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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12794
Non-Argument Calendar
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D.C. Docket No. 3:05-cr-00389-HES-JBT-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
CHRISTINA ELIZABETH COLON,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 6, 2013)
Before TJOFLAT, CARNES, and PRYOR, Circuit Judges.
CARNES, Circuit Judge:

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Since the Sentencing Commission issued Amendments 750 and 759

involving the retroactive reduction in the sentencing guidelines base offense level
for crack cocaine offenses, we have seen a bushel basket full of appeals from the
denial of relief based on those amendments in 18 U.S.C. 3582(c)(2) proceedings.
See, e.g., United States v. Liberse, 688 F.3d 1198, 1199 (11th Cir. 2012) (This is
the third decision we have issued in the past month concerning the application of
Amendments 750 and 759 to the sentencing guidelines and the scope of a district
court's authority to reduce a defendant's sentence under 18 U.S.C. 3582(c)(2).).
Only a few of those appeals have had merit. This is not one of those few, although
it does raise some issues of first impression.
I.
In 2006 Christina Colon pleaded guilty to distribution of crack cocaine, in
violation of 21 U.S.C. 841(a)(1) and (b)(1)(C) (Count 1), and possession of a
firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
924(c)(1) (Count 2). The presentence investigation report concluded that she was
responsible for 17.9 grams of crack cocaine, which made her base offense level 26.
See U.S.S.G. 2D1.1(c)(7) (Nov. 2005). She received a 3-level reduction for
acceptance of responsibility and timely notification of her intent to plead guilty,
resulting in a total offense level of 23. Colons criminal history category was I,
which resulted in a guidelines range for Count 1 of 46 to 57 months imprisonment.
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The district court varied downward and sentenced her to 36 months imprisonment
for Count 1. On Count 2, the court sentenced her to the mandatory minimum term
of five years imprisonment, which was required by statute to run consecutively to
the term of imprisonment imposed on Count 1. See 18 U.S.C. 924(c). The result
was a sentence of 96 months (36 + 60).
In 2008 Colon filed a motion under 18 U.S.C. 3582(c)(2) to reduce her
sentence on Count 1 based on Amendment 706, which reduced the base offense
levels for crack cocaine offenses. See U.S.S.G. Appx C (Nov. 2008) amend. 706.
The district court determined that she was eligible for a sentence reduction and
calculated an amended guidelines range of 37 to 46 months imprisonment for that
count. It also applied a downward variance comparable to the one that had been
applied at Colons original sentencing, resulting in a reduced sentence of 27
months imprisonment for Count 1 and a total sentence of 87 months (27 + 60).
After Congress passed the Fair Sentencing Act of 2010, the Sentencing
Commission issued Amendment 750, which again retroactively reduced the base
offense levels for crack cocaine offenses. See U.S.S.G. Appx C (Nov. 2011)
amends. 750, 759. The Commission also issued Amendment 759, which revised
U.S.S.G. 1B1.10, the policy statement governing motions for sentence reductions
under 18 U.S.C. 3582(c)(2). See U.S.S.G. Appx C (Nov. 2011) amend. 759.
Before Amendment 759, a district court had discretion to lower a defendants
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sentence below the amended guidelines range subject to some restrictions. See
U.S.S.G. 1B1.10(b)(2) (Nov. 2010). And the district court did that for Colon in
2008, when it granted her 3582(c)(2) motion and reduced her sentence on Count
1 to 27 months. Thereafter, Amendment 759 further restricted a district courts
discretion to make that kind of reduction. As a result, 1B1.10(b)(2) now
provides, in part, that the court shall not reduce the defendants term of
imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement to a term that
is less than the minimum of the amended guideline range, unless the original
sentence imposed had been below the applicable guidelines range because of a
reduction based upon the defendants substantial assistance to authorities.
U.S.S.G. 1B1.10(b)(2) (Nov. 2011).
In 2011 Colon filed a second 3582(c)(2) motion to reduce her sentence
based on Amendment 750. Under that amendment, Colons new guidelines range
for Count 1 would have been 30 to 37 months imprisonment. But because Colons
current sentence on that count was 27 months, which was below the amended
guidelines range, and because the original variance was not based on substantial
assistance, the district court concluded that Amendment 759 prevented the use of
Amendment 750 to reduce Colons sentence any further below the amended
guidelines range. U.S.S.G. 1B1.10(b)(2)(A) (Nov. 2011). On that basis, the
district court denied Colons 3582(c)(2) motion. This is her appeal.
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II.
We review de novo a district courts conclusions about the scope of its
legal authority under 3582(c)(2). United States v. James, 548 F.3d 983, 984
(11th Cir. 2008).

A.
Colon first contends that the district courts application of the postAmendment 759 version of U.S.S.G. 1B1.10(b)(2) to her case violated the Ex
Post Facto Clause. That clause prohibits the imposition of punishment more
severe than the punishment assigned by law when the act to be punished occurred.
Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965 (1981). Critical to relief
under the Ex Post Facto Clause is not an individuals right to less punishment, but
the lack of fair notice and governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime was consummated. Id.
The measuring point for purposes of the Ex Post Facto Clause is the time
that Colon committed her crimes, which was in 2005, long before Amendments
750 and 759 were issued in 2011. As a result, Amendment 759s restriction on the
district courts discretion to reduce Colons sentence based on Amendment 750 did
not increase the punishment assigned by law when the act to be punished
occurred. Weaver, 450 U.S. at 30, 101 S.Ct. at 965 (emphasis added). The net
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effect of Amendments 750 and 759 was not to increase her range of punishment
above what it was at the time she committed her crimes. Colons guidelines range
after those amendments was the same as it would have been without them. So long
as the effect of post-conduct amendments to the guidelines is not to increase a
defendants punishment beyond what it would have been without those
amendments, the imposition of punishment [is not] more severe than the
punishment assigned by law when the act to be punished occurred, id., and there
is no ex post facto problem.
B.
Colon also contends that the district court erred in applying the postAmendment 759 version of U.S.S.G 1B1.10(b)(2) to her case because the
Sentencing Commissions amendment of that policy statement exceeded its
authority under the Sentencing Reform Act, 28 U.S.C. 994. The Sentencing
Reform Act states that [i]f the Commission reduces the term of imprisonment
recommended in the guidelines applicable to a particular offense or category of
offenses, it shall specify in what circumstances and by what amount the sentences
of prisoners serving terms of imprisonment for the offense may be reduced. 28
U.S.C. 994(u).
Although we have not yet addressed this issue, the other two circuits that
have addressed it have held that the Sentencing Commission did not exceed its
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authority under 28 U.S.C. 994 in prohibiting reductions below a prisoners

amended guidelines range. See United States v. Berberena, 694 F.3d 514, 52023
(3rd Cir. 2012); United States v. Anderson, 686 F.3d 585, 58990 (8th Cir. 2012).
We agree. The Commission amended 1B1.10(b)(2), which is part of a policy
statement, to prohibit 3582(c)(2) reductions below a prisoners amended
guidelines range, unless the original sentence had been below the applicable
guidelines range because of a reduction based upon the defendants substantial
assistance to authorities. In doing that, the Commission indicated in what
circumstances and by what amount the sentences of prisoners may be reduced
based on retroactive amendments an action it was clearly authorized to take by
the plain language of 994(u) of the Sentencing Reform Act.
The Act not only gives the Commission authority to issue policy statements
governing sentence reductions, it actually requires the Commission to issue them.
Section 994(a) provides that the Commission must promulgate general policy
statements that address the appropriate use of . . . the sentence modification
provisions set forth in section[] . . . 3582(c) of title 18. 28 U.S.C. 994(a)(2)(C).
And the text of 18 U.S.C. 3582(c)(2) requires courts to abide by those policy
statements:
[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
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3553(a) to the extent that they are applicable, if such a reduction is

consistent with applicable policy statements issued by the Sentencing
Commission.
18 U.S.C. 3582(c)(2) (emphasis added); see also Dillon v. United States, 560
U.S. , 130 S.Ct. 2683, 2691 (2010) (interpreting 3582(c)(2) as requir[ing] the
court to follow the Commissions instructions in 1B1.10 to determine the
prisoners eligibility for a sentence modification and the extent of the reduction
authorized). To summarize, 994(u) requires the Commission to specify the
circumstances in which and the amounts by which sentences may be reduced based
on retroactive amendments; 994(a)(2)(C) requires that it do so in a policy
statement; and 3582(c)(2) requires courts to follow those policy statements. See
also Berberena, 694 F.3d at 523; United States v. Horn, 679 F.3d 397, 40102 (6th
Cir. 2012).
Colon argues that the Sentencing Reform Act does not allow the Sentencing
Commission to override a courts decision to vary downward at the original
sentencing proceeding. Maybe not, but 1B1.10(b) does not do that. It does not
override any earlier sentencing decisions the court has made. In the words of the
Supreme Court, in enacting 3582(c)(2) Congress intended to authorize only a
limited adjustment to an otherwise final sentence, to be done within the narrow
bounds established by the Commission. Dillon, 130 S.Ct. at 2691, 2694. And in
the words of the Third Circuit speaking about 1B1.10(b), Nowhere did
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Congress require that the Commission permit judges to fashion a reduction with
exactly the same tools departures and variances they originally used to set an
appropriate sentence. Berberena, 694 F.3d at 521. Instead of overriding the
effect of the sentencing courts original departures and variances, the Commission
has merely limited the extent to which new ones can be awarded in 3582(c)(2)
proceedings. Id. The 1B1.10(b) policy statement neither required nor permitted
the district court in this case to undo any departure or variance decision it had
made when it originally sentenced Colon. The Commission did not exceed its
statutory authority under 28 U.S.C. 994 when it amended 1B1.10(b)(2) to limit,
as it did, a courts discretion to lower a sentence below the amended guidelines
range.
C.
Colon next contends that the district court erred in applying the postAmendment 759 version of U.S.S.G. 1B1.10(b)(2) to her case because the
Sentencing Commissions amendment of that section violates the separation of
powers doctrine by overriding a sentencing courts original decision to reduce the
sentence by varying downward. As we have just explained, the minor premise in
that syllogism is wrong nothing in 1B1.10(b)(2) requires a court to undo its
original sentencing determinations. Instead, that provision limits the courts
discretion to apply Amendment 750 in a 3582(c)(2) proceeding in order to reduce
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Colons otherwise final sentence. Congress authorized the Commission to impose

limitations like that, and doing so does not violate any separation of powers
principle. Cf. Mistretta v. United States, 488 U.S. 361, 364, 109 S.Ct. 647, 651
(1989) ([T]he scope of judicial discretion with respect to a sentence is subject to
congressional control.).
Colon also contends that the Sentencing Commission violated the separation
of powers doctrine by failing to comply with 28 U.S.C. 994(p)s report-and-wait
procedure and thereby issuing legislative rules without Congressional approval and
oversight. 1 Under 28 U.S.C. 994(p), when the Commission seeks to amend a
guideline, it must submit the proposed amendment to Congress, along with reasons
explaining the amendment, and give Congress 180 days to modify or disapprove
the amendment. See 28 U.S.C. 994(p). If Congress fails to act, the proposed
amendment takes effect. Id. That report-and-wait procedure, however, applies
only to guidelines and not to policy statements. Id. Section 1B1.10(b)(2) is not a
guideline but a policy statement.
Even if the Sentencing Commissions policy statements were subject to the
180-day waiting period, we agree with the Third and Eighth Circuits that the
Commissions revision of 1B1.10(b)(2) did not violate the separation of powers
1

Because Colon failed to raise this argument before the district court, we review only for
plain error. United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). To prove plain error,
Colon must show: (1) error, (2) that is plain and (3) that affects substantial rights. Id. at 1276.
The standard of review does not affect the outcome of this case, though, because Colon cannot
show error, much less plain error.
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doctrine. The purpose of the 180-day waiting period is to make the Commission
accountable, and that purpose was fulfilled. See Berberena, 694 F.3d at 525.
Congress can override any guideline or policy statement by statute. Id.; see also
Anderson, 686 F.3d at 591. The Commission, then, remains fully accountable to
Congress when it issues binding policy statements like 1B1.10. Berberena, 694
F.3d at 525. The Commission also solicited public comments about
1B1.10(b)(2)s limitation on sentence reductions, and held a public hearing about
the amendment. See 76 Fed. Reg. 24960 (May 3, 2011); U.S. Sentencing
Commn, Public Meeting Minutes (June 30, 2011).2 We agree with the Third and
Eighth Circuits that the Commission did not violate the separation of powers
doctrine in amending 1B1.10.
D.
Finally, Colon contends that U.S.S.G. 1B1.10, as amended, is invalid
because the Sentencing Commission did not comply with the notice and comment
requirements of the Administrative Procedure Act when it amended that policy
statement.

The minutes of the Commissions June 30, 2011 meeting are available at
http://www.ussc.gov/Legislative_and_Public_Affairs/Public_Hearings_and_Meetings/20110630/
Meeting_Minutes.pdf (last visited Jan 22, 2013). In keeping with Eleventh Circuit Internal
Operating Procedure 10, Citation to Internet Materials in an Opinion, under Federal Rule of
Appellate Procedure 36, a copy of the internet materials cited in this footnote is available at this
Courts Clerks Office.
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The Sentencing Reform Act distinguishes guidelines, which are intended for
use in determining the sentence to be imposed in a criminal case, from general
policy statements regarding application of the guidelines or any other aspect of
sentencing or sentence implementation that in view of the Sentencing Commission
would further the purposes set out in 18 U.S.C. 3553(a)(2). See 28 U.S.C.
994(a)(1), (2). Congress has made proposed guidelines, but not changes in policy
statements, subject to the APAs notice and comment provisions. See id. 994(x)
(The provisions of section 553 of title 5, relating to publication in the Federal
Register and public hearing procedure, shall apply to the promulgation of
guidelines pursuant to this section.) (emphasis added). Because 994(x) makes
no reference to policy statements, and in that respect is different from surrounding
provisions, see 994(t) and (v), three circuits have concluded that the
Commissions policy statements, specifically including 1B1.10, are not subject to
the APAs notice and comment provisions. See Berberena, 694 F.3d at 52627
(The statutory scheme established by the [Sentencing Reform Act] makes clear
that the Commission is only subject to the APAs notice-and-comment provisions
when promulgating Guidelines.); Anderson, 686 F.3d at 590 (noting that policy
statements, unlike guidelines, are not subject to . . . the notice and comment
requirements of the Administrative Procedure Act . . . .); United States v. Fox,
631 F.3d 1128, 1131 (9th Cir. 2011) (noting that [t]he Sentencing Commission
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must jump through more procedural hoops to issue a Guideline than to issue a
Policy Statement, citing 28 U.S.C. 994(x)). We agree with those circuits that
the Commissions amendment to 1B1.10 was not subject to the APAs notice and
comment requirements.
Colon argues that the policy statement in 1B1.10 should be subject to the
notice and comment requirements because it is binding. She cites the general
administrative law principle that agencies may not avoid the notice and comment
procedures Congress has mandated by disguising rules as statements of policy.
That principle has no applicability here because it was Congressnot the
Commissionthat made 1B1.10 binding on courts by providing that a sentence
may be reduced in a 3582(c)(2) proceeding only where doing so is consistent
with the Commissions policy statements.
For all of these reasons, the district court did not err in denying Colons
3582(c)(2) motion.
AFFIRMED.

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