United States v. Davis, Jr., No. 12-50522 (1-14-14) (Canby with Watford and Hurwitz).
The Sentencing Commission issued a policy statement that under a resentencing pursuant to 18 USC 3582(c)(2)(subsequently lowering a guideline), the sentence cannot be below the amended guideline. The defendant argued that this exceeded the authority of the Commission and was a violation of separation of powers. The 9th held that this argument was foreclosed by prior precedent as well as the holdings of all the other circuits that have addressed this issue (1st, 2d, 3d, 8th and 11th). The defendant here received a variance in the original sentence; the inability to give a lower variance did not violate separation of powers.