United States v. Timothy Dillon

FILED
NOT FOR PUBLICATION OCT 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30200
Plaintiff - Appellee, D.C. No. 3:04-cr-05350-RBL-9
v.
MEMORANDUM *
TIMOTHY DILLON,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted October 8, 2010 **
Seattle, Washington
Before: THOMAS and M. SMITH, Circuit Judges, and COLLINS, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 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 Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
Defendant-Appellant Timothy Dillon appeals an order of the United States
District Court for the Western District of Washington denying his motion for a
reduction of his 97-month sentence for drug-related offenses. After his guilty plea
in 2006, this Court affirmed Dillon’s conviction and above-Guidelines sentence.
United States v. Dillon, 244 F. App’x 152, 155-56 (9th Cir. 2007). Dillon
subsequently filed a pro se application with the district court to reduce his sentence
on account of the Sentencing Commission’s amendments to the Guidelines, which
reduced the crack-cocaine offense levels. See United States Sentencing Guidelines
Manual (U.S.S.G.) app. C, amdt. 706 (2007). The parties are presumed to be
familiar with the remaining facts, and we do not recount them here except as
necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291and affirm.
There are two issues: (1) the government challenges the district court’s
jurisdiction to consider Dillon’s § 3582(c)(2) application on the grounds that
reducing an above-Guidelines sentence is inconsistent with the Sentencing
Commission’s policy statements; and (2) Dillon asserts that the district court
abused its discretion in refusing to modify his sentence.
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1. District Court’s Jurisdiction
“We review de novo whether a district court has jurisdiction to resentence a
defendant under 18 U.S.C. § 3582.” United States v. Tupuola, 587 F.3d 1025,
1027 (9th Cir. 2009) (citing United States v. Leniear, 574 F.3d 668, 672 (9th Cir.
2009)). Although the Government did not advance its jurisdictional argument in
the district court, because it presents a jurisdictional question, we may consider it.
See United States v. Powell, 24 F.3d 28, 30 (9th Cir. 1994) (“[W]e review
questions of jurisdiction even if raised for the first time on appeal.”).
Generally, a district court “may not modify a term of imprisonment once it
has been imposed.” 18 U.S.C. § 3582(c); see also United States v. Wesson, 583
F.3d 728, 730 (9th Cir. 2009). “However, 18 U.S.C. § 3582(c)(2) creates an
exception to this rule by allowing modification of a term of imprisonment if:
(1) the sentence is ‘based on a sentencing range that has subsequently been
lowered by the Sentencing Commission’ and (2) ‘such a reduction is consistent
with applicable policy statements issued by the Sentencing Commission.’” Wesson,
583 F.3d at 728.
The argument advanced by the government is based primarily on this court’s
now withdrawn and superseded opinion in United States v. Sipai, 582 F.3d 994(9th Cir. 2009), withdrawn and superseded, --- F.3d ----, 2010 WL 3785527, at *2
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(9th Cir. Sept. 30, 2010). In the original Sipai decision, we affirmed a district
court’s determination that it lacked jurisdiction to consider a sentence-reduction
motion from a defendant who had already received a below-Guidelines sentence
based on the 18 U.S.C. § 3553 factors. 582 F.3d at 996-97. The first Sipai
decision was based on the Sentencing Commission’s policy statement that “if the
original term of imprisonment constituted a non-[G]uideline sentence determined
pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005),
a further reduction generally would not be appropriate.” Sipai, 582 F.3d at 996
(citing U.S.S.G. § 1B1.10(b)(2)(B)).
In amending Sipai, this court clarified that district courts have “discretion”
to consider a § 3582(c)(2) reduction when a defendant received a discretionary
below-Guidelines sentence. 2010 WL 3785527, at *2. Our modification
recognizes that the Sentencing Commission’s use of the modifier “generally” is not
consistent with a categorical jurisdictional bar. Id.In light of the recent Sipai decision, the Government’s jurisdictional
argument is on soft ground–we can discern no meaningful distinction between
reducing a below-Guidelines and reducing an above-Guidelines sentence.
Regardless, Dillon independently satisfies both prongs for § 3582(c)(2)
jurisdiction. First, his original sentence was based on a Guidelines sentencing
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range which has now been lowered,1 as opposed to a statutory minimum, plea
agreement, or other sentencing consideration. See, e.g., Wesson, 583 F.3d at 731(holding there was no jurisdiction under § 3582(c)(2) when the district court
applied U.S.S.G. § 4B1.1’s alternative sentencing scheme); United States v. Bride,
581 F.3d 888, 891 (9th Cir. 2009) (finding no jurisdiction where sentence was
imposed pursuant to a plea agreement); United States v. Jackson, 577 F.3d 1032,
1035-36 (9th Cir. 2009) (finding no jurisdiction where district court “used the
mandatory minimum, not the Sentencing Guidelines range, as the starting point for
determining [the defendant’s] sentence”). Second, Dillon’s petition is not contrary
to the Sentencing Commission’s policy statements because he is not seeking a
“further” reduction in his sentence. Indeed, because his 97-month sentence is
above the Guidelines, this would be his “first” reduction. Accordingly, Dillon’s
application presents no jurisdictional concerns.
1
See Dillon, 244 F. App’x at 155 (“After . . . calculating Dillon’s Guidelines
range to be between 63 and 78 months, . . . [t]he district court then sentenced
Dillon to 97 months incarceration, explaining that this was a sufficiently ‘long
time’ to reflect the ‘extremely serious’ nature of the offense, to ‘protect the public
from further crimes and to [provide an] adequate deterrent from criminal conduct
generally.’”).
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2. Denial of Dillon’s Motion
We review a district court’s decision to deny a § 3582(c)(2) motion for
abuse of discretion. United States v. Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009).
To comply with § 3582(c)(2), the district court must:
(1) determine whether the defendant was “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)”;
(2) “consider[ ] the factors set forth in section 3553(a) to the extent that
they are applicable”; and (3) determine whether “a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.”
Id. at 1126 (brackets in original) (quoting 18 U.S.C. § 3582(c)(2)).
Although the district court’s initial order denying Dillon’s motion without
explanation is troubling, the amplifications provided by the court in its denial of
Dillon’s motion for reconsideration amply support its decision. Notably, the
district court noted that “the reasons for the original sentence remain,” thus
carrying forward its prior findings about the gravity of Dillon’s crimes. The court
also properly analyzed Dillon’s motion against the backdrop of § 3553(a),
speaking of the seriousness of the offense, Dillon’s role, and the need for
deterrence. See 18 U.S.C. § 3553(a)(1) (nature and circumstances of the offense);
id. § 3553(a)(2)(A) (seriousness of the offense); id. § 3553(a)(2)(B) (deterrence).
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Moreover, there was no need for the district court to specifically tackle each
of Dillon’s arguments given that the reasonableness of Dillon’s sentence was
already confirmed by the prior appeal. See Dillon, 244 F. App’x at 155 (“[The
district court] justified the sentence by referencing a number of case-specific facts
regarding Dillon’s ‘history and characteristics’ and the seriousness of Dillon’s
offense, as well as by referencing at least two other factors listed in 18 U.S.C. §
3553(a).”) (internal references omitted). In light of the Supreme Court’s
admonition that § 3582(c)(2) is not a “plenary resentencing proceeding” Dillon v.
United States, 130 S. Ct. 2683, 2691–92 (2010), the district court committed no
error in denying Dillon’s motion.
AFFIRMED.
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