FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50422
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-00923-SJO-5
JERMAINE HARDIMAN, AKA J-
Killa,
Defendant-Appellant.
JERMAINE HARDIMAN, AKA J- No. 18-56633
Killa,
Petitioner-Appellant, D.C. Nos.
2:16-cv-06524-SJO
v. 2:10-cr-00923-SJO-5
UNITED STATES OF AMERICA,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
2 UNITED STATES V. HARDIMAN
Submitted November 20, 2020 *
Pasadena, California
Filed December 15, 2020
Before: Richard A. Paez and John B. Owens, Circuit
Judges, and Morrison C. England, Jr., ** Senior
District Judge.
Per Curiam Opinion
SUMMARY ***
28 U.S.C. § 2255 / 18 U.S.C. § 3582(c)(2)
In consolidated appeals, the panel affirmed the district
court’s denial of Jermaine Hardiman’s motions under
28 U.S.C. § 2255 and 18 U.S.C. § 3582(c)(2) in light of
United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir.
2016), which held that a district court is not entitled to make
a drug quantity finding in excess of that found by the jury in
a special verdict.
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Morrison C. England, Jr., United States Senior
District Judge for the Eastern District of California, sitting by
designation.
***
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. HARDIMAN 3
Hardiman argued that the district court erred by denying
his § 2255 motion because, under Pimentel-Lopez, the court
violated his Sixth Amendment rights when it found for
sentencing purposes that he was responsible for distributing
a higher amount of drugs than the jury specifically found.
The panel held that Pimentel-Lopez announced a “new” rule
of criminal procedure, and thus does not apply retroactively
to cases on collateral review. Because Pimentel-Lopez is
inapplicable to Hardiman’s § 2255 motion, the panel held
that the district court did not err by denying it.
Hardiman also argued that the district court erred by
denying his § 3582(c)(2) motion in light of Pimentel-Lopez.
The district court determined that Amendment 782 to the
Sentencing Guidelines retroactively reduced Hardiman’s
base offense level and that he was eligible to be resentenced
pursuant to a new Guidelines range, but that the 18 U.S.C.
§ 3553(a) factors and the circumstances of his case did not
warrant a sentencing reduction. The panel explained that
Hardiman’s arguments about Pimentel-Lopez were not
affected by Amendment 782 and therefore are outside the
scope of the proceeding authorized by § 3582(c)(2). The
panel concluded that the district court therefore did not err at
the § 3582(c)(2) proceeding by failing to revisit its drug
quantity finding under Pimentel-Lopez and the Sixth
Amendment.
COUNSEL
James S. Thomson and Ethan H. Stone, Berkeley, California,
for Defendant-Appellant.
Nicola T. Hanna, United States Attorney; Brandon D. Fox,
Chief, Criminal Division; L. Ashley Aull, Criminal Appeals
4 UNITED STATES V. HARDIMAN
Section; Bruce K. Riordan, Assistant United States
Attorney, Violent & Organized Crime Section; United States
Attorney’s Office, Los Angeles, California; for Plaintiff-
Appellee.
OPINION
PER CURIAM:
In these consolidated appeals, Jermaine Hardiman
argues that the district court erred by denying his motions
under 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c)(2) in light
of our decision in United States v. Pimentel-Lopez, 859 F.3d
1134 (9th Cir. 2016). We affirm the district court’s denial
of both motions.
At trial, a jury specially found Hardiman responsible for
distributing “[a]t least 28 grams but less than 280 grams” of
cocaine base. However, at sentencing, the district court
“disagree[d] with the jury” and found that Hardiman should
be held responsible for more than 280 grams of cocaine base.
This higher drug amount increased Hardiman’s base offense
level and thus his U.S. Sentencing Guidelines range. After
Hardiman’s direct appeal became final, we held in Pimentel-
Lopez that a district court is not “entitled to make a drug
quantity finding in excess of that found by the jury in its
special verdict.” 859 F.3d at 1140. And after Pimentel-
Lopez, the district court denied Hardiman’s § 2255 and
§ 3582(c)(2) motions.
I. Section 2255 Motion
Hardiman argues that the district court erred by denying
his § 2255 motion because, under Pimentel-Lopez, the court
violated his Sixth Amendment rights when it found for
UNITED STATES V. HARDIMAN 5
sentencing purposes that he was responsible for distributing
a higher amount of drugs than the jury specifically found. 1
However, we hold that Pimentel-Lopez does not apply
retroactively to cases on collateral review under Teague v.
Lane, 489 U.S. 288, 310 (1989) (plurality opinion).
Teague held that as a general matter, “new constitutional
rules of criminal procedure will not be applicable to those
cases which have become final before the new rules are
announced.” 489 U.S. at 310; see also Schriro v. Summerlin,
542 U.S. 348, 352 (2004) (“New rules of procedure . . .
generally do not apply retroactively.”). 2
“[A] case announces a new rule when it breaks new
ground or imposes a new obligation on the States or the
Federal Government.” Teague, 489 U.S. at 301. “To put it
differently, a case announces a new rule if the result was not
dictated by precedent existing at the time the defendant’s
conviction became final.” Id. “And a holding is not so
dictated . . . unless it would have been ‘apparent to all
reasonable jurists.’” Chaidez v. United States, 568 U.S. 342,
347 (2013) (citation omitted); see also Gonzalez v. Pliler,
341 F.3d 897, 904 (9th Cir. 2003) (“If the rule a habeas
petitioner seeks to assert can be ‘meaningfully distinguished
1
We review de novo the district court’s denial of Hardiman’s § 2255
motion. See United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045
(9th Cir. 2010). We reject the Government’s argument that plain error
review applies because Hardiman purportedly failed to adequately raise
this issue in his § 2255 motion. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (“A document filed pro se is ‘to be liberally construed.’” (citation
omitted)).
2
New substantive, rather than procedural, rules usually apply
retroactively. Schriro, 542 U.S. at 351–52. Hardiman does not contest
that Pimentel-Lopez concerns a procedural rule, and that the exceptions
to the Teague retroactivity bar are inapplicable here.
6 UNITED STATES V. HARDIMAN
from that established by binding precedent at the time his . . .
conviction became final,’ the rule is a ‘new’ one, typically
inapplicable on collateral review.” (citation omitted)).
Hardiman argues that Pimentel-Lopez did not announce
a “new” procedural rule because its holding was dictated by
the existing precedent in Mitchell v. Prunty, 107 F.3d 1337,
1339 n.2 (9th Cir. 1997), overruled on other grounds by
Santamaria v. Horsley, 133 F.3d 1242, 1248 (9th Cir. 1998)
(en banc). Pimentel-Lopez relied on a footnote in Mitchell,
which noted that “[s]pecial findings . . . are dispositive of the
questions put to the jury” and ignoring them “would be a
clear violation of petitioner’s Sixth Amendment rights.”
Pimentel-Lopez, 859 F.3d at 1140 (quoting Mitchell,
107 F.3d at 1339 n.2). Although Pimentel-Lopez relied on
this footnote in Mitchell, its result was not dictated by
Mitchell for purposes of Teague. In particular, Mitchell
concerned facts found by the jury that related to the
defendant’s guilt or innocence, rather than a drug quantity
finding relevant only for sentencing. See id. at 1140–41
(describing how the issue differed in Mitchell (citing
Mitchell, 107 F.3d at 1342)).
Moreover, the fact that five judges joined Judge Graber’s
dissent from the denial of rehearing Pimentel-Lopez en banc
(which made no mention of Mitchell) supports that it was not
“apparent to all reasonable jurists” that Mitchell dictated the
result in Pimentel-Lopez. Chaidez, 568 U.S. at 347 (citation
omitted); see also Pimentel-Lopez, 859 F.3d at 1136
(Graber, J., dissenting from the denial of rehearing en banc)
(stating that Pimentel-Lopez’s “holding is wrong both as a
matter of logic and as a matter of Supreme Court law”). As
Judge Graber noted at the time, Pimentel-Lopez created a
split with at least five other circuits. See Pimentel-Lopez,
859 F.3d at 1138 n.1 (Graber, J., dissenting from the denial
UNITED STATES V. HARDIMAN 7
of rehearing en banc) (citing United States v. Webb, 545 F.3d
673, 677 (8th Cir. 2008); United States v. Florez, 447 F.3d
145, 156 (2d Cir. 2006); United States v. Magallanez,
408 F.3d 672, 683–85 (10th Cir. 2005); United States v.
Goodine, 326 F.3d 26, 32–34 (1st Cir. 2003); United States
v. Smith, 308 F.3d 726, 743–45 (7th Cir. 2002)). 3
Thus, Pimentel-Lopez announced a “new” rule of
criminal procedure which is not retroactive under Teague.
Accordingly, Pimentel-Lopez is inapplicable to Hardiman’s
§ 2255 motion, and the district court did not err by denying
the motion.
II. Section 3582(c)(2) Motion
Hardiman also argues that the district court erred by
denying his § 3582(c)(2) motion in light of Pimentel-Lopez. 4
Hardiman filed a § 3582(c)(2) motion to reduce his sentence
based on Amendment 782 to the Guidelines. See United
States v. Mercado-Moreno, 869 F.3d 942, 949 (9th Cir.
2017) (discussing Amendment 782). The district court
3
More recently, the Fifth and Third Circuits have disagreed with
Pimentel-Lopez. See United States v. Leontaritis, 977 F.3d 447, 451 (5th
Cir. 2020); United States v. Lopez-Esmurria, 714 F. App’x 125, 127 (3d
Cir. 2017) (unpublished).
4
Generally, “we review § 3582(c)(2) sentence reduction decisions
for abuse of discretion.” United States v. Dunn, 728 F.3d 1151, 1155
(9th Cir. 2013). The Government argues that plain error review applies
here because Hardiman did not challenge the drug quantity finding in his
§ 3582(c)(2) motion. See United States v. Gonzalez-Aguilar, 718 F.3d
1185, 1187 (9th Cir. 2013). Hardiman counters that de novo review
applies because the question is “purely one of law.” United States v.
Lillard, 935 F.3d 827, 833 (9th Cir. 2019) (citation omitted). We need
not resolve the parties’ dispute regarding the standard of review because
the district court did not err under any standard.
8 UNITED STATES V. HARDIMAN
determined that Amendment 782 retroactively reduced
Hardiman’s base offense level and that he was eligible to be
resentenced pursuant to a new Guidelines range, but that the
18 U.S.C. § 3553(a) factors and the circumstances of his
case did not warrant a sentencing reduction.
As the Supreme Court explained in Dillon v. United
States, a § 3582(c)(2) proceeding is “not a plenary
resentencing” but rather “only a limited adjustment to an
otherwise final sentence” as “a congressional act of lenity
intended to give prisoners the benefit of later enacted
adjustments to the judgments reflected in the Guidelines.”
560 U.S. 817, 826, 828 (2010). “In other words, Dillon
concluded that congressional authorization to reduce a term
of imprisonment does not necessarily carry with it
authorization to correct any errors in the original sentencing
proceeding.” United States v. Kelley, 962 F.3d 470, 475, 478
(9th Cir. 2020) (holding that resentencing under the similar
First Step Act asks the district court to “consider a
counterfactual situation where only a single variable is
altered” and “does not authorize the district court to consider
other legal changes that may have occurred after the
defendant committed the offense”). Hardiman’s arguments
about Pimentel-Lopez “were not affected by” Amendment
782 and therefore are “outside the scope of the proceeding
authorized by § 3582(c)(2).” Dillon, 560 U.S. at 831.
Moreover, even under Pimentel-Lopez, a district court
has the discretion in its assessment of the § 3553(a) factors
to consider a drug quantity higher than the amount
specifically found by the jury. See 859 F.3d at 1142 (stating
that “a jury’s finding that the quantity of drugs falls in the
0 to 50 range” does not “always preclude a district judge
from punishing the defendant for quantities in excess of
50 grams” because “[t]he judge may, of course, depart
UNITED STATES V. HARDIMAN 9
upward from the sentencing range generated by the jury’s
findings”).
Thus, the district court did not err at the § 3582(c)(2)
proceeding by failing to revisit its drug quantity finding
under Pimentel-Lopez and the Sixth Amendment. 5
Hardiman does not otherwise argue that the district court
abused its discretion by denying his § 3582(c)(2) motion
based on its assessment of the § 3553(a) factors or the
circumstances of his case.
AFFIRMED. 6
5
In Mercado-Moreno, we held that that “when deciding a
§ 3582(c)(2) motion, a district court may supplement the original
sentencing court’s quantity findings only when supplemental findings
are necessary to determine the defendant’s eligibility for a sentence
reduction in light of a retroactive Guidelines amendment.” 869 F.3d
at 948. Here, such a supplemental finding was unnecessary to determine
Hardiman’s eligibility for a sentence reduction.
6
Hardiman’s pending request “to expedite the time between oral
argument and disposition” (Dkt. No. 47) is DENIED as moot.