               United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-1396
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                    Eric D. Harris

                    lllllllllllllllllllll Defendant - Appellant
                                    ____________

                   Appeal from United States District Court
             for the Eastern District of Missouri - Cape Girardeau
                                ____________

                             Submitted: June 15, 2012
                              Filed: August 23, 2012

                                   ____________

Before SMITH, BEAM, and SHEPHERD, Circuit Judges.
                           ____________


SMITH, Circuit Judge.
       The district court1 sentenced Eric D. Harris to 110 months' imprisonment for
distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Subsequently,
Harris filed a motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2).
The district court denied the motion. Harris appeals, arguing that the district court
erred in finding that it lacked authority to reduce his sentence. We affirm.

                                   I. Background
       On March 16, 2009, Harris distributed cocaine base to a confidential informant
(CI). The CI gave Harris $350, and in exchange for the money, Harris gave the CI 3.3
grams of cocaine base. Harris also distributed heroin to the CI. Harris was charged
with distributing cocaine base ("Count I") and distributing heroin ("Count II"), in
violation of 21 U.S.C. § 841(a)(1). Pursuant to a plea agreement, Harris pleaded
guilty to Count I of the indictment, and the government dismissed Count II.

       Pursuant to U.S.S.G. § 2D1.1(c), the presentence investigation report (PSR)
calculated a base-offense level of 20 because Harris's offense involved a quantity of
cocaine base and heroin equivalent to 68.55 kilograms of marijuana. Because Harris
had two prior convictions in 1997 and 2000 for second-degree robbery, the PSR
categorized Harris as a career offender under U.S.S.G. § 4B1.1. The applicable
offense level listed in the career-offender table in § 4B1.1 was higher than that listed
in the drug-quantity table in § 2D1.1; as a result, the PSR applied an offense level of
32, the level listed in the career-offender table. See U.S.S.G. § 4B1.1(b)(C). After
subtracting three levels for acceptance of responsibility, the PSR calculated a total
offense level of 29 and a criminal history category of VI,2 which produced a
Guidelines range of 151 to 188 months' imprisonment.


      1
       The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
      2
      "A career offender's criminal history category in every case . . . shall be
Category VI." U.S.S.G. § 4B1.1(b).

                                          -2-
      The district court sentenced Harris to 110 months' imprisonment and three
years of supervised release—well below the Guidelines range. The district court
stated that the downward variance was warranted because, "looking at [his]
background, even considering those criminal aspects," the court believed that Harris
was "redeemable." In December 2011, Harris moved for a reduction of sentence
pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 750 to the Sentencing
Guidelines, which reduced the offense levels listed in U.S.S.G. § 2D1.1 for certain
crack-cocaine offenses. The court denied his motion on the ground that Amendment
750 did not affect his sentence as a career offender.

                                   II. Discussion
      On appeal, Harris argues that the district court erred in denying his motion for
a reduction of his sentence because of his career-offender status. Specifically, Harris
contends that the district court may modify his sentence pursuant to 18 U.S.C.
§ 3582(c)(2).

       Section 3582(c)(2) states that a district court "may not modify a term of
imprisonment once it has been imposed except . . . 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." (Emphasis added.) In
that case, "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." Id. According to the policy statement applicable to § 3582(c)(2), "[a]
reduction in the defendant's term of imprisonment . . . is not authorized . . . if . . . [the
amendment] does not have the effect of lowering the defendant's applicable guideline
range." U.S.S.G. § 1B1.10(a)(2). Thus,

       [i]n determining whether . . . a reduction in the defendant's term of
       imprisonment . . . is warranted, the court shall determine the amended

                                            -3-
      guideline range that would have been applicable to the defendant if the
      amendment[] to the guidelines . . . had been in effect at the time the
      defendant was sentenced. In making such determination, the court shall
      substitute only the amendment[] . . . for the corresponding guideline
      provisions . . . and shall leave all other guideline application decisions
      unaffected.

U.S.S.G. § 1B1.10(b)(1); see also § 1B1.10 Application Note 1(A) ("[A] reduction
in the defendant's term of imprisonment is not authorized . . . if . . . an amendment [to
the Guidelines range] is applicable to the defendant but the amendment does not have
the effect of lowering the defendant's applicable guideline range because of the
operation of another guideline or statutory provision . . . .").

       On November 1, 2011, Amendment 759 modified U.S.S.G. § 1B1.10. See
U.S.S.G. App. C, Amend. 759 (2011). "Before Amendment 759, . . . a district court
[could] lower a defendant's prison sentence below the amended [G]uidelines range
if the original sentence was, for any reason, below the original [G]uidelines range."
United States v. Glover, No. 12-10580, 2012 WL 2814303, at *4 (11th Cir. Jul. 11,
2012) (slip copy) (citing U.S.S.G. § 1B1.10(b)(2)(B) (Nov. 2010)). "After
Amendment 759, however, a district court may lower a defendant's sentence below
the amended [G]uidelines range only if the original sentence was below the original
[G]uidelines range because the defendant provided substantial assistance to the
government." Id. (citing U.S.S.G. § 1B1.10(b)(2)(B) (Nov. 2011)).

       Construing the applicable Guidelines and policy statement, this court has held
that "[w]hen a defendant is found to be a career offender [and is sentenced] under
section 4B1.1, the applicable [G]uideline[s] range under section 3582(c)(2) is his
career[-]offender range, even if the actual sentence is a downward departure [or
variance] from it." United States v. Blackmon, 584 F.3d 1115, 1116 (8th Cir. 2009)
(per curiam); see also United States v. Tolliver, 570 F.3d 1062, 1066–67 (8th Cir.
2009) (citing United States v. Caraballo, 552 F.3d 6, 11 (1st Cir. 2008) ("Under an

                                          -4-
advisory guidelines system, a variance is granted in the sentencing court's discretion
after the court has established an appropriately calculated [G]uideline sentencing
range. It is that sentencing range that must be lowered by an amendment in order to
engage the gears of section 3582(c)(2)." (internal citation omitted))). Thus, under our
current precedent, Harris is not eligible for a reduced sentence based on amendments
to the crack-cocaine guidelines in U.S.S.G. § 2D1.1 because his sentence is not based
on the crack-cocaine guidelines but, rather, on the applicable career-offender range
set forth in § 4B1.1(b). Cf. United States v. Lamb, No. 12-10758, 2012 WL 3086220,
at *1 (11th Cir. Jul. 31, 2012) (per curiam) (slip copy) (finding that a defendant
sentenced pursuant to U.S.S.G. § 4B1.1 was not eligible for a sentence reduction as
a result of Amendment 750); United States v. Joulevette, 11-41386, 2012 WL
3062167, at *1 (5th Cir. Jul. 27, 2012) (per curiam) (slip copy) (same); United States
v. Davidson, No. 12-1123, 2012 WL 2914495, at *2 (3d Cir. Jul. 18, 2012) (per
curiam) (slip copy) (same); United States v. Miller, No. 12-2032, 2012 WL 2855791,
at *1 (10th Cir. Jul. 12, 2012) (slip copy) (same); United States v. Boone, No. 12-
6166, 2012 WL 2019124, at *1 (4th Cir. June 6, 2012) (per curiam) (slip copy)
(same).

       Nonetheless, Harris avers that he is eligible for a reduced sentence even though
he was sentenced as a career offender pursuant to § 4B1.1(b). Specifically, he
contends that (1) Freeman v. United States, 131 S. Ct. 2685 (2011), undermines this
court's prior holdings and warrants the imposition of a § 3582(c) reduction; (2)
Amendment 759 to U.S.S.G. § 1B1.10, which limits the district court's discretion to
modify a sentence in cases such as this one, is invalid; and (3) Amendment 759 to
U.S.S.G. § 1B1.10 exceeds the Sentencing Commission's authority under 28 U.S.C.
§ 944(u) and violates separation of powers. We review de novo the district court's
legal conclusions regarding the scope of its authority under the Sentencing
Guidelines. United States v. Moreno, 679 F.3d 1003, 1004 (8th Cir. 2012) (per
curiam).



                                         -5-
                         A. Section 3582(c) in Light of Freeman
        First, Harris contends that the Supreme Court's holding in Freeman undermines
this circuit's precedent that a career offender sentenced under U.S.S.G. § 4B1.1(b) is
not eligible for a reduced sentence based on amendments to the crack-cocaine
guidelines. In Freeman, the Supreme Court considered whether "defendants who
enter into 11(c)(1)(C) agreements that specify a particular sentence may be said to
have been sentenced 'based on' a Guidelines sentencing range, making them eligible
for relief under § 3582(c)(2)." 131 S. Ct. at 2691.3 A four-Justice plurality found that
the district court could consider whether to reduce the sentence of a defendant who
entered into an agreement because "[e]ven when a defendant enters into an
11(c)(1)(C) agreement, the judge's decision to accept the plea and impose the
recommended sentence is likely to be based on the Guidelines; and when it is, the
defendant should be eligible to seek § 3582(c)(2) relief." Id. at 2695.

       Justice Sotomayor, who concurred in the judgment, rejected the plurality's view
that because "a district court [must] use the Guidelines as a yardstick in deciding
whether to accept [an 11(c)(1)(C)] agreement[,] . . . the term of imprisonment
imposed by the court is 'based on' a particular Guidelines sentencing range." Id. at
2696. Instead, she determined that "[t]he term of imprisonment imposed pursuant to
[an 11(c)(1)(C)] agreement is . . . 'based on' the agreement itself." Id. Nonetheless,
Justice Sotomayor concluded that "when [the] agreement expressly uses a Guidelines
sentencing range to establish the term of imprisonment, and that range is
subsequently lowered by the Commission, the defendant is eligible for sentence
reduction under § 3582(c)(2)." Id. at 2698 (emphasis added). The plea agreement in
Freeman expressly used a Guidelines sentence; therefore, she concluded that the
defendant was eligible for a § 3582(c)(2) reduction. Id. at 2699–2700.

      3
        A plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) states
"that a specific sentence or sentencing range is the appropriate disposition of the case,
or that a particular provision of the Sentencing Guidelines, or policy statement, or
sentencing factor does or does not apply."

                                          -6-
       We have yet to address whether "the five Justices' views about the term 'based
on' can be reconciled and applied in a career[-]offender setting." United States v.
Jenkins, No. 4:08CR3018, 2012 WL 1150496, at *4 (D. Neb. Apr. 4, 2012) (slip
copy) (second internal quotation omitted). The Second Circuit considered this issue
in United States v. Rivera, 662 F.3d 166, 176 (2d Cir. 2011). In Rivera, despite the
defendant's career-offender status, the district court applied the offense level that the
drug-quantity table in U.S.S.G. § 2D1.1(c)(1) prescribed because it was higher than
the offense level that the career-offender table prescribed. Id. at 169–70; see also
U.S.S.G. § 4B1.1(b) (Only "if the offense level for a career offender from the table
in this subsection is greater than the offense level otherwise applicable[] [does] the
offense level from the table in this subsection . . . apply."). The district court then
departed downward three levels because of the defendant's mental condition and
sentenced him at the bottom of the resulting range. Rivera, 662 F.3d at 169. On
appeal, the Second Circuit held that "[w]here the sentencing judge departs from a
range computed under the career[-]offender guideline to a lower range, the sentence
imposed was 'based on' the latter range for purposes of § 3582(c)(2), and for the
purposes of § 1B1.10 that range is the '[G]uideline[s] range applicable' to the
defendant." Id. at 177.

       The Second Circuit noted that "[i]f [the defendant] was sentenced 'based on' the
career[-]offender range, he is not eligible for a sentence reduction . . . . because the
retroactive amendment reduces [his] career[-]offender offense level from 38 to 37, but
that has no effect on the resulting [G]uidelines range." Id. at 174. But if the sentence
"was 'based on' the range produced by subtracting three offense levels from the
career[-]offender computation," then the defendant would be eligible for a reduction
in his sentence. Id. The Second Circuit concluded that "the district court should be
permitted to revisit [the defendant's] sentence to the extent allowable under
§ 3582(c)(2) and § 1B1.10." Id. at 175.




                                          -7-
       Rivera is not helpful to Harris. First, the Second Circuit based its holding in
Rivera in part on its prior "holding in [United States v.] McGee[, 553 F.3d 225 (2d
Cir. 2009) (per curiam),] that when the sentencing judge departs from a career[-]
offender range to the range established by the offense guideline, a modification under
§ 3582(c)(2) is available if the latter range has been lowered by the retroactive
amendment." Rivera, 662 F.3d at 172 n.5. This circuit has rejected McGee, holding
that "any post-departure guideline range that the district court might have relied upon
in determining the extent of [the] departure was not the 'applicable [G]uideline[s]
range'" because the Guidelines "define all departures to be outside the 'applicable
[G]uideline[s] range.'" Tolliver, 570 F.3d at 1066 (citing U.S.S.G. § 1B1.1); see also
Jenkins, 2012 WL 1150496, at *5 (noting our circuit's rejection of McGee).
Moreover, the Second Circuit "acknowledged in Rivera that [] then-proposed
[A]mendment [759] to U.S.S.G. § 1B1.10 would 'preclude sentence modifications in
situations like the one in McGee'" because the amendment would define the
"'applicable [G]uideline[s] range'" as "'the pre-departure range from the initial
sentencing.'" Jenkins, 2012 WL 1150496, at *7 (quoting Rivera, 662 F.3d at 183)
(footnote omitted). This amendment went into effect on November 1, 2011. U.S.S.G.
App. C, Amend. 759 (2011).

       Second, "[e]ven if [we] were to . . . apply the Second Circuit's rule in [Harris's]
case, [Harris's] applicable [G]uideline[s] range would not be lowered." Jenkins, 2012
WL 1150496, at *6. Unlike the defendant in Rivera, whose original sentencing range
was based on the offense level that the drug quantity table in § 2D1.1 prescribed,
Harris's sentencing range was based on the offense level that the table in the career-
offender guideline prescribed. Id.




                                           -8-
      [I]f Amendment 750 had been in effect at the time of [Harris's] original
      sentencing, his section 2D1.1 offense level [might] have been [lower].4
      Under section 4B1.1, however, his offense level still would have been
      [29] and his criminal history category still would have been VI. In other
      words, unlike Rivera, [Harris] sees no benefit when the amended
      guideline is substituted for the original guideline. . . . And the same
      additional 3-level reduction . . . would have placed [Harris] in precisely
      the same spot that he was in prior to the adoption of Amendment 750.

Id.

       In short, neither Freeman nor Rivera address this court's primary reason for
denying Harris's § 3582(c) motion: "i.e., that [Harris's] 'applicable [G]uideline[s]
range' is the career[-]offender range—excluding any departures—and [Harris] is
ineligible for § 3582(c)(2) relief because the career[-]offender range was not lowered
by [Amendment 750] to the crack Guidelines." Jenkins, 2012 WL 1150496, at *6.5
Thus, Freeman is inapposite to Harris's case and does not alter our prior precedent
that "[w]hen a defendant is found to be a career offender under section 4B1.1, the
applicable [G]uideline[s] range under section 3582(c)(2) is his career[-]offender
range, even if the actual sentence is a downward departure from it." Blackmon, 584
F.3d at 1116.




      4
       We assume without deciding that Amendment 750 would have resulted in a
lower offense level under § 2D1.1.
      5
        The Seventh Circuit has likewise concluded that "Freeman has nothing to do
with how retroactive amendments affect career offenders." United States v. Bonds,
468 F. App'x 620, 620 (7th Cir. 2012) (unpublished per curiam) (affirming district
court's denial of defendant's motion to reduce sentence under Amendments 750 and
759 because the defendant "was sentenced as a career offender, and the amended
Guidelines do not change the ranges for career offenders").

                                         -9-
                            B. Validity of Amendment 759
       Alternatively, Harris argues that Amendment 759 to U.S.S.G. § 1B1.10 is
invalid for two reasons. First, he contends that Amendment 759 is invalid because the
Sentencing Commission did not comply with the applicable provisions of the
Administrative Procedures Act (APA) in adopting the amendment. Second, he argues
that Amendment 759 exceeds the Sentencing Commission's authority under 28 U.S.C.
§ 994(u), and even if it were permissible under § 994(u), it violates separation of
powers. Assuming that Amendment 759 to § 1B1.10 affects Harris's sentence,6 we
consider each argument in turn.

                            1. Compliance With the APA
      Harris argues that the Sentencing Commission failed to comply with the APA
in adopting Amendment 759. Specifically, he contends that § 1B1.10 is actually the
equivalent of a sentencing guideline; therefore, it must be subjected to the notice-and-
comment procedure of 5 U.S.C. § 553(b) prior to its adoption.

      "The Sentencing Reform Act of 1984 ('SRA'), 98 Stat. 1987, established the
United States Sentencing Commission and authorized it to promulgate Sentencing

      6
        As noted supra, Harris's sentence was determined by the career-offender
guideline, which "was not lowered by [Amendment 750] to the crack Guidelines."
Jenkins, 2012 WL 1150496, at *6. Amendment 759 to § 1B1.10, which "did nothing
more than limit a district court's authority to reduce a defendant's sentence below the
amended [G]uidelines range . . . . does not permit a court to reduce a defendant's
sentence based on a [G]uidelines amendment that does not lower his [G]uidelines
range." Glover, 2012 WL 2814303, at *4. "Instead, as we have discussed, a court may
reduce a defendant's sentence under 18 U.S.C. § 3582(c)(2) based on a retroactive
amendment to the crack[-]cocaine base offense levels if and only if that retroactive
amendment actually lowers the defendant's [G]uidelines range." Id. Since
Amendment 750 did not change the Guidelines range for Harris's sentence, the
validity or invalidity of Amendment 759 to § 1B1.10 does not affect Harris's
sentence.


                                         -10-
Guidelines and to issue Policy Statements." United States v. Fox, 631 F.3d 1128,
1130 (9th Cir. 2011) (citing 28 U.S.C. §§ 991, 994(a)). "Guidelines are 'for use of a
sentencing court in determining the sentence to be imposed in a criminal case,'" while
"Policy Statements should define 'the appropriate use of . . . the sentence modification
provisions set forth in . . . 18 U.S.C. § 3582(c).'" Id. at 1131 (quoting 28 U.S.C.
§ 994(a)(1) and (2)) (alterations in original).

             The Sentencing Commission must jump through more procedural
      hoops to issue a Guideline than to issue a Policy Statement. Most
      notably, when issuing Guidelines, the Sentencing Commission must
      comply with the Administrative Procedure Act's notice and comment
      provisions and must submit the Guideline to Congress 180 days before
      it takes effect, along with a statement of the Commission's reasons for
      issuing the Guideline.

Id. (internal citations omitted).

       In Fox, the Ninth Circuit determined that "1B1.10 . . . performs a function that
Congress explicitly contemplated Policy Statements would perform, viz., it clarifies
'the appropriate use of . . . sentence modification' proceedings." Id. at 1132 (quoting
28 U.S.C. § 994(a)(2)(C)) (alteration in original). The court also rejected the
defendant's argument "that Policy Statement 1B1.10 'determines the sentence to be
imposed in a criminal case,'" concluding that "Policy Statement 1B1.10 does not even
apply until a sentence has already been imposed, at which point it merely limits the
scope of sentence reduction proceedings, prohibiting district courts from using such
proceedings to engage in plenary reconsideration of the sentence they already
imposed." Id. Although the court acknowledged that "Policy Statement 1B1.10 may
affect the length of the sentence which a defendant ultimately serves," it found such
fact "unremarkable, since procedural rules are always capable of affecting substantive
outcomes." Id.



                                         -11-
      We agree with the Ninth Circuit and find, for the reasons listed in Fox, that
Harris's challenge to Amendment 759 as invalid under the APA fails.

         2. Authority Under 28 U.S.C. § 994(u) and Separation of Powers
      Harris also argues that Amendment 759 exceeds the Sentencing Commission's
authority under 28 U.S.C. § 994(u), which instructs the Commission to "specify in
what circumstances and by what amount the sentences of prisoners serving terms of
imprisonment for [an] offense may be reduced" "[i]f the Commission reduces the term
of imprisonment recommended in the guidelines applicable to a particular offense or
category of offenses." In the alternative, he argues that even if Amendment 759 were
permissible under § 994(u), it violates separation of powers.

       Every circuit that has considered the separation-of-powers issue has held that
"[the] statutory provisions [in 28 U.S.C. 994 and 18 U.S.C. § 3582(c)] are a sufficient
delegation" of Congress's authority to the Sentencing Commission. United States v.
Garcia, 655 F.3d 426, 435 (5th Cir. 2011). Congress

      gave the Commission the discretion to determine . . . "in what
      circumstances and by what amount" a sentence may be reduced, see
      § 994(u), and that reductions should further the purposes of § 3553(a),
      see §§ 994(2) and 3582(c). One could hardly say that there is "an
      absence of standards" to direct the Commission's issuance of § 1B1.10.
      To be sure, there is no specific delegation to the Commission of the
      power to make the guidelines binding in a limited set of circumstances
      or to prevent a court from considering non-§ 3553(a) factor during
      sentencing. But that argument is nothing more than a
      strawman. . . . Congress need not expressly authorize every
      determination made by the Commission. Congress has set forth
      sufficient standards for the Commission in exercising its discretion, and
      § 1B1.10 does not present a separation-of-powers problem.

Id. at 435; see also United States v. Horn, 679 F.3d 397, 404 (6th Cir. 2012) (holding
that "[t]he policy statements embodied in U.S.S.G. § 1B1.10 are constitutional under
                                         -12-
separation-of-powers principles" in part because Congress "set forth intelligible
principles to guide the Commission's actions"); United States v. Smith, 459 F. App'x
99, 101 (3d Cir. 2012) (unpublished) ("Congress set forth an intelligible principle in
these provisions to guide the Commission. . . . [B]oth §§ 994(u) and 994(a)(2) limit
and inform the Commission on how it must exercise its delegated authority."
(footnote omitted)); Fox, 631 F.3d at 1133 (finding that "Policy Statement 1B1.10
does not raise constitutional concerns"); United States v. McGee, 615 F.3d 1287,
1293 n.2 (10th Cir. 2010) (noting that "this court has previously rejected a similar
separation-of-powers challenge to § 1B1.10" (citing United States v. Dryden, 563
F.3d 1168, 1171 (10th Cir. 2009))).

       The Sixth Circuit in Horn explicitly rejected the defendant's characterization
of "the policy statements [embodied in § 1B1.10] as an unauthorized power grab by
the Sentencing Commission, absent any congressional delegation of authority." 679
F.3d at 404. According to the court, "Congress has delegated the power to the
Commission to issue binding policy statements," and this delegation of authority "[is]
constitutionally permissible because Congress set forth intelligible principles to guide
the retroactivity determination." Id.; see also United States v. Goodrich, Criminal
Action No. 03–487–11, 2012 WL 1231780, at *3 (E.D. Pa. Apr. 12, 2012) (slip copy)
(finding "unpersuasive" the defendant's argument that § 1B1.10(b)(2)(A) is not
binding because "the Commission's adoption of that guideline exceeded its statutory
powers, violated the separation of powers doctrine, and was invalid because it was
not properly noticed for comment"); United States v. Lott, Criminal Action No.
04–786, 2012 WL 170698, at *2 (E.D. Pa. Jan. 19, 2012) (slip copy) ("[The
defendant] asserts that this court is not bound by the limitation found in U.S.S.G.
§ 1B1.10(b)(2)(A) and the associated comments because it: (1) exceeds the
Commission's statutory power; (2) is unconstitutional; and (3) was not properly
noticed for comment. We are aware of no court which has adopted [the defendant's]
position and find these arguments unpersuasive.").



                                         -13-
      In light of the holdings in our sister circuits, we reject Harris's argument that
the Sentencing Commission exceeded its statutory authority by enacting Amendment
759 or that Amendment 759 violates the separation-of-powers doctrine.

                                 III. Conclusion
      For the foregoing reasons, we affirm the district court's judgment.
                      ______________________________




                                         -14-
