FILED
NOT FOR PUBLICATION
DEC 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30264
Plaintiff-Appellee, D.C. No.
4:10-cr-00014-RRB-1
v.
MICHAEL LEE DUNSHIE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted December 8, 2017**
Seattle, Washington
Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.
Defendant-Appellant Michael Dunshie appeals an order denying his motion
for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. § 1291, and we review de novo. United States v. Spears, 824 F.3d 908,
912 (9th Cir. 2016). We affirm.
The district court did not have jurisdiction to grant Dunshie’s motion.
Because Dunshie was sentenced after the district court accepted the parties’ Rule
11(c)(1)(C) plea agreement, he is not eligible for relief under § 3582(c)(2) unless
“the district court’s ‘decision to accept the plea and impose the recommended
sentence’ was ‘based on the [U.S. Sentencing] Guidelines.’” United States v.
Davis, 825 F.3d 1014, 1027 (9th Cir. 2016) (en banc) (quoting Freeman v. United
States, 564 U.S. 522, 534 (2011) (plurality opinion)).
The record illustrates that the district court accepted the parties’ plea
agreement for reasons unrelated to the Guidelines. Although the district court
briefly acknowledged the Guidelines at sentencing and permitted the parties to
make Guidelines-based arguments, the Guidelines did not influence the sentence.
See id. at 1023 n.9. In fact, at one point, the district court remarked “none of this
really matters.” Instead, the district court repeatedly emphasized that the sentence
was a function of the plea agreement, which allowed Dunshie to avoid serious
mandatory prison time for uncharged offenses. In exchange for Dunshie’s plea, the
government agreed not to prosecute Dunshie for firearms offenses including a
violation of 18 U.S.C. § 924(c), which carries a mandatory five-year sentence
2
enhancement. The government also agreed not to file an information under 21
U.S.C. § 851 regarding Dunshie’s two prior felony drug convictions, which
threatened a mandatory minimum of ten years and the potential for a life sentence.
See 21 U.S.C. § 841(b)(1)(B). The looming specter of those penalties led the
district court to conclude that “the plea agreement [was] a good one for [Dunshie],”
even though the agreement recommended a sentence (10 years) that was
significantly higher than the upper end of the Guidelines range for Dunshie’s
offense of conviction (71 months). In short, the record reveals that the Guidelines
did not inform the district court’s decision to accept the plea agreement and impose
the recommended sentence.
AFFIRMED.
3