United States v. Kheyre

── United States v. Kheyre ── Court: Court of Appeals for the Ninth Circuit Date: May 20, 2026 Category: General FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-7529 D.C. No. Plaintiff - Appellee, 3:22-cr-02313- RSH-1 v. ABDIRAHMAN KHEYRE, OPINION Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Robert Steven Huie, District Judge, Presiding Argued and Submitted March 11, 2026 Pasadena, California Filed May 20, 2026 Before: Richard C. Tallman, Johnnie B. Rawlinson, and David F. Hamilton, Circuit Judges. * Per Curiam Opinion * The Honorable David F. Hamilton, United States Circuit Judge for the Court of Appeals, Seventh Circuit, sitting by designation. 2 USA V. KHEYRE SUMMARY ** Criminal Law The panel 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 district court denied the motion because Supreme Court precedent holds that the Sentencing Commission’s policy statement regarding § 3582(c)(2) proceedings, USSG § 1B1.10, is binding, and that policy statement prohibited reduction in Kheyre’s circumstances. The district court concluded, alternatively, that it would not reduce Kheyre’s sentence even if he were eligible. Section § 1B1.10 provides that a defendant is eligible for a reduction only if a retroactive amendment lowered “the guideline range applicable to that defendant.” Application Note 1(A) says that the amended guideline range is determined before consideration of any departure or variance. The panel held that Congress violated neither the nondelegation doctrine nor the separation of powers by making the Sentencing Commission’s policy statements binding on courts in § 3582(c)(2) proceedings. Applying Kisor v. Wilkie, 588 U.S. 558 (2019), the panel held that the text of § 1B1.10 unambiguously does not ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  USA V. KHEYRE 3 include departures when calculating the amended guideline range. The panel therefore concluded, without reference to Application Note 1(A), that courts do not include departures when calculating the amended guideline range in § 3582(c)(2) proceedings. Accordingly, the district court did not err in calculating Kheyre’s amended guideline range without reference to a departure awarded at his original sentencing. The panel concluded that because Kheyre’s 180-month sentence was below his amended guideline range, he was, under U.S.S.G. § 1B1.10(b)(2)(A), ineligible for a reduction. As the district court properly found that Kheyre was not eligible for a reduction, the panel did not need to reach his challenge to the district court’s alternative holding. COUNSEL Andrew R. Haden (argued) and Paul Benjamin, Assistant United States Attorneys; Daniel E. Zipp, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; Adam Gordon, United States Attorney; Office of the United States Attorney, United States Department of Justice, San Diego, California; for Plaintiff-Appellee. David J. Zugman (argued), Burcham & Zugman, San Diego, California, for Defendant-Appellant. 4 USA V. KHEYRE OPINION PER CURIAM: In 2023, Abdirahman Kheyre was sentence