Guidelines Mandatory in Sec. 3582(c)(2) Context

U.S. v. Pedraza, 2008 WL 5274446 (12/22/08) (Published) - The 10th refused to permit the guidelines to be considered advisory in the defendant's § 3582(c)(2) proceedings. The 10th applied its recent decision in Rhodes that Booker did not apply to those proceedings. It also held that it didn't matter that different guidelines applied to Mr. Pedraza than applied to Mr. Rhodes. Mr. Rhodes was governed by later § 1B1.10 guidelines that explicitly prohibited a sentence below the amended guideline range unless a departure or variance had been originally granted. Mr. Pedraza's guidelines were ambiguous on the point. But a majority, [Judges Henry and McConnell] read the older guidelines as suggesting the judge's discretion was limited to substituting the new guideline range for the old one. Judge McKay dissented, saying he disagreed with Rhodes' creation of a circuit split and, in any event, felt the old § 1B1.10 was ambiguous and the rule of lenity required an interpretation that permitted a variance below the amended guideline range.