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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 15-10532
_________________________
D.C. Docket No: 8:07-cr-00454-JSM-TGW-11

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

MICHAEL PAUL MAIELLO, JR.,

a.k.a. M.P.,
Defendant-Appellant.
_____________________
Appeal from the United States District Court
for the Middle District Of Florida
_______________________
(August 19, 2015)
Before MARTIN and ROSENBAUM, Circuit Judges, and PROCTOR, * District
Judge.

* Honorable R. David Proctor, United States District Judge for the Northern District of Alabama,
sitting by designation.

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PROCTOR, District Judge:

On April 10, 2014, the United States Sentencing Commission voted
unanimously to amend the U.S. Sentencing Guidelines (USSG) to lower the base
offense levels (found in the Drug Quantity Table in USSG 2D1.1) by two levels
across all drug types. The vehicle for this change was Amendment 782, which
went into effect on November 1, 2014. A difficult issue that the Commission
confronted in adopting Amendment 782 was whether it should be applied to
eligible incarcerated offenders on a prospective basis only. Instead, the
Commission opted to apply Amendment 782 retroactively, with one important
exception: eligible offenders who are currently incarcerated are not eligible for
release before November 1, 2015. This one-year delay, promulgated at USSG
1B1.10(e), is very significant for certain prisoners. There are a number of offenders
who, if given the benefit of the two level guideline reduction (without the section
1B1.10(e) delay), would otherwise be eligible for quicker relief (and, in some
cases, immediate release). But these prisoners are now required to wait until
November 2015 to be released from custody. Michael Paul Maiello, Jr. is one of
those prisoners. He challenges the district courts decision to apply the one year
delay contemplated by section 1B1.10(e) to his motion for a sentence reduction.
This case presents a straightforward question: Did the district court err when
it applied section 1B1.10(e) to the motion for sentence reduction under 18 U.S.C.
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3582(c)(2) and Amendment 782 filed by Maiello? After careful review, and with
the benefit of oral argument, we hold that it did not. Therefore, we affirm the
district courts ruling.
I. BACKGROUND
After voting to amend the sentencing guidelines to reduce the base offense
levels for most drug offenses (Amendment 782), the Commission asked for public
comment on the question of retroactivity and it received more than 60,000 letters
in response. That correspondence came from members of Congress, the judiciary,
advocacy groups, inmates, as well as other groups and individuals. The
Commission also held a public hearing and heard from representatives of the
judicial and executive branches, the defense bar, law enforcement, and certain
advocacy groups.
A major concern expressed at the public hearing was the impact retroactivity
would have on public safety, particularly given the burdens retroactivity would
place on the criminal justice system and the risks posed by the predicted early
release of thousands of drug offenders.1 Some law enforcement groups opposed
retroactivity altogether, noting (among other things) concerns that early release of
drug offenders would have a deleterious effect on public safety and crime rates.
The Criminal Law Committee of the Judicial Conference expressed concerns about
1

The hearing transcript is available at http://www.ussc.gov/sites/default/files/pdf/amendmentprocess/public-hearings-and-meetings/20140610/transcript.pdf.

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the burdens that retroactive application of Amendment 782 would impose on an

already strained probation and pretrial services system. The Director of the Bureau
of Prisons detailed the laborious task of recalculating the new projected release
dates, formulating release plans, and arranging for residential reentry center
custody or home confinement as inmates prepared to reenter society.
A compromise was reached and Amendment 788 was passed, making
Amendment 782 retroactive, albeit with a delayed effective date. USSG App. C,
Amend. 788 (2014). Amendment 782 became effective immediately for
defendants sentenced on or after November 1, 2014. But for defendants who were
sentenced prior to the effective date, the Sentencing Commission promulgated
section 1B1.10(e), which prohibits any order granting relief under Amendment 782
from taking effect prior to November 1, 2015. That is, section 1B1.10(e) prohibits
district courts from reducing a term of imprisonment based on Amendment 782
unless the effective date of the courts order is November 1, 2015, or later. USSG
1B1.10(e).
The Commission determined that under this framework, the administrative
burdens of applying Amendment 782 retroactively, although significant, would be
manageable given the one-year delay in the effective date, which allows courts
and agencies more time to prepare. USSG App. C, Amend. 788 at 87 (Reason for

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Amendment). The Commission also stated that such a delay was needed for
additional reasons:
(1) to give courts adequate time to obtain and review the information
necessary to make an individualized determination in each case of
whether a sentence reduction is appropriate,
(2) to ensure that, to the extent practicable, all offenders who are to be
released have the opportunity to participate in reentry programs and
transitional services, such as placement in halfway houses, while still
in the custody of the Bureau of Prisons, which increases their
likelihood of successful reentry to society and thereby promotes
public safety, and
(3) to permit those agencies that will be responsible for offenders after
their release to prepare for the increased responsibility.
Id. at 88.
II. SUMMARY OF RELEVANT FACTS
Maiello is a prisoner who was sentenced before November 1, 2014. In 2008,
he pled guilty to a single count of conspiracy to possess with intent to distribute,
and to distribute 1000 kilograms or more of marijuana and 5 kilograms or more of
cocaine. Maiello is currently serving a 108 month sentence. Based upon that
sentence, his release date is February 5, 2016.
On February 3, 2015, Maiello moved for a reduction of his sentence
pursuant to section 3582(c)(2) and Amendment 782. Maiello requested that the
reduction be granted without application of USSG 1B1.10(e). The district court
granted Maiellos motion in part. The court reduced Maiellos sentence from 108
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months to 80 months or time served, whichever is greater; however, the court

declined to suspend the application of section 1B1.10(e), such that Maiellos
projected early release date is now November 2, 2015. 2 If given a 28-month
sentence reduction, and had the one year delay not been applied, Maiello would
have been eligible for immediate release. On appeal, he argues that the district
courts application of section 1B1.10(e) was in error and that he should have been
immediately released from prison based on time served.
III. STANDARD OF REVIEW
We review de novo a district courts legal conclusions about the scope of its
legal authority under 18 U.S.C. 3582(c). United States v. Colon, 707 F.3d 1255,
1258 (11th Cir. 2013) (citing United States v. James, 548 F.3d 983, 984 (11th Cir.
2008) (per curiam)); United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008)
(citing United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002) (per curiam)).
IV. DISCUSSION
Maiello argues that the district court, in granting his motion under 18 U.S.C.
3582(c)(2), erred in applying the effective-date limitation. In support of this
argument, Maiello asserts that: (1) the district court violated 18 U.S.C. 3582(a)
by declining to suspend the application of section 1B1.10(e); (2) the Sentencing
Commission exceeded its statutory authority in passing section 1B1.10(e); (3) the
2

Maiello is due to be released on November 2, 2015 because November 1, 2015 falls on a

Sunday.
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Sentencing Commissions selection of November 1, 2015 as the earliest possible

Amendment 782 release date is arbitrary and capricious; and (4) section 1B1.10(e)
violates the constitutional principle of separation of powers. The court addresses
each of these arguments, in turn.
A.

The District Court Did Not Violate 18 U.S.C. 3582(a)

Maiello contends that, by applying section 1B1.10(e), the district court in

effect lengthened or imposed a greater sentence on him (as measured by the
difference in time between the date his motion for a sentence reduction was
granted in part and November 2, 2015). He further argues that the district court
committed error because this delayed effective date was enacted because of
rehabilitative concerns in violation of Tapia v. United States, 131 S. Ct. 2382
(2011). Both of Maiellos assertions are off the mark.
1.

There Was No Imposition or Lengthening of Maiellos

Sentence

The Sentencing Commission explained its reasons for delaying the effective
date of Amendment 782 until November 1, 2015. In doing so, the Commission
stated in part that retroactivity was intended:
to ensure that, to the extent practicable, all offenders who are to be
released have the opportunity to participate in reentry programs and
transitional services, such as placement in halfway houses, while still
in the custody of the Bureau of Prisons, which increases their
likelihood of successful reentry to society and thereby promotes
public safety.

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USSG App. C, Amend. 788 (2014).

In Tapia v. United States, 3 the Supreme Court held that, under section
3582(a), a sentencing court may not impose or lengthen a prison sentence to
enable an offender to complete a treatment program or otherwise to promote
rehabilitation. 131 S. Ct. at 2393 (emphasis added). We conclude that Maiellos
reliance on section 3582(a) is misplaced as that code section has a materially
different purpose than section 3582(c) which applies here.
Tapia and section 3582(a) address the factors courts may properly consider
when imposing a term of imprisonment. However, neither Tapia nor section
3582(a) in any way limit the factors that the Sentencing Commission may consider
in determining in what circumstances and by what amount prisoners already
serving a term of imprisonment may benefit from a retroactive application of a
guideline amendment. Section 3582(a) guides courts in the initial imposition of a
sentence. But section 3582(c) has a different purpose it authorizes a court, in
limited circumstances, to modify a term of imprisonment already imposed. [A]
district court proceeding under [section] 3582(c)(2) does not impose a new
sentence in the usual sense. Dillon v. United States, 560 U.S. 817, 827,130 S. Ct.
2683, 2691 (2010) (emphasis added). [T]he sentence-modification proceedings

Tapia involved an appeal of a sentence initially imposed upon conviction. Tapia, 131 S. Ct. at
2393. Our court has also held that Tapia applies to sentences imposed upon revocation of
supervised release. United States v. Vandergrift, 754 F.3d 1303, 1309 (11th Cir. 2014).
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authorized by 3582(c)(2) are readily distinguishable from other sentencing

proceedings. Id. at 830, 130 S. Ct. at 2693. As the Supreme Court has further
explained:
A federal court generally may not modify a term of imprisonment
once it has been imposed. 18 U.S.C. 3582(c). Congress has
provided an exception to that rule in the case of a defendant who has
been sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing Commission.
3582(c)(2). In those circumstances, 3582(c)(2) authorizes a court
to reduce the term of imprisonment if such a reduction is consistent
with applicable Commission policy statements.
Id. at 819, 130 S. Ct. at 2687. [Section] 3582(c)(2) does not authorize a
resentencing. Instead, it permits a sentence reduction within the narrow bounds
established by the Commission. Id. at 831, 130 S. Ct. at 2694 (emphasis added).
A motion pursuant to 18 U.S.C. 3582(c)(2) can only reduce the term of
imprisonment. 18 U.S.C. 3582(c)(2) (emphasis added). Therefore, Tapia is
simply inapplicable here because there has been no imposition or lengthening of
a sentence; indeed, there has only been a reduction of a sentence under section
3582(c)(2).4

For these same reasons, we conclude that our Vandergrift decision is equally inapplicable.
While Tapia involved an original sentence which the district court indicated it was lengthening to
allow the defendant to complete a 500-hour drug treatment program while incarcerated, 131 S.
Ct. at 2385, Vandergrift dealt with a sentence imposed at a revocation hearing, 754 F.3d at 1306.
In both situations, the sentencing court was called upon to impose a sentence after considering
the relevant factors contained in 18 U.S.C. 3582(a). As we have already noted, however, any
reliance upon section 3582(a) in this case is misplaced. It is section 3582(c) that controls here.
Thus, Maiellos citation to Vandergrift is inapposite.
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Section 1B1.10(e) is Binding on the Courts

To the extent Maiello contends that the district court should have ignored
section 1B1.10(e), he is simply wrong. As this court has previously explained,
[section] 994(u) requires the Commission to specify the circumstances in which
and the amounts by which sentences may be reduced based on retroactive
amendments; [section] 994(a)(2)(C) requires that it do so in a policy statement; and
[section] 3582(c)(2) requires courts to follow those policy statements. Colon, 707
F.3d at 125960. In a section 3582(c)(2) proceeding, the Commissions policy
statements are binding, and courts lack authority to disregard them. See Dillon, 560
U.S. at 82528, 130 S. Ct. at 269092; Colon, 707 F.3d at 125960. Therefore, the
district court was not free, as Maiello argues, simply to disregard the binding
policy statement in section 1B1.10(e).
B.

The Adoption of Section 1B1.10(e) Did Not Violate the

Administrative Procedure Act

Section 1B1.10(e) specifies that [t]he court shall not order a reduced term
of imprisonment based on Amendment 782 unless the effective date of the courts
order is November 1, 2015, or later. Maiello argues that the Commissions
selection of November 1, 2015 as the earliest possible release date was arbitrary
and capricious, and thus violates the Administrative Procedure Act (APA). The
government responds in two parts: it contends that (1) the APA does not apply to

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the Commissions actions here; but, even if it did, (2) the Commissions actions
here were not arbitrary or capricious. We agree on both scores.
The Third, Eighth, Ninth, and D.C. Circuits have all held that the
Commission is not an agency subject to the requirements of the APA. United
States v. Tercero, 734 F.3d 979, 984 (9th Cir. 2013); United States v. Wayne, 516
F. Appx. 135, 138 (3d Cir. 2013) (unpublished opinion); United States v. Johnson,
703 F.3d 464, 468 (8th Cir. 2013); United States v. Berberena, 694 F.3d 514, 515
(3d Cir. 2012); Wash. Legal Found. v. U.S. Sentencing Commn, 17 F.3d 1446,
1450 (D.C. Cir. 1994) (Congress decided that the Sentencing Commission would
not be an agency under the APA when it established the Commission as an
independent entity in the judicial branch.). We agree with our sister circuits and
hold that the Sentencing Commissions decisions in this area are not subject to
APA review.
Our holding is consistent with our previous decisions, particularly our prior
treatment of APA challenges to the Commissions policy statements. As we have
previously held, the Commissions amendment to [section] 1B1.10 was not
subject to the APAs notice and comment requirements. Colon, 707 F.3d at 1262.
This is so because Congress made proposed guidelines, but not changes in policy
statements, subject to the APAs notice and comment provisions. Id. at 1261
(quoting 28 U.S.C. 994(x)) (The provisions of section 553 of title 5, relating to
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publication in the Federal Register and public hearing procedure, shall apply to the
promulgation of guidelines pursuant to this section.) (emphasis added).
Finally, even if section 1B1.10(e) were the subject of review under the APA
(and, to be clear, we hold that it is not), it would easily pass muster. The
Commission considered various factors in deciding to apply Amendment 782
retroactively, including the purpose of the amendment, the magnitude of the
change in the guidelines range, and the difficulty of applying the amendment
retroactively. Section 1B1.10, comment. After it conducted the public hearing
regarding retroactivity, the Commission chose to address the concerns about the
burden that retroactive application would place on the criminal justice system, as
well as the public safety concerns posed by this diversion of resources and the
early release of tens of thousands of drug offenders.
In deciding to make Amendment 782 retroactive, the Commission explained
that the one-year delay would, among other things, allow courts sufficient time to
evaluate the motions individually, allow the early-release offenders to receive the
same transitional services that other federal inmates receive before their release,
and allow the probation office adequate time to marshal resources to effectively
supervise the thousands of newly released offenders. USSG App. C, Amend. 788
at 8788 (Reason for Amendment). The Commissions provision of a one-year
delay in implementing Amendment 782 is reasonable and practical. It is neither
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arbitrary nor capricious. Maiellos argument that the record is devoid of any
evidence whatsoever as to why the Commission chose November 1, 2015, as the
delayed-release date (Appellants Brief at 1819) is simply without merit. In light
of the testimony from certain groups which opposed retroactivity altogether, the
decision to delay effectiveness for a one year period was eminently reasonable.
C.

The Limitation on Retroactive Application of Amendment 782

Imposed by Section 1B1.10(e) Does Not Violate the Separation of
Powers Principle

Maiello argues that section 1B1.10(e) violates the separation of powers

principle by limiting a district courts discretion to decide when a judicial order
may take effect. But his argument cuts no ice at all.
First, we rejected a similar separation of powers challenge to an earlier
version of section 1B1.10 in Colon, 707 F.3d at 126061. In that case, Colon
argued that, by amending section 1B1.10 to prohibit courts from reducing a
defendants sentence below the applicable amended guidelines range except in
cases involving substantial assistance, the Sentencing Commission had exceeded
its authority under section 994 and had violated the separation of powers doctrine
by overriding sentencing courts decisions to vary downward. Id. at 1260. We held
that Congress authorized the Commission to impose limitations like that, and
doing so does not violate any separation of powers principle. Id. Here, too, the

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limitation placed on the effective date of an order granting section 3582(c)(2) relief
does not violate any separation of powers principle.
Moreover, it is folly to suppose that courts have unfettered authority to
reduce a sentence merely because of a subsequent Guidelines amendment. Rather,
a court may only modify a sentence (once it is final) when limited exceptions
apply. 18 U.S.C. 3582(c). That is, courts only have the authority to reduce a
sentence which is part of a final judgment because Congress placed that authority
in the hands of the judiciary in the first place. And when Congress so acts, it
certainly may legislate that a permissible reduction shall be subject to the
Commissions policy statements. 18 U.S.C. 3582(c)(2). Indeed, Congress has
expressly delegated to the Commission the power to specify in what
circumstances and by what amount the sentences of prisoners serving terms of
imprisonment ... may be reduced. 28 U.S.C. 994(u). The Commissions exercise
of this authority in no way encroaches on judicial power. The courts still maintain
the power that Congress legislated to them in the first instance. Cf. BostonBollers
v. I.N.S., 106 F.3d 352, 355 (11th Cir. 1997) (per curiam) (provision of
Antiterrorism and Effective Death Penalty Act that eliminated judicial review of
final orders of deportation for certain criminals did not violate the separation of
powers principle because the courts have jurisdiction to review certain final

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orders of deportation ... only because Congress has conferred it.) (quoting
Duldulao v. I.N.S., 90 F.3d 396, 399400 (9th Cir. 1996)).
Nor can there be any doubt that it is Congress (not some other authority)
which grants to the courts the power to reduce a term of imprisonment. The
Supreme Court has noted that the sentence-modification proceedings authorized
by 3582(c) are not constitutionally compelled, but instead represent a
congressional act of lenity intended to give prisoners the benefit of later enacted
adjustments to the judgments reflected in the Guidelines. Dillon, 560 U.S. at 828,
130 S. Ct. at 2692. In sum, the scope of judicial discretion with respect to a
sentence is subject to congressional control. Mistretta v. United States, 488 U.S.
361, 364 (1989). In promulgating section 1B1.10(e)s delayed effective date
provision, the Commission was acting in a manner consistent with its
congressionally authorized delegation. Therefore, the Commission did not exceed
its authority under section 994, and section 1B1.10(e) does not encroach on the
judiciarys Article III powers. See Colon, 707 F.3d at 1260.
V. CONCLUSION
For all of these reasons, we conclude that the district court did not err in
applying section 1B1.10(e) to its order granting Maiellos section 3582(c)(2)
motion. The district courts order applying section 1B1.10(e) to Maiellos request
for sentence reduction is
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AFFIRMED.

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