Tenth Creates Circuit Split with Ninth over Applicability of Booker at 3582(c)(2) Resentencings

U.S. v. Rhodes, 2008 WL 5102247 (12/5/08) (Published) - The 10th holds Booker does not apply to § 3582(c)(2) proceedings. As a result, the guidelines in § 3582(c)(2) proceedings are mandatory and a defendant seeking a lower sentence by virtue of a retroactive guideline amendment may not receive a sentence below the amended guideline range unless the defendant had received a below-guideline-range sentence at the original sentencing.

The court reasons Booker did not refer to § 3582(c)(2), but § 3553(b). But how § 3582(c)(2) becomes mandatory without § 3553(b) is unclear. § 3582(c)(2) proceedings are not full resentencings, the 10th also notes. The 6th Amendment concerns in Booker don't matter because a sentence can only be reduced in a § 3582(c)(2) proceeding. [But the prior sentence may have been imposed in violation of the 6th Amendment since the first sentencing was in 1999].

The 10th disagrees with the opposite holding of the 9th Circuit in Hicks. The latest version of § 1B1.10 prohibits a sentence below the amended guideline range. End of story. The 10th noted the district court was wrong to think it couldn't consider post-sentencing events. § 1B1.10 authorizes such consideration. But here that didn't matter since the sentence imposed was as low as possible under the amended crack cocaine guidelines.