                                                       FILED
                                           United States Court of Appeals
                UNITED STATES COURT OF APPEALS     Tenth Circuit

                       FOR THE TENTH CIRCUIT                   March 23, 2017
                       _________________________________
                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                    No. 16-2077
                                            (D.C. No. 2:01-CR-00218-LH-1)
PERCY HOLCOMB,                                         (D. N.M.)

       Defendant-Appellant.
                     _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before O’BRIEN and BACHARACH, Circuit Judges.  
                   _________________________________




*
      The Court has determined that oral argument would not materially
aid our consideration of the appeal. As a result, we are deciding the appeal
based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).

      The Honorable Neil Gorsuch participated earlier as a member of the
panel in this case, but he is not participating in the decision. The practice
of this court permits the remaining two panel judges, if in agreement, to
act as a quorum in resolving the appeal. See 28 U.S.C. § 46(d) (2012); see
also United States v. Wiles, 106 F.3d 1516, 1516, at n* (10th Cir. 1997)
(noting that this court allows remaining panel judges to act as a quorum to
resolve an appeal). In this case, the two remaining panel members are in
agreement.
     This appeal involves the constitutionality of a provision in the U.S.

Sentencing Guidelines: § 1B1.10(b)(2)(B). Under this provision, the

district court can reduce a sentence when the U.S. Sentencing Commission

amends the guidelines by reducing the applicable guideline range.

     Mr. Holcomb invoked § 1B1.10(b)(2)(B) in 2014, seeking reduction

of the sentence that he had received in 2002. But in 2011, the U.S.

Sentencing Commission tightened § 1B1.10(b)(2)(B)’s eligibility

requirements. This tightening worked against Mr. Holcomb: Under the

2002 version, he would have been eligible for relief; under the 2014

version, he was not. The district court applied the 2014 version and held

that Mr. Holcomb was ineligible for relief under § 1B1.10(b)(2)(B).

     Mr. Holcomb argues that application of the 2014 version resulted in a

violation of the Ex Post Facto Clause, exceeded the Sentencing

Commission’s statutory authority, and usurped the judiciary’s authority to

determine an appropriate sentence. We reject these challenges: Our

precedent forecloses relief under the Ex Post Facto Clause, Congress

authorized the Sentencing Commission to determine the retroactivity of its

amendments, and § 1B1.10(b)(2)(B) did not usurp a judicial function.

Accordingly, we affirm.




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1.   Standard of Review

     In determining these challenges to § 1B1.10(b)(2)(B), we engage in

de novo review. United States v. LeRoy, 984 F.2d 1095, 1096 (10th Cir.

1993).

2.   Ex Post Facto Clause

     According to Mr. Holcomb, the Constitution’s Ex Post Facto Clause

required application of the guideline version that was in effect when the

crime was committed (2000). We rejected a virtually identical claim in

United States v. Kurtz, 819 F.3d 1230, 1237 (10th Cir. 2016). There we

explained that § 1B1.10 does not increase the punishment; instead, the

provision simply narrows courts’ discretion to decrease a sentence. Id. at

1236; see also United States v. Womack, 833 F.3d 1237, 1240 (10th Cir.

2016) (holding that the Ex Post Facto Clause is not violated by a guideline

amendment that narrows the district court’s discretion to reduce a

sentence). Our holding in Kurtz is consistent with the holdings of every

other circuit court to address the question. See United States v. Ramirez,

846 F.3d 615, 625 (2d Cir. 2017); United States v. Kruger, 838 F.3d 786,

790-92 (6th Cir. 2016); United States v. Thompson, 825 F.3d 198, 200, 206

(3d Cir. 2016), cert. denied, 137 S. Ct. 326 (2016); United States v.

Waters, 771 F.3d 679, 680-81 (9th Cir. 2014) (per curiam); United States

v. Diggs, 768 F.3d 643, 645-46 (7th Cir. 2014); United States v. Colon, 707

F.3d 1255, 1258-59 (11th Cir. 2013).

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     Mr. Holcomb contends that Kurtz was wrongly decided. But one

panel cannot overrule another, and we are obligated to follow Kurtz.

United States v. Spaulding, 802 F.3d 1110, 1124-25 (10th Cir. 2015).

Under Kurtz, application of the 2014 version of § 1B1.10 did not violate

the Ex Post Facto Clause.

3.   Statutory Authorization for the Enactment of § 1B1.10

     Mr. Holcomb also argues that the Sentencing Commission exceeded

its statutory authority by amending § 1B1.10. We reject this argument.

     Mr. Holcomb first argues that the new version of § 1B1.10 takes

away his prior downward variance or departure. This is simply not true. At

the original sentencing, Mr. Holcomb obtained a downward variance; no

one is taking that variance away. See Diggs, 768 F.3d at 646 (“[T]he

Commission did not require the district court to withdraw a specific

variance . . . .”). In 2011, the Sentencing Commission simply limited the

extent to which a court could issue a new downward variance when

reducing the sentence under 18 U.S.C. § 3582(c)(2). See United States v.

Berberena, 694 F.3d 514, 518, 521 (3d Cir. 2012) (“Rather than undo the

effect of previous departures and variances, the Commission has merely

limited the extent to which new ones can be awarded in § 3582(c)(2)

proceedings.”).

     Second, Mr. Holcomb contends that the Commission can prohibit a

departure or variance only if the reason for the departure or variance

                                     4
relates to the substance of the retroactive amendment. This contention is

invalid. Congress directed the U.S. Sentencing Commission to determine

“in what circumstances and by what amount” a sentence can be reduced

when the applicable guideline range is lowered. 28 U.S.C. § 994(u). The

Sentencing Commission complied with this directive by enacting § 1B1.10.

Braxton v. United States, 500 U.S. 342, 348 (1991).

      For one or both of these reasons, every circuit court to address the

issue has held that § 1B1.10 is authorized by statute. Diggs, 768 F.3d at

646-47; United States v. Davis, 739 F.3d 1222, 1225 (9th Cir. 2014);

United States v. Hogan, 722 F.3d 55, 60 (1st Cir. 2013); United States v.

Erskine, 717 F.3d 131, 136-39 (2d Cir. 2013); United States v. Colon, 707

F.3d 1255, 1259-60 (11th Cir. 2013); Berberena, 694 F.3d at 520-23;

United States v. Anderson, 686 F.3d 585, 589-90 (8th Cir. 2012). We agree

with these circuit courts and similarly conclude that § 1B1.10 is authorized

by statute.

4.    Commission’s Usurpation of Judicial Authority

      Mr. Holcomb also challenges § 1B1.10 on the ground that the

Sentencing Commission usurped the judiciary’s sentencing authority. We

reject this challenge.

      The Sentencing Commission did not enact § 1B1.10 in a vacuum. As

noted above, the Commission adopted § 1B1.10 because of an express

delegation from Congress, which enjoys the power to curtail the judiciary’s

                                      5
discretion over sentencing. See pp. 4-5, above (delegation of authority by

Congress); Mistretta v. United States, 488 U.S. 361, 364 (1989) (Congress

can curb the judiciary’s discretion over sentencing). Thus, every circuit

court to address the issue has held that the Sentencing Commission did not

usurp the judiciary’s sentencing authority by amending § 1B1.10. See

Davis, 739 F.3d at 1225; Erskine, 717 F.3d at 139-40; Colon, 707 F.3d at

1260-61; Berberena, 694 F.3d at 525-26. We agree with these circuit

courts and similarly conclude that the Sentencing Commission did not

usurp the judiciary’s authority.

5.    Conclusion

      We conclude that the tightening of § 1B1.10 does not violate the Ex

Post Facto Clause, exceed Congress’s delegation of authority to the

Sentencing Commission, or usurp the judiciary’s power over sentencing

decisions. Accordingly, we affirm.

                                      Entered for the Court


                                      Robert E. Bacharach
                                      Circuit Judge




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