NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 19 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 12-10180
Plaintiff - Appellant, DC No. 3:08-0776 EMC
v.
MEMORANDUM *
TREARL MALONE,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted December 7, 2012
San Francisco, California
Before: HAWKINS, TASHIMA, and MURGUIA, Circuit Judges.
The United States appeals the district court’s order reducing Appellee Trearl
Malone’s sentence under 18 U.S.C. § 3582(c)(2). We conclude that Malone
waived his right to move for a sentence reduction under § 3582(c)(2) in his
underlying plea agreement. Accordingly, we reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
In his plea agreement, Malone waived “any right [he] may have to file any
collateral attack on [his] conviction or sentence, including a . . . motion under 18
U.S.C. § 3582 . . . .” Such a waiver is enforceable if “(1) the language of the
waiver encompasses the relief sought, and (2) the waiver is knowingly and
voluntarily made.” United States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009)
(internal quotation marks omitted). Malone does not dispute that the agreement’s
language squarely waived his right to file a § 3582 motion or that the waiver was
knowing and voluntary. Instead, Malone argues that the waiver is unenforceable
because (1) it would result in a “manifest injustice,” and (2) the district court had
sua sponte authority to grant a § 3582 sentence reduction. The district court did
not address the government’s waiver argument in its sentence reduction order,
although the issue was properly raised.
First, even assuming that plea agreement waivers can be excused to avoid
“manifest injustice,” Malone has failed to make such a showing in this case. The
record does not evince any recognized ground for excusing waiver, such as “claims
involving breach of the plea agreement, racial disparity in sentencing among
codefendants or an illegal sentence imposed in excess of a maximum statutory
penalty.” United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996).
Moreover, “a favorable change in the law does not entitle a defendant to renege on
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a knowing and voluntary guilty plea.” United States v. Cortez-Arias, 425 F.3d
547, 548 (9th Cir. 2005). Accordingly, there is no manifest injustice to excuse
enforcement of the waiver.
Second, although § 3582(2)(c) authorizes a court to reduce a defendant’s
sentence “on its own motion,” that power was not exercised in this case. Malone
argues that his § 3582 motion “merely alerted the district court that a sentence
reduction could be warranted.” However, Malone’s filing was not framed as a
notice to the court, but instead as a formal motion. And, in granting the requested
relief, the district court explicitly granted the motion and did not rely on its sua
sponte authority. Accordingly, the district court’s unexercised sua sponte authority
cannot be invoked to excuse Malone’s violation of the express terms of the plea
agreement.
The order of the district court granting Malone’s § 3582 motion is reversed
and the case is remanded with directions to reinstate Malone’s original sentence.
REVERSED and REMANDED.
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