                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 11-4264
                                    _____________

                           UNITED STATES OF AMERICA

                                           v.

                                  JERRY L. STRAIN,
                                            Appellant
                                   _______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                 (D.C. No. 09-cr-291)
                     District Judge: Hon. Christopher C. Conner
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 15, 2012

              Before: SCIRICA, FISHER, and JORDAN, Circuit Judges.

                              (Filed: November 16, 2012)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Jerry L. Strain appeals a sentence imposed by the United States District Court for

the Middle District of Pennsylvania. He had received a variance when he was originally

sentenced but not when the District Court later amended his sentence to reflect a

retroactive change to the United States Sentencing Guidelines. In his view, the denial of
a variance in the amended sentence constitutes error. For the reasons that follow, we will

affirm.

I.        Background

          In December 2009, Strain pleaded guilty to a charge of conspiracy to distribute

and possess with intent to distribute crack cocaine in violation of 21 U.S.C. § 846. At

sentencing, the pertinent Guidelines range was determined to be 108 to 135 months’

imprisonment.      Strain moved for a downward variance from this range, and, after

analyzing the factors in 18 U.S.C. § 3553(a), the District Court granted that motion and

sentenced him to 90 months’ imprisonment (approximately a 17 percent variance below

the minimum of 108 months), followed by three years of supervised release.

          As a result of the Fair Sentencing Act of 2010, the Guidelines ranges for crack

offenses were reduced to lessen the disparity between those offenses and offenses

involving powder cocaine. See Amendment 750, U.S. Sentencing Guidelines app. C, at

392–93 (2011). Those changes were made retroactive on November 1, 2011. U.S.

Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.10(c) . In light of the retroactivity of

the amendments, Strain filed a motion to reduce his sentence. Without opposition from

the government (App. at 102), the District Court granted Strain’s motion and his

amended Guidelines range became 70 to 90 months’ imprisonment. Strain also asked the

District Court to grant a 17 percent variance, as the Court had in imposing the initial

sentence. The Court rejected that request, citing Guidelines § 1B1.10, which prevents

courts from departing or varying after re-sentencing a defendant pursuant to an amended

Guidelines range except to reflect substantial assistance. Id. § 1B1.10(b)(2)(A). The

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District Court sentenced Strain to 70 months’ imprisonment, which was the minimum

recommended under the amended range. Strain filed this timely appeal, contending that

the District Court’s reliance on § 1B1.10 was in error.

II.    Discussion 1

       Section 1B1.10 of the Guidelines provides, “[T]he 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 … .” Id.

§ 1B1.10(b)(2)(A). Strain argues that the United States Sentencing Commission (the

“Commission”) lacked the authority to promulgate § 1B1.10 because that provision

impermissibly interferes with aspects of an original sentence, such as the propriety of a

variance. Strain further argues that adoption of §1B1.10 violates separation of powers

principles because it “constitutes unconstrained rule making and interferes with the

judicial function.” (Appellant Br. 12.) Both arguments are unavailing.

       We recently addressed those same arguments in United States v. Berberena, No.

11-4540, --- F.3d ---, 2012 WL 3937666 (3d Cir. Sept. 11, 2012). In Berberena, we first

considered the issue of the Commission’s authority to promulgate § 1B1.10 and indicated

that the Commission had authority to limit variances in light of three statutory provisions:

28 U.S.C. §§ 994(a) and (u), and 18 U.S.C. § 3582(c)(2). Id. at *3-4. We explained that


       1
          The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We exercise plenary
review over the District Court’s interpretation of the Guidelines. United States v.
Kennedy, 554 F.3d 415, 418 (3d Cir. 2009). We review for clear error any factual
findings that support a sentencing determination. Id.

                                             3
“§ 994(u) requires the Commission to specify [by what amount sentences may be reduced

based on retroactive amendments], § 994(a)(2)(C) requires that this specification be in

the form of a policy statement, and § 3582(c)(2) makes those policy statements binding.”

Id. at *5 (alteration in original) (internal quotation marks omitted). Therefore, “these

provisions sink [Strain’s] contention that the Commission exceeded its statutory authority

by prohibiting courts from reducing a prisoner’s sentence below his amended Guidelines

range except to reflect substantial assistance.” Id.

       As to Strain’s separation of powers argument, our opinion in Berberena explained

that Congress’s delegation of authority to the Commission did not violate separation of

powers principles because “a delegation of legislative power is permissible if Congress

‘lay[s] down by legislative act an intelligible principle to which the person or body

authorized to [exercise the delegated authority] is directed to conform.’”        Id. at *6

(alteration in original) (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)).

And given the clarity of §§ 994 (a) and (u), and § 3582 (c)(2), the “intelligible principle”

requirement “easily has been met here.” Id. 2

       As a result of our rejection in Berberena of the same arguments that Strain presses

here, his appeal lacks merit.




       2
          To be sure, Berberena explained that the Sentencing Commission’s revision of
§ 1B1.10(b) did constrain the ability of courts entertaining § 3582(c)(2) motions to
reduce sentences. Yet, it did not impermissibly interfere with the judicial function and
comported with separation of powers principles. Cf. Berberena, 2012 WL 3937666, at
*8 (“Congress explicitly placed the Commission within the judicial branch because of the
role that branch has historically played in sentencing.”).
                                              4
III.     Conclusion

         For the foregoing reasons, we will affirm the sentence imposed by the District

Court.




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