US v. Holcomb, Docket No. 16-2077 (10th Cir. 3/23/17) (unpublished)

Mr. Holcomb obtained a reduced sentence in 2016 under 18 USC § 3582 pursuant to the the "drugs minus 2" reductions to the drugs sentencing guidelines. He argued that he also was entitled to a further proportionate reduction under USSG 1B1.10(b)(2)(B) for the criminal history overrepresentation departure he was awarded at his original sentencing in 2002. Under the version of 1B1.10 in effect in 2002, he would have been eligible for that reduction. Under the version in effect in 2016, he was not because the Commission amended the guideline in 2011 to reduce eligiblity. The Court rejects Mr. Holcomb's arguments that application of the 2016 version of the guideline violated the ex post facto clause, exceeded the Commission's statutory authority, and usurped the judiciary's authority to determine an appropriate sentence.