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United States v. D.M.

United States Court of Appeals, Ninth Circuit

September 7, 2017

United States of America, Plaintiff-Appellee,
v.
D.M., Defendant-Appellant.

          Argued and Submitted April 3, 2017 Pasadena, California

         Appeal 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

          James Fife (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.

          Helen H. Hong (argued), Assistant United States Attorney, United States Attorney's Office, San Diego, California, for Plaintiff-Appellee.

          Before: Kim McLane Wardlaw and Consuelo M. Callahan, Circuit Judges, and Virginia M. Kendall, [*] District Judge.

         SUMMARY[**]

         Criminal Law

         The panel vacated the district court's order denying the defendant's motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).

         The government agreed that the defendant was eligible for a sentence reduction under United States Sentencing Guidelines Amendment 782, which lowered the recommended sentence for drug offenses.

         The panel held that despite the defendant's release from federal prison, the appeal was not moot.

         Agreeing 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.

          OPINION

          CALLAHAN, CIRCUIT JUDGE.

         D.M. 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.

         FACTUAL BACKGROUND

         In 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. § 841(b)(1)(A)(viii).

         D.M. 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.[1] 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").

         D.M.'s 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.

         In 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 § 2D1.1(c)(2).

         PROCEEDINGS IN THE DISTRICT COURT

         In 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 Sentencing Commission.

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).

         At the 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.

         The 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 departure.

         This 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 ...


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