author: WESLEY, Circuit Judge:

text:
    Patrick PROCTOR, Plaintiff-Appellant, v. Lucien J. LECLAIRE, Jr., former Deputy Commissioner, Department of Corrections and Community Supervision, Brian Fischer, former Commissioner, Department of Corrections and Community Supervision, Anthony J. Annucci, Acting Commissioner, Department of Corrections and Community Supervision, Joseph Bellnier, Deputy Commissioner, Department of Corrections and Community Supervision, Defendants-Appellees.

    Docket No. 15-3673
    August Term 2016
    United States Court of Appeals, Second Circuit.
    Argued: September 21, 2016
    Decided: January 24, 2017

      Elliot Harvey SchatmeieR (Timothy Gil-man, on the brief), Kirkland & Ellis LLP, New York, NY, for Plaintiff-Appellant.
    BeiaN D. Ginsberg, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief), for Eric T. Schneid-erman, Attorney General of the State of New York, Albany, NY, for Defendants-Appellees.
    Before: KATZMANN, Chief Judge, WESLEY and HALL, Circuit Judges.

       The Clerk of Court is respectfully directed to amend the official caption in this case as it appears above.

   WESLEY, Circuit Judge:

Plaintiff-Appellant Patrick Proctor is an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), serving a sentence of thirty-two-and-one-half years to life for second-degree murder, robbery, and attempted escape. He is confined in the Special Housing Unit (the “SHU”), or, as it is better known, solitary confinement, where he has spent the last twenty-two years. Proctor spent his first nine years in the SHU under Disciplinary Segregation and the last thirteen years and counting under Administrative Segregation. Defendants-Appellees are current and former DOCCS administrators: Lucien J. LeClaire, Jr., a former Deputy Commissioner of DOCCS; Brian Fischer, a former Commissioner of DOCCS; Anthony J. Annucci, the current Acting Commissioner of DOCCS; and Joseph Bellnier, the current Deputy Commissioner of DOCCS (collectively, “Defendants”).

Proctor brings this action under 42 U.S.C. § 1983, alleging that his continuous confinement in the SHU under Administrative Segregation violates his Fourteenth Amendment rights to procedural and substantive due process of law. The District Court (Sharpe, J.) granted Defendants’ motion for summary judgment on Proctor’s procedural due process claim, holding that no reasonable juror could conclude that Proctor was denied meaningful periodic reviews of his Administrative Segregation commitment. The District Court also awarded summary judgment to Defendants sua sponte on Proctor’s substantive due process claim.

We conclude that the record presents triable issues of fact regarding Proctor’s procedural due process claim and that the District Court violated Federal Rule of Civil Procedure 56(f) in awarding summary judgment sua sponte on Proctor’s substantive due process claim. The judgment of the District Court is VACATED and the case is REMANDED for further proceedings.

BACKGROUND

I

A

In the DOCCS system, there are two relevant reasons for prison administrators to send an inmate to the SHU—Disciplin-ary Segregation and Administrative Segregation (“Ad Seg”). Disciplinary Segregation, as its name suggests, is designed to discipline an inmate found guilty of a “Tier III” violation, the most serious of three infraction levels in the DOCCS system. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 270.2, 270.3(a)(3), 301.2. A Disciplinary Segregation term lasts “for a designated period of time as specified by the hearing officer.” Id. § 301.2(a). Once that time elapses, the statute does not empower DOCCS to punish the inmate doubly for the same infraction by imposing further Disciplinary Segregation. See id.

Ad Seg serves a different purpose. As relevant here, Ad Seg removes an inmate from the general population when he “pose[s] a threat to the safety and security of the [prison] facility.” Id. § 301.4(b). Given the importance of that purpose, Ad Seg is flexible and accords DOCCS officials substantial discretion in deciding whether to impose an Ad Seg term. Ad Seg terms are open-ended and do not require that DOCCS predetermine when it will release an inmate—“[a]t any time when deemed appropriate [by DOCCS], an inmate may be evaluated and recommended for return to general population.” Id. § 301.4(e)

There is, however, a constitutional ceiling on that flexibility: To ensure that a state prison facility does not use Ad Seg as a pretext to commit an inmate to the SHU indefinitely, the Due Process Clause of the Fourteenth Amendment mandates that prison officials periodically review whether an inmate continues to pose a threat to the facility. Hewitt v. Helms, 459 U.S. 460, 477 n.9, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). New York effectuates that mandate by providing an inmate with an initial hearing within fourteen days of his confinement in Ad Seg, see N.Y. Comp. Codes R. & Regs. tit. 7, §§ 254.6, 301.4(a), and with reviews conducted pursuant to section 301.4(d) of the DOCCS regulatory code (“section 301.4(d) reviews”) every sixty days until he is returned to the general population, see id. § 301.4(d).

Section 301.4(d) review, as it manifests itself in this case, is a three-step process. First, a committee commonly referred to as the “Facility Committee,” consisting of “a representative of the facility executive staff, a security supervisor, and a member of the guidance and counseling staff,” convenes to review the inmate’s institutional record. Id. § 301.4(d)(1). The Facility Committee prepares and submits to the superintendent of the prison a report outlining “(i) reasons why the inmate was initially determined to be appropriate for [Ad Seg]; (ii) information on the inmate’s subsequent behavior and attitude; and (iii) any other factors that [the committee] believe[s] may favor retaining the inmate in or releasing the inmate from [Ad Seg]” and recommending whether to continue the inmate’s SHU term. Id.

Second, the superintendent forwards the Facility Committee’s report and any written response that the inmate submits to a “Central Office Committee” located at DOCCS headquarters in Albany, New York, for “Central Office Review.” The Central Office Committee, “consisting of a representative from the office of facility operations, a member of [the DOCCS] inspector general’s staff, and an attorney from the office of counsel,” reviews the Facility Committee’s report, develops its own recommendation whether the inmate continues to pose a safety threat to the facility, and forwards the paperwork to the deputy commissioner of DOCCS. Id. § 301.4(d)(3).

Third, the deputy commissioner reviews the two committees’ recommendations, as well as the inmate’s written statement when applicable, and decides whether to continue the inmate in Ad Seg. Id. Once the deputy commissioner makes a final decision, he or she notifies the superintendent of the inmate’s prison facility, who provides written notice to the inmate of the decision and its “reason(s),” and a statement notifying the inmate of his right to submit a written statement in the next section 301.4(d) review. Id. § 301.4(d)(4).

B

Proctor is currently held under Ad Seg in the SHU at the Upstate Correctional Facility. He is serving a state prison term of thirty-two-and-one-half years to life for second-degree murder and attempted escape and is first eligible for parole in 2024. Proctor previously served two other terms in state prison for convictions of, inter alia, burglary, robbery, and assault.

Proctor’s early years in prison (in the 1980s and early 1990s) were marked by violence and dangerous defiance of the law. Proctor stabbed an inmate. He “absconded from a job search from the Edgecombe Correctional Facility.” Proctor v. Kelly, No. 9:05-cv-0692, 2008 WL 5243925, at *14 (N.D.N.Y. Dec. 16, 2008) (“Proctor /”) (Suddaby, /.) (internal quotation marks omitted). He attempted to escape from a police vehicle by unlocking his handcuffs and kicking a window. See id. at *16. He professed a desire to be “more famous than Willie Bosket,” a notorious prisoner in DOCCS. Id. at *14. And he used a prison telephone to solicit (unsuccessfully) another person to firebomb a residence. Id. at *16.

Proctor’s defiance reached its apex in November 1994, when he and three inmate-accomplices executed an elaborate escape from Shawangunk Correctional Facility, a maximum security facility. DOCCS officials apprehended Proctor after he had been at large for about five hours. Disciplinary proceedings against Proctor for his escape resulted in a sentence of ten years of Disciplinary Segregation in the SHU.

Proctor’s behavior in the SHU under Disciplinary Segregation varied. For the first three years of his SHU term, he continued his defiance. Proctor managed to remove his handcuffs without permission while in his cell. See Proctor I, 2008 WL 5243925, at *14. He threw feces at DOCCS officials. See id. at *16. He twice set fire to his cell. Id. at *14, *16. He concealed a razor in his rectum. Id. He stabbed another inmate. Id. And he received disciplinary reports for “disorderly conduct, fighting, harassment, movement violations, refusing direct orders, and violent conduct.” Id. at *14. Later in his time in Disciplinary Segregation, however, Proctor’s behavior improved considerably. Defendants recount in their brief in this Court that “[b]ecause [Proctor] ... had periods of good behavior while in [the] SHU, over time, DOCCS gradually reduced his [Disciplinary Segregation] penalty to nine years and one month.” Appellees’ Br. 10.

On the day he was scheduled to be released from Disciplinary Segregation, DOCCS served Proctor with an “[Ad Seg] Recommendation” and retained him in the SHU. Proctor I, 2008 WL 5243925, at *10. DOCCS held a hearing shortly thereafter to determine if Proctor was appropriate for Ad Seg. See id. at *15. The hearing officer found that Proctor posed a threat to the prison facility based on Proctor’s criminal history and misbehavior, including his 1994 escape and his early behavior in Disciplinary Segregation. See id. at *10. As a result, as soon as Proctor’s Disciplinary Segregation ended, DOCCS. retained him in the SHU under Ad Seg, where he has spent the last thirteen years and remains today.

Proctor’s behavioral record in Ad Seg has not been spotless. In the first few years, Proctor received “minimal” disciplinary reports for possession of contraband,' lewd exposure, and “unhygienic acts, littering and harassment.” J.A. 334, 348. In the last decade, he has committed two unhygienic acts and possessed one unidentified weapon. At times, he can be argumentative with his fellow Ad Seg inmates.

But in the main, Proctor’s behavior has remained positive. He has gone long stretches—including one period of almost four years—without any disciplinary reports. See J.A. 320-34 (fourteen months without a disciplinary report), 342-91 (almost four years without a disciplinary report), 395-424 (twenty months without a disciplinary report), 429-55 (twenty months without a disciplinary report). Particularly in the last eight years, DOCCS has observed that Proctor has made “an extensive effort to minimize his disciplinary violations.” J.A. 374. He received just one disciplinary report between December 2011 and the close of the record in this case. DOCCS considered Proctor’s attitude “positive,” “co[-]operat[ive],” and “much improved.” J.A. 419, 506.

Defendants have without fail conducted a section 301.4(d) review for Proctor every sixty days he has been in Ad Seg. Each time, the Upstate Corrections Facility Committee (made up of a rotating panel of Upstate Corrections officials) convenes to review Proctor’s institutional record and make a recommendation. That committee forwards Proctor’s paperwork to the Central Office Committee (comprising a rotating panel of officials from DOCCS headquarters), which in turn reviews Proctor’s case and any written statement Proctor submits. The Central Office Committee then issues a recommendation, which to this point invariably has been that Proctor should remain confined in Ad Seg, and forwards the paperwork to the deputy commissioner of DOCCS. The deputy commissioner reviews the Facility and Central Office Committees’ reports and adopts then- recommendations. Finally, the Upstate Corrections Facility superintendent notifies Proctor of the deputy commissioner’s decision in a summary report.

II

The procedural history in this case involves multiple lawsuits and a prior appeal, mostly addressing procedural issues unrelated to our decision today. Much of that history is described in detail in Proctor v. LeClaire, 715 F.3d 402, 406-11 (2d Cir. 2013) (“Proctor III”). Here, we briefly summarize the prior history and lay out the present dispute.

Proctor brought his first pro se challenge to his Ad Seg commitment in 2005. Proctor I, 2008 WL 5243925. He brought a § 1983 claim alleging, inter alia, that various DOCCS officials, including then-Deputy Commissioner LeClaire, deprived him of procedural and substantive due process by confining him in Ad Seg as soon as his Disciplinary Segregation ended, and violated the Eighth Amendment by forcing him to live in inhumane conditions in the SHU. Id. at *1. In a brief at the summary-judgment stage, Proctor also claimed for the first time that defendants denied him due process by failing to conduct a single meaningful section 301.4(d) review to date. Id. at *1 & n.l. The district court granted summary judgment for the defendants. Id. at *1. Proctor’s appeal in this Court was dismissed as frivolous.

In 2009, Proctor instituted his second pro se challenge to his Ad Seg commitment, the action which is ultimate source of this appeal. Proctor v. LeClaire, No. 9:09-cv-1114, 2011 WL 2976911 (N.D.N.Y. July 21, 2011) (“Proctor II”) (Sharpe, /.). Again, Proctor brought a § 1983 claim against LeClaire asserting, inter alia, that his section 301.4(d) reviews since his initial commitment to Ad Seg were “sham[s], perfunctory[,] and meaningless” and performed as a pretext to confine Proctor in Ad Seg indefinitely. Id. at *1. The court understood Proctor to assert that LeClaire had deprived him of due process. See id. at *3-4; Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (requiring that courts interpret pro se litigants’ papers “liberally ‘to raise the strongest arguments they suggest’”) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). On Le-Claire’s motion, the District Court dismissed Proctor’s action on res judicata and collateral estoppel grounds. Proctor II, 2011 WL 2976911, at *3-4. This time, Proctor timely appealed and was appointed counsel. Proctor III, 715 F.3d at 411. We reversed without expressing a view on the merits of Proctor’s claim, vacated the dismissal, and remanded for further proceedings. Id. at 411-17.

On remand, Proctor, still aided by counsel, filed an amended complaint, the pleading in play in this appeal. That complaint added former Commissioner Fischer in his personal capacity and Acting Commissioner Annucci and Deputy Commissioner Bellnier in their personal and official capacities as defendants to this action. Proctor alleges that Defendants denied him procedural due process because none of the section 301.4(d) reviews while he was confined in Ad Seg has been “meaningful.” J.A. 67. Proctor supports his claim by arguing that, inter alia, Defendants “justified [his] continued confinement in Ad Seg by citing decades-old incidents, such as the 1994 escape, for which [he] already served his disciplinary sentence,” J.A. 68; that Defendants “used [his] consistent good behavior over the past several years against [him] as further justification to continue his confinement in Ad Seg,” J.A. 69 (emphasis omitted); and that many of Proctor’s reviews have consisted of “mere copying and pasting of language from one review to the next,” J.A. 71. Proctor concludes that “Defendants have used ... sham reviews of [his] [Ad Seg] as a pretext to indefinitely confine [him] in the SHU.” J.A. 76.

Proctor also alleges that his confinement in the SHU .for twenty-two uninterrupted years amounts to a deprivation of substantive due process. In light of physical and psychological injuries he claims to suffer, Proctor alleges that Defendants’ failure to undertake meaningful section 301.4(d) reviews “render[s] [his] indefinite confinement arbitrary and oppressive in a constitutional sense.” J.A. 77.

Defendants moved for summary judgment on Proctor’s procedural due process claim, arguing primarily that Proctor’s section 301.4(d) reviews comport with procedural due process.

To defend against Defendants’ motion, Proctor deposed witnesses from all three levels of his section 301.4(d) reviews. He began with Christopher DeLutis and Joseph Porcelli, members of Facility Committee panels that reviewed Proctor’s Ad Seg commitment. Both witnesses espoused the belief that, by and large, inmates who once posed an escape risk would never be appropriate candidates for release from Ad Seg. DeLutis testified that there is nothing any of the SHU inmates he has reviewed “could do for [him] to ... believe that they were no longer an escape risk,” J.A. 567, and that there is no “behavior that those specific inmates could exhibit that would make [him] change [his] mind about whether or not they were an escape risk,” J.A. 568. When asked if there was anything an inmate can ever do to overcome an escape history, DeLutis said, “All I know is ... in my experience, I never recommended anybody for release.” J.A. 572. Porcelli’s testimony was similar: He affirmed that he has “never dealt with a prisoner released from [Ad Seg] who has a history of escape.” J.A. 780-81. And when asked, “In your experience, once an inmate is placed in [Ad Seg], they’re never released to general population?” Porcelli responded, “[Y]es, that’s correct.” J.A. 770.

The general view expressed by DeLutis and Porcelli did not change in Proctor’s case—both indicated that, given his escape attempts, they believed Proctor would never be released from Ad Seg. When asked, “Is there anything that Proctor could ever do to change your opinion about whether or not he should be released [from Ad Seg]?” DeLutis answered, “No. I believe [Proctor] is right where he belongs.” J.A. 585. DeLutis ultimately admitted that Proctor’s behavior “plays no role in the decision whether or not to maintain him in [A]d [S]eg” because Proctor “is an escape risk.” Id. Porcelli again struck a similar tone, stating that “the only thing that Mr. Proctor could do for [Porcelli] to believe he’s not an escape risk” is “[g]et old” or “reach the end of his sentence.” J.A. 795. Even as Proctor’s counsel walked Porcelli through section 301.4(d) review reports demonstrating that Proctor had a positive disciplinary record for over five years, Porcelli stood by his decision to recommend continuation of Proctor’s Ad Seg term. He testified that Proctor “[s]till posed an escape risk” given “the amount of time he ha[s] to do” and that he had “[j]ust an inner feeling that ... given the opportunity, [Proctor] would try to [escape] again.” J.A. 800.

Porcelli raised one more issue of note: As a general matter, Porcelli confirmed that “[Ad Seg] is used for disciplinary reasons.” J.A. 797. He identified at least one instance in which Ad Seg “was used in place of discipline” because prison officials did not have enough evidence to “pin [a disciplinary infraction] on an individual that they suspected.” J.A. 771. He then admitted that “[Ad Seg] is being used for disciplinary reasons for Mr. Proctor.” J.A. 797. But see J.A. 931 (Miller: “Ad [S]eg is not to punish [Proctor].”).

Proctor next deposed Scott Kelly and Mark Miller, members of Central Office Committee panels that conducted some of Proctor’s section 301.4(d) reviews. Both recounted methodical Central Office Review procedures, marked by strong reliance on Facility Committee reports. Kelly stated that he places great weight on the Facility Committee because they are “boots on the ground with the inmate.” J.A. 635. Miller similarly stated that the Central Office Committee relies “very heavily” on the Facility Committee. J.A. 908. Miller testified that he does no preparation for meetings of the Central Office Committee and instead “reifies] on what is presented” by the Facility Committee. J.A. 904. Miller testified that he has never disagreed with a recommendation by the Facility Committee.

Proctor’s counsel also asked both Kelly and Miller whether, in their experiences, Ad Seg inmates who once posed an escape risk have any hope of being returned to the general population. Kelly identified one instance in which an inmate who had been committed to Ad Seg after escaping from a juvenile facility outside the DOCCS system was later released from the SHU. See J.A. 635 (“[That] [t]he initial incident ... occurred outside the [DOCCS system] was ... taken into account [when deciding whether to release the inmate from Ad Seg].”). Miller was unable, however, to identify any inmate placed in Ad Seg after escaping a DOCCS facility who had been returned to the general population. See J.A. 929.

Lastly, Proctor deposed Bellnier and LeClaire, the two deputy commissioners who conducted the final level of Proctor’s section 301.4(d) reviews. Bellnier’s recollection of his participation in the section 301.4(d) review process demonstrated significant reliance on both the Facility and Central Office Committees. Bellnier testified that in each section 301.4(d) review form he receives, the portion indicating his final decision has already been completed for him by an unknown member of the Central Office Committee. That is, someone completes the deputy commissioner’s portion of the section 301.4(d) review form before Bellnier reviews the Committees’ work, and Bellnier merely signs the bottom of the form to indicate his approval. Just as Miller has never disagreed with a recommendation by the Facility Committee, Bellnier testified that he has never disagreed with a recommendation by the Central Office Committee.

When asked about Proctor in particular, both Bellnier and LeClaire focused on Proctor’s decades-old escape history as stand-alone justification for continuing his Ad Seg. LeClaire stated, “I’m not sure any action that [Proctor] could do would counteract his criminal history” because “Proctor’s criminal history alone justifies] his retention in [Ad Seg].” J.A. 714. That Proctor’s escapes and other serious misbehavior occurred in the distant past was not “relevant” to LeClaire’s section 301.4(d) reviews. Id. Bellnier concurred, testifying that he has “formed” the opinion that Proctor “would be a threat to any facility that he was in in general population.” J.A. 488. Bellnier stated that he “ha[s] not been presented with” any type of behavior Proctor could exhibit to get out of Ad Seg and suggested that he would continue to keep Proctor in Ad Seg even if Proctor’s behavior remained positive for decades so long as Proctor did not accept responsibility for past actions. J.A. 501; see J.A. 503.

Proctor also sought production of the paperwork for each of his section 301.4(d) reviews since his initial Ad Seg commitment in 2003. Many of the section 301.4(d) reports reflect detailed evaluations of the appropriateness of Proctor’s continued Ad Seg term; occasionally, the reports contain specific objection-by-objection responses to Proctor’s written complaints. The reports also reveal, however, three issues of note: First, six of Proctor’s section 301.4(d) reviews, from December 2007 through October 2008, note that Proctor’s “[Ad Seg] status has a disciplinary aspect to it.” J.A. 368-74; see J.A. 364-66. Second, many of the reports are virtually identical to each other, with the exception of a few stray notations. See, e.g., J,A. 318-32 (over one year of virtually identical reports), 342-57 (over one year of virtually identical reports), 360-74 (over one year of virtually identical reports). And third, the Facility Committee’s reasoning in some of the reports is hard to understand: The committee wrote that “[Proctor’s] positive behavior and attitude with staff make him a high profile security concern,” that Proctor’s “superficial ] cooperation] on a day to day basis ... can not [sic] mask his resistance to authority,” and that Proctor’s good behavior was irrelevant because the SHU “provides little opportunity for infractions.” J.A. 360-66, 373, 419. When asked at his deposition to explain what the Facility Committee meant by these notations, Porcelli responded, “That’s a little weird, isn’t it_I can’t explain that.” J.A. 810.

In October 2015, the District Court granted Defendants’ motion for summary judgment. Proctor v. LeClaire, No. 9:09-cv-1114, 2015 WL 5971043 (N.D.N.Y. Oct. 14, 2015) (Sharpe, /.) (“Proctor IV”). The court held that although Defendants had deprived Proctor of a liberty interest by confining him in Ad Seg for more than 4,000 days, Proctor had received all the process due for that deprivation because Defendants provided Proctor with section 301.4(d) reviews that were, as a matter of law, meaningful. Id. at *3-5. The District Court then addressed Proctor’s substantive due process challenge, even though Defendants had not moved for summary judgment on that claim. Id. at *6. Without acknowledging it was raising summary judgment sua sponte. and providing the parties with notice, the District Court'concluded on its own that “[D]efendants did not exhibit conscious-shocking [sic] behavior because they were never made aware of the alleged devastating effects of Proctor’s continued placement in Ad Seg.” Id. As a result, the court held Defendants were entitled to summary judgment on Proctor’s substantive due process claim as well. Id.

This appeal followed.

DISCUSSION

“[W]e review de novo a grant of summary judgment,” affirming “only where ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Willey, 801 F.3d at 62 (quoting Fed. R. Civ. P. 56(a)). “Summary judgment is inappropriate when the admissible materials in the record 1 “make it arguable” ’ that the claim has merit.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (quoting Jasco Tools, Inc. v. Dana Corp. (In re Dana Corp.), 574 F.3d 129, 151 (2d Cir. 2009)). We construe the evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Willey, 801 F.3d at 62. “In reviewing the evidence and the inferences that may reasonably be drawn, [we] ‘may not make credibility determinations or weigh the evidence.... “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” ’ ” Kaytor, 609 F.3d at 545 (omission in original) (emphases omitted) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).

I

Proctor claims that he was denied procedural due process. To prevail, he must be able to demonstrate (1) that Defendants deprived him of a cognizable interest in “life, liberty, or property,” (2) without affording him constitutionally sufficient process. U.S. CONST, amend. XIV, § 1; Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The District Court held that Proctor’s SHU term in excess of 4,000 days gives rise to a cognizable liberty interest. See Sandin, 515 U.S. at 484, 115 S.Ct. 2293 (holding that an inmate has a cognizable liberty interest in freedom from “restraint which .,. imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life”). Because Defendants take no issue with that decision, the sole issue before us on this claim is whether Defendants afforded Proctor sufficient process.

Proctor raises a view of inmate procedural due process this Court has yet to address. While he acknowledges that Defendants have nominally afforded him sufficient process by conducting regular section 301.4(d) reviews, Proctor argues that those reviews have been in substance “hollow,” “perfunctory,” and meaningless. Appellant’s Br. 24. A meaningless section 301.4(d) review, Proctor asserts, is the functional equivalent of no review at all and therefore constitutionally insufficient. Proctor also argues that Defendants have violated the Due Process Clause by using Ad Seg as a means to punish him improperly and as a pretext to confine him in the SHU indefinitely.

Proctor’s argument raises two preliminary concerns: First, Proctor’s claim cannot serve as an appeal from his section 301.4(d) reviews. Procedural due process does not permit a court to review the substance of Defendants’ decision to confine Proctor in Ad Seg. See Graziano v. Pataki, 689 F.3d 110, 116 (2d Cir. 2012) (per curiam). We may not substitute our judgment for Defendants’, nor may we re-balance the section 301.4(d) criteria. See id. The Due Process Clause permits only an evaluation of whether Defendants’ method for coming to their Ad Seg determinations is sufficient. Second, we are mindful of the context in which this case arises and the deference we owe prison officials in carrying out their daily tasks. See Bell, 441 U.S. at 547-48, 99 S.Ct. 1861. “[0]ne cannot automatically apply procedural rules designed for free citizens in an open society ... to the very different situation ... in a state prison.” Wolff, 418 U.S. at 560, 94 S.Ct. 2963. With those observations in mind, we proceed to the merits of Proctor’s claim.

A

In Hewitt v. Helms, the Supreme Court described what process is due from prison officials making Ad Seg determinations. 459 U.S. at 474, 103 S.Ct. 864. The Court made clear that Ad Seg is appropriate when necessary to incapacitate an inmate who “represents a security threat” or to “complet[e] ... an investigation into misconduct charges.” Id. at 476, 103 S.Ct. 864. So long as prison officials seek to achieve one or both of those goals, they have wide latitude in the procedures they deploy. Before confining an inmate in Ad Seg, prison officials must provide “some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to [Ad Seg],” although not necessarily a full hearing. Id. -, accord Taylor v. Rodriguez, 238 F.3d 188, 192 (2d Cir. 2001). Once that has occurred, prison officials need only conduct “an informal, nonadversary evidentiary review” of whether the confinement is justified. Hewitt, 459 U.S. at 476, 103 S.Ct. 864. Their final Ad Seg decision may “turn[] largely on purely subjective evaluations and on predictions of future behavior.” Id. at 474, 103 S.Ct. 864 (internal quotation marks omitted).

Once an inmate has been confined in Ad Seg, Hewitt mandates that prison officials “engage in some sort of periodic review of the confinement” to verify that the inmate “remains a security risk” throughout his term. Hewitt, 459 U.S. at 477 n.9, 103 S.Ct. 864. Periodic Ad Seg reviews are also flexible and may be based on “a wide range of administrative considerations,” including but not limited to observations of the inmate in Ad Seg, “general knowledge of prison conditions,” misconduct charges, ongoing tensions in the prison, and any ongoing investigations. Id. The purpose of these periodic reviews is to ensure that the state’s institutional interest justifying the deprivation of the confined inmate’s liberty has not grown stale and that prison officials are not using Ad Seg as “a pretext for indefinite confinement of an inmate.” See id.

It is well established that whenever process is constitutionally due, no matter the context, “[i]t ... must be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); accord Parrott v. Taylor, 451 U.S. 527, 540, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Taylor, 238 F.3d at 193. Proctor’s claim seeks to measure what Hewitt requires for meaningful periodic review of Ad Seg. Guiding that analysis are the three Mathews factors—the government’s interest in limited fiscal and administrative burdens, the private interest in freedom from restraint, and “the risk of an erroneous deprivation of [the private] interest through the procedures used, and the probable value, if any,

of additional or substitute procedural safeguards.” 424 U.S. at 335, 96 S.Ct. 893.

The state’s interest in flexible Ad Seg review procedures—maintaining institutional security—is substantial. Institutional safety and security are perhaps a prison facility’s most important considerations. Bell, 441 U.S. at 546-47, 99 S.Ct. 1861 (quoting Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974)) (citing Jones v. N.C. Prisoners’ Labor Union, 433 U.S. 119, 129, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Procunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974)). Courts must preserve prison officials’ “free[dom] to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape.” Bell, 441 U.S. at 547, 99 5.Ct. 1861. “Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Id. But see Covino v. Vt. Dep’t of Corr., 933 F.2d 128, 130 (2d Cir. 1991) (per curiam) (“At some point ... the administrative necessity for involuntary lock-up begins to pale.”).

However, the private interest implicated by an extended and indefinite stay in Ad Seg is also weighty. Hewitt instructs that an inmate in Ad Seg who “was merely transferred from one extremely restricted environment to an even more confined situation” generally does not have a private interest “of great consequence.” See 459 U.S. at 473,103 S.Ct. 864. But Helms, the inmate in Hewitt, spent less than two months in Ad Seg awaiting his disciplinary hearing. Id. at 464-65, 103 S.Ct. 864. Proctor, by contrast, has spent thirteen years in Ad Seg with no release date in sight. Proctor’s interest in avoiding an indefinite Ad Seg term is surely substantial, more so than Helms’s interest in avoiding a temporary Ad Seg term awaiting a hearing. Compare N.Y. Comp. Codes R. & Regs, tit, 7, § 301.3(a)(1) (providing for limited admission to the SHU “in the case of an inmate who is awaiting initial appearance before or determination of a disciplinary hearing” as in the case of Helms), with id. § 301.4 (providing for admission to the SHU under Ad Seg as in this case). We are not alone in this view. The Third Circuit has similarly concluded that an inmate who has spent an extended period of time in Ad Seg and whose term is “potentially limitless” has “a more significant liberty interest for due process analysis than that attributed to [Helms],” Mims v. Shapp, 744 F.2d 946, 951-52 (3d Cir. 1984),

In light of those counterbalancing interests, we believe that meaningful periodic reviews of Ad Seg must at least satisfy the following criteria:

First, the reviewing prison officials must actually evaluate whether the inmate’s continued Ad Seg confinement is justified. See Hewitt, 459 U.S. at 477 n.9, 103 S.Ct. 864. It is not sufficient for officials to go through the motions of nominally conducting a review meeting when they have developed a pre-review conclusion that the inmate will be confined in Ad Seg no matter what the evidence shows. Review with a pre-ordained outcome is tantamount to no review at all.

Second, the reviewing officials must evaluate whether the justification for Ad Seg exists at the time of the review or will exist in the future, and consider new relevant evidence as it becomes available. It is inherent in Hewitt’s use of the term “periodic” that ongoing Ad Seg reviews may not be frozen in time, forever rehashing information addressed at the inmate’s initial Ad Seg determination. Cf. Proctor III, 715 F.3d at 413 (“[T]he initial authorization for confinement and the subsequent decisions to continue confinement—although plainly involving considerations that overlap—are not ... the same transaction.” (internal quotation marks omitted)). Rather, reviews must take into account prison conditions and inmate behavior as they change over time; those changes may modify the calculus of whether the inmate presents a current threat to the safety of the facility. The periodic Ad Seg review test announced by the Hewitt Court is not whether the confined inmate was a threat to the facility when he was confined initially; it is whether the inmate “remains a security risk” on the .date of the periodic review. See 459 U.S. at 477 n.9, 103 S.Ct. 864 (emphasis added). This is not to say that prison officials are barred from according significant weight to events that occurred in . the past. Neither do we suggest that recent events categorically ought to be more salient in periodic reviews than those that occurred long ago. We conclude merely that prison officials must look to the inmate’s present and future behavior and consider new events to some degree to ensure that prison officials do not use past events alone to justify indefinite confinement. See id.

Thud and finally, the reviewing officials must maintain institutional safety and security (or another valid administrative justification) as their guiding princi-pies throughout an inmate’s Ad Seg term. SHU confinement that began for proper Ad Seg purposes may not morph into confinement that persists for improper purposes. The state is entitled to the procedural flexibility that Hewitt allows because of its manifest interest in maintaining safe detention facilities and other similar administrative concerns; “the Mathews balancing test tips in favor of the inmate’s liberty interest” when a state seeks to impose discipline. Patterson, 761 F.2d at 891. The state may not use Ad Seg as a charade in the name of prison security to mask indefinite punishment for past transgressions.

Our resolution of this matter is in accord with the efforts of four of our sister circuits. In Kelly v. Brewer, 525 F.2d 394 (8th Cir. 1975), the Eighth Circuit observed that the essential characteristic that distinguishes Ad Seg from Disciplinary Segregation is that Ad Seg “looks to the present and the future” rather than punishing an inmate for the past. Id. at 399-400. The court reasoned that periodic Ad Seg decisions therefore must be based on “valid” justifications (such as institutional safety and escape prevention) that are “not only ... valid at the outset but ... continue to subsist during the period of the segregation.” Id. at 400. And to ensure that this mandate is followed, the court held that “where an inmate is held in segregation for a prolonged or indefinite period of time due process requires that his situation be reviewed periodically in a meaningful way and by relevant standards to determine whether he should be retained in segregation or returned to [general] population.” Id. The Third Circuit followed suit in Mims v. Shapp. Recognizing that “[t]he validity of the government’s interest in prison safety and security as a basis for restricting the liberty rights of an inmate subsists only as long as the inmate continues to pose a safety or security risk,” the court understood the Fourteenth Amendment to require the court to ensure that “periodic review does not become simply a sham.” 744 F.2d at 953-54. In Toevs v. Reid, 685 F.3d 903 (10th Cir. 2012), the Tenth Circuit agreed, holding that periodic Ad Seg reviews “must be meaningful” and “cannot be a sham or pretext.” Id. at 912. And in Selby v. Caruso, 734 F.3d 554 (6th Cir. 2013), the Sixth Circuit held that due process requires periodic Ad Seg decisions to be supported by “some evidence.” Id. at 559 (quoting Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)).

B

Proctor has raised triable factual questions as to whether his section 301.4(d) reviews have been constitutionally meaningful.

DOCCS officials’ own statements raise serious doubts about whether they have conducted Proctor’s periodic reviews with the outcomes pre-ordained. We know from DeLutis and Porcelli, the “boots on the ground” whose opinions DOCCS officials accord significant weight, see J.A. 635, that Ad Seg may function as the equivalent of indefinite SHU confinement, even though section 301.4(d) reviews are nominally being conducted on a regular basis. According to the deponents, the standard DOCCS practice is that an inmate “never” gets out once he has been placed in Ad Seg. See J.A. 572, 770. No witness to date has been able to identify a single inmate confined in Ad Seg after an escape from a DOCCS facility who was later returned to the general population. The Due Process Clause, of course, commands a process, not a particular result. But, when process is nominally afforded to inmates over a significant period of time without any hint of success it may raise questions in a reasonable jury’s mind about whether that process has been meaningful as it relates to Proctor.

Defendants’ statements indicate that Proctor’s section 301.4(d) reviews in particular are no more than hollow formalities. LeClaire believes that Proctor’s “criminal history alone” can support continuing his Ad Seg term. J.A. 714. If that were true, it would obviate the need to conduct periodic reviews of Ad Seg and make a mockery of Hewitt’s admonition against indefinite confinement, as it would permit the continuation of Ad Seg based solely on past events that will never change. Porcelli’s descriptions of his section 301.4(d) reviews confirmed that he and LeClaire are of the same mind. Proctor’s counsel walked Por-celli through five years of reports that indicate Proctor’s behavior in Ad Seg has been genuinely positive, and still Porcelli insisted that Proctor should be held in Ad Seg simply because he escaped in 1994.

As for Bellnier, it is unclear what if any standard he uses to evaluate Proctor. A reasonable jury could justifiably view Bell-nier’s testimony as the illustration of a rubber stamp. It appears that the portion of the section 301.4(d) review report indicating the deputy commissioner’s final decision is filled out for Bellnier by a Central Office Committee member before Bellnier conducts any review himself, and that Bellnier merely signs the bottom of the form. Bellnier admitted that he has never changed the Central Office Committee member’s decision. Perhaps that may be why Bellnier failed to respond adequately when asked by Proctor’s counsel to articulate a reason why Defendants have continued to hold Proctor in Ad Seg. Bellnier suggested that Proctor might not be released from Ad Seg even if he did everything asked of him; that is, even if Proctor’s “attitude with staff and inmates improved considerably and he exhibited no negative behavior over a considerable period of time and he accepted responsibility for past crimes and misconduct,” Bellnier still might not view him as appropriate for release to the general population. J.A. 505.

One comes away from these depositions with nagging skepticism about whether there is anything Proctor could ever do to be released from Ad Seg. And indeed when Proctor’s counsel asked DeLutis that very question, DeLutis made clear that the answer is no, stating that there is nothing that Proctor can do that would convince DOCCS officials to release him. See J.A. 585. DeLutis affirmed that he disregards evidence of Proctor’s recent behavior when conducting section 301.4(d) reviews because that information has no effect given Proctor’s two-decade-old escape. See J.A. 585-86. It is as if DOCCS officials are not just moving the goalposts on Ad Seg inmates like Proctor—there are no goalposts at all. That cannot satisfy Hewitt.

The paper evidence raises additional questions about whether Proctor’s section 301.4(d) reviews have been designed to evaluate or to perpetuate his Ad Seg term. Much of the section 301.4(d) review paperwork is repetitive and rote. The years of virtually identical reports may suggest to a reasonable jury that Proctor’s reviewers treated the process as satisfied by boilerplate explanations instead of a forthright review. Cf. Sourbeer v. Robinson, 791 F.2d 1094, 1101 (3d Cir. 1986) (finding repeated eareless errors in documentation and rote application of Ad Seg’s “purported justifications” evidence of meaningless reviews). The review paperwork also contains inex-plicáble logic that raises red flags about whether the underlying reviews were conducted genuinely. It is hard to understand why the Facility Committee concluded that Proctor’s good behavior, which served as a legitimate basis to reduce his time in the SHU for Disciplinary Segregation, somehow morphed in the context of his Ad Seg determination to indicate that he remained a security risk. No witness explained how the Facility Committee reached that conclusion. See J.A. 810 (Porcelli: “I can’t explain that.”). Defendants’ interpretation of Proctor’s daily cooperation with prison officials in Ad Seg as “superficial” and an attempt to “mask his resistance to authority” is bizarre and unsupported. J.A. 360-66. And Defendants’ dismissal of Proctor’s good behavior as irrelevant because the SHU is so restricting that it precludes opportunities for misbehavior is patently circular. Cf. Williams v. Hobbs, 662 F.3d 994,1002 (8th Cir. 2011) (relying on prison warden’s attribution of inmate’s “years of incident-free conduct to his isolation from the general population” as evidence of meaningless reviews). These unusual comments in the paperwork that continues to justify Proctor’s Ad Seg may cause a reasonable jury to question the fulsomeness of their authors’ analyses.

It is important to recognize that not all of the evidence points in favor of Proctor. Some of the evidence could lead a reasonable jury to conclude, as Defendants urge, that DOCCS officials have analyzed Proctor’s good behavior in their section 301.4(d) reviews and “found it to be outweighed by other facts,” specifically Proctor’s multiple escape attempts and violent acts towards other prisoners. Appellees’ Br. 30. The deposition transcripts and section 301.4(d) review reports contain a substantial amount of evidence that a jury may view as demonstrating DOCCS officials’ methodical approach to conducting periodic Ad Seg reviews, including but not limited to the testimony of Kelly and Miller who recounted measured review procedures and the reports’ objection-by-objection responses to Proctor’s written statements. It is not our role on review of a grant of summary judgment, however, to weigh that evidence against the evidence favorable to Proctor’s claim. See Kaytor, 609 F.3d at 545. It is no answer to the evidence Proctor has amassed to point to countervailing evidence. That Proctor has produced evidence to raise a fair question about the procedural sufficiency of his reviews is all that is required today.

In sum, periodic reviews of Ad Seg satisfy procedural due process only when they are meaningful. Reviews are meaningful only when they involve real evaluations of the administrative justification for confinement, they consider all of the relevant evidence that bears on whether that administrative justification remains valid, and they ensure that Ad Seg is used as neither a form of punishment nor a pretext for indefinite confinement. Proctor has produced sufficient evidence to raise factual questions about whether his section 301.4(d) reviews have met that standard.

II

Proctor also argues that the District Court’s sua sponte grant of summary judgment for Defendants on his substantive due process claim violated Federal Rule of Civil Procedure 56(f). Rule 56(f) permits a court to grant summary judgment sua sponte only “[ajfter giving notice and a reasonable time to respond.” Fed. R. Civ. P. 56(f); Willey, 801 F.3d at 62. The District Court did not notify Proctor or Defendants that it intended to consider substantive due process on its own motion. Without notice of the District Court’s motion, of course, neither party had a “reasonable time to respond” to it. See Fed. R. Civ. P. 56(f); Willey, 801 F.3d at 62. Indeed, Defendants concede that they failed to move for summary judgment on substantive due process and that the District Court violated Rule 56(f) in granting them relief. Accordingly, we vaeate the District Court’s summary judgment decision with regard to substantive due process. We express no opinion as to the merits of this claim.

CONCLUSION

We have considered the parties’ remaining arguments and find them to be without merit. The judgment of the District Court dated October 14, 2015, is hereby VACATED in its entirety and the case is REMANDED to the District Court for further proceedings.

      . In other cases, section 301.4(d) review is streamlined into a process where officials from the prison facility, including the superintendent, review an inmate’s case and render a final decision without the input of the DOCCS headquarters. Id. § 301.4(d)(2).

      . One DOCCS official described Shawangunk as “a maxi max” facility that "shouldn’t be escapable from.” J.A. 929.

      . Although SHU conditions under Ád Seg and under Disciplinary Segregation are similar, - DOCCS’s affords Ad Seg inmates a few additional privileges, such as access to playing cards, headphones, up to ten pieces of reading material, ten additional personal photos, stamps, and a small bottle of skin cream. See N.Y. Comp. Codes R. & Regs. tit. 7, § 303,2.

      . Defendants ask us to apply "a presumption of regularity” that they claim "attaches to the actions of government agencies[,] such as DOCCS,” and "public officers,” such as Defendants. Appellees’ Br. 22-23 (internal quotation marks omitted) (quoting U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10, 122 S.Ct. 431, 151 L.Ed.2d 323 (2001); United States v. Chemical Found., 272 U.S. 1, 14, 47 S.Ct. 1, 71 L.Ed. 131 (1926)). While we afford prison officials “wide-ranging deference in the adoption and execution of policies” designed to promote institutional safety, Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), Defendants cite no case, and we cannot find one, that applies such a presumption in a constitutional challenge to state, prison officials’ periodic review of Ad Seg. We decline to do so today.

      . When the "sole purpose of confinement is punishment,” prison officials must provide more robust procedural protections. Patterson v. Coughlin, 761 F.2d 886, 890-91 (2d Cir.1985) (citing Wolff, 418 U.S. at 558, 94 S.Ct. 2963); see also Bolden v. Alston, 810 F.2d 353, 357 (2d Cir.1987) (“[T]he level of procedural protection differs according to the puipose of the confinement.”).

      . Tellingly, Helms’s fifty-one-day Ad Seg term likely would not require any constitutional process today, See Wilkinson v. Austin, 545 U.S. 209, 229, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005) ("Sandin abrogated ... Hewitt's methodology for establishing [a] liberty interest. ...”); Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir. 1999) (holding 101-day SHU term ordinarily does not give rise to a liberty interest after Sandin).

      . Accord Tavares v. Amato, 954 F.Supp.2d 79, 95 (N.D.N.Y. 2013); Smart v. Goord, 441 F.Supp.2d 631, 641-42 (S.D.N.Y. 2006); Edmonson v. Coughlin, 21 F.Supp.2d 242, 252-54 (W.D.N.Y. 1998); McClary v. Kelly, 4 F.Supp.2d 195, 213 (W.D.N.Y. 1998); Giano v. Kelly, 869 F.Supp. 143, 149-51 (W.D.N.Y. 1994).

      . Although the Facility Committee is empowered fay statute to issue only a recommendation, not a final decision, on whether to continue an inmate’s Ad Seg term, the testimony of Facility Committee members DeLutis and Porcelli may carry significant weight at trial. The Facility Committee is more powerful in practice than it appears on paper. Central Office Committee members Kelly and Miller, as well as Deputy Commissioner Bellnier, all testified that they accord Facility Committee recommendations substantial weight. In fact, Kelly, Miller, and Bellnier all affirmed that they have never disagreed with the recommendation of the Facility Committee.

      . It is important to note that Proctor has not just pointed to evidence of his good behavior. If he had merely done that and Defendants countered that they had reviewed and either genuinely discredited his good behavior or found that his poor behavior outweighed it, then Proctor’s procedural due process claim would amount to an impermissible substantive appeal of his section 301.4(d) reviews. See Graziano, 689 F.3d at 116. Here, Proctor has produced evidence of his good behavior and evidence that DeLutis may have failed to consider that information. That raises constitutional concerns.

      . Proctor also argues (unsuccessfully) that whether Defendants have used Ad Seg to impose impermissible punishment is a triable issue. If Defendants have confined Proctor in Ad Seg solely to discipline him then section 301.4(d) reviews, which purport to comply with Hewitt but not with the heightened procedures required to impose Disciplinary Segregation, are insufficient as a matter of law. See Patterson, 761 F.2d at 891. We have made clear, however, that compliance with Hewitt satisfies due process where prison officials confine an inmate in the SHU for "administrative reasons” that are sufficient standing alone, even if the officials also intend the confinement "as a form of punishment.” Sher v. Coughlin, 739 F.2d 77, 83 (2d Cir. 1984); see Deane v. Dunbar, 777 F.2d 871, 877 (2d Cir. 1985). Proctor’s evidence, even when viewed in a light most favorable to him, demonstrates such a situation. For example, while Porcelli testified that "[Ad Seg] is being used for disciplinary reasons for Mr. Proctor,” J.A. 797, he also stated repeatedly that the "[n]umero uno” justification for Proctor's Ad Seg term continues to be that Proctor remains an escape risk. J.A. 802. Similarly, although some of Proctor’s review reports state that Proctor’s "[Ad Seg] status has a disciplinary aspect to it,” they do not prove that discipline is the essential purpose for his confinement. J.A. 368-74.


source: Caselaw Access Project

author: DRONEY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Ferney Dario RAMIREZ, Defendant-Appellant, Freddy Arellano, Defendant.

    No. 15-2570-cr
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: September 2, 2016
    Decided: January 25, 2017

      Yelena KonaNova (Sanford I. Weisburst, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, New York, New York, for Defendant-Appellant Ferney Dario Ramirez.
    Amanda Houle, Assistant United States Attorney (Margaret Garnett, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellee.
    Before: RAGGI, CHIN, and DRONEY, Circuit Judges.

         The Clerk of Court is directed to amend the caption as set forth above.

   DRONEY, Circuit Judge:

In May 2004, Defendant-Appellant Fer-ney Dario Ramirez pleaded guilty to one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). The district court calculated Ramirez’s Guidelines range as 360 months’ to life imprisonment, and sentenced Ramirez to a term of 210 months’ imprisonment. In 2015, Ramirez moved for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that Amendments 782 and 788 of the Sentencing Guidelines lowered his applicable Guidelines range. The district court acknowledged that Amendment 782 reduced Ramirez’s Guidelines range to 324 to 405 months’ imprisonment but denied the motion because a 2011 Amendment to U.S.S.G. § lB1.10(b) prohibited a sentence reduction where the defendant’s initial sentence was below the minimum of the amended Guidelines range. On appeal, Ramirez argues that application of § lB1.10(b) to prohibit a sentence reduction violates the Ex Post Facto Clause of the United States Constitution. We affirm the district court’s order.

BACKGROUND

A. Initial Sentencing

On September 16, 2003, Ramirez was charged in a one-count indictment with conspiracy to possess with intent to distribute five kilograms or more of cocaine. On May 6, 2004, Ramirez pleaded guilty pursuant to a plea agreement that stipulated to a Guidelines range of 151 to 188 months’ imprisonment. Prior to sentencing, however, Ramirez made a motion to withdraw from his plea agreement in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), so that he could argue for a sentence below the range stipulated in the plea agreement. The district court granted the motion and held a Fatieo hearing on March 30, 2006, to resolve factual disputes between the parties regarding, inter alia, the amount of drugs involved and Ramirez’s acceptance of responsibility, ultimately concluding that more than 150 kilograms of cocaine were involved in the offense and that Ramirez was not entitled to credit for acceptance of responsibility.

The district court proceeded to sentencing on May 25, 2006. Pursuant to U.S.S.G. § 2Dl.l(c)(l), the district court calculated a base offense level of 38 based on the quantity of drugs involved in the offense. The district court applied a two-level enhancement under U.S.S.G. § 3B1.1 because Ramirez was an organizer, leader, or supervisor of the criminal activity, and another two-level enhancement under U.S.S.G. § 3C1.1 because Ramirez attempted to obstruct justice by influencing a witness. After refusing to grant various downward departures sought by Ramirez, the court calculated his adjusted offense level as 42. Given Ramirez’s criminal history category of II, the district court determined that the applicable Guidelines range was 360 months’ to life imprisonment.

The district court noted that the situation was “highly unusual” because the parties had initially stipulated to a 151-to-188-month Guidelines range before Ramirez withdrew from the plea agreement. Joint App’x at 74-75. The court also acknowledged that, despite his withdrawal from the plea agreement, Ramirez’s guilty plea “did in fact save the government and the public substantial resources.” Id. at 75. After considering the 18 U.S.C. § 3553(a) factors, the district court imposed a below-Guidelines sentence of 210 months’ imprisonment, followed by five years of supervised release.

Ramirez subsequently appealed his conviction and sentence, arguing that the district court erred in granting his motion to withdraw from the plea agreement and that his counsel was ineffective for advising him to withdraw. We affirmed the district court’s judgment and dismissed Ramirez’s ineffective-assistance claim without prejudice. See United States v. Ramirez, 267 Fed.Appx. 11, 11, 13 (2d Cir. 2008) (summary order). On May 6, 2011, the district court denied Ramirez’s motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See Ramirez v. United States, No. 09-cv-4397 (S.D.N.Y. May 6, 2011), ECF No. 9. We denied a Certificate of Appealability and dismissed Ramirez’s subsequent appeal. Ramirez v. United States, No. 11-2843 (2d Cir. Feb. 22, 2012), ECF No. 37.

B. Subsequent Changes in the Sentencing Guidelines

Under the 2002 Sentencing Guidelines in effect at the time of Ramirez’s offense, as well as the 2005 Guidelines in effect when Ramirez was sentenced, district courts could generally reduce sentences in sentence-modification proceedings even where the initial sentence was below the low-end of the amended Guidelines range:

In determining whether, and to what extent, a reduction in the term of imprisonment is warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2), the court should consider the term of imprisonment that it would have imposed had the amendments) to the guidelines listed in subsection (c) been in effect at the time the defendant was sentenced, except that in no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served.

U.S.S.G. § lB1.10(b) (2002 ed.); accord id. § lB1.10(b) (2005 ed.). In addition, the Application Notes to that section confirmed that “the sentencing court has the discretion to determine whether, and to what extent, to reduce a term of imprisonment under this section.” Id. § lB1.10(b) cmt. n.3 (2002 ed.); id. § lB1.10(b) cmt. n.3 (2005 ed.).

In 2011, the Sentencing Commission adopted Amendment 759. That amendment prohibited district courts from imposing a reduced sentence that is below the minimum of the amended Guidelines range, unless the Government originally moved for a below-Guidelines sentence due to the defendant’s substantial assistance to the authorities under U.S.S.G. § 5K1.1:

(A) Limitation.—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 to a term that is less than the minimum of the amended guideline range determined under subdivision (1) of this subsection.
(B) Exception for Substantial Assistance.—If the term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing pursuant to a government motion to reflect the defendant’s substantial assistance to authorities, a reduction comparably less than the amended guideline range determined under subdivision (1) of this subsection may be appropriate.

Id. § lB1.10(b)(2) (2011 ed.). The Amendment also added Application Note 6, which stated that “the court shall use the version of this policy statement that is in effect on the date on which the court reduces the defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2).” Id. § 1B1.10 cmt. n.6 (2011 ed.).

In 2014, the Sentencing Commission issued Amendment 782 to the Guidelines, which reduced offense levels for certain controlled substance offenses by two levels. In addition, the Sentencing Commission adopted Amendment 788, which stated that Amendment 782 should be applied retroactively.

C. Sentence-Reduction Proceedings

On April 30, 2015, pursuant to 18 U.S.C. § 3582(c)(2), Ramirez made a pro se motion to the district court for a reduction of his sentence under Amendment 782. In response, the Government pointed out that Amendment 782 only lowered Ramirez’s applicable Guidelines range to 324 to 405 months’ imprisonment, and that Amendment 759 therefore rendered him ineligible for a sentence reduction because his original sentence of 210 months was below the minimum of the amended Guidelines range. Ramirez argued, however, that the district court “should utilize the language provided by the Sentencing Commission at the time of his original sentencing in 2006.” Joint App’x at 102.

On July 23, 2015, the district court denied Ramirez’s § 3582(c)(2) motion. The district court stated that Ramirez’s amended Guidelines range after application of Amendment 782 was 324 to 405 months’ imprisonment. The court then followed U.S.S.G. § lB1.10(b)(2)(A)’s prohibition, ruling that “[b]ecause the Court imposed a sentence that is below the minimum Guideline of the amended Guidelines Range, and because the Court’s initial variance was not based on the defendant’s substantial assistance to the Government, the defendant is not eligible for a reduction in sentence.” Id. at 111-12.

DISCUSSION

On appeal, Ramirez argues that application of Amendment 759 to prohibit his sentence-reduction request violated the Ex Post Facto Clause of the United States Constitution. We review de novo questions of law regarding a district court’s decision to grant or deny an 18 U.S.C. § 3582(c)(2) motion. United States v. Johnson, 732 F.3d 109, 113 (2d Cir. 2013).

Article I of the United States Constitution provides that neither Congress nor any state shall pass an “ex post facto Law.” U.S. Const, art. I, § 9, cl. 3; id. art. I, § 10, cl. 1. The Ex Post Facto Clause applies, inter alia, to government actions that “make[] more burdensome the punishment for a crime, after its commission.” Barna v. Travis, 239 F.3d 169, 171 (2d Cir. 2001) (internal quotation marks omitted); see also Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (stating that the Ex Post Facto Clause applies to laws that “inflict[] a greater punishment! ] than the law annexed to the crime, when committed”). A criminal or penal law is ex post facto when it is: (1) retrospective, and (2) more onerous than the law in effect on the date of the offense. Weaver v. Graham, 450 U.S. 24, 30-31, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).

A. Retrospectivity

In Weaver, the Supreme Court explained that the “critical question” in determining whether a law is retrospective is “whether the law changes the legal consequences of acts completed before its effective date.” Id. at 31, 101 S.Ct. 960. Thus, the Ex Post Facto Clause attaches when a law “applies to prisoners convicted for acts committed before the provision’s effective date.” Id.

Here, the Government does not contest that Amendment 759 applies retrospectively to Ramirez. Indeed, Amendment 759’s change to § 1B1.10 potentially affects the sentence ultimately served for an offense committed prior to the adoption of the Amendment and is therefore retrospective. See United States v. Kruger, 838 F.3d 786, 790 (6th Cir. 2016) (“There is no question that Amendment 759 applies to prisoners convicted for acts committed before the provision’s effective date” (internal quotation marks omitted)). Even construing this guideline change as retrospective, however, Ramirez’s challenge fails under Weaver’s second prong.

B. “More Onerous Than the Law in Effect on the Date of the Offense”

Ramirez argues that the 2014 version of § lB1.10(b) was more onerous than the law in effect on the date of his offense because it made him ineligible for a sentence reduction pursuant to Amendment 782.

Analysis of this element focuses on whether the change in law “presents a ‘sufficient risk of increasing the measure of punishment attached to the covered crimes.’ ” Peugh v. United States, — U.S. —, 133 S.Ct. 2072, 2082, 186 L.Ed.2d 84 (2013) (quoting Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000)); see also Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 508-09, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (stating that a law creating a mere “speculative, attenuated risk of affecting a prisoner’s actual term of confinement” does not violate the Ex Post Facto Clause).

a. Applicability of the Ex Post Facto Clause to § 3582(c)(2) Proceedings

The Government asserts that, by their nature, § 3582(c)(2) sentence-reduction proceedings cannot increase punishment and, therefore, the reduction limit imposed by. amended § lB1.10(b) on such proceedings cannot be deemed more onerous than the law on the date of the , offense. Indeed, several of our sister circuits have adopted this position. See infra at Part B.b. Ramirez contends that this conclusion is contrary to the Supreme Court’s decisions in Weaver and Lynce v. Mathis, 519 U.S. 433, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997).

In Weaver, the petitioner had pleaded guilty to the state crime of second-degree murder. 450 U.S. at 25, 101 S.Ct. 960. On both the date of the offense and the date of sentencing, there was a state statute in place that provided a formula for deducting “gain-time credits” from the incarcera-tory terms of prisoners who committed no infractions while serving their sentences and faithfully performed tasks assigned to them by prison authorities. Id. at 26, 101 S.Ct. 960. After the petitioner’s sentencing, the state legislature enacted a new formula reducing the gain-time credits that prisoners could receive. Id. When the state applied that formula to the petitioner, he challenged the new law as ex post facto. Id. at 27,101 S.Ct. 960.

The Supreme Court concluded that the new gain-time formula was more onerous than the law in effect on the date of the petitioner’s offense and therefore violated the Ex Post Facto Clause. Id. at 35-36,101 S.Ct. 960. It reasoned that “reduction in gain-time accumulation lengthen[ed] the period that someone in petitioner’s position must spend in prison.” Id. at 33, 101 S.Ct. 960. Because “the new provision constrict[ed] the inmate’s opportunity to earn early release,” it made more onerous the punishment of crimes committed before its enactment. Id. at 35-36, 101 S.Ct. 960.

Similarly, in Lynce, the Supreme Court held that retroactive cancellation of certain state gain-time credits violated the Ex Post Facto Clause. In 1986, the petitioner pleaded guilty to a state charge of attempted murder. 519 U.S. at 435,117 S.Ct. 891. While imprisoned, he accumulated a number of gain-time credits under Florida state law, including 1,860 days in “provisional credits.” Id. at 435-36,117 S.Ct. 891. As a result, the petitioner was released from prison in 1992. Id. at 435, 117 S.Ct. 891. Shortly after his release, however, the Florida legislature enacted a law that retroactively canceled provisional credits for certain inmates, including the petitioner. Id. at 436, 117 S.Ct. 891. As a result, the petitioner was rearrested and returned to custody to complete his sentence. Id.

In analyzing whether this retroactive cancellation of provisional credits violated the Ex Post Facto Clause, the Supreme Court stated that the “essential inquiry” was whether that cancellation “had the effect of lengthening [the] petitioner’s period of incarceration.” Id. at 442-43, 117 S.Ct. 891. The Court cited Weaver, and explained that the removal of early-release provisions “can constitute an increase in punishment.” Id. at 445, 117 S.Ct. 891. Thus, even though the cancellation of the provisional credits merely made the petitioner ineligible for early release, the Court held that the statute violated the Ex Post Facto Clause. Id. at 447, 117 S.Ct. 891; see also Sash v. Zenk, 439 F.3d 61, 65 (2d Cir. 2006) (“The ex post facto doctrine applies to any penal enactment that retrospectively disadvantages a criminal offender, whether or not it increases a criminal sentence.”).

In sum, Weaver and Lyme hold that the Ex Post Facto Clause prohibits certain post-sentencing limitations on reductions of sentences. As we discuss in the next section, however, application of the 2014 Guidelines to Ramirez on his § 3582(c)(2) motion does not fall into the same category as the laws at issue in Weaver and Lynce because it did not lengthen his prison sentence. Accordingly, Ramirez’s ex post facto challenge fails.

b. The “One-Book” Rule

Ramirez’s argument on appeal necessarily requires the application of provisions from different Guidelines manuals from different years. He claims that the law was made more onerous because the version of § IB 1.10(b) contained in the 2005 Guidelines Manual—which permitted district courts to reduce sentences in § 3582(c)(2) proceedings belpw the minimum of the amended range—should have been applied to a sentencing reduction authorized by Amendment 782, which took effect in 2014. Controlling precedent, however, precludes such reasoning. It requires us to compare the entire Guidelines Manual in effect at the time of the initial sentencing—which did not include Amendment 782—to the entire Guidelines Manual in effect at the time of Ramirez’s § 3582(e)(2) proceeding—in which Amendment 782 authorized a guideline reduction but Amendment 759 limited the extent of such a reduction.

Specifically, in United States v. Keller, 58 F.3d 884 (2d Cir. 1995), abrogated on other grounds by United States v. Mapp, 170 F.3d 328, 338 n.15 (2d Cir. 1999), this court considered Guidelines that at the time of the defendant’s sentencing (the 1993 Guidelines) prescribed a higher offense level for the defendant than the Guidelines at the time of his offense (the 1989 Guidelines). Id. at 893. However, the 1993 Guidelines also allowed the defendant’s term to be adjusted downward for time already served on the instant offense—which more than made up for the defendant’s increased offense level. Id. Such downward adjustments were not permitted under the earlier version of the Guidelines. Id.

The district court applied the 1989 Guidelines at sentencing and did not adjust for time served. Id. at 888. On appeal, the defendant argued that the district court should have applied the 1993 Guidelines, to the extent they authorized downward adjustment for time served, but not applied those Guidelines’ increase in the defendant’s offense-level.

We vacated and remanded for resen-tencing under the 1993 Guidelines, but rejected the defendant’s selective application argument. We explained that this court “adhere[s] to the so-called ‘one-book’ rule that most other circuits use to avoid twisting the guidelines.” Id. at 890. Under that rule, “[a] sentencing court has no authority to pick and choose, taking one provision from an earlier version of the guidelines and another from a later version.” Id. Instead, “[a] version of the sentencing guidelines is to be applied in its entirety.” Id. Keller applied the “one-book” rule to ex post facto analysis, holding that “the one-book rule must ... be employed to determine in the first instance whether an ex post facto problem exists.” Id. Thus, “[wjhat is significant is a comparison of the version of the guidelines in effect at sentencing against the version in effect at the time the offense was committed.” Id. at 891. We concluded that, because the 1993 Guidelines, as a whole, produced a shorter sentence for the defendant than the 1989 Guidelines, there would have been no ex post facto violation in applying the 1993 Guidelines in their entirety. Id. at 893.

In Berrios v. United States, 126 F.3d 430 (2d Cir. 1997), we applied Keller to the sentence-reduction context. There, the defendant pleaded guilty to conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846. Id. at 431. After the defendant was sentenced, several intervening amendments were made to the Sentencing Guidelines, including an amendment that lowered the base offense level for violations of 21 U.S.C. § 846. Id. at 432. Section lB1.10(b) was also amended to provide that, when determining whether and to what extent a sentence reduction is warranted, a court should only consider those amendments specifically deemed retroactive in § 1B1.10, rather than all subsequent amendments. Id. While the amendment reducing base offense levels for violations of 21 U.S.C. § 846 had been deemed retroactive, the change to § lB1.10(b) prevented the defendant from taking advantage of several other intervening amendments to the Sen-fencing Guidelines. Id. at 432-33. The district court ultimately granted the defendant’s § 3582(c)(2) motion based on the base offense level amendment regarding 21 U.S.C. § 846 crimes, and reduced his sentence from 210 months’ to 168 . months’ imprisonment. Id. at 433. On appeal, the defendant asserted that the § lB1.10(b) amendment rendering him ineligible for other reductions violated the Ex Post Fac-to Clause. Id. at 432-33.

We rejected the defendant’s challenge. Citing Keller, we stated that “[t]he relevant inquiry for ex post facto analysis is not whether a particular amendment to the Sentencing Guidelines is detrimental to a defendant, but whether application of the later version of the Sentencing Guidelines, considered as a whole, results in a more onerous penalty.” Id. at 433. We ruled that “[a]nalogous principles apply to a situation where, as here, an already-sentenced defendant seeks to take advantage of later amendments to the Sentencing Guidelines.” Id. We then held that there was no ex post facto violation because, even if the amendment to § lB1.10(b) disadvantaged the defendant by limiting the district court’s consideration to only one of the intervening amendments, the net effect of the amendments favored him. Id.

Applying the “one-book” rule here, we conclude that there was no ex post facto violation. At both the date Ramirez’s crime was committed and the date of his initial sentencing, § lB1.10(b) did not restrict district courts from imposing a sentence below the amended Guidelines range at a sentence-reduction hearing. However, neither of these Guidelines Manuals included Amendment 782, which is the basis for Ramirez’s eligibility for a sentence reduction. At the time of the sentence-reduction hearing, the Guidelines Manual included Amendment 782, but also the version of § IB 1.10(b)—based on Amendment 759— that prohibited district courts from reducing a sentence below a defendant’s amended guidelines range. Thus, under none of the relevant Guidelines Manuals did Amendment 782 and the prior version of § lB1.10(b) both exist. Indeed, the two provisions never coexisted in any Guidelines Manual.

Because Amendment 782 was not a part of the Guidelines at the time of Ramirez’s offense or sentencing and, without Amendment 782, Ramirez would not be entitled to a sentencing reduction even under the 2002 and 2005 versions of § 1B1.10, it cannot be said that application of the 2014 Guidelines, including the constraint on § 1B1.10 provided for by Amendment 759, “result[ed] in a more onerous penalty.” Id.

Therefore, we reject Ramirez’s argument that the district court’s failure to apply .the prior version of § lB1.10(b) in conjunction with Amendment 782 constituted an ex post facto violation. To hold otherwise would allow Ramirez to “pick and choose” provisions from different Guidelines Manuals, in violation of the “one-book” rule. Keller, 58 F.3d at 890.

Ramirez maintains that he is not “picking] and choos[ing] the best pieces from different versions of the guidelines” because Amendment 782 was made retroactively applicable. Appellant’s Reply Br. at 13. The implication is that Amendment 782 should be considered part of the earlier Guidelines Manuals for the purposes of the “one-book” rale. It is true that, under § IB 1.10(b)(1), a court determines the defendant’s amended Guidelines range by applying Amendments listed in § lB1.10(d) to the Guidelines in effect at the time of initial sentencing. However, Ramirez cites no authority indicating that this determination renders Amendment 782 part of prior Guidelines Manuals, particularly for the purpose of ex post facto analysis, and we decline to so rale here. Notably, in Berrios, we confronted a situation in which the defendant sought application at sentence-modification proceedings of an earlier version of § lB1.10(b) as well as a retroactive Amendment reducing his offense level. See 126 F.3d at 432-33. We applied Keller and ruled that there was no ex post facto violation, without finding it significant that one of the provisions the defendant sought to apply was retroactive. Id. at 433.

Keller’s application of the “one-book” rule to an ex post facto challenge still dictates that we compare the version of the Guidelines in effect at a sentencing reduction proceeding against the version in effect at the time of the defendant’s original offense and sentence. See id. (citing Keller’s articulation and stating that “Analogous principles apply to a situation where ... an already-sentenced defendant seeks to take advantage of later amendments to the Sentencing Guidelines”). Here, then, we must compare the 2014 Guidelines Manual as a whole to the 2002 and 2005 Guidelines Manuals each as a whole. Under the 2014 Guidelines Manual, Ramirez is entitled to have Amendment 782 applied to his prior Guidelines determination, but subject to the limitation in § lB1.10(b)(2)(A) which ultimately made him ineligible for a reduction. Under the Guidelines Manuals in effect at the time of the offense and initial sentence, Ramirez was not entitled to application of Amendment 782. Thus, Ramirez is not eligible for a sentence reduction under any Guidelines Manual considered as a whole. In these circumstances, we conclude that the 2014 Guidelines are not more onerous on Ramirez than the 2002 or 2005 Guidelines and, thus, there is no ex post facto violation.

Our holding that there is no ex post facto violation in applying Amendment 759 to limit sentence reductions authorized by a later Amendment—such as Amendment 782—is consistent with the rulings of every other circuit to have addressed this question. See Kruger, 838 F.3d at 790-92 (6th Cir.); United States v. Thompson, 825 F.3d 198, 204-06 (3d Cir. 2016); United States v. Kurtz, 819 F.3d 1230, 1236-37 (10th Cir. 2016); United States v. Bayatyan, 633 Fed. Appx. 912, 915-16 (10th Cir. 2015) (unpublished opinion); United States v. Waters, 771 F.3d 679, 680-81 (9th Cir. 2014) (per curiam); United States v. Diggs, 768 F.3d 643, 645-46 (7th Cir. 2014); United States v. Colon, 707 F.3d 1255, 1258-59 (11th Cir. 2013); see also United States v. Kay, 655 Fed.Appx. 165 (4th Cir. July 22, 2016) (mem.), aff'g No. 09-cr-252 (TEJ), 2016 WL 661591, at *2-3 (S.D.W. Va. Feb. 18, 2016). While these other circuits have not explicitly invoked the “one-book” rule in this context, Kruger, Bayatyan, and Colon employed reasoning that implicitly applied it. In both Kruger and Bayatyan, the courts partially based their conclusions on the fact that Amendment 782 did not exist in the Guidelines at the time of initial sentencing. See Kruger, 838 F.3d at 791 (“[T]he ... version of § 1B1.10 [at the time of initial sentencing] didn’t list Amendment 782 (which wouldn’t come into existence for several more years) as a covered amendment, and so it could not have afforded [the defendant] any relief on the basis of it.”); Bayatyan, 633 Fed.Appx. at 915 (finding no ex post facto violation because “at no point was Amendment 782 covered under the 2010 version of § 1B1.10,” which defendant claimed applied at his initial sentencing). In making this point, Kruger and Bayatyan both looked to Guidelines Manuals as a whole— as prescribed by the “one-book” rule— rather than permitting the application of provisions across different Guidelines Manuals. Similarly, in Colon—which concerned application of Amendment 759 to limit sentencing reduction pursuant to Amendment 750—the court concluded that there was no ex post facto violation because “[t]he net effect of Amendments 750 and 759 was not to increase [defendant’s] range of punishment above what it was at the time she committed her crimes.” 707 F.3d at 1258-59. By comparing the Guidelines range at the time defendant committed her crimes to the Guidelines range at the time of the § 3582(c)(2) proceeding, the court implicitly engaged in the same analysis called for by the “one-book” rule.

CONCLUSION

We hold that Amendment 759’s application prohibiting Ramirez from taking advantage of Amendment 782 does not violate the Ex Post Facto Clause. We therefore AFFIRM the district court’s order denying Ramirez’s motion for sentence reduction under 18 U.S.C. § 3582(c)(2).

      . Ramirez still maintained his guilty plea to the drug conspiracy.

      . Ramirez was subject to a mandatory minimum sentence of incarceration of ten years under 21 U.S.C. §§ 846 and 841(b)(1)(A).

      . A district court’s discretion to reduce a sentence is subject to statutory mandatory minimum sentences. See United States v. Johnson, 732 F.3d 109, 114-15 (2d Cir. 2013).

      . In his pro se § 3582(c)(2) motion, Ramirez did not expressly invoke the Ex Post Facto Clause. However, he did ask the district court to "utilize the language provided by the Sentencing Commission at the time of his original sentencing in 2006.” Joint App’x at 102. As a result, the Government does not oppose application of de novo review, rather than plain error review. We need not determine whether plain error review applies, because we affirm the district court's ruling even under the less deferential de novo standard,

      . Keller’s holding is consistent with the language of the Sentencing Guidelines, which emphasizes that Guidelines Manuals should be applied in their entirety in ex post facto analyses. Specifically, U.S.S.G. § 1B1.11(b)(1) states that "[i]f the court determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause of the United States Constitution, the court shall use the Guidelines Manual in effect on the date that the offense of conviction was committed.” The Guidelines further clarify that "[t]he Guidelines Manual in effect on a particular date shall be applied in its entirety.” U.S.S.G, § 1B1.11(b)(2). "The court shall not apply, for example, one guideline section from one edition of the Guidelines Manual and another guideline section from a different edition of the Guidelines Manual.” Id. Section 1B1.11(b)(2) does add that "the court shall consider subsequent amendments, to the extent that such amendments are clarifying rather than substantive changes.” However, Ramirez does not contend that Amendment 782—which substantively changed the Guidelines calculation for certain offenses—was merely a clarifying change. See United States v. Brooks, 732 F.3d 148, 150 (2d Cir. 2013) (per curiam) ("By reducing the base offense levels for certain crack cocaine offenses, Amendments 748 and 750 [earlier versions of Amendments 782 and 788 with similar effect] plainly effected a substantive change in the law rather than merely clarified the Commission’s prior intent.”).

      . Both parties note that Berrios was decided under the "substantial disadvantage" test that the Supreme Court has since rejected. See Peugh, 133 S.Ct. at 2083 n.4 (acknowledging that the "substantial disadvantage” test has been abandoned and stating that the "relevant question is.whether the change in law creates a sufficient or significant risk of increasing the punishment for a given crime” (internal quotation marks omitted)). However, Berrios’s use of the "substantial disadvantage” test does not call into question its application of Keller and the “one-book” rule to the sentence-reduction context.

      . Our conclusion accords with the principle of fair notice that undergirds ex post facto jurisprudence. See Weaver, 450 U.S. at 30, 101 S.Ct. 960 ("Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.”); see- also Peugh, 133 S.Ct. at 2094. Where a Guidelines amendment affording a sentencing reduction did not exist at the time a defendant committed or was sentenced for the crime of conviction, a defendant could have no expectation of such a benefit, so as to require notice at that time of any eligibility limitations.

      . In light of the fact that § IB1.10 did not change between the time of Ramirez’s compassion of the offense and sentencing, we heed not decide which moment serves as the relevant point of comparison.

      . Ramirez relies on two district court cases, which come to a contrary conclusion. See Alli-Balogun v. United States, 114 F.Supp.3d 4, 49-50 (E.D.N.Y. 2015); United States v. King, No. 99-cr-952-l, 2013 WL 4008629, at *21 (N.D. Ill. Aug. 5, 2013). However, Alli-Balogun addressed a different provision— U.S.S.G. § 1B1.10(e)—and involved a defendant who had served more than the maximum sentence of the amended Guidelines range, such that § IB 1.10(e) operated to increase his punishment. Meanwhile, King has been abrogated by United States v. Diggs, 768 F.3d 643 (7th Cir. 2014).