United States v. Jackie Lee , 725 F.3d 1159 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-10460
Plaintiff-Appellee,
D.C. No.
v. 1:08-cr-00020-
FMTG-2
JACKIE YONG LEE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge,
Presiding
Argued and Submitted
October 15, 2012—Honolulu, Hawaii
Filed August 7, 2013
Before: Stephen Reinhardt, Sidney R. Thomas,
and Richard A. Paez, Circuit Judges.
Per Curiam Opinion
2 UNITED STATES V . LEE
SUMMARY*
Criminal Law
Vacating a sentence and remanding for resentencing, the
panel held that the district court committed three significant
errors in sentencing the defendant for her involvement in a
large-scale methamphetamine distribution scheme in Guam.
The panel held that the district court failed to use the
Guidelines as a starting point, instead determining the
sentence it desired to impose and then deciding the extent of
the Guidelines reduction to be afforded in order to make the
sentence fit within the Guidelines.
The panel held that the district court incorrectly
calculated the base offense level because it improperly held
that the defendant had pled guilty to transporting
methamphetamine of a certain purity.
The panel held that the district court failed to determine
a revised minimum sentence under 18 U.S.C. § 3553(e), a
determination it was required to make when considering
substantial assistance.
The panel could not assess the defendant’s claims that the
district court failed to give adequate consideration to the
18 U.S.C. § 3553(a) factors, but advised the district court to
give further consideration to the defendant’s age and the
likelihood that she will die in prison.
*
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 . LEE 3
COUNSEL
Mark Eibert, Half Moon Bay, California, for Defendant-
Appellant.
Karon V. Johnson, Assistant United States Attorney,
Hagåtña, Guam, for Plaintiff-Appellee.
OPINION
PER CURIAM:
The district court committed three significant errors at
Jackie Yong Lee’s sentencing. First, the court failed to use
the Guidelines as a starting point. Instead, it determined the
sentence it desired to impose and then decided the extent of
the Guidelines reduction to be afforded, in order to make the
sentence fit within the Guidelines. This was the converse
procedure to that which it was required to follow. Second, it
incorrectly calculated the Guidelines range when it held that
Lee pled guilty to transporting methamphetamine that was 80
percent pure. Third, it failed to determine a revised minimum
sentence under 18 U.S.C. § 3553(e), a determination that it
was required to make in this case. For these reasons, we
vacate and remand for resentencing. We also address Lee’s
other arguments on appeal, because the issues are likely to
arise again at resentencing.
I.
The details of Jackie Yong Lee’s crime and her
involvement in the Ichihara drug network are neither relevant
to this appeal nor clear from the record before us. We
4 UNITED STATES V . LEE
therefore set forth only a brief summary of Lee’s criminal
conduct. Richard Ichihara was in charge of a large-scale
methamphetamine distribution scheme in Guam, for which he
was ultimately sentenced to 30 years in prison. Lee was
indicted for her involvement in Ichihara’s drug network.
Ichihara and many others were indicted on ten counts or
less of violating various federal drug laws because of their
involvement in the drug network. Lee was indicted on three
counts. Count II charged Lee and others with conspiracy to
distribute “more than 50 grams of net weight of
methamphetamine hydrochloride (ice),” in violation of
21 U.S.C. § 841(a)(1) and § 846. Count III charged Lee and
others with conspiracy to distribute “more than 3,000 grams
of methamphetamine hydrochloride (ice), its salts, isomers,
and salts of its isomers and more than 30,000 grams of a
mixture and substance containing a detectable amount of
methamphetamine, its salts, isomers, and salts of its isomers,”
in violation of 21 U.S.C. § 841(a)(1) and § 846. Count X
charged Lee and others with a forfeiture count under
21 U.S.C. § 853.
Shortly after the indictment was brought, Lee agreed to
cooperate and plead guilty to Count III and Count X in return
for the government’s dropping the charges under Count II and
promising to move for a “substantial assistance” reduction at
her sentencing. The plea agreement contains the following
factual stipulation:
Between 2004 and 2007, [Lee] supplied
Richard John Ichihara with over three
kilograms of methamphetamine hydrochloride
(ice) which she knew Ichihara was
distributing.
UNITED STATES V . LEE 5
The district court accepted Lee’s guilty plea on Count III and
Count X and appears to have relied on the factual stipulation
in her plea agreement.
Over the next three years, Lee provided substantial
assistance in the government’s investigation and prosecution
of the Ichihara drug network. Although the details of Lee’s
assistance are sealed, the public record supports the
conclusion that her assistance was significant. At Lee’s
sentencing hearing, the government stated that the reasons for
her substantial assistance were “detailed” and that she
“helped [the government] substantially.” Additionally,
defense counsel described Lee’s assistance as “extremely
substantial,” a statement that was not contested by the
government. Also illustrative is the district court docket
sheet, which reflects that her sentencing hearing was delayed
for three years. Most of the continuances were due to her
ongoing role in assisting the government.
At sentencing, Lee and the government disputed whether
Lee’s base offense level should be 38 or 34. The government
argued that by stipulating in her plea agreement that she had
distributed more than three kilograms of “methamphetamine
hydrochloride (ice),” Lee had admitted transporting more
than 1.5 kilograms of “ice” as defined in the Sentencing
Guidelines— that is, “a mixture or substance containing d-
methamphetamine hydrochloride of at least 80%
purity.” U.S.S.G. § 2D1.1(c) n.(C). Lee argued that she had
not admitted transporting methamphetamine of an eighty
percent purity level and that she understood “ice” to be the
street name for methamphetamine generally. She relied
heavily on the fact that all three of the drug tests described in
the PSR—which represented the entire factual record before
the district court—reported that the methamphetamine was
6 UNITED STATES V . LEE
below 80% purity. The district court, however, rejected her
argument. It stated that “ice” was a “term of art which means
a methamphetamine purity of 80 percent or more.” The
district court further stated that its conclusion was not
undermined by the three drug tests because “only a small
fraction of the total drugs” were tested. Thus, the district
court concluded, Lee’s proper base offense level was 38.
At this point in the sentencing hearing, the probation
officer re-calculated Lee’s Guidelines range. He began at a
base offense level of 38 and applied the 3-level reduction for
acceptance of responsibility, which yielded a total offense
level of 35. Lee’s new sentencing range was 188–235
months, with a mandatory minimum of 120 months. The
district court then asked for the probation officer’s
recommendation, to which the officer responded 120 months.
The district court inquired, “So the mandatory minimum of
ten years?” The probation officer responded, “Yes.”
The district court then turned to the “substantial
assistance” reduction. The government began its argument
by officially “mov[ing] for a substantial assistance departure
—from both the guidelines and the mandatory minimum
sentence.” The government noted that the reasons for Lee’s
substantial assistance were “detailed.” However, it “had to
weigh a balance against the substantial assistance, her role in
the organization and her prior conviction.” “[B]alancing the
two, the seriousness of her offense against her cooperation
when she finally get caught,” the government believed that “a
96-month sentence is appropriate.”
The district court questioned the government’s
recommended sentence of 96 months. It first noted the
potential disparity with Lee’s co-defendants, specifically
UNITED STATES V . LEE 7
Ichihara who was given a 30-year sentence. The government
responded that Ichihara was a far more serious criminal. The
district court then noted another co-defendant who was “not
as culpable” as Lee but was sentenced to 97 months. The
government distinguished this co-defendant on the ground
that Lee “helped us substantially.” The government also
noted Lee’s age, which was 72 years at the time of
sentencing. The government concluded: “So we think that, in
effect, this is a life sentence, which, given what she’s done,
is appropriate.” The district court responded: “Okay.”
The district court proceeded to rule on the government’s
motion to depart “from the guideline level as [] provided by
the United States sentencing guidelines Section 5K1.1 on the
basis that the defendant has rendered substantial assistance to
the prosecutor in its investigation of drug trafficking on
Guam and elsewhere.” It granted the 10-level departure, as
requested by the government. The district court then
(incorrectly) calculated that, after applying the 10-level
departure, Lee’s total offense level under the Sentencing
Guidelines was 28. It further stated (also incorrectly) that her
Guidelines range was therefore 78–97 months.1
Defense counsel then argued that Lee should be sentenced
at the low end of this range. Specifically, counsel mentioned
the extensiveness of Lee’s assistance to the government, her
advanced age, her caretaking duties for her disabled 80-year-
old partner who was nearing death, and her genuine
1
These errors were corrected later in the proceeding.
8 UNITED STATES V . LEE
contrition.2 Regarding Lee’s age, defense counsel stated that
“eight years is probably a life sentence” and that he did not
believe a life sentence was the “intention” of the guidelines.
Defense counsel concluded, “at that age, her ability to do
much of anything that would be in violation of the law, I
think, is going to be unlikely due to what would be her
physical condition at that time.”
As the district court prepared to impose a final sentence,
the probation officer interrupted to explain that the court had
calculated the Guidelines range incorrectly. Because the
district court had not applied a 3-level enhancement included
in the PSR’s calculations, Lee’s total offense level was 35
before applying the “substantial assistance” departure. The
government had requested a 10-level departure in its filings
(based on its initial belief that Lee’s total offense level was
38). Because the district court had granted the 10-level
departure, Lee’s total offense level was 25. With a criminal
history category of II, Lee’s range under the Guidelines was
63–78 months, and imposing a 96-month sentence would
therefore be an above-Guidelines sentence.
The district court asked the government to clarify its
request for the “substantial assistance” departure under
U.S.S.G. § 5K1.1. The government stated that it believed “96
months was appropriate, whatever level one has to depart to,
to get to that.” The district court then asked, “[s]o . . . you’re
actually asking for a departure to the level of [] 28[?]” The
2
At multiple points during the sentencing hearing, the transcript either
states or suggests that Lee was crying. On one instance, the district court
asked for someone to provide her with some water. Lee’s principal
statement to the district court was to repeat that she was “[S]orry. Very
sorry.”
UNITED STATES V . LEE 9
government responded affirmatively, and the district court
noted that this meant that the government was “changing [its]
request.” The government agreed and stated that it was now
seeking a 7-level departure because it “fe[lt] strongly about
the 96 months.”
The district court then granted the government’s motion
for a 7-level departure under § 5K1.1. Lee’s total offense
level was therefore calculated at 28. The district court stated
that Lee’s final sentencing range under the Guidelines was
87–108 months, and it imposed a 96-month sentence. When
the district court finally asked if Lee understood her 96 month
sentence, she stated, “my heart condition is not so good, so I
don’t know I can get out or I die there.”
II.
A.3
Although a district court has discretion, post-United
States v. Booker, 543 U.S. 220 (2005), and under the
18 U.S.C. § 3553(a) factors, to impose a sentence it prefers
even if that sentence is outside of the Guidelines range (so
long as it is not lower than a statutory or revised statutory
minimum sentence), it may not manipulate the calculations
under the Sentencing Guidelines in order to produce a
3
The error that is the subject of Part II.A, although not clearly raised in
either party’s briefs, is closely intertwined with their arguments. W e
address this error, even though it was not clearly briefed, because it is both
“antecedent to . . . and ultimately dispositive of” the appeal before us.
Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990); see also U.S. Nat’l
Bank of Oregon v. Ind. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993)
(stating that courts may rule on an antecedent issue even if “the parties fail
to identify and brief” it).
10 UNITED STATES V . LEE
Guidelines range that will allow it to impose the sentence it
prefers. As the Supreme Court has repeatedly held, the
Sentencing Guidelines are the “starting point” for a district
court’s sentencing analysis. Freeman v. United States,
131 S. Ct. 2685, 2692 (2011); Kimbrough v. United States,
552 U.S. 85, 108 (2007); Gall v. United States, 552 U.S. 38,
49 (2007). Here, however, the district court did not use the
Guidelines as a starting point. Rather, at the government’s
request, the court agreed to impose a sentence of 96 months
and then selected a departure level for Lee’s substantial
assistance under U.S.S.G. § 5K1.1 that would enable it to
hold that the desired sentence was within the Guidelines
range.4 The record could not be clearer on this point: the
4
U .S.S.G. § 5K1.1 provides: “Substantial Assistance to Authorities
(Policy Statement): Upon motion of the government stating that the
defendant has provided substantial assistance in the investigation or
prosecution of another person who has committed an offense, the court
may depart from the guidelines.
(a) The appropriate reduction shall be determined by
the court for reasons stated that may include, but are not
limited to, consideration of the following:
(1) the court’s evaluation of the significance and
usefulness of the defendant’s assistance, taking into
consideration the government’s evaluation of the
assistance rendered;
(2) the truthfulness, completeness, and reliability of any
information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
UNITED STATES V . LEE 11
district court had initially granted a 10-level departure under
U.S.S.G. § 5K1.1 and was ready to impose a 96-month
sentence from a Guidelines range of 87–108 months when the
probation officer interrupted to explain that, under the proper
calculation of the Guidelines, a 10-level departure would
result in a range of 63–78 months. The district court—instead
of accepting that lower range and exercising its discretion to
impose an above-Guidelines sentence—reduced the
substantial assistance departure to a 7-level departure. It was
thus able to create an artificial Guidelines range of 87–108
months and select a 96-month sentence within that range.
A district court may not create a Guidelines range on a
basis that it is necessary to enable the court to impose the
sentence it would like to impose. A district court may,
however, calculate a proper Guidelines range and then choose
a sentence outside that range by granting a variance.5 This is
(4) any injury suffered, or any danger or risk of injury
to the defendant or his family resulting from his
assistance;
(5) the timeliness of the defendant’s assistance.”
5
The Guidelines analysis currently consists of a three-step process. The
district court must (1) calculate the Guidelines range, (2) consider any
applicable “departures” under Parts H and K of Chapter 5 of the
Sentencing Guidelines, and (3) consider the factors in 18 U.S.C.
§ 3553(a). See U.S.S.G. § 1B1.1 (2010). It may then impose the sentence
it chooses. “If, after step ([3]), the court imposes a sentence that is outside
the guidelines framework, such a sentence is considered a ‘variance.’”
U.S.S.G. § 1B1.1 background (2010) (citing Irizarry v. United States,
553 U.S. 708 (2008)). Although it might appear odd to refer to choosing
a sentence outside the Guidelines range as “under the Guidelines,” such
is the effect of the Sentencing Commission’s making the consideration of
a “variance” the third step of the Guidelines procedure. See, e.g., United
States v. Jackson, 467 F.3d 834, 840 (3d Cir. 2006) (referring to the third
12 UNITED STATES V . LEE
not what happened here. Because the district court employed
precisely the converse procedure to that which it was required
to follow, it clearly erred.6
B.
The district court committed a second error of
significance by incorrectly calculating the base offense level.
Under the Sentencing Guidelines, an individual convicted
under 28 U.S.C. § 841 is generally sentenced based on the
Drug Quantity Table in U.S.S.G. § 2D1.1(c). For
methamphetamine, the Table specifies a base offense level of
38 if the drug quantity is as follows:
15 KG or more of Methamphetamine, or 1.5
KG or more of Methamphetamine (actual), or
1.5 KG or more of “Ice.”
The base offense level is 34 if the drug quantity is as follows:
At least 1.5 KG but less than 5 KG of
Methamphetamine, or at least 150 G but less
step of this three-step process as the consideration of “Guidelines
variances”).
6
W e recognize that, post-Booker, this court no longer reviews a district
court’s application of a guidelines departure for procedural error. See
United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006); United
States v. Vasquez-Cruz, 692 F.3d 1001, 1007–08 (9th Cir. 2012). Our
concern here is not that the district court procedurally erred in its
application of a single departure, but rather that the record demonstrates
that the district court did not use the guidelines range as a starting point
whatsoever. Instead, the court chose a desired sentence, the one
recommended by the government, and worked backward to create a
guidelines range that encompassed that sentence.
UNITED STATES V . LEE 13
than 500 G of Methamphetamine (actual), or
at least 150 G but less than 500 G of “Ice.”
U.S.S.G. § 2D1.1(c). Some additional definitions are
necessary to apply these provisions. The quantities relating to
“Methamphetamine” (as opposed to “Methamphetamine
(actual)” or “Ice”) are based on the “entire weight of any
mixture or substance containing a detectable amount of the
controlled substance.” § 2D1.1(c) n.(A). The quantities
relating to “Metamphetamine (actual)” are based on the
weight of actual methamphetamine—i.e., the total weight of
the mixture, multiplied by the average purity. § 2D1.1(c)
n.(B). The quantities relating to “Ice” are based on the total
weight of the mixture, if the methamphetamine is of at least
80% average purity. § 2D1.1(c) n.(C).7
Lee was sentenced under the 38-level provision. The
district court looked to Lee’s factual stipulation in her plea
agreement, which reads as follows:
Between 2004 and 2007, [Lee] supplied
Richard John Ichihara with over three
kilograms of methamphetamine hydrochloride
(ice) which she knew Ichihara was
distributing.
The district court held that the reference to
“methamphetamine hydrochloride (ice)” compelled the
7
For example, a 10 KG mixture of methamphetamine of 80% purity
would be 10 KG of Methamphetamine, 8 KG of Methamphetamine
(actual), and 10 KG of Ice. A 10 KG mixture of methamphetamine of 70%
purity would be 10 KG of M ethamphetamine, 7 KG of Methamphetamine
(actual), and 0 KG of Ice.
14 UNITED STATES V . LEE
conclusion that Lee admitted to transporting “Ice,” as defined
by the Sentencing Guidelines. Under that interpretation,
because the quantity specified in the plea agreement was
3 KG, Lee would fall into the 38-level provision in U.S.S.G.
§ 2D1.1(c).
Lee challenges this determination. She argues that she
understood the word “ice” to be a reference to
methamphetamine generally. She points to the only three tests
run on the seized drugs, which showed the purity to be 33%,
57%, and “less than 80%” respectively. Under Lee’s
interpretation, since the term “ice” was, in her case, a
reference to methamphetamine generally, the factual
stipulation was only to having transported 3 KG of a mixture
of methamphetamine. Thus, Lee would fall into the 34-level
provision in U.S.S.G. § 2D1.1(c).8
This is a dispute over how to interpret Lee’s plea
agreement,9 and we hold in favor of Lee. Plea agreements are
analyzed under contract law principles. United States v. De la
Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993). “In construing an
agreement, the court must determine what the defendant
reasonably understood to be the terms of the agreement when
he pleaded guilty.” Id. Additionally, any ambiguity is read
8
In the alternative, she argues that, even if the purity issue was
stipulated to in the plea agreement, because the district court was not
bound by her stipulation and because she disputed purity, the district court
should have resolved the issue under Federal Rule of Criminal Procedure
32(i)(3)(B). W e do not reach this issue.
9
Contrary to the government’s suggestion, Lee’s argument is not (and
has not ever been) that her guilty plea was not knowingly or intelligently
made. She disputes the interpretation of her plea agreement, not the
circumstances under which she pled guilty.
UNITED STATES V . LEE 15
against the government. Id. at 1338. Lee contends that she
understood the terms of her plea agreement to be a factual
stipulation to having transported 3 KG of a methamphetamine
mixture, not 3 KG of methamphetamine of 80% purity. Her
contention is strongly supported by the factual record. The
record indicates that all members of Ichihara’s drug
trafficking scheme referred to the methamphetamine,
regardless of its purity, as “ice.” Furthermore, as Lee notes,
the only methamphetamine samples tested in this case were
all below 80% purity. Although the district court is certainly
correct that not all drugs were tested, this does not undermine
our conclusion that the record strongly supports Lee’s
contention that, at the time of her plea, she understood her
factual admission to be that of transporting methamphetamine
generally, not methamphetamine of 80% purity. Finally, even
if the record were ambiguous, we would read any ambiguity
against the government and in favor of Lee. Id.The government’s response is to suggest that the word
“ice” is unambiguous because the Sentencing Guidelines
define “ice” as methamphetamine above 80% purity.
Although we agree that the Sentencing Guidelines are one
source of authority in interpreting what a defendant might
have understood a plea agreement to mean, the government
cites no precedent to support the conclusion that the
Guidelines are the exclusive authority. Nor do we agree that
such a rule would be appropriate.10
10
The government also argues that Lee’s guilty plea necessarily
admitted the drug purity allegation in the indictment. W e rejected an
analogous argument relating to a drug quantity allegation in the indictment
in United States v. Thomas, 355 F.3d 1191, 1196 (9th Cir. 2004). Because
purity is merely the ratio of two quantity measures, the government’s
argument is foreclosed by Thomas.
16 UNITED STATES V . LEE
We conclude that, at the time of making her plea
agreement, Lee factually stipulated only to having transported
3 KG of methamphetamine and that she did not admit to any
purity level. Consequently, applying the 38-level provision in
sentencing Lee constituted procedural error.
In sum, the district court committed two errors in
calculating the Guidelines range. First, the district court failed
to use the Guidelines as a “starting point” for its analysis.
Instead, it selected the sentence first and then placed Lee in
the Guidelines range that would allow the sentence. Second,
it incorrectly calculated the base offense level because it
improperly held that Lee had pled guilty to transporting
methamphetamine of a certain purity level. Accordingly, we
vacate and remand for resentencing.
III.
Lee also argues that the district court’s imposition of a
96-month sentence under the Guidelines was substantively
unreasonable under the 18 U.S.C. § 3553(a) factors.
However, we cannot review this claim because the district
court failed to calculate a revised minimum sentence under
18 U.S.C. § 3553(e), a determination that it was required to
make in order to ensure that the sentence would not be lower
than the revised statutory minimum.
A.
Prior to the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005), there were two important
constraints on a district court’s sentencing authority. First, the
district court was limited in its sentencing by any applicable
mandatory minimum sentence set forth in the statute that the
UNITED STATES V . LEE 17
defendant violated, subject to limited exceptions. Second, the
district court was required to impose a sentence within the
range prescribed by the Sentencing Guidelines. Booker
rendered the Sentencing Guidelines advisory, thus
eliminating to a large degree the second constraint on district
court sentencing. However, the first constraint remains, and
a district court is still required to impose a sentence no lower
than the mandatory minimum sentence, even if it would
prefer to impose a lower sentence under the now-advisory
Sentencing Guidelines. See U.S.S.G. 5G1.1. In short, the
statutory minimum takes precedence over whatever the result
under the Guidelines or otherwise might be.
But when a defendant has provided substantial assistance
to the government, the district court may calculate a revised
mandatory minimum under 18 U.S.C. § 3553(e),11
considering only factors related to the defendant’s assistance.
United States v. Wimpf, 620 F.3d 1168, 1171 (9th Cir. 2010);
United States v. Auld, 321 F.3d 861, 867 (9th Cir. 2003). The
revised mandatory minimum constitutes the new floor for the
defendant’s sentence.
In this case, the district court erred by not determining
that the sentence it had chosen—its “preferred sentence”—
was not lower than the revised statutory minimum sentence.
The pre-departure statutory minimum sentence was 120
11
Section 3553(e) provides: “Limited authority to impose a sentence
below a statutory minimum. Upon motion of the Government, the court
shall have the authority to impose a sentence below a level established by
statute as a minimum sentence so as to reflect a defendant’s substantial
assistance in the investigation or prosecution of another person who has
committed an offense. Such sentence shall be imposed in accordance with
the guidelines and policy statements issued by the Sentencing Commission
pursuant to section 994 of title 28, United States Code.”
18 UNITED STATES V . LEE
months. The district court selected a preferred sentence of 96
months. Because 96 months is less than the statutory
minimum sentence of 120 months, the district court could
sentence Lee to 96 months only if it revised the statutory
minimum sentence so that it was not greater than 96 months.
In order to revise the statutory minimum sentence, the district
court needed to consider the “substantial assistance”
reduction provided for by 18 U.S.C. § 3553(e). Although the
reduction in this case should clearly be very substantial, it is
clear from the record that the district court did not make the
necessary determination as to what it would be. When
considering the “substantial assistance” issue, the district
court never mentioned the words “mandatory minimum,”
even though it had recognized earlier that Lee was subject to
a mandatory minimum sentence that it was necessary to
revise downward substantially. Additionally, in granting the
government’s motion for a “substantial assistance” reduction,
the district court explicitly cited “Section 5K1.1” but did not
mention 18 U.S.C. § 3553(e). Finally, its close attention to
the correct number of “levels” to which to depart is consistent
with applying the “substantial assistance” provision under the
Sentencing Guidelines but not with reducing the statutory
minimum sentence under 18 U.S.C. § 3553(e). Thus, the
totality of the district court’s statements at sentencing is
consistent with its failure to determine a revised minimum
sentence in accordance with 18 U.S.C. § 3553(e). As a result,
it is impossible to know whether the sentence that the district
court imposed —96 months —was lower or higher than the
revised statutory minimum, which the court was required, but
failed, to establish.12
12
Lee’s assistance was “extremely substantial” and occurred over the
course of three years. Indeed, the government believed that Lee’s
assistance merited at least a 7-level departure under the Guidelines, which
UNITED STATES V . LEE 19
B.
Because of this error, we cannot assess Lee’s claim that
the district court failed to give adequate consideration to the
§ 3553(a) factors. However, we address Lee’s arguments
because the district court is likely to confront them again on
remand. See United States v. Sayetsitty, 107 F.3d 1405, 1411
(9th Cir. 1997); United States v. Doe, 705 F.3d 1134,
1139–40 (9th Cir. 2013).
Lee presents many arguments for why a 96-month
sentence is substantively unreasonable in her circumstances:
her extensive assistance to the government, her advanced age
(72 years old at the time of sentencing), her contrition, and
her sole caretaker role for her dying partner. Because we
cannot determine what length sentence the district court
might impose on remand, we will not consider whether, if it
were to impose the same sentence that it imposed at the initial
sentencing, such a sentence would be substantively
unreasonable. However, we agree that the district court did
not give sufficient weight to the facts on which it and the
prosecution agreed: that for a 72-year old woman, a 96-month
sentence is likely to be the equivalent of a life sentence and
thus a verdict that Lee will die in prison.13 “There is a worthy
tradition that death in prison is not to be ordered lightly, and
the probability that a convict will not live out his sentence
corresponds to an approximately fifty percent reduction in her sentencing
range. The reduction in the mandatory minimum sentence may well also
be extremely substantial given the nature of her assistance.
13
W e do not know what other facts led the court and the prosecutor to
agree on this conclusion. However, we assume that there was valid reason
for it.
20 UNITED STATES V . LEE
should certainly give pause to a sentencing court.” United
States v. Wurzinger, 467 F.3d 649, 652 (7th Cir. 2006). Here,
however, the district court did not pause in sentencing Lee to
a likely sentence of death in prison. The government
specifically advised the district court that it believed a 96-
month sentence was appropriate because Lee would likely die
in prison. To this, the district court responded: “Okay.”
During resentencing, the district court, in exercising its
discretion, should give more serious consideration to whether
to impose a sentence that effectively condemns a 72-year-old
woman who provided extensive assistance to the government
to death in prison for an offense of the nature involved.14
CONCLUSION
The district court committed three errors in sentencing
Lee. First, it did not use the Guidelines as a “starting point.”
Instead, it determined its preferred sentence and then adjusted
the Guideline range such that its preferred sentence fell
within that range. Second, it incorrectly held that Lee pled
guilty to transporting methamphetamine that was 80 percent
pure. Third, it did not calculate the revised statutory
mandatory minimum sentence and, thus, we cannot determine
the legality or appropriateness of Lee’s sentence. Therefore
we vacate her sentence and remand for resentencing. We also
14
W e note that although the district court may use the § 3553(a) factors
as a basis for departing from the new Guidelines sentence that it
calculates, the court may not use the § 3553(a) factors as a basis for
departing from the new mandatory minimum sentence that it calculates.
See United States v. Jackson, 577 F.3d 1032, 1036 (9th Cir. 2009).
UNITED STATES V . LEE 21
advise the district court to recompute the base offense level
upon remand and to give further consideration at resentencing
to Lee’s age and the likelihood that she will die in prison.
VACATED and REMANDED for RESENTENCING.