United States v. Davis, No. 13-30133 (9th Cir. 2015)
Annotate this CaseDefendant appealed his 18 year sentence after being convicted for conspiracy, distribution, and possession with intent to distribute cocaine base, seeking a retroactive reduction of his sentence based upon the 2010 Sentencing Commission's reduction of the Sentencing Guidelines retroactively for crack cocaine. In United States v. Austin, the court held that Justice Sotomayor's concurrence in the judgment in Freeman v. United States controls under Marks v. United States. In this case, the district court's determination that it lacked jurisdiction to reduce defendant's crack sentence is consistent with Austin. In light of Austin, defendant's sentence was "based on" his plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C) unless one of the two Freeman exception applies, and they do not. Accordingly, the court affirmed the judgment of the district court.
Court Description: Criminal Law. The panel affirmed the district court’s denial of a motion pursuant to 18 U.S.C. § 3582(c)(2) for reduction of sentence based upon the retroactive amendments to the Sentencing Guidelines governing crack cocaine. The panel held that the district court’s determination that it lacked jurisdiction to reduce the defendant’s sentence because the sentence was not “based on” the Guidelines is compelled under United States v. Austin, 676 F.3d 924 (9th Cir. 2012), where the defendant’s Fed. R. Crim. P. 11(c)(1)(C) plea agreement neither called for him to be sentenced within a particular Guidelines range, nor made clear that the basis for the specified term is a Guidelines range applicable to the offense, or showed that a sentencing range is evident from the agreement itself. Concurring, Judge Berzon agreed with the per curiam opinion, given the holding of Austin, which she believes was incorrectly decided and should be reconsidered en banc. UNITED STATES V. DAVIS 3
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