2022 D.C. Circuit US Court of Appeals Case Law

F. Bauer v. FDIC
Date: July 5, 2022
Docket Number: 20-5314
The Nasdaq Stock Market LLC v. SEC
Date: July 5, 2022
Docket Number: 21-1167
Jean-Gabriel Bernier v. Jeff Allen
Date: July 5, 2022
Docket Number: 21-5083
United States v. Reynoso  
Date: July 1, 2022
Docket Number: 19-3045

Justia Opinion Summary: Defendant-appellant Manuel Reynoso was convicted by jury on a gun-possession charge and two drug charges. On appeal, Reynoso challenged his convictions on several grounds. On the same day the district court sentenced Rey...

Crowley Government Services, Inc. v. GSA  
Date: July 1, 2022
Docket Number: 21-5242

Justia Opinion Summary: Crowley Government Services, Inc. sued the General Services Administration and its Administrator (collectively, GSA), seeking declaratory and injunctive relief to halt the GSA’s purported practice of interfering with pay...

USA v. Charles Hillie (ORDER)
Date: June 28, 2022
Docket Number: 19-3027
Sierra Club v. FERC  
Date: June 28, 2022
Docket Number: 20-1427

Justia Opinion Summary: Petitioners, all environmental organizations, sought to vacate the Federal Energy and Regulatory Commission’s (“FERC” or the “Commission”) order giving the green light to Mountain Valley, LLC to construct a new pipeline....

City of Scottsdale, Arizona v. FAA  
Date: June 24, 2022
Docket Number: 20-1070

Justia Opinion Summary: The city of Scottsdale, Arizona filed a petition challenging the Federal Aviation Administration’s approval of certain east-bound flight paths out of the Phoenix Sky Harbor International Airport, claiming the flights res...

Northstar Wireless, LLC v. FCC  
Date: June 21, 2022
Docket Number: 18-1209

Justia Opinion Summary: Petitioners, Northstar Wireless, LLC (“Northstar”), and SNR Wireless LicenseCo, LLC (“SNR”) placed more than $13 billion in winning bids at a Federal Communications Commission  (“Commission”) auction to license wireless...

Cletus Bohon v. FERC  
Date: June 21, 2022
Docket Number: 20-5203

Justia Opinion Summary: The Federal Energy Regulatory Commission  (“FERC”) gave Mountain Valley Pipeline, LLC permission to build a natural-gas pipeline that will run through Appellants’ property. Appellants sued in district court to prevent th...

Air Transport Association v. AGRI  
Date: June 21, 2022
Docket Number: 21-5118

Justia Opinion Summary: Appellants brought an action contesting a Department of Agriculture rulemaking in the district court. Appellants argued that the rule violated both the Food, Agriculture, Conservation, and Trade Act of 1990, as well as t...

Belmont Municipal Light Department v. FERC  
Date: June 17, 2022
Docket Number: 19-1224

Justia Opinion Summary: The Federal Power Act (“FPA”), 16 U.S.C. Section 824d(d), ISO-NE filed tariff revisions with the Federal Energy Regulatory Commission (“FERC” or “the Commission”) to compensate generators for maintaining an inventory of...

Turlock Irrigation District v. FERC  
Date: June 17, 2022
Docket Number: 21-1120

Justia Opinion Summary: An applicant for a federal license to operate a hydroelectric facility must seek a State certification that the facility’s discharges will comply with the water quality standards specified in federal law. The State may g...

New Fortress Energy Inc. v. FERC  
Date: June 14, 2022
Docket Number: 21-1122

Justia Opinion Summary: The Natural Gas Act (“NGA”) vests the Federal Energy Regulatory Commission (“Commission “) with broad authority to regulate the transportation and sale of natural gas. The case at issue concerns the Commission’s applicat...

City of Salisbury, North Carolina v. FERC  
Date: June 10, 2022
Docket Number: 20-1238

Justia Opinion Summary: The City of Salisbury, North Carolina relies on the Yankin River for its drinking water. The City constructed a pump station on the Yankin River, which the City believed was threatened by a plan proposed by the operator...

Hemp Industries Association v. DEA  
Date: June 10, 2022
Docket Number: 20-1376

Justia Opinion Summary: Various members of the Hemp Industries Association ("Members") challenged a DEA rule emoving Epidiolex as a Schedule V controlled substance as well as the accompanying import-export controls over the substance. The DEA r...

Hemp Industries Association v. DEA  
Date: June 10, 2022
Docket Number: 21-5111

Justia Opinion Summary: Various members of the Hemp Industries Association ("Association") sought declaratory and injunctive relief following a DEA rule passed in the wake of the Farm bill. The Association specifically wanted to prevent the DEA...

Mark McAfee v. FDA  
Date: June 10, 2022
Docket Number: 21-5170

Justia Opinion Summary: A dairy farmer looking to expand the market to which he could sell butter challenged the Food and Drug Administration's ("FDA") decades-old rule barring the interstate sale of raw butter. The farmer proposed a new rule t...

Oceana, Inc. v. Gina Raimondo  
Date: June 7, 2022
Docket Number: 21-5120

Justia Opinion Summary: In this claim brought by an organization dedicated to ocean preservation against the National Marine Fisheries Service, a division of the U.S. Department of Commerce, the DC Circuit affirmed the judgment of the trial cou...

Mary Chambers v. DC  
Date: June 3, 2022
Docket Number: 19-7098

Justia Opinion Summary: Plaintiff sought numerous transfers to different units in the Office. After these requests were denied, she filed a charge of sex discrimination with the Equal Employment Opportunity Commission, contending that similarly...

Nostrum Pharmaceuticals LLC v. FDA  
Date: June 3, 2022
Docket Number: 20-1525

Justia Opinion Summary: Petitioner, a pharmaceutical company, is a drug manufacturer seeking to market various strengths and formulations of generic theophylline, a drug used to treat asthma and other respiratory conditions. To that end, Petiti...

USA v. Michael Palmer  
Date: June 3, 2022
Docket Number: 20-3058

Justia Opinion Summary: Appellant made two challenges to a life sentence for running a continuing criminal enterprise (CCE) centered around crack cocaine distribution. See 21 U.S.C. Section 848(b). In particular, Appellant appeals the district...

Jihad Barnes v. FBI  
Date: June 3, 2022
Docket Number: 20-5139

Justia Opinion Summary: Appellant, a suspected terrorist, plotted with a confidential informant to rob and murder a diamond dealer. Appellant was arrested after he provided two semi-automatic guns for use in the crime. While in pretrial detenti...

Patrick Eddington v. DOD  
Date: June 3, 2022
Docket Number: 21-5074

Justia Opinion Summary: Appellant used an email application on his laptop to send Freedom of Information Act ("FOIA") records requests to fourteen components of the U.S. Department of Defense (DOD). Not having received any response, he filed a...

Noah Rosenkrantz v. Inter-American Development Bank  
Date: June 3, 2022
Docket Number: 21-7047

Justia Opinion Summary: Plaintiffs sued the Inter-American Development Bank (the “IDB” or the “Bank”), alleging that the IDB violated its internal investigatory procedures when investigating allegations that the Plaintiffs had engaged in “Prohi...

USA v. Frederick Miller  
Date: May 31, 2022
Docket Number: 20-3084

Justia Opinion Summary: The district court sentenced Appellant to life imprisonment, concluding that a sentence within the Sentencing Guidelines range did not reflect the seriousness of Appellant’s crimes or act as a sufficient deterrence. Appe...

Inteliquent, Inc. v. FCC  
Date: May 27, 2022
Docket Number: 20-1471

Justia Opinion Summary: Petitioner challenged the Federal Communication Commission’s (“FCC”) rate cap on the provision of tandem switch services. To reduce the incentives for regulatory arbitrage and to encourage companies to transition to lowe...

Eugene Ross v. SEC  
Date: May 27, 2022
Docket Number: 21-1165

Justia Opinion Summary: Appellant appealed a United States Securities and Exchange Commission (SEC or Commission) order denying his application for a whistleblower award resulting from a successful SEC enforcement action. He contends that he vo...

The Nasdaq Stock Market LLC v. SEC  
Date: May 24, 2022
Docket Numbers: 21-1100, 21-1101, 21-1102

Justia Opinion Summary: In 2005, the Securities and Exchange Commission adopted “Regulation NMS” to promote the availability of market data to investors and other market participants. Regulation NMS allowed for investors to obtain "core data" f...

Artie Dufur v. USPC  
Date: May 20, 2022
Docket Number: 18-5233

Justia Opinion Summary: Appellate was sentenced to life in prison in 1979 when he escaped prison and killed a federal officer. After serving more than 40 years of his sentence, he sought parole relief but was denied by the U.S. Parole Commissio...

Lori Marino v. NOAA  
Date: May 17, 2022
Docket Number: 20-5151

Justia Opinion Summary: Plaintiffs, a group of organizations devoted to animal welfare and individuals who work with those organizations and with marine mammals, sued the National Marine Fisheries Service (“NMFS”) and its parent agency, the Nat...

Campaign Legal Center v. DOJ
Date: May 17, 2022
Docket Number: 20-5233
Campaign Legal Center v. DOJ  
Date: May 17, 2022
Docket Number: 20-5234

Justia Opinion Summary: Arthur Gary, General Counsel of the Justice Management Division at the Department of Justice, sent a letter to the Census Bureau requesting the addition of a citizenship question to the 2020 Census. Then-Secretary of Com...

USA, ex rel. Vermont National Telephone Company v. Northstar Spectrum, LLC  
Date: May 17, 2022
Docket Number: 21-7039

Justia Opinion Summary: Vermont National Telephone Company filed a qui tam action against Northstar, SNR, DISH, and several affiliated companies (collectively, “Defendants”), alleging they violated the False Claims Act (“FCA”) by making false c...

In re: Rail Freight Fuel Surcharge Antitrust Litigation  
Date: May 17, 2022
Docket Number: 21-7093

Justia Opinion Summary: Freight shippers (“Plaintiffs”) alleged that the nation’s four largest freight railroads (“Defendants” or “Railroads”) have violated the Sherman Act, 15 U.S.C. Section 1, by engaging in a price-fixing conspiracy to coord...

Ydil Pham v. NTSB  
Date: May 10, 2022
Docket Numbers: 21-1062, 21-1083

Justia Opinion Summary: Petitioner is an experienced airline pilot. When he was interviewing for a new position, he was asked to take a urine test. Unable to provide an adequate sample, Petitioner left the site. Under FAA guidelines, walking ou...

CSL Plasma Inc. v. United States Customs and Border Protection  
Date: May 10, 2022
Docket Number: 21-5282

Justia Opinion Summary: Plaintiffs, a group of blood plasma companies, challenged a U.S. Customs and Border Protection ("CBP") rule precluding aliens from entering the U.S. using B-1 business visitor visas to sell plasma. Plaintiffs claimed tha...

Fast Food Workers Committee v. NLRB  
Date: April 22, 2022
Docket Number: 20-1516

Justia Opinion Summary: Petitioners, the Fast Food Workers Committee and Service Employees International Union, sought review of the NLRB’s (“Board”) approval of the settlement agreements between the Board’s General Counsel on the one hand, and...

Vantage Commodities Financial Services v. Assured Risk Transfer PCC  
Date: April 22, 2022
Docket Number: 21-7033

Justia Opinion Summary: In this insurance coverage dispute, Plaintiff, an insured company, sought to sidestep its insurer by collecting a $22 million claim from ten insurance brokers and reinsurers. The district court dismissed Plaintiff’s clai...

Campaign Legal Center v. FEC  
Date: April 19, 2022
Docket Number: 21-5081

Justia Opinion Summary: Appellants, Campaign Legal Center and Catherine Hinckley Kelley filed a lawsuit against the Federal Election Commission (“Commission” or “FEC”). Appellants contended that the Commission’s decision to dismiss their compla...

Murray Braun v. USA  
Date: April 19, 2022
Docket Number: 21-5088

Justia Opinion Summary: The case stems from a compensation fund established by the Justice for United States Victims of State Sponsored Terrorism Act. Pursuant to that statute, known as the “Terrorism Act,” the child’s grandfather, Appellant, h...

Gentiva Health Services, Inc. v. Becerra  
Date: April 15, 2022
Docket Number: 21-5091

Justia Opinion Summary: Plaintiff, a hospice provider, challenges the Centers for Medicare and Medicaid Services (“CMS”) methodology, contending that it violates both the Medicare statute and the Budget Control Act and that CMS did not follow t...

Karin Weng v. Martin J. Walsh  
Date: April 8, 2022
Docket Number: 20-5264

Justia Opinion Summary: In 2010, Plaintiff filed several employment claims against her employer. In 2013, the parties reached a settlement agreement. However, before the parties reached their agreement, Plaintiff resigned in lieu of termination...

St. Helena Clear Lake Hospital v. Xavier Becerra  
Date: April 8, 2022
Docket Number: 21-5117

Justia Opinion Summary: Appellant, a California critical access hospital, sought Medicare reimbursement for the cost of keeping specialty doctors on call. Under the federal Emergency Medical Treatment and Active Labor Act, hospitals providing e...

Matos Rodriguez v. Pan American Health Organization  
Date: March 29, 2022
Docket Number: 20-7114

Justia Opinion Summary: Plaintiffs, a group of Cuban physicians, filed suit against PAHO for its role in facilitating Brazil's Mais Médicos program, under which Brazil hired foreign physicians to augment its medical services provided to impover...

United States v. Trabelsi  
Date: March 25, 2022
Docket Number: 20-3028

Justia Opinion Summary: Eight years after Belgium extradited defendant, a Tunisian national, to stand trial in the United States on terrorism charges, the trial has yet to take place. In this appeal, defendant challenged the district court's de...

Doe v. Securities and Exchange Commission  
Date: March 25, 2022
Docket Number: 21-1097

Justia Opinion Summary: The DC Circuit denied petitions for review of petitioners' applications for whistleblower awards resulting from a successful SEC enforcement action. The court concluded that the SEC properly denied petitioners' award app...

LSP Transmission Holdings II, LLC v. Federal Energy Regulatory Commission  
Date: March 22, 2022
Docket Number: 20-1422

Justia Opinion Summary: LSP, an independent electric transmission developer, bids on proposals to build transmission projects throughout the U.S. LSP sought judicial review of a Federal Energy Regulatory Commission (FERC) decision under 16 U.S....

Wisconsin Voters Alliance v. Harris  
Date: March 22, 2022
Docket Number: 21-5056

Justia Opinion Summary: About seven weeks after the 2020 presidential election, Republican state legislators, individual voters, and organizations representing voters from Wisconsin, Arizona, Georgia, Michigan, and Pennsylvania—all states carri...

Los Angeles Times Communications LLC v. United States  
Date: March 18, 2022
Docket Number: 21-5128

Justia Opinion Summary: The LA Times appeals the district court's denial of its motions to unseal court records relating to a search warrant allegedly executed on Senator Richard Burr in connection with an insider-trading investigation and the...

Food & Water Watch v. Federal Energy Regulatory Commission  
Date: March 11, 2022
Docket Number: 20-1132

Justia Opinion Summary: Petitioners sought review of the Commission's decision to authorize a new natural gas pipeline and compressor station in Agawam, Massachusetts. One of the petitioners, Berkshire, has failed to establish standing to chall...

Process and Industrial Developments Limited v. Federal Republic of Nigeria  
Date: March 11, 2022
Docket Number: 21-7003

Justia Opinion Summary: After P&ID petitioned for confirmation of an arbitral award against Nigeria, Nigeria moved to dismiss for lack of jurisdiction and asserted sovereign immunity under the Foreign Sovereign Immunities Act (FSIA). The distri...

Keryn Newman v. FERC (ORDER)
Date: March 9, 2022
Docket Number: 20-1324
De Csepel v. Republic of Hungary  
Date: March 8, 2022
Docket Numbers: 20-7047, 20-8001

Justia Opinion Summary: In 1944, German troops entered Hungary. The Hungarian government and Nazi collaborators confiscated the Herzog Collection, “one of Europe’s great private collections of art, and the largest in Hungary.” Some pieces were...

In re: Republic of Hungary
Date: March 8, 2022
Docket Number: 20-8001
Shaffer v. George Washington University  
Date: March 8, 2022
Docket Numbers: 21-7040, 21-7064

Justia Opinion Summary: The Universities responded to the COVID-19 pandemic by transitioning from in-person to online learning and largely shutting down campus activities. Students and parents sued, claiming that the Universities violated contr...

Qureshi v. American University
Date: March 8, 2022
Docket Number: 21-7064
Long Island Power Authority v. Federal Energy Regulatory Commission  
Date: March 4, 2022
Docket Number: 20-1033

Justia Opinion Summary: This case stems from a dispute over how to allocate the costs of high-voltage facilities to transmit electricity within the mid-Atlantic planning region. At issue is a contested settlement covering high-voltage projects...

Huisha-Huisha v. Mayorkas  
Date: March 4, 2022
Docket Number: 21-5200

Justia Opinion Summary: In a public-health emergency, 42 U.S.C. 265 authorizes the Executive Branch to "prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate." The Executive...

USA v. Hirani Engineering & Land (ORDER)
Date: March 1, 2022
Docket Number: 19-7010
Wendt Corp. v. National Labor Relations Board  
Date: March 1, 2022
Docket Number: 20-1319

Justia Opinion Summary: The NLRB affirmed an ALJ‘s finding that Wendt engaged in numerous unfair labor practices under the NLRA, 29 U.S.C. 158(a)(1), (3), (5) based on five incidents and actions. The D.C. Circuit affirmed with respect to: Wen...

United States v. Jackson  
Date: March 1, 2022
Docket Number: 20-3025

Justia Opinion Summary: Jackson pled guilty to possession with the intent to distribute cocaine base, entered a plea agreement, and was sentenced to 48 months of imprisonment to run consecutively to an anticipated, not-yet-imposed, prison sente...

Leonard A. Sacks & Associates P.C. v. International Monetary Fund  
Date: February 25, 2022
Docket Number: 21-7034

Justia Opinion Summary: Sacks is a law firm with a 20-year history of working with the International Monetary Fund (IMF). In 2011, IMF hired Sacks to negotiate disputed claims of various contractors that worked on the renovation of its headquar...

In re: NTE Connecticut, LLC  
Date: February 24, 2022
Docket Number: 22-1011

Justia Opinion Summary: For seven years, NTE worked to build a natural gas-fueled power plant in Killingly, Connecticut to sell electricity on the New England grid. NTE worked with ISO, the independent system operator authorized by the Federal...

National Association of Postal Supervisors v. United States Postal Service  
Date: February 22, 2022
Docket Number: 20-5280

Justia Opinion Summary: The Postal Reorganization Act of 1970 authorizes USPS to “classify and fix the compensation and benefits of all officers and employees,” 39 U.S.C. 1003(a), to “provide adequate and reasonable differentials in rates of pa...

Whiteru v. Washington Metropolitan Area Transit Authority  
Date: February 11, 2022
Docket Number: 20-7087

Justia Opinion Summary: Plaintiffs filed suit alleging that WMATA's negligence resulted in the death of their son, Okiemute Whiteru (Mr. Whiteru), a WMATA passenger who sustained grievous injuries after falling in the parapet area of the Judici...

Children's Health Defense v. Federal Communications Commission  
Date: February 11, 2022
Docket Number: 21-1075

Justia Opinion Summary: The FCC promulgated a regulation which originally authorized the installation on private property, with the owner's consent, of "over-the-air reception devices," regardless of State and local restrictions, "including zon...

Wye Oak Technology, Inc. v. Republic of Iraq  
Date: February 4, 2022
Docket Number: 19-7162

Justia Opinion Summary: Wye sued Iraq. The district court denied Iraq’s motion to dismiss on sovereign immunity grounds and entered judgment in Wye’s favor years later. An intervening Fourth Circuit ruling rejected Iraq’s contention that none o...

Sault Ste. Marie Tribe of Chippewa Indians v. Haaland  
Date: February 4, 2022
Docket Number: 20-5123

Justia Opinion Summary: The Sault Ste. Marie Tribe of Chippewa Indians purchased the Sibley Parcel with interest from its Self-Sufficiency Fund and sought to have the land taken into trust by the Department of the Interior with a view to establ...

American Federation of Government Employees v. Federal Labor Relations Authority  
Date: February 1, 2022
Docket Number: 20-1396

Justia Opinion Summary: In 2020, the FLRA adopted a new threshold for when collective bargaining is required. Under the new standard, the duty to bargain is triggered only if a workplace change has "a substantial impact on a condition of employ...

Cogentrix Energy Power Management, LLC v. Federal Energy Regulatory Commission  
Date: January 28, 2022
Docket Number: 20-1389

Justia Opinion Summary: The owners of New England electric generation facilities are paid through formula rates established by ISO New England’s (a regional transmission organization) open access transmission tariff. The owners challenged Fede...

American Federation of Government Employees v. Federal Labor Relations Authority  
Date: January 28, 2022
Docket Number: 20-1398

Justia Opinion Summary: Unions challenged a Policy Statement of the Federal Labor Relations Authority that announced for the first time that zipper clauses (provisions that foreclose midterm bargaining) are mandatory bargaining subjects. The Au...

City and County of San Francisco v. FERC
Date: January 25, 2022
Docket Number: 20-1084
City and County of San Francisco v. Federal Energy Regulatory Commission  
Date: January 25, 2022
Docket Numbers: 20-1313, 20-1458

Justia Opinion Summary: The San Francisco Public Utilities Commission owns a power supply system in the Hetch Hetchy Valley and transmission lines but does not own distribution lines and relies on PG&E’s distribution system. The Commission is b...

Association of American Physicians & Surgeons, Inc. v. Schiff  
Date: January 25, 2022
Docket Number: 21-5080

Justia Opinion Summary: The Association of American Physicians and Surgeons maintains a website and publishes the Journal of American Physicians and Surgeons, both of which host information concerning “important medical, economic, and legal iss...

Saint-Gobain Performance Plastics Europe v. Bolivarian Rep. of Venezuela  
Date: January 25, 2022
Docket Number: 21-7019

Justia Opinion Summary: Saint-Gobain Performance Plastics Europe sought compensation for the expropriation of its interests in a company in Venezuela. The district court granted Saint-Gobain summary judgment after determining it had properly s...

Intercontinental Exchange, Inc v. Securities and Exchange Commission  
Date: January 21, 2022
Docket Number: 20-1470

Justia Opinion Summary: Five registered national securities exchanges filed proposed rules with the SEC to establish fee schedules for Wireless Bandwidth Connections, which connect a customer’s equipment located on the premises of a petitioner-...

Duke Energy Progress, LLC v. Federal Energy Regulatory Commission  
Date: January 21, 2022
Docket Number: 20-1495

Justia Opinion Summary: Duke generates electricity for Power, a “joint agency” of 32 North Carolina municipalities. Power pays Duke an Energy Charge that “reimburses Duke only for its fuel costs and variable operations and maintenance costs as...

American Public Gas Association v. Department of Energy  
Date: January 18, 2022
Docket Number: 20-1068

Justia Opinion Summary: The DC Circuit remanded the Department's Final Rule setting more stringent efficiency standards than those of the ASHRAE for "commercial packaged boilers," large boilers commonly used to heat commercial and multifamily r...

The City of Miami, Oklahoma v. Federal Energy Regulatory Commission  
Date: January 18, 2022
Docket Number: 20-1325

Justia Opinion Summary: The DC Circuit granted the City's petitions for review of FERC orders rejecting the City's complaint regarding periodic outflow coming from the operation of the Pensacola Project, a downstream dam licensed by FERC. The c...

RICU LLC v. Department of Health and Human Services  
Date: January 18, 2022
Docket Number: 21-5186

Justia Opinion Summary: The DC Circuit affirmed the district court's dismissal of RICU's complaint alleging that the Department's determination that critical care telehealth services provided by physicians who are outside of the United States a...

Charles Erwin v. FAA (REISSUED PUBLIC REDACTED OPINION)
Date: January 14, 2022
Docket Number: 20-1443
Li v. Commissioner of Internal Revenue  
Date: January 11, 2022
Docket Number: 20-1245

Justia Opinion Summary: In 2018, Li filed a Form 211 with the IRS Whistleblower Office (WBO) alleging tax violations by the “target taxpayer,” seeking a monetary whistleblower award under 26 U.S.C. 7623(b). A WBO classifier reviewed Li’s Form 2...

Atchley v. AstraZeneca UK Limited  
Date: January 4, 2022
Docket Number: 20-7077

Justia Opinion Summary: Plaintiffs, victims of Jaysh al-Mahdi terrorist attacks and the victims' family members, filed suit alleging that defendants, large medical supply and manufacturing companies, knowingly gave substantial support to the at...

United States v. Turner  
Date: January 4, 2022
Docket Number: 21-3005

Justia Opinion Summary: The DC Circuit vacated defendant's sentence imposed after he pleaded guilty to two criminal counts, remanding for resentencing. Both defendant and the government agree that a court may deviate from the Sentencing Guideli...