                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 20 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50194

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00386-CAS-1

  v.
                                                 MEMORANDUM*
MELVIN ADAMS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                      Argued and Submitted October 9, 2013
                              Pasadena, California

Before: REINHARDT, KLEINFELD, and CHRISTEN, Circuit Judges.

       Melvin Adams appeals the district court’s order denying his motion for

reduction of sentence under 18 U.S.C. § 3582(c)(2). We have jurisdiction under 28

U.S.C. § 1291 to review the discretionary denial of a § 3582(c)(2) sentence

reduction motion. United States v. Trujillo, 713 F.3d 1003, 1008 n.3 (9th Cir.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
2013). We review de novo whether a district court has jurisdiction to resentence a

defendant under § 3582. United States v. Wesson, 583 F.3d 728, 730 (9th Cir.

2009). We affirm the district court’s ruling.

      Section 3582(c)(2) allows modification of a term of imprisonment when: (1)

the sentence is based on a sentencing range that has subsequently been lowered by

the Sentencing Commission; and (2) such reduction is consistent with applicable

policy statements issued by the Sentencing Commission. Id. The primary

applicable policy statement here is United States Sentencing Guideline

(“U.S.S.G.”) § 1B1.10, which states that a defendant is eligible for a sentence

reduction if “the guideline range applicable to that defendant has subsequently

been lowered as a result of an amendment to the Guidelines . . . .” U.S.S.G. §

1B1.10(a)(1) (emphasis added). The commentary to § 1B1.10 clarifies that

eligibility for a reduction of sentence is triggered only by an amendment that

lowers the applicable guideline range, and the guideline range is determined

“before consideration of any departure provision in the Guidelines Manual or any

variance.” U.S.S.G. § 1B1.10 cmt. n. 1(A) (2011). See United States v. Pleasant,

704 F.3d 808, 810–11 (9th Cir. 2013).

      Here, Adams was ineligible for a sentence reduction because he failed §

3582(c)(2)’s second prong — that a sentence reduction must be consistent with


                                          2
applicable policy statements issued by the Sentencing Commission.1 Before he

was sentenced by Judge Takasugi, Adams conceded that he “is a career offender

under the Guidelines” because of his prior convictions. Therefore, even though

Judge Takasugi appears to have based Adams’s initial sentence on U.S.S.G. §

2D1.1’s crack cocaine guideline, the “applicable” guideline was U.S.S.G. §

4B1.1’s career offender guideline. Since the Sentencing Commission did not

lower the guidelines for career offenders, Adams was ineligible for a sentence

reduction.

      Adams argues that his case is distinguishable from Pleasant, noting that

Judge Takasugi never found that Adams was a career offender. But as already

mentioned, Adams conceded at the time of sentencing that his prior convictions put

him in the career offender category. In summarizing Adams’s sentencing

memorandum, Judge Takasugi noted that “[t]he defendant does concede he is a

career offender.” It is not significant that Judge Takasugi failed to make an

express finding concerning an uncontested issue.2




      1
             The parties do not contest that Adams satisfied § 3582(c)(2)’s first
prong.
      2
             See U.S.S.G. § 4B1.1(b).

                                          3
      Adams also argues that the 2011 amendment to Application Note 1(A) of

Guideline § 1B1.10 violates the United States Constitution’s Ex Post Facto Clause.

But amended Note 1(A) does not present “a sufficient risk of increasing the

measure of punishment attached to the covered crimes.” Peugh v United States,

133 S. Ct. 2072, 2089 (2013) (quotation marks and citations omitted). It cannot be

said that, as compared to when he committed the offense, Adams was exposed to a

risk of more punishment when the Commission clarified that the availability of a

new and rare resentencing remedy is limited to those who had been sentenced

based upon a subsequently reduced guideline. Separately, “there can be no ex post

facto problem if an amendment to the Guidelines merely clarifies its existing

substance as opposed to changing its substance.” United States v Johns, 5 F.3d

1267, 1269 (9th Cir. 1993). That is what amended Note 1(A) does. By its own

terms, the Sentencing Commission amended Note 1(A) “to clarify that the

applicable guideline range referred to in §1B1.10 is the guideline range that

corresponds to the offense level and criminal history category determined pursuant

to 1B1.1(a), which is determined before consideration of any departure provision .

. . or any variance.” See 76 Fed. Reg. 41332 (emphasis added).

      Adams also argues that the current version of § 1B1.10 violates the

Administrative Procedure Act’s notice-and-comment and report-and-wait


                                         4
requirements. But the Sentencing Reform Act’s statutory scheme makes clear that

policy statements such as § 1B1.10 are subject to neither the APA’s 180-day

waiting period nor the notice-and-comment requirements for formally promulgated

rules. After considering the differences between Guidelines and policy statements

in 28 U.S.C. § 994(a), Congress imposed different requirements for the

Commission’s use of each tool. Section 994(x) states that “[t]he provisions of

section 553 of title 5, relating to publication in the Federal Register and public

hearing procedure, shall apply to the promulgation of guidelines pursuant to this

section.” 28 U.S.C. § 994(x) (emphasis added). Section 994(x) does not refer to

policy statements.3 See United States v. Tercero, No. 12-10404, slip op. at 11 (9th

Cir. Oct. 31, 2013).

      Finally, Adams argues that the Commission usurped judicial and

Congressional authority by adopting Application Note 1(A). But Congress

directed that the Sentencing Commission “shall specify in what circumstances and

by what amount the sentences of prisoners serving terms of imprisonment for the

offense may be reduced.” 28 U.S.C. § 994(u). The Commission is directed to do


      3
             As the Third Circuit noted in United States v. Berberena, “[u]nlike in
certain surrounding provisions . . ., § 994(x) makes no reference to the
Commission’s issuance of policy statements. The omission can only be interpreted
to exclude policy statements from § 994(x)’s application of the APA’s
notice-and-comment provisions.” 694 F.3d 514, 526–27 (3rd Cir. 2012).
                                           5
so by adopting binding policy statements. See 28 U.S.C. § 994(a)(2)(C) (The

Commission “shall promulgate . . . general policy statements regarding application

of the guidelines or any other aspect of sentencing or sentence implementation that

in the view of the Commission would further the purposes set forth in [18 U.S.C. §

3553(a)(2)], including the appropriate use of . . . the sentence modification

provision[] set forth in section[] . . . 3582(c).”). That is exactly what it has done

with § 1B1.10. As such, Adams’s argument fails.

      AFFIRMED.




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