United States v. Green, No. 17-30227 (9th Cir. 2019)
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The Ninth Circuit withdrew its previous opinion and filed an amended opinion vacating defendant's sentence and remanding for resentencing. In this case, defendant had pleaded guilty to a single count of possession of a firearm as a felon.
The panel held that a district court does not need to decide a defendant's eligibility for an acceptance-of-responsibility reduction in his Guidelines level before listening to the defendant's allocution. The panel held that the sentencing court erred by concluding that it could not first hear from the defendant before determining whether a reduction for acceptance of responsibility was warranted under the Guidelines. The court further held that this misapprehension was plain error.
Court Description: Criminal Law. The panel withdrew its opinion filed on August 21, 2019, and filed an amended opinion vacating a sentence and remanding for resentencing, in a case in which the defendant pleaded guilty to a single count of possession of a firearm as a felon. The panel assumed, as the defendant did in his supplemental briefing, that the allocution issue raised on appeal was not adequately raised in the district court, and that plain error review therefore applies. The panel held that the district court’s conclusion—that it could not listen to the defendant’s allocution before determining whether a reduction of acceptance of responsibility was warranted under the Sentencing Guidelines—is contrary to law. The panel concluded that there is at least a reasonable probability that after allocution, the district court could determine that an acceptance-of- responsibility reduction is appropriate; and that because a decision to grant the reduction would likely lead to a less severe sentence, the failure to consider the defendant’s allocution—combined with the district court’s faulty reliance on United States v. Ginn, 87 F.3d 367 (9th Cir. 1996) (concerning acceptance-of-responsibility for defendants convicted of multiple counts)—affected the UNITED STATES V. GREEN 3 defendant’s substantial rights and seriously affected the fairness of the proceedings.
This opinion or order relates to an opinion or order originally issued on August 21, 2019.
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