           NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                      File Name: 17a0227n.06

                                     No. 16-6493

                     UNITED STATES COURT OF APPEALS
                          FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )                     FILED
                                                )                  Apr 19, 2017
                                                              DEBORAH S. HUNT, Clerk
      Plaintiff-Appellee,                       )
                                                )
v.                                              )
                                                )    On Appeal from the United States
THOMAS A. PAYNE,                                )    District Court for the Middle
                                                )    District of Tennessee
      Defendant-Appellant.                      )
                                                )
_________________________________/


      Before: GUY, SILER, and DONALD, Circuit Judges.

      RALPH B. GUY, JR., Circuit Judge. Defendant, Thomas Payne, appeals the

district court’s order denying his motion for a sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2). We affirm.

                                           I.

      Defendant received a substantial downward variance after pleading guilty to a six-

count indictment for distributing methamphetamine, 18 U.S.C. § 841(a)(1), and

conspiracy to distribute methamphetamine, 18 U.S.C. § 846. Years later, the United

States Sentencing Commission issued a policy statement reducing offense levels assigned
Case No. 16-6493,                                                                         2
United States v. Payne
to offenses based on drug quantity, and made the amendment retroactive, permitting

resentencing under § 3582(c)(2) so long as it was “consistent with applicable policy

statements issued by the Sentencing Commission.”           Amendment 759 to U.S.S.G.

§ 1B1.10(b)(2) – a policy statement – prohibited district courts in § 3582(c)(2)

proceedings from reducing an offender’s sentence to a term less than the low end of the

amended guidelines range except where the original below-guidelines sentence was based

on a government motion for a substantial assistance reduction. See U.S.S.G. App. C

amend. 759 (2011).

       Defendant moved the district court for a § 3582(c)(2) reduction despite not

receiving a variance based on substantial assistance. The district court denied the motion,

ruling that defendant was ineligible for a further reduction. It also indicated that were he

eligible, the court “would not be inclined to grant one, given the fact that the [previous]

variance granted by the court was more than a 50% departure downward from the bottom

of the guidelines – a truly generous and extraordinary variance.”

       On appeal, defendant challenges the legality of Amendment 759. He argues that

Sentencing Commission policy statements have binding effect and thus must comply

with the Administrative Procedure Act’s (“APA”) notice-and-comment requirements. He

also contends that Amendment 759 is arbitrary and capricious under the APA, and the

district court therefore should have ignored it and granted § 3582(c)(2) relief for reasons

other than substantial assistance.
Case No. 16-6493,                                                                              3
United States v. Payne
                                               II.

         We review de novo a district court’s conclusion that it lacks the authority to reduce

a sentence under 18 U.S.C. § 3582(c)(2) due to a defendant’s ineligibility. United States

v. Taylor, 815 F.3d 248, 250 (6th Cir. 2016).

                                               III.

         Despite defendant’s protests to the contrary, the Sentencing Commission is not

subject to the APA except where Congress explicitly directed – i.e., in promulgating

guidelines pursuant to 28 U.S.C. § 994. See United States v. Maiello, 805 F.3d 992, 998

(11th Cir. 2015); 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); United States v. Johnson,

703 F.3d 464, 468 (8th Cir. 2013); Wash. Legal Found. v. U.S. Sentencing Comm’n, 17

F.3d 1446, 1450 (D.C. Cir. 1994). Grafting a notice-and-comment requirement onto the

Sentencing Reform Act where Congress declined to do so would be both atextual and

contrary to official legislative history.1 Defendant’s “inferred [congressional] intent . . .

does not stand in the face of explicit statutory language” to the contrary. United States v.

Horn, 679 F.3d 397, 403 (6th Cir. 2012).




1
    The Senate Report on the Sentencing Reform Act provides:

         Subsection (w) makes the provisions of 5 U.S.C. 553, the provisions of         the
         Administrative Procedure Act that relate to rulemaking, applicable to          the
         promulgation of guidelines pursuant to Section 994. This is an exception to    the
         general inapplicability of the Administrative Procedure Act – including         its
         requirement of publication in the Federal Register – to the judicial branch.

S. Rep. No. 98-225, at 180-81 (1983).
Case No. 16-6493,                                                                        4
United States v. Payne
       Except where litigants allege a constitutional infirmity, courts “lack authority ‘to

impose upon [an] agency [their] own notion of which procedures are ‘best’ or most likely

to further some vague, undefined public good.’” Perez v. Mortg. Bankers Ass’n, 135 S.

Ct. 1199, 1207 (2015) (quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def.

Council, 435 U.S. 519, 549 (1978)). Here, defendant raises no constitutional claims,

merely characterizing the exemption of Sentencing Commission policy statements from

APA requirements as “an anomaly.” And, indeed, he could not raise a constitutional

claim, as “the sentence-modification proceedings authorized by § 3582(c)(2) are not

constitutionally compelled.” Johnson, 703 F.3d at 469 (quoting Dillon v. United States,

560 U.S. 817, 828 (2010)). Anomalous or otherwise, it was within Congress’s authority

to subject some actions of the Sentencing Commission to the strictures of the APA while

exempting others. See Horn, 679 F.3d at 403-04 (“Unless unconstitutional, Congress is

free to change the rules by which an agency plays.”).

                                          * * *

       The district court correctly ruled that defendant is ineligible for a sentence

reduction under § 3582(c)(2), and that it therefore lacked authority to further reduce his

sentence.

       AFFIRMED.
