In United States v. Kheyre, --- F.4th ---, No. 24-7529 (9th Cir. 2026), the Court affirmed the district court’s denial of Abdirahman Kheyre’s motion under 18 U.S.C. § 3582(c)(2) for a sentence reduction based on retroactive Sentencing Guidelines Amendment 821, which limited the impact of “status points” on criminal history. The essential quotes from the decision follow:
In 2023, Abdirahman Kheyre was sentenced to 180 months in prison. After the United States Sentencing Commission retroactively amended the Guidelines to reduce the impact of criminal history status points, Kheyre moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court denied his motion because Supreme Court precedent holds that the Commission’s policy statement regarding § 3582(c)(2) proceedings is binding, and that policy statement prohibited a reduction in Kheyre’s circumstances.On appeal, he contends (1) that Congress violated the nondelegation doctrine, the separation of powers, or both by making the Commission’s policy statements binding on courts in § 3582(c)(2) proceedings, (2) that the district court erred by not including a departure when calculating his amended guideline range[.]The Commission has issued one policy statement applicable to § 3582(c)(2) proceedings: USSG § 1B1.10.4 Under § 1B1.10(a)(1), a defendant is eligible for a reduction only if a retroactive amendment lowered “the guideline range applicable to that defendant.” To determine if that occurred, the court must calculate the guideline range that would have applied had the amendment “been in effect at the time the defendant was sentenced . . . leav[ing] all other guideline application decisions unaffected.” § 1B1.10(b)(1).But even if the amendment reduced the applicable guideline range, the defendant still may not be eligible for a sentence reduction. Subsection (b)(2) bars courts from reducing the prison sentence “to a term that is less than the minimum of the amended guideline range,” unless the defendant received a sentence below the original range based on substantial assistance to the government. This means that a defendant who did not provide substantial assistance is not eligible for a reduction if his original prison sentence is below his amended guideline range.In 2010, the Supreme Court held that § 1B1.10 remained binding even after United States v. Booker, 543 U.S. 220 (2005), rendered the Guidelines advisory in sentencing proceedings.Thus, § 1B1.10 remained binding on courts through § 3582(c)(2)’s command that reductions be “consistent with applicable policy statements issued by the Sentencing Commission.”Kheyre argues that Congress violated the nondelegation doctrine because the authorizing statutes—18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 994(o)—lack an “intelligible principle” allowing the Commission to limit judicial sentencing discretion. This challenge fails because the Supreme Court has already held that the guidance provided in 28 U.S.C. § 994 sufficiently supports the delegation of authority to the Commission to formulate the Guidelines . . . . the Court has already decided that Congress provided an intelligible principle sufficient to support delegating authority to the Commission to impose mandatory limits on judicial sentencing discretion. That is fatal to Kheyre’s nondelegation argument.Kheyre next argues that the district court wrongly relied on the commentary to § 1B1.10 to find it had no authority to reduce his sentence.When it ruled on Kheyre’s sentence reduction motion, the district court did not factor the “two-level” downward departure from his original sentencing into its calculation. Instead, the district court calculated the amended guideline range based on an offense level of 35 and criminal history category III, which resulted in an amended range of 210–262 months. If it had included the “two-level” downward departure from Kheyre’s original sentencing, his amended guideline range would have been 168–210 months. Given his 180-month prison sentence, that would make him eligible for a reduction of up to 12 months.[A] departure is a sentence imposed outside of the applicable guideline range, which is determined based on the offense level and criminal history category calculated in accordance with Chapters Two through Four of the Guidelines Manual. Accord § 1B1.1 (directing courts to calculate the applicable guideline range and determine the associated sentencing requirements and options before considering if a departure is warranted).Applying Kisor, we hold that § 1B1.10 unambiguously does not include departures when calculating the amended guideline range. Thus, the district court did not err in calculating Kheyre’s amended guideline range without reference to the departure awarded at his original sentencing. We hold that because Kheyre’s 180-month sentence was below his amended guideline range, he was ineligible for a reduction. See § 1B1.10(b)(2)(A). As Kheyre was not eligible for a reduction, we need not reach his challenge to the district court’s alternative holding.We conclude that: (1) Congress violated neither the nondelegation doctrine nor the separation of powers by making the Commission’s policy statements binding on courts in § 3582(c)(2) proceedings; and (2) based on § 1B1.10’s text without reference to Application Note 1(A), courts do not include departures when calculating the amended guideline range in § 3582(c)(2) proceedings. The district court thus properly found Kheyre was not eligible for a reduction in sentence.
