United States v. Owen Dunn

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10388
Plaintiff-Appellee,
D.C. No.
v. 3:08-cr-00889-
WHA-1
OWEN DUNN,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding

Argued and Submitted
June 13, 2013—San Francisco, California

Filed September 6, 2013

Before: Diarmuid F. O’Scannlain and Milan D. Smith, Jr.,
Circuit Judges, and Michael M. Anello, District Judge.*

Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge O’Scannlain

*
The Honorable Michael M. Anello, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
2 UNITED STATES V. DUNN

SUMMARY**

Criminal Law

Affirming the district court’s denial of a motion for a
reduced sentence under 18 U.S.C. § 3582(c)(2), the panel
held that this court has jurisdiction to review § 3582(c)(2)
discretionary decisions under United States v. Colson,
573 F.3d 915 (9th Cir. 2009), which is not “clearly
irreconcilable” with Dillon v. United States, 130 S. Ct. 2683
(2010).

The panel also held that the district court did not abuse its
discretion in denying the defendant’s motion for reduced
sentence because it properly considered the factors under
18 U.S.C. § 3553(a) and relied on facts supported by the
record.

Specially concurring, Judge O’Scannlain wrote that the
federal courts have no power to hear re-sentencing appeals
based solely on the contention that the district court’s
determination was unreasonable, and that the defendant’s
claim survives only because of this circuit’s erroneous
precedents.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. DUNN 3

COUNSEL

Mark Goldrosen (argued), San Francisco, California, for
Defendant-Appellant.

Merry Jean Chan (argued), Assistant United States Attorney;
Melinda Haag, United States Attorney; Barbara J. Valliere,
Chief, Appellate Division, Assistant United States Attorney,
San Francisco, California, for Plaintiff-Appellee.

OPINION

M. SMITH, Circuit Judge:

Owen Dunn appeals the district court’s denial of his
motion for a reduced sentence under 18 U.S.C. § 3582(c)(2).
Dunn is currently serving a 100-month prison sentence for a
crack cocaine offense. He unsuccessfully moved for a 17-
month reduction of this sentence under § 3582(c)(2) based on
retroactive amendments to the United States Sentencing
Guidelines (USSG) that lowered the penalties for crack
cocaine offenses. The Government argues that Dillon v.
United States, 130 S. Ct. 2683 (2010), compels us to dismiss
this appeal for lack of jurisdiction.

We hold that we have jurisdiction to review § 3582(c)(2)
discretionary decisions under United States v. Colson,
573 F.3d 915 (9th Cir. 2009), which is not “clearly
irreconcilable” with Dillon. Miller v. Gammie, 335 F.3d 889,
893 (9th Cir. 2003) (en banc). We also hold that the district
court did not abuse its discretion in denying Dunn’s motion
for a reduced sentence because it properly considered the
4 UNITED STATES V. DUNN

factors under 18 U.S.C. § 3553(a) and relied on facts
supported by the record. Accordingly, we affirm.

FACTS AND PRIOR PROCEEDING

In March 2008, while still on supervised release for a
firearm offense,1 Dunn sold approximately 18 grams of crack
cocaine to a government agent near a playground in San
Francisco, California. Dunn was later arrested and charged
with distribution and possession with intent to distribute five
grams or more of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B)(iii), and distribution and possession
with intent to distribute crack cocaine within 1,000 feet of a
public housing facility, in violation of 21 U.S.C. § 860(a).

A. Dunn’s Crack Cocaine Sentence

Dunn entered into a plea agreement with the Government
and pleaded guilty to the crack cocaine charge. In the plea
agreement, Dunn and the Government agreed to propose a
84-month prison sentence, with 8 years of supervised release.
The parties agreed that Dunn’s base offense level was 23, but
they did not specify a criminal history category.2 The parties
separately agreed that Dunn would serve a 16-month
consecutive sentence for his supervised release violation,
which was pending before Judge Maxine Chesney, in Case
No. CR-01-0083.

1
In 2002, Dunn pleaded guilty to a firearm charge, and was sentenced
to 78 months in prison and 36 months of supervised release.
2
The Government later stated in its sentencing memorandum that it had
miscalculated the criminal history category to be V instead of VI, but that
it intended to honor its 84-month agreement with Dunn.
 UNITED STATES V. DUNN 5

The Probation Officer disagreed with the proposed 84-
month sentence. He calculated a total offense level of 23 and
a criminal history category of VI, which corresponded to the
Guidelines range of 92 to 115 months in prison. With that
calculation in mind, the Officer recommended 100 months in
prison and 8 years of supervised release.

In December 2009, the district judge sentenced Dunn to
100 months in prison and 8 years of supervised release. The
judge rejected the plea agreement’s proposed 84 months of
incarceration and concurred with the Probation Officer’s
recommendation, stating that “100 months is the overall right
total.” Tr. Mot. Proceeding (Dec. 15, 2009), at 11:12. He
also stated that he was taking into account the 16-month
sentence for Dunn’s supervised release violation, and that he
wanted to ensure Dunn serve that amount of time in the event
Judge Chesney chose to impose a lesser sentence. Because
the district judge rejected the parties’ agreed-upon sentence,
he gave Dunn the option of moving to set aside his guilty plea
within six weeks if he objected to the combined sentence.
Judge Chesney later imposed a 16-month sentence to run
concurrently with Dunn’s 100-month sentence in this case,
thereby leaving Dunn’s total sentence intact. Dunn did not
move to withdraw his guilty plea.

B. Motion for Sentence Reduction

In August 2010, Congress enacted the Fair Sentencing
Act (FSA), Pub. L. No. 111-220, 124 Stat. 2372, which
modified the penalties for crack cocaine offenses to remedy
sentencing disparities between crack and powder cocaine.
Freeman v. United States, 131 S. Ct. 2685, 2694 (2011). In
November 2010, the Sentencing Commission implemented
Amendment 748, which revised the penalties for crack
6 UNITED STATES V. DUNN

cocaine offenses. The Commission also implemented
Amendment 750, which rendered Amendment 748’s changes
permanent and made Amendment 750 retroactive, effective
November 1, 2011. Amendment 748 lowered the offense
levels for crack cocaine offenses stated in USSG § 2D1.1 for
various quantities of crack cocaine. As applied to Dunn’s
offense, the amended Guidelines range is 77 to 96 months.

In light of the FSA amendments, Dunn moved to reduce
his crack cocaine sentence under 18 U.S.C. § 3582(c)(2) in
June 2012. He requested a 17-month reduction based on the
amended Guidelines and the discretionary factors under
18 U.S.C. § 3553(a). Specifically, Dunn argued that factors
favoring a reduced sentence included his educational
activities while in prison, transfer from a high to medium-
security prison, his acceptance of responsibility, and his
willingness to be a kidney donor to his brother, among others.
The Probation Officer acknowledged that Dunn was eligible
to have his sentence reconsidered, but he nevertheless
recommended against reducing Dunn’s sentence. The
Government agreed that Dunn was eligible for a reduced
sentence, but opposed a reduction for the reasons stated by
the Probation Officer. In July 2012, the district court denied
Dunn’s motion. Dunn timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to consider whether appellate
jurisdiction exists. Taslimi v. Holder, 590 F.3d 981, 984 (9th
Cir. 2010). We review § 3582(c)(2) sentence reduction
decisions for abuse of discretion. Colson, 573 F.3d at 916.
“A district court may abuse its discretion if it does not apply
the correct law or if it rests its decision on a clearly erroneous
 UNITED STATES V. DUNN 7

finding of material fact.” United States v. Lightfoot, 626 F.3d
1092, 1094 (9th Cir. 2010) (citation and quotes omitted).

DISCUSSION

Section 3582(c)(2) authorizes district courts to modify an
imposed sentence “in the case of a defendant who has been
sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(2). A district court then
“may reduce the term of imprisonment, after considering the
factors set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” Id.
The Supreme Court has clarified that § 3582(c)(2) requires a
two-step inquiry. Dillon, 130 S. Ct. at 2691. First, a district
court must determine whether a prisoner is eligible for a
sentence modification under the Commission’s policy
statement in USSG § 1B1.10.3 Id. Second, a district court
must “consider any applicable § 3553(a) factors and
determine whether, in its discretion, the reduction authorized
by reference to the policies relevant at step one is warranted

3
USSG § 1B1.10 instructs district courts first to ascertain whether a
prisoner is eligible for a sentence reduction by “‘determin[ing] the
amended guideline range that would have been applicable to the
defendant’ had the relevant amendment been in effect at the time of the
initial sentencing.” Dillon, 130 S. Ct. at 2691 (quoting § 1B1.10(b)(1)).
Section 1B1.10 also imposes a sentencing floor so that a district court
“generally may ‘not reduce the defendant’s term of imprisonment under
18 U.S.C. 3582(c)(2) . . . to a term that is less than the minimum of the
amended guideline range’ produced by the substitution.” Id. (quoting
§ 1B1.10(b)(2)(A)); see also United States v. Fox, 631 F.3d 1128, 1131
(9th Cir. 2011).
8 UNITED STATES V. DUNN

in whole or in part under the particular circumstances of the
case.” Id. at 2692.

I. Jurisdiction

We must first decide whether we have jurisdiction to
review the district court’s denial of Dunn’s motion for a
§ 3582(c)(2) sentence reduction. In making this
determination, we are bound by United States v. Colson,
which held that § 3582(c)(2) sentence reduction decisions are
reviewable in their entirety for abuse of discretion under
28 U.S.C. § 1291. 573 F.3d at 916. In Colson, we applied
United States v. Booker, 543 U.S. 220 (2005), and United
States v. Carty, 520 F.3d 984 (9th Cir. 2008) (en banc), which
each held that any element of a sentencing decision, whether
discretionary or not, may be unreasonable, and therefore
unlawful. Id. Colson overruled our prior decision in United
States v. Lowe, 136 F.3d 1231, 1233 (9th Cir. 1998), holding
the contrary.

The Government argues that this case should be dismissed
for lack of jurisdiction in light of the Supreme Court’s 2010
decision in Dillon v. United States. In support of its position,
the Government primarily relies on United States v. Bowers,
615 F.3d 715 (6th Cir. 2010), for the proposition that under
Dillon, there is no appellate jurisdiction to review
discretionary § 3582(c)(2) decisions for reasonableness. In
Bowers, the Sixth Circuit held that “[b]ecause the [Dillon]
Court has recently clarified that Booker does not apply to . . .
sentence reduction proceedings [under § 3582(c)(2)],” it
“lack[ed] jurisdiction to hear a defendant’s appeal of the grant
or denial of a sentence reduction pursuant to those sections on
Booker ‘reasonableness’ grounds.” Bowers, 615 F.3d at 717.
Dunn counters that since Dillon, we have implicitly found
 UNITED STATES V. DUNN 9

jurisdiction to review § 3582(c)(2) discretionary decisions.
Both arguments miss the mark.

Dunn is correct that since Dillon, we have implicitly
asserted jurisdiction under 28 U.S.C. § 1291. See, e.g.,
United States v. Sykes, 658 F.3d 1140, 1144 (9th Cir. 2011);
Lightfoot, 626 F.3d at 1093. But these cases do not resolve
the question of our jurisdiction because they did not expressly
discuss the issue. See Ariz. Christian Sch. Tuition Org. v.
Winn, 131 S. Ct. 1436, 1448 (2011) (“When a potential
jurisdictional defect is neither noted nor discussed in a federal
decision, the decision does not stand for the proposition that
no defect existed.”); United States v. Morales, 898 F.2d 99,
101–02 (9th Cir. 1990) (“We are . . . not bound by the
implicit assertion of jurisdiction but rather we must consider
the issue anew.”).

Nor may we look to Bowers, a Sixth Circuit opinion, as
the Government advocates. Rather, under the rule of
interpanel accord, we must follow Colson unless there is
intervening Supreme Court authority or en banc authority to
the contrary. United States v. Rodriguez-Lara, 421 F.3d 932,
943 (9th Cir. 2005). In Miller v. Gammie, we clarified the
law on “the sometimes very difficult question of when a
three-judge panel may reexamine normally controlling
precedent in the face of an intervening United State Supreme
Court decision.” 335 F.3d at 892. We held that “where the
reasoning or theory of our prior circuit authority is clearly
irreconcilable with the reasoning or theory of intervening
higher authority, a three-judge panel should consider itself
bound by the later and controlling authority, and should reject
the prior circuit opinion as having been effectively
overruled.” Id. at 893 (emphasis added). “It is not enough
for there to be ‘some tension’ between the intervening higher
10 UNITED STATES V. DUNN

authority and prior circuit precedent, or for the intervening
higher authority to ‘cast doubt’ on the prior circuit
precedent.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir.
2012) (citations omitted). Rather, “[t]he intervening higher
precedent must be ‘clearly inconsistent’ with the prior circuit
precedent.” Id. (citation omitted). Although the circuit
opinion need not be expressly overruled by the Supreme
Court, both the circuit and Supreme Court cases must be
“closely on point.” Miller, 335 F.3d at 899 (citations and
quotes omitted).

As applied to this case, the pertinent inquiry is whether
the reasoning or theory of Dillon regarding the extension of
Booker to § 3582(c)(2) proceedings is clearly irreconcilable
with Colson. We conclude that Dillon does not clearly
conflict with Colson because: (1) Dillon is not “closely on
point” with regard to the jurisdictional question at issue, and
(2) Dillon does not revise the reasonableness standard under
Booker.

First, the question before the Supreme Court in Dillon
was whether a district court could treat as advisory the
mandatory minimum sentence under USSG § 1B1.10 in a
§ 3582(c)(2) proceeding. Dillon, 130 S. Ct. at 2687. The
district court had reduced the defendant’s post-conviction
sentence under § 3582(c)(2) to a term at the bottom of the
relevant Guidelines range, but no further. Id. at 2689–90.
The district court found Booker’s holding inapplicable to a
§ 3582(c)(2) proceeding, and held that it lacked authority to
impose a sentence inconsistent with USSG § 1B1.10. Id. at
2690. The Third Circuit affirmed, holding that § 1B1.10 was
binding. Id. On petition to the Supreme Court, Dillon argued
that a resentencing under § 3582(c)(2) is equivalent to any
other resentencing, and urged the Court to apply the same
 UNITED STATES V. DUNN 11

reasoning in Booker to render the mandatory language under
§ 1B1.10 advisory. Id. The Court disagreed, clarifying that
a § 3582(c)(2) proceeding is “not a plenary resentencing,” but
a “limited adjustment,” which “represents a congressional act
of lenity intended to give prisoners the benefit of later
enacted adjustments to the judgments reflected in the
Guidelines.” Id. at 2691, 2692. The Court concluded that
“Dillon’s Sixth Amendment rights were not violated by the
District Court’s adherence to the instruction in § 1B1.10 to
consider a reduction only within the amended Guidelines
range.” Id. at 2692.

Thus, the Court’s reasoning and holding in Dillon were
confined to the first step in a § 3582(a)(2) analysis—the
eligibility prong—which mandates imposing a sentencing
minimum under USSG § 1B1.10. The Court did not,
however, deal with the second step—the discretionary
prong—the application of § 3553(a) factors. Here, Dunn
argues that the district court abused its discretion in declining
to reduce his sentence, not that it found him ineligible for a
reduced sentence, misapplied the sentencing minimum, or
should have amended his sentence to below the minimum.
Accordingly, because Dillon did not resolve the jurisdictional
issue at hand, it is not “closely on point” with Colson. Miller,
335 F.3d at 899; Lewis v. Ayers, 681 F.3d 992, 997 n.3 (9th
Cir. 2012).4

Second, the Dillon Court’s reasoning is not clearly
irreconcilable with Colson’s rationale. In holding that the
amended Guidelines are binding under USSG § 1B1.10, the

4
In addition, while the Supreme Court expressly rejected our decision
in United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007), see Dillon,
130 S. Ct. at 2693, neither the parties nor the Court invoked Colson.
12 UNITED STATES V. DUNN

Dillon Court clarified that § 3582(c)(2) proceedings are not
plenary resentencings, but are limited in scope and purpose.
The question then is whether § 3582(c)(2) reductions, viewed
as “limited adjustments,” also compel the holding that these
reductions cannot be reviewed for reasonableness at step two,
as Booker mandates. The Government does not explain how
Booker’s holding forecloses review of discretionary decisions
under § 3582(c)(2). To the contrary, the Booker Court
emphasized that any element of a sentencing, whether
discretionary or not, may be reviewed for reasonableness
under an abuse of discretion standard—the rationale that we
applied in Colson. See Booker, 543 U.S. at 260–62; Gall v.
United States, 552 U.S. 38, 46 (2007) (“As a result of our
[Booker] decision, the Guidelines are now advisory, and
appellate review of sentencing decisions is limited to
determining whether they are ‘reasonable.’ Our explanation
of ‘reasonableness’ review in the Booker opinion made it
pellucidly clear that the familiar abuse-of-discretion standard
of review now applies to appellate review of sentencing
decisions.”); accord Carty, 520 F.3d at 993 (clarifying that in
the wake of Booker “[a]ppellate review is to determine
whether the sentence is reasonable; only a procedurally
erroneous or substantively unreasonable sentence will be set
aside”).

Although § 3582(c)(2) proceedings may not be plenary
resentencings under Dillon, the adjustments to a sentence are
constitutive elements of a sentence. Because original
sentences may be reviewed for reasonableness based on the
§ 3553(a) factors, then sentence reductions—based on those
same factors—are also reviewable for reasonableness.
Indeed, in discussing the two-step analysis under
§ 3582(c)(2), the Dillon Court emphasized that “[b]ecause
reference to § 3553(a) is appropriate only at the second step
 UNITED STATES V. DUNN 13

of this circumscribed inquiry, it cannot serve to transform the
proceedings under § 3582(c)(2) into plenary resentencing
proceedings.” Dillon, 130 S. Ct. at 2692. The implication
here is that a court’s discretionary decision under the
§ 3553(a) factors, at step two, exceeds the limited scope of a
resentencing “adjustment” applicable to step one. Therefore,
we conclude that the Court’s holding in Dillon regarding
whether mandatory provisions under USSG § 1B1.10 are
nonbinding does not disturb its prior holdings in Booker and
its progeny regarding the reasonableness review.5

II. The Merits of Dunn’s Appeal

There is no dispute that Dunn was eligible for
consideration of a sentence reduction, and that the amended
sentencing range for his crack offense was 77 to 96 months.
Dunn, however, challenges the district court’s discretionary
decision not to grant him a 17-month reduction. Dunn argues
that a sentence reduction is warranted by the § 3553(a)
factors6—specifically: (1) his acceptance of responsibility,

5
United States v. Bowers, 615 F.3d 715 (6th Cir. 2010), a decision from
our sister circuit, is not intervening higher authority, and thus does not
control our analysis. Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1019
(9th Cir. 2006). We also note that while the Sixth Circuit identified
§ 3742(a) as the source of appellate jurisdiction, Bowers, 615 F.3d at
720–22, in Colson, we relied on the broader grant of jurisdiction under
28 U.S.C. § 1291. Thus, Bowers is not relevant to the issue of whether
§ 3582(c)(2) decisions are reviewable under 28 U.S.C. § 1291.
6
Section 3553(a) factors “include: the nature and circumstances of the
offense and the history and characteristics of the defendant; the purposes
of sentencing; the kinds of sentences available; the sentences and ranges
established by the Sentencing Guidelines; relevant policy statements
issued by the Sentencing Commission; the need to avoid unwarranted
sentencing disparities among similarly situated defendants; and the need
14 UNITED STATES V. DUNN

(2) the relatively small amount of crack cocaine (18 grams)
and lack of weaponry and violence involved, and (3) his
willingness to donate a kidney to his ailing brother. Dunn
contends that the district court erred in relying on his criminal
history because it was already fully accounted for by the
amended Guidelines calculations. He further maintains that
the district court unreasonably ignored his rehabilitation
efforts in prison and transfer from a high to medium-security
prison, while focusing instead on his two discipline
violations. Finally, Dunn argues that his supervised release
penalty did not justify denying him a reduced sentence.

But Dunn fails to show how the district court applied the
wrong law or relied on clearly erroneous findings of material
fact. The district court properly cited the factors under
§ 3553(a), and considered those applicable to Dunn’s case, as
well as the facts it relied on in reaching its decision. See
Carty, 520 F.3d at 992. An analysis under § 3553(a) involves
considering the totality of the circumstances, but “[t]he
district court need not tick off each of the § 3553(a) factors to
show that it has considered them.” Id. “We assume that
district judges know the law and understand their obligation
to consider all of the § 3553(a) factors, not just the
Guidelines.” Id. No one factor should be given more or less
weight than any other. Id. at 991.

Here, the district court considered Dunn’s extensive
criminal history, “including juvenile convictions for petty
theft, possession of a controlled substance, escape from a
juvenile facility, and possession or purchase of cocaine for
s[ale],” as well as “adult convictions [for] unlawful sexual

to provide restitution to victims.” United States v. Trujillo, 713 F.3d 1003,
1008 (9th Cir. 2013).
 UNITED STATES V. DUNN 15

intercourse with a minor, inflicting corporeal injury on a
spouse, escape from jail, and . . . possession of a firearm.”
The court also cited the Probation Officer’s assessment of
Dunn’s volatile temperament and two disciplinary incidents
in prison. The court further took into account Dunn’s
numerous certificates of completed courses related to anger
management, continuing education, cartoon drawing, drug
education, and self-awareness; his transfer from a high to
medium-security prison; and his willingness to donate a
kidney to his brother. The court observed that Dunn “has a
persistent, violent, and lengthy criminal history, including
disciplinary incidents within the last year of incarceration,”
and while it found Dunn’s work during incarceration
commendable, it concluded that “the safety of the community
is best protected by the defendant serving the entirety of his
original sentence.” The court added that the original sentence
was needed “to afford adequate deterrence.” The court
explained that “[w]hile the situation with defendant’s brother
is sad, at this point, it is not clear that defendant is an
acceptable donor or that serving the original 100-month
sentence would prevent him from serving as a donor.” The
district court thus provided a reasoned explanation as to why
it declined to reduce Dunn’s sentence. See Rita v. United
States, 551 U.S. 338, 356 (2007) (“The sentencing judge
should set forth enough to satisfy the appellate court that he
has considered the parties’ arguments and has a reasoned
basis for exercising his own legal decisionmaking
authority.”); Carty, 520 F.3d at 992. But cf. Trujillo,
713 F.3d at 1010, 1011 (holding the district court’s denial of
a § 3582(c)(2) motion was legal error for its “total omission”
in addressing defendant’s nonfrivolous arguments under the
§ 3553(a) factors).
16 UNITED STATES V. DUNN

Dunn does not point to any evidence controverting the
accuracy of the facts relied on by the district court in reaching
its conclusion. Nor is there any indication that the district
court gave certain § 3553(a) factors greater consideration than
others. Rather, the district court presented a balanced account
of both positive and negative factors, and provided sufficient
explanation for why it denied Dunn a reduced sentence.
While reasonable jurists might disagree as to whether Dunn’s
positive factors warranted a reduced sentence, mere
disagreement does not amount to an abuse of discretion.

The district court further noted that Dunn’s criminal
history placed him in category VI, resulting in an advisory
Guidelines range of 92 to 115 months and a reduced range of
77 to 96 months. While Dunn is correct that his criminal
history is already integrated in the sentencing calculus, there
is nothing under § 3553(a), or any other provision, which
barred the district court from considering a prisoner’s
criminal history in making its decision under § 3582(c)(2).
In fact, § 3553 expressly instructs district courts to consider
“the nature and circumstances of the offense and the history
and characteristics of the defendant,” along with the “the
kinds of sentence and sentencing range established.”
18 U.S.C. §§ 3553(a)(1), (4). Section 3553(a)(1) would
include a prisoner’s criminal history. There is nothing in the
statute to suggest that, in deciding whether to grant or deny a
reduced sentence, a district court cannot consider the
defendant’s criminal history even though it was reflected in
his sentencing range. Rather, it is merely one factor in the
totality of the circumstances a district court must consider.

The district court also did not abuse its discretion when it
took into account Dunn’s supervised release penalty as part
of the totality of the circumstances. Dunn’s original 100-
 UNITED STATES V. DUNN 17

month sentence incorporated his 16-month sentence for his
supervised release violation. Thus, Dunn’s actual sentence
for his crack cocaine offense is 84 months—what the parties
agreed upon in the plea agreement, based on the
Government’s admitted miscalculation of Dunn’s criminal
history category—and already within the amended 72-to-96
month Guidelines range. However, the district court
emphasized that “100 months is the overall right total,” in
light of the Probation Officer’s proper calculation of Dunn’s
criminal history category and consideration of § 3553(a)
factors. In declining to reduce Dunn’s sentence, the district
court appropriately noted that Dunn had already received the
benefit of the Government’s error in miscalculating the
Guidelines range based on the mistaken belief that his
criminal history category was V, instead of VI. Dunn now
requests a 17-month reduction to his combined sentence, or
83 months. To grant Dunn the requested reduction would
mean, in actuality, that he would serve a 67-month crack
cocaine sentence7—a sentence that would fall below the
binding minimum of the amended 77-to-96 month Guidelines
range. See Dillon, 130 S. Ct. at 2691; USSG
§ 1B1.10(b)(2)(A).

CONCLUSION

For the foregoing reasons, we affirm the district court’s
decision to deny Dunn’s motion for a reduced sentence under
§ 3582(c)(2).

AFFIRMED.

7
This is calculated by subtracting 17 months (the reduction Dunn
requests) from 84 months (the original 100-month sentence minus the 16-
month supervised release penalty).
18 UNITED STATES V. DUNN

O’SCANNLAIN, Circuit Judge, specially concurring.

I write separately because Owen Dunn’s case should not
be before us. “The right of appeal, as we presently know it in
criminal cases, is purely a creature of statute.” Abney v.
United States, 431 U.S. 651, 656 (1977). I fear the creature
has wandered far outside its cage in this circuit. A proper
analysis of the statutory framework and Supreme Court
precedent regarding re-sentencing appeals makes one thing
clear: the federal courts have no power to hear such appeals
based solely on the contention that the district court’s
determination was unreasonable.1 Yet, that is precisely the
basis of Dunn’s appeal.

Dunn’s claim survives only because of this circuit’s
erroneous precedents, but not all courts of appeal have
similarly erred. The Sixth Circuit’s opinion in United States
v. Bowers, 615 F.3d 715 (6th Cir. 2010), rightly concluded
that jurisdiction over re-sentencing appeals does not include
review for reasonableness. Bowers presents this Court with
a guide and a challenge: a guide to a proper understanding of
our power; a challenge to accept the limits of it. I hope that
our Court will soon have the opportunity to reconsider our re-
sentencing precedents en banc and follow Bowers’s lead.

I

Owen Dunn pled guilty to distribution and possession
with intent to distribute five grams or more of crack cocaine.
In light of the recent changes to the federal Sentencing
Guidelines for crack cocaine offenses, United States v.

1
“Re-sentencing appeals” refers to 18 U.S.C. § 3582(c)(2) proceedings
unless context indicates otherwise.
 UNITED STATES V. DUNN 19

Pleasant, 704 F.3d 808, 809–10 (9th Cir. 2013), Dunn moved
the district court for a reduced sentence pursuant to 18 U.S.C.
§ 3582(c)(2). The district court denied his motion, and he
appealed to this Court.

II

A

Appeals from “otherwise final sentences” are governed by
18 U.S.C. § 3742(a). Bowers, 615 F.3d at 718–19. Our
circuit long ago held that § 3582(c)(2) re-sentencing
determinations come within that statute. See United States v.
Lowe, 136 F.3d 1231, 1232 (9th Cir. 1998), overruled on
other grounds by United States v. Colson, 573 F.3d 915, 916
(9th Cir. 2009). To appeal under § 3742(a), a criminal
defendant must make one of four claims.2

2
18 U.S.C. § 3742(a) states:

A defendant may file a notice of appeal in the district
court for review of an otherwise final sentence if the
sentence—

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application
of the sentencing guidelines; or

(3) is greater than the sentence specified in the
applicable guideline range to the extent that the
sentence includes a greater fine or term of
imprisonment, probation, or supervised release than the
maximum established in the guideline range, or
includes a more limiting condition of probation or
20 UNITED STATES V. DUNN

Dunn asserts none of them. He does not have to because
our decision in United States v. Colson held that we have
independent jurisdiction over re-sentencing appeals under
28 U.S.C. § 1291. 573 F.3d at 916. Section 1291, unlike
§ 3742(a), does not limit the grounds on which a criminal
defendant can appeal. Thus, invoking Colson, Dunn argues
that the district court acted unreasonably when it refused to
lower his sentence, but he does not try to fit this claim within
a statutorily recognized basis for appeal under § 3742(a).

One might think that if Congress provided a narrow
jurisdictional statute for re-sentencing appeals, it meant to
foreclose jurisdiction under a broader one. Our precedents
regarding sentencing determinations under Rule 35(b) are
consistent with that reasoning.3 See United States v. Arishi,
54 F.3d 596, 599 (9th Cir. 1995). Arishi “concluded that a
criminal defendant could not use § 1291 to circumvent
§ 3742's requirements for appealing a Rule 35 decision.”
United States v. Doe, 374 F.3d 851, 853 (9th Cir. 2004).
“Section 3582(c)(2) determinations are not distinguishable
from Rule 35(b) determinations in any relevant respect.”
Bowers, 615 F.3d at 722. Just as permitting appeal of Rule
35(b) determinations under § 1291 would “circumvent the
conditions imposed by 18 U.S.C. § 3742 for appealing

supervised release under section 3563(b)(6) or (b)(11)
than the maximum established in the guideline range;
or

(4) was imposed for an offense for which there is no
sentencing guideline and is plainly unreasonable.
3
Rule 35(b) allows courts to reduce a sentence for “substantial
assistance in investigating or prosecuting another person.”
Fed. R. Crim. P. 35(b).
 UNITED STATES V. DUNN 21

otherwise final sentences,” United States v. Hartwell,
448 F.3d 707, 712 (4th Cir. 2006), allowing appeal of
§ 3582(c)(2) decisions under § 1291 makes § 3742(a)
superfluous in re-sentencing appeals like Dunn’s.

Yet Colson, without bothering to acknowledge these
relevant precedents and weighty concerns, asserted that re-
sentencing appeals arise under § 1291. 573 F.3d at 916.
Thus, our circuit departed from the clear implications of
Congress’s decision to restrict appellate review under
§ 3742(a), implications that our Rule 35(b) precedents have
long recognized.

B

Compounding the problem, our precedents are in deep
tension with the Supreme Court’s decision in United States v.
Dillon, supra. In United States v. Booker, the Supreme Court
held the mandatory nature of the federal Sentencing
Guidelines unconstitutional because sentences were imposed
that “exceed[ed] the maximum authorized by the facts
established by a plea of guilty or a jury verdict.”
543 U.S. 220, 244 (2005). Such constitutional determination
led to the “remedial” holding that the Guidelines were
advisory and that sentencing proceedings were reviewable for
“unreasonableness” on appeal. Id. at 264.

Colson relied on Booker’s remedial holding to rule that
courts can review re-sentencing determinations for
reasonableness under § 1291. 573 F.3d at 916. But Dillon
refused to apply Booker to such determinations: “Given the
limited scope and purpose of § 3582(c)(2), we conclude that
proceedings under that section do not implicate the interests
identified in Booker.” 130 S. Ct. at 2692. If Booker’s
22 UNITED STATES V. DUNN

unreasonableness standard does not apply to re-sentencing
proceedings under § 3582(c)(2), then Dunn’s appeal—which
is based entirely on the alleged unreasonableness of the
district court’s decision—fails to state a claim.

Thus, our jurisdiction over Dunn’s case is directly
implicated. If, as I believe, § 3742(a) is the exclusive basis
for jurisdiction over re-sentencing appeals, then Dunn must
assert one of the four recognized claims. His only plausible
claim, as he concedes, is § 3742(a)(1), which permits appeals
from re-sentencing proceedings “in violation of law.” The
“law” that the district court allegedly violated was Booker’s
command that sentences be reasonable: “Booker, after all, [i]s
now ‘law.’” Bowers, 615 F.3d at 725. But as Bowers pointed
out, because Dillon makes Booker inapplicable to re-
sentencing proceedings under § 3582(c)(2), unreasonable re-
sentencing determinations are no longer violations of law. Id.
at 727. I suggest that, under a proper understanding of the
relevant jurisdictional statutes and Supreme Court precedent,
we have no jurisdiction to hear Dunn’s appeal.

III

Nonetheless, I join the panel’s opinion because we are
indeed bound by Colson unless Dillon is “clearly
irreconcilable” with that case. Miller v. Gammie, 335 F.3d
889, 893 (9th Cir. 2003) (en banc); see also id. at 902
(O’Scannlain, J., concurring in part) (stating that en banc
review was required where intervening higher authority had
not “clearly undermined” circuit precedent). The panel’s
opinion makes plausible arguments why Dillon does not meet
that high standard.
 UNITED STATES V. DUNN 23

Colson relies on § 1291 for jurisdiction over re-sentencing
appeals, and although I believe that Dillon narrowed the
scope of jurisdiction for appeals under § 3742(a), that is
irrelevant if § 1291 supplies an alternative basis for
jurisdiction. Moreover, although I believe the most faithful
interpretation of Dillon would lead an en banc panel to
overturn Colson, the majority opinion makes a plausible
argument why Dillon permits Booker’s reasonableness test to
apply to Dunn’s case. See Maj. Op. at 10–13. Under our
circuit’s high standard for abrogation, Colson remains good
law, and our three-judge panel properly exercised jurisdiction
over Dunn’s appeal under the circumstances.