               Case: 15-10532       Date Filed: 08/19/2015       Page: 1 of 16


                                                                                 [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             _________________________

                                     No. 15-10532
                              _________________________

                    D.C. Docket No: 8:07-cr-00454-JSM-TGW-11


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                            versus


MICHAEL PAUL MAIELLO, JR.,
a.k.a. M.P.,

                                                                  Defendant-Appellant.

                                _____________________

                      Appeal from the United States District Court
                          for the Middle District Of Florida
                             _______________________

                                     (August 19, 2015)

Before MARTIN and ROSENBAUM, Circuit Judges, and PROCTOR, * District
Judge.



* Honorable R. David Proctor, United States District Judge for the Northern District of Alabama,
sitting by designation.
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PROCTOR, District Judge:

      On April 10, 2014, the United States Sentencing Commission voted

unanimously to amend the U.S. Sentencing Guidelines (“USSG”) to lower the base

offense levels (found in the Drug Quantity Table in USSG § 2D1.1) by two levels

across all drug types. The vehicle for this change was Amendment 782, which

went into effect on November 1, 2014. A difficult issue that the Commission

confronted in adopting Amendment 782 was whether it should be applied to

eligible incarcerated offenders on a prospective basis only. Instead, the

Commission opted to apply Amendment 782 retroactively, with one important

exception: eligible offenders who are currently incarcerated are not eligible for

release before November 1, 2015. This one-year “delay,” promulgated at USSG §

1B1.10(e), is very significant for certain prisoners. There are a number of offenders

who, if given the benefit of the two level guideline reduction (without the section

1B1.10(e) delay), would otherwise be eligible for quicker relief (and, in some

cases, immediate release). But these prisoners are now required to wait until

November 2015 to be released from custody. Michael Paul Maiello, Jr. is one of

those prisoners. He challenges the district court’s decision to apply the one year

delay contemplated by section 1B1.10(e) to his motion for a sentence reduction.

      This case presents a straightforward question: Did the district court err when

it applied section 1B1.10(e) to the motion for sentence reduction under 18 U.S.C. §


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3582(c)(2) and Amendment 782 filed by Maiello? After careful review, and with

the benefit of oral argument, we hold that it did not. Therefore, we affirm the

district court’s ruling.

                                    I. BACKGROUND

       After voting to amend the sentencing guidelines to reduce the base offense

levels for most drug offenses (Amendment 782), the Commission asked for public

comment on the question of retroactivity and it received more than 60,000 letters

in response. That correspondence came from members of Congress, the judiciary,

advocacy groups, inmates, as well as other groups and individuals. The

Commission also held a public hearing and heard from representatives of the

judicial and executive branches, the defense bar, law enforcement, and certain

advocacy groups.

       A major concern expressed at the public hearing was the impact retroactivity

would have on public safety, particularly given the burdens retroactivity would

place on the criminal justice system and the risks posed by the predicted early

release of thousands of drug offenders.1 Some law enforcement groups opposed

retroactivity altogether, noting (among other things) concerns that early release of

drug offenders would have a deleterious effect on public safety and crime rates.

The Criminal Law Committee of the Judicial Conference expressed concerns about

1
 The hearing transcript is available at http://www.ussc.gov/sites/default/files/pdf/amendment-
process/public-hearings-and-meetings/20140610/transcript.pdf.
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the burdens that retroactive application of Amendment 782 would impose on an

already strained probation and pretrial services system. The Director of the Bureau

of Prisons detailed the laborious task of recalculating the new projected release

dates, formulating release plans, and arranging for residential reentry center

custody or home confinement as inmates prepared to reenter society.

      A compromise was reached and Amendment 788 was passed, making

Amendment 782 retroactive, albeit with a delayed effective date. USSG App. C,

Amend. 788 (2014). Amendment 782 became effective immediately for

defendants sentenced on or after November 1, 2014. But for defendants who were

sentenced prior to the effective date, the Sentencing Commission promulgated

section 1B1.10(e), which prohibits any order granting relief under Amendment 782

from taking effect prior to November 1, 2015. That is, section 1B1.10(e) prohibits

district courts from reducing a “term of imprisonment based on Amendment 782

unless the effective date of the court’s order is November 1, 2015, or later.” USSG

§ 1B1.10(e).

      The Commission determined that under this framework, the administrative

burdens of applying Amendment 782 retroactively, although significant, would be

“manageable given the one-year delay in the effective date, which allows courts

and agencies more time to prepare.” USSG App. C, Amend. 788 at 87 (Reason for




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Amendment). The Commission also stated that such a delay was needed for

additional reasons:

       (1) to give courts adequate time to obtain and review the information
       necessary to make an individualized determination in each case of
       whether a sentence reduction is appropriate,

       (2) to ensure that, to the extent practicable, all offenders who are to be
       released have the opportunity to participate in reentry programs and
       transitional services, such as placement in halfway houses, while still
       in the custody of the Bureau of Prisons, which increases their
       likelihood of successful reentry to society and thereby promotes
       public safety, and

       (3) to permit those agencies that will be responsible for offenders after
       their release to prepare for the increased responsibility.

Id. at 88.

                      II. SUMMARY OF RELEVANT FACTS

       Maiello is a prisoner who was sentenced before November 1, 2014. In 2008,

he pled guilty to a single count of conspiracy to possess with intent to distribute,

and to distribute 1000 kilograms or more of marijuana and 5 kilograms or more of

cocaine. Maiello is currently serving a 108 month sentence. Based upon that

sentence, his release date is February 5, 2016.

       On February 3, 2015, Maiello moved for a reduction of his sentence

pursuant to section 3582(c)(2) and Amendment 782. Maiello requested that the

reduction be granted “without application of USSG § 1B1.10(e).” The district court

granted Maiello’s motion in part. The court reduced Maiello’s sentence “from 108


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months to 80 months or time served, whichever is greater;” however, the court

declined to suspend the application of section 1B1.10(e), such that Maiello’s

projected early release date is now November 2, 2015. 2 If given a 28-month

sentence reduction, and had the one year delay not been applied, Maiello would

have been eligible for immediate release. On appeal, he argues that the district

court’s application of section 1B1.10(e) was in error and that he should have been

immediately released from prison based on time served.

                            III. STANDARD OF REVIEW

       We review de novo a district court’s legal conclusions about the scope of its

legal authority under 18 U.S.C. § 3582(c). United States v. Colon, 707 F.3d 1255,

1258 (11th Cir. 2013) (citing United States v. James, 548 F.3d 983, 984 (11th Cir.

2008) (per curiam)); United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008)

(citing United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002) (per curiam)).

                                   IV. DISCUSSION

       Maiello argues that the district court, in granting his motion under 18 U.S.C.

§ 3582(c)(2), erred in applying the effective-date limitation. In support of this

argument, Maiello asserts that: (1) the district court violated 18 U.S.C. § 3582(a)

by declining to suspend the application of section 1B1.10(e); (2) the Sentencing

Commission exceeded its statutory authority in passing section 1B1.10(e); (3) the

2
 Maiello is due to be released on November 2, 2015 because November 1, 2015 falls on a
Sunday.
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Sentencing Commission’s selection of November 1, 2015 as the earliest possible

Amendment 782 release date is arbitrary and capricious; and (4) section 1B1.10(e)

violates the constitutional principle of separation of powers. The court addresses

each of these arguments, in turn.

      A.     The District Court Did Not Violate 18 U.S.C. § 3582(a)

      Maiello contends that, by applying section 1B1.10(e), the district court in

effect lengthened or imposed a greater sentence on him (as measured by the

difference in time between the date his motion for a sentence reduction was

granted in part and November 2, 2015). He further argues that the district court

committed error because this delayed effective date was enacted because of

rehabilitative concerns in violation of Tapia v. United States, 131 S. Ct. 2382

(2011). Both of Maiello’s assertions are off the mark.

             1.    There Was No Imposition or Lengthening of Maiello’s
                   Sentence
      The Sentencing Commission explained its reasons for delaying the effective

date of Amendment 782 until November 1, 2015. In doing so, the Commission

stated in part that retroactivity was intended:

      to ensure that, to the extent practicable, all offenders who are to be
      released have the opportunity to participate in reentry programs and
      transitional services, such as placement in halfway houses, while still
      in the custody of the Bureau of Prisons, which increases their
      likelihood of successful reentry to society and thereby promotes
      public safety.


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USSG App. C, Amend. 788 (2014).

       In Tapia v. United States, 3 the Supreme Court held that, under section

3582(a), a sentencing court “may not impose or lengthen a prison sentence to

enable an offender to complete a treatment program or otherwise to promote

rehabilitation.” 131 S. Ct. at 2393 (emphasis added). We conclude that Maiello’s

reliance on section 3582(a) is misplaced as that code section has a materially

different purpose than section 3582(c) which applies here.

       Tapia and section 3582(a) address the factors courts may properly consider

when imposing a term of imprisonment. However, neither Tapia nor section

3582(a) in any way limit the factors that the Sentencing Commission may consider

in determining “in what circumstances and by what amount” prisoners already

serving a term of imprisonment may benefit from a retroactive application of a

guideline amendment. Section 3582(a) guides courts in the initial imposition of a

sentence. But section 3582(c) has a different purpose – it authorizes a court, in

limited circumstances, to modify a term of imprisonment already imposed. “[A]

district court proceeding under [section] 3582(c)(2) does not impose a new

sentence in the usual sense.” Dillon v. United States, 560 U.S. 817, 827,130 S. Ct.

2683, 2691 (2010) (emphasis added). “[T]he sentence-modification proceedings


3
 Tapia involved an appeal of a sentence initially imposed upon conviction. Tapia, 131 S. Ct. at
2393. Our court has also held that Tapia applies to sentences imposed upon revocation of
supervised release. United States v. Vandergrift, 754 F.3d 1303, 1309 (11th Cir. 2014).
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authorized by § 3582(c)(2) are readily distinguishable from other sentencing

proceedings.” Id. at 830, 130 S. Ct. at 2693. As the Supreme Court has further

explained:

       A federal court generally “may not modify a term of imprisonment
       once it has been imposed.” 18 U.S.C. § 3582(c). Congress has
       provided an exception to that rule “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.”
       § 3582(c)(2). In those circumstances, § 3582(c)(2) authorizes a court
       to reduce the term of imprisonment “if such a reduction is consistent
       with” applicable Commission policy statements.

Id. at 819, 130 S. Ct. at 2687. “[Section] 3582(c)(2) does not authorize a

resentencing. Instead, it permits a sentence reduction within the narrow bounds

established by the Commission.” Id. at 831, 130 S. Ct. at 2694 (emphasis added).

A motion pursuant to 18 U.S.C. § 3582(c)(2) can only “reduce the term of

imprisonment.” 18 U.S.C. § 3582(c)(2) (emphasis added). Therefore, Tapia is

simply inapplicable here because there has been no “imposition or lengthening” of

a sentence; indeed, there has only been a reduction of a sentence under section

3582(c)(2).4



4
 For these same reasons, we conclude that our Vandergrift decision is equally inapplicable.
While Tapia involved an original sentence which the district court indicated it was lengthening to
allow the defendant to complete a 500-hour drug treatment program while incarcerated, 131 S.
Ct. at 2385, Vandergrift dealt with a sentence imposed at a revocation hearing, 754 F.3d at 1306.
In both situations, the sentencing court was called upon to impose a sentence after considering
the relevant factors contained in 18 U.S.C. § 3582(a). As we have already noted, however, any
reliance upon section 3582(a) in this case is misplaced. It is section 3582(c) that controls here.
Thus, Maiello’s citation to Vandergrift is inapposite.
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             2.    Section 1B1.10(e) is Binding on the Courts

      To the extent Maiello contends that the district court should have ignored

section 1B1.10(e), he is simply wrong. As this court has previously explained,

“[section] 994(u) requires the Commission to specify the circumstances in which

and the amounts by which sentences may be reduced based on retroactive

amendments; [section] 994(a)(2)(C) requires that it do so in a policy statement; and

[section] 3582(c)(2) requires courts to follow those policy statements.” Colon, 707

F.3d at 1259–60. In a section 3582(c)(2) proceeding, the Commission’s policy

statements are binding, and courts lack authority to disregard them. See Dillon, 560

U.S. at 825–28, 130 S. Ct. at 2690–92; Colon, 707 F.3d at 1259–60. Therefore, the

district court was not free, as Maiello argues, simply to disregard the binding

policy statement in section 1B1.10(e).

      B.     The Adoption of Section 1B1.10(e) Did Not Violate the
             Administrative Procedure Act

      Section 1B1.10(e) specifies that “[t]he court shall not order a reduced term

of imprisonment based on Amendment 782 unless the effective date of the court’s

order is November 1, 2015, or later.” Maiello argues that the Commission’s

selection of November 1, 2015 as the earliest possible release date was arbitrary

and capricious, and thus violates the Administrative Procedure Act (“APA”). The

government responds in two parts: it contends that (1) the APA does not apply to



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the Commission’s actions here; but, even if it did, (2) the Commission’s actions

here were not arbitrary or capricious. We agree on both scores.

      The Third, Eighth, Ninth, and D.C. Circuits have all held that the

Commission is not an “agency” subject to the requirements of the APA. United

States v. Tercero, 734 F.3d 979, 984 (9th Cir. 2013); United States v. Wayne, 516

F. App’x. 135, 138 (3d Cir. 2013) (unpublished opinion); United States v. Johnson,

703 F.3d 464, 468 (8th Cir. 2013); United States v. Berberena, 694 F.3d 514, 515

(3d Cir. 2012); Wash. Legal Found. v. U.S. Sentencing Comm’n, 17 F.3d 1446,

1450 (D.C. Cir. 1994) (“Congress decided that the Sentencing Commission would

not be an ‘agency’ under the APA when it established the Commission as an

independent entity in the judicial branch.”). We agree with our sister circuits and

hold that the Sentencing Commission’s decisions in this area are not subject to

APA review.

      Our holding is consistent with our previous decisions, particularly our prior

treatment of APA challenges to the Commission’s policy statements. As we have

previously held, “the Commission’s amendment to [section] 1B1.10 was not

subject to the APA’s notice and comment requirements.” Colon, 707 F.3d at 1262.

This is so because Congress “made proposed guidelines, but not changes in policy

statements, subject to the APA’s notice and comment provisions.” Id. at 1261

(quoting 28 U.S.C. § 994(x)) (“The provisions of section 553 of title 5, relating to


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publication in the Federal Register and public hearing procedure, shall apply to the

promulgation of guidelines pursuant to this section.”) (emphasis added).

      Finally, even if section 1B1.10(e) were the subject of review under the APA

(and, to be clear, we hold that it is not), it would easily pass muster. The

Commission considered various factors in deciding to apply Amendment 782

retroactively, including the purpose of the amendment, the magnitude of the

change in the guidelines range, and “the difficulty of applying the amendment

retroactively.” Section 1B1.10, comment. After it conducted the public hearing

regarding retroactivity, the Commission chose to address the concerns about the

burden that retroactive application would place on the criminal justice system, as

well as the public safety concerns posed by this diversion of resources and the

early release of tens of thousands of drug offenders.

      In deciding to make Amendment 782 retroactive, the Commission explained

that the one-year delay would, among other things, allow courts sufficient time to

evaluate the motions individually, allow the early-release offenders to receive the

same transitional services that other federal inmates receive before their release,

and allow the probation office adequate time to marshal resources to effectively

supervise the thousands of newly released offenders. USSG App. C, Amend. 788

at 87–88 (Reason for Amendment). The Commission’s provision of a one-year

delay in implementing Amendment 782 is reasonable and practical. It is neither


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arbitrary nor capricious. Maiello’s argument that the “record is devoid of any

evidence whatsoever as to why the Commission chose November 1, 2015, as the

delayed-release date” (Appellant’s Brief at 18–19) is simply without merit. In light

of the testimony from certain groups which opposed retroactivity altogether, the

decision to delay effectiveness for a one year period was eminently reasonable.

      C.     The Limitation on Retroactive Application of Amendment 782
             Imposed by Section 1B1.10(e) Does Not Violate the Separation of
             Powers Principle

      Maiello argues that section 1B1.10(e) violates the separation of powers

principle by limiting a district court’s discretion to decide when a judicial order

may take effect. But his argument cuts no ice at all.

      First, we rejected a similar separation of powers challenge to an earlier

version of section 1B1.10 in Colon, 707 F.3d at 1260–61. In that case, Colon

argued that, by amending section 1B1.10 to prohibit courts from reducing a

defendant’s sentence below the applicable amended guidelines range except in

cases involving substantial assistance, the Sentencing Commission had exceeded

its authority under section 994 and had violated the separation of powers doctrine

by overriding sentencing courts’ decisions to vary downward. Id. at 1260. We held

that “Congress authorized the Commission to impose limitations like that, and

doing so does not violate any separation of powers principle.” Id. Here, too, the




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limitation placed on the effective date of an order granting section 3582(c)(2) relief

does not violate any separation of powers principle.

      Moreover, it is folly to suppose that courts have unfettered authority to

reduce a sentence merely because of a subsequent Guidelines amendment. Rather,

a court may only modify a sentence (once it is final) when limited exceptions

apply. 18 U.S.C. § 3582(c). That is, courts only have the authority to reduce a

sentence which is part of a final judgment because Congress placed that authority

in the hands of the judiciary in the first place. And when Congress so acts, it

certainly may legislate that a permissible reduction shall be subject to the

Commission’s policy statements. 18 U.S.C. § 3582(c)(2). Indeed, Congress has

expressly delegated to the Commission the power to “specify in what

circumstances and by what amount the sentences of prisoners serving terms of

imprisonment ... may be reduced.” 28 U.S.C. § 994(u). The Commission’s exercise

of this authority in no way encroaches on judicial power. The courts still maintain

the power that Congress legislated to them in the first instance. Cf. Boston–Bollers

v. I.N.S., 106 F.3d 352, 355 (11th Cir. 1997) (per curiam) (provision of

Antiterrorism and Effective Death Penalty Act that eliminated judicial review of

final orders of deportation for certain criminals did not violate the separation of

powers principle because the courts “have jurisdiction to review certain final




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orders of deportation ... only because Congress has conferred it.”) (quoting

Duldulao v. I.N.S., 90 F.3d 396, 399–400 (9th Cir. 1996)).

      Nor can there be any doubt that it is Congress (not some other authority)

which grants to the courts the power to reduce a term of imprisonment. The

Supreme Court has noted that “the sentence-modification proceedings authorized

by § 3582(c) are not constitutionally compelled,” but instead represent “a

congressional act of lenity intended to give prisoners the benefit of later enacted

adjustments to the judgments reflected in the Guidelines.” Dillon, 560 U.S. at 828,

130 S. Ct. at 2692. In sum, “the scope of judicial discretion with respect to a

sentence is subject to congressional control.” Mistretta v. United States, 488 U.S.

361, 364 (1989). In promulgating section 1B1.10(e)’s delayed effective date

provision, the Commission was acting in a manner consistent with its

congressionally authorized delegation. Therefore, the Commission did not exceed

its authority under section 994, and section 1B1.10(e) does not encroach on the

judiciary’s Article III powers. See Colon, 707 F.3d at 1260.

                                V. CONCLUSION

      For all of these reasons, we conclude that the district court did not err in

applying section 1B1.10(e) to its order granting Maiello’s section 3582(c)(2)

motion. The district court’s order applying section 1B1.10(e) to Maiello’s request

for sentence reduction is


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AFFIRMED.




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