                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 13-2718
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                 v.

WILLIE DIGGS,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
           No. 03 CR 516 — Virginia M. Kendall, Judge.
                     ____________________

    ARGUED JUNE 4, 2014 — DECIDED SEPTEMBER 24, 2014
                     ____________________

    Before WOOD, Chief Judge and CUDAHY, and ROVNER, Cir-
cuit Judges.
    CUDAHY, Circuit Judge. This case deals with the constitu-
tional effect of the US Sentencing Commission’s amendment
to § 1B1.10, which is a policy statement essentially prohibit-
ing courts from applying retroactive amendments to the
guidelines to reduce the sentence of any defendant which
was already below the minimum of the amended guidelines.
The district court properly applied § 1B1.10 to Diggs’ case,
2                                                  No. 13-2718

found that this does not offend the ex post facto clause and
finally, found that the commission did not exceed its dele-
gated authority in its attempt to revise this policy. Accord-
ingly, we affirm.
    Willie Diggs pleaded guilty, with plea agreement, to pos-
session with intent to distribute 50+ grams of crack cocaine
and 500+ grams of powder cocaine. At the plea hearing
Diggs also admitted that he supplied wholesale quantities to
his co-defendants.
    At sentencing, the district court accepted the findings of
the Pre-Sentencing Report, which recommended that Diggs
be held accountable for 5.7 kilos of crack cocaine and 2 kilos
of powder cocaine, resulting in a base offense level of 38. The
court also applied two two-level enhancements for using a
dangerous weapon and having a leadership role in the con-
spiracy. Neither of these enhancements was challenged. In
addition, Diggs sought cooperation credit for assistance he
gave the government in apprehending his co-conspirators.
However, the government opposed this motion on the basis
that Diggs allegedly tipped off his co-conspirators, negating
the validity of any information he provided. Ultimately, the
court determined that Diggs’ cooperation was not fruitful
and did not therefore merit a favorable adjustment in his
sentencing guidelines, but the court did consider Diggs’ co-
operation as a mitigating factor when setting the sentence.
   According to the advisory guidelines, Diggs’ sentence
was calculated to be 360 months to life. However, the court
was impressed by the change Diggs had shown since being
incarcerated and was moved by Diggs’ testimony regarding
the regret he felt for his crimes and his hopes for the future.
No. 13-2718                                                   3

As a result, the court sentenced Diggs to 282 months—78
months below the low end of the advisory guidelines.
   After Diggs was sentenced, Amendment 750 took effect,
which retroactively lowered the base offense level for pos-
session with intent to distribute crack cocaine. Under the ret-
roactive amendment, Diggs’ advisory guideline was 292–365
months. Diggs then moved to reduce his sentence, arguing
that the original 78 month downward variance he received
should be automatically applied to the retroactive guidelines
resulting in a new sentence of 214 months. The court rejected
Diggs’ motion on the basis that USSG § 1B1.10 prohibits a
court from reducing a defendant’s sentence to a term less
than the minimum of the amended guideline range unless
the original sentence had been reduced in response to a gov-
ernment motion for substantial assistance. On appeal the
main thrust of Diggs’ argument is that the district court
should have applied § 1B1.10 as it existed at the time of
Diggs’ offense, which he argues would have resulted in a 78
month downward variance from the amended guideline
range, or 214 months.
                              I.
    The ex post facto clause prohibits “the imposition of pun-
ishment more severe than the punishment assigned by law
when the act to be punished occurred.” Weaver v. Graham,
450 U.S. 24, 30 (1981). By nature, a § 3582(c)(2) proceeding to
reduce a sentence does not have any bearing on the ex post
facto clause, because it cannot increase a punishment. On the
contrary, a § 3582(c)(2) proceeding only applies when a
change in sentencing has occurred which will make a law
more lenient. In fact, the Supreme Court has specifically said
in a related context that there is no constitutional require-
4                                                   No. 13-2718

ment that entitles defendants to such retroactive application
of a subsequent guidelines amendment. Dillon v. United
States, 560 U.S. 817, 828 (2010). Instead, the central focus of
the ex post facto clause is “not an individual’s right to less
punishment, but the lack of fair notice and governmental re-
straint when the legislature increases punishment beyond
what was prescribed when the crime was consummated.”
Weaver, 450 U.S. at 30. Due to the nature of Amendment 750
and the § 3582 proceedings as only working to reduce cer-
tain sentences, there is no danger of legislative excess result-
ing in increased punishment, and neither is there a danger of
a lack of fair notice, because the policy amendment to §
1B1.10 was simultaneously enacted with Amendment 750.
    Diggs primarily argues that the effect of the policy
amendment to § 1B1.10 was to make his sentence harsher,
because if Amendment 750 was enacted at any time between
the time he was sentenced and the policy amendment in
2011, he would be eligible for that sentence reduction. Thus,
his argument is as follows: the policy amendment was an ex
post facto law, because it “resulted in [Diggs] receiving a
harsher sentence than he would have received under the law
in effect at the time he committed his offense.” However,
that final statement is not complete. A more appropriate
summarization of Diggs’ argument is that the policy
amendment was an ex post facto law, because it resulted in a
harsher sentence than Diggs’ would have received if Amendment
750 was in effect at the time of Diggs’ original sentence. This
missing language ultimately dooms Diggs’ argument, be-
cause he has no constitutional entitlement to a retroactive
reduction of his sentence. Dillon, 560 U.S. at 828. Thus, it is
ultimately unimportant that the policy amendment changed
No. 13-2718                                                    5

the policy in effect at the time of Diggs’ sentencing because it
affected a law that became more lenient.
    This is the key distinction between Diggs’ case and those
he cites, like Weaver. There, Florida amended an existing pol-
icy to make it harder to earn good behavior credits (which
result in reduced sentences). Weaver, 450 U.S. at 30. In that
case, the leniency policy already existed and was subse-
quently taken away. Id. Here, however, the leniency policy
(Amendment 750) was enacted after Diggs was sentenced.
He simply has no entitlement to the retroactive application
of favorable policies or amendments enacted after his sen-
tencing.
    Thus, we think it clear that the amendment to the policy
guidelines had no effect of increasing Diggs’ punishment,
but merely attempted to limit the extent to which favorable
amendments to the guidelines can reduce a sentence. It is
true that this policy amendment does negatively impact
Diggs’ sentence, but only because he is not among the nar-
row category of defendants to which this amendment retro-
actively apples, not because his punishment has been retro-
actively increased.
                              II.
    Diggs also argues that the Commission exceeded its au-
thority in amending § 1B1.10 because it essentially required
the district court to withdraw the 78 month variance granted
during the original sentencing. This argument mischaracter-
izes the way the district court arrived at Diggs’ sentence. The
court specifically stated that it was not following a formula,
that it was not deciding that Diggs deserved a 78 month var-
iance and then subtracted that specific variance from the
6                                                             No. 13-2718

guidelines. Instead, the district court analyzed the § 3553(a)
factors and determined that the nature of the crime, the
characteristics of the defendant, and the defendant’s cooper-
ation warranted a sentence of 282 months. 1 In this case, then,
it is simply not true that Diggs was entitled to the 78 month
variance, because he received a sentence which the sentenc-
ing judge deemed appropriate given the totality of the cir-
cumstances. Thus, the Commission did not require the dis-
trict court to withdraw a specific variance, but instead cir-
cumscribed the application of Amendment 750, which is
within its authority to do. In fact, the Commission is required
to issue policy statements, which “specify in what circum-
stances and by what amount the sentence of [prisoners who
qualify for the amendment] … may be reduced.” 28 U.S.C. §
994(u). Therefore, the policy amendment which Diggs chal-
lenges was not only authorized, but in fact a fulfillment of
the Commission’s statutory duty.
    Finally, Diggs challenges the carve out in § 1B1.10 which
allows a court to further reduce a sentence already below the
amended guideline range if the court granted a motion seek-
ing credit for substantial assistance to authorities. Diggs ar-
gues that this impermissibly requires the district court to
consider the assistance factor above all other § 3553(a) fac-
tors. However, this argument overlooks the fact that a court


    1  Specifically the court said: “I think 30 years is too high, but I cer-
tainly don’t think you should get the 20 years that you would get had
you got the cooperation motion that you expected … I don’t have a mag-
ically correct answer. I am going to sentence you to 23 1/2 years. And I
think that that is a fair sentence given the enormity of the crime, the
number of people who were hurt, the duration over which it took place
…”
No. 13-2718                                                   7

must first determine whether §1B1.10 allows a reduction be-
fore it considers any of the § 3553(a) factors. Therefore, the
amended § 1B1.10 effectively cannot limit the court’s use of
the § 3553(a) factors, because it involves a threshold analysis,
separate from the court’s § 3553(a) analysis.
    Ultimately, the Commission has broad authority, and is in
fact required, to issue policy statements about the applica-
tion of its guidelines, and to determine whether and to what
extent amendments will be retroactive. Dillon, 560 U.S. at
826. The Commission did not exceed that authority here.
                                                  AFFIRMED.
