                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-2577
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                     Adam Lawin

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the Northern District of Iowa, Waterloo
                                 ____________

                           Submitted: February 9, 2015
                             Filed: March 5, 2015
                                  [Published]
                                ____________

Before BYE, BRIGHT, and BENTON, Circuit Judges.
                           ____________

PER CURIAM.

      Adam Lawin pleaded guilty to one count of conspiracy to distribute a
controlled substance in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846.
The district court1 sentenced him to 147 months' imprisonment and 5 years'
supervised release. Lawin argues the district court erred in denying his motion for
a downward variance and in denying his request to continue the sentencing hearing.
We affirm.

      In early 2012, Lawin began to purchase and distribute 3,4-
methylenedioxymethamphetamine, also known as MDMA or ecstasy. The
government charged him with one count of conspiring to distribute a controlled
substance and one count of possessing with intent to distribute a controlled substance.
In February 2014, Lawin pleaded guilty to the conspiracy count pursuant to a plea
agreement. The district court calculated Lawin's sentencing guidelines range to be
135 to 168 months and sentenced him to 147 months' imprisonment. Before the
sentencing hearing on June 19, 2014, both parties asked the court to vary downward
by two levels in anticipation of Amendment 782 to the United States Sentencing
Guidelines.2 At the sentencing hearing, the district court recognized it had the
authority to vary downward but declined to do so, explaining the then-proposed
amendment was not guaranteed to take effect.

      On appeal, Lawin argues the district court erred in denying the motion to vary
downward by two levels from the correctly calculated guidelines range in anticipation
of Amendment 782. Our case law on this issue is clear: "[T]he district court was not
required to consider the pending guidelines amendment. Consideration of the
pending amendment is merely permissible, not required." United States v. Allebach,
526 F.3d 385, 389 (8th Cir. 2008); United States v. Davis, 276 F. App'x 527, 528 (8th


      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
      2
       Amendment 782 became effective November 1, 2014, and applies
retroactively to reduce most drug quantity base offense levels by two levels. See
United States v. Thomas, 775 F.3d 982, 982 (8th Cir. 2014).

                                         -2-
Cir. 2008) (rejecting the argument that "the district court imposed an unreasonable
sentence because it failed to consider a proposed amendment to the Guidelines that
would have lowered the advisory Guidelines imprisonment range"); United States v.
Harris, 74 F.3d 1244 (8th Cir. 1996). The district court considered and rejected
prospectively applying Amendment 782. It did not err in so doing. Without any
supporting authority, the dissent attempts to distinguish our case law on the basis that
this case involves a different amendment and states that "[t]he applicability of the
cases [above] . . . may be questionable." However, our holdings were not limited to
any specific amendment. Moreover, they follow the firmly-established principle that
the court must apply the Sentencing Guidelines in effect at the time of sentencing
unless doing so would violate the ex post facto clause of the United States
Constitution. See, e.g., United States v. Adams, 509 F.3d 929, 932 n.4 (8th Cir.
2007).

       Lawin also argues the district court erred in denying his request to continue the
sentencing hearing until after November 1, 2014. "We will reverse a district court's
decision to deny a motion for continuance only if the court abused its discretion and
the moving party was prejudiced by the denial." United States v. Woods, 642 F.3d
640, 644 (8th Cir. 2011) (internal quotation marks omitted). Lawin argues the denial
of the continuance prejudiced him because it deprived him of the benefit of
Amendment 782, but he fails to articulate how the court abused its discretion in
denying the continuance. We find no abuse of discretion. See id. at 644-45 (rejecting
appellant's argument that the district court abused its discretion in denying his motion
for a continuance until an amendment to the Guidelines took effect); United States
v. McBride, 426 F. App'x 471, 474 (8th Cir. 2011); United States v. Scallion, 83 F.3d
425 (8th Cir. 1996).

       To address the dissent's concern, we note that Lawin has not been deprived of
the opportunity to pursue the benefit of Amendment 782. See 18 U.S.C. § 3582(c)(2)
("[I]n the case of a defendant who has been sentenced to a term of imprisonment

                                          -3-
based on a sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own motion, 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."). The dissent believes the
opportunity to pursue relief under § 3582(c)(2) renders the issues on appeal moot
because Lawin is "entitled to the relief he now seeks regardless of the outcome of this
appeal." However, Lawin has neither received the relief he seeks in this appeal nor
is he guaranteed to receive it under § 3582(c)(2). See United States v. Hasan, 245
F.3d 682, 684 (8th Cir. 2001) (en banc) ("[T]he district court retains the discretion to
determine whether to resentence the defendant within the new lower range. It is not
required to do so, and a new lesser sentence is not to be automatically awarded.").
Moreover, whether Lawin is entitled to a reduction in his sentence based on
§ 3582(c)(2) is a separate question from whether the district court erred in denying
his motions.

       Finally, the dissent asserts remand is appropriate so as not to "delay any
further the remedy that Lawin deserves." However, it acknowledges "the district
court may immediately hold a hearing to rule on Lawin's eligibility for a sentence
reduction and determine that reduction." We do not believe our holding causes any
delay or deprives Lawin of a benefit he may be entitled to, nor do we perceive any
material benefit in remanding. Cf. United States v. Yanez-Estrada, No. 14-2989,
2015 WL 508862, at *1 (8th Cir. Feb. 9, 2015) ("This court notes that any claim for
a sentence reduction based on Guidelines Amendment 782 . . . should be raised in a
sentence-reduction motion filed in the district court."); United States v. Hayden, 775
F.3d 847, 850 (7th Cir. 2014) ("[Appellant] may ask the district court for a sentence
reduction based on Amendment 782 . . . but he has not yet done so and we do not
consider that argument here."); United States v. Ergonis, 587 F. App'x 431, 432 (9th
Cir. 2014) ("Any motion respecting the applicability of Amendment 782 to the

                                          -4-
Guidelines should be brought in the sentencing court in the first instance."); United
States v. Moreno, No. 13-41019, 2015 WL 394450, at *2 (5th Cir. Jan. 30, 2015).

      Accordingly, we affirm.

BRIGHT, Circuit Judge, dissenting.

       I write separately to express my view that I would neither affirm nor reverse
in this case. For all practical purposes, this appeal is moot. In my view, we should
remand for further proceedings now that the reduction in the base offense levels for
most drug quantity offenses under U.S.S.G. § 2D1.1 (Amendment 782) has become
effective and retroactive. See U.S.S.G. § 1B1.10(d) and (e)(1); United States v.
Thomas, No. 14-3801, 2014 WL 7359580, at *1 (8th Cir. Dec. 29, 2014).

       It’s unnecessary to reach the merits of this appeal for two reasons. First, there
exists good authority for mootness. In United States v. Allebach, 526 F.3d 385 (8th
Cir. 2008), we considered whether the district judge erred in sentencing the defendant
by refusing to apply the proposed amendment to the 100:1 ratio between crack
cocaine and powder cocaine quantities in the Guidelines. Id. at 389. The amendment
had become effective and retroactive at the time we considered the defendant’s
appeal. Id. We noted:

      As a practical matter this issue is essentially moot. The sentencing
      commission has made the guidelines amendment retroactive. See
      U.S.S.G. app. C, amend. 713 (Supp. 2008) cited in United States v.
      Whiting, 522 F.3d 845, 851-52 (8th Cir. 2008). The district court has
      the discretion to resentence Allebach using the amended guidelines.

Id. at 389 n.6.




                                          -5-
       The same is true here. The parties prepared and filed their briefs in this case
prior to Amendment 782 becoming effective on November 1, 2014. Because
Amendment 782 now retroactively applies to Lawin, he is entitled to the relief he now
seeks (the benefit of the Amendment) regardless of the outcome of this appeal. See
18 U.S.C. § 3582(c)(2). Accordingly, this case is moot.

       Second, there is no need to reach the merits because even in the absence of
mootness, our case law favors a remand instead of an outright affirmance. In United
States v. Whiting, 522 F.3d 845 (8th Cir. 2008), we stated that “[w]hen an amendment
to the guidelines becomes retroactive during the appellate proceedings on a case, it
may be remanded to the district court for determination of whether the amendment
warrants a sentence reduction” even though the district court or the defendant can
independently move for a sentence reduction under 18 U.S.C. § 3582(c)(2).3 Id. at
853. We have applied this principle on multiple occasions. See, e.g., United States
v. Shields, 519 F.3d 836, 838 (8th Cir. 2008); United States v. Coohey, 11 F.3d 97,
101 (8th Cir. 1993). And although a remand in these circumstances is not contingent
on the mutual consent of the parties, it is significant that both parties here requested
that the district court give Lawin the benefit of Amendment 782 at sentencing.
Indeed, remanding would afford counsel for the parties an early opportunity to seek
application of the now effective amended Guidelines for Lawin’s benefit.

      I acknowledge that some of the case law cited in the majority opinion may
support an affirmance. These cases, however, relate, for the most part, to an
amendment reducing the sentence disparities resulting from the 100:1 ratio between
weighing crack cocaine (greater) and powder cocaine (lesser) in the Guidelines. That
disparity was discrete and had little to do with any determination that drug sentences
generally were too severe.


      3
     Interestingly, the district judge refusing to apply the proposed Guidelines
amendment in Whiting and Allebach is the same district judge as here.

                                          -6-
       In contrast, the enactment of Amendment 782 stems from the recognition by
law enforcement and, in turn, the Sentencing Commission that, as stated by Attorney
General Holder, “too many Americans go to too many prisons for far too long, and
for no truly good law enforcement reason.” See Eric Holder, Attorney General of the
United States, United States Department of Justice, Remarks at the Annual Meeting
of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at
http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-130812.html. Indeed,
Amendment 782 responds to the “federal interest” that would be served by changes
in drug sentencing policies followed by federal prosecutors.4 The applicability of the
cases cited by the majority may be questionable given the stark difference in the
scope and the motivations underlying the powder/crack cocaine amendment
compared to Amendment 782.

      While the district judge’s prior refusals to prospectively apply Guidelines
amendments have not been reversed on appeal, the appeals have generally been
remanded to the district court under a mandate to assess a possible sentence reduction
under the newly-amended Guidelines. See, e.g., United States v. Woods, 531 F.3d
701, 702-03 (8th Cir. 2008) (stating that “it would be inconsistent” not to remand the
matter for resentencing in light of this court’s remand in Whiting). Considering that


      4
        Here, the prosecutor in his consent to application of Amendment 782 at
Lawin’s sentencing appears to have been following the Justice Department’s directive
“not to object if defendants in court seek to have the newly proposed guidelines
applied to them during sentencing.” See Press Release, United States Department of
Justice, Attorney General Holder Urges Changes in Federal Sentencing Guidelines
to Reserve Harshest Penalties for Most Serious Drug Offenders (Mar. 13, 2014),
available at http://www.justice.gov/opa/pr/attorney-general-holder-urges-changes-
federal-sentencing-guidelines-reserve-harshest. This directive comports with
Attorney General Holder’s view that Amendment 782 is consistent with efforts “to
conserve precious resources; to improve outcomes; and to disrupt the destructive
cycle of poverty, incarceration, and crime that traps too many Americans and weakens
entire communities.” Id.

                                         -7-
at Lawin’s sentencing little question existed that Amendment 782 would have
Congressional approval through non-action and that the parties agreed to the
Amendment’s application, I believe a remand, rather than an affirmance, is warranted.
The result of an affirmance in this case may well be a waste of time and judicial
resources.

       Recognizing that Lawin’s appeal is for all practical purposes moot, it would
seem appropriate to either dismiss his appeal outright or remand with instructions for
the district court to consider whether Lawin is entitled to a sentence reduction under
the recently-amended Guidelines.

      To ensure effective representation, counsel for Lawin, on the majority opinion
becoming final, should move the district court under 18 U.S.C. § 3582(c)(2) for a
reduction of Lawin’s sentence pursuant to Amendment 782.5 And although the
Guidelines provide that the district court “shall not order a reduced term of
imprisonment based on Amendment 782 unless the effective date of the court’s order


      5
       Section 3582(c)(2) provides that, “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 pursuant to 28 U.S.C.
994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on
its own motion, 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.”

       Section 1B1.10 of the United States Sentencing Guidelines defines the limits
of sentencing relief available under 18 U.S.C. § 3582(c)(2). That section instructs the
district court to “determine the amended guideline range that would have been
applicable to the defendant if the amendment(s) to the guidelines listed in subsection
(d) had been in effect at the time the defendant was sentenced.” U.S.S.G.
§ 1B1.10(b)(1).


                                         -8-
is November 1, 2015, or later,” U.S.S.G. § 1B1.10(e)(1), that provision “does not
preclude the court from conducting sentence reduction proceedings and entering
orders under 18 U.S.C. § 3582(c)(2) and this policy statement before November 1,
2015.” U.S.S.G. § 1B1.10, comment. (n.6). In other words, the district court may
immediately hold a hearing to rule on Lawin’s eligibility for a sentence reduction and
determine that reduction. See, e.g., United States v. Poppens, No. CR02-4105-MWB,
2014 WL 6455656, at *2 (N.D. Iowa Nov. 17, 2014) (the district court granting on
its own motion a sentence reduction for the defendant pursuant to 18 U.S.C. §
3582(c)(2) in light of Amendment 782).

       The Guidelines requirements also state that in reducing Lawin’s sentence, the
district court “shall substitute only [Amendment 782] for the corresponding guideline
provisions that were applied when [Lawin] was sentenced and shall leave all other
guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b)(1).

      Let’s not delay any further the remedy that Lawin deserves.6
                       ______________________________




      6
       As far as the dissent is concerned, the only relief to which Lawin is entitled
on remand is a consideration under 18 U.S.C. § 3582(c)(2) by the district court of
whether his sentence should be reduced in light of Amendment 782. This judge
appreciates the majority calling attention to the fact that Lawin is now entitled to such
consideration. The majority recognizes that this consideration can be immediate on
a timely motion.

                                          -9-
