United States v. Tustuji Wakauwn

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30228
Plaintiff-Appellee, D.C. No.
2:12-cr-06060-EFS-1
v.
TUSTUJI MATU WAKAUWN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Submitted October 5, 2017**
Seattle, Washington
Before: LIPEZ,*** WARDLAW, and OWENS, Circuit Judges.
Defendant Tustuji Matu Wakauwn appeals from the district court’s order
denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and
*
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 Kermit Victor Lipez, United States Circuit Judge for
the First Circuit, sitting by designation.
Amendment 782 to the U.S. Sentencing Guidelines. As the parties are familiar
with the facts, we do not recount them here. We reverse the district court’s order
and remand for further proceedings under § 3582(c)(2).
1. When the district court held that Mr. Wakauwn’s sentence was
“ineligible” for reduction because it was not “based on” the Guidelines, it denied
Mr. Wakauwn’s motion at step one of the two-step § 3582(c)(2) analysis, see
Dillon v. United States, 560 U.S. 817, 826–27 (2010), and thus indicated that it
lacked jurisdiction to grant relief under that statute, see United States v. Spears,
824 F.3d 908, 916 (9th Cir. 2016). This court reviews such determinations de
novo. See United States v. Davis, 825 F.3d 1014, 1019 & n.6 (9th Cir. 2016) (en
banc).
2. The district court erred in holding that Mr. Wakauwn’s sentence was
ineligible for reduction because it was not “based on” the Guidelines, but rather on
his Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement and “factors
other than the Guidelines.” A sentence is eligible for reduction under § 3582(c)(2)
if it was “based on” a Guidelines range that a retroactive amendment subsequently
lowered. Dillon, 560 U.S. at 825–26. A sentence pursuant to a Rule 11(c)(1)(C)
plea agreement is eligible for reduction under § 3582(c)(2) when the district
court’s decision to accept the plea agreement and impose the recommended
sentence was “based on” a subsequently lowered Guidelines range. Davis, 825
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F.3d at 1026.
Here, the government does not dispute that retroactive Amendment 782
subsequently lowered the Guidelines range applicable to Mr. Wakauwn’s
conviction. And just as in Davis, the district court’s decision to accept Mr.
Wakauwn’s Rule 11(c)(1)(C) plea agreement and impose the recommended
sentence was “based on” the Guidelines range subsequently lowered by
Amendment 782.
Several undisputed facts lead us to this conclusion. First, the Rule
11(c)(1)(C) plea agreement required the district court to “determine the
Defendant’s applicable sentencing guideline range at the time of sentencing.” Cf.
Davis, 825 F.3d at 1027. Second, the agreement stated that the amount of actual
methamphetamine for which Mr. Wakauwn admitted direct responsibility would
yield a base offense level of 26 under U.S.S.G. § 2D1.1. Id. Third, the agreement
explained that Mr. Wakauwn qualified for a Guidelines reduction under U.S.S.G.
§ 3E1.1 for acceptance of responsibility. Id. Fourth, during the sentencing
hearing, the district court calculated that Mr. Wakauwn’s total offense level was 23
and that his Guidelines range was 92 to 115 months. Id. Then, reflecting on all the
evidence presented, the court determined that the recommended sentence—which,
at 100 months, fell within the calculated range—was “just.” Id.
While it is true that the district court “focused primarily” on the non-
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Guidelines 18 U.S.C. § 3553(a) factors in its statement of reasons and at Mr.
Wakauwn’s sentencing hearing, § 3553(a) mandates consideration of those factors.
Moreover, nothing in the record indicates that, had the recommended term of 100
months fallen above the Guidelines range—if, for example, the post-Amendment
range of 77 to 96 months had applied—the district court still would have
concluded that 100 months was “not greater than necessary” to achieve the
purposes set forth in § 3553(a). See Davis, 825 F.3d at 1027 (“[A] defendant
should be eligible for a sentence reduction when one factor in a defendant’s
sentence was a ‘since-rejected Guideline.’” (quoting Freeman v. United States, 564
U.S. 522, 530 (2011) (plurality opinion))); cf. United States v. Rodriguez-Soriano,
855 F.3d 1040, 1044 (9th Cir. 2017) (holding that a Rule 11(c)(1)(C) sentence was
not “based on” the Guidelines where the district court calculated the applicable
Guidelines range, then disregarded that range due to the applicability of a statutory
mandatory minimum).
Accordingly, as in Davis, the district court’s “‘decision to accept the plea
and impose the recommended sentence’ was ‘based on the Guidelines,’” and that
sentence is eligible for reduction through § 3582(c)(2). See 825 F.3d at 1027
(quoting Freeman, 564 U.S. at 534 (plurality opinion)). On remand, the district
court should proceed to step two of the § 3582(c)(2) analysis and “consider any
applicable § 3553(a) factors and determine whether, in its discretion, the reduction
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authorized by reference to [U.S.S.G. § 1B1.10] is warranted in whole or in part
under the particular circumstances of the case.” Dillon, 560 U.S. at 827.
REVERSED AND REMANDED.
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