United States v.Tercero, No. 12-10404 (9th Cir. 2013)
Annotate this CaseDefendant pled guilty to a single count of possession with intent to distribute methamphetamine. Defendant's appeal concerned the retroactive application of the Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372, and the related amended Sentencing Guidelines ranges for offenses involving crack cocaine. The court concluded that defendant did not waive her right to appeal the reduced sentence; under the plain language of 28 U.S.C. 3582(c)(2), the district court was required to apply U.S.S.G. 1B1.10 and the district court concluded correctly that under the revised version of section 1B1.10, it could not adjust defendant's sentence below 70 months; the two-step analysis in Dillon v. United States did not hinge to any degree on the substantive content of section 1B1.10 and an amendment of that policy did not affect the two-step process; the district court properly followed the two-step process by first determining that a reduction below 70 months would be inconsistent with section 1B1.10 as revised and declined to grant defendant's full motion; and the court rejected defendant's remaining arguments. Accordingly, the court affirmed the judgment of the district court.
Court Description: Criminal Law. The panel affirmed the district court’s decision granting in part and denying in part a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) following enactment of the Fair Sentencing Act. The panel held that the defendant did not waive her right to appeal the reduced sentence. The panel also held that although the defendant expressly waived her right to bring a § 3582(c)(2) motion in her plea agreement, the government did not argue at the resentencing hearing that the defendant had waived that right and thus cannot rely on that provision to argue that the appeal is not properly before this court. The panel was unpersuaded that Congress intended the Fair Sentencing Act to implement the retroactive reduction of sentencing ranges for crack cocaine offenses in a particular way, much less one that conflicts with U.S.S.G. § 1B1.10, as revised by the Sentencing Commission to prohibit courts from reducing a defendant’s term of imprisonment under § 3582(c)(2) to a term that is less than the minimum of the amended guideline range. The panel rejected the defendant’s contention that this court need not comply with § 1B1.10, which the Supreme Court in Dhillon v. United States, considering an earlier version of § 1B1.10, held is binding on courts. The panel observed that the district court correctly followed the two- step procedure reiterated in Dhillon. The panel rejected the defendant’s contentions that the revised § 1B1.10 conflicts with the purpose of the Sentencing Guidelines, conflicts with the statute that authorized the Commission to apply amendments retroactively, and is arbitrary and capricious under the Administrative Procedures Act.
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