United States v. Darren Ellis

FILED
NOT FOR PUBLICATION
AUG 07 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50396
Plaintiff-Appellant, D.C. No.
2:15-cr-00620-ODW-1
v.
DARREN EUGENE ELLIS, AKA C- MEMORANDUM*
Note,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted July 10, 2018**
Pasadena, California
Before: BERZON and N.R. SMITH, Circuit Judges, and CASTEL,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable P. Kevin Castel, United States District Judge for the
Southern District of New York, sitting by designation.
The government appeals the district court’s imposition of a one-year and
one-day sentence for defendant Darren Ellis’s conviction for distributing at least
five grams of methamphetamine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii). The
government maintains that Ellis was subject to a five-year mandatory minimum,
despite the significant and moving mitigating evidence Ellis presented at
sentencing.1 We agree.
1. Federal drug laws require that, for those convicted of distributing “5
grams or more of methamphetamine,” “such person shall be sentenced to a term of
imprisonment which may not be less than 5 years.” 21 U.S.C. § 841(b)(1)(B)(viii).
Because Ellis admitted to distributing approximately 24.6 grams of
methamphetamine, the district court was required to sentence him to at least five
years’ imprisonment under § 841(b)(1)(B)(viii) unless an exception applied.2 See
United States v. Skyes, 658 F.3d 1140, 1146 (9th Cir. 2011) (internal quotation
marks and alterations omitted). Ellis does not claim that any exception applied.
1
We do not summarize that mitigating evidence here, as it was submitted
under seal. Suffice it to say that we understand why Judge Wright found the
evidence compelling.
2
“The statutory minimum sentence must be imposed unless the defendant is
a first-time offender who qualifies for the ‘safety valve’ under guideline section
5C1.2, or the government moves for a downward departure based on the
defendant’s ‘substantial assistance.’” United States v. Haynes, 216 F.3d 789, 799
(9th Cir. 2000), amended on denial of reh’g (Aug. 15, 2000).
2
Instead, he argues that the district court could refuse to impose the mandatory
minimum sentence because such a sentence would violation the Eighth
Amendment and because he was the victim of sentencing entrapment. We
disagree.
2. Imposition of a five-year sentence here would not violate the Eighth
Amendment. “The Supreme Court has upheld far tougher sentences for less
serious or, at the very least, comparable offenses.” United States v. Hammond, 742
F.3d 880, 884 (9th Cir. 2014) (approving of a five-year mandatory minimum
sentence for arson). Although the five-year mandatory minimum sentence is
certainly a serious term of imprisonment, it is not so unusual or disproportionate to
Ellis’ crime of distributing just under an ounce of methamphetamine—a not-tiny
amount of a serious, harmful drug—to warrant an “exceedingly rare” court
intervention under the Eighth Amendment. Ewing v. California, 538 U.S. 11, 22
(2003) (internal quotation marks omitted).
3. Ellis waived any right to raise a sentencing entrapment defense. Because
Ellis not only gave up affirmative defenses in his plea agreement, but also “fully
admitted to the drug quantities on which his sentence was based,” Ellis’s “guilty
plea forecloses him from raising this claim.” United States v. Briggs, 623 F.3d
724, 730 (9th Cir. 2010).
3
4. During sentencing, Judge Wright explained:
I know it’s very easy for the system to do what the system has always
done, which is simply lock [Ellis] up and warehouse him. I’m not
certain that that is going to change anything. He’s already
experienced that, and here we are.
I think it’s time to fix what is broken, and I think we have the power
to fix it.
So my tentative [ruling] is to impose a fairly short custodial sentence,
bordering on time served and with immediate referral for him to enter
the Star program3 where he can get the mental health treatment that he
needs, where we can take care of his addiction so that he is clean and
sober and will be able to take advantage of some of these other
services that are afforded the members of . . . the Star team. . . .
And I apologize to the government, whose advice I value and
generally go along with because the government’s recommendations
are generally tempered by reason, by a desire to seek justice, and I’m
often guided by the government’s recommendations.
But here, my conscience, and certainly all of our desire to make sure
justice is done, tells me a long period of incarceration is not what is
called for here. It is not reasonable.
Whether or not we would agree, Congress does not. It requires a mandatory
minimum sentence far, far higher than the sentence Judge Wright found reasonable
3
The Substance Abuse Treatment and Reentry Program (“STAR”) “is a
post-conviction reentry program for high risk substance abuse offenders which
provides integrated drug and alcohol treatment services with justice system case
processing.” United States District Court: Central District of California, Substance
Abuse Treatment and Reentry Program (STAR) (last visited August 2, 2018),
https://www.cacd.uscourts.gov/judges-requirements/court-programs/substance-abu
se-treatment-and-reentry-program-star.
4
and appropriate. So we have no choice but to vacate Ellis’s sentence and remand
for resentencing consistent with the applicable five-year minimum sentence.
REVERSED, VACATED, and REMANDED.
5