Argued and Submitted Dec. 5, 2013.
Davina T. Chen, Deputy Federal Public Defender, Glendale, CA, for Defendant-Appellant.
Edward E. Alon and Joshua A. Klein (argued), Assistant United States Attorneys, Los Angeles, CA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Central District of California, Terry J. Hatter, Senior District Judge, Presiding. D.C. No. 2:08-cr-00808-TJH-1.
Before: WILLIAM C. CANBY, JR., PAUL J. WATFORD, and ANDREW D. HURWITZ, Circuit Judges.
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.
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 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 ...