United States of America v. Thomas A. Payne

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0227n.06
No. 16-6493
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS A. PAYNE,
Defendant-Appellant.
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On Appeal from the United States
District Court for the Middle
District of Tennessee
Before: GUY, SILER, and DONALD, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Defendant, Thomas Payne, appeals the
district court’s order denying his motion for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2). We affirm.
I.
Defendant received a substantial downward variance after pleading guilty to a six-
count indictment for distributing methamphetamine, 18 U.S.C. § 841(a)(1), and
conspiracy to distribute methamphetamine, 18 U.S.C. § 846. Years later, the United
States Sentencing Commission issued a policy statement reducing offense levels assigned

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United States v. Payne
to offenses based on drug quantity, and made the amendment retroactive, permitting
resentencing under § 3582(c)(2) so long as it was “consistent with applicable policy
statements issued by the Sentencing Commission.” Amendment 759 to U.S.S.G.
§ 1B1.10(b)(2) – a policy statement – prohibited district courts in § 3582(c)(2)
proceedings from reducing an offender’s sentence to a term less than the low end of the
amended guidelines range except where the original below-guidelines sentence was based
on a government motion for a substantial assistance reduction. See U.S.S.G. App. C
amend. 759 (2011).
Defendant moved the district court for a § 3582(c)(2) reduction despite not
receiving a variance based on substantial assistance. The district court denied the motion,
ruling that defendant was ineligible for a further reduction. It also indicated that were he
eligible, the court “would not be inclined to grant one, given the fact that the [previous]
variance granted by the court was more than a 50% departure downward from the bottom
of the guidelines – a truly generous and extraordinary variance.”
On appeal, defendant challenges the legality of Amendment 759. He argues that
Sentencing Commission policy statements have binding effect and thus must comply
with the Administrative Procedure Act’s (“APA”) notice-and-comment requirements. He
also contends that Amendment 759 is arbitrary and capricious under the APA, and the
district court therefore should have ignored it and granted § 3582(c)(2) relief for reasons
other than substantial assistance.

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United States v. Payne
II.
We review de novo a district court’s conclusion that it lacks the authority to reduce
a sentence under 18 U.S.C. § 3582(c)(2) due to a defendant’s ineligibility. United States
v. Taylor, 815 F.3d 248, 250 (6th Cir. 2016).
III.
Despite defendant’s protests to the contrary, the Sentencing Commission is not
subject to the APA except where Congress explicitly directed – i.e., in promulgating
guidelines pursuant to 28 U.S.C. § 994. See United States v. Maiello, 805 F.3d 992, 998
(11th Cir. 2015); United States v. Tercero, 734 F.3d 979, 984 (9th Cir. 2013), United
States v. Wayne, 516 F. App’x 135, 138 (3d Cir. 2013); United States v. Johnson,
703 F.3d 464, 468 (8th Cir. 2013); Wash. Legal Found. v. U.S. Sentencing Comm’n, 17
F.3d 1446, 1450 (D.C. Cir. 1994). Grafting a notice-and-comment requirement onto the
Sentencing Reform Act where Congress declined to do so would be both atextual and
contrary to official legislative history.1 Defendant’s “inferred [congressional] intent . . .
does not stand in the face of explicit statutory language” to the contrary. United States v.
Horn, 679 F.3d 397, 403 (6th Cir. 2012).
1 The Senate Report on the Sentencing Reform Act provides:
Subsection (w) makes the provisions of 5 U.S.C. 553, the provisions of the
Administrative Procedure Act that relate to rulemaking, applicable to the
promulgation of guidelines pursuant to Section 994. This is an exception to the
general inapplicability of the Administrative Procedure Act – including its
requirement of publication in the Federal Register – to the judicial branch.
S. Rep. No. 98-225, at 180-81 (1983).

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Except where litigants allege a constitutional infirmity, courts “lack authority ‘to
impose upon [an] agency [their] own notion of which procedures are ‘best’ or most likely
to further some vague, undefined public good.’” Perez v. Mortg. Bankers Ass’n, 135 S.
Ct. 1199, 1207 (2015) (quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def.
Council, 435 U.S. 519, 549 (1978)). Here, defendant raises no constitutional claims,
merely characterizing the exemption of Sentencing Commission policy statements from
APA requirements as “an anomaly.” And, indeed, he could not raise a constitutional
claim, as “the sentence-modification proceedings authorized by § 3582(c)(2) are not
constitutionally compelled.” Johnson, 703 F.3d at 469 (quoting Dillon v. United States,
560 U.S. 817, 828 (2010)). Anomalous or otherwise, it was within Congress’s authority
to subject some actions of the Sentencing Commission to the strictures of the APA while
exempting others. See Horn, 679 F.3d at 403-04 (“Unless unconstitutional, Congress is
free to change the rules by which an agency plays.”).
* * *
The district court correctly ruled that defendant is ineligible for a sentence
reduction under § 3582(c)(2), and that it therefore lacked authority to further reduce his
sentence.
AFFIRMED.

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