 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 16, 2018            Decided February 5, 2019

                       No. 17-3065

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

    ALVARO ALVARAN-VELEZ, ALSO KNOWN AS MARCOS,
                    APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:07-cr-00065-2)


    Carmen D. Hernandez, appointed by the court, argued the
cause and filed the brief for appellant.

    Kirby A. Heller, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee. Elizabeth
Trosman, Assistant U.S. Attorney, entered an appearance.

   Before: HENDERSON and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge PILLARD.
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     PILLARD, Circuit Judge: The question on appeal is
whether the Ex Post Facto Clause forbids applying a current
U.S. Sentencing Commission policy statement, which offers
sentence reductions only to those defendants whose original
sentences are not already below newly reduced guideline
ranges, to a defendant whose crime occurred before that
version of the policy statement took effect. The defendant,
Alvaro Alvaran-Velez, claims that he could have gotten a
sentence reduction under the version of the policy statement in
effect at the time of his crime. Using a newer version, he
argues, violated the Ex Post Facto Clause by eliminating a real
chance for a shorter sentence upon guideline range reduction
that he believes existed when he committed the offense.
Because, correctly read, the earlier version did not even apply
to him, we affirm the district court’s denial of Alvaran’s motion
for a sentence reduction.

                                I.

     Alvaran violated 21 U.S.C. §§ 959, 960, and 963 by
conspiring between 2005 and 2007 to distribute five kilograms
or more of cocaine, knowing or intending that the cocaine
would be imported into the United States. He was convicted
after a jury trial in 2010. At the time of Alvaran’s sentencing
in 2013, the applicable Sentencing Guideline range was 324 to
405 months imprisonment. The court nevertheless sentenced
him to 180 months, significantly below the applicable range.
In doing so, the court weighed the seriousness of the offense,
Alvaran’s lack of a criminal record, his poor health, letters from
his family attesting to his good character, the fact that he was
raised in a poor family, and that he was far less culpable than
another defendant who had been sentenced to 300 months—all
factors appropriate to consider under 18 U.S.C. § 3553(a).
                               3
     The year following Alvaran’s sentencing, the Sentencing
Commission adopted Guideline Amendment 782, which
lowered the base offense levels for certain drug crimes by two
levels, and Amendment 788, which applied the new levels
retroactively.     United States Sentencing Commission,
Guidelines Manual, App. C, amends. 782, 788 (Supp. 2014).
Had Alvaran been sentenced under the amended guidelines, the
applicable sentencing range would have been 262 to 327
months—substantially lower than the 324-to-405-month range
at Alvaran’s initial sentencing, but still well above his actual
180-month sentence.

     Alvaran requested a sentence reduction pursuant to 18
U.S.C. § 3582(c)(2), which allows a district court to reduce the
sentence of a defendant whose guideline range is subsequently
lowered “if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” But
the district court held that a newer version of one of those
policy statements, USSG § 1B1.10, foreclosed reducing his
sentence. As revised by a 2011 amendment, Amendment 759,
that policy statement set the bottom of the new guideline range
as a floor for sentence reductions by providing that “the court
shall not reduce the defendant’s term of imprisonment . . . to a
term that is less than the minimum of the amended guideline
range.” USSG § 1B1.10(b)(2)(A) (2016). Because Alvaran’s
sentence was already below the minimum of the amended
guideline range, the district court held that USSG § 1B1.10
prevented any further reduction.

    Alvaran contended that applying the policy statement’s
sentence reduction floor to deny him a reduction violated the
Ex Post Facto Clause, U.S. CONST. art. I, § 9, cl. 3, because a
2006 version of the policy statement—in force when he
committed his crime—would have allowed the district court to
reduce his sentence in response to the amended guidelines
                               4
range. That 2006 policy statement advised a court reducing a
sentence pursuant to guideline amendments to “consider the
term of imprisonment that it would have imposed had the
amendment(s) to the guidelines listed in subsection (c) been in
effect at the time the defendant was sentenced.” USSG
§ 1B1.10(b) (2006).       Subsection (c) listed twenty-four
amendments that lowered guideline ranges; it did not include
the amendment that lowered Alvaran’s sentencing range,
Amendment 782, which would not be passed for another eight
years. Alvaran pointed to an application note to the 2006
version that states that, “[w]hen the original sentence
represented a downward departure, a comparable reduction
below the amended guideline range may be appropriate.” Id.
§ 1B1.10, comment. (n.3). That application note, he claimed,
shows that, but for the 2011 amendment of USSG
§ 1B1.10(b)(2)(A) prohibiting below-guideline sentence
reductions, he would have been eligible for a reduction below
the lowered guideline range comparable to the original
reduction the court granted.

      At the hearing on Alvaran’s motion for a sentence
reduction, the district court said that it would lower his
sentence “very substantially” if it could, but that the then-
current Guidelines Manual forbade a reduction. Alvaran
argued that applying the new policy statement with the
guideline reduction violated the Ex Post Facto Clause because
it eliminated his opportunity to invoke the court’s discretion to
lower his sentence. The district court disagreed.

    We review de novo whether applying the 2016 version of
USSG § 1B1.10 to Alvaran violates the Ex Post Facto Clause.
See United States v. Haipe, 769 F.3d 1189, 1191 (D.C. Cir.
2014).
                               5
                               II.

     Any “law that changes the punishment, and inflicts a
greater punishment[] than the law annexed to the crime[] when
committed,” is an ex post facto law. Calder v. Bull, 3 U.S. 386,
390 (1798). “The touchstone of this . . . inquiry is whether a
given change in law presents a ‘sufficient risk of increasing the
measure of punishment attached to the covered crimes.’”
Peugh v. United States, 569 U.S. 530, 539 (2013) (quoting
Garner v. Jones, 529 U.S. 244, 250 (2000)). Whether a risk is
sufficient is “a matter of degree” that “cannot be reduced to a
‘single formula.’” Id. (quoting Calif. Dep’t of Corr. v.
Morales, 514 U.S. 499, 509 (1995)). But the Court has said
that a law that “creates only the most speculative and attenuated
possibility of producing the prohibited effect of increasing the
measure of punishment for covered crimes” does not present a
sufficient risk. Morales, 514 U.S. at 509.

       The government suggests that sentence modification
proceedings under 18 U.S.C. § 3582(c)(2) in response to a
Commission decision to lower the guideline range simply “do
not implicate the ex post facto prohibition” because such
proceedings “by their very nature can only reduce a
defendant’s sentence (or, at worst, leave it unchanged).”
Appellee Br. 10-11. The Supreme Court, however, has held
that certain losses of opportunities for shortened sentences can
constitute an “increased” punishment under the Ex Post Facto
Clause. An opportunity for a shortened sentence whose loss
“creates only the most speculative and attenuated possibility of
. . . increasing the measure of punishment for covered crimes”
does not implicate the Ex Post Facto Clause. Morales, 514
U.S. at 509. But if the opportunity is sufficiently likely to
materialize, its loss may have “the effect of lengthening [a
defendant’s] period of incarceration.” Lynce v. Mathis, 519
U.S. 433, 443 (1997). In Weaver v. Graham, the Court
                                6
invalidated the retroactive application of a Florida statute that
made the formula for calculating early-release credits less
generous than it had been when the defendant committed his
crime. 450 U.S. 24, 25, 35-36 (1981). Rejecting the notion
that the ex post facto analysis depended on whether defendants
had a right to early-release credits before the new law came
into effect, the Court said that, “even if a statute merely alters
penal provisions accorded by the grace of the legislature, it
violates the Clause if it is both retrospective and more onerous
than the law in effect on the date of the offense.” Id. at 30-31.
Even though Weaver had not yet earned the credits, the new
law’s net effect of making credits harder to obtain than they
had been when Weaver was sentenced violated the Ex Post
Facto Clause. Id. at 35. Similarly, in Lynce v. Mathis, the
Court invalidated a different Florida statute that retroactively
canceled early-release credits that Lynce had already used to
get out of prison. 519 U.S. at 435. The state argued that,
because the type of credits at issue only accrued if the Florida
prison system passed a certain threshold of overcrowding,
Lynce “could not reasonably have expected to receive any such
credits,” and that his risk of increased punishment was
therefore “speculative and attenuated.” Id. at 437-38, 446. The
Court rejected that argument as applied to Lynce, who had
already been awarded credits that stood to be cancelled. Id. at
446.

     Alvaran likens his situation to that of Weaver and Lynce.
“Throughout most of its history,” he contends, guidelines
policy statement section 1B1.10 “encouraged courts modifying
sentences pursuant to retroactive guideline amendments to re-
impose a below-guideline sentence” that was, proportionately,
as far below the reduced guidelines range as the original
sentence was below the original range. Appellant’s Br. 3. As
Alvaran sees it, the 2011 amendment changed that to his
detriment. By generally prohibiting sentence reductions for
                              7
anyone whose original sentence fell below the bottom of the
amended guidelines range, Alvaran claims, the 2011
amendment effected “the complete removal of any opportunity
to invoke the court’s discretion to reduce a sentence” for
someone in his position. Id. at 12-13. The amended version of
section 1B1.10, he argues, thus imposes a “reduced opportunity
to shorten his time in prison.” Id. at 13 (emphasis omitted)
(quoting Weaver v. Graham, 450 U.S. 24, 33-34 (1981)).

     The flaw in Alvaran’s reasoning is that, unlike Weaver and
Lynce, Alvaran never had the opportunity for reduced
punishment that he now claims he lost. The text Alvaran wants
applied to him—that “the court should consider the term of
imprisonment that it would have imposed had the
amendment(s) to the guidelines listed in subsection (c) been in
effect at the time the defendant was sentenced”—is explicitly
limited to the listed amendments, each of which had already
been adopted and made retroactive in 2006. USSG § 1B1.10(b)
(2006) (emphasis added). Alvaran reads into the 2006
guideline policy a broad, forward-looking promise of
proportionate sentencing reduction that the textually cabined
policy does not support. Unlike the laws at issue in Weaver
and Lynce, the 2006 version of section 1B1.10 did not confer
on defendants a general opportunity to benefit; rather, it
extended an opportunity that, by its terms, applied only to the
amendments it enumerated.

     Because the 2006 version of section 1B1.10 did not apply
to Alvaran in the first place, we conclude that applying its
amended 2016 counterpart does not make his punishment more
onerous than it otherwise would have been. Although our sister
circuits have relied on different and sometimes broader
grounds, none has held to the contrary. See United States v.
Ramirez, 846 F.3d 615, 625 (2d Cir. 2017); United States v.
Kruger, 838 F.3d 786, 790-92 (6th Cir. 2016); United States v.
                               8
Thompson, 825 F.3d 198, 200, 206 (3d Cir. 2016), cert. denied,
137 S. Ct. 326 (2016); United States v. Kurtz, 819 F.3d 1230,
1236-37; (10th Cir. 2016); United States v. Waters, 771 F.3d
679, 680-81 (9th Cir. 2014) (per curiam); United States v.
Diggs, 768 F.3d 643, 645-46 (7th Cir. 2014); United States v.
Colon, 707 F.3d 1255, 1258-59 (11th Cir. 2013). We join the
unanimity of circuits that have held that the 2006 version of the
policy statement did not by its own terms give persons in
Alvaran’s position the opportunity he claims for a reduced
sentence.

     We also hold that the amendment’s prohibition on below-
guideline sentence reductions is a permissible exercise of the
Sentencing Commission’s discretion to determine and limit the
retroactivity of its amendments. See Dillon v. United States,
560 U.S. 817, 826 (2010). The Supreme Court has noted that
it is “aware of no constitutional requirement of retroactivity
that entitles defendants sentenced to a term of imprisonment to
the benefit of subsequent Guidelines amendments.” Id. at 829.
Here, the Commission exercised its discretion in drafting
Amendment 782, which lowered Alvaran’s guideline range, so
as to render it retroactive only as to defendants who had
received a sentence exceeding the newly lowered minimum.
The amendment simply did not retroactively lower the range
for defendants like Alvaran, who had already received a below-
minimum sentence. The Commission took nothing away from
Alvaran when it created a benefit targeted to offenders whose
original sentences exceeded the bottom of the newly lowered
guideline range.

                           *   *    *

    We accordingly affirm the district court’s decision to deny
the motion for a sentence reduction.

                                                    So ordered.
