United States v. Bryant Iwai

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10192
Plaintiff-Appellee, D.C. No.
1:15-cr-00723-DKW-1
v.
BRYANT KAZUYOSHI IWAI, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Submitted July 7, 2020**
Honolulu, Hawaii
Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.
Bryant Kazuyoshi Iwai appeals from the district court’s order denying as
untimely the government’s Federal Rule of Criminal Procedure 35(b) motion to
reduce his sentence. As the parties are familiar with the facts, we do not recount
them here. We dismiss for lack of appellate jurisdiction.
*
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).
“[T]he exclusive avenue [to] appeal . . . rulings on Rule 35(b) motions is
18 U.S.C. § 3742.” United States v. Arishi, 54 F.3d 596, 599 (9th Cir. 1995).
Section 3742(a) provides that:
A defendant may file a notice of appeal in the district court for review
of an otherwise final sentence if the sentence
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the
sentencing guidelines; . . .
(3) is greater than the sentence specified in the applicable guideline
range . . . ; or
(4) was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.
18 U.S.C. § 3742(a).
Iwai has not shown that any of § 3742(a)’s four criteria apply here.
See United States v. Pedroza, 355 F.3d 1189, 1190-91 (9th Cir. 2004) (per curiam).
The latter three criteria clearly do not apply. For the first criteria, Iwai has not
shown that the district court’s denial of the Rule 35(b) motion as untimely was a
“violation of law.” 18 U.S.C. § 3742(a)(1). Nor has Iwai shown that the
government’s failure to file a timely Rule 35(b) motion was based on an
unconstitutional motive. See Arishi, 54 F.3d at 597-98 (citing Wade v. United
States, 504 U.S. 181, 185-86 (1992)).
Iwai has provided no evidence that the government entered into, let alone
breached, an agreement to file a Rule 35(b) motion. As a result, his reliance on
United States v. Hernandez, 34 F.3d 998, 1000 (11th Cir. 1994) (per curiam), and
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United States v. Pinter, 971 F.2d 554, 557-58 (10th Cir. 1992) (per curiam), is
misplaced.
We lack jurisdiction over this appeal because Iwai has failed to satisfy any
of the criteria in § 3742(a). See Pedroza, 355 F.3d at 1190-91; Arishi, 54 F.3d at
599. However, we are disappointed by the government’s actions in this case, and
expect that it will avoid similar mistakes in the future.
DISMISSED.
3