FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA No. 08-10298
Plaintiff-Appellee, D.C. No.
v. 2:05-cr-00034-LKK-
LINDA ANN CHANEY, DAD
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted June 8, 2009
Submission Vacated June 10, 2009
Resubmitted August 5, 2009
San Francisco, California
Filed September 15, 2009
Before: Procter Hug, Jr., Betty B. Fletcher and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Hawkins
13395
UNITED STATES v. CHANEY 13397
COUNSEL
David M. Porter, Assistant Federal Public Defender, Sacra-
mento, California, for the defendant-appellant.
Philip A. Ferrari, Assistant United States Attorney, Sacra-
mento, California, for the plaintiff-appellee.
OPINION
HAWKINS, Circuit Judge:
Linda Ann Chaney (“Chaney”) appeals the denial of her 18
U.S.C. § 3582(c)(2) motion for a reduced sentence. Chaney
was caught in a sting operation distributing large amounts of
cocaine base (“crack”) and charged with seven related counts.
She agreed to cooperate with federal authorities and signed a
plea agreement in exchange for a lower sentence. Some time
after Chaney was sentenced to 103 months pursuant to the
plea agreement, the Sentencing Commission passed Amend-
ment 706 to the Sentencing Guidelines (the “Guidelines”),
retroactively reducing by two points the Guidelines range for
crack offenses.
Chaney—who had initially been eligible for a Guidelines
range of 235 to 293 months and subject to a mandatory mini-
mum sentence of 20 years to life—sought a reduction of her
103-month sentence by retroactive application of Amendment
706. The district court exercised its discretion and denied the
motion. Chaney timely appealed. Concluding that the district
court did not abuse its discretion, we affirm.
13398 UNITED STATES v. CHANEY
I. BACKGROUND
A. Original Sentencing
After getting caught in a federal sting operation distributing
large amounts of crack cocaine, Chaney agreed to cooperate
with federal authorities and signed a plea agreement accord-
ing to which she would provide truthful testimony concerning
subordinates in her drug distribution ring.1
In exchange for these agreements and concessions, the gov-
ernment dismissed all but two charges, declined to allege any
prior offenses at sentencing, and agreed to recommend a sen-
tence reduction of “up to 50%” from the minimum applicable
Guidelines sentence. The parties stipulated to a base offense
level of 31, a criminal history category of IV, and a minimum
Guidelines sentence of 151 months. The government accord-
ingly submitted a letter pursuant to U.S.S.G. § 5K1.1 to the
district court recommending a reduced sentence of 108
months, or a 28% downward departure. Both Chaney and the
1
According to the plea agreement, Chaney further waived her rights “to
appeal any aspect of her sentence as long as her sentence is no longer than
the top of the sentencing guidelines range” and “to bring a post-conviction
attack on her . . . sentence.” She agreed further that “[i]f . . . her sentence
is ever reduced at her request, the government shall have the right (1) to
prosecute the defendant on any of the counts to which [she] pleaded
guilty; (2) to reinstate any counts that may be dismissed pursuant to this
agreement; and (3) to file any new charges that would otherwise be barred
by this agreement.”
The government, however, has not attempted to enforce any appeal
waiver or agreement not to seek a sentence reduction in this case. Accord-
ingly, we do not address whether Chaney waived her right to file the pres-
ent § 3582(c)(2) sentence reduction motion or to appeal from its denial.
See United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007)
(en banc) (“’[P]lea agreements are construed under the principles of con-
tract law’ and ‘[a] party may waive a contract provision that is beneficial
to it.’ . . . ‘[An appeal] waiver is not binding [if] the government has
waived the issue.’ ” (quoting United States v. Story, 439 F.3d 226, 231
(5th Cir. 2006))).
UNITED STATES v. CHANEY 13399
government further agreed “not to move for, or argue in sup-
port of, any sentence other than the sentence determined by
the sentencing guidelines consistent with the stipulations
herein.”
Notwithstanding the plea agreement, the presentence report
(“PSR”) deviated from the parties’ stipulations because,
according to the report, Chaney was eligible for a “leadership
role” enhancement under U.S.S.G. § 3B1.1. In light of this
upward adjustment, the PSR calculated a base offense level of
35, rather than 31, and recommended that Chaney be sen-
tenced to a term of imprisonment of 235 months, at the bot-
tom of the Guidelines range of 235 to 293 months.
Citing language from the plea agreement, Chaney objected
to the PSR’s calculation of the Guidelines range because it
included a non-stipulated upward adjustment. The govern-
ment responded in its 5K1 letter that “[r]egardless of the
math, the government’s belief is that the appropriate sentence
. . . is 108 months.” Noting that the government “d[oes]n’t
care much one way or another” whether the leadership
enhancement applies, “as long as 9 years is the bottom line,”
the district court found that “the total offense level is 35,” and
“[t]he guideline range is as specified in the [PSR]” (i.e., 235
to 293 months), but sentenced Chaney to 103 months, 56%
below the minimum Guidelines sentence.
B. Section 3582(c)(2) Hearings
The Guidelines for crack cocaine offenses were amended
after Chaney’s judgment became final. See Guidelines Man-
ual (2007), Appendix C, Amendment 706. The amendment
adjusts downward by two levels the base offense level
assigned to each threshold quantity of crack cocaine listed in
the Drug Quantity Table in U.S.S.G. § 2D1.1. Amendment
706 authorizes sentence reductions pursuant to 18 U.S.C.
§ 3582(c)(2) for crack cocaine offenders sentenced prior to
13400 UNITED STATES v. CHANEY
November 1, 2007. See United States v. Ross, 511 F.3d 1233,
1237 n.2 (9th Cir. 2008).
Chaney filed a § 3582(c)(2) sentence reduction motion in
light of Amendment 706. She argued that she had received a
56% downward departure from the 235-month Guidelines
sentence, and, invoking U.S.S.G. § 1B1.10(b)(1), asserted that
she should receive a “comparable” departure under the
revised Guidelines sentence of 188 months (i.e., a final sen-
tence of 83 months, reduced from 103 months). The govern-
ment opposed the motion, arguing that Chaney’s sentence was
not “based on” the Guidelines within the meaning of
§ 3582(c)(2), and therefore that a reduction of sentence was
not warranted.
The district court held two hearings on the motion. In the
first hearing, the court noted, “I have very little recollection
of this case,” and adjourned the hearing to give the parties and
the court an opportunity to more carefully review the record.
At the second hearing, the court repeatedly stated its belief
that “this was not a sentence ordained by the guidelines.” For
example, the court stated that Chaney had been sentenced
according to “the totality of the circumstances” rather than the
Guidelines; that the “case . . . really deals with a sentence
which was not at all tied to the guidelines”; that although “the
guidelines were the starting point, . . . they weren’t an ending
point at all”; and that “[t]his is a case which does not appear
to me to be a case based on the guidelines.”
At the government’s insistence that “probably the safest
way” for the district court to deny Chaney’s motion would be
to assume arguendo that her sentence was based on the Guide-
lines and to “decline in its discretion based on all the facts not
to give the proportional 56 percent . . . reduction,” the court
ultimately declined in its discretion to make the commensu-
rate departure. Chaney timely appealed.
UNITED STATES v. CHANEY 13401
II. DISCUSSION
A. Jurisdiction & Standard of Review
Our jurisdiction to review discretionary denials of
§ 3582(c)(2) sentence reduction motions rests on 28 U.S.C.
§ 1291. United States v. Colson, 2009 WL 2185406, at *1
(9th Cir. July 23, 2009). We review such denials for abuse of
discretion. Id.; see also United States v. Sprague, 135 F.3d
1301, 1304 (9th Cir. 1998) (citing United States v. Townsend,
98 F.3d 510, 512 (9th Cir. 1996) (per curiam)). “ ‘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 finding of
material fact.’ ” Sprague, 135 F.3d at 1304 (quoting Kayes v.
Pacific Lumber Co., 51 F.3d 1449, 1464 (9th Cir. 1995)).
Underlying questions of law are reviewed de novo. United
States v. Paulk, 569 F.3d 1094, 1095 (9th Cir. 2009) (per
curiam) (citing Townsend, 98 F.3d at 513.).
B. Whether § 3582(c)(2) Requires a Two-step Analysis
Chaney first argues that § 3582(c)(2) required the district
court, before denying her sentence reduction motion, to deter-
mine what sentence it would have imposed had Amendment
706 been in effect at her original sentencing, and that denying
her motion without this determination was an abuse of discre-
tion. The government counters that “there is no requirement
in the Ninth Circuit that a district court engage in a two-step
analysis” that necessitates a determination of what sentence it
would have imposed, and that the district court did all that
was required of it in disposing of Chaney’s § 3582(c)(2)
motion.
We agree. It is well settled that “ ‘[s]tatutory interpretation
begins with the plain language of the statute.’ ” Coos County
Bd. of County Comm’rs v. Kempthorne, 531 F.3d 792, 803-04
(9th Cir. 2008) (quoting K & N Eng’g, Inc. v. Bulat, 510 F.3d
1079, 1081 (9th Cir. 2007)). Here, no plausible reading of the
13402 UNITED STATES v. CHANEY
plain language of § 3582(c)(2) requires the district court to
determine at all what sentence it would have imposed had the
amendment been in effect at the original sentencing, much
less to do so mandatorily prior to determining whether a
reduction is appropriate.
[1] By its plain terms, § 3582(c)(2) requires that the district
court: (1) determine whether the defendant was “sentenced to
a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. 994(o)”; (2) “consider[ ] the factors set
forth in section 3553(a) to the extent that they are applicable”;
and (3) determine whether “a reduction is consistent with
applicable policy statements issued by the Sentencing Com-
mission.” 18 U.S.C. § 3582(c)(2). There is simply no other
requirement to be found in the plain text of the statute.
Chaney’s assertion that “there is no ambiguity” that
§ 3582(c)(2) requires a sequential two-step analysis is there-
fore without foundation.
In the absence of a persuasive textual argument, Chaney
relies primarily on two out-dated cases from the Eighth and
Eleventh Circuits that have been abrogated by recent changes
to the Guidelines. In United States v. Vautier, 144 F.3d 756
(11th Cir. 1998), the Eleventh Circuit determined that
“§ 3582(c)(2) and the Sentencing Guidelines together” create
a “two-step analysis” that requires a district court, first, to
“substitute the amended guideline range for the originally
applied guideline range and determine what sentence it would
have imposed,” and, second, “in light of the conclusion
reached in the first step,” to “determine whether or not to
reduce the defendant’s original sentence.” Id. at 760 (citing
U.S.S.G. § 1B1.10(b)). In United States v. Wyatt, 115 F.3d
606 (8th Cir. 1997), the Eighth Circuit similarly concluded
that “the Guidelines instruct the sentencing court to consider
what sentence it would have imposed had the retroactive
amendment been in effect at the time the defendant was sen-
tenced” before “mak[ing] a discretionary determination of
UNITED STATES v. CHANEY 13403
whether to reduce the defendant’s term of imprisonment.” Id.
at 608-09 (citing U.S.S.G. § 1B1.10(b) and 18 U.S.C.
§ 3582(c)(2)).
[2] In developing this two-step sequence, however, both
decisions expressly relied on U.S.S.G. § 1B1.10(b) (1997),
which, at the time each case was decided, expressly instructed
a district court presented with a § 3582(c)(2) motion to “con-
sider the sentence that it would have imposed had the amend-
ment(s) to the guidelines . . . been in effect at the time the
defendant was sentenced.” U.S.S.G. § 1B1.10(b) (1997). In
2008, however, the Sentencing Commission amended the
Guidelines so they now require a district court to determine
only “the amended guideline range that would have been
applicable,” rather than the “term of imprisonment it would
have imposed.” Compare U.S.S.G. § 1B1.10(b) (2007) with
U.S.S.G. § 1B1.10(b)(1) (2008).2 Here, there is no dispute that
the district court did “determine the amended guideline range
that would have been applicable.” Accordingly, the district
court did not abuse its discretion for failing to determine what
sentence it would have imposed had Amendment 706 been in
effect at the time of the original sentencing.
C. Clear Error Respecting the Leadership
Enhancement
Chaney also argues that the district court abused its discre-
tion because it was “confused” and “misunderst[ood]”
whether the leadership enhancement had been applied.
Because the leadership enhancement was imposed notwith-
standing the plea agreement, according to Chaney, “it cannot
be said that the court exercised its discretion in a fair and judi-
cious manner” in light of its confusion.
2
The 2008 amendment to § 1B1.10 took effect on March 3, 2008; the
district court decided Chaney’s § 3582(c)(2) motion on April 22, 2008.
13404 UNITED STATES v. CHANEY
[3] This argument is meritless. Although a district court can
abuse its discretion by basing a decision on a clearly errone-
ous finding of fact, Sprague, 135 F.3d at 1304, there is no
doubt here that the district court did find that it originally
included the leadership enhancement in its original Guidelines
calculation or that it did consider the same enhancement in its
§ 3582(c)(2) recalculation of the Guidelines range.
AFFIRMED.