                                                                   FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                               April 14, 2017
                                     PUBLISH               Elisabeth A. Shumaker
                                                               Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
       v.                                            No. 16-2062
 ADAUCTO CHAVEZ-MEZA,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                  (D.C. NO. 1:12-CR-00701-WJ-1)


Submitted on the Briefs:

Todd A. Coberly, Coberly & Martinez, LLLP, Santa Fe, New Mexico, for
Appellant.

James R.W. Braun, Assistant United States Attorney, and Damon P. Martinez,
United States Attorney, Office of the United States Attorney, Albuquerque, New
Mexico, for Appellee.


Before TYMKOVICH, Chief Judge, SEYMOUR, and KELLY, Circuit Judges.


TYMKOVICH, Chief Judge.
         This case requires us to determine how much explanation a district court

must provide when granting a sentence-reduction motion under 18 U.S.C.

§ 3582(c)(2) and choosing a sentence within the revised Sentencing Guidelines

range.

         Adaucto Chavez-Meza pleaded guilty to drug conspiracy charges in 2013.

He originally received a prison sentence of 135 months, the Sentencing

Guidelines minimum. In 2014, the Sentencing Commission amended the

Guidelines to reduce the relevant offense levels. Chavez-Meza then sought and

was granted a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). He

requested the court reduce his sentence to 108 months, the minimum under the

revised guidelines range, but the court only reduced his sentence to 114 months.

In confirming the new sentence, the district court issued a form order stating it

had “tak[en] into account the policy statement set forth at USSG § 1B1.10 and the

sentencing factors set forth in 18 U.S.C. § 3553(a).” Chavez-Meza appeals his

reduced sentence, claiming the district court erred by failing to adequately explain

how it applied the § 3553(a) factors in imposing a 114-month sentence.

         We AFFIRM the district court’s sentence-reduction order. Section

3582(c)(2) does not require additional explanation when a district court imposes a

guidelines sentence and affirmatively states that it considered the § 3553(a)

factors in its decision.

                                  I. Background

                                          -2-
      Chavez-Meza pleaded guilty to conspiracy and possession with intent to

distribute methamphetamine. His guidelines range was 135–168 months. The

government recommended a 135-month sentence at the low end of the range,

which the sentencing court accepted. The court explained “the reason the

guideline sentence is high in this case . . . is because of the quantity, 1.75

kilograms of actual methamphetamine. . . . [O]ne of the other reasons that the

penalty is severe in this case[] is because of methamphetamine. It

destroys . . . individual lives, it destroys families, it can destroy communities.”

App., Vol. IV at 15.

      In 2015, after the Sentencing Commission amended the Guidelines and

reduced the applicable guidelines for this type of crime, Chavez-Meza filed a pro

se motion under 18 U.S.C. § 3582(c)(2), asking the district court to modify his

sentence.

      The district court appointed counsel to represent Chavez-Meza, and the

government consented to a “stipulated agreement in petition for reduced

sentence.” App., Vol. I at 40–41. In the petition they agreed that amendments to

the guidelines range resulted in a lower 108- to 135-month sentencing range.

Accordingly, Chavez-Meza filed a request for a 108-month sentence, at the low

end of the revised range. The government did not offer guidance on a specific

sentence.




                                           -3-
      There is no requirement that district courts hold a hearing in a § 3582(c)(2)

sentence-reduction proceeding. United States v. Piper, 839 F.3d 1261, 1270 (10th

Cir. 2016). Without doing so, then, the district court issued an order on a two-

page standard form reducing Chavez-Meza’s sentence to 114 months. The form,

an “AO-247,” is a document prepared by the Federal Judiciary’s Administrative

Office. It requires the district court to state it has “tak[en] into account the policy

statement set forth at USSG § 1B1.10 and the sentencing factors set forth in 18

U.S.C. § 3553(a), to the extent that they are applicable.” It also requires the court

provide both the previous and amended total offense level, criminal history

category, and guidelines range. The court must then check a box indicating where

the sentence falls relative to the amended guidelines range. Apart from

completing the form, the district court did not otherwise explain its decision to

reduce the sentence to 114 months rather than the 108 months Chavez-Meza had

requested.

                                    II. Analysis

      Chavez-Meza contends the district court erred by failing to adequately state

reasons supporting its decision in the sentence-reduction order. He argues mere

completion of an AO-247 makes it impossible to determine whether the district

court complied with § 3582(c), which requires that courts consider the § 3553(a)

sentencing factors. The government argues § 3582(c) does not require that courts



                                          -4-
state specific reasons for imposing a particular sentence, but only that courts

consider the applicable § 3553(a) factors.

      We review the scope of a district court’s authority in sentence reduction

under 18 U.S.C. § 3582(c)(2) de novo. United States v. Verdin-Garcia, 824 F.3d

1218, 1221 (10th Cir. 2016). We review a district court’s decision to grant or

deny a § 3582(c)(2) motion for an abuse of discretion. Id. An error of law is per

se an abuse of discretion. Koon v. United States, 518 U.S. 81, 100 (1996).

      Section 3582(c)(2) authorizes a district court to reduce a sentence “based

on a sentencing range that has subsequently been lowered by the Sentencing

Commission.” The statute provides that “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. (emphasis added).

      We have explained in previous cases that the plain language of § 3582(c)(2)

does not incorporate the explanatory requirement from § 3553(c):

             The language of 18 U.S.C. § 3582(c)(2) is clear—it
             requires the court to consider the factors in 18 U.S.C.
             § 3553(a). It does not mention § 3553(c). This omission
             is significant because we have previously interpreted the
             meaning of both subsections, holding that § 3553(a)
             requires consideration, while § 3553(c) requires an
             explanation of the sentence. Congress incorporated only
             one of these distinct requirements into § 3582(c)(2)—the
             requirement to consider the § 3553(a) factors.




                                         -5-
Verdin–Garcia, 824 F.3d at 1221 (citing United States v. Ruiz–Terrazas, 477 F.3d

1196, 1201 (10th Cir. 2007)).    Thus, the statute in referencing § 3553(a) imposes

no particular requirement to provide the level of explanation § 3553(c) requires.

Rather, “[s]ection 3553(a) imposes on the district court a duty to ‘consider’” a

variety of important sentencing considerations. Ruiz-Terrazas, 477 F.3d at 1201.

But it nowhere imposes on the court a duty to address those factors on the record;

by contrast, § 3553(c) speaks expressly to the nature of the district court’s duty to

explain itself on the record. It would be incongruous, we think, to read a duty of

explanation into subsection (a) when the exact matter has already been considered

and addressed by Congress in subsection (c).

      We have also explained that the requirements imposed on a court at a

sentence-reduction proceeding cannot be greater than those imposed at an original

sentencing proceeding. Verdin–Garcia, 824 F.3d at 1221. This distinction

reflects the different status of the two proceedings. Original sentencing

proceedings invoke important constitutional rights, and § 3553(c) requires

sentencing courts to explain and justify a particular sentence, both for procedural

and substantive reasonableness. But no statute or case has established this

requirement for sentence-reduction proceedings—which makes sense.

Sentence-reduction proceedings merely represent “a congressional act of lenity

intended to give prisoners the benefit of later enacted adjustments.” Dillon v.

United States, 560 U.S. 817, 828 (2010). Setting the procedural bar for sentence-

                                         -6-
reduction proceedings higher than for original sentencing proceedings would

contravene this hierarchy. We cannot require more for sentence reduction, when

§ 3553(c) does not apply, than we require for original sentencing, when § 3553(c)

does apply. The original sentencing procedures required by § 3553(c) must

therefore supply the ceiling for sentence-reduction procedures.

      So we begin by reviewing what § 3553(c) requires. We do so not because

§ 3553(c) applies to sentence reduction, but because the requirements for sentence

reduction cannot exceed the requirements of § 3553(c). Congress’s decision not

to incorporate § 3553(c) into the sentence-reduction provision dictates this

approach. Our precedent on § 3553(c) does not tell us what sentence reduction

requires, but it tells us the uppermost bound of what it can require.

      And that precedent makes clear that original sentencing proceedings do not

require extensive explanations for sentences within the guidelines range. “When

imposing a sentence within the properly calculated Guidelines range, a district

court must provide, as Section 3553(c) indicates by its plain language, only a

general statement noting the appropriate guideline range and how it was

calculated.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1202 (10th Cir. 2007

(internal quotation marks omitted). 1 A court’s “citation of the [presentence

      1
        More is required at sentencing when the defendant requests a
below-guidelines sentence. See United States v. Sanchez-Juarez, 446 F.3d 1109,
1117 (10th Cir. 2006) (“[W]here a defendant has raised a nonfrivolous argument
that the § 3553(a) factors warrant a below-Guideline sentence and has expressly
                                                                     (continued...)

                                         -7-
report’s] calculation method and recitation of the suggested imprisonment range

amply fulfill[s]” this requirement. United States v. Algarate-Valencia, 550 F.3d

1238, 1244 (10th Cir. 2008) (quoting United States v. Cereceres-Zavala, 499 F.3d

1211, 1217 (10th Cir. 2007)). “Section 3553(a) imposes on the district court a

duty to ‘consider’ a variety of important sentencing considerations. But it

nowhere imposes on the court a duty to address those factors on the record.”

Ruiz-Terrazas, 477 F.3d at 1201.

      Read together, Verdin-Garcia and Ruiz-Terrazas thus establish that the

same “general statement noting the appropriate guideline range and how it was

calculated” in applying § 3553(a) also suffices in sentence-reduction proceedings.

Ruiz-Terrazas confirms that level of explanation satisfies the requirements for

sentencing proceedings, and Verdin-Garcia clarifies that it provides the ceiling

for sentence-reduction proceedings. A contrary rule would go beyond what we

have said § 3553(c) requires, thus imposing greater requirements for what both

Congress and the Supreme Court have told us is a lesser proceeding—and one to


      1
        (...continued)
requested such a sentence, we must be able to discern from the record that the
sentencing judge did not rest on the guidelines alone, but considered whether the
guidelines sentence actually conforms, in the circumstances, to the statutory
factors.” (internal quotation marks and alterations omitted)). But that situation is
not raised on these facts. Courts can only reduce a sentence to a term less than
the guidelines minimum if the sentencing court originally imposed a sentence
below the guidelines range. USSG § 1B1.10(b)(2). We do not decide in this case
what level of explanation is required when courts decide sentence-reduction
motions involving sentences outside the guidelines range.

                                        -8-
which § 3553(c) does not even apply. We therefore hold that, absent any

indication the court failed to consider the § 3553(a) factors, a district court

completing form AO-247 need not explain choosing a particular guidelines-range

sentence. 2

       This makes sense given our review of sentencing decisions. We

“traditionally presume, absent some indication in the record suggesting otherwise,

that trial judges are presumed to know the law and apply it in making their

decisions.” Ruiz-Terrazas, 477 F.3d at 1201 (alterations and quotation marks

omitted). We “do not disturb decisions entrusted by statute or other rule of law to

the discretion of a district court unless we have a definite and firm conviction that

the lower court made a clear error of judgment or exceeded the bounds of

permissible choice in the circumstances.” Id. (quotation marks omitted).

       Nothing indicates in this case the district court failed to consider the

§ 3553(a) factors or otherwise abused its discretion. The first page of form AO-

247, signed by the judge, indicates that he has “tak[en] into account the policy

statement set forth at USSG § 1B1.10 and the sentencing factors set forth in 18

U.S.C. § 3553(a).” App., Vol. 1 at 42. The (sealed) second page of form AO-247


       2
        We do not address here whether a district court must justify rejecting a
sentence-reduction motion. Some courts considering the issue have imposed
higher explanatory standards for denying sentence-reduction motions than for
granting one but with a longer sentence than the movant sought. See United
States v. Brown, 497 F. App’x. 196, 198 (3d Cir. 2012) (unpublished); United
States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009).

                                          -9-
correctly indicates the amended guidelines range. And it is safe to infer from the

court’s rejection of the low-end-of-the-range sentence that it carefully considered

the materials (which included an incident of misconduct while in prison)

presented to it by the parties.

      The circuits are split on the degree of explanation necessary to satisfy

§ 3582. The First, Third, and Fourth Circuits, for example, have all held that no

elaborate explanation is necessary in § 3582 sentence-reduction proceedings. See

United States v. Zayas-Ortiz, 808 F.3d 520, 524 (1st Cir. 2015) (affirming

unelaborated AO-247 order where “the record as a whole is sufficient for [the

court of appeals] to infer the pertinent factors taken into account by the court

below”); United States v. Brown, 497 F. App’x 196, 198–99 (3d Cir. 2012)

(unpublished) (affirming unelaborated AO-247 order where “[t]he record shows

the District Court’s consideration of the relevant factors and the rationale for its

§ 3582(c)(2) ruling”); United States v. Smalls, 720 F.3d 193, 195–96 (4th Cir.

2013) (“[A]bsent a contrary indication, [the court of appeals] presume[s] a district

court deciding a § 3582(c)(2) motion has considered the 18 U.S.C. § 3553(a)

factors and other pertinent matters before it.” (internal quotation marks omitted)).

On the other hand, several other circuits have found an explanatory requirement

in this context. See United States v. Christie, 736 F.3d 191, 195 (2d Cir. 2013)

(“[T]he lack of reasoning in the court’s order prevents [the court of appeals] from

exercising meaningful appellate review.” (internal quotation marks omitted)); see

                                         -10-
also United States v. Howard, 644 F.3d 455, 461 (6th Cir. 2011); United States v.

Marion, 590 F.3d 475, 478 (7th Cir. 2009); United States v. Burrell, 622 F.3d

961, 964 (8th Cir. 2010); United States v. Trujillo, 713 F.3d 1003, 1009 (9th Cir.

2013); United States v. Williams, 557 F.3d 1254, 1256-57 (11th Cir. 2009) (all

same).

      Chavez-Meza relies on these authorities and also points to two Tenth

Circuit cases in arguing for a contrary result. In the first case, United States v.

Dorrough, 84 F.3d 1309, 1311 (10th Cir. 1996), we stated in dicta that “[t]here is

no requirement that the district court make specific findings regarding [the 18

U.S.C. § 3553(a) factors in sentence-reduction orders] as long as it states the

reasons for its actions.” The other case, United States v. Nelson, 303 F. App’x

641 (10th Cir. 2008), an unpublished decision that relies on Dorrough, remanded

an AO-247 order that lacked any explanation, explaining “we lack a meaningful

basis for reviewing the district court’s consideration of the relevant factors.” Id.

at 646. But dicta and unpublished opinions do not bind panels of this court. See

10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be

cited for their persuasive value.”); Bates v. Dep’t of Corr., 81 F.3d 1008, 1011

(10th Cir. 1996) (“[A] panel of this [c]ourt . . . is not bound by a prior panel’s

dicta.”). We nonetheless are persuaded that § 3582 does not require more

explanation than was provided here.




                                          -11-
      First, Dorrough and Nelson ultimately locate the source of the explanatory

requirement in § 3553(c), 3 but, as we explained in Verdin-Garcia, § 3582(c)

plainly does not incorporate that requirement. See Verdin-Garcia, 824 F.3d at

1221 (“§ 3582(c)(2) . . . does not mention § 3553(c).”). Although Nelson states

that § 3582(c)(2) “require[s]” a district court “to state the reasons for its

decision,” 303 F. App’x at 646, § 3582(c)(2) only directs courts to consider the

§ 3553(a) factors. Nowhere does the language of § 3582(c)(2) include, reference,

or incorporate the explanatory requirement of § 3553(c). Verdin-Garcia, 824

F.3d at 1221. Nelson’s statement that § 3582(c)(2) requires a statement of

reasons is unpersuasive for that reason.

      Second, Dorrough and Nelson are inconsistent with our cases on

sentencing, which provide a ceiling for the requirements in sentence-reduction

proceedings. If a sentencing court does not need to explain the reasons behind a

within-guidelines sentence, the standard cannot be higher for sentence reduction.

Following Nelson’s approach would create a more stringent standard for

sentence-reduction proceedings than for original sentencing proceedings. Had

Congress wished to include an explanatory requirement in the sentence-reduction

provision, as they did in § 3553(c), they could have done so. But “courts must

      3
       Dorrough gets to § 3553(c) in two steps. As authority for its dictum,
Dorrough cited United States v. Lee, 957 F.2d 770, 774–75 (10th Cir. 1992), a
case about supervised release that cites § 3553(c) as authority for a similar
dictum. Nelson cites Dorrough, so it too ultimately derives its holding from
§ 3553(c). Nelson, 303 F. App’x at 645.

                                           -12-
presume that a legislature says in a statute what it means and means in a statute

what it says there.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461–62 (2002).

      The rule of Nelson might be good practice for the district courts, and

reviewing courts might benefit in some circumstances from additional

explanation, but as we explained, neither the text of the statute nor our precedent

require additional explanation. Even though district courts need not explain their

decisions in sentence-reduction orders, that does not mean that they should not do

so. In Verdin-Garcia, we announced a “[g]eneral [p]olicy [s]upporting

[e]xplanation,” in light of “the need for a district court to create a meaningful

basis for appellate review and to promote the perception of fairness.” 824 F.3d at

1222. As the First Circuit noted in a similar case, “[e]ven a single sentence

incorporating the government’s or probation officer’s position might have spared

this case a trip to the [court of appeals] and all the attendant effort and expense

associated therewith.” Zayas-Ortiz, 808 F.3d at 525. But the standard of review

is abuse of discretion, not best practice. In the absence of an explanatory

requirement, we do not find that the district court abused its discretion.

                                 III. Conclusion

      We therefore AFFIRM the district court’s order reducing Chavez-Meza’s

sentence to 114 months.




                                         -13-
