FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10287
Plaintiff-Appellee,
v. D.C. No.
2:03-CR-00559-RCJ
ANDREW COLSON,
ORDER
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding
Submitted February 23, 2009*
San Francisco, California
Filed July 23, 2009
Before: Alex Kozinski, Chief Judge, Michael Daly Hawkins
and Ronald M. Gould, Circuit Judges.
COUNSEL
Franny A. Forsman, Federal Public Defender, Jason F. Carr,
Assistant Federal Public Defender, Las Vegas, Nevada, for
the appellant.
Gregory A. Browner, United States Attorney, Peter S. Levitt,
Assistant United States Attorney, Las Vegas, Nevada, for the
appellee.
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
9425
9426 UNITED STATES v. COLSON
ORDER
Andrew Colson (“Colson”) appeals the district court’s dis-
cretionary denial of his 18 U.S.C. § 3582(c)(2) sentence
reduction motion. Although we have previously held that such
decisions are not reviewable on appeal, see United States v.
Lowe, 136 F.3d 1231, 1233 (9th Cir. 1998), Colson argues
that Lowe is no longer good law in light of United States v.
Booker, 543 U.S. 220 (2005), and United States v. Carty, 520
F.3d 984 (9th Cir. 2008) (en banc).
We agree. After Booker and Carty each of which held that
any element of a sentencing decision, whether discretionary
or not, may be “unreasonable” and therefore unlawful Lowe‘s
conclusion that discretionary sentencing decisions are unre-
viewable on appeal is no longer good law. We conclude that
18 U.S.C. § 3582(c)(2) sentence reduction decisions are
reviewable in their entirety for abuse of discretion under 28
U.S.C. § 1291.
The order filed March 10, 2009, is hereby VACATED. The
government’s Motion to Dismiss Appeal is DENIED, and its
Motion to Toll Briefing Schedule During Pendency of Motion
is GRANTED. The parties shall file their briefs within the
time set forth in Federal Rule of Appellate Procedure 31(a),
commencing from the filed date of this order.
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United States v. Andrew Colson
Combined Opinion