                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1226
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                            Willie Christopher Johnson

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                          Submitted: September 21, 2012
                             Filed: January 16, 2013
                                 ____________

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
                              ____________

RILEY, Chief Judge.

      A jury convicted Willie Johnson of three federal narcotics crimes. Johnson
appeals the district court’s1 partial denial of his 18 U.S.C. § 3582(c)(2) motion for
a sentence modification. The district court reduced Johnson’s prison sentence

      1
       The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
from 324 to 210 months because the United States Sentencing Commission
(Commission) retroactively amended the crack cocaine sentencing guidelines.
The district court refused to reduce Johnson’s sentence further based on an earlier,
non-retroactive amendment to the United States Sentencing Guidelines (U.S.S.G.
or Guidelines). Johnson contends this refusal is neither authorized by statute nor
permitted by the Constitution. Johnson is mistaken. We affirm.

I.    BACKGROUND
      There is no factual dispute, and we have already set forth the facts of this
case in our decision affirming Johnson’s conviction. See United States v.
Johnson, 439 F.3d 947, 949-51 (8th Cir. 2006). Here, we recount only those facts
relevant to Johnson’s present appeal.

       When the district court originally sentenced Johnson in 2005, Johnson’s
criminal history category was VI—the highest level—based in part on the short
length of time between his release from prison for an earlier crime and his
commission of the crimes for which he is now imprisoned. At that time, § 4A1.1
added one or two points to a defendant’s criminal history score if fewer than two
years had passed between his release from prison on a prior charge and his
commission of the instant offense. See U.S.S.G. § 4A1.1(e) (2005). On
November 1, 2010, the Commission enacted Amendment 742, which eliminated
these recency points from § 4A1.1. The Commission did not provide for
retroactive application of Amendment 742 in its policy statement. See U.S.S.G.
§ 1B1.10(c); U.S.S.G. app. C., amend. 742. The parties agree that if Amendment
742 applied to Johnson, his criminal history category would fall one level.

      On November 1, 2011, the Commission enacted Amendment 750, which
reduced the offense levels for certain crack cocaine sentences under U.S.S.G.
§ 2D1.1. See U.S.S.G. app. C, amend. 750. Parts A and C of this amendment
were retroactive. See U.S.S.G. app. C, amend. 759. Applied to Johnson, this

                                        -2-
amendment reduced his base offense level from 32 to 28, resulting in a new total
offense level of 32. This total offense level yields an advisory range of 210 to 262
months when combined with a criminal history category of VI and 188 to 235
months when combined with a criminal history category of V.

       On December 5, 2011, Johnson moved to reduce his sentence pursuant to
18 U.S.C. § 3582(c). Johnson asked the district court to reduce his prison
sentence from 324 months to 188 months based on Amendments 742 and 750.
Although Johnson recognized the Commission had not explicitly made
Amendment 742 retroactive, Johnson argued the Commission’s retroactivity
decision should not bind the district court for two reasons. First, Johnson asserted
that failing to give Amendment 742 retroactive effect would violate his Fifth
Amendment right to due process. Second, Johnson asserted “the Commission
exceed[ed] its statutory authority by” failing to give the district court discretion to
decide whether Amendment 742 should apply retroactively.

      The district court apparently disagreed and reduced Johnson’s total offense
level from 36 to 32 in accordance with Amendment 750 and left Johnson’s
criminal history category unchanged. In accordance with the amended guideline
range of 210 to 262 months, the district court reduced Johnson’s sentence to 210
months. Johnson appeals.

II.   DISCUSSION
      We review a district court’s decision to modify a sentence under
§ 3582(c)(2) for an abuse of discretion, but we review Johnson’s constitutional
and statutory challenges de novo. See United States v. Anderson, 686 F.3d 585,
589 (8th Cir. 2012).

      Johnson challenges the Commission’s decision not to make Amendment
742 retroactive on four grounds: (1) Congress has not authorized the Commission

                                         -3-
to issue binding policy statements, (2) Congress’s delegation of such authority to
the Commission violates the Non-Delegation and Separation of Powers doctrines,
(3) the Commission’s decision not to apply Amendment 742 retroactively was
arbitrary and capricious, and (4) the Commission’s decision deprived him of due
process. Because our decision in Anderson forecloses Johnson’s first two
arguments, we proceed directly to his third and fourth arguments. See id. at 589-
91 (holding the Commission’s power to issue binding policy statements is
authorized by statute and consistent with the Non-Delegation and Separation of
Powers doctrines); see also United States v. Harris, 688 F.3d 950, 957-58 (8th Cir.
2012).2

      A.     Arbitrary and Capricious
      Arguing the Commission arbitrarily and capriciously decided not to apply
Amendment 742 retroactively, Johnson asks us to “disregard” the Commission’s
decision. Johnson does not specify the source of our purported power to do so,
but we infer he would have us rely on our authority under the Administrative
Procedure Act (APA), 5 U.S.C. § 500 et seq., to “hold unlawful and set aside
agency action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” 5 U.S.C. § 706(2). Of course, we may
exercise that authority only within the limits drawn by statute. Those limits do not
encompass this case.

      The Commission is “an independent commission in the judicial branch of
the United States.” 28 U.S.C. § 991(a). By its own terms, judicial review under
the APA applies only to agencies, which include “each authority of the
Government of the United States, . . . but [do not include] . . . the courts of the
United States.” 5 U.S.C. § 701(a)-(b)(1)(B). Given this exclusion, we expect
      2
       Our decision in Anderson is consistent with the decisions of other circuits
addressing these issues. See, e.g., United States v. Berberena, 694 F.3d 514, 523-26
(3d Cir. 2012); United States v. Horn, 679 F.3d 397, 401, 404-09 (6th Cir. 2012);
United States v. Garcia, 655 F.3d 426, 434-35 (5th Cir. 2011).
                                         -4-
neither the judicial branch as a whole nor any one of its component parts is an
“agency” within the meaning of the APA.3 But we need not determine whether
our branch is categorically excluded from the APA’s definition of “agency”
because Congress plainly excluded the Commission from that definition.

       When it established the Commission, Congress explicitly subjected one
piece of the Commission’s activities—the “promulgation of guidelines pursuant to
[28 U.S.C. § 994]”—to the APA’s notice-and-comment provisions, see 5 U.S.C.
§ 553. 28 U.S.C. § 994(x). In so doing, Congress implicitly exempted the
Commission from the rest of the APA—even if it would otherwise apply. See
S. Rep. No. 98-225, at 180-81 (1983) reprinted in 1984 U.S.C.C.A.N. 3182, 3363-
64 (“[28 U.S.C. § 994(x)] is an exception to the general inapplicability of the
[APA] . . . to the judicial branch. . . . It is . . . not intended that the guidelines be
subject to appellate review under [the judicial review provisions of the APA,
including § 706].”). In reaching this conclusion, we reference the legislative
history of the Sentencing Reform Act of 1984 (SRA), Pub. L. No. 98–473, 98 Stat.
1837 (codified as amended in scattered sections of 18 U.S.C. and 28 U.S.C.
§§ 991-98), but rely on our steadfast canons of statutory construction.



      3
        See, e.g., Wash. Legal Found. v. U.S. Sentencing Comm’n, 17 F.3d 1446,
1449-50 (D.C. Cir. 1994); United States v. Tapert, 993 F.2d 1548, at *9 (6th Cir.
1993) (unpublished per curiam); United States v. Frank, 864 F.2d 992, 1013 (3d Cir.
1988) (“Housing the Commission in the judicial branch has the effect, as a matter of
statutory interpretation, of exempting it from certain statutes which would otherwise
apply”); In re Fid. Mortg. Investors, 690 F.2d 35, 38 (2d Cir. 1982) (“If legislative
history has any significance at all, it is clear that Congress intended the entire judicial
branch of the Government to be excluded from the provisions of the [APA].”);
Wacker v. Bisson, 348 F.2d 602, 608 n.18 (5th Cir. 1965) (“Th[e] legislative history
indicates that the APA excludes the entire judicial branch of the government.”); cf.
5 U.S.C. § 701(b)(1) (“‘[A]gency’ . . . does not include . . . the Congress.”); FCC v.
Fox Television Stations, Inc., 556 U.S. 502, 525 (2009) (“The [APA], after all, does
not apply to Congress and its agencies.” (emphasis added)).
                                              -5-
       Other circuits have reached a conclusion consistent with ours based on “the
principle of inclusio unius est exclusio alterius.” United States v. Lopez, 938 F.2d
1293, 1297 (D.C. Cir. 1991); see also Andrade v. U.S. Sentencing Comm’n, 989
F.2d 308, 309 (9th Cir. 1993) (per curiam). This “familiar maxim,” United States
v. Mangano, 299 F. 492, 494 (8th Cir. 1924), means “the expression of one thing
excludes others not expressed,” Watt v. GMAC Mortg. Corp., 457 F.3d 781, 783
(8th Cir. 2006). We agree with the Lopez and Andrade courts: Congress’s
inclusion of only the APA’s notice-and-comment requirements in the SRA is an
exclusion of the APA’s other provisions. But we do not rely solely on our
reluctance to “assume that Congress has omitted from its adopted text
requirements that it nonetheless intends to apply . . . when Congress has shown
elsewhere in the same statute that it knows how to make such a requirement
manifest.” Jama v. ICE, 543 U.S. 335, 341 (2005).

       We also consider the presumption against surplusage to be decisive. It is “a
cardinal principle of statutory construction that we must give effect, if possible, to
every clause and word of a statute.” Williams v. Taylor, 529 U.S. 362, 404 (2000)
(quoting United States v. Menasche, 348 U.S. 528, 538-39 (1955) (internal
quotation marks omitted). Johnson and the government present us with two
competing statutory interpretations. Only the government’s interpretation of the
SRA “avoids surplusage.” Freeman v. Quicken Loans, Inc., 566 U.S. ___, ___,
132 S. Ct. 2034, 2043 (2012). Johnson’s interpretation, by contrast, renders the
entirety of 28 U.S.C. § 994(x) “‘superfluous [and] insignificant,’” Market Co. v.
Hoffman, 101 U.S. 112, 115 (1879) (quoting 4 Matthew Bacon, Abridgment
*645).     If the APA applies independently, then the notice-and-comment
requirement of 5 U.S.C. § 553 would apply regardless of 28 U.S.C. § 994(x). We
decline Johnson’s invitation to adopt a reading of the SRA that “emasculate[s] an
entire [sub-]section.” Menasche, 348 U.S. at 539.




                                         -6-
       Because Congress has not authorized us to “hold unlawful and set aside”
action by the Commission “found to be . . . arbitrary, capricious, [or] an abuse of
discretion,” 5 U.S.C. § 706(2), we reject Johnson’s argument that we may
“disregard” the Commission’s non-retroactivity determination as arbitrary and
capricious.

       B.     Due Process
       That Congress has not authorized us to review the Commission’s policy
statements under the APA does not necessarily mean the Commission’s statements
are wholly unreviewable. If the Commission issued an irrational policy statement,
giving effect to that statement could violate due process. See, e.g., Chapman v.
United States, 500 U.S. 453, 465 (1991) (“[A] court may impose[] whatever
punishment is authorized by statute for [an] offense, . . . so long as the penalty is
not based on an arbitrary distinction that would violate the Due Process Clause of
the Fifth Amendment.” (internal citations omitted)). But the constitutional right to
due process is only implicated if a “deprivation[] of life, liberty or property . . . is
at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).4 Johnson, arguing the
Commission’s non-retroactivity determination violates his Fifth Amendment right
to due process, skips over this “threshold question,” id. We do not presume a
discretionary sentence modification creates “a constitutionally protected liberty
interest.” Id.

       A liberty interest protected by the Fifth Amendment may arise from two
sources: the Constitution, see, e.g., id., or a federal statute, see, e.g., Evans v.
Dillahunty, 662 F.2d 522, 525-26 (8th Cir. 1981) (holding a federal statute created
a liberty interest protected by the Due Process Clause of the Fifth Amendment);

      4
       Although Wilkinson involved the Fourteenth Amendment Due Process Clause
and Johnson invokes the Fifth Amendment right to due process, “[t]o suppose that
‘due process of law’ meant one thing in the Fifth Amendment and another in the
Fourteenth is too frivolous to require elaborate rejection,” Malinski v. New York, 324
U.S. 401, 415 (1945) (Frankfurter, J., concurring).
                                           -7-
cf., e.g., Swarthout v. Cooke, 562 U.S. ___, ___, 131 S. Ct. 859, 862 (2011) (per
curiam) (recognizing a liberty interest created by state law was protected by the
Fourteenth Amendment’s Due Process Clause); Mathews v. Eldridge, 424 U.S.
319, 332 (1976) (“[T]he interest of an individual in continued receipt of [Social
Security disability] benefits is a statutorily created ‘property’ interest protected by
the Fifth Amendment.”).

       Johnson cannot seriously point to the Constitution as the source of his
ostensible liberty interest because “the sentence-modification proceedings
authorized by § 3582(c)(2) are not constitutionally compelled.” Dillon v. United
States, 560 U.S. ___, ___, 130 S. Ct. 2683, 2692 (2010). There is “no
constitutional requirement of retroactivity that entitles defendants sentenced to a
term of imprisonment to the benefit of subsequent Guidelines amendments.” Id.
Therefore, if the liberty interest Johnson maintains is in a § 3582(c)(2) sentence
modification exists, Johnson must identify a statutory source.

       Johnson fails to specify a statutory source for any liberty interest. The only
authority to reduce a prison term based upon a subsequent amendment to the
Guidelines is § 3582(c)(2) itself, which is a discretionary exception to the rule that
a district “court may not modify a term of imprisonment once it has been
imposed.” 18 U.S.C. § 3582(c). Far from creating a substantive right to a
modification, “§ 3582(c)(2) represents a congressional act of lenity.” Dillon, 560
U.S. at ___, 130 S. Ct. at 2692 (emphasis added). Section 3582(c)(2) is “limited
[in] scope and purpose,” and “proceedings under § 3582(c)(2) do not implicate the
Sixth Amendment right to have essential facts found by a jury beyond a reasonable
doubt.” Id.

      The rationale for that holding applies equally to the Fifth Amendment right
to due process. Because “a § 3582(c)(2) proceeding do[es] not serve to increase
the prescribed range of punishment,” id., no “deprivation[] of . . . liberty . . . is at

                                          -8-
stake,” Wilkinson, 545 U.S. at 221. Johnson is already incarcerated. His liberty is
already deprived by virtue of a sentencing which gave him all the process the
Constitution required. See Johnson, 439 F.3d at 947. No new deprivation of
liberty can be visited upon him by a proceeding that, at worst, leaves his term of
imprisonment unchanged. “Judge Henry Friendly cogently noted that ‘there is a
human difference between losing what one has and not getting what one wants.’”
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979)
(quoting Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1296
(1975)). A § 3582(c)(2) proceeding offers no prospect of “exceeding the
sentence” in any way, let alone “in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force.” Sandin v. Conner, 515
U.S. 472, 484 (1995). By its plain terms, § 3582(c)(2) permits district courts to do
just one thing: “reduce the term of imprisonment.” 18 U.S.C. § 3582(c)(2)
(emphasis added).

      Neither can Johnson plausibly claim § 3582(c)(2) “create[d] a legitimate
expectation,” Greenholtz, 442 U.S. at 9, of a sentence reduction. Unlike the
mandatory language in the federal parole statute5 that created a “substantial
expectancy of parole” in Evans, 662 F.2d at 526, or in the state parole statute6 that
created an “expectancy of release” in Greenholtz, 442 U.S. at 12, the language in
§ 3582(c)(2) is doubly discretionary.

      First, Congress authorized a § 3582(c)(2) sentence reduction only if it “is
consistent with applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). Nothing in the SRA requires the


      5
       See Parole Commission and Reorganization Act, Pub. L. No. 94–233, 90 Stat.
219 (1976) (codified at 18 U.S.C. §§ 4201-18), repealed by Pub. L. No. 98–473, tit.
2, § 218, 98 Stat. 2027 (1984).
      6
          See Neb. Rev. Stat. § 83-1,114(1) (1976).
                                          -9-
Commission to issue a policy statement making any retroactive amendment to the
Guidelines. The SRA merely permits the Commission to do so:

      If 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) (emphasis added). There are at least two ways the
Commission could, consistent with this delegation of discretion, never issue a
retroactive amendment to the Guidelines. Most obviously, it could never
“reduce[] the term of imprisonment recommended by the guidelines.” Id.; see also
28 U.S.C. § 994(p) (“The Commission . . . may promulgate . . . amendments to the
guidelines.” (emphasis added)). Or the Commission could do what it did here:
issue an amendment and specify that it would not apply retroactively. See
U.S.S.G. § 1B1.10.

       Second, even if the Commission issues a retroactive amendment,
§ 3582(c)(2) does not require a district court to grant a sentence modification in
any particular case. On the contrary, § 3582(c)(2) merely permits a district court
to reduce an otherwise final “term of imprisonment” if the Commission has both
amended a Guidelines range and made the amendment retroactive. 18 U.S.C.
§ 3582(c)(2). Each district court “determine[s] whether, in its discretion, [a]
reduction . . . is warranted in whole or in part under the particular circumstances of
the case.” Dillon, 560 U.S. at ___, 130 S. Ct. at 2692 (emphasis added). “Our
cases recognize that a benefit is not a protected entitlement if government officials
may grant or deny it in their discretion.” Town of Castle Rock, Colo. v. Gonzales,
545 U.S. 748, 756 (2005).




                                        -10-
       It is true a district court’s exercise of discretion under § 3582(c)(2) arguably
is cabined by “substantive predicates,” Hewitt v. Helms, 459 U.S. 460, 472 (1983),
abrogated in part on other grounds by Sandin, 515 U.S. at 483, which the Supreme
Court has sometimes considered a prelude to due process protection, see, e.g., Ky.
Dep’t of Corr. v. Thompson, 490 U.S. 454, 463-64 (1989). At least in the context
of prison regulations, the Supreme Court has retreated from Hewitt’s formulaic
approach to due process. See Sandin, 515 U.S. at 482-84; Kennedy v.
Blankenship, 100 F.3d 640, 642 (8th Cir. 1996). We think Sandin’s “focus” on
“the nature of the deprivation,” 515 U.S. at 481, is more appropriate in the context
of this case, although we have occasionally applied Hewitt in certain contexts even
after the Supreme Court decided Sandin. See, e.g., Snodgrass v. Robinson, 512
F.3d 999, 1003 (8th Cir. 2008) (quoting a pre-Sandin case, Bagley v. Rogerson, 5
F.3d 325, 328-29 (8th Cir. 1993), for the proposition that “‘no liberty interest . . .
is created unless the state statute or regulation involved uses mandatory language
and imposes substantive limits on the discretion of state officials’”); Morgan v.
Rabun, 128 F.3d 694, 699 (8th Cir. 1997) (“Because Sandin does not apply, we
return to the Hewitt analysis.”). In any event, the absence of mandatory language
in § 3582(c)(2) means Johnson’s due process claim is defeated even under Hewitt.
Because § 3582(c)(2) “stop[s] short of requiring that a particular result is to be
reached upon a finding that the substantive predicates are met,” it is “not worded
in such a way that” Johnson “could reasonably expect to enforce [it] against”
either the Commission or the district court. Thompson, 490 U.S. at 464-65.

      The district court, by complying with § 3582(c)(2) and the Commission’s
non-retroactivity determination, did not violate Johnson’s Fifth Amendment right
to due process because § 3582(c)(2) proceedings do not implicate a
“constitutionally protected liberty interest,” Wilkinson, 545 U.S. at 221.

III.   CONCLUSION
       We affirm.
                  ______________________________

                                         -11-
