Metropolitan News-Enterprise


Friday, August 7, 2015


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Ninth Circuit to Decide Crack Sentencing Issue En Banc


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday agreed to grant en banc rehearing in order to decide whether a defendant who agreed to a specific sentence as part of a plea agreement on a crack cocaine charge may seek a sentence reduction based on subsequent amendments to the federal Sentencing Guidelines.

Chief Judge Sidney Thomas said in a brief order that a majority of the court’s unrecused active judges had voted to rehear United States v. Davis, 13-30133. A three-judge panel held on Jan. 27 of this year that circuit precedent required that the defendant’s sentence be upheld, although a concurring judge said the prior case was wrongly decided and that the error should be corrected by an en banc panel.

There were no dissents from the order taking the case en banc.

The defendant, Tyrone Davis, is serving an 18-year sentence for conspiracy and distribution of crack and possession of the drug with intent to distribute. His original appeal from the sentence was denied by the Ninth Circuit.

In 2010, the Sentencing Commission amended the guidelines, bringing sentences for crack offenses in line with those for crimes involving powder cocaine. Davis moved in the U.S. District Court for the Western District of Washington for a reduction in his sentence based on the amendment.

District Judge Ronald Leighton denied the motion, saying the court lacked jurisdiction because the relevant statute provides that an amendment to the guidelines may result in resentencing only if the original sentence was “based on” the previous version of the guidelines. Leighton concluded that a sentence based on Rule 11(c)(1)(c) of the Federal Rules of Civil Procedure—allowing a defendant to plead guilty in exchange for a specific sentence, if the district judge chooses to accept the agreement—is not “based on” the guidelines for purposes of that statute.

In United States v. Austin (2012) 676 F.3d 924, a Ninth Circuit panel held that a sentence for a crack offense based on an 11(c)(1)(c) plea was not based on the guidelines and the defendant could not be resentenced.

That ruling came after the Supreme Court split sharply in Freeman v. United States (2011) 131 S.Ct. 2685. Four justices said that all crack sentences based on 11(c)(1)(c) agreements qualify for retroactive reduction, because the district judge necessarily considered the guidelines in exercising discretion to accept or reject the agreement.

Another four justices agreed with prosecutors that a sentence based on such an agreement cannot be a sentence based on the guidelines, and Justice Sonia Sotomayor said a retroactive reduction is permissible only in narrow circumstances.

Sotomayor argued that exceptions should be recognized where it was clear that the agreed-upon sentence was calculated on the basis of the guidelines, or where the agreement specifically referenced the guidelines as establishing the term of imprisonment.

Although all eight of the other justices rejected her approach, Sotomayor supplied the fifth vote allowing the defendant in Freeman to seek a reduced sentence. In Austin, the Ninth Circuit held that the Sotomayor analysis was controlling.

In Davis’s case, the district judge followed the Sotomayor analysis and held that the exceptions did not apply, and the Ninth Circuit panel—Judges Diarmuid O’Scannlain and Marsha Berzon and Senior Judge Andrew Kleinfeld agreed, per curiam.

The judges noted that in agreeing to the sentence, the parties did not calculate the guidelines range, but cited such factors as the quantity of drugs involved, the defendant’s criminal history, and his leadership role.

Berzon, in her concurring opinion, agreed with the D.C. Circuit that the Sotomayor analysis in Freeman does not constitute controlling law, since her approach differed from that of both of the other opinions. Berzon said the D.C. Circuit was correct in holding that the most persuasive of the three opinions in Freeman was the four-justice opinion subjecting all 11(c)(1)(c) sentences in crack cases to retroactive reduction, and that the Ninth Circuit should reconsider its contrary view en banc.


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