 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 7, 2014           Decided February 28, 2014

                       No. 13-3015

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

                 CARL MICHAEL TAYLOR,
                      APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:06-cr-00171-1)



    Tony Axam Jr., Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A.J.
Kramer, Federal Public Defender.

    Sarah G. Boyce, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman
and Elizabeth Danello, Assistant U.S. Attorneys. SuzAnne C.
Nyland, Assistant U.S. Attorney, entered an appearance.

    Before: GARLAND, Chief Judge, SRINIVASAN, Circuit
Judge, and SILBERMAN, Senior Circuit Judge.
                               2

    Opinion for the Court filed PER CURIAM.

     PER CURIAM: “[I]n the case of a defendant who has been
sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission,” Congress has authorized the sentencing court to
“reduce the term of imprisonment . . . if such a reduction is
consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In January
2009, appellant Carl Taylor was sentenced to 180 months in
prison for conspiracy to distribute and possess with intent to
distribute 50 grams or more of crack cocaine, in violation of 21
U.S.C. § 846. In November 2011, the U.S. Sentencing
Commission gave retroactive effect to an amendment to the U.S.
Sentencing Guidelines lowering base offense levels for offenses
involving crack cocaine. Shortly thereafter, Taylor moved the
district court to reduce his sentence pursuant to 18
U.S.C. § 3582(c)(2).

     The district court denied Taylor’s motion. It did so on the
ground that it was bound by U.S.S.G. § 1B1.10(b)(2)(A), a
Sentencing Commission policy statement, which provides that,
except in a circumstance not relevant here, “the court shall not
reduce the defendant’s term of imprisonment under 18
U.S.C. § 3582(c)(2) . . . to a term that is less than the minimum
of the amended guideline range.” Because the lower bound of
the applicable amended range was 188 months, greater than
Taylor’s original 180-month sentence, no reduction was
available. The district court also rejected Taylor’s arguments
that § 1B1.10(b)(2) is invalid because it was promulgated
without notice and comment as allegedly required by the
Sentencing Reform Act of 1984 (SRA), 18 U.S.C. §§ 3551 et
seq., 28 U.S.C. §§ 991 et seq., and because it violated
nondelegation and separation of powers principles.
                               3

     Taylor then filed the instant appeal, raising the same
contentions that he advanced in the district court. All seven
circuit courts that have considered similar challenges have
upheld § 1B1.10 as a lawful exercise of the Sentencing
Commission’s powers. See generally United States v. Davis,
739 F.3d 1222 (9th Cir. 2014); United States v. Erskine, 717
F.3d 131 (2d Cir. 2013); United States v. Colon, 707 F.3d 1255
(11th Cir. 2013); United States v. Berberena, 694 F.3d 514 (3d
Cir. 2012); United States v. Harris, 688 F.3d 950 (8th Cir.
2012); United States v. Anderson, 686 F.3d 585 (8th Cir. 2012);
United States v. Horn, 679 F.3d 397 (6th Cir. 2012); United
States v. Garcia, 655 F.3d 426 (5th Cir. 2011). We now do the
same.

     Taylor first argues that § 1B1.10(b)(2)(A) is invalid under
the SRA because it is binding on courts and was not
promulgated through notice-and-comment procedures. The
SRA, however, requires such procedures only for sentencing
guidelines. 28 U.S.C. § 994(x). Because the challenged
provision is a policy statement, not a guideline, the SRA’s
notice-and-comment requirement does not apply. See id.
Recognizing this problem, Taylor further argues that the
Sentencing Commission cannot bind courts in sentence
reduction proceedings through a policy statement; a binding
pronouncement must be a guideline, he says, and therefore must
go through notice and comment.

    But the language of the SRA says just the opposite. The
SRA expressly provides that policy statements, not guidelines,
govern sentence reduction proceedings under 18
U.S.C. § 3582(c). See 28 U.S.C. § 994(a)(2)(C). Moreover,
§ 3582(c)(2) itself states that a court may reduce a defendant’s
sentence in such a proceeding only to the degree that the
“reduction is consistent with applicable policy statements issued
by the Sentencing Commission,” rendering such policy
                                 4

statements binding. The SRA further requires that, where
sentencing guidelines have been lowered, the Sentencing
Commission “shall specify in what circumstances and by what
amount the sentences of prisoners serving terms of
imprisonment . . . may be reduced.” 28 U.S.C. § 994(u). This
necessarily implies that the Commission will also define the
circumstances in which sentences may not be reduced, again
compelling the conclusion that Congress expected -- indeed,
required -- that binding policy statements would govern sentence
reduction proceedings. See generally Dillon v. United States,
560 U.S. 817 (2010).

     Taylor next raises two constitutional concerns. First, he
contends, albeit inconsistently, that Congress did not lay down
an “intelligible principle” to guide the Commission’s
promulgation of § 1B1.10, and that it thus effected an invalid
delegation of legislative power. He concedes, as he must, that
Mistretta v. United States, 488 U.S. 361 (1989), held that
Congress did validly delegate authority to the Commission to
promulgate the U.S. Sentencing Guidelines as a whole. Oral
Arg. Recording at 14:40-46; see Mistretta, 488 U.S. at 374-79
(holding that Congress articulated intelligible principles in
delegating authority to the Commission to regulate sentencing).
But he contends that the specific area of resentencing
proceedings remains without sufficient guidance. We disagree.
Given the overall constitutionality of the Sentencing Guidelines
scheme, and given that § 1B1.10 governs its application in only
the narrow context of 18 U.S.C. § 3582(c)(2) sentence reduction
proceedings, § 1B1.10 is also an exercise of validly delegated
authority. See also 28 U.S.C. § 994(a)(2) (authorizing the
Sentencing Commission to promulgate policy statements that
“further the purposes set forth in section 3553(a)(2) of title 18”).

    Second, Taylor argues that the Commission’s promulgation
of a binding policy statement without notice and comment
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violates the constitutional principle of separation of powers. For
this, he relies on the fact that Mistretta, in the course of
upholding the constitutionality of the SRA, noted the Act’s
notice-and-comment requirement for guidelines. Mistretta, 488
U.S. at 394. But the fact that guidelines are subject to notice-
and-comment procedures was but one of three reasons the
Supreme Court gave for finding that the Commission is not a
court and does not exercise judicial power, which in turn was
but one of several sets of reasons it gave for finding that the
Commission’s location in the judicial branch does not
undermine the integrity of that branch or expand the power of
the judiciary beyond constitutional bounds. Id. at 393-97.
Nothing in Mistretta suggested that notice-and-comment
procedures are essential to the constitutionality of the
Sentencing Guidelines scheme as a whole, let alone to the
constitutionality of policy statements applicable to sentence
reduction proceedings.

     Because § 1B1.10(b)(2)(A) bars sentence reductions below
the applicable amended guideline range, and because Taylor’s
sentence was already below that range, the district court
properly held that a reduction in his sentence was unavailable.
Rejecting Taylor’s challenges to the validity of
§ 1B1.10(b)(2)(A), we affirm the judgment of the district court.

                                                     So ordered.
