and Submitted April 3, 2017 Pasadena, California
from the United States District Court for the Southern
District of California Barry Ted Moskowitz, Chief District
Judge, Presiding D.C. No. 3:12-cr-01821-BTM-1
Fife (argued), Federal Defenders of San Diego, Inc., San
Diego, California, for Defendant-Appellant.
H. Hong (argued), Assistant United States Attorney, United
States Attorney's Office, San Diego, California, for
Before: Kim McLane Wardlaw and Consuelo M. Callahan, Circuit
Judges, and Virginia M. Kendall, [*] District Judge.
panel vacated the district court's order denying the
defendant's motion for a sentence reduction under 18
U.S.C. § 3582(c)(2).
government agreed that the defendant was eligible for a
sentence reduction under United States Sentencing Guidelines
Amendment 782, which lowered the recommended sentence for
panel held that despite the defendant's release from
federal prison, the appeal was not moot.
with the Seventh Circuit, the panel held that U.S.S.G. §
1B1.10(b)(2)(B) allows a court to consider a number of
departures when calculating a reduction in sentence where the
defendant has provided substantial assistance, and the court
is not limited to consideration only of the departure
attributable to substantial assistance. The panel
distinguished United States v. Ornelas, 825 F.3d 548
(9th Cir. 2016), which did not address §
1B1.10(b)(2)(B), an exception to the policy statement
otherwise set forth in U.S.S.G. § 1B1.10(a). The panel
also concluded, alternatively, that the defendant was
entitled to the benefit of the rule of lenity because the
Guideline was ambiguous.
CALLAHAN, CIRCUIT JUDGE.
appeals the denial of his motion for a sentence reduction
under 18 U.S.C. § 3582(c)(2). The Government agrees that
D.M. was eligible for a sentence reduction, but contends that
the appeal is moot because D.M. has been released from
federal prison. We hold that the appeal is not moot, and that
United States Sentencing Guideline § 1B1.10(b)(2)(B)
allows a court to consider a number of departures when
calculating a reduction in sentence where the defendant has
provided substantial assistance. We vacate the district
court's order denying D.M.'s motion for a sentence
reduction and remand the case to the district court.
April 2012, D.M. was stopped at a border patrol checkpoint in
California. Agents discovered 3.458 kilograms of
methamphetamine and 0.984 kilograms of cocaine. D.M. was
charged with, and subsequently pleaded guilty to, possession
with intent to distribute under 21 U.S.C. § 841(a)(1).
This triggered a mandatory minimum sentence of 120-months
incarceration and five years of supervised release due to the
amount of methamphetamine discovered. 21 U.S.C. §
accepted responsibility and expressed a willingness to assist
law enforcement. Pursuant to 18 U.S.C. § 3553(e), the
government moved to permit the court to impose a sentence
below the 120-month statutory minimum. See 18
U.S.C. § 3553(e) (allowing a court to impose a sentence
below the mandatory minimum pursuant to a Government motion
"so as to reflect a defendant's substantial
assistance in the investigation or prosecution of another
person who has committed an offense").
original, pre-departure and pre-adjustment offense level
under the United States Sentencing Guidelines (USSG) was 38.
However, following additional adjustments for acceptance of
responsibility and a minor role, as well as departures for
fast track and substantial assistance, D.M.'s adjusted
offense level was 21, which produced an adjusted guideline
range of 57 to 71 months. The district court imposed a
57-month prison sentence, with five years of supervised
release. The district court specifically retained
jurisdiction to amend D.M.'s term of supervised release
should he exhibit good behavior.
November 2014, the United States Sentencing Commission
(Sentencing Commission) passed Amendment 782, which lowered
the recommended sentence for drug offenses. See United
States v. Navarro, 800 F.3d 1104, 1107 (9th Cir. 2015).
In particular, Amendment 782 provided for the lowering of the
base offense level of certain drug convictions by two levels.
See United States v. Ornelas, 825 F.3d 548, 553 (9th
Cir. 2016). At the same time, the Sentencing Commission
promulgated Amendment 788, which allowed courts to apply
Amendment 782 retroactively. See Navarro, 800 F.3d
at 1107. Thus, Amendment 782 applied to D.M. and lowered his
base offense level to 36. See USSG §
IN THE DISTRICT COURT
light of Amendments 782 and 788, D.M., with the
Government's concurrence, moved to reduce his sentence to
51 months. The Government joined D.M.'s request. The
motion was made pursuant to 18 U.S.C. § 3582(c)(2) and
USSG 1B1.10(b)(2)(B). The statute reads:
[I]n the case of a defendant who has been sentenced to a term
of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. 994(o), upon motion of the defendant or
the Director of the Bureau of Prisons, or on its own motion,
the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the
extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the
18 U.S.C. § 3582(c)(2). The guideline subsection states:
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.
USSG § 1B1.10(b)(2)(B).
initial hearing, the district court expressed reservations as
to whether, in reducing D.M.'s sentence, it could
consider departures other than the departure attributable to
substantial assistance. The district court noted that, if it
could only consider the substantial assistance departure,
then it could not reduce D.M.'s sentence because the
minimum available sentence would be longer than the sentence
D.M. was serving. Seeking clarification on the issue, the
district court ordered further briefing. At a second hearing,
the district court reiterated that it wanted the
Government's position "in writing" so it could
fully consider the Government's reasoning before ruling.
Following a third hearing, the district court denied the
joint application for sentence reduction.
district court defined the issue as: "When a defendant
previously received a substantial assistance departure as
well as an additional departure for fast-track, in granting
'a reduction comparably less than the amended guideline
range, ' may the Court include in the calculation the
fast-track departure?" The court held that USSG §
1B1.10 did not allow for the inclusion of the fast-track
conclusion rendered D.M. ineligible for a reduction in his
sentence. Here is the math. In determining D.M.'s initial
sentence, the court determined that the applicable adjusted
offense level was 29, and it granted a four-level departure
under USSG § 5K1.1 for substantial assistance and
another four-level departure under USSG § 5K3.1 for D.M.
having agreed to the fast-track procedure. This produced a
guideline range of 57 to 71 months of imprisonment, and the
district court sentenced D.M. to 57 months. At the
resentencing hearing, D.M.'s adjusted total offense level
was 28, which resulted in an amended guideline range of 110
to 137 months. Under the district court's approach-
considering only the substantial assistance departure in its
calculation-the parties agreed that the four-level departure
for substantial assistance was about 30%. Applying the 30%
reduction to the low end of the amended guideline range, 110
months, produced a proposed minimum sentence of 77 months
[110 x 70% = 77]. This is greater than the 57-month sentence
that D.M. had originally received. Thus, because D.M. had
received the benefit of a fast-track ...