                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 12-50522
                Plaintiff-Appellee,
                                             D.C. No.
                v.                        2:08-cr-00808-
                                              TJH-1
EDMUND CLINTON DAVIS, JR.,
AKA E,
            Defendant-Appellant.            OPINION


     Appeal from the United States District Court
         for the Central District of California
    Terry J. Hatter, Senior District Judge, Presiding

              Argued and Submitted
       December 5, 2013—Pasadena, California

                Filed January 14, 2014

    Before: William C. Canby, Jr., Paul J. Watford,
       and Andrew D. Hurwitz, Circuit Judges.

               Opinion by Judge Canby
2                   UNITED STATES V. DAVIS

                           SUMMARY*


                          Criminal Law

    Affirming the district court’s denial of a motion to reduce
a sentence pursuant to 18 U.S.C. § 3582(c)(2), the panel held
that an amended policy statement, USSG Manual
§ 1B1.10(b), which generally prohibits a court from reducing
a sentence to a term that is less than the minimum of the
amended guidelines range, does not exceed the Sentencing
Commission’s authority and does not violate the separation
of powers doctrine.


                            COUNSEL

Davina T. Chen, Deputy Federal Public Defender, Glendale,
California, for Defendant-Appellant.

Edward E. Alon and Joshua A. Klein (argued), Assistant
United States Attorneys, Los Angeles, California, for
Plaintiff-Appellee.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. DAVIS                     3

                         OPINION

CANBY, Circuit Judge:

    Defendant Edmund Clinton Davis, Jr., appeals the district
court’s denial of his motion to reduce his sentence pursuant
to 18 U.S.C. § 3582(c)(2). The district court held that the
Sentencing Commission’s Policy Statement § 1B1.10(b)
precluded a sentence reduction because Davis had already
received a sentence below the minimum of the amended
guidelines range. Davis argues that § 1B1.10(b) exceeds the
Commission’s statutory authority and violates the separation
of powers doctrine. Our review is de novo, see United States
v. Kuchinski, 469 F.3d 853, 857 (9th Cir. 2006); United States
v. Booten, 914 F.2d 1352, 1354 (9th Cir. 1990), and we
affirm.

                     BACKGROUND

    In 2008, Davis pleaded guilty to one count of distributing
more than five grams of a mixture or substance containing
crack cocaine and one count of being a felon in possession of
a firearm. Davis’s base offense level was 30, and various
adjustments resulted in an adjusted offense level of 29. With
a criminal history category of IV, Davis’s guidelines range
was 121 to 151 months. The district court, however, imposed
a sentence of 70 months based on Davis’s difficult childhood
and his commitment to turning his life around.

    In 2012, Davis filed a motion to reduce his sentence
pursuant to 18 U.S.C. § 3582(c)(2). That statute authorizes
a reduction of a sentence when the Commission has
subsequently lowered an applicable guideline range, but only
if “such a reduction is consistent with applicable policy
4                UNITED STATES V. DAVIS

statements issued by the Sentencing Commission.” Id.
Under a guidelines amendment promulgated pursuant to the
Fair Sentencing Act of 2010, Davis’s base offense level had
been reduced to 26, resulting in an amended guidelines range
of 84 to 105 months. Davis sought to reduce his sentence
from 70 months to 60 months, the mandatory minimum for
his offense.

    Section 1B1.10(b)(2)(A) provides that the court may not
reduce a defendant’s term of imprisonment to a term that is
less than the minimum of the amended guidelines range. U.S.
Sentencing Guidelines (“USSG”) Manual § 1B1.10(b)(2)(A)
(2012). Davis was already serving a 70-month sentence,
fourteen months below the 84-month minimum of his
amended guidelines range. The district court accordingly
denied Davis’s motion.

   Davis appeals, arguing that § 1B1.10(b) exceeds the
Commission’s authority and violates the separation of powers
doctrine.

                      DISCUSSION

    Congress passed the Fair Sentencing Act (“FSA”) in order
to “restore fairness to Federal cocaine sentencing.” Fair
Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010).
The FSA changed the threshold quantities of crack cocaine
needed to trigger mandatory minimum sentences and gave the
Commission the authority to amend the guidelines to reflect
these changes. Id. §§ 2, 8. Pursuant to this authority, the
Commission promulgated Amendment 750, which reduced
the base offense levels for certain crack-cocaine-related
offenses. USSG Manual app. C, amend. 750 (2011). The
Commission then gave Amendment 750 retroactive effect.
                  UNITED STATES V. DAVIS                      5

USSG Manual app. C, amend. 759 (2011). As a result of
these amendments, Davis’s guidelines range was reduced
from 121 to 151 months to 84 to 105 months.

    The Commission also amended its policy statement
applicable to sentence reduction proceedings. USSG Manual
app. C, amend. 759 (2011). The previous version of
§ 1B1.10(b) permitted defendants who received a below-
guidelines departure or variance during an original sentencing
proceeding to receive a comparable reduction below the new
guidelines range in a § 3582(c)(2) sentence reduction
proceeding. USSG Manual § 1B1.10(b)(2) (2010). The
current version, however, prohibits a court from reducing a
defendant’s sentence to a term that is less than the minimum
of the amended guidelines range, except in the case of a
defendant who originally received a below-guidelines
sentence based on substantial assistance to the government.
USSG Manual § 1B1.10(b) (2012).

    Davis’s primary contention—that amended § 1B1.10(b)
exceeds the Commission’s statutory authority—is foreclosed
by United States v. Tercero, 734 F.3d 979 (9th Cir. 2013). In
Tercero, we rejected several challenges to amended
§ 1B1.10(b), including the contention that it conflicts with the
statute that authorizes the Commission to apply guidelines
amendments retroactively. Id. at 983; 28 U.S.C. § 994(u).
We held that “the revisions to § 1B1.10 fall squarely within
the scope of Congress’s articulated role for the Commission.”
Id. at 983–84.

    We note as well that all of the other circuits to have
addressed this question have held that the Commission acted
within its authority in amending § 1B1.10(b). See United
States v. Hogan, 722 F.3d 55, 60 (1st Cir. 2013); United
6                 UNITED STATES V. DAVIS

States v. Erskine, 717 F.3d 131, 136–38 (2d Cir. 2013);
United States v. Colon, 707 F.3d 1255, 1259–60 (11th Cir.
2013); United States v. Berberena, 694 F.3d 514, 520–23 (3d
Cir. 2012); United States v. Anderson, 686 F.3d 585, 589–90
(8th Cir. 2012). We accordingly reject Davis’s argument that
the amendment of § 1B1.10(b) exceeded the Commission’s
statutory authority.

     We also reject Davis’s contention that amended
§ 1B1.10(b) conflicts with Congress’s directive that the
Commission promulgate policy statements that will further
the purposes of sentencing set forth in 18 U.S.C.
§ 3553(a)(2). 28 U.S.C. § 994(a)(2) (outlining the
Commission’s duties). These purposes include deterrence,
protection of the public, rehabilitation, and the need to reflect
the seriousness of the offense. 18 U.S.C. § 3553(a)(2). The
plain language of § 994(a)(2) grants the Commission
discretion to determine which rules may further the purposes
of sentencing. See 28 U.S.C. § 994(a)(2) (stating that the
Commission shall promulgate policy statements that “in the
view of the Commission” would further the purposes of
sentencing).     In adopting revised § 1B1.10(b), the
Commission sought to avoid undue complexity and litigation
and to promote uniformity in sentences. USSG Manual app.
C, amend. 759 (2011). The Commission was also concerned
that retroactively amending the guidelines could result in a
windfall for defendants who had already received a departure
or variance, especially one that took into account the disparity
in treatment between powder and crack cocaine that the FSA
sought to correct. United States v. Montanez, 717 F.3d 287,
294 (2d Cir. 2013) (citing 76 Fed. Reg. 24960, 24973 (May
3, 2011)). In the Commission’s view, prohibiting reductions
below the amended guidelines range except in the case of
substantial assistance to the government struck the
                 UNITED STATES V. DAVIS                     7

appropriate balance. The Commission did not exceed its
discretionary authority in making this policy judgment. See
18 U.S.C. § 994(a)(2); Montanez, 717 F.3d at 294–95.

    Finally, we reject Davis’s contention that amended
§ 1B1.10(b) violates the separation of powers doctrine
because it requires the district court to rescind a previously
granted departure or variance. First, there has been no such
rescission in fact: Davis retains the benefit of his original
variance that resulted in a 70-month sentence. See Colon,
707 F.3d at 1260. Moreover, as a doctrinal matter the
Supreme Court rejected a separation of powers challenge to
the Commission’s structure and authority in Mistretta v.
United States, 488 U.S. 361, 412 (1989), and Davis offers no
compelling reason to depart from the logic of Mistretta.

    All of the circuit courts to have addressed this question
have held that the amended § 1B1.10(b) does not offend
separation of powers principles. See, e.g., Erskine, 717 F.3d
at 139–40; Colon, 707 F.3d at 1260–61; Berberena, 694 F.3d
at 525–26; Anderson, 686 F.3d at 590–91. These holdings
rest on two primary rationales, each of which we find
persuasive. First, the Supreme Court in Mistretta upheld the
Commission’s power to restrict the courts’ sentencing
discretion even at a time when the Guidelines were deemed
to be mandatory. See Mistretta, 488 U.S. at 395; Berberena,
694 F.3d at 526. Subsequently, the Court rendered the
guidelines advisory rather than mandatory in United States v.
Booker, 543 U.S. 220 (2005), but that decision was not based
on a violation of the separation of powers. Mistretta’s broad
view of the powers of the Commission remains, and is
particularly supportable here in light of the narrow scope of
§ 3582(c)(2) proceedings, which are not plenary
8                 UNITED STATES V. DAVIS

resentencings. See Dillon v. United States, 130 S. Ct. 2683,
2690–91 (2010); Erskine, 717 F.3d at 140.

    Second, “the scope of judicial discretion with respect to
a sentence is subject to congressional control.” Mistretta,
488 U.S. at 364. Congress vested the Commission with the
power to issue policy statements regarding the appropriate
use of § 3582(c)(2) proceedings, and Congress bound the
courts to those policy statements by requiring that any
sentence reduction be consistent with applicable policy
statements.      28 U.S.C. § 994(a)(2)(C); 18 U.S.C.
§ 3582(c)(2); see Erskine, 717 F.3d at 139 (citing Berberena,
694 F.3d at 525). Although the Commission crafted
§ 1B1.10(b), it is Congress that has made policy statements
available as a general matter and binding on the courts.
Erskine, 717 F.3d at 139. Section 1B1.10(b) does not offend
separation of powers principles because it is simply the result
of an exercise of Congress’s power to control the scope of
judicial discretion regarding sentencing.

    AFFIRMED.
