United States v. Colson , 573 F.3d 915 ( 2009 )

573 F.3d 915 (2009)

UNITED STATES of America, Plaintiff-Appellee,
v.
Andrew COLSON, Defendant-Appellant.

No. 08-10287.

United States Court of Appeals, Ninth Circuit.

Submitted February 23, 2009.^[*] Filed July 23, 2009.

Franny A. Forsman, Federal Public Defender, Jason F. Carr, Assistant Federal Public Defender, Las Vegas, NV, for the appellant.

Gregory A. Brower, United States Attorney, Peter S. Levitt, Assistant United States Attorney, Las Vegas, NV, for the appellee.

Before: ALEX KOZINSKI, Chief Judge, HAWKINS and RONALD M. GOULD, Circuit Judges.

ORDER

Andrew Colson ("Colson") appeals the district court's discretionary denial of his 18 U.S.C. § 3582(c)(2) sentence reduction motion. Although we have previously held that such decisions are not reviewable on appeal, see United States v. Lowe, 136 F.3d 1231, 1233 (9th Cir.1998), Colson argues that Lowe is no longer good law in light of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), and United States v. Carty, 520 F.3d 984 (9th Cir.2008) (en banc).

We agree. After Booker and Carty each of which held that any element of a sentencing decision, whether discretionary or not, may be "unreasonable" and therefore unlawful Lowe's conclusion that discretionary sentencing decisions are unreviewable on appeal is no longer good law. We conclude that 18 U.S.C. § 3582(c)(2) sentence reduction decisions are reviewable in their entirety for abuse of discretion under 28 U.S.C. § 1291.

The order filed March 10, 2009, is hereby VACATED. The government's Motion to Dismiss Appeal is DENIED, and its Motion to Toll Briefing Schedule During Pendency of Motion is GRANTED. The parties shall file their briefs within the time set forth in Federal Rule of Appellate Procedure 31(a), commencing from the filed date of this order.

NOTES

[*] The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).