FILED
NOT FOR PUBLICATION
AUG 22 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30365
Plaintiff-Appellee, D.C. No. 6:06-cr-60045-AA-1
v.
MEMORANDUM*
WILLIAM JOHN MAHAN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Argued and Submitted November 7, 2016
Portland, Oregon
Before: McKEOWN, W. FLETCHER, and FISHER, Circuit Judges.
Defendant-Appellant Mahan appeals the district court’s denial of his motion
for sentence reduction pursuant to 18 U.S.C. § 3582(c). We have jurisdiction
pursuant to 18 U.S.C. § 3742(a)(1), and vacate and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
On November 25, 2008, the district court sentenced Mahan to a 120-month
term of imprisonment for felon in possession of a firearm, 18 U.S.C. § 922(g), and
possessing with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1) and
(b)(1)(c). The district court also sentenced Mahan to a consecutive mandatory 60-
month minimum for possessing a firearm in furtherance of a drug trafficking
crime, 18 U.S.C. § 924(c). His total sentence was 180 months. The first sentence of
120 months is at issue in this case.
At his original sentencing, the district court departed from the recommended
guidelines range for Mahan’s firearm and drug possession convictions. Mahan’s
original guidelines range, based on a total offense level of 28 and a Criminal
History Category of VI, was 140 to 175 months. The Probation Office verified this
calculation and recommended a sentence at the low-end of the guidelines range,
140 months. However, the district court determined that 140 months did not
account for the time Mahan had already served in state prison for the same crime
and his substantial progress toward rehabilitation. Prior to his federal indictment on
April 19, 2006, Mahan had been arrested by state authorities for violating post-
prison supervision conditions imposed for a prior state conviction. He remained in
state custody for that probation violation until December 10, 2007 – approximately
twenty months after the federal indictment. To account for this prior incarceration,
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among other factors, the district judge granted Mahan a variance and reduced his
sentence for firearm and drug possession to 120 months.
Pursuant to U.S. Sentencing Commission Amendment 782, promulgated in
2014, the amended base offense level for Mahan’s drug charge is now 26,
generating a new reduced guidelines range of 120 to 150 months. Mahan sought a
reduction in sentence pursuant to this new guidelines range, and requested that the
district court reduce his sentence to a term of 100-months to again credit him for
the twenty months that he served in state custody.
The district court denied Mahan’s motion. The court found that U.S.S.G. §
1B1.10(b)(2)(B) prevented the court from reducing Mahan’s sentence as requested
because “the court shall not reduce a defendant’s term of imprisonment to a term
that is less than the amended guideline range.” A district court’s ruling on a motion
for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) is reviewed for abuse
of discretion. United States v. Chaney, 581 F.3d 1123, 1125 (9th Cir. 2013). “A
district court may abuse its discretion if it does not apply the correct law or if it
rests its decision on a clearly erroneous finding of material fact.” Id. Our review of
within-guidelines sentences is particularly deferential. See United States v.
Williams, 636 F.3d 1229, 1234 (9th Cir. 2011) (“This special deference reflects the
fact that when a district court imposes a within-Guidelines sentence . . .‘[t]hat
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double determination significantly increases the likelihood that the sentence is a
reasonable one.’”) (alteration in the original). Whether the district court can grant
prison credit time is a question of law reviewed de novo. See United States v.
Peters, 470 F.3d 907, 908–09 (9th Cir. 2006) (per curiam).
We hold in an opinion filed today that § 1B1.10(b)(2)(B) does not preclude
the district court from crediting time served in state prison as part of a defendant’s
“term of imprisonment.” See United States v. Brito, __ F.3d __ (9th Cir. 2017).
We vacate and remand to allow the district court to exercise its discretion in light
of our opinion in Brito.
VACATED AND REMANDED.
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United States v. Brito, No. 15-30229 FILED
McKEOWN, Circuit Judge, dissenting: AUG 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The key issue in this appeal is whether the phrase “term of imprisonment” in
18 U.S.C. § 3582(c)(2) and the federal Sentencing Guidelines includes time
already served in state custody such that the court is not bound by the guideline
minimum. The majority says yes, but I respectfully dissent. The statute relates to
reduction of an original sentence based on retroactive changes to the Guidelines.
However, the Guidelines affirmatively prohibit reducing the “term of
imprisonment” below the lower end of the amended guideline range.1 The
majority offers no precedent on this “term of imprisonment” question but
endeavors to skirt the guideline restriction by reference to United States v. Drake,
49 F.3d 1438 (9th Cir. 1995). In my view, the majority stretches the decision in
Drake from a context where it makes sense to one where it does not.
In Drake, which involved an original sentencing, we concluded that district
courts may run concurrent federal and state sentences consecutively to meet a
mandatory minimum. Id. at 1440–41. Gilbert Brito’s case is missing all of the
crucial elements. Most importantly, Brito’s appeal stems from a sentence-
reduction proceeding where much of the court’s sentencing discretion has
1
The Guidelines include an exception when a defendant provides substantial
assistance to the government. U.S.S.G. § 1B1.10(b)(2)(B). For ease of reading, I
do not reiterate the exception each time I state the general rule.
evaporated. Second, we don’t have concurrent sentences because Brito had
already completed his state sentence at the time of his federal sentencing. The
original-sentencing judge and Brito’s attorney acknowledged that “[Brito was] not
asking for concurrent time because the [state] time ha[d] run.” These material
differences render Drake inapposite to Brito’s case.
The distinction between an original sentencing and a sentence reduction is
not insignificant. Conflating the two proceedings flouts Congress’s expressed
intention to cabin district courts’ discretion in the latter. The Supreme Court has
emphasized that § 3582(c)(2) “authorize[s] only a limited adjustment to an
otherwise final sentence and not a plenary resentencing proceeding.” Dillon v.
United States, 560 U.S. 817, 826 (2010).
Reflective of that dichotomy, stark differences are apparent on the face of
the statute at issue in Drake and the provisions here. The sentencing statute in
Drake, 18 U.S.C. § 924(e)(1), does not use the Guideline’s “term of imprisonment”
phrase at all. Instead, it provides that the defendant “shall be . . . imprisoned not
less than fifteen years.” That language centers on the length of time that the
defendant is to be “imprisoned,” which plausibly could include time served on a
concurrent state sentence. So long as the defendant spends at least fifteen total
years in prison, the statutory requirement has been satisfied because “[§ 924(e)(1)]
does not specify any particular way in which that imprisonment should be
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achieved.” United States v. Cruz, 595 F.3d 744, 746 (7th Cir. 2010) (citation
omitted).
The verbiage in § 924(e)(1) stands in sharp contrast to the restrictive
language of the Guideline, U.S.S.G. § 1B1.10(b)(2)(A), which states that “the
court shall not reduce the defendant’s term of imprisonment under 18 U.S.C.
§ 3582(c)(2) and this policy statement to a term that is less than the minimum of
the amended guideline range.” That language dictates in forceful terms that a court
may not drop a sentence below the guideline minimum. Whereas § 924(e)(1)
looks to the length of time the defendant is to be imprisoned, § 1B1.10(b)(2)(A)
restricts the court’s ability to impose a particular term of imprisonment. That
difference in focus makes sense because an original sentencing involves a
judgment about how long a defendant should serve, while a sentence reduction
allows minor modifications based on Guidelines changes but without authorizing a
comprehensive resentencing.
More to the point, § 1B1.10(b)(2)(A) links the phrase “term of
imprisonment” to the implementing statute, but § 3582(c)(2) cannot bear Drake’s
state-plus-federal-time interpretation. “Term of imprisonment” appears twice in
§ 3582(c)(2):
[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . . , the court may reduce the
term of imprisonment, after considering the factors set forth in section
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3553(a) to the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.
(Emphases added.) In the first clause, “term of imprisonment” cannot include state
time because district courts are not empowered to “sentence [a defendant] to” state
time, although state time may be subtracted to achieve a fair federal sentence. The
second clause similarly focuses on the district court’s authority, which is limited to
fashioning a federal, not state, sentence. And at multiple places, § 3582(c)(2)
references aspects of distinctly federal sentencing procedure, i.e., the federal
Guidelines and the federal statutes. Read together, § 1B1.10(b)(2)(A) and
§ 3582(c)(2) leave no room for Drake: the bottom of the amended guideline range
provides the absolute floor for the federal sentence.
In light of this unyielding language, it’s no wonder that our precedent
consistently and forcefully states that “a court cannot reduce the sentence to a term
‘that is less than the minimum of the amended [guideline] range.’” United States
v. Finazzo, 841 F.3d 816, 818 (9th Cir. 2016) (quoting § 1B1.10(b)(2)(A)).2 The
majority unjustifiably breaks from this line of authority and creates an anomaly for
2
See also United States v. Davis, 739 F.3d 1222, 1224 (9th Cir. 2014)
(“[Section 1B1.10(b)(2)(A)] prohibits a court from reducing a defendant’s sentence
to a term that is less than the minimum of the amended guidelines range . . . .”);
United States v. Tercero, 734 F.3d 979, 982 (9th Cir. 2013) (“[T]he district court
concluded correctly that under the revised version of § 1B1.10, it could not adjust
[the defendant]’s sentence below 70 months.”).
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defendants who have served state time, upending the streamlined sentence-
reduction proceeding that Congress sought to institute. Even on its own terms, the
majority’s solution to incorporate discharged state time into the phrase “term of
imprisonment” is difficult to understand because the Guidelines treat discharged
state time as a departure. See U.S.S.G. § 5K2.23. In view of these structural and
linguistic statutory differences, Drake cannot simply be carried over from the
original-sentencing context to the sentence-reduction context.
Another key difference compounds the majority’s error: Drake, unlike this
case, involved concurrent sentences. The court in Drake relied on that fact,
framing the issue as one about “the relation between the concurrent sentencing
statutes and the statutory mandatory minimums” and grounding its reasoning in
“concurrent sentencing principles.” 49 F.3d at 1440–41 (citation omitted). As the
Supreme Court later validated, “[j]udges have long been understood to have
discretion to select whether the sentences they impose will run concurrently or
consecutively.” Setser v. United States, 566 U.S. 231, 236 (2012).
Unlike in Drake, we cannot draw on that background rule of broad
discretion here because our case does not involve concurrent sentences, as the
majority tacitly concedes. Our case law is crystal clear that “[i]f a defendant,” like
Brito, “has been released from state prison after having served the term imposed,
no term of imprisonment remains with which the federal sentence can ‘run
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concurrently.’” United States v. Turnipseed, 159 F.3d 383, 387 (9th Cir. 1998);
see also Sentence, Black’s Law Dictionary (10th ed. 2014) (defining “concurrent
sentences” as “[t]wo or more sentences of jail time to be served simultaneously”).
The relevant statutory provision and Guideline use “concurrently” in the same
way: they refer to running a sentence “concurrently” with another that is
“undischarged” or imposed “at the same time.” See 18 U.S.C. § 3584(a); U.S.S.G.
§ 5G1.3(b)(2). And if all of that weren’t enough, Brito’s attorney and the original-
sentencing judge explicitly disavowed that this case involves concurrent
sentencing. This acknowledgement puts even more distance between our case and
Drake.
We should follow § 1B1.10(b)(2)(A) and uphold the district court’s
conclusion that it could not sentence Brito below the bottom of the amended
guideline range. Thus, the district court properly stated that it could give Brito no
less than 70 months. Because Brito’s remaining statutory and constitutional
arguments were rejected in United States v. Padilla-Diaz, 862 F.3d 856 (9th Cir.
2017), I would affirm.
6