Tenth Circuit rejects novel argument about crack retroactivity rules

The Tenth Circuit today in US v. Dryden, No. 08-3310 (10th Cir. April 30, 2009) (available here), rejects a defendant’s novel effort to get the benefit of the new retroactive crack guidelines. Here is how it starts:

After the United States Sentencing Commission decided to give retroactive effect to its recent amendment to the crack-cocaine guidelines, Edward Dryden moved under 18 U.S.C. § 3582(c)(2) for a reduction in his sentence.  The district court denied the motion, agreeing with the government that a reduction would be barred by the Commission’s policy statement in USSG § 1B1.10(a)(2) , because the amended guideline would not have reduced Mr. Dryden’s guideline sentencing range. Mr. Dryden appeals, raising the novel argument that the Commission’s policy statement results from an unconstitutional delegation to the Commission of legislative authority to restrict the jurisdiction of federal courts.  See Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935).  Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.