Full opinion text
MEMORANDUM & ORDER JACK B. WEINSTEIN, Senior District Judge: Table of Contents I.Introduction..............................................................10 A. Motion for Reduction of Sentence, 18 U.S.C. § 3582(e)(2)...................10 B. Motion to Vacate Conviction, 28 U.S.C. § 2255 ......................: ____12 II.Facts and Procedural History...............................................12 A. Crime of Conviction................................. 12 B. Sentencing...........................................................12 1. Appeal................................................;..........13 2. Collateral Attacks............................ 13. C. Resentencing......•...................................................14 1. Appeal and Crosby Remand’..............'.............'..............14 2. Reinstatement of Appeal...........................-.-...............15 D. Instant Motions.......................................................17 1. ■ Motion for Reduction of Sentence, 18 U.S.C. § 3582(c)(2)...............17 2. Motion to Vacate Conviction, 28 U.S.C.,§ 2255 ........................19 III.Motion for Reduction of Sentence, 18 U.S.C. § 3582(c)(2)......................20 A. Underlying Statutes, Background Principles and Precedent .................20 1. Statutory Authority.........................................‘.......20 2. Role of Sentencing Commission and Powers- Delegated TO It............21 3. Brief History of Section 1B1.10 of the Sentencing Guidelines............25 a. Inception....................................... 25 b’. Substantive Amendments...........’.........!..................26 c. 2014 Amendments........................-.....................27 i. Reason for Amendment 788....,,,..,........................28 ii. Public Hearing and Vote ..................................28 4. Binding Nature of Section lB1.10(b)’of the Sentencing Guidelines..’. .’.’.SI a. Supreme Court................................'................31 b. Court of Appeals for the Second Circuit........-...................32 5. Binding Nature of Section lBl.Í0(e) of the Sentencing Guidelines......32 a. Appellate Courts .'..........'.....'.......'.......;............32 b. District Courts....................................■ .......•____33 B. Law.,.........■........................................................34 ■ 1. Rule of Lenity....................................................34 á. Generally..........................................:..........34 b. As Applied to the Sentencing Context............................36 2. DueProeess......................................................37 a. Generally.....................................................37 b. As Implicated in Sentence Administration Decisions................38 i. Supreme Court.............■.............................38 ii. Court of Appeals for the Second Circuit....................40 iii. District Courts in the Second Circuit.......................41 . iv.- 28U.S.C. § 2241 ............................ 42 3 .Ex Post Facto Clause..............................................42 a. Generally......................................................42 b. As Implicated in Sentence Administration Decisions................43 4. Eighth Amendment................................................46 C. Application of Law to Pacts............................................47 1. Rule of Lenity............................................. 47 2. DueProeess............................................... 48 3. Ex Post Facto Clause...................................... 49 4. Eighth Amendment........... 50 IV. Motion to Vacate Conviction, 28 U.S.C. § 2255 ................................50 A. Law.....................-............................................50 B. Application of Law to Facts............................................52 V. Conclusion...............................................................52 I. Introduction This memorandum covers two independent applications for Hakeem Alli-Balo-gun. .The first, his motion for a reduction of sentence,' is dealt with in infra Parts I.A, II & III. The second, challenging his conviction, is covered in infra Parts I.B, II &IV. The case is a remarkable one. Though the drug case was nasty, the long-term imprisonment, by today’s standards, was excessive. Defendant has sewed 273 months in prison while his wife and children established high status employment in banking and medicine. See Hr’g Tr., July 15, 2015. Throughout his incarceration, he has maintained close contact with his family. Id. This resentence provides an opportunity to rectify, in modest degree, an unnecessarily harsh sentence imposed in crueler times. A. Motion for Reduction of Sentence, 18 U.S.C. § 3582(c)(2) It is held that the trial.court is not bound by the Sentencing Commission’s “special instruction” appended to section 1B1.10 of the • Sentencing Guidelines (“guidelines”). See United States Sentencing Guidelines (“U.S.S.G.”) § lB1.10(e). The “special instruction” dictates that, in retroactively applying amendment 782, which reduces offense levels in the drug quantity tables of the guidelines by two, the earliest date a resentenced prisoner can be released from custody is November 1,2015. See infra Part III. The special instruction was effective on November 1, 2014. Neither the United States Supreme Court nor the Court of Appeals for the Second Circuit has decided whether this special instruction is binding. See infra Part III.A.5. Decisions by other courts of appeals and district courts enforce the November 1, 2015 release date as mandatory without questioning its validity. Id. Courts that have found the instruction binding have doné- so based on an analysis of the powers ascribed to the Sentencing Commission by statute and a questionable application of the Supreme Court’s decision in Dillon v. United States, 560 U.S. 817, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Id. Dillon is inapplicable. See Dillon, 560 U.S. 817, 130 S.Ct. 2683. It dealt with section 1B1.10(b) (“Determination of ‘Reduction in Term of Imprisonment”) .of the guidelines. Id. at 819, 130 S.Ct. 2683. This memorandum and order deals with section IB 1.10(e) (“Special Instruction”). See U.S.S.G. § lB1.10(e). Hakeem,Alli-Balogun, a Nigerian citizen legally resident in the- United States, is currently serving a 327-month sentence based in part on the sentencing court’s conclusion in 2002 that movant was á leader in “one of the worst” international drug smuggling conspiracies. See Resentencing Hr’g Tr. 17, No. 92-CR-1108, Mar. 11, 2002 (“Resentencing Hr’g”). Alli-Balogun has been in custody for almost twenty-three years, 273 months in total. His present release date is July 5, 2016. Defendant moves: First, to resentence him to “time-served” in accordance with section 3582(c)(2) of title 18 of the United States Code and amendments 782 and 788 to- the guidelines. See 18 U.S.C. § 3582(c)(2); U.S.S.G. supplement to app. C. amends. 782 and 788. The amendments, colloquially referred to as the “drugs minus two” amendments, reduce and make retroactive a two-level reduction of the offense levels present in the drug quantity tables of section 2Dl.l(c) of the guidelines. See U.S.S.G. supplement to app. C. amends. 782 and 788. Claimed is that Alli-Balogun has served more than the maximum sentence applicable under the reduced guidelines range, , whieh falls between 210 and 262 months. Second, to ignore the delayed release date of Noveihber 1, 2015 promulgated by the. Sentencing Commission. See U.S.S.G. § lB1.10(e).. Granted are movant’s first and second motions. His current sentence is an unjust artifact of a crueler period. Although movant might benefit from placement in a. community correctional facility, because he is going to be deported— consistent with this'court’s sentencing policy with respect to non-citizens — he is being sentenced to time-served. See United States v. Chin Chong, No. 13-CR-570, 2014 WL 4773978, at *1 (E.D.N.Y. Sept. 24, 2014) (extensive discussion regarding court’s policy of sentencing non-citizens to time-served). Alli-Balogun is ordered, to be released forthwith. See Hr’g Tr., July 15, 2015. A three-year term of supervised release is imposed. Id. This decision is stayed for ten days to permit Immigration and Customs Enforcement to take custody of defendant. Id. At the July 15, 2015 resentencing hearing, the court was informed that a detainer had already been lodged by immigration .authorities. Id. No comment, direction, or suggestion is being made about whether Alli-Balogun should be deported, or the parties’' rights of appeal should he be deported. Id. The Sentencing Commission’s “special instruction,” dictating the earliest release date of prisoners regardless of whether the terms of their sentence have been fulfilled, conflicts with the mandate of section 3553(a) of title 18 of the'United States Code (“section 3553(a)”), which requires that a court impose a sentence “sufficient but "not greater than ' necessary.” 18 U.S.C. § 3553(a). The rule of lenity requires reading the “special instruction” favorably to defendant — ie., permitting release before November 1,2015. Alternatively, the court .finds that arbitrarily keeping an inmate in prison beyond the period of an appropriate sentence violates his liberty interest and right to pro-cedurakdue process. The “special instruction,” as applied to prisoners who have already fulfilled the term the court intends to impose und,er the revised guidelines, violates the ex post facto clause of the United States Constitution. The clause forbids the enhancement of punishment through the alteration of the substantive formula used to calculate a prisoner’s sentence. If there is a lack of penological justification for incarceration, as is the case here, the instruction may amount to ordering cruel and unusual punishment. Movant’s motion for a reduction of his sentence is granted. See infra Part III.C. B. Motion to Vacate Conviction, 28 U.S.C. § 2255 Alli-Balogun moves to vacate his sentence under section 2255 of title 28 of the United States Code (“2255 petition”), the first motion on that ground since his re-sentencing. See 28 U.S.C. § 2255. He argues ineffective assistance of counsel on multiple grounds and a series of constitutional violations at his trial. See 28 U.S.C. § 2255. This motion is denied. See infra Part IV.B. II. Facts and Procedural History A. Crime of Conviction Alli-Balogun, a Nigerian citizen lawfully residing in the United States, was arrested on October 8,1992 on charges that he was involved in an international drug smuggling conspiracy. See Alli-Balogun v. United States, 281 F.3d 362, 364 (2d Cir.2002). The following facts were elicited at a jury trial started on March 29, 1994 and ended on April 5, 1994 in the Eastern District of New York: Between April 1991 and May 1992, Alli-Balogun engaged in a conspiracy to import multi-kilogram quantities of heroin into the United States from Thailand. See United States v. Alli-Balogun, 72 F.3d 9, 10 (2d Cir.1995). Some of the conspirators, including* defendant, had sources for the drug in Thailand. Id. at 11. Other conspirators had contacts through whom they smuggled and' distributed heroin into the United States. Id. Defendant and his principal coconspirators pooled their money to purchase heroin. Id. The heroin was resold in the United States. Id. Their couriers included both men and women. Id. Some were prostitutes' whose pimps were paid. Id. Others were narcotics abusers, or they had sold narcotics on a comparatively small scale. Id. Evidence introduced at trial — procured with the' help of cooperating witnesses, including two of defendant’s principal co-conspirators — showed that defendant invested in, or intercepted, thirteen heroin importations, involving in excess of thirty kilograms. Id. Alli-Balogun used false names to remit money abroad, structuring the remittances to evade currency transaction reporting requirements. Id. No evidence was proffered regarding the threat or use of violence, or Use or possession of firearms or weapons iii furtherance of the conspiracy. Id. Defendant was convicted on five counts: one count of conspiracy to import heroin, 21 U.S.C. §§ 963, 960(b)(3); three counts of importing heroin,- 21 U.S.C. §§ 952(a), 960(b)(3); and one count of engaging in a continuing criminal enterprise to import heroin, 21 U.S.C. § 848(a). See Jury Verdict, Apr. 5, 1994, ECF No. 65; cf. Superseding Indictment, Feb. 24, 1993, ECF No. 19. B. Sentencing Alli-Balogun was sentenced on March 16, 1995. See Sentencing Hearing Transcript,- Mar. 16, 1995. It was observed by the court that the conspirators, including defendant, though “relatively small players in this enormous Nigerian smuggling racket that comes through our district,” were “cold-blooded businessmen.” Id. at 13:13, 14:12-13. Finding no basis for a downward departure, it concluded that, without Alli-Balogun’s leadership and participation, the conspiracy could not have gone forward. Id. at 14:25-15:5. The total offense level calculated as applicable to defendant was forty-two. Id. at 8:8-9. A four-level enhancement was added to the base offense level of thirty-eight because defendant played a leadership role in the conspiracy. Id. at 11:8-9. Alli-Balogun was sentenced to a 360-month prison term, the lower end of the then-mandatory guidelines range. See Judgment, Mar. 22,1995, ECF No. 81. 1. Appeal An appeal to the Court of Appeals for the Second Circuit was taken on March 22, 1995. See Notice of Appeal, No. 92-CR-1108, Mar. 22, 1995, ECF No. 82. Defendant filed . a pro . se supplemental brief alleging that: (1) his trial counsel failed to argue that Alli-Balogun’s role in the conspiracy was minimal and therefore inconsistent with the elements necessary to establish a conviction for engaging in a continuing criminal enterprise; (2) the trial court erred in' admitting prior bad act evidence; and (3) the'trial court committed plain error when it failed to give a unanimity instruction on the three predicate violations required under the continuing criminal enterprise statute. See Pro Se Brief for Defendant-Appellant, United States v. Alli-Balogun, 72 F.3d 9, 10 (2d Cir.1995) (No. 95-1161), 1995 WL 17202081, at *12, 19, *21-23. Affirming the conviction and sentence, on November 15, 1995, the Court of Appeals for the Second Circuit wrote: : After an eleven-month investigation into the activities of a heroin smuggling ring, ... Alli-Balogun ... was arrested and charged with engaging in a continuing criminal enterprise to import heroin, conspiring to import heroin, and importing heroin. At trial, the government showed that six “investors” provided varying amounts of money for each [of the thirteen] smuggling trip[s] ... At least twenty-two kilograms of heroin were successfully .smuggled through these trips. The evidence adduced at trial to show Balogun’s participation in the smuggling ring was overwhelming. Alli-Balogun, 72 F.3d at 10. 2. Collateral Attacks At the district court level, Alli-Balogun mounted three unsuccessful pro se collateral attacks. During the pendency of his direct ap--peal, he filed his first 2255 petition. See Petition, No.. 94-CV-4790, ECF No. 1. Lacking jurisdiction, the court dismissed the petition. See Order, Oct. 20, 1995, ECF No. 4. Reconsidered at petitioner’s request, on November 14, 1995, it was again denied due to the pendency of petitioner’s appeal. See Order, Nov. 17, 1995, ECF No. 5. On December 30, 1996, Alli-Balogun’s second petition was dismissed on the merits because the issues “[had] been, or should have been, previously raised.” See Petition, No. 96-CV-6362, Dec. 30, 1996, ECF No. 1; Order, Mar. 10, 1997, ECF No. 9. An appeal was taken on March 26, 1997. See Notice of Appeal, Mar. 26,1997, ECF No. 11. The mandate issued by the Court of Appeals for the Second Circuit on January 5,1998 read: The appellant has failed to make a “substantial showing of the denial of a constitutional right.” Appellant’s claims are .procedurally barred. Moreover, Appellant failed to show that his sentencing and appellate counsel was ineffective within the meaning of Strickland v. Washington, 466 U.S. 668, 688-96, 104 S.Gt. 2052, 80 L.Ed.2d 674 (1984). Mandate, Jan. 5, 1998, ECF No. 15. A third 2255 ‘petition was filed on October 13, 1998. See Petition, No. 92-CR-1108, Oct; 13, 1998, ECF No. 94. On December 1,1998, the petition whs denied. See Order, Dec. 1, 1998, ECF No. 98. Affirming" the denial by the district court, on April 9, 1999, the Court of Appeals for the Second Circuit issued the following mandate: “A motion- for authorization to file a second or successive 28 U.S.C. § 2255 ... is denied. Petitioner has not shown that the successive petition relies on newly discovered evidence or involves [a] new rule of constitutional law.” Mandate, Apr. 9,1999, ECF No. 103. Five months later, on September 14, 1999, the Court of Appeals for the Second Circuit denied petitioner’s request “for an order authorizing consideration of a second petition” because the motion was “not based on either newly discovered evidence or a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court[.]” Mandate, Sept. 14, 1999, No. 94-CV-4790, ECF No. 8. C. Resentencing In the interim, on June 1, 1999, the Supreme Court ruled that, in prosecutions under the continuing criminal enterprise statute,- the jury must make a unanimous finding as to each predicate violation. See Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707; 143 L.Ed.2d 985 (1999). Alli-Balogun moved for post-conviction habeas corpus relief under section 2241 of title 28 of the United States Code. See-Motion, No. 92-CR-1108, Aug. 7, 2000, ECF No. 104. ' Vacated by the district court was the count of conviction covering his participation in a continuing criminal enterprise. See Judgment, July 3, 2001, ECF No. 117. Pursuant to the trial court’s order, petitioner was resentenced on March 11, 2002. See Resentencing Hr’g. The base level offense was still thirty-eight, based on the quantity of drugs at issue under the then-mandatory guidelines. Id. at 15:21. Although a four-level enhancement was added to the base offense level due to the leadership role played by petitioner in the conspiracy, petitioner was afforded a three-level reduction for acceptance of responsibility. Id. at 14:24-25. The argument was accepted that “Alli-Balogun had gone to trial because of the presence of the [continuing criminal enterprise] charge and that having vacated the conviction on that count, it now was appropriate for the Court to afford the acceptance of responsibility [three]-level reduction.” Id. The adjusted sentencing offense level was thirty-nine, yielding , an imprisonment guidelines range of 262-327 months. Id. at 15:18. Defendant was resentenced to 327 months, thirty-three months fewer than before. Id. at 15:13-16. The court explained: “I will sentence him to the top of the range which is 327. I select the top of the range because this was one of the worst conspiracies with respect to interná-tional drug smuggling that the Court observed.” Id. at 17:2-5. “I observed the full trial. [Alli-Balogun] was an organizer and leader of an international, very widespread and cruel system of utilizing women from all over the United States, in various countries in a well thought-out program for which he is himself entirely responsible.” Id. at 15:8-13. An amendment judgment was issued on March 18, 2002. See Amended Judgment, Mar. 18, 2002, ECF No. 127. 1. Appeal and Crosby Remand Defendant appealed the resentencing determination on April 1, 2002. See Notice of Appeal, Apr. 1, 2002, ECF No. 135. The appeal still undecided on September 14, 2007, the Court of Appeals for the Second Circuit remanded the case for a determination ¡ under United States v. Crosby, 397 F.3d 103 (2d Cir.2005).. See Order of United States Court of Appeals, Sept. 21, 2007, ECF No. 141. Crosby held that, in pre-Booker cases, a remand should be afforded to determine whether the defendant should be resentenced pursuant to the advisory guidelines regime. See Crosby, 397 F.3d at 120. On remand, at a September 23, 2009 hearing, against the advice of his counsel, defendant affirmatively waived any right to a hearing or resentencing under Crosby. See Minute Entry, Sept. 23, 2009,. ECF No. 163. Alli-Balogun was not. resen-tenced. Id. 2. Reinstatement of Appeal Counsel, at the behest of his client, reinstituted the April 1, 2002 appeal. He argued that defendant’s original trial counsel was- ineffective for failing to make specified arguments at a suppression hearing, and that his client’s resentencing in 2002 was procedurally unreasonable because the judge failed to adequately explain the chosen sentence. See Brief for Defendant-Appellant, United States v. Alli-Balogun, 480 Fed.Appx. 27 (2d Cir.2011) (No. 10-1834), 2011 WL 1977751, at *25, *35. It was contended that the mandate issued by the Court of Appeals in 1998 did not foreclose previously unasserted grounds with respect to ineffective assistance of counsel. Id. at *25. A variety of pro se challenges were raised on appeal as well. Sée Pro Se Supplemental Brief of Defendant-Appellant, United States v. Alli-Balogun, No. 10-1834 (2d Cir. June 8, 2011), ECF No. 57. They included opposition to: (1) the district court’s denial of Alli-Balogun’s 2255 petition before judgment was entered; (2) the denial of a motion to suppress evidence and dismiss the indictment, or, alternatively, to grant a new trial; (3) the admission of a litany of evidence; (4) the jury instructions; (5) the prosecutor’s conduct at trial; (6) the sentence imposed; (7) appellate counsels decision to not raise certain arguments on defendant’s first appeal; and (8) trial counsel’s- conflict of interest, and trial strategy, which precluded defendant and other defense witnesses from testifying. Id. Resolving the merits of “all” of Alli-Balogun’s counseled and pro se contentions, on May 4, 2012, affirming the judgment of the district court, the Court of Appeals for the Second Circuit issued the following frill analysis of Alli-Balogun’s position in a summary order: Alli-Balogun’s first counseled argument is that his lawyer in the 1993 suppression hearing was constitutionally ineffee-five for, failing to argue that the ... search of his business violated the Fourth Amendment because his wife’s consent thereto was involuntarily given. Although a criminal defendant may sometimes raise an ineffective assistance of counsel claim on direct appeal if the record is sufficiently developed, and if he does not raise such á claim on direct appeal, he may raise it in a habeas petition, Alli-Balogun did not do either. He now attacks the actions of his 1993 counsel, whom he fired in 1994 and who was not involved in his 1995 appeal or any later proceeding. Alli-Balogun was represented by new counsel in connection with his' 1999 habeas petition that raised other grounds; but his [ineffective assistance of counsel] claim has never been presented to the district court. Because it is raised for the first time on this appeal, it is reviewable at most for plain error. ... Alli-Balogun has not met this standard because he has not shown constitutionally deficient assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A Strickland claim, requires showing both that “counsel’s representar tion fell below an objective standard of reasonableness under prevailing professional norms,” and that “there is a reasonable probability that, but for coun-. sel’s unprofessional errors, the result of the proceeding would have been different.” But Alli-Balogun cannot meet the second Strickland prong becaüse the suppression arguments he now claims his counsel should have made are merit-less. At the ... suppression hearing, Special Agent Patrick Ahearne, who had conducted the 1992 search, testified that Alli-Balogun’s wife, Kehindé Badmus, had consented to the search of his business. Alli-Balogun now argues that his counsel should have objected- to Ms. Badmus’s consent because a group of several agents made a “show of authority” by announcing themselves as police and by momentarily entering .a- few steps ■ into the apartment before Ms. Badmus consented. But the evidence shows that Ms. Badmus. was. “relaxed” and that she did not hesitate to give her consent. There is no -indication of .force or intimidation — Ahearne calmly knocked and announced “police,” after which Ms. Badmus opened the. door, and although .Ahearne stepped inside, Ms. Badmus consented almost immediately. Under the totality of the circumstances, including the fact that Ms. Badmus was an adult, the ordinary time of day, the business setting of the search, her sound mental and emotional condition, and her ready acquiescence, there is no reasonable probability that the district court would have found her consent involuntary if defense counsel had made the arguments Alli-Balogun -now' claims should have been made. In any event, given Agent Ahearne’s testimony, it is entirely understandable that Alli-Balo-gun’s counsel' made the strategic decision to focus on a narrower ground — the scope of Ms. Badmus’s consent. Strickland grants no license to question counsel’s strategic decisions. We thus find ' no error, plain or otherwise, on the ineffective assistance claim. Alli-Balogun’s second counseled argument challenges the procedural reasonableness of his 2002- resentencing; He argues that Judge Weinstein did not adequately .explain the reasons for his revised 327-month sentence. This argument is also meritless. Under [section] 3553(c) [of title 18 of the United States Code], a district court must explain the reasons for the sentence it selected. But the district court need only give an explanation that satisfies the appellate court “that, [the district court] has ‘considered the parties’ arguments’ and that it, has. a ‘reasoned basis, for exercising [its] own legal decisionmaking, authority.’” Here, Alli-Balogun did not contemporaneously object to the judge’s explanation of. the sentence,-so we review .only for .plain error. Again.we find •none, Judge Weinstein explained that .he selected the sentence, which fell-at the top of the then-mandatory guidelines range, because Alli-Balogun’s-crime was “one of the worst conspiracies with respect to international drug smuggling that -the Court observed.” Judge Wein-stein-recalled that he had presided over the 1994 trial and 1995 sentencing and that Alli-Balogun was “an organizer and leader of an international, very wide-spread and cruel system” of using women, including prostitutes, from all over the world as drug couriers. Alli-Balogun argues that this reasoning is facially inconsistent with Judge Wein-stein’s statement at the original 1995 sentencing that “20.years [was] plenty” for .the charge, but when that remark is read in its full context, there -is no inconsistency. At the 1995 sentencing, the judge went on to say that-“I don’t agree with you that Congress would have been happy to [see] him get 20,” and that the conspiracy was “particularly cold blooded” in its “nefarious activities” and well-organized investment hierarchy. The judge expressed concern about the fact that Alli-Balogun had transformed from a “respected businessman” to a “critical leader” and “central figure” in the conspiracy, which could not have gone forward without him. The court then imposed the original 360-month sentence. The district court’s rationale for its 2002 sentence was thus not inconsistent with its discussion in 1995. Because Alli-Balogun affirmatively waived any questions related to mandatory guidelines application by waiving a Crosby hearing, any objection to Judge Weinstein’s apparent reliance in 2002 on the guidelines range has been waived. The court’s imposition of a sentence at the top of the range based on the reasons it gave was not error, let alone plain error. Finally, Alli-Balogun makes a number of pro se arguments. Most of these arguments — including his attacks on eviden-tiary rulings and jury instructions at trial, alleged misconduct by the prosecutor and defense counsel, the court’s failure to dismiss the indictment, and the denial of the suppression motion — are barred by the law of the case doctrine. The law of the case doctrine “ordinarily prohibits a party, upon resentencing or an appeal from that resentencing, from raising issues that he or she waived by not litigating them at the time of the initial sentencing.” The doctrine also bars, a fortiori, arguments that a party did raise previously without success. This matter is now before this Court only because of Alli-Balogun’s 2002 re-sentencing; correlatively, Alli-Balogun may now raise only arguments relating to that resentencing, not arguments attacking his 1994 conviction. The remaining pro se arguments are waived by his waiver of the Crosby hearing hr are not properly before us because they relate to separate collateral proceedings in the district court. Alli-Balogun’s attack on the district court’s jurisdiction based on a defect in- the. indictment is also meritless. Alleged errors in the indictment are not “jurisdictional” and are subject to the same law of the. case principles set forth above. Mandate 3-7, Oct. 1, 2012, ECF No; 181 (internal* citations omitted). >■ • ‘ ' Alli-Balogun’s pro se petition for a rehearing en banc was denied on September 24, 2012. See Order, United States v. Alli-Balogun, No. 10-1834 (2d Cir. Sept. 24, 2012), ECF No. 171. No petition for a. writ of certiorari to the United States Supreme Court was filed. D. Instant Motions 1. Motion for Reduction of Sentence, 18 U.S.C.’§ 3582(c)(2) On May 8, 2015, movant submitted a letter motion- to the court requesting a reduction of sentence pursuant to section 3582(c)(2) .of title 18 of the United States Code (“section 3582(c)(2)”). See Motion to Reduce Sentence, No. 92-CR-1108, May 8, 2015, ECF No. 183. The- request was made following ^amendment 788 to the guidelines, which was effective November 1, 2014. Idl at 1. It made retroactive the application of amendment 782 to the guidelines, reducing-“by two . levels the sentencing guidelines - applicable to most federal drug trafficking offenses.” I'd. Amendments 782 and 788, in conjunction with section 3582(c)(2), it is claimed, “provide[ ] the [c]ourt with the opportunity to afford a modest reduction to [Alli-Balogun’s] previously imposed sentence of 327 months.” Id. “With the same adjustments, an acceptance of responsibility reduction of three levels and . a role. enhancement of [four] levels (both as before), Mr. Alli-Balogun’s new total adjusted offense level falls to a level of 37, with a sentencing [guidelines range of 210-262 months.” Id. at 3. Petitioner’s counsel informed the court of- Alli-Balogun’s apparent rehabilitation while in prison as a basis for reduction of his sentence. ■ Mr.-Alli-Balogun has been a model in- ■ mate. He initially was held at the Metropolitan Detention Center, then was transferred to [a, prison] near the Canadian border (far from his family) and has spent approximately the last [fourteen] years ... in New Jersey, where he at least has been able to have more frequent visits with his family. I recently had the opportunity to - meet, with Mr. Alii — Balogun____ I can say without equivocation that he is a humbled human ’’being. In my respectful view, all that society could have wanted to accomplish by imprisoning Mr. Alli-Balogun for '"these many year[s] has been accomplished. He works 6 days per week ... as a barber cutting hair. He works from about 7:45 a.m. to 2:00 p.m. each day. His institutional work history is good. He has taken advantage of the institution’s programs available to him. There have been no disciplinary incidents — More remarkably, however, ... -Mr. Alli-Balogun has been able to maintain a supportive and loving relationship with his wife and four children, all of whom, with Mr. Alli-Balogun’s love and encouragement,. have been quite successful in their own right, notwithstanding Mr. Alli-Balogun’s painful absence from their lives. - ■ Mr. Alli-Balogun’s wife, Antonia, is an accountant and works .full-time. His daughter Kafayat (age 37) has . a Bachelor, of Science degree in psychology and works full-time; his son Afeez (age.33) has a college degree and works in finance; his daughter .Halimat (age 29) has a degree in business administration and is now studying to be a nurse; and his son Hassan (age 25) works in finance ■ and is completing a degree program in business administration. The successes of Mr. Alli-Balogun’s family are a credit to them and to him. Mr. Alli-Balogun himself has a degree in architecture and was working in that field at the time of his incarceration in 1992. All of the rehabilitative goals of [section] 3553(a) have been accomplished and there will be no undermining of the public’s confidence in the administration of justice should the Court grant this modest sentencing reduction. Mr. Alli-Balo-gun’s incarceration for over [twenty-two] and one-half years has accomplished all of the goals of sentencing. For his own part, even if his sentence is reduced as requested herein, Mr. Alli-Balogun still will face uncertainty and the possibility of removal from the United States to Nigeria, his country of origin, the now civil war-torn and terror- . filled world of Boko Horan and other extremists. It also is likely that he will be held in an immigration detention facility after his releases on this case while the immigration administrative process unfolds. Id. at 3-4; see also Inmate Skills Develop1 ment Plan Progress Report, May 8, 2015, ECF No! 183-2. ' ’ ’ A hearing addressing the motion, for a reduction in sentence was conducted on May 14, 2015. See - Hearing Transcript, May 14, 2015 (“Hr’g Tr., May 14, 2015”). Further briefing was ordered regarding the binding nature.of the November'1, 2015 earliest prisoner release date. The date was promulgated by the Sentencing Commission with respect to amendments 782 and 788, and appeared in section IB 1.10(e) of the guidelines as a “special instruction” limiting the court’s resentenc-ing power under section 3582(c)(2) of title 18 of the United States Code. Id. at 18:20-19:11, 20:24-21:3. The instruction reads as follows: (e) Special Instruction.— (1) The court shall not order a reduced term of imprisonment based on Amendment 782 unless the effective date of the court’s order is November 1,2015, or later. U.S.S.G. § lB1.10(e). Briefing on the binding effect of the special instruction was complete on June 12, 2015. A resentencing hearing was held on July 15, 2015. See Hr’g Tr., July 15, 2015. 2. Motion to Vacate Conviction, 28 U.S.C. § 2255 On December 31, 2013, petitioner resubmitted a collection of . papers, previously filed on various matters concerning his criminal case. See Motion to Vacate, Set Aside or Correct Sentence, No. 13-CV-7423, Dec. 31, 2013, ECF No. 1. No specific claim was articulated. Id. The government’s petition to dismiss these papers styled as a habeas corpus petition was granted. See Order on Motion to Vacate, Feb. 14, 2014, ECF No. 8. Alli-Balogun moved for reconsideration. See Motion for Reconsideration of the Court’s Order on Motion to Vacate, Set Aside or Correct Sentence, Mar. 6, 2014, ECF No. 9.- On May'29,2014, he submitted papers supporting claims on which the instant petition is based. See Memorandum of Facts in Support of Motion for Reconsideration, May 29, 2014, ECF No. 15; Alli-Balogun Affidavit in Support of Motion for Reconsideration, May 29, 2014, ECF No. 17; Mrs. Alli-Balogun Affidavit, May 29,2014, ECF No. 18. On June 27, 2014, a hearing was conducted at which it was decided that additional briefing was required. See Minute Entry, June 27,, 2014, ECF No. 20. After repeated delays, petitioner submitted a memorandum in support of the motion for reconsideration on May 13, 2015. See Memorandum in Support of Motion for Reconsideration, May 13, 2015, ECF No. 27. The memorandum included the following arguments:'' " ■ First, that Alli-Balogun received ineffective assistance of counsel in plea negotiations because his counsel (1) did not investigate the case; (2) gave erroneous advice regarding proffers and the use of those statement^ by the government; (3) failed to advise petitioner regarding the immigration consequences of his prosecution; and (4) advised him that after proffering he would receive a sentence of probation. Id. at 7. Asserted was: “but for counsel’s errors and bad advice, the outcome of the proceedings would have been different.” Id. Effective counsel, it was argued, would have negotiated a cooperation agreement and moved for dismissal of the indictment due to the government’s breach of proffer agreements. Id. at 7-8. Second, that trial counsel was ineffective with respect to a suppression motion because she failed to argue that consent was procured based on coercion and threats. Id. at 8. Third, that trial counsel’s failure to call Alli-Balogun’s wife, cousin, and experts as witnesses prevented petitioner from being able to contradict the testimony of other government cooperating witnesses. Id. Also questioned was trial counsel’s conduct at trial, including her failure to (1) advise petitioner of his right to testify; (2) object to the district, court’s. instruction to the jury regarding alternative theories of guilt; and (3) object to.testimony, evidence, and charts used.at trial-. Id. at 9. Fourth, that trial counsel failed to challenge the validity and sufficiency of the evidence to support the indictment or seek its dismissal. Id. at 8.' Fifth, that evidence introduced had been illegally seized. Id. at 9. Sixth, that petitioner was detained without having been read his Miranda rights. Id. Added are arguments about the vindictive nature of his prosecution. Id. Seventh, that petitioner’s resentence was flawed on multiple grounds, including appellate counsel’s decision to seek a Crosby remand hearing. Id. at 9-10. Eighth, that appellate counsel assigned to petitioner’s second appeal was ineffective because he failed to correct errors of previous counsel. Id. at 10] A supplemental pro se 404-page memorandum, realleging numerous claims already considered and denied by this court or the Court of Appeals for the Second Circuit, was filed on June 5, 2015. See Further Memorandum Prepared Pro Se By Petitioner Hakeem Alli-Balogun Regarding His § 2255 Petition, June- 5, 2015, ECF No. 38; see also Hr’g Tr. 10:17, May 14, 2015. III. Motion for Reduction of Sentence, 18 U.S.C. § 3582(c)(2) A. Underlying Statutes, Background Principles and Precedent 1. Statutory Authority The limits on the power of the district court to reduce terms of imprisonment is set out in section 3582(c)(2)' of title 18 of the United States Code. See 18 U.S.C. § 3582(c)(2)." It reads in ■ relevant part: The court' may not modify a term of imprisonment once it has been imposed except that ... in the case of a defendant who has been sentenced to a term of imprisonment based on' a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to [section] 994(o) [of title 28 of the United States Code], upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term, of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. Id. (emphasis added). In 1983, Congress emphasized that sentencing power should be in the hands of the judiciary, describing the purpose of the provisions falling under section 3582(c) as “safety valves.” The value of the forms of “safety valves” contained in this subsection lies in the fact that they assure the availability of specific review and reduction of a term of imprisonment for “extraordinary and compelling reasons” and to respond to changes in the guidelines. The approach taken keeps the sentencing power in the judiciary where it belongs, yet permits later review of sentences in particularly compelling situations.” Senate Report of the Committee on the Judiciary on Section 1762 of the Comprehensive Crime Control Act of 1983, S.Rep. No. 98-225, at 121 (1st Sess.1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3304 (emphasis added). The role of the Sentencing Commission with respect to guidelines revisions is described in section 994(o) of title 28. .See 28 U.S.C. § .994(o). It reads: The Commission periodically shall review and revise, in consideration of comments and- data coming to its attention, the guidelines promulgated pursuant to the provisions of this section. In fulfilling its duties and in exercising its powers, the Commission shall consult with authorities on, and individual and institutional representatives of, various aspects of the Federal criminal justice system. The United States Probation System, the Bureau of Prisons, the Judicial Conference of the United States, the Criminal. Division - of the United States Department of Justice, and a representative of the Federal Public Defenders shall submit to the Commission any observations, comments, or questions pertinept to the work of the Commission whenever they believe such communication would be useful, and shall, at least annually, submit to the Commission a written report commenting on the operation of the Commission’s guidelines, suggesting changes in the guidelines that appear to be warranted, and otherwise assessing the Commission’s work. I'd. In section 994(u) of the same title, Congress limits' the Commission’s power to retroactively reduce sentences by requiring it to “specify in what circumstances and by what amount the sentences of prisoners serving terms' of imprisonment for [an] offense may be reduced.” 28 U.S.C. § 994(u). The Court of Appeals for the Second Circuit has held that in section 994(a)(2) “Congress prescribed the specific tool— policy statements — for the Commission to use in regulating the retroactive effect of sentencing.” United States v. Erskine, 717 F.3d 131, 139 (2013) (citations and internal quotation marks omitted) (holding that Sentencing Commission has statutory authority to prohibit sentences imposed upon resentencing to be reduced to a term less than the minimum of the amended guidelines range). ' The court explained the role of the Commission’s “policy statements” in regulating the retroactive effect of sentencing as follows: “[They] must further the purposes- set forth -in [section] 3553(a)(2) [of title 18 and section] 994(a)(2) [of title 28], such as the need for a sentence to afford adequate deterrence to criminal conduct and protect the public from further crimes of the defendant.” Id. at 139 (citations and internal quotation marks omitted); see also 28 U.S.C. § 994(a)(2)(C) (“The Commission ... pursuant to its rules and regulations and consistent with all pertinent provisions of any Federal statute shall promulgate and distribute to all courts of the United States and to the United States Probation System ... general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes set forth in section 3552(a)(2) of title 18, United States Code, including the appropriate use of ... the sentence modification provision[ ] set forth in seetion[ ] ... 3582(c) of title 18.”); 28 U.S.C. § 994(a)(1) (“The Commission ... pursuant to its rules and regulations and consistent with all pertinent provisions of any Federal statute shall promulgate and distribute to ■ all courts of the United States and to the United • States Probation System ... guidelines ... for use of a sentencing court in determining the sentence to be imposed in a criminal-case[.]”). 2. Role of Sentencing Commission and Powers Delegated To It Created in 1984 under the Sentencing Reform Act, a chapter of the Comprehensive Crime Control Act of 1984, the Sentencing Commission was charged with “the task of establishing sentencing policies and practices for the Federal criminal justice system.” Stinson v. United States, 508 U.S. 36, 40-41, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (citations and internal quotation marks omitted) (holding that “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates- the Constitution or a federal statute,, or is inconsistent with, or a plainly erroneous . reading of, that guideline”); United States v. Cramer, 777 F.3d 597, 604 (2d Cir.2015) (same). Through the Act, Congress “sought to, increase transparency, uniformity, and proportionality in sentencing.” Dorsey v. United States, — U.S. — , 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012) (citing U.S.S.G. § 1A1.3 (2011 ed.); 28 U.S.C. §§ 991(b)(1),, 994(f)). To meet these goals, “[t]he Act abandoned indeterminate sentencing and parole in favor of a system in which Sentencing Guidelines, promulgated by a new Sentencing Commission, would provide courts with a range of determinate sentences for categories of offenses ahd defendants.” Tapia v. United States, 564 U.S. 319, 131 S.Ct. 2382, 2387, 180 L.Ed.2d 357 (2011); see also Neal v. United States, 516 U.S. 284, 290, 116 S.Ct. 763, 133 L.Ed.2d 709 (1996) (“The Commission was born of congressional disenchantment with the vagaries of federal sentencing and of the parole system.”); Kenneth R. Feinberg, Federal Criminal Sentencing Reform: Congress and the United States Sentencing Commission, 28 Wake Forest L.Rev. 291 (1993) (explaining, in general, how the Sentencing Commission was created). The Commission executed its primary functions by promulgating the guidelines manual. Stinson, 508 U.S. at 41, 113 S.Ct. 1913. The manual , contains “three varieties” of “text”: First [,] is a guideline provision itself[,] ... providing] direction as to the appropriate type of punishment — probation, fine, or term of imprisonment — and the extent of the punishment imposed. Amendments to the Guidelines must be submitted to Congress for a [six]-month period of review, during which Congress can modify or disapprove them. [Second,] ... is a policy statement. The Sentencing Reform Act ■ authorizes the promulgation of general policy statements regarding application of the guidelines or other aspects of sentencing that would further the purposes of the Act. [Third,] is commentary— [B]oth guidelines and policy statements are accompanied by extensive commentary. Although the Sentencing Reform Act does not in express terms authorize the issuance of commentary, the Act, [under section 3553(b)' of title 18] does refer to ... [the] official commentary of the Sentencing Commission[.] Id. at 41, 113 S.Ct. 1913 (internal quotations marks and citations omitted) (paragraph breaks added). In Mistretta, the Supreme Court upheld the constitutionality of the .Commission’s guidelines work. Mistretta v. United States, 488 U.S. 361, 379, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (holding that sentencing guidelines were constitutional, amounting to neither excessive delegation of legislative power nor violation of separation of powers principles). Clarified was that the specific policy directives stated in the Sentencing Reform Act of 1984 embodied “intelligible principles” sufficient to communicate to the Commission the limits of its authority. Id. at 372, 109 S.Ct. 647. It was recognized that such “intelligible principles” may be broad in scope because “in our increasingly complex' society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Id.; see also Ershine, 717 F.3d at 139 (“[T]hough'it is the Commission that crafts the policy statements, it is Congress that has made them both available as a general matter and binding on the courts that employ them.”). Despite Justice Scalia’s vehement dissent, in which he referred to the Commission as “a sort of junior varsity Congress,” the Court rejected the contention that the Commission’s rule-making authority— binding on article III courts violated separation of powers principles. Mistretta, 488 U.S. at 385, 109 S.Ct. 647. Congress, the majority found, did not exceed its authority in delegating legislative powers to the Commission, which was treated effectively as a, unit in the judiciary. Id. The framers of the Constitution “did not require — and indeed rejected — the notion that the three [branches must be -entirely separate and distinct.” Id. at 380, 109 S.Ct. 647. To determine what one branch may do “in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental coordination.” Id. at 372, 109 S.Ct. 647.. . The Sentencing Commission was described as “a peculiar institution within the framework of our Government.” Id. at 384, 109 S.Ct. 647. With respect to'its placement in the judicial branch, the Court wrote: Although placed ... in -the Judicial Branch, it is not a court and does not exercise judicial power. Rather, the Commission is an independent body comprised of seven voting members including at least three federal judges, entrusted by Congress with the primary task of promulgating sentencing guidelines. Our constitutional principles of separated powers are not violated, however, by mere anomaly or innovation .... Congress’ decision to create an independent rulemaking body to promulgate sentencing guidelines and to locate that body within the Judicial Branch is not unconstitutional unless Congress has vested in the Commission powers that are more appropriately performed by the other Branches or that undermine the integrity of the Judiciary. [T]he practical consequences , of locating the Commission within the Judicial Branch pose[s] no threat of undermining the integrity of the Judicial Branch or of expanding the powers of the Judiciary beyond constitutional bounds by uniting within the Branch the political or quasi-legislative power of the Commission with the judicial power of the courts. [The Commission’s] powers are not united with , the powers of the Judiciary in a way that has meaning for separation-of-powers analysis. Whatever constitutional problems might arise if the powers of the Commission were vested in a court, the Commission is not a. court, does not exercise judicial power, and is not controlled by or accountable to members of the Judicial- Branch. Id. at 384-85, 393, 109 S.Ct. 647 (emphasis added) (internal citations omitted). In Booker, where the Court downgraded the guidelines control of sentencing judges from mandatory to advisory, it reiterated Congress’s power to create the Commission: [T]he promulgation of the Guidelines was much like other activities in the Judicial Branch, such as the creation of the Federal Rules of Evidence, all of which are nonadjudicatory activities. Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and that are appropriate to the central mission of the Judiciary. While ... the Guidelines [are] more substantive than the Rules of Evidence or other nonadjudicatory functions delegated to the Judicial Branch ... delegating] [to the Commission the power to create the Guidelines] did not exceed Congress’, powers— [A] recognition that the Commission d[oes] not exercise judicial authority, but [is] more properly thought of as exercising, some sort of legislation power was essential to our holding [in Mistretta]. ■ [T]he Commission is an independent agency that exercises policymaking authority delegated to it by Congress. United States v. Booker, 543 U.S. 220, 242-43, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Dillon, the Court’s most recent opinion regarding the limited binding nature on the courts of policy statements issued by the Commission, summarized the history and the role of the Commission as follows: The Sentencing Reform Act of 1984 ... established the Sentencing Commission and authorized it to promulgate Sentencing Guidelines and to issue policy statements regarding the Guidelines’ application [pursuant to sections 991 and 994(a) of title 18 of the United States Code]. The Act also charged the Commission with periodically reviewing and revising the Guidelines [pursuant to section 994(o) of title 18]. When a revision reduces the Guidelines range for a given offense, the Commission must determine[, under section 994(u),] in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced. As enacted, the [Sentencing Reform Act] made the Sentencing Guidelines binding. Except in limited circumstances, district courts lacked discretion to depart from the Guidelines range. Under that regime, facts found by a judge by a preponderance of'the evidence often increased 'the mandatory Guidelines range and permitted the judge to impose a sentence greater than that supported by the facts established by the jury verdict or guilty plea. We held in Booker that treating the Guidelines as mandatory -in these circumstances violated the Sixth Amendment right of criminal defendants to be tried by a jury and to have every element of an offense proved by the Government beyond a reasonable doubt. To remedy the constitutional problem, we rendered the Guidelines advisory by invalidating two provisions • of the [Sen- ! tencing Reform Act]: [The first] generally required a sentencing court to im- ■ ¿tose a sentence- within the applicable Guidelines range, and [the second] prescribed the standard of review on appeal, including de novo review of Guidelines departures. With these two sections excised (and statutory cross-references to the two sections consequently invalidated), we held that the remainder ' -of • the Act satisfies the Court’s constitutional requirements. Booker thus left intact other provisions of the [Sentencing Reform Act], including those giving the Commission authority to revise the Guidelines, .., and to determine when and to what extent a revision will be retroactive[.] Dillon v. United States, 560 U.S. 817, 820-21, 130 S.Ct. 2683, 177 L.Ed.2d 271. (2010) (citations and quotation marks omitted) (holding that sentence modification proceedings held, pursuant to section 3582(c)(2) premised on retroactive amendments to the sentencing guidelines do not implicate sixth amendment rights). Justice Stevens issued the following dissent in Dillon emphasizing the overriding approach of the Court in Booker, and defending sentencing judges’ power to exercise discretion. Dillon, 560 U.S. at 833-35, 130 S.Ct. 2683 (Stevens, J., dissenting). He wrote: Today, the Court holds that in this one limited nook of sentencing law, the Commission retains the power to bind judges that we struck down in Booker. In my view, the Court’s decision to treat the Commission’s policy statement as a mandatory command rather than an advisory recommendation is unfaithful to Booker. It is also on dubious constitutional footing,- as it permits the Commission to exercise a barely constrained form of lawmaking authority. Prior to our decision in Booker, the Guidelines were mandatory only by virtue of congressional mandate, and not by virtue of Commission decree. Following Booker, the Commission’s policy statement in [section] 1B1.10. took effect in March 2008. That statement ... is now the only source of binding authority in [section] 3582(c)(2) proceedings, as it purports to have the effect of reinstating a mandatory Guidelines regime within the context of a sentence modification proceeding. It is now the Commission’s policy statement, and not an explicit congressional mandate, that makes the Guidelines ranges binding under [section] 3582(c)(2). Id. (emphasis added) (internal citations omitted). Justice Stevens described the Commission’s power to promulgate policy statements such as section 1B1.10 as “the tiniest sliver of lawmaking power to tie the hands of a district court’s exercise of grace under [section] 3582(c)(2).” Id. at 841, 130 S.Ct. 2683; see also, • e.g., Erskine, 717 F.3d at 139, 140-41 (finding policy statements to the guidelines are not subject to the Administrative Procedure Act and Sentencing Reform Act sufficiently limits and informs Commission on how to exercise its delegated authority). 3. Brief History of Section IB 1.10 of the Sentencing Guidelines a. Inception Pursuant to the Supreme Court, section 1B1.10 of the Sentencing Guidelines is a “policy statement.” See Dillon, 560 U.S. at 817, 130 S.Ct. 2683 (stating section 1B1.10 is “the relevant policy statement” for section 3582(c)(2)). It is titled “Reduction in Term of Imprisonment as a' Result of Amended Guideline Range, Policy Statement.” U.S.S.G. § 1B1.10 (2014 ed.). Section 1B1.10 was first adopted on November 1, 1989. See U.S.S.G. § 1B1.10 (1989- ed.). It has been amended fifteen times since; first in 1990, and subsequently in 1991, 1992, 1993, 1994, 1995, 1997, 2000, 2003, 2007, twice in 2008, 2011, 2012, and most recently in 2014. See U.S.S.G. § 1B1.10 (2014 ed.). The Supreme Court decided' Dillon on June 17, 2010. Dillon, 560 U.S. at 817, 130 S.Ct. 2683. At that time, section 1B1.10 had no “special instruction” limiting time of release from prison. It read as follows: Reduction in Term of Imprisonment as a Result -of Amended Guideline Range (Policy Statement) (a) Authority.— (1) In General.■ — In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, the court may reduce the defendant’s term of imprisonment, as provided by 18 U.S.C. § 3582(c)(2). As required by 18 U.S.C'. § 3582(c)(2), any such reduction in the defendant’s term of imprisonment shall be consistent with this policy statement. (2) Exclusions. — A reduction in the defendant’s term of imprisonment is not consistent; with this policy statement and therefore is not authorized under .,18 U.S.C. § 3582(c)(2) if— .... (A) none of the amendments listed in subsection (c) is applicable to the defendant; oh ¡ (B) an amendment listed in subsection (c) does not have the effect of lowering the defendant’s applicable guideline range. (3) Limitation.- — -Consistent, with subsection1 (b), proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing of the defendant. , (b) Determination of Reduction in Term of Imprisonment.— (1) In General. — In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment under 18 . U.S.C. § 3582(c)(2) and this policy state-'inent is warranted, the court shall determine the amended guideline range that would have been applicable to- the defendant if the amendments) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced. In making such determination, the court shall substitute only the amendments listed in subsection (c) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected. (2) Limitations and Prohibition on Extent of Reduction.— (A) In General. — Except as provided in subdivision (B), the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement tó a term that is less than the minimum of the amended guideline range determined under subdivision '(1) of this subsection. (B) Exception. — If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to t