US v. William Muldrow

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 8:03-cr-00555-AW-3. [999993593]. [15-7298, 15-7608]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7298

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIAM HENRY MULDROW, a/k/a William Cooper, a/k/a Willie,
a/k/a Fred Washington,
Defendant – Appellant.

No. 15-7608

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUIS GOMEZ,
Defendant – Appellant.

Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:03-cr-00555-AW-3; 8:95-cr-00267-DKC-14)

Argued:

October 26, 2016

Decided:

December 27, 2016

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Before DUNCAN and AGEE, Circuit Judges, and Bruce H. HENDRICKS,
United States District Judge for the District of South Carolina,
sitting by designation.

Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Agee and Judge Hendricks joined.

ARGUED: Sapna Mirchandani, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellants.
Sujit Raman,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellants. Rod J. Rosenstein, United States Attorney, Debra L.
Dwyer, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.

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DUNCAN, Circuit Judge:
Defendants William Henry Muldrow (“Muldrow”) and Luis Gomez
(“Gomez”) challenge the district court’s determination that the
Guidelines

commentary--as

amended

by

United

States

Sentencing

Guideline Amendment 759 (“Amendment 759”)--requires a district
court

at

range”

resentencing

without

to

applying

calculate
any

the

departures

defendant’s original sentencing range.

“applicable
or

guideline

variances

from

a

For the reasons that

follow, we affirm the district court and join all of our sister
circuits

that

have

considered

the

issue

in

of

drug

holding

that

Amendment 759 binds sentencing courts.

I.
A.
Both

Defendants

were

convicted

offenses

in

unrelated cases--Muldrow in 2006 and Gomez in 1996. This court
consolidated their appeals.
Muldrow

pleaded

guilty

to

one

count

of

conspiracy

to

distribute and possess with intent to distribute five or more
grams of cocaine and oxycodone, on January 19, 2006.

At his

sentencing on March 29, 2006, the district court adopted the
findings

of

the

presentence

report

with

one

exception.

It

departed from a criminal history category VI to a category V
because

it

found

Muldrow’s
3

criminal

history

category

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overrepresented

the

U.S.S.G. § 4A1.3.
departure

criminal

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seriousness

of

his

criminal

record.

Employing an offense level 34 and a posthistory

category

V,

the

district

court

calculated a guideline range of 235 to 293 months and sentenced
Muldrow to 235 months in prison.
A

jury

convicted

Gomez

of

one

count

of

conspiracy

to

distribute cocaine, and one count of possession with intent to
distribute
district

cocaine,
court

on

June

calculated

29,

his

1996.

At

guideline

sentencing,

range

based

on

the
an

offense level 44 and a criminal history category III, resulting
in a then-mandatory guideline sentence of life imprisonment.
November

6,

1996,

the

court

imposed

a

life

sentence,

On
but

subsequently granted Gomez’s 28 U.S.C. § 2255 petition in part,
vacating his sentence.

The district court recalculated Gomez’s

guideline range as 360 months to life imprisonment based on an
offense level of 41 and a criminal history category II.
Muldrow,
because

Gomez
the

received

district

a

court

downward
found

departure
that

a

Like

under

§ 4A1.3

criminal

history

category III overstated the seriousness of his criminal record.
The court resentenced Gomez on February 27, 2006, imposing a
below-guideline-range sentence of 340 months.
B.
In 2014 and 2015, Defendants separately filed motions for
resentencing

under

18

U.S.C.
4

§ 3582(c)(2)

based

on

the

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retroactive

application

Amendment 782.
782”).

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of

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United

States

Sentencing

Guideline

U.S.S.G., app. C., amend. 782 (2014) (“Amendment

Amendment 782 reduced the base offense level for drug

offenses

by

two

levels.

Id.

The

United

States

Sentencing

Commission (“Commission”) has the power to make its amendments
retroactive, and although it has done so sparingly, it did so
with Amendment 782 by listing it in subsection (d) of § 1B1.10
of the Guidelines Manual.

U.S.S.G. § 1B1.10(d); United States v.

Williams,

263

808

F.3d

253,

(4th

Cir.

2015).

Before

the

district court, the parties agreed that Defendants are eligible
for relief under Amendment 782, which altered the Defendants’
“amended guideline range.”

They dispute the extent of relief

authorized based on the calculation of this range.
Each

Defendant

argued

that

the

district

court

should

calculate his guideline range at resentencing by using the postdeparture criminal history category determined at his original
sentencing.

However,

the

district

court

did

sentences to the extent Defendants requested.

not

reduce

the

At resentencing,

the district court instead chose to calculate their ranges using
their

pre-departure

criminal

history

categories.

After

recalculating the guideline ranges in this manner, the district
court reduced each Defendant’s sentence to the low end of his
amended guideline range.

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For Muldrow, the district court granted relief in part on
July

29,

2015,

reducing

his

sentence

from

235

months

to

210 months--the low end of the amended guideline range using a
pre-departure
district

criminal

court

history

granted

relief

category.
in

part

For

on

Gomez,

October

6,

the
2015,

reducing Gomez’s sentence from 340 months to 324 months--the low
end

of

the

amended

guideline

range

using

a

pre-departure

criminal history category.
The
departure

district

court

criminal

based

history

its

decisions

category

on

a

to

use

separate

a

pre-

guideline

amendment--Amendment 759. U.S.S.G., app. C., amend. 759 (2011).
Specifically,

the

district

(1) precluded

the

district

court
court

found
from

that

Amendment

considering

759

§ 4A1.3

departures during resentencing, and (2) abrogated this court’s
prior decision in United States v. Munn, 595 F.3d 183 (4th Cir.
2010), which had adopted Defendants’ desired approach.

Both

Defendants appealed.

II.
On

appeal,

incorrectly
erred

in

Defendants,

Defendants

deemed
not
the

itself

granting

bound

them

district

argue
by

that

Amendment

greater

court

the

relief.

should

have

district

court

759,

thus,

and

According
applied

to

§ 4A1.3

departures when calculating their applicable guideline ranges.
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The

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government

followed

counters

Amendment

759

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that

in

the

district

calculating

court

Defendants’

properly
applicable

guideline range because Amendment 759 is consistent with the
Guidelines and abrogated Munn.
“We review a district court's decision to reduce a sentence
under § 3582(c)(2) for abuse of discretion and its ruling as to
the scope of its legal authority under § 3582(c)(2) de novo.”
United States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013).

For

the reasons that follow, we affirm the district court.
A.
Our decision today respects a congressionally mandated--and
Supreme Court sanctioned--balance between the interpretive power
of the Commission and our duties as an Article III court.

With

the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq.,
Congress

established

(1) promulgate
statements

the

Commission

Sentencing

Guidelines

governing

application

and

authorized

and

(2) issue

of

the

it

to

policy

Guidelines.

See 28 U.S.C. §§ 991, 994(a); Stinson v. United States, 508 U.S.
36, 40–41 (1993).

The Commission also issues commentary to the

guideline provisions and policy statements.
at

41. 1

1

In

interpreting

the

Stinson, 508 U.S.

Guidelines,

Commentary has several different purposes:

(Continued)
7

commentary

“is

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authoritative unless it violates the Constitution or a federal
statute,

or

is

inconsistent

reading, of that guideline.”
In

addition,

Congress

with,

or

a

plainly

erroneous

Id. at 38. 2
entrusted

the

Commission

with

the

power, and duty, to periodically review and revise the guideline
provisions,

policy

statements,

and

commentary.

28 U.S.C. §§ 994(o), 994(p), 994(u); United States v. Braxton,
500 U.S. 344, 348 (1991).

This power includes the ability “to

override our precedent through amendments to the Guidelines.”

First, it may interpret the guideline or explain how
it is to be applied.
Failure to follow such
commentary could constitute an incorrect application
of the guidelines, subjecting the sentence to possible
reversal on appeal.
See 18 U.S.C. § 3742.
Second,
the commentary may suggest circumstances which, in the
view of the Commission, may warrant departure from the
guidelines.
Such commentary is to be treated as the
legal equivalent of a policy statement.
Finally, the
commentary
may
provide
background
information,
including factors considered in promulgating the
guideline or reasons underlying promulgation of the
guideline.
As
with
a
policy
statement,
such
commentary may provide guidance in assessing the
reasonableness of any departure from the guidelines.
U.S.S.G. § 1B1.7; see also Stinson, 508 U.S. at 41.
2

In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court invalidated statutory provisions that made the
Guidelines Mandatory, and held that courts must treat the
Guidelines as advisory.
543 U.S. at 265.
Although the Court
decided Stinson before Booker, we have no reason to reject the
Stinson holding regarding commentary’s binding effect.
See
United States v. Shell, 789 F.3d 335, 340 (4th Cir. 2015)
(citing Stinson as good law).
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Williams, 808 F.3d at 258.

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With this framework in mind, we turn

to the Guidelines applicable to sentencing reductions.
B.
Under the Sentencing Reform Act, a federal court generally
“may

not

modify

imposed.”
an

a

term

of

imprisonment

18 U.S.C. § 3582(c).

exception

to

that

once

it

has

been

However, Congress has provided

rule:

when

the

Commission

makes

a

Guidelines amendment retroactive, a district court may reduce an
otherwise final sentence based on the amended provision, as long
as the reduction remains consistent with applicable Commission
policy statements.

Id.

In considering whether and by how much to reduce a sentence
under § 3582(c)(2), a district court follows a two-step inquiry.
Dillon v. United States, 560 U.S. 817, 826 (2010).

The court

first “follow[s] the Commission’s instructions in § 1B1.10 to
determine the prisoner’s eligibility for a sentence modification
and

the

extent

Specifically,

of

the

reduction

§ 1B1.10(b)(1)

authorized.”

requires

the

court

Id.
to

at

827.

“determine

the amended guideline range that would have been applicable to
the defendant if the amendment(s) to the guidelines listed in
subsection

(d)

had

been

in

effect

9

at

the

time”

of

the

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U.S.S.G. § 1B1.10(b)(1). 3

defendant’s initial sentencing.

At

step two, a district court considers relevant sentencing factors
to

determine

whether,

in

its

discretion,

a

reduction

“is

warranted in whole or in part under the particular circumstances
of the case.”

Dillon, 560 U.S. at 827.
C.

This appeal--and the issue in Munn--concerns how a court
calculates

the

amended

guideline

range

at

step

one.

In

particular, the parties dispute whether the resentencing court
calculates
category

or

the
a

range

using

a

post-departure

pre-departure
criminal

criminal

history

history

category.

In

Munn--decided prior to Amendment 759--this court held that a
defendant’s

applicable

guideline

applying any departures.

range

is

determined

595 F.3d at 192–95.

after

Therefore, the

defendant in Munn--a career offender who received a departure
for

overrepresentation

of

criminal

history

at

his

original

sentencing--was entitled to have the district court factor in
departures before calculating his applicable guideline range for

3

Section 1B1.10 (Reduction in Term of Imprisonment as a
Result of Amended Guideline Range (Policy Statement)) prohibits
courts from reducing a term of imprisonment below an amended
guideline range’s minimum except in certain cases in which the
defendant originally received a downward departure for providing
substantial
assistance
to
the
government.
U.S.S.G. § 1B1.10(b)(2).
Defendants do not seek terms below
their amended guideline ranges.
Instead, they challenge the
application of Amendment 759 to their resentencing.
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resentencing purposes.
interpreted

the

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Id. at 184–85, 194–95.

Guidelines

similarly.

See

Other circuits

United

States

v.

Flemming, 617 F.3d 252, 272 (3d Cir. 2010); United States v.
Cardosa, 606 F.3d 16, 21–22 (1st Cir. 2010); United States v.
McGee,

553

F.3d

225,

229–30

(2d

Cir.

2009)

(per

curiam)

superseded by United States v. Montanez, 717 F.3d 287 (2d Cir.
2013) (per curiam). However, three other circuits decided that
the applicable guideline range for resentencing was the range
produced prior to any discretionary departures, reasoning that a
district

court

established.

cannot

depart

from

a

range

before

it

is

United States v. Pembrook, 609 F.3d 381, 384 (6th

Cir. 2010); United States v. Darton, 595 F.3d 1191, 1197 (10th
Cir. 2010); United States v. Blackmon, 584 F.3d 1115, 1116–17
(8th Cir. 2009) (per curiam).
In

response

promulgated
(2011).

to

Amendment

this
759.

circuit

split,

U.S.S.G.,

app.

the
C.,

Commission
amend.

759

Amendment 759 revised the commentary to § 1B1.10, at

Application Note 1(A), by defining “applicable guideline range”
as “the guideline range that corresponds to the offense level
and criminal history category determined pursuant to § 1B1.1(a),
which

is

provision

determined
in

the

before

consideration

Guidelines

Manual

of

or

any
any

departure
variance.”

U.S.S.G. § 1B1.10 cmt. n.1(A) (2011) (emphasis added); U.S.S.G.,
app.

C.,

amend.

759

(2011).

In
11

so

doing,

Amendment

759

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explicitly “adopt[ed] the approach of the Sixth, Eighth, and
Tenth

Circuits.”

U.S.S.G.,

app.

C.,

amend.

759

(Reason

for

Amendment).

III.
The issue on appeal is a narrow one.
contest

that

abrogate

our

the

Commission

prior

can

precedent

resolve
by

Defendants do not
circuit

splits

promulgating

and

amendments.

Instead, they argue that the district court erroneously deemed
itself

bound

by

the

revised

commentary

to

§ 1B1.10

found

in

Amendment 759 for two reasons: (1) the commentary conflicts with
the Guidelines text, and (2) Amendment 759 is not one which by
its nature applies retroactively. 4

We consider each argument in

turn.
A.
If the commentary conflicts with the Guidelines text, it
cannot bind courts.
whether

commentary

Stinson, 508 U.S. at 38.
conflicts

with

the

In deciding

Guidelines

text,

we

recognize that the Commission “has the first responsibility to
formulate

and

announce”

interpreted. Id. at 45.

how

guideline

provisions

should

be

Cognizant of our role vis-à-vis the

4

Defendants do not argue that the commentary conflicts with
the statute. Defendants also do not challenge that the district
court has discretion to grant or deny relief at step two of the
§ 3582(c)(2) process.
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Commission, this court rarely invalidates part of the commentary
as inconsistent with the Guidelines text.
Shell,

789

F.3d

dissenting).

335,

357

(4th

Cir.

See United States v.
2015)

(Wilkinson,

J.,

This is unsurprising given that “[t]he functional

purpose of commentary (of the kind at issue here) is to assist
in the interpretation and application of those rules, which are
within

the

Commission’s

expertise.”

particular

area

of

concern

and

Stinson, 508 U.S. at 45.
1.

To argue that the commentary, as amended by Amendment 759,
conflicts with the Guidelines, Defendants first point to the
text

of

§ 1B1.10(b)(1).

That

section

instructs

resentencing

courts calculating the “amended guideline range” to “substitute
only”
“leave

the
all

U.S.S.G.
courts

retroactive
other

amendments

guideline

§ 1B1.10(b)(1).
must

calculate

listed

application
Defendants

the

amended

in

§ 1B1.10(d)

decisions
claim

that

guideline

and

unaffected.”
this

range

means
without

excluding any factor that was taken into account at the original
sentencing--that is, “to mirror whatever sentencing findings it
originally made.”

Appellants’ Br. at 25.

Under Defendants’

view, the revised commentary in Application Note 1(A) conflicts
with the text of § 1B1.10 because that commentary “expressly
prohibits

courts

from

incorporating

13

‘any

departure’

or

‘any

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into

the

guideline

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calculation.”

Appellants’

Br.

at 25.
However, Amendment 759 does not conflict with the text.
Amendment

759

“applicable

revised

guideline

Application
range”

as

Note
“the

1(A)

to

guideline

define
range

the
that

corresponds to the offense level and criminal history category
determined pursuant to § 1B1.1(a), which is determined before
consideration
Manual

or

of

any

any

departure

variance.”

provision

U.S.S.G.

in

§ 1B1.10

the

Guidelines

cmt.

n.1(A).

“Consistent with that definition, U.S.S.G. § 1B1.1(a) makes no
mention of departures” or variances.
Rather,

a

district

court

calculates

Montanez, 717 F.3d at 292.
departures

and

variances

pursuant to §§ 1B1.1(b) and 1B1.1 (c), respectively, only after
determining

the

applicable

guideline

range

under

§ 1B1.1(a).

See id.; U.S.S.G., app. C., amend. 741 (Reason for Amendment)
(explaining the three-step process for calculating sentences).
Logically, the phrase in § 1B1.10(b)(1)--“shall leave all other
guideline application decisions unaffected”--refers to decisions
sentencing

courts

make

in

establishing

the

amended

guideline

range, which, pursuant to § 1B1.1(a), does not take into account

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departures or variances.

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Therefore, Amendment 759’s clarifying

definition is consistent with § 1B1.10 of the Guidelines text. 5

5

Defendants also argue that there is a material difference
between “applicable guideline range,” in § 1B1.10(a), and
“amended guideline range,” in § 1B1.10(b).
They assert that
these
phrases
refer
to
different
things--eligibility
for
sentencing reductions and the extent of relief available,
respectively.
Because Amendment 759 inserted a definition to
“applicable guideline range,” Defendants contend that definition
only affects eligibility.
From this premise they argue that
Amendment 759 does not preclude a sentencing court from
considering departures.
This argument fails.
As the Second
Circuit explained, such a position
ignores the relationship between the “applicable
guideline range” and the “amended guideline range.”
Under § 1B1.10(a)(2)(B), a defendant is not eligible
for a reduction if an amendment “does not have the
effect
of
lowering
the
defendant’s
applicable
guideline range.” In the absence of any change to the
applicable guideline range, speaking of an “amended
guideline range” makes little sense.
Where an
amendment does change the applicable guideline range,
however, the court can calculate a new “applicable”
range by “substitut[ing] . . . the amend[ed guideline
provisions] for the corresponding . . . provisions
that were applied when the defendant was sentenced.”
U.S.S.G. § 1B1.10(b)(1). Section 1B1.10(b)(1) defines
this new, applicable range as the “amended guideline
range.”
The phrase “amended guideline range,” then,
is simply the name by which the guidelines distinguish
one applicable guideline range--i.e., the one that
incorporates guideline amendments--from another--i.e.,
the one that applied under earlier versions of the
guidelines.
It follows, then, that courts should use
the same procedure to calculate both the applicable
guideline range and the amended guideline range,
departing from that procedure in the case of the
amended guideline range only to “substitute . . . the
[relevant guideline] amendments.”
Id. Under the
guidelines, courts applying this procedure should not
“consider[] any departure provision in the Guidelines
(Continued)
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2.
In

another

effort

to

manufacture

an

inconsistency,

Defendants next point to § 1B1.1--the application instructions
for

an

original

conflicts

with

sentencing
history

sentencing--to
§ 1B1.10.

judge

category

U.S.S.G.

to
as

suggest

that

the

Section 1B1.1(a)(6)

“[d]etermine
specified

in

§ 1B1.1(a)(6).

the

commentary
directs

defendant’s

Part

A

Downward

of

a

criminal

Chapter

Four.”

departures

for

overrepresentation of criminal history appear in Chapter Four-specifically at § 4A1.3(b).

U.S.S.G. § 4A1.3(b).

Under this

line of argument, § 4A1.3 departures are integral to determining
the

applicable

Amendment

759’s

guideline

range

definition

of

under

§ 1B1.1(a)(6).

“applicable

guideline

Thus,
range,”

which excludes such departures, conflicts with § 1B1.10(b)(1)’s
instruction

to

“leave

decisions”--including

all

those

other
in

guideline

application

§ 1B1.1(a)(6)--“unaffected.”

U.S.S.G. § 1B1.10(b)(1).
This argument reads more into § 1B1.1(a)(6) than the text
can support.

Section 1B1.1(a)(6) instructs sentencing courts to

determine a defendant’s criminal history category, but it does

Manual
or
cmt. n.1(A).

any

variance.”

U.S.S.G.

Montanez, 717 F.3d at 293 (alteration in original).
16

§ 1B1.10

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not instruct them to follow each section in Part A of Chapter
Four.

Part A of Chapter Four has three sections, and only the

first

two

sections

directly

"criminal history category."
History

Category"

Instructions

and

for

U.S.S.G. §§ 4A1.1,
"Departures
(Policy

§

on

how

is

titled

Computing
By

determine

the

of

U.S.S.G.

§

"Definitions

Criminal

contrast,

Inadequacy

Statement)."

to

Section 4A1.1 is titled "Criminal

4A1.2

4A1.2.

Based

govern

History."

§ 4A1.3

Criminal

4A1.3.

is

History

That

and

§

titled
Category

1B1.1(a)(6)

instructs a sentencing judge to determine the criminal history
category

does

departure

for

stage.

See

not

give

the

judge

overrepresentation
United

States

v.

a

of

license
criminal

Watkins,

No.

to

factor

history

at

15-6205,

in

a

that

2016

WL

3924240, at *4 (6th Cir. July 21, 2016) (unpublished) (citing
Pembrook, 609 F.3d at 385–86). “[A] court does not depart under
§

4A1.3

when

calculating

a

defendant’s

applicable

guideline

range, but instead departs from the applicable guideline range
under § 4A1.3 after having calculated that range.”
717 F.3d at 292.
circularity.

Holding to the contrary leads to a nonsensical

A district court cannot factor in a departure from

a range in calculating the range itself.
at

385.

Montanez,

“This

leads

inescapably

to

See Pembrook, 609 F.3d
the

conclusion

that

a

defendant’s applicable guideline range under U.S.S.G. § 1B1.10
is his pre-departure guideline range.”
17

Id.

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Here, we see no inconsistency between the Guidelines and
the

commentary

as

revised

by

Amendment

759.

We

decline

to

strain the text to create one.
B.
Defendants next contend that Amendment 759 does not apply
retroactively.

But

this

argument

misses

the

point.

The

question is not whether Amendment 759 applies retroactively, but
rather whether the district court properly applied Amendment 759
to

Defendants

who

were

resentenced

after

Amendment

759

took

effect.
Normally, a sentencing court must apply the edition of the
Guidelines in effect at the time “the defendant is sentenced.”
U.S.S.G.

§ 1B1.11(a).

However,

§

3582(c)(2)

“requires

a

sentencing court to adhere to the Commission's policy statement
in

Guidelines

section

sentence reduction.”

1B1.10

when

assessing

a

Williams, 808 F.3d at 262.

motion

for

a

The commentary

to § 1B1.10 at Application Note 8, as amended by Amendment 759,
instructs

that

“[c]onsistent

with

subsection

(a)

of

§ 1B1.11

(Use of Guidelines Manual in Effect on Date of Sentencing), the
court shall use the version of the policy statement that is in
effect on the date on which the court reduces the defendant’s
term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).”
U.S.S.G. § 1B1.10,

cmt.

n.8;

see

also

U.S.S.G.,

app.

C.,

amend. 759 (2011) (originally adding current application note 8
18

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as application note 6). 6
prior

to

the

Pg: 19 of 20

Because Amendment 759 “went into effect

district

court’s

resolution

of

[Defendants’]

§ 3582(c)(2) motion[s], the court was required to assess the
motion[s] in light of the now applicable policy statement” as
elucidated in the binding commentary revised by Amendment 759.
Williams, 808 F.3d at 262.
Nevertheless, Defendants still contend that Munn, decided
prior to Amendment 759, should apply to their resentencing.

But

“our precedent in the sentence-reduction context must give way
if it conflicts with the Commission's amendments.”
see also Braxton, 500 U.S. at 348.

Id. at 259;

The Commission specifically

stated that it promulgated Amendment 759 in response to a split
among

the

court

in

circuits,
Munn.

Amendment).

As

and

rejected

U.S.S.G.,
the

app.

Supreme

the
C.,

Court

approach
amend.

has

taken

759

by

(Reason

recognized,

this
for

“Congress

necessarily contemplated that the Commission would periodically
review

the

clarifying

work

of

revisions

the
to

decisions might suggest.”
28 U.S.C. § 994(p).

courts,
the

and

Guidelines

would

make

whatever

conflicting

judicial

Braxton, 500 U.S. at 348; see also

As an amendment to the binding commentary,

Amendment 759 applies to Defendants unless it is inconsistent
6

Defendants also argue that application note 8 is
inconsistent with the Guidelines. But in Williams this court
recognized that application note 8 is consistent with both
§ 3582(c)(2) and the Guidelines. See 808 F.3d at 262–63.
19

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Pg: 20 of 20

with the Constitution, a federal statute, or the Guidelines.
Stinson, 508 U.S. at 38.

We rejected above Defendants’ argument

that the revised commentary introduces an inconsistency.

See

supra Part III.A.

Today we join the Second Circuit in formally

recognizing

with

that

Amendment

759

“the

Commission

has

foreclosed the exact approach that [Defendants] now advocate.”
Montanez, 717 F.3d at 294.
IV.
Defendants’

argument

hinges

on

finding

an

between the commentary and text of the Guidelines.

inconsistency
We fail to

see one, and decline Defendants’ invitation to “recreate the
split that the Commission hoped to resolve.”

Id. at 292 n.2.

For this and the foregoing reasons, the judgment of the district
court is
AFFIRMED.

20