                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 15-30279
                Plaintiff-Appellee,
                                          D.C. No.
                v.                     3:08-cr-00126-
                                           MO-2
ARMANDO PADILLA-DIAZ, AKA
Gordo,
            Defendant-Appellant.



UNITED STATES OF AMERICA,               No. 15-30294
                Plaintiff-Appellee,
                                          D.C. No.
                v.                     3:10-cr-00143-
                                           MO-1
JEFFREY ALLEN HECKMAN, JR.,
             Defendant-Appellant.


     Appeal from the United States District Court
              for the District of Oregon
     Michael W. Mosman, Chief Judge, Presiding
2            UNITED STATES V. PADILLA-DIAZ

UNITED STATES OF AMERICA,                    No. 15-30375
                Plaintiff-Appellee,
                                                D.C. No.
                   v.                        3:12-cr-00291-
                                                  SI-1
BERNARDO CONTRERAS GUZMAN,
AKA Chapparito, AKA Chapparo,
AKA Huerro,                                    OPINION
             Defendant-Appellant.


        Appeal from the United States District Court
                 for the District of Oregon
        Michael H. Simon, District Judge, Presiding

         Argued and Submitted November 7, 2016
                    Portland, Oregon

                        Filed July 5, 2017

    Before: M. Margaret McKeown, William A. Fletcher,
           and Raymond C. Fisher, Circuit Judges.

               Opinion by Judge W. Fletcher
                UNITED STATES V. PADILLA-DIAZ                           3

                            SUMMARY*


                           Criminal Law

    The panel affirmed the district court’s denials of three
defendants’ motions for sentence reductions under United
States Sentencing Guidelines Amendment 782 and 18 U.S.C.
§ 3582(c)(2).

    Each defendant was denied a reduction based on an
application of the Sentencing Commission’s Policy Statement
§ 1B1.10(b)(2)(A), which prohibits courts from reducing a
defendant’s “term of imprisonment” to “less than the
minimum of the amended guideline range,” absent
circumstances not present here.

    The panel rejected the defendants’ contention that
§ 1B1.10(b)(2)(A) conflicts with 28 U.S.C. § 991(b) by
nullifying departures and variances from the guideline range
that were necessary to meet the statutory mandates of
achieving a sentence sufficient but not greater than necessary
under 18 U.S.C. § 3553(a). The panel held that the
anomalous result – that sentences initially tailored to avoid
unwarranted disparities and to account for individualized
circumstances will now converge at the low end of the
guideline range – does not create an irreconcilable conflict
with § 991(b). The panel explained that § 991(b) is a general
statement of the Commission’s goals, and that as acts of
lenity, § 3582(c)(2) reductions are not constrained by the


    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4            UNITED STATES V. PADILLA-DIAZ

general policies underlying initial sentencing or even plenary
resentencing proceedings.

    Rejecting the defendants’ contention that
§ 1B1.10(b)(2)(A) violates the equal protection component
of the Fifth Amendment by irrationally denying sentence
reductions to offenders who received lower sentences while
granting them to those who originally received higher
sentences, the panel held that the defendants have not shown
that § 1B1.10(b)(2)(A) fails rational basis review.

     The panel rejected the contention by two defendants that
applying the current version of § 1B1.10 to them violates due
process because they entered into their plea agreements prior
to its amendment. The panel explained that the defendants’
failure to receive a benefit from Amendment 782, which was
promulgated after their pleas and is governed by limitations
on its sentence reductions, is not the result of a retroactive
deprivation of a pre-existing benefit, but rather the result of
a prospective grant of a limited benefit.


                         COUNSEL

Elizabeth Gillingham Daily (argued), Research and Writing
Attorney; Stephen R. Sady, Chief Deputy Federal Public
Defender; Office of the Federal Public Defender, Portland,
Oregon; Bryan E. Lessley, Assistant Federal Public Defender,
Office of the Federal Public Defender, Eugene, Oregon; for
Defendants-Appellants.
             UNITED STATES V. PADILLA-DIAZ                 5

Kelly A. Zusman (argued), Appellate Chief; Jeffrey S. Sweet,
Assistant United States Attorney; Billy J. Williams, United
States Attorney; United States Attorney’s Office, Portland,
Oregon; for Plaintiff-Appellee.


                        OPINION

W. FLETCHER, Circuit Judge:

    Armando Padilla-Diaz, Jeffrey Heckman, and Bernardo
Contreras Guzman (“Defendants”) in these consolidated cases
appeal the district courts’ denials of their motions for
sentence reductions under United States Sentencing
Guidelines (“U.S.S.G.”) Amendment 782 and 18 U.S.C.
§ 3582(c)(2). Each defendant was denied a reduction based
on an application of the Sentencing Commission’s Policy
Statement § 1B1.10(b)(2)(A), which prohibits courts from
reducing a defendant’s “term of imprisonment” to “less than
the minimum of the amended guideline range,” absent
circumstances not present here. All three defendants contend
that § 1B1.10(b)(2)(A) is invalid because it conflicts with
28 U.S.C. § 991(b) and violates the equal protection
component of the Fifth Amendment. Defendants Padilla-
Diaz and Heckman, who entered their pleas before the current
version of § 1B1.10(b)(2)(A) was promulgated, further
contend that the retroactive application of § 1B1.10(b)(2)(A)
violates their right to due process. We have jurisdiction
under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

                   I. Statutory Overview

    Congress has given the Sentencing Commission broad
authority, set forth in 28 U.S.C. § 994, to promulgate
6            UNITED STATES V. PADILLA-DIAZ

guidelines, propose amendments, and prescribe the limits of
possible sentence reductions. Section 994(a) authorizes the
Commission to promulgate guidelines and general policy
statements regarding application of the guidelines. Section
994(o) provides that the Commission “periodically shall
review and revise . . . the guidelines promulgated pursuant to
the provisions of this section,” and § 994(p) permits the
Commission to “submit to Congress amendments to the
guidelines,” which “shall be accompanied by a statement of
the reasons therefor and shall take effect on a date specified
by the Commission.” When the Commission exercises its
power to reduce a particular guideline range, “it shall specify
in what circumstances and by what amount” sentences may
be reduced. 28 U.S.C. § 994(u).

    On November 1, 2014, the Sentencing Commission
promulgated Amendment 782 pursuant to its authority under
§ 994(o). Amendment 782 revised the Drug Quantity Table
in U.S.S.G. § 2D1.1, effectively lowering the base offense
level by two levels for most federal drug offenses. U.S.S.G.
app. C, amend. 782 (2014). Under Amendment 788,
Amendment 782 applies retroactively. U.S.S.G. app. C,
amend. 788 (2014).

    A defendant may seek the benefit of Amendment 782 by
moving for a sentence reduction under 18 U.S.C.
§ 3582(c)(2). Section 3582(c)(2) provides that a defendant
may seek a sentence reduction if he “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).” A district court may
“reduce the term of imprisonment” only “if such a reduction
is consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
             UNITED STATES V. PADILLA-DIAZ                   7

    The “applicable policy statement” at issue in this case is
§ 1B1.10(b). Section 1B1.10(b)(1) provides that, in
determining “whether, and to what extent, a reduction in the
defendant’s term of imprisonment . . . is warranted,” the court
“shall determine the amended guideline range that would
have been applicable to the defendant if the [relevant]
amendment(s) . . . had been in effect at the time the defendant
was sentenced.” Section 1B1.10(b)(2) further provides that
“the court shall not reduce the defendant’s term of
imprisonment under 18 U.S.C. [§] 3582(c)(2) and this policy
statement to a term that is less than the minimum of the
amended guideline range,” unless the defendant received a
downward departure for substantial assistance at his original
sentencing. This version of § 1B1.10(b)(2) became effective
November 1, 2011. Prior to that time, § 1B1.10(b)(2) had
generally permitted courts to reduce sentences to below the
amended guideline range if the defendant received a below-
guidelines sentence at his original sentencing. See U.S.S.G.
§ 1B1.10(b)(2) (2010).

          II. Factual and Procedural Background

     In January 2010, Padilla-Diaz pleaded guilty to one count
of conspiracy to distribute and possess with intent to
distribute methamphetamine. In February 2011, Heckman
pleaded guilty to one count of distribution of
methamphetamine. In May 2013, Contreras Guzman pleaded
guilty to one count of conspiracy to distribute heroin and
methamphetamine and to use communication devices. In
their original sentences, each defendant received downward
departures or variances that lowered their sentences below the
initial guideline range generated by their total offense levels
and criminal history categories.
8            UNITED STATES V. PADILLA-DIAZ

    After Amendment 782 was promulgated, Defendants each
moved for sentence reductions under § 3582(c)(2). In
accordance with § 1B1.10(b)(2)(A), the district courts denied
the motions because Defendants’ sentences were already at or
below the low end of their amended guideline ranges.

   Defendants appeal, challenging the validity and
application of § 1B1.10(b)(2)(A). The parties agree that,
absent the limitation in § 1B1.10(b)(2)(A), each Defendant
would have been eligible to receive a lower sentence.

                   III. Standard of Review

    We review for abuse of discretion a district court’s denial
of a sentence reduction motion under 18 U.S.C. § 3582(c)(2).
United States v. Lightfoot, 626 F.3d 1092, 1094 (9th Cir.
2010). A district court abuses its discretion “if it does not
apply the correct law or if it rests its decision on a clearly
erroneous finding of material fact.” Id. (internal quotation
marks omitted). We review de novo the proper construction
of a statute, Miranda v. Anchondo, 684 F.3d 844, 849 (9th
Cir. 2012), and the constitutionality of the Sentencing
Guidelines, United States v. Kuchinski, 469 F.3d 853, 857
(9th Cir. 2006).

                       IV. Discussion

    Defendants make three arguments on appeal. First, they
contend that § 1B1.10(b)(2)(A) is invalid because it conflicts
with 28 U.S.C. § 991(b). Second, they contend that
§ 1B1.10(b)(2)(A) violates the equal protection component of
the Fifth Amendment. Third, two of the three defendants
contend that even if § 1B1.10(b)(2)(A) is valid, its retroactive
             UNITED STATES V. PADILLA-DIAZ                   9

application violates due process. We address each argument
in turn.

            A. Conflict with 28 U.S.C. § 991(b)

    Defendants contend that § 1B1.10(b)(2)(A) conflicts with
28 U.S.C. § 991(b). Section 991(b) provides that one of the
“purposes” of the Commission is to “establish sentencing
policies and practices” that “avoid[] unwarranted sentencing
disparities among defendants . . . while maintaining sufficient
flexibility to permit individualized sentences when warranted
by mitigating or aggravating factors.”             28 U.S.C.
§ 991(b)(1)(B). The government contends that the Ninth
Circuit has already rejected an equivalent argument in United
States v. Tercero, 734 F.3d 979 (9th Cir. 2013).

    Like this case, Tercero involved an appeal from the denial
of a sentence reduction motion under 18 U.S.C. § 3582(c)(2).
Tercero received a downward departure at her original
sentencing hearing, resulting in a 72-month sentence.
Tercero, 734 F.3d at 980. When she applied for a sentence
reduction based on a retroactive amendment to the crack
cocaine guidelines, the district court found that she qualified
for a reduction but reduced her sentence by only two months.
The district court concluded that it could not depart below 70
months, the low end of Tercero’s amended guideline range,
because § 1B1.10(b)(2)(A) prohibits reductions “below the
low end of the adjusted Guidelines range.” Id. at 981. We
affirmed.

   Tercero challenged § 1B1.10(b)(2)(A) on a variety of
grounds. Inter alia, she contended that § 1B1.10(b)(2)(A)
conflicts with “the purpose of the Guidelines . . . to bring
about an effective, fair sentencing system, with honest,
10           UNITED STATES V. PADILLA-DIAZ

uniform and proportionate sentences.” Id. at 983 (internal
quotation marks omitted). Tercero contended that because
§ 1B1.10(b)(2)(A) “prevent[ed] the district court from
revising [Tercero’s] sentence to reflect the very minor role
she played in the drug conspiracy,” it conflicted with the
Guidelines’ goal of proportionality. Id. We rejected this
argument, noting that the original sentencing court had
considered proportionality when it evaluated the factors set
forth in 18 U.S.C. § 3553(a). Because a motion for a
sentence reduction under § 3582(c)(2) “does not authorize a
sentencing or resentencing proceeding,” no further
consideration of Tercero’s particular circumstances was
required. Id. (quoting Dillon v. United States, 560 U.S. 817,
825 (2010)).

    Defendants contend that Tercero does not foreclose their
argument because we did not specifically discuss § 991(b).
While their argument is not, strictly speaking, foreclosed, the
argument advanced and rejected in Tercero was equivalent in
material respects to the argument made here. Section 991(b)
refers to the goal of “avoiding unwarranted sentencing
disparities” among similar offenders while “maintaining
sufficient flexibility to permit individualized sentences.”
This is, in effect, the same as the goal of achieving “honest,
uniform and proportionate sentences.” Tercero, 734 F.3d at
983.

    We would reach the same conclusion even without the
benefit of Tercero. While the Commission’s commentary
“must give way” if it is at odds with the plain language of a
federal statute, United States v. LaBonte, 520 U.S. 751, 757
(1997), that is not the case here. Section 991(b) provides that
one of the “purposes” of the Commission is to “establish
sentencing policies and practices” that “assure the meeting of
             UNITED STATES V. PADILLA-DIAZ                  11

the purposes of sentencing as set forth in [18 U.S.C.
§ 3553(a)(2)]” and “avoid[] unwarranted sentencing
disparities among defendants . . . while maintaining sufficient
flexibility to permit individualized sentences when warranted
by mitigating or aggravating factors.”             28 U.S.C.
§ 991(b)(1)(A), (B).              Defendants argue that
§ 1B1.10(b)(2)(A) is inconsistent with § 991(b) because it
“nullifies departures and variances from the guideline range
that were necessary to meet the statutory mandates of
achieving a sentence sufficient but not greater than necessary
under § 3553(a).”

    Defendants’ argument has some appeal.              Under
§ 1B1.10(b)(2)(A), defendants who originally had lower
sentences may be awarded the same sentences in § 3582(c)(2)
proceedings as offenders who originally had higher sentences.
That is, sentences that were initially tailored to avoid
unwarranted disparities and to account for individualized
circumstances will now converge at the low end of the
amended guideline range. However, this anomalous result
does not create an irreconcilable conflict with § 991(b).

    First, § 991(b) is a general statement of the Commission’s
goals. It is not a specific directive to which all sentencing
policies must conform. In contrast to § 991(b), the statutory
text that led the Supreme Court to invalidate a Sentencing
Commission amendment in LaBonte specifically provided
that the Commission “shall assure that the guidelines specify
a sentence to a term of imprisonment at or near the maximum
term authorized” for certain categories of defendants.
LaBonte, 520 U.S. at 753 (quoting 28 U.S.C. § 994(h)); see
also Tercero, 734 F.3d at 982 (distinguishing between broad
instructions and “the kind of specific language that required
12           UNITED STATES V. PADILLA-DIAZ

invalidation” in LaBonte). There is no such specific directive
in § 991(b).

    Second, Defendants’ argument does not take into account
the nature of resentencing proceedings under § 3582(c)(2).
Section 3582(c)(2) “authorize[s] only a limited adjustment to
an otherwise final sentence and not a plenary resentencing
proceeding.” Dillon, 560 U.S. at 826. Section 3582(c)(2)
“represents a congressional act of lenity intended to give
prisoners the benefit of later enacted adjustments to the
judgments reflected in the Guidelines.” Id. at 828. As acts of
lenity, such sentence reductions are not constrained by the
general policies underlying initial sentencing or even plenary
resentencing proceedings. See United States v. Navarro,
800 F.3d 1104, 1112 (9th Cir. 2015) (“Simply put, the
restrictions and rules associated with sentencing do not carry
over to sentence reduction proceedings[.]”); see also Dillon,
560 U.S. at 828 (holding that proceedings under § 3582(c)(2)
do not implicate the Sixth Amendment right to have essential
facts found by a jury beyond a reasonable doubt).

                    B. Equal Protection

    Defendants further contend that § 1B1.10(b)(2)(A)
violates the equal protection component of the Fifth
Amendment by irrationally denying sentence reductions to
offenders who received lower sentences while granting them
to those who originally received higher sentences. While
§ 1B1.10(b)(2)(A) will sometimes produce unequal and
arguably unfair results, Defendants have not shown that it
fails rational basis review.

    Classifications that do not implicate fundamental rights or
a suspect class are permissible so long as they are “rationally
              UNITED STATES V. PADILLA-DIAZ                   13

related to a legitimate state interest.” City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Under
rational basis review, a classification is valid “if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification.” FCC v. Beach
Commc’ns, Inc., 508 U.S. 307, 313 (1993). However, the
government “may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render
the distinction arbitrary or irrational.” City of Cleburne,
473 U.S. at 446. The challenger of a classification bears the
burden of “negativ[ing] every conceivable basis which might
support it.” Heller v. Doe, 509 U.S. 312, 320 (1993) (internal
quotation marks omitted).

    The government advances at least two rational bases for
§ 1B1.10(b)(2). First, it contends that § 1B1.10(b)(2) makes
determining sentence reductions relatively simple. When
confronted with a request to reduce a “term of imprisonment”
to “less than the minimum of the amended guideline range,”
the district judge need only ask if the request is based on
“substantial assistance to authorities.”            U.S.S.G.
§ 1B1.10(b)(2)(A), (B). If the request is based on substantial
assistance, the judge may grant the request. If the request is
not so based, the judge may not grant it. See United States v.
Davis, 739 F.3d 1222, 1225 (9th Cir. 2014) (“[T]he
Commission sought to avoid undue complexity[.]”).

    Second, § 1B1.10(b)(2) provides encouragement to
defendants to cooperate with the government, given that
substantial assistance is the only basis on which a district
court may reduce the term of imprisonment below the low
end of the amended guideline range. See U.S.S.G.
§ 1B1.10(b)(2)(B).
14            UNITED STATES V. PADILLA-DIAZ

                       C. Due Process

     Finally, defendants Padilla-Diaz and Heckman contend
that applying the current version of § 1B1.10(b) violates due
process because they entered into their plea agreements prior
to its amendment. The current version of § 1B1.10(b) applies
to Padilla-Diaz and Heckman’s motions pursuant to an
application note explaining that “the court shall use the
version of this 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 as
application note 6).

    Padilla-Diaz and Heckman emphasize that their plea
agreements expressly reserved the right to seek sentence
reductions under § 3582(c)(2) for any future retroactive
amendments. At the time of their pleas, their right to seek
reductions in their sentences included a right to seek
reductions below the low end of the amended guideline range.
They argue that retroactive application of the current version
of § 1B1.10 upsets their settled expectations and therefore
violates their right to due process.

    To determine whether a law has retroactive effect, we
consider “whether the new provision attaches new legal
consequences to events completed before its enactment.”
Landgraf v. USI Film Products, 511 U.S. 244, 270 (1994). In
conducting this inquiry, “familiar considerations of fair
notice, reasonable reliance, and settled expectations offer
sound guidance.” Id. Defendants rely primarily on INS v. St.
Cyr, 533 U.S. 289 (2001), in which St. Cyr, a citizen of Haiti,
pleaded guilty to a deportable offense. At the time St. Cyr
              UNITED STATES V. PADILLA-DIAZ                   15

pleaded guilty, he was eligible to apply for discretionary
relief from deportation under § 212(c) of the Immigration and
Nationality Act of 1952. Id. at 294–95. After his plea,
Congress amended the statute and abolished this form of
discretionary relief. As a result, St. Cyr faced “certain
deportation.” Id. at 325. St. Cyr’s habeas petition alleged
that retroactive application of the repeal impermissibly
undercut his settled expectation, at the time of his plea, that
he would be eligible for relief under § 212(c). The Supreme
Court agreed, concluding that application of the new statute
“impose[d] an impermissible retroactive effect on aliens who,
in reliance on the possibility of § 212(c) relief, pleaded guilty
to aggravated felonies.” Id. at 315.

    The reasoning of St. Cyr does not apply here. The
discretionary waiver under § 212(c), upon which St. Cyr
relied, already existed when he pleaded guilty. By contrast,
Amendment 782, which provides the basis for Defendants’
motions, was promulgated after their pleas. Amendment 782
provides a basis for sentence reductions, but is governed by
limitations on such reductions. Because of the limitations,
Defendants receive no benefit from Amendment 782. But
their failure to receive such benefit is not, as in St. Cyr, the
result of a retroactive deprivation of a pre-existing benefit.
Rather, it is the result of a prospective grant of a limited
benefit. See Tercero, 734 F.3d at 980–81; see also United
States v. Erskine, 717 F.3d 131, 134 (2d Cir. 2013) (granting
a limited reduction).

                          Conclusion

   Because § 1B1.10(b)(2)(A) does not impermissibly
conflict with § 991(b) and Defendants have not shown that
§ 1B1.10(b)(2)(A) violates equal protection or due process,
16           UNITED STATES V. PADILLA-DIAZ

we affirm the district courts’ denials of Defendants’ motions
for sentence reductions.

     AFFIRMED.
