                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                      No. 15-2997
                                     ____________

                           UNITED STATES OF AMERICA

                                           v.

                                MICHAEL R. SCALIA,
                                               Appellant
                                   ____________

                      On Appeal from United States District Court
                               for the District of Delaware
                           (D. Del. No. 1-09-cr-00101-001)
                      District Judge: Honorable Leonard P. Stark
                                      ____________

                              Argued April 5, 2016
              Before: FISHER, RENDELL and BARRY, Circuit Judges.

                                 (Filed: June 24, 2016)

Edson A. Bostic, Federal Public Defender for the District of Delaware
Daniel I. Siegel, Esq.     [ARGUED]
Office of Federal Public Defender
800 King Street, Suite 200
Wilmington, DE 19801

Charles M. Oberly, III, United States Attorney
Shawn A. Weede, Esq.        [ARGUED]
Office of United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899
                                       ____________

                                         OPINION
                                       ____________

FISHER, Circuit Judge.

       Michael R. Scalia filed a motion to reduce his sentence pursuant to Amendment

782 of the United States Sentencing Guidelines. His motion was denied. He asserts this

denial was a violation of the Ex Post Facto Clause. We will affirm.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       Scalia was sentenced to 108 months’ imprisonment in 2011 for a drug conspiracy

that took place in the District of Delaware in 2009. His sentence was a downward

variance from a Guidelines range set by the 2009 Guidelines. After he was sentenced, in

2011, the United States Sentencing Commission promulgated Amendment 759 to the

Guidelines. That amendment, in pertinent part, amended § 1B1.10, as well as the policy

statement that had been in effect at the time of Scalia’s offense.1 It changed the previous


       
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       1
         See U.S.S.G. app. C, amend. 759 (2011). The original policy statement will be
referred to as the “2009 policy statement” as it was in effect at the time of Scalia’s
offense. See Peugh v. United States, 133 S. Ct. 2072, 2087 (2013) (defendant must be
sentenced under the Guidelines in effect at the time he committed his offense). The new
policy statement will be referred to as the “2011 policy statement.”

                                              2
policy statement (“2009 policy statement”) that allowed the district court discretion to

reduce a sentence below an amended Guidelines range.2 That discretion was removed and

the new policy statement (“2011 policy statement”) prohibits a reduction in sentence

below the amended Guidelines range.3

       After the 2011 policy statement was implemented, the Sentencing Commission

amended the Guidelines’ drug quantity table through Amendment 782, resulting in a two-

level reduction. This amendment was made retroactive subject to certain exceptions.

Based on this amendment, Scalia filed a motion for reduction of sentence pursuant to 18

U.S.C. § 3582(c)(2). His motion was denied under the 2011 policy statement, effective at

the time of his motion, because Scalia’s amended guideline range was 108 to 135

months’ imprisonment allowing him to receive a sentence of no less than 108 months’

imprisonment—his current sentence due to the 2011 policy statement. Scalia timely

appealed, arguing that the 2009 policy statement should have applied and that not

applying it was an Ex Post Facto violation.

       Because we find that there was not an Ex Post Facto violation, we will affirm the

District Court’s denial of Scalia’s motion for reduction of sentence.


       2
          The 2009 policy statement (§ 1B1.10(b)(2)(A), comment note 3) stated that: “[i]f
the original term of imprisonment imposed was less than the term of imprisonment
provided by the guideline range applicable to the defendant at the time of sentencing, a
reduction comparably less than the amended guideline range determined under subsection
(b)(1) may be appropriate.”
        3
          Section 1B1.10(b)(2)(A) states: “[T]he court shall not reduce the defendant’s
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.”

                                              3
                                            II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise

appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over questions

of law.4

                                            III.

       Scalia’s main contention is that the application of the 2011 policy statement is

similar to a commutation statute amendment that eliminates the possibility of reducing a

defendant’s time spent in jail. Scalia makes this claim in an attempt to avoid the current

trend of case law that is unfavorable to his position and our finding in United States v.

Berberena, 694 F.3d 514 (3d Cir. 2012), where we held that policy statements,

specifically § 1B1.10’s policy statements, are binding pursuant to § 3582(c)(2), 694 F.3d

at 523. To avoid this trend and Berberena, Scalia focuses on his commutation argument

as well as Weaver v. Graham, 450 U.S. 24 (1981), wherein the Supreme Court found that

a change in the computation of good time was an Ex Post Facto violation because it

constricted a defendant’s opportunity for early release.

       Based on the analysis that follows, we find Scalia’s arguments unavailing.

                                            A.

       Scalia is correct in asserting that other courts have not considered his novel

commutation argument. He cites similarities between commutation and the 2009 policy


       4
         United States v. Siddons, 660 F.3d 699, 703–04 (3d Cir. 2011) (plenary review
applies to a district court’s legal interpretation and application of the Guidelines).

                                             4
statement that he argues warrants application of the Ex Post Facto Clause. Each allows

for discretion on behalf of the decision maker; each requires that the underlying criminal

judgment remain unchanged; and each has the potential to decrease a defendant’s time in

jail. Scalia asserts that these similarities require us to review the § 1B1.10 change under

the same analysis we applied in Pennsylvania Prison Society v. Cortes, 622 F.3d 215 (3d

Cir. 2010). His argument, however, fails.

       The Ex Post Facto Clause of the Constitution, U.S. Const. art. I §§ 9 and 10,

requires that “legislative Acts give fair warning of their effect and permit individuals to

rely on their meaning until explicitly changed.”5 To fall within the Ex Post Facto

prohibition, “two critical elements must be present . . . it must be retrospective, that is, it

must apply to events occurring before its enactment, and it must disadvantage the

offender affected by it.”6 The second element is not met here.

       The Ex Post Facto analysis set forth in Cortes arose from the review of a

constitutional amendment regarding the voting procedures employed by the Pennsylvania

Board of Pardons.7 Under the amendment, a pardon or commutation committee

reviewing a prisoner sentenced to life imprisonment was required to unanimously vote

for a favorable outcome, supplanting the old rule that required only a majority vote. The

defendant in that case, a prisoner serving a life sentence, argued that the new requirement

violated the Ex Post Facto Clause because the change was implemented after he had

       5
         Weaver, 450 U.S. at 28–29.
       6
         Id. at 29.
       7
         Cortes, 622 F.3d at 219–20.

                                              5
committed his offense and would increase his sentence because he was less likely to be

pardoned or have his sentence commuted.

       We found that the amendment and other laws “that alter procedures for obtaining

commutation, but do not eliminate the possibility of commutation, are procedural and

thus not ex post facto laws.”8 This was fleshed out in a two-part litmus test. A court may

find that a change is procedural if: (1) it does not increase the punishment, or (2) it does

not change the elements of the offense for which the defendant was convicted. Under this

test, we found that because of the discretionary nature of commutation, the new

commutation law did not violate the Ex Post Facto Clause because there was no

significant risk that the defendant would be denied something he would have received.9

There was no guarantee that the defendant would have his sentence commuted under the

prior law, and thus the change did not increase the defendant’s punishment.

       Despite Scalia’s best efforts, Cortes does not help him. To the contrary, Cortes

supports affirmance. Here, the possibility of a reduction in sentence is not entirely

foreclosed, and Scalia is still eligible for a reduction in his sentence. The procedures,

however, limit the depth of such a reduction. Even under the Cortes test, the § 1B1.10

policy statement change is procedural. Like commutation, a reduction of a sentence is not

guaranteed. Even if Scalia were eligible for a further reduction below his current

sentence, the District Court could deny such a motion. With this discretion is the fact that


       8
           Id. at 234.
       9
           Id. at 246.

                                             6
Scalia’s punishment will not increase because of the change, as a § 3582(c)(2)

determination does not change the underlying sentence or conviction.10 Accordingly,

Scalia’s novel argument does not afford relief through the Ex Post Facto Clause.

                                           B.

      Scalia also directs us to apply the Supreme Court’s analysis in Weaver to the 2011

policy statement change. We find that case distinguishable.

      After oral argument but prior to our decision in this case, we issued a precedential

opinion, United States v. Thompson, -- F.3d --, 2016 WL 3163078 at *5–6 (3d Cir. June

7, 2016), addressing Amendment 759, Amendment 782, and the applicability of Weaver.

In Weaver, the Supreme Court found an Ex Post Facto violation had occurred when the

Florida legislature limited the way that a defendant could reduce his sentence through

good behavior while incarcerated, i.e. “good time” credit.11 We found Weaver

distinguishable because “rendering [an] Appellant[ ] ineligible for the sentence reduction

associated with Amendment 782 does not lengthen the period of time [he] will spend

incarcerated—it merely denies [him] the benefit of a discretionary reduction of that

period of time.”12 Under Thompson, we find Scalia’s Weaver argument to be meritless.13


      10
          Berberena, 694 F.3d at 522 (“[S]entence reduction proceedings pursuant to
§ 3582(c)(2) are not wholesale resentencings.”).
      11
         Weaver, 450 U.S. at 24.
      12
         Thompson, 2016 WL 3163078 at *6.
      13
          This comports with every other Court of Appeals that has considered the §
1b1.10 argument Scalia has raised here. United States v. Diggs, 768 F.3d 643, 645–46
(7th Cir. 2014); United States v. Waters, 771 F.3d 679, 680-81 (9th Cir. 2014) (per
curiam); United States v. Colon, 707 F.3d 1255, 1258–59 (11th Cir. 2013).

                                            7
                                     IV.

For the reasons set forth above, we will affirm the order of the District Court.




                                      8
