Case: 08-30445 06/21/2010 Page: 1 of 5

ID: 7379374 DktEntry: 81

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellant, vs. JOHN MICHAEL FOX, Defendant-Appellee. C.A. No. 08-30445 D.C. No. 3:96-cr-00080-JKS Alaska (Anchorage) JOHN FOXS OPPOSITION TO THE REQUEST FOR SUMMARY REVERSAL

John Fox opposes the governments motion for summary reversal. Instead, Fox asks the court to vacate the order for en banc review and refer the matter to a three-judge panel for oral argument to resolve his non-Dillon related argument; namely that U.S.S.G. 1B1.10(b)(2)(A) was adopted in violation of the Sentencing Reform Acts administrative lawmaking requirements. Fox is currently on supervised release. In support of this opposition, Fox makes the following representations. 1. Fox presented two arguments for affirmance. First, Fox asserted

that the limitation prescribed in U.S.S.G. 1B1.10(b)(2)(A) was advisory because United States v. Booker, 543 U.S. 220 (2005) applied to 18 U.S.C. 3582(c)(2)

Case: 08-30445 06/21/2010 Page: 2 of 5

ID: 7379374 DktEntry: 81

sentence modification motions. Second, Fox contended that the limitation established by U.S.S.G. 1B1.10(b)(2)(A) was invalid because the Sentencing Commission promulgated this guideline limitation in violation of the Sentencing Reform Acts administrative law making requirements. See Docket No. 62 (Supplemental Brief for Appellee, at 30 - 39). 2. Dillon v. United States, ___ U.S. ____, 2010 WL 2400109

(June 17, 2010) addressed and resolved only Foxs first argument. Dillon has no application to Foxs second argument - that U.S.S.G. 1B1.10(b)(2)(A) is invalid because it was promulgated in violation of the Sentencing Reform Acts administrative law making requirements. 3. The remedy when an agency promulgates a rule in violation of the

Administrative Procedures Act is to vacate the current rule and reinstate the earlier rule previously in force. See Docket No. 62 (Supplemental Brief for Appellee, at 39). Since the previous version of Section 1B1.10 was advisory, Mr. Foxs reduced sentence must be affirmed for this alternative non-Dillon related reason. 4. Accordingly, the governments request for summary reversal

should be denied and the matter referred to a three-judge panel for argument on Foxs alternative basis for affirmance. .

Case: 08-30445 06/21/2010 Page: 3 of 5

ID: 7379374 DktEntry: 81

For all of these reasons, Mr. Fox asks the court to deny the governments motion for summary reversal and instead refer the matter to a three-judge panel for oral argument to resolve his alternative non-Dillon related APA argument.

DATED this 21st day of June 2010. Respectfully submitted, THE OFFICE OF FEDERAL DEFENDER FOR THE DISTRICT OF ALASKA /s/Kevin F. McCoy Assistant Federal Defender Attorney for Defendant-Appellee 601 West Fifth Avenue, Suite 800 Anchorage, AK 99501 Phone: 907-646-3400 Fax: 907-646-3480 kevin_mccoy@fd.org E-Mail:

Case: 08-30445 06/21/2010 Page: 4 of 5

ID: 7379374 DktEntry: 81

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant, vs. JOHN MICHAEL FOX, Defendant-Appellee.

C.A. No. 08-30445 D.C. No. 3:96-cr-00080-JKS Alaska (Anchorage) CERTIFICATE OF SERVICE

I, Kevin F. McCoy, hereby certify that on June 21, 2010, I electronically filed John Foxs Opposition to the Request for Summary Reversal with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Kirby A. Heller, Department of Justice, and Stephan Collins, Assistant U.S. Attorney, participants in this case, will be electronically served by the CM/ECF system. Defendant John Michael Fox was served a copy by U.S. Postal Service to 684 W. 34th Avenue, Apt. 526, Anchorage, AK 99503.

Case: 08-30445 06/21/2010 Page: 5 of 5

ID: 7379374 DktEntry: 81

DATED this 21st day of June 2010. Respectfully submitted, THE OFFICE OF FEDERAL DEFENDER FOR THE DISTRICT OF ALASKA /s/Kevin F. McCoy Assistant Federal Defender Attorney for Defendant-Appellee 601 West Fifth Avenue, Suite 800 Anchorage, AK 99501 Phone: 907-646-3400 Fax: 907-646-3480 kevin_mccoy@fd.org E-Mail: