“Notice-and-Opportunity” Requirement Applies to § 3582(c)(2) Motions: Commentary on United States v. Harmon, 83 F.4th 101 (3d Cir. 2025)

I. Introduction

This commentary unpacks the Third Circuit’s precedential decision in United States v. Paul Harmon, which clarifies the procedural safeguards available to defendants who seek sentence reductions under 18 U.S.C. § 3582(c)(2) after retroactive amendments to the U.S. Sentencing Guidelines (“Guidelines”). Although the court ultimately affirmed the district court’s refusal to reduce Harmon’s sentence, it announced an important new rule:

When a district court relies on new information at the § 3582(c)(2) stage, the defendant must receive notice and an opportunity to contest that information, as required by U.S.S.G. § 6A1.3(a).

At the same time, the panel refined the definition of “new information” for these purposes and held that the victim-impact materials used against Harmon were not new because they had already been used to make material findings at his original sentencing. The decision both aligns the Third Circuit with four sister circuits and deepens a split with the Ninth Circuit.

II. Background of the Case

• The Crime. Harmon embezzled more than $1 million from Fuellgraf Electric Company while serving as its long-time controller.
• Original Sentencing (2021). Guideline range: 33-41 months (Offense Level 20; Criminal History Category I). The district court cited an emotional victim-impact statement describing devastating financial harm and imposed an upward variance to 72 months—almost double the top of the range. It did not apply the two-level “substantial financial hardship” enhancement in U.S.S.G. § 2B1.1(b)(2)(A)(iii).
• Retroactive Amendment 821 (2023). Created § 4C1.1 (“Zero-Point Offender”), allowing certain first-timers a two-level decrease, but excluding any defendant who “personally caused substantial financial hardship.” The amendment was made retroactive.
• Sentence-Reduction Motion (2024). Harmon moved under § 3582(c)(2). The government did not oppose. Nevertheless, the district court invoked the earlier victim-impact evidence to find Harmon ineligible under § 4C1.1(a)(6). It denied the motion without giving Harmon a chance to rebut.
• Appeal. Harmon argued that relying on those materials without notice violated due process; alternatively, that the government had waived the “hardship” exception by remaining silent.

III. Summary of the Judgment

Judge Ambro, writing for a unanimous panel, affirmed the denial of relief but issued two headline holdings:

1. Applicability of § 6A1.3(a). The due-process protections embedded in Guideline § 6A1.3(a)—“sufficient indicia of reliability” and “adequate opportunity” to contest disputed facts—extend to § 3582(c)(2) proceedings. Defendants must receive notice and a chance to respond whenever the court relies on new factual information.
2. Definition of “New Information.” Information is “new” only when the court relies on it for the first time to establish material facts. Because the victim-impact statement had already been used to justify the original 72-month sentence, it was not new, so no additional process was required here.

IV. Analysis

A. Precedents Cited and Their Influence

• Dillon v. United States, 560 U.S. 817 (2010) — Supplies the two-step framework for § 3582(c)(2) (eligibility first, then discretionary reduction under § 3553(a)).
• Circuit Cases on Due Process in § 3582(c)(2) (Fifth, Seventh, Eighth, Eleventh Circuits):
  • Mueller (5th Cir. 1999)
  • Neal (7th Cir. 2010)
  • Foster (8th Cir. 2009)
  • Jules (11th Cir. 2010)
  These decisions uniformly hold that § 6A1.3(a) applies to sentence-reduction motions. The Third Circuit now explicitly joins this side of the split.
• Mercado-Moreno, 869 F.3d 942 (9th Cir. 2017) — Reached the opposite conclusion, limiting § 6A1.3 to initial sentencings. The Third Circuit rejected this view.
• Mathis (2016) & Descamps (2013) — Cited for the notion that defendants need not contest facts that are legally irrelevant at the time; informs the court’s “materiality” test for new information.
• Muhammad, 146 F.3d 161 (3d Cir. 1998) — Reaffirmed that the defendant bears the burden of proving eligibility for a reduction.
• Norton, 48 F.4th 124 (3d Cir. 2022) — Restated the due-process right to be sentenced on accurate information, bolstering the court’s analytical foundation.

B. Legal Reasoning

1. Statutory–Guideline Link. Section 3582(c)(2) instructs courts to apply “applicable policy statements” of the Sentencing Commission. Those policy statements include § 6A1.3(a), so its procedural safeguards follow the defendant into the reduction proceeding.
2. Scope of Protection. The court balanced efficiency against fairness: a § 3582 motion is not a plenary resentencing, but it must still avoid unreliable or surprise evidence that can change the outcome.
3. “New Information” Clarified.
   • The court adopted a materiality-first approach: information is new when relied on “for the first time to find material facts.”
   • Strategic hindsight or a subsequent legal amendment does not by itself render earlier information “new.”
   • This narrower definition prevents endless re-litigation of facts already adjudicated while preserving due-process safeguards against genuine surprise.
4. Application to Harmon. At the original sentencing, the judge quoted and relied on the victim-impact letter to justify a substantial upward variance. Because these facts were thus materially employed, they were not “new” later; Harmon already had motive and opportunity to contest them in 2021.
5. No Government Waiver. The defendant carries the burden of showing eligibility; the government’s failure to object to the reduction motion does not relieve that burden.
6. No Improper Retroactivity. The district court’s aside that it “probably should have applied” the § 2B1.1(b)(2) enhancement did not amount to retroactively applying it; the denial rested on § 4C1.1(a)(6) and § 3553(a) analysis.

C. Likely Impact of the Decision

• Procedural Uniformity. Aligns the Third Circuit with four other circuits; deepens the split with the Ninth, increasing the possibility of Supreme Court review if the conflict persists.
• Defense Strategy. Lawyers must now anticipate that any factual information emphasized by the court—even if not tied to a formal Guideline adjustment—may resurface. Silence at the initial sentencing can waive later challenges.
• Guideline Litigation. Clarifies that the § 4C1.1(a)(6) “substantial financial hardship” exception is analytically distinct from the § 2B1.1(b)(2) enhancement, forestalling arguments that the absence of one forecloses the other.
• District-Court Practice. Judges must provide some notice (often by docketing new materials or articulating reliance on fresh reports) before ruling on § 3582 motions if they intend to use facts not previously central to the case.
• Victim-Impact Evidence. The opinion reaffirms that such evidence can prove both Guideline enhancements and statutory factors; defendants cannot assume it will be siloed to an abstract discussion of “3553(a) seriousness.”

V. Complex Concepts Simplified

• § 3582(c)(2) Motion. A post-conviction request to shave time off an existing sentence when the Sentencing Commission lowers a Guideline retroactively.
• U.S.S.G. § 6A1.3(a). A policy statement that demands (i) reliable factual basis for sentencing and (ii) a chance for parties to dispute contested facts.
• Zero-Point Offender (§ 4C1.1). A new Guideline (Amendment 821) that rewards first-time, non-violent offenders with a two-level reduction, unless any listed exclusion (such as causing “substantial financial hardship”) applies.
• Material Fact. A fact that can change the sentencing range or the court’s discretionary assessment under § 3553(a). If a fact is material, parties must be allowed to challenge it when first introduced.
• Circuit Split. When federal appellate courts disagree on a legal question, increasing the need for either legislative clarification or Supreme Court resolution.

VI. Conclusion

United States v. Harmon crystallizes a defendant’s limited but significant due-process rights during sentence-reduction proceedings. The Third Circuit now requires notice and opportunity to be heard only when the district court introduces or first relies on material facts not pressed at the original sentencing. Defendants and counsel must therefore treat the initial sentencing as the primary—and perhaps only—forum to contest victim-impact statements, investigative summaries, or any other factual assertions that could later bar a reduction. The decision simultaneously guides district courts on procedural fairness, underscores the independence of the “substantial financial hardship” exclusion in § 4C1.1, and sets the stage for further appellate or Supreme Court review of the burgeoning circuit split.