United States v. Brito, No. 15-30229 (9th Cir. 2017)
Annotate this CaseThe "term of imprisonment," as used in 18 U.S.C. 3582(c)(2) and U.S.S.G. 1B1.10(b)(2)(A), can include time spent in state custody. If the district court at the original sentencing gave credit for time spent in state custody in determining the defendant's sentence, the "term of imprisonment" on the motion for sentence reduction can include the time spent in both federal and state custody. Defendant filed a motion seeking a sentence reduction under 18 U.S.C. 3582(c)(2) for possession of heroin with intent to distribute, based on retroactive Sentencing Guidelines Amendment 782. The Ninth Circuit held that the district court had the discretion to give defendant credit for the four months he served in state custody, thereby reducing his sentence to 66 months in federal custody and resulting in a total "term of imprisonment" of 70 months. Accordingly, the panel vacated the sentence and remanded.
Court Description: Criminal Law. The panel vacated the district court’s order on the defendant’s motion under 18 U.S.C. § 3582(c)(2) seeking a sentence reduction based on retroactive Sentencing Guidelines Amendment 782 concerning drug offenses, and remanded for further proceedings. In determining the term of imprisonment at his original sentencing, the district court credited the defendant with four months for time he had served in state custody. In his motion for reduction of sentence, the defendant sought a similar four- month credit. Reducing the defendant’s sentence from 76 to 70 months, the district court believed that it was precluded from granting the requested credit by U.S.S.G. § 1B1.10(b)(2)(A), which provides that a court may not reduce a “term of imprisonment” to a “term that is less than the minimum of the amended guideline range.” The panel held that “term of imprisonment,” as used in § 3582(c)(2) and § 1B1.10(b)(2)(A), can include time spent in state custody, and that if the district court at the original sentencing gave credit for time spent in state custody in determining the defendant’s sentence, the “term of imprisonment” on the motion for sentence reduction can include the time spent in both federal and state custody. The panel concluded that the district court in its discretion may give the defendant credit for the four months he served in UNITED STATES V. BRITO 3 state custody, thereby reducing his sentence to 66 months in federal custody. Dissenting, Judge McKeown wrote that the majority endeavors to skirt the Guidelines’ affirmative prohibition against reducing the “term of imprisonment” below the lower end of the amended guideline range by stretching the decision in United States v. Drake, 49 F.3d 1438 (9th Cir. 1995), from a context where it makes sense to one where it does not.
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