                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-7298


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

WILLIAM HENRY MULDROW, a/k/a William Cooper, a/k/a Willie,
a/k/a Fred Washington,

                Defendant – Appellant.



                             No. 15-7608


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

LUIS GOMEZ,

                Defendant – Appellant.



Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:03-cr-00555-AW-3; 8:95-cr-00267-DKC-14)


Argued:   October 26, 2016                Decided:   December 27, 2016
Before DUNCAN and AGEE, Circuit Judges, and Bruce H. HENDRICKS,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Agee and Judge Hendricks joined.


ARGUED: Sapna Mirchandani, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellants.      Sujit Raman,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellants. Rod J. Rosenstein, United States Attorney, Debra L.
Dwyer, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.




                               2
DUNCAN, Circuit Judge:

     Defendants William Henry Muldrow (“Muldrow”) and Luis Gomez

(“Gomez”) challenge the district court’s determination that the

Guidelines     commentary--as      amended      by    United      States    Sentencing

Guideline Amendment 759 (“Amendment 759”)--requires a district

court    at   resentencing    to     calculate       the    “applicable      guideline

range”    without     applying     any    departures        or    variances    from    a

defendant’s original sentencing range.                      For the reasons that

follow, we affirm the district court and join all of our sister

circuits      that    have   considered        the    issue       in    holding      that

Amendment 759 binds sentencing courts.



                                          I.

                                          A.

     Both      Defendants     were       convicted         of    drug    offenses      in

unrelated cases--Muldrow in 2006 and Gomez in 1996. This court

consolidated their appeals.

     Muldrow       pleaded   guilty      to    one    count      of     conspiracy    to

distribute and possess with intent to distribute five or more

grams of cocaine and oxycodone, on January 19, 2006.                           At his

sentencing on March 29, 2006, the district court adopted the

findings      of   the   presentence      report      with       one    exception.     It

departed from a criminal history category VI to a category V

because       it     found   Muldrow’s         criminal          history      category

                                          3
overrepresented       the     seriousness            of     his        criminal       record.

U.S.S.G. § 4A1.3.           Employing an offense level 34 and a post-

departure     criminal      history       category        V,      the      district       court

calculated a guideline range of 235 to 293 months and sentenced

Muldrow to 235 months in prison.

     A    jury    convicted       Gomez    of      one    count       of    conspiracy       to

distribute cocaine, and one count of possession with intent to

distribute       cocaine,    on    June    29,      1996.         At     sentencing,        the

district     court    calculated        his       guideline       range      based     on    an

offense level 44 and a criminal history category III, resulting

in a then-mandatory guideline sentence of life imprisonment.                                 On

November     6,    1996,    the    court      imposed       a     life      sentence,       but

subsequently granted Gomez’s 28 U.S.C. § 2255 petition in part,

vacating his sentence.            The district court recalculated Gomez’s

guideline range as 360 months to life imprisonment based on an

offense level of 41 and a criminal history category II.                                     Like

Muldrow,     Gomez    received      a     downward        departure         under     § 4A1.3

because     the    district       court    found         that     a     criminal      history

category III overstated the seriousness of his criminal record.

The court resentenced Gomez on February 27, 2006, imposing a

below-guideline-range sentence of 340 months.

                                           B.

     In 2014 and 2015, Defendants separately filed motions for

resentencing       under     18     U.S.C.         § 3582(c)(2)            based     on     the

                                              4
retroactive      application     of    United      States     Sentencing    Guideline

Amendment 782.       U.S.S.G., app. C., amend. 782 (2014) (“Amendment

782”).     Amendment 782 reduced the base offense level for drug

offenses    by   two   levels.        Id.       The      United   States    Sentencing

Commission (“Commission”) has the power to make its amendments

retroactive, and although it has done so sparingly, it did so

with Amendment 782 by listing it in subsection (d) of § 1B1.10

of the Guidelines Manual.            U.S.S.G. § 1B1.10(d); United States v.

Williams,    808    F.3d   253,       263   (4th      Cir.    2015).       Before   the

district court, the parties agreed that Defendants are eligible

for relief under Amendment 782, which altered the Defendants’

“amended guideline range.”              They dispute the extent of relief

authorized based on the calculation of this range.

     Each     Defendant    argued       that       the     district     court   should

calculate his guideline range at resentencing by using the post-

departure criminal history category determined at his original

sentencing.        However,    the     district       court    did   not   reduce   the

sentences to the extent Defendants requested.                        At resentencing,

the district court instead chose to calculate their ranges using

their    pre-departure        criminal          history       categories.       After

recalculating the guideline ranges in this manner, the district

court reduced each Defendant’s sentence to the low end of his

amended guideline range.



                                            5
       For Muldrow, the district court granted relief in part on

July     29,     2015,       reducing     his       sentence      from       235     months        to

210 months--the low end of the amended guideline range using a

pre-departure          criminal       history        category.              For     Gomez,       the

district       court       granted    relief        in    part    on     October       6,       2015,

reducing Gomez’s sentence from 340 months to 324 months--the low

end     of     the    amended     guideline          range       using       a    pre-departure

criminal history category.

       The     district       court     based       its    decisions         to    use      a    pre-

departure       criminal       history     category        on     a    separate       guideline

amendment--Amendment 759. U.S.S.G., app. C., amend. 759 (2011).

Specifically,          the     district      court        found       that       Amendment        759

(1) precluded          the     district      court        from        considering        § 4A1.3

departures during resentencing, and (2) abrogated this court’s

prior decision in United States v. Munn, 595 F.3d 183 (4th Cir.

2010), which had adopted Defendants’ desired approach.                                           Both

Defendants appealed.



                                             II.

        On     appeal,       Defendants      argue        that        the    district           court

incorrectly          deemed    itself    bound       by    Amendment         759,    and        thus,

erred    in     not        granting   them      greater      relief.              According        to

Defendants,          the     district    court       should       have       applied     § 4A1.3

departures when calculating their applicable guideline ranges.

                                                6
The    government    counters        that       the   district   court     properly

followed      Amendment   759   in    calculating       Defendants’      applicable

guideline range because Amendment 759 is consistent with the

Guidelines and abrogated Munn.

      “We review a district court's decision to reduce a sentence

under § 3582(c)(2) for abuse of discretion and its ruling as to

the scope of its legal authority under § 3582(c)(2) de novo.”

United States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013).                         For

the reasons that follow, we affirm the district court.

                                        A.

      Our decision today respects a congressionally mandated--and

Supreme Court sanctioned--balance between the interpretive power

of the Commission and our duties as an Article III court.                        With

the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq.,

Congress      established    the      Commission       and    authorized    it    to

(1) promulgate       Sentencing       Guidelines        and   (2) issue      policy

statements       governing         application         of     the     Guidelines.

See 28 U.S.C. §§ 991, 994(a); Stinson v. United States, 508 U.S.

36, 40–41 (1993).         The Commission also issues commentary to the

guideline provisions and policy statements.                   Stinson, 508 U.S.

at    41. 1     In   interpreting       the       Guidelines,    commentary       “is




      1   Commentary has several different purposes:

(Continued)
                                            7
authoritative unless it violates the Constitution or a federal

statute,    or   is    inconsistent    with,     or    a    plainly    erroneous

reading, of that guideline.”        Id. at 38. 2

     In    addition,    Congress   entrusted     the   Commission       with   the

power, and duty, to periodically review and revise the guideline

provisions,           policy       statements,             and        commentary.

28 U.S.C. §§ 994(o), 994(p), 994(u); United States v. Braxton,

500 U.S. 344, 348 (1991).          This power includes the ability “to

override our precedent through amendments to the Guidelines.”




     First, it may interpret the guideline or explain how
     it is to be applied.         Failure to follow such
     commentary could constitute an incorrect application
     of the guidelines, subjecting the sentence to possible
     reversal on appeal.    See 18 U.S.C. § 3742.     Second,
     the commentary may suggest circumstances which, in the
     view of the Commission, may warrant departure from the
     guidelines.   Such commentary is to be treated as the
     legal equivalent of a policy statement.    Finally, the
     commentary   may    provide   background    information,
     including factors considered in promulgating the
     guideline or reasons underlying promulgation of the
     guideline.     As   with   a  policy   statement,   such
     commentary may provide guidance in assessing the
     reasonableness of any departure from the guidelines.

U.S.S.G. § 1B1.7; see also Stinson, 508 U.S. at 41.

     2 In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court invalidated statutory provisions that made the
Guidelines Mandatory, and held that courts must treat the
Guidelines as advisory.   543 U.S. at 265.  Although the Court
decided Stinson before Booker, we have no reason to reject the
Stinson holding regarding commentary’s binding effect.     See
United States v. Shell, 789 F.3d 335, 340 (4th Cir. 2015)
(citing Stinson as good law).


                                      8
Williams, 808 F.3d at 258.             With this framework in mind, we turn

to the Guidelines applicable to sentencing reductions.

                                             B.

       Under the Sentencing Reform Act, a federal court generally

“may    not    modify      a   term    of    imprisonment      once    it     has    been

imposed.”      18 U.S.C. § 3582(c).               However, Congress has provided

an     exception      to     that    rule:       when   the   Commission       makes     a

Guidelines amendment retroactive, a district court may reduce an

otherwise final sentence based on the amended provision, as long

as the reduction remains consistent with applicable Commission

policy statements.           Id.

       In considering whether and by how much to reduce a sentence

under § 3582(c)(2), a district court follows a two-step inquiry.

Dillon v. United States, 560 U.S. 817, 826 (2010).                            The court

first “follow[s] the Commission’s instructions in § 1B1.10 to

determine the prisoner’s eligibility for a sentence modification

and    the    extent    of     the   reduction      authorized.”       Id.     at    827.

Specifically,      § 1B1.10(b)(1)           requires    the   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”     of     the




                                             9
defendant’s initial sentencing.                    U.S.S.G. § 1B1.10(b)(1). 3         At

step two, a district court considers relevant sentencing factors

to    determine       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 827.

                                              C.

      This appeal--and the issue in Munn--concerns how a court

calculates      the     amended    guideline         range    at   step     one.      In

particular, the parties dispute whether the resentencing court

calculates      the    range     using    a    pre-departure       criminal     history

category   or     a    post-departure         criminal      history     category.     In

Munn--decided prior to Amendment 759--this court held that a

defendant’s       applicable      guideline         range    is    determined       after

applying any departures.               595 F.3d at 192–95.              Therefore, the

defendant in Munn--a career offender who received a departure

for   overrepresentation          of     criminal      history     at    his   original

sentencing--was entitled to have the district court factor in

departures before calculating his applicable guideline range for


      3Section 1B1.10 (Reduction in Term of Imprisonment as a
Result of Amended Guideline Range (Policy Statement)) prohibits
courts from reducing a term of imprisonment below an amended
guideline range’s minimum except in certain cases in which the
defendant originally received a downward departure for providing
substantial       assistance       to       the      government.
U.S.S.G. § 1B1.10(b)(2).   Defendants do not seek terms below
their amended guideline ranges.     Instead, they challenge the
application of Amendment 759 to their resentencing.


                                              10
resentencing purposes.                  Id. at 184–85, 194–95.                  Other circuits

interpreted          the    Guidelines         similarly.           See    United      States    v.

Flemming, 617 F.3d 252, 272 (3d Cir. 2010); United States v.

Cardosa, 606 F.3d 16, 21–22 (1st Cir. 2010); United States v.

McGee,       553     F.3d    225,       229–30        (2d    Cir.     2009)      (per     curiam)

superseded by United States v. Montanez, 717 F.3d 287 (2d Cir.

2013) (per curiam). However, three other circuits decided that

the applicable guideline range for resentencing was the range

produced prior to any discretionary departures, reasoning that a

district          court     cannot       depart       from    a     range       before    it    is

established.             United States v. Pembrook, 609 F.3d 381, 384 (6th

Cir. 2010); United States v. Darton, 595 F.3d 1191, 1197 (10th

Cir. 2010); United States v. Blackmon, 584 F.3d 1115, 1116–17

(8th Cir. 2009) (per curiam).

        In        response       to     this     circuit       split,          the     Commission

promulgated          Amendment         759.       U.S.S.G.,         app.       C.,    amend.    759

(2011).       Amendment 759 revised the commentary to § 1B1.10, at

Application Note 1(A), by defining “applicable guideline range”

as “the guideline range that corresponds to the offense level

and criminal history category determined pursuant to § 1B1.1(a),

which        is    determined         before     consideration            of    any     departure

provision           in     the        Guidelines       Manual        or        any    variance.”

U.S.S.G. § 1B1.10 cmt. n.1(A) (2011) (emphasis added); U.S.S.G.,

app.     C.,       amend.    759       (2011).         In    so     doing,       Amendment      759

                                                 11
explicitly “adopt[ed] the approach of the Sixth, Eighth, and

Tenth    Circuits.”        U.S.S.G.,       app.    C.,    amend.     759    (Reason    for

Amendment).



                                           III.

        The issue on appeal is a narrow one.                       Defendants do not

contest    that    the    Commission       can     resolve        circuit   splits     and

abrogate     our    prior        precedent        by     promulgating       amendments.

Instead, they argue that the district court erroneously deemed

itself    bound    by    the    revised    commentary        to    § 1B1.10    found    in

Amendment 759 for two reasons: (1) the commentary conflicts with

the Guidelines text, and (2) Amendment 759 is not one which by

its nature applies retroactively. 4                We consider each argument in

turn.

                                           A.

     If the commentary conflicts with the Guidelines text, it

cannot bind courts.              Stinson, 508 U.S. at 38.                   In deciding

whether     commentary         conflicts    with       the   Guidelines       text,     we

recognize that the Commission “has the first responsibility to

formulate    and    announce”       how     guideline        provisions       should    be

interpreted. Id. at 45.              Cognizant of our role vis-à-vis the

     4 Defendants do not argue that the commentary conflicts with
the statute. Defendants also do not challenge that the district
court has discretion to grant or deny relief at step two of the
§ 3582(c)(2) process.


                                            12
Commission, this court rarely invalidates part of the commentary

as inconsistent with the Guidelines text.                    See United States v.

Shell,       789    F.3d    335,   357    (4th    Cir.     2015)    (Wilkinson,       J.,

dissenting).          This is unsurprising given that “[t]he functional

purpose of commentary (of the kind at issue here) is to assist

in the interpretation and application of those rules, which are

within       the     Commission’s        particular       area     of     concern     and

expertise.”         Stinson, 508 U.S. at 45.

                                           1.

       To argue that the commentary, as amended by Amendment 759,

conflicts with the Guidelines, Defendants first point to the

text    of    § 1B1.10(b)(1).         That      section    instructs      resentencing

courts calculating the “amended guideline range” to “substitute

only”    the       retroactive     amendments      listed     in    § 1B1.10(d)       and

“leave   all        other   guideline    application       decisions      unaffected.”

U.S.S.G.       § 1B1.10(b)(1).           Defendants       claim    that    this      means

courts       must    calculate     the    amended     guideline         range     without

excluding any factor that was taken into account at the original

sentencing--that is, “to mirror whatever sentencing findings it

originally made.”            Appellants’ Br. at 25.                Under Defendants’

view, the revised commentary in Application Note 1(A) conflicts

with the text of § 1B1.10 because that commentary “expressly

prohibits      courts       from   incorporating      ‘any    departure’        or   ‘any



                                           13
variance’      into    the    guideline      calculation.”              Appellants’    Br.

at 25.

     However, Amendment 759 does not conflict with the text.

Amendment      759     revised      Application       Note    1(A)      to    define   the

“applicable      guideline         range”    as    “the      guideline        range    that

corresponds to the offense level and criminal history category

determined pursuant to § 1B1.1(a), which is determined before

consideration         of    any    departure      provision        in   the     Guidelines

Manual    or     any       variance.”       U.S.S.G.      § 1B1.10        cmt.     n.1(A).

“Consistent with that definition, U.S.S.G. § 1B1.1(a) makes no

mention of departures” or variances.                  Montanez, 717 F.3d at 292.

Rather,   a    district       court      calculates    departures         and    variances

pursuant to §§ 1B1.1(b) and 1B1.1 (c), respectively, only after

determining     the        applicable     guideline     range       under     § 1B1.1(a).

See id.; U.S.S.G., app. C., amend. 741 (Reason for Amendment)

(explaining the three-step process for calculating sentences).

Logically, the phrase in § 1B1.10(b)(1)--“shall leave all other

guideline application decisions unaffected”--refers to decisions

sentencing     courts       make    in    establishing       the    amended      guideline

range, which, pursuant to § 1B1.1(a), does not take into account




                                            14
departures or variances.   Therefore, Amendment 759’s clarifying

definition is consistent with § 1B1.10 of the Guidelines text. 5




     5 Defendants also argue that there is a material difference
between “applicable guideline range,” in § 1B1.10(a), and
“amended guideline range,” in § 1B1.10(b).     They assert that
these   phrases  refer  to   different  things--eligibility  for
sentencing reductions and the extent of relief available,
respectively.   Because Amendment 759 inserted a definition to
“applicable guideline range,” Defendants contend that definition
only affects eligibility.     From this premise they argue that
Amendment 759 does not preclude a sentencing court from
considering departures.    This argument fails.   As the Second
Circuit explained, such a position

     ignores the relationship between the “applicable
     guideline range” and the “amended guideline range.”
     Under § 1B1.10(a)(2)(B), a defendant is not eligible
     for a reduction if an amendment “does not have the
     effect   of   lowering  the   defendant’s   applicable
     guideline range.” In the absence of any change to the
     applicable guideline range, speaking of an “amended
     guideline range” makes little sense.         Where an
     amendment does change the applicable guideline range,
     however, the court can calculate a new “applicable”
     range by “substitut[ing] . . . the amend[ed guideline
     provisions] for the corresponding . . . provisions
     that were applied when the defendant was sentenced.”
     U.S.S.G. § 1B1.10(b)(1). Section 1B1.10(b)(1) defines
     this new, applicable range as the “amended guideline
     range.”   The phrase “amended guideline range,” then,
     is simply the name by which the guidelines distinguish
     one applicable guideline range--i.e., the one that
     incorporates guideline amendments--from another--i.e.,
     the one that applied under earlier versions of the
     guidelines.  It follows, then, that courts should use
     the same procedure to calculate both the applicable
     guideline range and the amended guideline range,
     departing from that procedure in the case of the
     amended guideline range only to “substitute . . . the
     [relevant guideline] amendments.”      Id. Under the
     guidelines, courts applying this procedure should not
     “consider[] any departure provision in the Guidelines
(Continued)
                                15
                                         2.

      In    another     effort     to       manufacture        an   inconsistency,

Defendants next point to § 1B1.1--the application instructions

for   an   original     sentencing--to         suggest      that    the    commentary

conflicts     with     § 1B1.10.            Section 1B1.1(a)(6)           directs    a

sentencing     judge    to     “[d]etermine         the    defendant’s      criminal

history    category    as    specified        in   Part    A   of   Chapter    Four.”

U.S.S.G.       § 1B1.1(a)(6).                  Downward         departures          for

overrepresentation of criminal history appear in Chapter Four--

specifically at § 4A1.3(b).              U.S.S.G. § 4A1.3(b).             Under this

line of argument, § 4A1.3 departures are integral to determining

the   applicable      guideline    range       under      § 1B1.1(a)(6).       Thus,

Amendment     759’s    definition      of     “applicable      guideline      range,”

which excludes such departures, conflicts with § 1B1.10(b)(1)’s

instruction      to     “leave     all        other       guideline       application

decisions”--including          those     in        § 1B1.1(a)(6)--“unaffected.”

U.S.S.G. § 1B1.10(b)(1).

      This argument reads more into § 1B1.1(a)(6) than the text

can support.     Section 1B1.1(a)(6) instructs sentencing courts to

determine a defendant’s criminal history category, but it does




      Manual    or       any      variance.”           U.S.S.G.       § 1B1.10
      cmt. n.1(A).

Montanez, 717 F.3d at 293 (alteration in original).


                                         16
not instruct them to follow each section in Part A of Chapter

Four.     Part A of Chapter Four has three sections, and only the

first     two      sections       directly           govern             how     to     determine            the

"criminal history category."                    Section 4A1.1 is titled "Criminal

History      Category"         and    §    4A1.2             is        titled    "Definitions               and

Instructions               for            Computing                      Criminal                History."

U.S.S.G. §§ 4A1.1,             4A1.2.          By        contrast,             § 4A1.3          is     titled

"Departures        Based     on    Inadequacy                of       Criminal   History             Category

(Policy      Statement)."            U.S.S.G.            §    4A1.3.           That       §    1B1.1(a)(6)

instructs a sentencing judge to determine the criminal history

category      does     not     give   the       judge             a    license       to       factor      in    a

departure       for    overrepresentation                    of       criminal       history         at   that

stage.       See      United      States       v.    Watkins,             No.    15-6205,            2016      WL

3924240, at *4 (6th Cir. July 21, 2016) (unpublished) (citing

Pembrook, 609 F.3d at 385–86). “[A] court does not depart under

§    4A1.3    when     calculating         a    defendant’s                  applicable          guideline

range, but instead departs from the applicable guideline range

under § 4A1.3 after having calculated that range.”                                               Montanez,

717 F.3d at 292.           Holding to the contrary leads to a nonsensical

circularity.          A district court cannot factor in a departure from

a range in calculating the range itself.                                  See Pembrook, 609 F.3d

at   385.       “This      leads      inescapably                 to     the    conclusion            that     a

defendant’s applicable guideline range under U.S.S.G. § 1B1.10

is his pre-departure guideline range.”                                 Id.

                                                    17
       Here, we see no inconsistency between the Guidelines and

the   commentary   as    revised    by    Amendment     759.        We    decline      to

strain the text to create one.

                                         B.

       Defendants next contend that Amendment 759 does not apply

retroactively.       But     this   argument        misses    the     point.         The

question is not whether Amendment 759 applies retroactively, but

rather whether the district court properly applied Amendment 759

to    Defendants   who   were    resentenced        after    Amendment        759    took

effect.

       Normally, a sentencing court must apply the edition of the

Guidelines in effect at the time “the defendant is sentenced.”

U.S.S.G.    § 1B1.11(a).          However,      §    3582(c)(2)          “requires     a

sentencing court to adhere to the Commission's policy statement

in    Guidelines   section      1B1.10   when    assessing      a   motion       for   a

sentence reduction.”       Williams, 808 F.3d at 262.               The commentary

to § 1B1.10 at Application Note 8, as amended by Amendment 759,

instructs   that   “[c]onsistent         with   subsection      (a)      of    § 1B1.11

(Use of Guidelines Manual in Effect on Date of Sentencing), the

court shall use the version of the policy statement that is in

effect on the date on which the court reduces the defendant’s

term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).”

U.S.S.G. § 1B1.10,       cmt.     n.8;    see    also       U.S.S.G.,         app.   C.,

amend. 759 (2011) (originally adding current application note 8

                                         18
as application note 6). 6              Because Amendment 759 “went into effect

prior    to     the    district        court’s      resolution      of    [Defendants’]

§ 3582(c)(2) motion[s], the court was required to assess the

motion[s] in light of the now applicable policy statement” as

elucidated in the binding commentary revised by Amendment 759.

Williams, 808 F.3d at 262.

     Nevertheless, Defendants still contend that Munn, decided

prior to Amendment 759, should apply to their resentencing.                            But

“our precedent in the sentence-reduction context must give way

if it conflicts with the Commission's amendments.”                         Id. at 259;

see also Braxton, 500 U.S. at 348.                     The Commission specifically

stated that it promulgated Amendment 759 in response to a split

among    the    circuits,        and   rejected      the   approach      taken    by   this

court    in    Munn.       U.S.S.G.,        app.    C.,    amend.   759    (Reason      for

Amendment).           As   the    Supreme      Court   has   recognized,         “Congress

necessarily contemplated that the Commission would periodically

review    the     work      of     the     courts,     and   would       make    whatever

clarifying      revisions         to     the   Guidelines     conflicting        judicial

decisions might suggest.”                 Braxton, 500 U.S. at 348; see also

28 U.S.C. § 994(p).              As an amendment to the binding commentary,

Amendment 759 applies to Defendants unless it is inconsistent

     6  Defendants also argue that application note 8 is
inconsistent with the Guidelines. But in Williams this court
recognized that application note 8 is consistent with both
§ 3582(c)(2) and the Guidelines. See 808 F.3d at 262–63.


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with the Constitution, a federal statute, or the Guidelines.

Stinson, 508 U.S. at 38.        We rejected above Defendants’ argument

that the revised commentary introduces an inconsistency.                     See

supra Part III.A.     Today we join the Second Circuit in formally

recognizing   that     with     Amendment        759   “the    Commission    has

foreclosed the exact approach that [Defendants] now advocate.”

Montanez, 717 F.3d at 294.

                                    IV.

     Defendants’     argument    hinges     on    finding     an   inconsistency

between the commentary and text of the Guidelines.                   We fail to

see one, and decline Defendants’ invitation to “recreate the

split that the Commission hoped to resolve.”                  Id. at 292 n.2.

For this and the foregoing reasons, the judgment of the district

court is

                                                                       AFFIRMED.




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