United States v. Talatonu Tupuola

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 08-10422
v.  D.C. No.
1:99-CR-00450-
TALATONU TUPUOLA, HG-HG-1
Defendant-Appellant.

Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, District Judge, Presiding
UNITED STATES OF AMERICA,  No. 09-10092
Plaintiff-Appellee, D.C. No.
v.  1:00-CR-00174-
MAAVE MAAVE, JR., DAE
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Hawaii
David Alan Ezra, District Judge, Presiding
Argued and Submitted
October 14, 2009—Honolulu, Hawaii
Filed November 24, 2009
Before: Robert R. Beezer, Susan P. Graber and
Raymond C. Fisher, Circuit Judges.
15561
15562 UNITED STATES v. TUPUOLA
Opinion by Judge Beezer
UNITED STATES v. TUPUOLA 15563
COUNSEL
Alexander Silvert, First Assistant Federal Defender, Hono-
lulu, Hawaii, for the defendants-appellants.
Beverly Wee Sameshima and Michael K. Kawahara, Assis-
tant United States Attorneys, Honolulu, Hawaii, for the
plaintiff-appellee.
OPINION
BEEZER, Circuit Judge:
Appellants Talatonu Tupuola and Maave Maave, Jr., appeal
district court denials of their motions for sentence reductions
under 18 U.S.C. § 3582(c)(2). Both Tupuola and Maave were
sentenced under the “career offender” United States Sentenc-
ing Guidelines ranges contained in U.S.S.G. § 4B1.1. Tupuola
and Maave contend that they should each be entitled to a sen-
tence rehearing because at trial they sought downward depar-
tures due to the disparity between the crack cocaine
Guidelines ranges contained in U.S.S.G. § 2D1.1 and the
career offender Guidelines ranges. They make this argument
even though the district court refused to depart from the
Guidelines and sentenced them within the applicable career
offender Guidelines ranges. We have jurisdiction over this
appeal pursuant to 28 U.S.C. § 1291. We hold that the district
15564 UNITED STATES v. TUPUOLA
court correctly declined to reduce appellants’ sentences.
Tupuola’s and Maave’s sentences were not “based on a sen-
tencing range that has subsequently been lowered by the Sen-
tencing Commission.” 18 U.S.C. § 3582(c)(2).
I
Although Tupuola and Maave were individually arrested,
convicted and sentenced, their stories are notably similar. On
September 9, 1999, Tupuola was arrested pursuant to a war-
rant alleging that he had sold crack cocaine within 1000 feet
of a school or public housing development. Tupuola was sub-
sequently charged, pursuant to 21 U.S.C. §§ 841(a)(1),
860(a), in a single-count indictment with knowingly and
intentionally possessing with the intent to distribute cocaine
base within 1000 feet of a school or public housing develop-
ment. Tupuola pleaded guilty without a plea agreement.
According to the Presentence Investigation Report, Tupu-
ola would have had a total offense level of 17 and a criminal
history category of VI. That combination would have resulted
in a Guidelines sentencing range of 51 to 63 months. Tupuola,
however, qualified as a career offender under Chapter IV of
the Guidelines due to his six prior felonies, including robbery
and terroristic threatening. Pursuant to U.S.S.G. § 4B1.1, this
classification raised Tupuola’s total offense level from 17 to
31, resulting in a new Guidelines sentencing range of 188 to
235 months.
Both prior to sentencing and at his sentence hearing on
April 24, 2000, Tupuola requested a downward departure
from the career offender Guidelines range by noting, among
other things, the large disparity between the crack cocaine
Guidelines range and the applicable career offender Guide-
lines range. The district court acknowledged that it had discre-
tionary authority to depart from the career offender
Guidelines range, but elected not to exercise that authority.
Tupuola was sentenced to 188 months in prison, the lowest
UNITED STATES v. TUPUOLA 15565
amount within the applicable career offender Guidelines
range.
Maave’s situation follows a similar path. On June 23, 2000,
Maave pleaded guilty without a plea agreement to one count
of possessing with the intent to distribute 0.124 grams of
crack cocaine within 1000 feet of a playground. Were it not
for the career offender provisions, the Presentence Investiga-
tion Report would have placed Maave’s total offense level at
12 with a criminal history category of IV, ultimately leading
to an advisory Guidelines sentencing range of 21 to 27
months.
Like Tupuola, however, Maave fell within the scope of the
career offender provisions of U.S.S.G. § 4B1.1 due to his
prior criminal history, including multiple robbery convictions.
His offense level was thereby increased from 12 to 31, his
criminal history category was increased from IV to VI and his
Guidelines sentencing range was increased to 188 to 235
months.
Maave requested, both prior to sentencing and at his sen-
tencing on January 24, 2001, a downward departure from the
career offender Guidelines range on the basis of the large dis-
parity between the standard crack cocaine Guidelines range
and the career offender Guidelines range. The district court
considered and denied his request, ultimately sentencing
Maave within the career offender Guidelines range to 188
months in prison.
Several years after Tupuola and Maave were sentenced, the
United States Sentencing Commission adopted Amendment
706. Amendment 706 addressed the sentencing disparity
between offenses involving crack cocaine and powder cocaine
by reducing the base offense level for crack cocaine offenses
by two levels under U.S.S.G. § 2D1.1. See generally Kim-
brough v. United States, 552 U.S. 85, 94-100 (2007) (detail-
ing the changes in the treatment of crack and powder cocaine
15566 UNITED STATES v. TUPUOLA
under the Guidelines). On March 3, 2008, Amendment 706
was made to apply retroactively. See U.S.S.G. § 1B1.10(c);
see also United States v. Leniear, 574 F.3d 668, 672-73 (9th
Cir. 2009). In light of this retroactive amendment, Tupuola
and Maave individually filed motions in federal district court
to have their sentences reduced pursuant to 18 U.S.C.
§ 3582(c)(2). The government opposed their motions, arguing
that the district court lacked jurisdiction to reduce their sen-
tences. The district court ultimately agreed and denied each of
appellants’ motions for resentencing, holding that Tupuola’s
and Maave’s sentences were “based on” the career offender
Guidelines ranges and not on the later-amended crack cocaine
Guidelines ranges. Their appeals timely followed.
II
We review de novo whether a district court has jurisdiction
to resentence a defendant under 18 U.S.C. § 3582. Leniear,
574 F.3d at 672.
III
A district court generally “may not modify a term of
imprisonment once it has been imposed.” 18 U.S.C.
§ 3582(c). An exception to this general prohibition is pro-
vided by 18 U.S.C. § 3582(c)(2), which states:
[I]n the case of a defendant who has been sentenced
to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C.
994(o), upon motion of the defendant . . . the court
may reduce the term of imprisonment, after consid-
ering the factors set forth in section 3553(a) to the
extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued
by the Sentencing Commission.
UNITED STATES v. TUPUOLA 15567
Tupuola and Maave argue that the district court erred by
holding that it lacked jurisdiction to resentence the appellants
because the court concluded that their sentences were not
“based on” a sentencing range that has subsequently been
lowered. Tupuola and Maave urge us to hold that their sen-
tences were, at least in part, based on the subsequently
amended crack cocaine Guidelines ranges because Tupuola
and Maave emphasized, both before sentencing and at their
sentence hearings, the disparity between the crack cocaine
Guidelines ranges and the career offender Guidelines ranges.
[1] We decline to accept this invitation. We have recently
held that career offenders sentenced pursuant to § 4B1.1 are
not eligible for sentence reductions because of Amendment
706. United States v. Wesson, No. 08-30177, 2009 WL
3336020, at *3-4 (9th Cir. Oct. 19, 2009). The mere fact that
the district court considered the difference between the crack
cocaine Guidelines ranges and the career offender Guidelines
ranges is insufficient to make Tupuola’s and Maave’s sen-
tences “based on” the crack cocaine Guidelines ranges. Dis-
trict courts frequently consider and reject arguments without
basing the sentence on those arguments, as the district court
did here with Tupuola’s and Maave’s contentions. In the
instant cases, the district court’s decisions were clearly “based
on” the applicable career offender Guidelines range. To hold
otherwise would unreasonably extend the meaning of “based
on.” Our decision is in accord with precedent from this circuit
refusing to expand the understanding of “based on.” See, e.g.,
United States v. Bride, 581 F.3d 888, 891 (9th Cir. 2009)
(holding that the mere fact that “the parties to a plea agree-
ment considered the Guidelines in recommending a sentence”
does not make a sentence “based on” subsequently amended
Guidelines ranges).
AFFIRMED.