15‐3732‐cr United States v. Walker UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of July, two thousand seventeen.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, RICHARD M. BERMAN, District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x UNITED STATES OF AMERICA, Appellee, 15‐3732‐cr v. CLINT WALKER, Defendant‐Appellant. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

* Judge Richard M. Berman, of the United States District Court for the Southern District of New York, sitting by designation.

FOR APPELLEE: Barbara A. Masterson, Gregory L. Waples, Assistant United States Attorneys, for Eugenia A.P. Cowles, Acting United States Attorney for the District of Vermont, Burlington, Vermont.

FOR DEFENDANT‐APPELLANT: Barclay T. Johnson, Research and Writing Attorney, for Michael L. Desautels, Federal Public Defender, District of Vermont, Burlington, Vermont.

Appeal from the United States District Court for the District of Vermont (Reiss, C.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.

Defendant‐appellant Clint Walker appeals an order of the United States District Court for the District of Vermont entered November 6, 2015, denying his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We assume the partiesʹ familiarity with the underlying facts, procedural history, and issues on appeal.

Walker was sentenced on March 29, 2010, to 100 monthsʹ imprisonment following his plea of guilty to distribution of OxyContin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Walkerʹs guideline range would have been 84 to 105 months, but because he was subject to enhanced penalties as a career offender under U.S.S.G.

§ 4B1.1, his guideline range at sentencing was 151 to 188 months. On August 3, 2015, Walker moved for a sentence reduction, arguing that an amendment to the Sentencing Guidelines for drug cases resulted in a guideline range of 70 to 87 months. The district

court denied Walkerʹs motion on November 6, 2015, finding that the amendment did not apply to Walker because he was sentenced under the career offender Guidelines.

On November 18, 2015, Walker timely appealed.

Effective November 1, 2011, the Sentencing Commission promulgated Amendment 759, which amended U.S.S.G. § 1B1.10 to reduce or eliminate the ability of certain individuals ‐‐ including career offenders ‐‐ to receive a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Walker contends that the amendment violates the Ex Post Facto Clause.

A court may grant a sentence reduction if a defendant has been ʺsentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,ʺ and ʺif such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.ʺ 18 U.S.C. § 3582(c)(2); see Dillon v. United States, 560 U.S. 817, 821 (2010).

Section 1B1.10 of the Sentencing Guidelines governs eligibility for sentencing reductions, providing that a reduction ʺis not authorized under 18 U.S.C. § 3582(c)(2) if . . . [a]n amendment . . . does not have the effect of lowering the defendantʹs applicable guideline range.ʺ U.S.S.G. § 1B1.10 (emphasis added). Amendment defines the ʺapplicable guideline rangeʺ in the commentary to U.S.S.G. § 1B1.10 as ʺthe guideline range that corresponds to the offense level and criminal history category determined . . . before consideration of any departure provision in the Guidelines Manual or

any variance.ʺ U.S.S.G. app. C., amend. 759 (Nov. 1, 2011) (emphasis added). For career offenders, the guideline range determined before consideration of any departure or variance is the career offender range, and hence career offenders are not eligible for a reduction even where the otherwise applicable drug guidelines ranges were lowered.

See United States v. Montanez, 717 F.3d 287, 294‐95 (2d Cir. 2013) (per curiam) (holding that, for a defendant designated career offender under guidelines, relevant range for sentencing reduction purposes is career offender range applicable before any departures).

Effective November 1, 2014, the Sentencing Commission promulgated Amendment 782, which amended U.S.S.G. § 2D1.1 to generally reduce the base offense level applicable to drug crimes by two levels. On appeal, Walker claims that he is eligible for a sentence reduction based on Amendment 782. He acknowledges that application of Amendment 782 to his case is barred by Amendment 759, but argues that Amendment 759 violates the Ex Post Facto Clause by eliminating the possibility of a sentence reduction for career offenders in these circumstances. Although we generally review a district courtʹs decision to grant or deny a § 3582(c)(2) motion for abuse of discretion, United States v. Johnson, 732 F.3d 109, 113 (2d Cir. 2013), we review a district courtʹs interpretation of the Sentencing Guidelines and any questions of constitutional interpretation raised by a district courtʹs application of the Guidelines de novo, Montanez, 717 F.3d at 291.

The Ex Post Facto Clause prohibits the passage of any law that ʺchanges the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.ʺ Calder v. Bull, 3 U.S. 386, 390 (1798); see U.S. Const. Art. I, § 9, cl. 3. ʺCritical to relief under the Ex Post Facto Clause is not an individualʹs right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.ʺ Weaver v. Graham, 450 U.S. 24, 30 (1981). The ʺtouchstone of [the] inquiryʺ is whether there is a ʺʹsufficient risk of increasing the measure of punishment attached to the covered crimes.ʹʺ Peugh v. United States, 133 S. Ct. 2072, 2082 (2013) (quoting Garner v. Jones, 529 U.S. 244, 250 (2000)).

Walkerʹs ex post facto challenge fails because the application of Amendment 759 to bar a sentence reduction pursuant to Amendment 782 ʺ[does] not lengthen [Walkerʹs] prison sentence.ʺ United States v. Ramirez, 846 F.3d 615, 621 (2d Cir. 2017); accord United States v. Diggs, 768 F.3d 643, 646 (7th Cir. 2014) (finding no ex post facto violation where ʺleniency policy . . . was enacted after [defendant] was sentencedʺ); cf. Weaver, 450 U.S. at 32 (finding credits reduction unconstitutional where it ʺlengthen[ed] the period that someone in petitionerʹs position must spend in prisonʺ (emphasis added)); Lynce v. Mathis, 519 U.S. 433, 443 (1997) (reiterating that proper inquiry was whether the cancellation ʺhad the effect of lengthening petitionerʹs period of incarcerationʺ (emphasis added)). Although Amendment 759 precluded Walker from

benefitting from the subsequently adopted Amendment 782, Walkerʹs punishment was not increased beyond what was prescribed when his crime was committed.

Furthermore, the drug guidelines reduction in Amendment 782 was adopted in 2014, three years after the adoption of Amendment 759, four years after Walker was sentenced, and six years after he committed his crime. He cannot argue that in sentencing him, the district court should have applied the version of § 1B1.10(b) in existence in 2010 in conjunction with the version of the drug guidelines in existence in 2015. See Ramirez, 846 F.3d at 623 (ʺ[W]e reject Ramirezʹs argument that the district courtʹs failure to apply the prior version of § 1B1.10(b) in conjunction with Amendment constituted an ex post facto violation. To hold otherwise would allow Ramirez to ʹpick and chooseʹ provisions from different Guidelines Manuals, in violation of the ʹone‐ bookʹ rule.ʺ).

We have considered Walkerʹs remaining arguments and conclude they are without merit. Accordingly, we AFFIRM the order of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk