United States v. D.M.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50243
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-01821-BTM-1

D.M.,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, Chief District Judge, Presiding

Argued and Submitted April 3, 2017
Pasadena, California

Filed September 7, 2017

Before: Kim McLane Wardlaw and Consuelo M. Callahan,
Circuit Judges, and Virginia M. Kendall,* District Judge.

Opinion by Judge Callahan

*
The Honorable Virginia M. Kendall, United States District Judge for
the Northern District of Illinois, sitting by designation.
2 UNITED STATES V. D.M.

SUMMARY**

Criminal Law

The panel vacated the district court’s order denying the
defendant’s motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2).

The government agreed that the defendant was eligible for
a sentence reduction under United States Sentencing
Guidelines Amendment 782, which lowered the
recommended sentence for drug offenses.

The panel held that despite the defendant’s release from
federal prison, the appeal was not moot.

Agreeing with the Seventh Circuit, the panel held that
U.S.S.G. § 1B1.10(b)(2)(B) allows a court to consider a
number of departures when calculating a reduction in
sentence where the defendant has provided substantial
assistance, and the court is not limited to consideration only
of the departure attributable to substantial assistance. The
panel distinguished United States v. Ornelas, 825 F.3d 548
(9th Cir. 2016), which did not address § 1B1.10(b)(2)(B), an
exception to the policy statement otherwise set forth in
U.S.S.G. § 1B1.10(a). The panel also concluded,
alternatively, that the defendant was entitled to the benefit of
the rule of lenity because the Guideline was ambiguous.

**
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. D.M. 3

COUNSEL

James Fife (argued), Federal Defenders of San Diego, Inc.,
San Diego, California, for Defendant-Appellant.

Helen H. Hong (argued), Assistant United States Attorney,
United States Attorney’s Office, San Diego, California, for
Plaintiff-Appellee.

OPINION

CALLAHAN, Circuit Judge:

D.M. appeals the denial of his motion for a sentence
reduction under 18 U.S.C. § 3582(c)(2). The Government
agrees that D.M. was eligible for a sentence reduction, but
contends that the appeal is moot because D.M. has been
released from federal prison. We hold that the appeal is not
moot, and that United States Sentencing Guideline
§ 1B1.10(b)(2)(B) allows a court to consider a number of
departures when calculating a reduction in sentence where the
defendant has provided substantial assistance. We vacate the
district court’s order denying D.M.’s motion for a sentence
reduction and remand the case to the district court.

FACTUAL BACKGROUND

In April 2012, D.M. was stopped at a border patrol
checkpoint in California. Agents discovered 3.458 kilograms
of methamphetamine and 0.984 kilograms of cocaine. D.M.
was charged with, and subsequently pleaded guilty to,
possession with intent to distribute under 21 U.S.C.
§ 841(a)(1). This triggered a mandatory minimum sentence
4 UNITED STATES V. D.M.

of 120-months incarceration and five years of supervised
release due to the amount of methamphetamine discovered.
21 U.S.C. § 841(b)(1)(A)(viii).

D.M. accepted responsibility and expressed a willingness
to assist law enforcement. Pursuant to 18 U.S.C. § 3553(e),
the government moved to permit the court to impose a
sentence below the 120-month statutory minimum.1 See
18 U.S.C. § 3553(e) (allowing a court to impose a sentence
below the mandatory minimum pursuant to a Government
motion “so as to reflect a defendant’s substantial assistance
in the investigation or prosecution of another person who has
committed an offense”).

D.M.’s original, pre-departure and pre-adjustment offense
level under the United States Sentencing Guidelines (USSG)
was 38. However, following additional adjustments for
acceptance of responsibility and a minor role, as well as
departures for fast track and substantial assistance, D.M.’s
adjusted offense level was 21, which produced an adjusted
guideline range of 57 to 71 months. The district court
imposed a 57-month prison sentence, with five years of
supervised release. The district court specifically retained
jurisdiction to amend D.M.’s term of supervised release
should he exhibit good behavior.

In November 2014, the United States Sentencing
Commission (Sentencing Commission) passed Amendment
782, which lowered the recommended sentence for drug
offenses. See United States v. Navarro, 800 F.3d 1104, 1107

1
Because of his previous criminal convictions, D.M. was not eligible
for “safety valve” relief from the mandatory minimum under 18 U.S.C.
§ 3553(f).
 UNITED STATES V. D.M. 5

(9th Cir. 2015). In particular, Amendment 782 provided for
the lowering of the base offense level of certain drug
convictions by two levels. See United States v. Ornelas,
825 F.3d 548, 553 (9th Cir. 2016). At the same time, the
Sentencing Commission promulgated Amendment 788,
which allowed courts to apply Amendment 782 retroactively.
See Navarro, 800 F.3d at 1107. Thus, Amendment 782
applied to D.M. and lowered his base offense level to 36. See
USSG § 2D1.1(c)(2).

PROCEEDINGS IN THE DISTRICT COURT

In light of Amendments 782 and 788, D.M., with the
Government’s concurrence, moved to reduce his sentence to
51 months. The Government joined D.M.’s request. The
motion was made pursuant to 18 U.S.C. § 3582(c)(2) and
USSG 1B1.10(b)(2)(B). The statute reads:

[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
pursuant to 28 U.S.C. 994(o), upon motion of
the defendant or the Director of the Bureau of
Prisons, or on its own motion, the court may
reduce the term of imprisonment, after
considering the factors set forth in section
3553(a) to the extent that they are applicable,
if such a reduction is consistent with
applicable policy statements issued by the
Sentencing Commission.

18 U.S.C. § 3582(c)(2). The guideline subsection states:
6 UNITED STATES V. D.M.

Exception for Substantial Assistance. If the
term of imprisonment imposed was less than
the term of imprisonment provided by the
guideline range applicable to the defendant at
the time of sentencing pursuant to a
government motion to reflect the defendant’s
substantial assistance to authorities, a
reduction comparably less than the amended
guideline range determined under subdivision
(1) of this subsection may be appropriate.

USSG § 1B1.10(b)(2)(B).

At the initial hearing, the district court expressed
reservations as to whether, in reducing D.M.’s sentence, it
could consider departures other than the departure attributable
to substantial assistance. The district court noted that, if it
could only consider the substantial assistance departure, then
it could not reduce D.M.’s sentence because the minimum
available sentence would be longer than the sentence D.M.
was serving. Seeking clarification on the issue, the district
court ordered further briefing. At a second hearing, the
district court reiterated that it wanted the Government’s
position “in writing” so it could fully consider the
Government’s reasoning before ruling. Following a third
hearing, the district court denied the joint application for
sentence reduction.

The district court defined the issue as: “When a defendant
previously received a substantial assistance departure as well
as an additional departure for fast-track, in granting ‘a
reduction comparably less than the amended guideline range,’
may the Court include in the calculation the fast-track
 UNITED STATES V. D.M. 7

departure?” The court held that USSG § 1B1.10 did not
allow for the inclusion of the fast-track departure.

This conclusion rendered D.M. ineligible for a reduction
in his sentence. Here is the math. In determining D.M.’s
initial sentence, the court determined that the applicable
adjusted offense level was 29, and it granted a four-level
departure under USSG § 5K1.1 for substantial assistance and
another four-level departure under USSG § 5K3.1 for D.M.
having agreed to the fast-track procedure. This produced a
guideline range of 57 to 71 months of imprisonment, and the
district court sentenced D.M. to 57 months. At the
resentencing hearing, D.M.’s adjusted total offense level was
28, which resulted in an amended guideline range of 110 to
137 months. Under the district court’s approach—
considering only the substantial assistance departure in its
calculation—the parties agreed that the four-level departure
for substantial assistance was about 30%. Applying the 30%
reduction to the low end of the amended guideline range, 110
months, produced a proposed minimum sentence of 77
months [110 x 70% = 77]. This is greater than the 57-month
sentence that D.M. had originally received. Thus, because
D.M. had received the benefit of a fast-track departure in his
initial sentence, when that departure was excluded from the
calculation of a reduction of sentence pursuant to
§ 3582(c)(2) and USSG § 1B1.10(b)(2)(B), the minimum
possible sentence was greater than the sentence he had
received, and he was not eligible for a reduction.2

2
Unlike the situation presented in United States v. Rodriguez-
Soriano, 855 F.3d 1040 (9th Cir. 2017), where we held that the defendant
was not eligible for a reduced sentence because the guideline range played
8 UNITED STATES V. D.M.

D.M. filed a timely notice of appeal from the denial of his
motion for a sentence reduction.

THE APPEAL IS NOT MOOT

We first consider the Government’s assertion that this
appeal is moot and should be dismissed. “A case becomes
moot when it no longer satisfies the case-or-controversy
requirement of Article III, section 2, of the Constitution.”
United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2001).
The parties must retain a personal stake in the outcome
throughout the entirety of the proceedings. Id. A defendant
challenging the length of his prison sentence has a personal
stake in the outcome while he serves his sentence. Id. at
1178. This includes when the defendant has completed his
term of incarceration but is still serving a term of supervised
release. Id. “[A] possibility of the court’s reducing or
modifying [a defendant’s] supervised release” satisfies the
case or controversy requirement. Gunderson v. Hood,
268 F.3d 1149, 1153 (9th Cir. 2001).

“The party asserting mootness bears a ‘heavy burden of
establishing that there is no effective relief remaining for a
court to provide.’” United States v. Strong, 489 F.3d 1055,
1059 (9th Cir. 2007) (quoting GATX/Airlog Co. v. U.S. Dist.
Court, 192 F.3d 1304, 1306 (9th Cir. 1999)). In Strong, we
reiterated “that where the district court has the statutory
discretion to modify a defendant’s term of supervised release
following a successful sentencing challenge, the possibility
that the district court may exercise such discretion following

no role in the determination of his initial sentence, here there is no
question that the district court relied on guideline ranges in calculating
D.M.’s sentences.
 UNITED STATES V. D.M. 9

this court’s decision is sufficient to prevent an appeal from
becoming moot.” Id. at 1060. In other words, to avoid
mootness based on a defendant’s release from custody
pending appeal, the district court must have the authority to
reduce the defendant’s supervised release.

The Government posits that, because D.M. has been
released from federal custody, this appeal is moot and should
be dismissed. Citing a couple of our unpublished decisions,
the Government argues that D.M. sought only a reduction of
his custodial sentence and that, once he finished serving his
sentence, no court could provide that relief.3 It further argues
that 18 U.S.C. § 3582(c) does not provide for a reduction in
the supervised release portion of a sentence.

D.M. has been released from prison, and his five-year-
term of supervised release has commenced. Nonetheless, the
appeal is not moot because the district court may modify
D.M.’s term of supervised release. See 18 U.S.C.
§ 3583(e)(2) (“The court may. . . modify, reduce, or enlarge
the conditions of supervised release, at any time prior to the
expiration or termination of the term of supervised release.”).
In addition, in December 2017, D.M. will be able to move the
district court under 18 U.S.C. § 3583(e)(1) to terminate his
five-year-term of supervised release in “the interest of
justice.” The Sentencing Guidelines expressly state that, in

3
The unpublished decisions cited by the Government, United States
v. Partida-Vargas, 531 F. App’x 815 (9th Cir. 2013), and United States v.
Germany, 529 F. App’x 853 (9th Cir. 2013), simply note that each
defendant had finished serving his “term of imprisonment.” There is no
indication that either case concerned a term of supervised release. By
contrast, in United States v. Mosley, 383 F. App’x 635 (9th Cir. 2010), we
dismissed the appeal because Mosley was no longer subject to the
supervised release condition that was the subject of his appeal.
10 UNITED STATES V. D.M.

determining whether to do so, the district court can consider
in his favor his eligibility for a § 1B1.10 sentence reduction
that was not granted because of timing. USSG § 1B1.10 cmt.
n.7.

The possibility of further relief is not foreclosed by
21 U.S.C. § 841(b)(1)(A)(viii), which sets forth a mandatory
minimum of five-years’ supervised release, because
18 U.S.C. § 3553(e) allows for the imposition of a sentence
“below a level established by statute as a minimum sentence”
where a defendant has provided substantial assistance.
Moreover, 18 U.S.C. § 3583(a) specifies that a term of
supervised release is “include[d] as part of the sentence.”

Because § 3553(e) applies to supervised release, the
district court in this case maintains discretion to reduce
D.M.’s five-year supervised release sentence on remand.
Indeed, during D.M.’s initial sentencing, the district court
expressed a willingness to reduce his supervised release term
if he exhibited good behavior. Accordingly, the Government
has not met its burden of showing a lack of possibility of
relief for D.M., and we reject its assertion that this appeal is
moot.

D.M. IS ELIGIBLE FOR A REDUCED SENTENCE

“The district court’s interpretation and application of the
Sentencing Guidelines are reviewed de novo.” United States
v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc).
Similarly, a district court’s determination that it does not have
the authority to reduce a sentence is a question of law and is
reviewed de novo. See United States v. Jackson, 577 F.3d
1032, 1033 (9th Cir. 2009).
 UNITED STATES V. D.M. 11

In general, a criminal sentence may not be modified
except in limited circumstances. See Dillon v. United States,
560 U.S. 817, 824 (2010); see also 18 U.S.C. § 3582(b). One
such circumstance is where a defendant was sentenced “based
on” a guideline range that has “subsequently been lowered by
the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Both
the statute and USSG § 1B1.10(a)(1) require that the
reduction be consistent with applicable policy statements
issued by the Sentencing Commission. Thus, the statute
requires a determination first that a sentence reduction is
consistent with the applicable policy statements, and then, if
it is, consideration of whether a reduction is warranted after
weighing any applicable § 3553(a) factors. Rodriguez-
Soriano, 855F.3d at 1041; United States v. Phelps, 823 F.3d
1084, 1087 (7th Cir. 2016).

One limitation imposed by the policy statement at issue
here is a prohibition against reducing a sentence below the
“minimum of the amended guideline range.” USSG
§ 1B1.10(b)(2)(A). In determining a reduction in the term of
imprisonment, USSG § 1B1.10(b)(1) provides that “the court
shall determine the amended guideline range that would have
been applicable to the defendant if the amendment(s) to the
guidelines . . . had been in effect at the time the defendant
was sentenced.” However, USSG § 1B1.10(b)(2)(B), on
which D.M and the Government rely, provides a specific
exemption to this floor, allowing a reduction where “the term
of imprisonment imposed was less than the term of
imprisonment provided by the guideline range applicable to
the defendant at the time of sentencing pursuant to a
government motion to reflect the defendant’s substantial
assistance to authorities.”
12 UNITED STATES V. D.M.

Here, the district court did not reach the point of weighing
the applicable § 3553(a) factors because it calculated the
available minimum sentence for D.M. as exceeding the length
of his current sentence of imprisonment. Accordingly, we are
called upon to determine whether the interplay between
§ 3582(c)(2) and USSG § 1B1.10(b)(2)(B) compels the result
reached by the district court, or whether, as urged by the
Government and D.M., a court may consider a number of
departures when calculating a reduction in sentence pursuant
to USSG § 1B1.10(b)(2)(B).

We note that the policy statement is not a model of
clarity. Nonetheless, we conclude that the most natural
reading of the policy statement, its history, and the practical
consequences of opposing interpretations, all favor the
conclusion that it allows a court to consider additional
applicable departures in an original sentence, not just the
deduction specifically attributed to substantial assistance.
Our conclusion is not contrary to our existing precedent, and,
to the extent that there is an existing circuit split, we agree
with the Seventh Circuit’s opinion in United States v. Phelps,
823 F.3d 1084 (7th Cir. 2016). Finally, we note that, even if
our consideration of all the aids to interpreting the policy
statement did not firmly support our conclusion, D.M. would
nonetheless be eligible for consideration of a reduced
sentence under the rule of lenity.

A. A natural reading of the provisions allows a court
to consider various departures.

The choice of “term of imprisonment imposed” in USSG
§ 1B1.10(b)(2), as contrasted with “the term of imprisonment
provided by the guideline range” directs our attention to the
actual sentence imposed, rather than to how that sentence was
 UNITED STATES V. D.M. 13

calculated. The Sentencing Commission is familiar with the
terms used in the Sentencing Guidelines and it could have
used more specific terminology if it wanted courts to look
beyond, or to something other than, the “term of
imprisonment imposed.”

This approach informs our interpretation of the rest of the
subsection. The subsection states that, if the defendant’s
original sentence was less than the guideline range “pursuant
to a government motion to reflect the defendant’s substantial
assistance,” there may be “a reduction comparably less than
the amended guideline range.” This certainly provides that
substantial assistance is the triggering event that authorizes a
court to reduce a sentence below the amended guideline
range. However, it might also be construed as defining
“comparably less” as depending solely on the level of
reduction based on substantial assistance. But neither the
Guideline nor the Application Notes warn of, or advise of,
such a reading. Rather, they are consistent with the approach
that where a below minimum sentence is triggered by a
finding of substantial assistance, the “comparably less”
computation is based on the actual sentence (including all
reductions), rather than based on a recalculation of the
sentence to include only the reduction directly attributable to
substantial assistance.

This determination finds support in the Application Notes
that set out how “comparably less” is to be applied. The
Application Notes explain how the reduced term is calculated
and adds the caveat that the “term of imprisonment” may not
be reduced below time served, but do not inform the reader of
14 UNITED STATES V. D.M.

any need to unpack the initial sentence.4 USSG § 1B.10 cmt.
n.3. A natural reading of the Guideline and the Application
Notes fails to support the restricted reading adopted by the
district court.

The district court opined that if “the Sentencing
Commission intended the comparable reduction to encompass
prior departures or variances for reasons other than
substantial assistance . . . it could have said so.” We agree
that the Sentencing Commission could have been more
explicit, but hold that in this context its silence supports a

4
Application Note 3 states, in part:

In such a case, the court may reduce the defendant’s
term, but the reduction is not limited by subsection
(b)(2)(A) to the minimum of the amended guideline
range. Instead, as provided in subsection (b)(2)(B), the
court may, if appropriate, provide a reduction
comparably less than the amended guideline range.
Thus, if the term of imprisonment imposed in the
example provided above was 56 months pursuant to a
government motion to reflect the defendant’s
substantial assistance to the authorities (representing a
downward departure of 20 percent below the minimum
term of imprisonment provided by the guideline range
applicable to the defendant at the time of sentencing) a
reduction to a term of imprisonment of 41 months
(representing a reduction of approximately 20 percent
before the minimum term of imprisonment provided by
the amended guideline range) would amount to a
comparable reduction and may be appropriate.

USSG §1B.10 cmt. n.3. Although the language in the parentheticals could
conceivably be construed to support the district court’s approach, we
reject such a reading as inconsistent with the general intent of the
guideline, and too thin a reed to compel all courts to deconstruct the initial
sentences when resentencing under USSG § 1B1.10(b)(2).
 UNITED STATES V. D.M. 15

broad, rather than a narrow, reading. We note that this
interpretation, which is supported by the Government, only
results in D.M. being eligible for a reduction in his sentence.
The district court must still determine whether to grant such
a reduction.

B. The history of USSG § 1B1.10 suggests favorable
treatment for cooperators and an intent to avoid
difficult applications of the statute.

The history of the guideline gently favors the approach
urged by the Government and D.M. Prior to 2011, USSG
§ 1B1.10 made a distinction between variances and
departures in its exception to the general rule that a court
could not reduce a sentence below the minimum of the
amended guideline range. The exception allowed for
sentence reductions below the amended guideline range when
“the original term of imprisonment” was less than the original
guideline range because of any departure. USSG
§ 1B1.10(b)(2)(B) (amended 2010). However, if the original
term of imprisonment was below the guideline minimum
because of a variance, “a further reduction generally would
not be appropriate.” Id. The Sentencing Commission passed
Amendment 759 in 2011 to eliminate the departure-variance
distinction, citing “public comment and testimony indicating
that this distinction ha[d] been difficult to apply and ha[d]
prompted litigation.” USSG app. C, amend. 759, at 420
(Nov. 2011) (Reasons for Amendment). In doing so, the
Sentencing Commission recognized the distinction between
defendants who received substantial assistance departures and
those who did not. The intent was to implement
“recogni[tion] that defendants who provide substantial
assistance are differently situated than other defendants and
should be considered for a sentence below a guideline or
16 UNITED STATES V. D.M.

statutory minimum even when defendants who are otherwise
similar (but did not provide substantial assistance) are subject
to a guideline or statutory minimum.” Id. Indeed, the reasons
given for the passage of Amendment 759 stress that
cooperators are to be eligible for below-guideline sentences.5

5
The Commission stated:

[T]he Commission has determined that, in a case in
which the term of imprisonment was below the
guideline range pursuant to a government motion to
reflect the defendant’s substantial assistance to
authorities (e.g., under § 5K1.1), a reduction
comparably less than the amended guideline range may
be appropriate. Section 5K1.1 implements the directive
to the Commission in its organic statute to “assure that
the guidelines reflect the general appropriateness of
imposing a lower sentence than would otherwise be
imposed . . . to take into account a defendant’s
substantial assistance in the investigation or prosecution
of another person who has committed an offense.” See
28 U.S.C. § 994(n). For other provisions authorizing
such a government motion, see 18 U.S.C. § 3553(e)
(authorizing the court, upon government motion, to
impose a sentence below a statutory minimum to reflect
a defendant’s substantial assistance); Fed. R. Crim. P.
35(b) (authorizing the court, upon government motion,
to reduce a sentence to reflect a defendant’s substantial
assistance). The guidelines and the relevant statutes
have long recognized that defendants who provide
substantial assistance are differently situated than other
defendants and should be considered for a sentence
below a guideline or statutory minimum even when
defendants who are otherwise similar (but did not
provide substantial assistance) are subject to a guideline
or statutory minimum. Applying this principle when
 UNITED STATES V. D.M. 17

Here, the district court’s approach is incongruent with the
guideline’s history in two ways. First, it reduces the benefits
to cooperators. As further explained in the next section, the
benefit to cooperators intended by USSG § 1B1.10(b)(2)
becomes obscure or illusory when a cooperator originally
received the benefit of multiple downward departures.
Second, it would be inconsistent with the intent behind
Amendment 759 to interpret Amendment 782 as somehow
resurrecting the type of technical approach that Amendment
759 sought to dissolve. Although the district court in D.M.’s
case was careful and thorough in setting forth its precise
calculations in imposing the original sentence, this is not
always the case.6 In those cases where a district court fails to

the guideline range has been reduced and made
available for retroactive application under section
3582(c)(2) appropriately maintains this distinction and
furthers the purposes of sentencing.

Id.
6
Indeed, in United States v. Ornelas, 825 F.3d 548, 553 n.8 (9th Cir.
2016), we commented: “[a]lthough the record is not entirely clear, the
parties do not dispute that the court granted this departure pursuant to
§ 4A1.3. The district court did not identify the criminal history category
it deemed to be applicable to Ornelas under this departure.” See also
United States v. Beck, 992 F.2d 1008, 1009 (9th Cir. 1993) (“The district
court sentenced Beck to 50 months’ imprisonment, a departure from the
applicable guideline range of 30 to 37 months, but gave no reason or
justification for the extent of its departure.”); United States v. Cruz-
Ventura, 979 F.2d 146, 150 (9th Cir. 1992) (“[T]he district court did not
adequately state its reasons for the amount of the departure on the
record.”); United States v. Bylas, 70 F. App’x 420, 422 (9th Cir. 2003)
(“We cannot assess the reasonableness of the extent of the ‘extreme
conduct’ departure on this record because the district court cumulatively
considered both the Defendant’s ‘extreme conduct’ and underrepresented
criminal history.”).
18 UNITED STATES V. D.M.

specify the values of each departure, the district court’s
narrow interpretation would create uncertainty and
inconsistencies as the parties would be relegated to
speculating as to the court’s reasons for imposing the initial
sentence. In contrast, the interpretation advanced by the
parties favors cooperators and provides a straight forward
method for determining a reduced sentence, without forcing
courts to attempt to deconstruct the original sentence by
determining the specific values of each departure or variance.

C. The district court’s interpretation creates
anomalies and undesirable consequences.

There are at least two undesirable practical consequences
of the district court’s approach. The first, which has already
been alluded to, is that, where the original sentencing judge
fails to clearly differentiate the various departures, then, upon
resentencing, the court will be forced to speculate on the
reasons for the initial below-guideline sentence.

Second, the approach creates the anomaly that those who
have additional mitigating circumstances strong enough to
merit formal downward departures equal to or greater than
the amendment effects, are categorically barred from a
reduction. True, the individual cooperator who has such
additional mitigating circumstances receives the benefit of all
the downward departures in his initial sentence. But, why
would the Commission intend that defendants with more
mitigating factors be denied the continuing benefit of their
cooperation? Rather, such an interpretation seems to
disincentivize future cooperation.

Moreover, even if there were some sound reason for this
approach, it would be inconsistent with Congress’s directive
 UNITED STATES V. D.M. 19

that the Sentencing Commission provide for special treatment
of cooperators. 28 U.S.C. § 994(n) directs the Sentencing
Commission to “assure that the guidelines reflect the general
appropriateness of imposing a lower sentence than would
otherwise be imposed, including a sentence that is lower than
that established by statute as a minimum sentence, to take
into account a defendant’s substantial assistance in the
investigation or prosecution of another person who has
committed an offense.” Accordingly, the Sentencing
Commission has explained:

[T]he guidelines and the relevant statutes have
long recognized that defendants who provide
substantial assistance are differently situated
than other defendants and should be
considered for a sentence below a guideline or
statutory minimum even when defendants
who are otherwise similar (but did not provide
substantial assistance) are subject to a
guideline or statutory minimum.

USSG, app C., amend. 759, at 432 (Nov. 2011) (Reasons for
Amendment). We, in turn, interpret the Guidelines to give
effect to the intent of the Sentencing Commission. United
States v. Rivera-Constantino, 798 F.3d 900, 903 (9th Cir.
2015). Thus, even if the term “comparably less” used in
USSG § 1B1.10(b)(2)(B) could be interpreted to cover only
the reduction directly attributable to substantial assistance,
such an approach would be impractical and contrary to
Congress’s and the Sentencing Commission’s intent.
20 UNITED STATES V. D.M.

D. Our approach is not foreclosed by United States v.
Ornelas.

In United States v. Ornelas, 825 F.3d 548 (9th Cir. 2016),
we considered how to calculate a reduction of sentence under
USSG § 1B.1.10, and particularly the interpretation of USSG
§ 1B1.10(a)(2)(B). This subsection provides that a reduction
in a term of imprisonment is inconsistent with the policy
statement if the amendment “does not have the effect of
lowering the defendant’s applicable guideline range.” Id. at
550 (quoting USSG § 1B1.10(a)(2)(B)). In other words, “if
the defendant’s term of imprisonment is less that the
minimum of the amended guideline range, the defendant is
ineligible for a sentence reduction.” Id. In calculating the
possible reduced sentence under USSG § 1B1.10(a)(2)(B), we
concluded that for that subsection, “applicable guideline
range” is determined “pre-departure and pre-variance.” Id. at
552.

However, as the district court noted, Ornelas “doesn’t
answer the question” presented in this case. Subsection
§1B1.10(a)(2)(B) is a distinct provision of the guideline, and
our opinion in Ornelas did not construe or mention USSG
§ 1B1.10(b)(2)(B). This is not surprising because USSG
§ 1.B1.10(b)(2)(B) is an exception to the policy statement
otherwise set forth in USSG § 1B1.10(a). Accordingly, the
requirements for computing the applicable guideline range for
purposes of USSG § 1B1.10(a)(2)(B), in general, do not
apply to construing “comparably less” in USSG
§ 1B1.10(b)(2)(B). This makes sense, as the exception in
USSG § 1B1.10(b)(2)(B) only comes into play when the
initial term of imprisonment “was less than the term of
imprisonment provided by the guideline range applicable to
the defendant.” Thus, applying the policy statement in
 UNITED STATES V. D.M. 21

subsection (a)(2)(B) to the exception in subsection (b)(2)(B),
would, in many cases, eviscerate the exception.

Rather, the natural reading of the guideline, its history,
and the practical consequences of various interpretations, lead
us to conclude that, for purposes of the exception that is
USSG § 1B1.10(b)(2)(B), a court may consider various
departures in the initial sentence in computing a revised
sentence.

E. To the extent that there is a circuit split, we agree
with the Seventh Circuit.

The district court relied on the Sixth Circuit’s split
decision in United States v. Taylor, 815 F.3d 248 (6th Cir.
2016). In a fairly analogous factual setting, the Sixth Circuit
read the history of § 1B1.10 as limiting a below-guideline
reduction of a sentence to the proportion directly attributable
to substantial assistance. Id. at 251–52. Judge Merrill
dissented, noting that he would not “take away from the
sentencing judge the authority to use his or her best judgment
in determining the sentence.” Id. at 252.

The Seventh Circuit in Phelps, 823 F.3d 1084, hewed to
a course closer to our approach. It rejected the district court’s
“attempt to isolate the effect of Phelps’ substantial assistance
credit.” Id. at 1088. Instead, it determined that Phelps was
“eligible to receive a new sentence of not less than
48 months” even though his “original sentence was below the
guideline range for reasons other than substantial assistance.”
Id. at 1087–88.

As is clear from our reasoning, we side with the Seventh
Circuit. That court held “[t]hough the application notes could
22 UNITED STATES V. D.M.

be clearer . . . the two-step computation explained in
application note 3 applies regardless of whether the
substantial-assistance reduction came at the time of the
original sentencing or after.” Id. at 1088. We agree that,
because the application notes do not limit the definition of
“comparably less” to reductions directly attributable to
substantial assistance, other reductions may be considered.

Our reasoning is at variance with the Sixth Circuit’s
reading of the purpose of Amendment 759 because that
reading appears to construe silence as restricting the meaning
of “comparably less.”7 We do not deny that the Sentencing

7
The Sixth Circuit comments that Amendment 759:

also limited the district court’s discretion to reduce a
sentence below the amended guideline range,
permitting a reduction only when the defendant
originally received a below-guidelines sentence based
on substantial assistance. [U.S.S.G. App C., Amend.
759] at 416–20. Though Taylor is correct that the
Sentencing Guidelines do not specifically address
whether a non-assistance reduction may be combined
with a substantial assistance reduction, examining the
changes to § 1B1.10 over time indicates that the
guidelines deny a district court authority to reduce a
defendant’s sentence below her amended guidelines
range except where such a reduction is based on her
substantial assistance.

Taylor, 815 F.3d at 251. As the Sixth Circuit admits, the Sentencing
Guidelines do not “specifically address” non-assistance reductions. Nor
are we convinced that the changes to § 1B1.10 over time support or
require the proposed restriction. Rather, the Sentencing Commission
explains that subsection (b)(2)(B) is an exception to § 1B1.10 and
“restricts the exception . . . to cases involving a government motion to
reflect defendant’s substantial assistance to authorities,” thus allowing “a
reduction comparably less than the amended guideline range.” Id. at 420.
 UNITED STATES V. D.M. 23

Guidelines and Appendix C are less than clear. However,
when the ambiguous language is considered in the context of
the specific reasons for subsection (b)(2)(B), the
parsimonious reading adopted by the Sixth Circuit seems
contrary to the Sentencing Commission’s intent to follow
Congress’s instructions to provide cooperators special
treatment, and, inherently complicates resentencing.8

Furthermore, when the Sentencing Commission discussed doing away
with the distinction between departures and variances, it extolled the need
to promote conformity and avoid undue complexity and litigation. As
noted, the approach adopted in Taylor, by demanding the deconstruction
of the original sentences, creates complexities which promote litigation
and undermine conformity.
8
Most of the cases cited in Taylor appear inapposite. Both United
States v. Steele, 714 F.3d 751 (2d Cir. 2013), and Hogan v. Hogan,
722 F.3d 55 (1st Cir. 2013), involved defendants seeking reduction
pursuant to retroactive amendments, but neither defendant had received
a substantial assistance departure, and accordingly the exception that is
USSG § 1B1.10(b)(2)(B) was not in play. In United States v. Anderson,
686 F.3d 585 (8th Cir. 2012), the defendant had received a substantial
assistance departure, but he raised constitutional challenges on appeal and
the Eighth Circuit did not rule on the proper interpretation of the term
“comparably less” in USSG § 1B1.10(b)(2)(B).

An unpublished opinion, United States v. Wright, 562 F. App’x 886
(11th Cir. 2014), does support the Sixth Circuit’s position. However, it
also illustrates why that approach generates litigation, confusion, and
inconsistency. The Sixth Circuit noted: “Although the sentencing court
did not indicate how many levels it departed downward under § 5K1.1, the
record is devoid of support for Wright’s claim that the district court had
imposed an 11-level § 5K1.1 departure, which he admits is what would be
necessary in order for him to be eligible for § 3582(c)(2) relief.” Id. at
888. However, the resentencing court’s task is much more difficult and
subject to diverse rulings where the defendant asserts a more reasonable
degree of departure than did Wright.
24 UNITED STATES V. D.M.

F. D.M. is entitled to the benefit of the rule of lenity.

Although the district court recognized that the rule of
lenity might apply, it concluded that it did not because it did
not find USSG § 1B1.10(b)(2)(B) to be ambiguous. To the
contrary, our discussion of the guideline, its wording, the
Sentencing Commission’s intent, and the various approaches
that have been taken by our sister circuits, clearly
demonstrates, if nothing else, that the guideline is ambiguous.

We have held that the rule of lenity applies to the
Sentencing Guidelines. United States v. Fuentes-Barahona,
111 F.3d 651, 653 (9th Cir. 1997); see also Bifulco v. United
States, 447 U.S. 381, 387 (1980); United States v. Nielsen,
694 F.3d 1032, 1038 (9th Cir. 2012). However, the rule only
applies where there is grievous ambiguity or uncertainty in
the guidelines. United States v. Garcia-Jimenez, 623 F.3d
936, 944–45 (9th Cir. 2010) (citing Muscarello v. United
States, 524 U.S. 125, 138–39 (1998)). The rule of lenity
applies when, after considering everything, we can make “no
more than a guess as to what Congress intended.” United
States v. Wells, 519 U.S. 482, 499 (1997) (internal quotation
marks omitted).

Here, our consideration of all the aids to interpretation of
the guideline leads us to conclude that a district court may
consider departures other than those directly attributable to
providing substantial assistance in determining the
“comparably less” amended guideline range under USSG
§ 1.B.1.10(b)(2)(B). However, if our analysis were not
persuasive, we would be reduced to guessing what Congress
and the Sentencing Commission intended, and the rule of
lenity would apply. In either event, D.M. is eligible for a
reduced sentence under USSG § 1.B.1.10(b)(2)(B) and
 UNITED STATES V. D.M. 25

entitled to have the district court determine whether to award
him such a sentence.

CONCLUSION

In enacting Amendment 759, the Sentencing Commission
implemented Congress’s direction to take into account a
defendant’s substantial assistance. We have found nothing in
the guideline or comments to the guideline that preclude a
court from considering various departures in a prior
sentence when resentencing a defendant under USSG
§ 1B1.10(b)(2)(B), which is an exception within USSG
§ 1B1.10. We interpret this silence as allowing a court, when
implementing USSG § 1B1.10(b)(2)(B), to consider
departures that resulted in the previous sentence that were not
directly attributable to substantial assistance. This
interpretation is consistent with the purposes behind the
enactment of Amendment 759, including the preference for
approaches that promote conformity and avoid complexity
and litigation. It is also supported by both the Government
and D.M. Moreover, there is no risk of defendants somehow
taking undue advantage of this ruling because, at most, it
makes a defendant eligible for a reduced sentence, and the
district court must still determine whether the individual
defendant warrants the reduction sought.

The district court’s denial of the motion for a sentence
reduction is vacated and the matter is remanded to the district
court.