FILED
NOT FOR PUBLICATION
JUL 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10532
Plaintiff-Appellee, D.C. No.
1:12-cr-00507-DKW-1
v.
RANDALL KAWIKA CHAR, AKA MEMORANDUM*
Randall K. Char,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted June 16, 2017
Honolulu, Hawaii
Before: FISHER, PAEZ and NGUYEN, Circuit Judges.
Randall Kawika Char appeals from the district court’s judgment and
challenges the 144-month sentence imposed following his guilty plea conviction
for two counts of distributing methamphetamine in violation of 21 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
§ 841(a)(1) and (b)(1)(A). We have jurisdiction under 28 U.S.C. § 1291, and we
vacate and remand for resentencing.
1. A defendant is eligible for a sentencing reduction under 18 U.S.C. §
3582(c)(2) only if his sentence was “based on” a subsequently lowered guidelines
range. See United States v. Rodriguez-Soriano, 855 F.3d 1040, 1042 (9th Cir.
2017). Although Char initially argued the district court should have reduced his
sentence beyond 144 months, he now concedes the district court should not have
reduced his sentence under § 3582(c)(2) at all. Char’s sentence was not “based on”
a subsequently lowered guidelines range, but on a statutory mandatory minimum
and a substantial assistance motion. See 21 U.S.C. § 841(b)(1)(A) and 18 U.S.C.
§ 3553(e). Notwithstanding this error, we will not enlarge Char’s sentence. A
defendant “who appeals but faces no cross-appeal can proceed anticipating that the
appellate court will not enlarge his sentence.” Greenlaw v. United States, 554 U.S.
237, 252 (2008).
2. Upon motion of the government, a district court may impose a sentence
below a statutory mandatory minimum to reflect a defendant’s substantial
assistance in the investigation or prosecution of others. See 18 U.S.C. § 3553(e).
The district court erred procedurally by not adequately explaining why it rejected
the government’s recommendation for a 10-year sentence reduction, from 240 to
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120 months. See Gall v. United States, 552 U.S. 38, 51 (2007) (holding a district
court commits procedural error when it does not “adequately explain the chosen
sentence”). The district court did not give “substantial weight” to the
government’s evaluation of the defendant’s assistance, see U.S.S.G. § 5K1.1 cmt.
n.3 (“Substantial weight should be given to the government’s evaluation of the
extent of the defendant’s assistance, particularly where the extent and value of the
assistance are difficult to ascertain.”); nor did it address Char’s specific argument
that his rehabilitation affected his assistance, see United States v. Carty, 520 F.3d
984, 992-93 (9th Cir. 2008) (en banc) (“[W]hen a party raises a specific,
nonfrivolous argument . . . the judge should normally explain why he accepts or
rejects the party’s position.”). Here, the government’s recommendation for a
considerable reduction of 10 years recognized that Char lived up to his end of the
agreement and provided substantial assistance in the investigation notwithstanding
that it was somewhat less than anticipated due to factors beyond his control.
VACATED AND REMANDED. On remand, the district court shall
reconsider the government’s recommendation for a 10-year sentence reduction but
may not enlarge Char’s sentence beyond 144 months. See Greenlaw, 554 U.S.
at 252.
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