United States v. Michael Higgins , 694 F. App'x 611 ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 03 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 16-10407
)
Plaintiff-Appellee, ) D.C. No. 2:11-cr-00513-DGC-4
)
v. ) MEMORANDUM*
)
MICHAEL HIGGINS, AKA )
Michael A. Higgins, AKA Michael )
Andrew Higgins, )
)
Defendant-Appellant. )
)
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
UNITED STATES OF AMERICA, ) No. 16-10424
)
Plaintiff-Appellee, ) D.C. No. 2:11-cr-00480-GMS-2
)
v. )
)
MICHAEL A. HIGGINS, AKA )
Michael Andrew Higgins, )
)
Defendant-Appellant. )
)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted July 12, 2017
Pasadena, California
Before: REINHARDT, FERNANDEZ, and WARDLAW, Circuit Judges.
Michael Higgins appeals the decisions of the district court dismissing his
motions for sentence reductions in two separate judgments against him for
possession of methamphetamine with intent to distribute. Those judgments were
for an offense committed on or about June 8, 2010, which is the subject of Appeal
Number 16-10407,1 and for an offense committed on or about June 29, 2010,
which is the subject of Appeal Number 16-10424.2 We affirm as to the former and
vacate and remand as to the latter.
(1) Appeal Number 16-10407. Judge Campbell denied a reduction of
sentence because, as he indicated, the drug quantity amendment3 to the Sentencing
1
The sentencing and reduction decisions for this offense were made by Judge
Campbell.
2
The sentencing and reduction decisions for this offense were made by Judge
Snow.
3
See USSG Supp. App. C, amend. 782 (hereafter Amendment 782). That
amended the drug quantity table. See USSG § 2D1.1(c) (2014).
2
Guidelines4 made by the United States Sentencing Commission, even though
retroactive,5 did not affect the applicable Guideline range6 and, therefore, no
reduction was available. We agree. When Higgins was sentenced, the drug
quantity table placed his offense level at 32,7 but because it was at that level and he
was entitled to a mitigating role adjustment,8 his base offense level under the drug
offense guideline was itself reduced by two levels,9 for a result of 30. Under
Amendment 782, the drug quantity table placed his offense level at 30,10 but
because it was at that level he was not eligible to have his base offense level under
the drug offense guideline reduced by two levels,11 so the result remained 30.
Thus, the amendment did “not have the effect of lowering the defendant’s
4
Hereafter, all references to the Sentencing Guidelines are to the November
1, 2015 version thereof, unless otherwise stated.
5
See USSG § 1B1.10(a)(1), (d), p.s.
6
Id. at (a)(2)(B).
7
USSG § 2D1.1(c)(4) (2011).
8
Id. § 3B1.2(b) (2011).
9
See id. § 2D1.1(a)(5)(B)(i) (2011).
10
USSG § 2D1.1(c)(5).
11
Id. at (a)(5).
3
applicable guideline range,”12 and a reduction was not available.13 When applying
an amendment to the Guidelines, the court must “determine the amended guideline
range that would have been applicable to the defendant if the amendment(s) . . .
had been in effect at the time the defendant was sentenced.” USSG
§ 1B1.10(b)(1); see also United States v. Waters, 648 F.3d 1114, 1117–18 (9th Cir.
2011).
(2) Appeal Number 16-10424. Judge Snow denied a reduction of sentence,
but did not indicate his reasons therefor. That left the parties and us to speculate as
to the basis of his decision. We decline to do so because a district court must give
some sufficient reason for its decision before we can review it. See United States
v. Carty, 520 F.3d 984, 992–93 (9th Cir. 2008) (en banc); see also United States v.
Emmett, 749 F.3d 817, 820–21 (9th Cir. 2014); United States v. Trujillo, 713 F.3d
1003, 1008–09 (9th Cir. 2013). Thus, we vacate and remand for further
proceedings.
AFFIRMED as to Number 16-10407; VACATED AND REMANDED as to
Number 16-10424.
12
Id. § 1B1.10(a)(2)(B), p.s.
13
Id. at (a)(2) (introductory clause).
4