United States v. Johnson

• Decision Date: 16 January 2013
• Docket Number: No. 12–1226.,12–1226.
• Citation: 703 F.3d 464
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Willie Christopher JOHNSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

703 F.3d 464

UNITED STATES of America, Plaintiff–Appellee

v.Willie Christopher JOHNSON, Defendant–Appellant.

No. 12–1226.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 21, 2012.

Filed: Jan. 16, 2013.

Scott F. Tilsen, AFPD, Cape Girardeau, MO, for appellant.

Allison Hart Behrens, AUSA, Saint Louis, MO, for appellee.

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.

RILEY, Chief Judge.

A jury convicted Willie Johnson of three federal narcotics crimes. Johnson appeals the district court's ¹ partial denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence modification. The district court reduced Johnson's prison sentence from 324 to 210 months because the United States Sentencing Commission (Commission) retroactively amended the crack cocaine sentencing guidelines. The district court refused to reduce Johnson's sentence further based on an earlier, non-retroactive amendment to the United States Sentencing Guidelines (U.S.S.G. or Guidelines). Johnson contends this refusal is neither authorized by statute nor permitted by the Constitution. Johnson is mistaken. We affirm.

I. BACKGROUND

There is no factual dispute, and we have already set forth the facts of this case in our decision affirming Johnson's conviction. See United States v. Johnson, 439 F.3d 947, 949–51 (8th Cir.2006). Here, we recount only those facts relevant to Johnson's present appeal.

When the district court originally sentenced Johnson in 2005, Johnson's criminal history category was VI—the highest level—based in part on the short length of time between his release from prison for an earlier crime and his commission of the crimes for which he is now imprisoned. At that time, § 4A1.1 added one or two points to a defendant's criminal history score if fewer than two years had passed between his release from prison on a prior charge and his commission of the instant offense. SeeU.S.S.G. § 4A1.1(e) (2005). On November 1, 2010, the Commission enacted Amendment 742, which eliminated these recency points from § 4A1.1. The Commission did not provide for retroactive application of Amendment 742 in its policy statement. SeeU.S.S.G. § 1B1.10(c); U.S.S.G. app. C., amend. 742. The parties agree that if Amendment 742 applied to Johnson, his criminal history category would fall one level.

On November 1, 2011, the Commission enacted Amendment 750, which reduced the offense levels for certain crack cocaine sentences under U.S.S.G. § 2D1.1. See U.S.S.G. app. C, amend. 750. Parts A and C of this amendment were retroactive. See U.S.S.G. app. C, amend. 759. Applied to Johnson, this amendment reduced his base offense level from 32 to 28, resulting in a new total offense level of 32. This total offense level yields an advisory range of 210 to 262 months when combined with a criminal history category of VI and 188 to 235 months when combined with a criminal history category of V.

On December 5, 2011, Johnson moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c). Johnson asked the district court to reduce his prison sentence from 324 months to 188 months based on Amendments 742 and 750. Although Johnson recognized the Commission had not explicitly made Amendment 742 retroactive, Johnson argued the Commission's retroactivity decision should not bind the district court for two reasons. First, Johnson asserted that failing to give Amendment 742 retroactive effect would violate his Fifth Amendment right to due process. Second, Johnson asserted “the Commission exceed[ed] its statutory authority by” failing to give the district court discretion to decide whether Amendment 742 should apply retroactively.

The district court apparently disagreed and reduced Johnson's total offense level from 36 to 32 in accordance with Amendment 750 and left Johnson's criminal history category unchanged. In accordance with the amended guideline range of 210 to 262 months, the district court reduced Johnson's sentence to 210 months. Johnson appeals.

II. DISCUSSION

We review a district court's decision to modify a sentence under § 3582(c)(2) for an abuse of discretion, but we review Johnson's constitutional and statutory challenges de novo. See United States v. Anderson, 686 F.3d 585, 589 (8th Cir.2012).

Johnson challenges the Commission's decision not to make Amendment 742 retroactive on four grounds: (1) Congress has not authorized the Commission to issue binding policy statements, (2) Congress's delegation of such authority to the Commission violates the Non–Delegation and Separation of Powers doctrines, (3) the Commission's decision not to apply Amendment 742 retroactively was arbitrary and capricious, and (4) the Commission's decision deprived him of due process. Because our decision in Anderson forecloses Johnson's first two arguments, we proceed directly to his third and fourth arguments. See id. at 589–91 (holding the Commission's power to issue binding policy statements is authorized by statute and consistent with the Non–Delegation and Separation of Powers doctrines); see also United States v. Harris, 688 F.3d 950, 957–58 (8th Cir.2012).²

A. Arbitrary and Capricious

Arguing the Commission arbitrarily and capriciously decided not to apply Amendment 742 retroactively, Johnson asks us to “disregard” the Commission's decision. Johnson does not specify the source of our purported power to do so, but we infer he would have us rely on our authority under the Administrative Procedure Act (APA), 5 U.S.C. § 500 et seq., to “hold unlawful and set aside agency action ... found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2). Of course, we may exercise that authority only within the limits drawn by statute. Those limits do not encompass this case.

The Commission is “an independent commission in the judicial branch of the United States.” 28 U.S.C. § 991(a). By its own terms, judicial review under the APA applies only to agencies, which include “each authority of the Government of the United States, ... but [do not include] ... the courts of the United States.” 5 U.S.C. § 701(a)–(b)(1)(B). Given this exclusion, we expect neither the judicial branch as a whole nor any one of its component parts is an “agency” within the meaning of the APA.³ But we need not determine whether our branch is categorically excluded from the APA's definition of “agency” because Congress plainly excluded the Commission from that definition.

When it established the Commission, Congress explicitly subjected one piece of the Commission's activities—the “promulgation of guidelines pursuant to [28 U.S.C. § 994]”—to the APA's notice-and-comment provisions, see5 U.S.C. § 553. 28 U.S.C. § 994(x). In so doing, Congress implicitly exempted the Commission from the rest of the APA—even if it would otherwise apply. SeeS.Rep. No. 98–225, at 180–81 (1983)reprinted in 1984 U.S.C.C.A.N. 3182, 3363–64 (“[28 U.S.C. § 994(x) ] is an exception to the general inapplicability of the [APA] ... to the judicial branch.... It is ... not intended that the guidelines be subject to appellate review under [the judicial review provisions of the APA, including § 706].”). In reaching this conclusion, we reference the legislative history of the Sentencing Reform Act of 1984(SRA), Pub.L. No. 98–473, 98 Stat. 1837 (codified as amended in scattered sections of 18 U.S.C. and 28 U.S.C. §§ 991–98), but rely on our steadfast canons of statutory construction.

Other circuits have reached a conclusion consistent with ours based on “the principle of inclusio unius est exclusio alterius.” United States v. Lopez, 938 F.2d 1293, 1297 (D.C.Cir.1991); see also Andrade v. U.S. Sentencing Comm'n, 989 F.2d 308, 309 (9th Cir.1993) (per curiam). This “familiar maxim,” United States v. Mangano, 299 F. 492, 494 (8th Cir.1924), means “the expression of one thing excludes others not expressed,” Watt v. GMAC Mortg. Corp., 457 F.3d 781, 783 (8th Cir.2006). We agree with the Lopez and Andrade courts: Congress's inclusion of only the APA's notice-and-comment requirements in the SRA is an exclusion of the APA's other provisions. But we do not rely solely on our reluctance to “assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply ... when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.” Jama v. ICE, 543 U.S. 335, 341, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005).

We also consider the presumption against surplusage to be decisive. It is “a cardinal principle of statutory construction that we must give effect, if possible, to every clause and word of a statute.” Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quoting United States v. Menasche, 348 U.S. 528, 538–39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (internal quotation marks omitted)). Johnson and the government present us with two competing statutory interpretations. Only the government's interpretation of the SRA “ avoids surplusage.” Freeman v. Quicken Loans, Inc., 566 U.S. ––––, ––––, 132 S.Ct. 2034, 2043, 182 L.Ed.2d 955 (2012). Johnson's interpretation, by contrast, renders the entirety of 28 U.S.C. § 994(x) “ ‘superfluous [and] insignificant,’ ” Market Co. v. Hoffman, 101 U.S. 112, 115, 25 L.Ed. 782 (1879) (quoting 4 Matthew Bacon, Abridgment *645). If the APA applies independently, then the notice-and-comment requirement of 5 U.S.C. § 553 would apply regardless of 28 U.S.C. § 994(x). We decline Johnson's invitation to adopt a reading of the SRA that “emasculate[s] an entire [sub-]section.” Menasche, 348 U.S. at 539, 75 S.Ct. 513.

Because Congress has not authorized us to “hold unlawful and set aside” action by the Commission “found to be ... arbitrary, capricious, [or] an abuse of discretion,” 5 U.S.C. § 706(2), we reject Johnson's argument that we may “disregard” the Commission's non-retroactivity determination as arbitrary and capricious.

B. Due Process

That Congress has not authorized u...