It is for this reason that, even were we not bound by the construction of section 3582(c)(2) provided in section 1B1.10(a), I would be

confident that section 1B1.10(a) provided the correct, and indeed necessary, interpretation of the requirements for authorization of a section 3582(c)(2) sentence reduction. Accordingly, I believe the cases

Goines cites in support of his argument are, to the extent they suggest

that clarifying amendments can ever support a section 3582(c)(2) sentence reduction, simply in error. See, e.g., United States v. Lykes, 73

F.3d 140, 143 (7th Cir. 1995) ("The question whether an amendment

is substantive or clarifying . . . is, however, irrelevant to the implementation of § 1B1.10 . . . as long as the amendment in question

reduces a term of imprisonment for some offense. Indeed, one might

expect that such amendments would ordinarily be substantive.")

(emphasis added). And to the extent the Commission, in designating

Amendment 599 as retroactively applicable, construed section

3582(c)(2) to authorize sentence reductions for amendments that are

only clarifying, I would hold that its interpretation is contrary to statute and invalid. See United States v. Banks, 130 F.3d 621, 624-25 (4th

Cir. 1997) (stating that commentary is binding "[u]nless contrary to

federal law").

UNITED STATES v. GOINES 27
C.

Once section 3582(c)(2) is correctly interpreted, the implausibility

of the majority’s preferred reading of that section becomes manifest,

for even on the majority’s own construction of the relationship

between Amendment 599 and Note 2, a sentence reduction under section 3582(c)(2) is not authorized on the basis of Amendment 599. 

In its attempt to justify the opposite conclusion, the majority

creates a false dichotomy between "broad" and "narrow" interpretations of the term "sentencing range" as used in section 3582(c)(2),

stating that both are plausible, but that the former better serves various policy considerations identified by the majority. See ante at 8-9.

It is not clear which interpretation, as a matter of necessity, is broader

and which is narrower. But only one — the latter — is plausible.6 The

other, the majority’s "broad" reading of section 3582(c)(2), requires

a court to determine whether the sentencing range applied by the particular district court in question has been lowered by a retroactive

amendment. As noted above, since the sentencing, or guideline, range

actually applied by the district court to Goines was erroneous, then

that range was, in fact, inapplicable. Thus, it follows ineluctably that

Amendment 599 made no change to the applicable guideline range,

and thus that a reduction in Goines’ sentence is not authorized under

section 3582(c)(2). 

The majority seems to recognize the implausibility of its preferred

construction of section 3582(c)(2), because it declines to rely on the

language of section 1B1.10(a) to support that construction, despite the

fact that section 1B1.10 is directed to the precise circumstance facing

us in this case: Its expressed goals are to "provide[ ] guidance for a

court when considering a motion under 18 U.S.C. § 3582(c)(2) and

[to] implement[ ] 28 U.S.C. § 994(u)," the statutory directive regarding the Commission’s power to authorize sentence reductions through

6The majority places significant emphasis on the fact that no other

court has reached the conclusion I have in this case. Without addressing

these arguments in detail, I imagine that those earlier courts that, at least

implicitly, reached the contrary interpretation of section 3582(c)(2) suffered (to the extent they gave much thought to the question at all) from

interpretive errors similar to those made by the majority. 

28 UNITED STATES v. GOINES
retroactively applicable amendments. U.S.S.G. § 1B1.10, cmt. background. Unlike the language of section 3582(c)(2), the language of

section 1B1.10(a) is insusceptible, or certainly is not as easily susceptible, to the kind of misinterpretation to which the majority falls prey

in its reading of section 3582(c)(2). 

The majority’s explanation as to why the unambiguous language of

section 1B1.10(a) does not preclude its interpretation of section

3582(c)(2) is unconvincing. While admitting (as it must) that mine is

the more natural reading of section 1B1.10(a), the majority nevertheless rejects this reading of the provision, contending that it is incompatible with what it asserts is the Commission’s current interpretation

of section 1B1.10(a), an interpretation that the majority maintains is

necessarily implied by the Commission’s actions — though such has

never been explicitly declared by the Commission.7

But the Commission’s interpretation is, like any agency’s interpretation of its own regulations, invalid if it is plainly inconsistent with

that section’s necessary meaning. See Stinson, 508 U.S. at 45 (making

the rule that "an agency’s interpretation of its own regulations [which]

does not violate the Constitution or a federal statute . . . must be given

controlling weight unless it is plainly erroneous or inconsistent with

the regulation" applicable to the Commission’s commentary interpreting the guidelines) (internal quotation marks omitted). And section

1B1.10(a) simply cannot bear the interpretation that the majority suggests is currently held by the Commission and which the majority

today adopts for this circuit, a conclusion that, as explained below,

not only obtains from section 1B1.10(a)’s unambiguous meaning, but

that is also required by the statutory directive that section 1B1.10(a)

implements. 

1.

I must confess that I actually do not see any way that the word "applicable" in section 1B1.10(a) can legitimately be read to refer to the

7Assuming that each of the ostensibly clarifying amendments listed in

section 1B1.10(c) is clarifying in all respects, I do not disagree that such

listings demonstrate the Commission’s view that section 1B1.10(a) can

potentially be satisfied by clarifying amendments. 

UNITED STATES v. GOINES 29
guideline range "applied" by the district court in the particular case

in which sentence reduction is sought. In fact, upon reflecting on the

two terms in juxtaposition, it is obvious that the Commission, when

originally promulgating section 1B1.10(a), could not have shared the

majority’s interpretation of section 3582(c)(2). If it had, it would not

have directed, as it did, that the amendment must lower the guideline

range applicable to a defendant. Rather, it would have directed that

it must lower the guideline range applied to that defendant, or something of similar focus. In fact, if the Commission had originally interpreted section 3582(c)(2) as the majority contends it now does,

applied would be so far a superior, and apparent, term for section

1B1.10(a) that the use of applicable to convey that "broad" meaning

would be almost inconceivable. 

That the Commission did not originally hold the majority’s interpretation of section 1B1.10(a) is evidenced by examination of that

section as it stood in 1989, when the section first took effect.

Although the relevant language in section 1B1.10(a) at that time is

identical to its current form, none of the amendments then designated

as retroactively applicable can be fairly construed as merely clarifying. See U.S.S.G. § 1B1.10(a), (d) (1989) (listing amendments 126,

130, 156, 176, and 269 as retroactively applicable). The fact that the

Commission’s interpretation of subsection (a) may have expanded

over time is irrelevant if, as is the case here, section 1B1.10(a) cannot

bear the Commission’s current interpretation.8

The majority’s argument to the contrary cannot withstand careful

examination. That argument examines a policy statement, section

1B1.10(a) (which states that a reduction in sentence is "authorized"

if an amendment "lower[s]" "the guideline range applicable to [a]

defendant), whose interpretive commentary recites that the pertinent

conditions are "only" satisfied by those amendments "that lower[ ] the

8But my position is not, as might be suggested by the majority’s citation to Rust, ante at 14-15, that the Commission’s interpretation is

invalid because it represents an unexplained departure from the Commission’s longstanding views, although that may well be the case; my point,

again, is that the Commission’s current interpretation is not a "plausible

construction" of, i.e., is plainly inconsistent with, the language of section

1B1.10(a). Ehlert v. United States, 402 U.S. 99, 105 (1971). 

30 UNITED STATES v. GOINES
applicable guideline range," yet concludes that section "1B1.10(a)

does not in fact impose" a requirement that "an amendment must

lower the ‘applicable’ guideline range" in order for that amendment

to satisfy section 1B1.10(a)’s conditions. Ante at 13-14 (quoting

U.S.S.G. §§ 1B1.10(a), 1B1.10 cmt. n.1). According to the majority,

this counterintuitive (to say the least) result is required because the

natural reading of section 1B1.10(a) "cannot [be] square[d]" with the

Commission’s interpretation thereof. Id. at 4. 

While the majority correctly assesses the relationship between the

Commission’s interpretation and the plain language of section

1B1.10(a), the majority misapprehends the scope of the deference we

need accord the Commission. I do not believe, as the majority apparently does, that the Commission can avoid full judicial review of its

interpretation of section 1B1.10(a) by implicitly grounding that interpretation in a different subsection of section 1B1.10 altogether, i.e.,

through addition of clarifying amendments to section 1B1.10(c). 

That is not to say, of course, that I would not defer to that interpretation were it a plausible one. But the requirement that we accord

controlling weight to the Commission’s interpretations of the guidelines — which is a species of "Seminole Rock deference," the general

principle of deference to an agency’s interpretation of its own regulations — does not apply at all when the guideline language is "unambiguous." United States v. Deaton, 332 F.3d 698, 709 (4th Cir. 2003)

(citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 413-14

(1945)). In such cases, "the regulation’s plain language, not the agency’s interpretation, controls." Id. Not only is section 1B1.10(a), as

detailed above, unambiguous, but the majority offers no case for its

ambiguity beyond the fact of the Commission’s contrary interpretation. That, alone, is insufficient to justify, much less require, our deference. 

2.

Moreover, the interpretation of section 1B1.10(a) that I espouse is

necessary to confine that section within the bounds of the duties

imposed upon, and powers implicitly granted to, the Commission by

the statute that section 1B1.10(a), by express terms, "implements":

section 994(u). As explained above, see supra at 26-27, the authority

UNITED STATES v. GOINES 31
to authorize sentence reductions conferred by section 994(u) is limited to amendments that "reduce[ ] the term of imprisonment recommended in the guidelines"; however, the Commission’s current

interpretation of section 1B1.10(a) (if that it be) would allow it to

authorize sentence reductions based on amendments that do not lower

any guideline-recommended term of imprisonment, but instead only

clarify what the pre-existing guidelines recommended. Simply put,

that interpretation would exceed the Commission’s statutory authority

and could not stand, as the majority effectively concedes when it

observes that "[t]he plain language of § 994(u)—viewed without benefit of prior judicial interpretations—appears to authorize retroactive

application of substantive amendments only." Ante at 16. 

The majority ultimately eschews reliance on the natural reading of

the statute, however, seeking refuge instead in a strained reading of

the Supreme Court’s decision in Braxton. The majority claims that,

despite the plain statutory language to the contrary in section 994(u),

the Braxton court decided that the Commission could designate clarifying amendments as retroactively applicable. The majority asserts

that Braxton precludes us from construing section 994(u) in accordance with its plain meaning, even though the case was decided on

other grounds, as the majority admits, and even though Braxton did

not mention — or even suggest — the issue that divides this court.

Braxton, however, did not hold that the Commission’s section

994(u) power applies to clarifying amendments, and we are not bound

by any construction — or more accurately, reconstruction — of its

reasoning which suggests otherwise. At the time of Braxton, an application note for U.S.S.G. § 1B1.2 provided that, "in the case of a conviction by plea of guilty . . . containing a stipulation that specifically

establishes a more serious offense than the offense of conviction, [the

court shall apply the guideline in such chapter] most applicable to the

stipulated offense." Braxton, 500 U.S. at 346. The first of two issues

raised in the case was whether, to be covered by this proviso, a stipulation needed to be contained in a formal plea agreement, an issue that

had divided the courts of appeals. See id. at 346-47. After Braxton’s

petition for certiorari was granted, "the Commission requested public

comment on whether § 1B1.2(a) should be ‘amended to provide

expressly that such a stipulation must be as part of a formal plea

agreement,’ which [wa]s the precise question raised by the first part

32 UNITED STATES v. GOINES
of Braxton’s petition . . . ." Id. at 348 (1991) (quoting 56 Fed. Reg.

1891 (Jan. 17, 1991)). Observing that Congress may not have

intended for the Court to have "initial[ ] and primar[y]" responsibility

for resolving circuit conflicts over the guidelines (as would

"[o]rdinarily" be the case), and after noting both the commission’s

"duty to review and revise the Guidelines" and its "unusual explicit

power" to designate certain of its amendments as retroactively applicable, the Court "[chose] not to resolve the first question presented in

the current case." The Court reasoned that "the Commission has

already undertaken a proceeding that will eliminate circuit conflict

over the meaning of § 1B1.2" and that "the specific controversy

before us can be decided on other grounds . . . ." Id. at 348-349.9

The majority’s fundamental error in its reading of Braxton lies in

its assumption that, since Braxton referenced the Commission’s retroactive designation power in the context of a guideline for which a

putatively clarifying amendment eventually issued, the Court must

have concluded that this power applied to clarifying amendments. But

there simply is no indication in the Braxton opinion that the Court

was aware of what, if any, amendment the Commission would propose, much less that any amendment would necessarily be clarifying

in the sense used here. Thus, that opinion cannot possibly be said to

have turned on the nature of the amendment that the Commission

finally promulgated. 

For one, the opinion only notes that the Commission had begun a

proceeding to resolve the issue; the opinion contains no indication of

what any forthcoming amendment would, in fact, provide, nor

whether that amendment would make a clarifying or substantive

change to the guideline. The notice of proposed amendment from

which the Court quoted provides no better indication of what form

any amendment would take. To the contrary, since the request for

9

I disagree with the majority’s view that Braxton justified its decision

to pass on the first issue in part because "the Sentencing Commission

was fully empowered . . . to rectify any harms that might have resulted

from incorrect interpretations of the relevant guideline." Ante at 16. That

is too broad a reading of the Court’s explanation for bypassing the stipulation issue; the opinion does not nearly construe the Commission’s powers so expansively. 

UNITED STATES v. GOINES 33
comments is included under the heading "Miscellaneous Substantive,

Clarifying, Conforming, and Technical Amendments," but does not

indicate which of these any amendment to section 1B1.2(a) would be,

the notice suggests that the Commission had not yet formally decided

on the character of any anticipated amendment. See 56 Fed. Reg. 1891.10

In light of the above, and in light of the fact that after describing

the Commission’s power in this regard, Braxton cites directly to section 994(u) — the "plain language" of which only covers substantive

amendments — without comment, Braxton cannot be read as expanding the scope of the Commission’s section 994(u) power beyond the

clear language of that directive. Rather, the opinion is better (if not

compellingly so) read as having used the "unusual" nature of the

Commission’s power in this regard as evidence of the different role

Congress envisioned for the Supreme Court as to guidelines issues,

and no more — a point that would carry weight even if, as I contend,

the Commission’s section 994(u) authority is limited to substantive

amendments. 

III.

Even if I were to accept the essential plausibility of the majority’s

"broad" interpretation of section 3582(c)(2), I would reject the reasons it offers for preferring that construction over the one that comes

naturally from the statute and is dictated by the policy statement. On

this point, the majority provides three sets of justifications for its preferred interpretation, the first and third of which can be dismissed

with relatively little effort, and in the second of which lies what is,

perhaps, the majority’s most troubling assertion.

A.

The majority first contends that a "narrow" interpretation would

interfere with the Commission’s intended role in resolving circuit

conflicts over the guidelines, and thereby it would "shift[ ] responsibility for resolving [such] circuit conflicts" from the Commission to

10Although the phrasing of the Commission’s request for comments

might suggest that a clarifying amendment would be forthcoming, it certainly does not require that result. 

34 UNITED STATES v. GOINES
the Supreme Court. Ante at 10. I recognize that this circuit will not

currently consider as clarifying those amendments that "cannot be

reconciled with [our] circuit precedent" interpreting the old guideline.

United States v. Neilssen, 136 F.3d 965, 969 (4th Cir. 1998). I am

unconvinced, however, that employing the proper interpretation of

section 3582(c)(2) would necessarily, and significantly, increase the

Supreme Court’s burden in this regard. To the extent there is the

potential for such an increase, the courts of appeals, when constituted

en banc, can reduce that burden by correcting panel guideline interpretations shown to be in error by subsequent clarifying amendments.

More to the point, however, the majority’s argument here incorrectly assumes that the Commission already legitimately has the

power that the majority’s "broad" interpretation would, in fact, confer

upon that body. But the Commission cannot "lose the authority," ante

at 10, which it never properly had. I simply do not see any evidence

that Congress, in phrasing the exemption set forth in section

3582(c)(2), meant the "sentencing range" as applied by courts, and I

see every indication that Congress meant the "sentencing range" as

dictated by the language of Note 2 and the relevant commentary

directing its construction. Again, I do not believe the first meaning

even to be plausible. 

As its third set of justifications for a "broad" construction, the

majority concludes that its reading of section 3582(c)(2) would not

"have effects that Congress sought to avoid." Ante at 12. Of course,

whether or not "the disruption of finality engendered by a broad interpretation of § 3582(c)(2) is consistent with the legislative design,"

ante at 13, depends upon whether that interpretation is consistent with

the statute at all. I do not believe that it is, and I do not believe any

of the reasons given under this prong of analysis can justify the

majority’s interpretation of section 3582(c)(2). 

B.

As I suggested above, it is the majority’s second set of justifications — through which it argues that a "narrow" interpretation would

"undermine the remedial scheme created by the Sentencing Reform

Act," ante at 10 — that epitomizes its analytical error. On this point,

to recite the majority’s essential reasoning is to convince of its

UNITED STATES v. GOINES 35
untenability. The majority reasons as follows: A harm occurs that

should be remedied when a defendant is sentenced under an interpretation of the guidelines that is subsequently shown to be incorrect by

a retroactively applicable amendment. Yet the "prospects for appellate

relief are uncertain at best when the applicable guideline is ambiguous," and "§ 2255 provides virtually no remedy at all." Therefore, the

majority concludes, the "broad" interpretation of section 3582(c)(2)

best serves the purposes of the scheme established by the Sentencing

Reform Act. Ante at 10-12. 

In such fashion is "clarify" read to mean "lower." This is not statutory interpretation — this is open legislation. 

We should not resort to what are admittedly unadulterated policy

considerations to force a meaning onto a statute that it cannot reasonably support. It would be one thing if it were absurd to conclude that

Congress would allow the Commission to authorize sentence reductions for amendments that make substantive changes, but not for those

that only clarify the proper interpretation of the existing guideline.

But there is nothing at all odd about the idea that Congress intended

the "uncertain" avenue of direct appeal to be the primary means to

address what are, at base, only errors of interpretation, and where the

only effect of a clarifying amendment is to make a court’s error

clearer now than it was at sentencing. Section 3582(c)(2) is reserved

for when the Commission has made an actual change to the guideline

which lowers the guideline range applicable to a defendant, a special

case which justifies allowing the sentencing court — at its discretion

— to give the defendant the benefit of that retroactive change. 

IV.

In dissenting from the opinion of the majority, I do not assert any

error in its conclusion that allowing the Commission to make clarifying amendments retroactively applicable to correct erroneous guideline interpretations would be consistent with the general purposes of

the Sentencing Reform Act (though I do not necessarily agree, either).

Were other circuits to reach the conclusion I have here, I would not

be surprised if Congress actually granted the Commission such

power, although I suspect there are many who would be opposed. 

36 UNITED STATES v. GOINES
Rather, I believe, and would so hold, only that under the law as it

presently exists, the Commission cannot authorize, and a court cannot

grant, a section 3582(c)(2) sentence reduction based on an amendment which, like Amendment 599, did not reduce an applicable

guideline range, but, rather, only clarified the Commission’s interpretation of the applicable guideline range. 

Accordingly, I dissent.

UNITED STATES v. GOINES 37