United States v. Owen Dunn

Opinion by Judge Milan D. Smith, Jr.; Concurrence by Judge O’SCANNLAIN.

OPINION

Owen Dunn appeals the district court’s denial of his motion for a reduced sentence under 18 U.S.C. § 3582 (c)(2). Dunn is currently serving a 100-month prison sentence for a crack cocaine offense. He unsuccessfully moved for a 17-month reduction of this sentence under § 3582(c)(2) based on retroactive amendments to the United States Sentencing- Guidelines (USSG) that lowered the penalties for crack cocaine offenses. .The Government argues that Dillon v. United States, 560 U.S. 817 , 130 S.Ct. 2683 , 177 L.Ed.2d 271 (2010), compels us to dismiss this appeal for lack of jurisdiction.

We hold that we have jurisdiction to review § 3582(c)(2) discretionary decisions under United States v. Colson, 573 F.3d 915 (9th Cir.2009), which is not “clearly irreconcilable” with Dillon. Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.2003) (en banc). We also hold that the district court did not abuse its discretion in denying Dunn’s motion for a reduced sentence because it properly considered the factors under 18 U.S.C. § 3553 (a) and relied on facts supported by the record. Accordingly, we affirm.

FACTS AND PRIOR…

specially concurring.

I write separately because Owen Dunn’s case should not be before us. “The right of appeal, as we presently know it in criminal cases, is purely a creature of statute.” Abney v. United States, 431 U.S. 651, 656 , 97 S.Ct. 2034 , 52 L.Ed.2d 651 (1977). I fear the creature has wandered far outside its cage in this circuit. A proper analysis of the statutory framework and Supreme Court precedent regarding re-sentencing appeals makes one thing clear: the federal courts have no power to hear such appeals based solely on the contention that the district court’s determination was unreasonable. 1 Yet, that is precisely the basis of Dunn’s appeal.

Dunn’s claim survives only because of this circuit’s erroneous precedents, but not all courts of appeal have similarly erred. *1161 The Sixth Circuit’s opinion in United States v. Boivers, 615 F.3d 715 (6th Cir. 2010), rightly concluded that jurisdiction over re-sentencing appeals does not include review for reasonableness. Bowers presents this Court with a guide and a challenge: a guide to a proper understanding of our power; a challenge to accept the limits of it. I hope that our Court will soon have the opportunity to…

FACTS AND PRIOR PROCEEDING

In March 2008, while still on supervised release for a firearm offense,1 Dunn sold approximately 18 grams of crack cocaine to a government agent near a playground in San Francisco, California. Dunn was later arrested and charged with distribution and possession with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), and distribution and possession with intent to distribute crack cocaine within 1,000 feet of a public housing facility, in violation of 21 U.S.C. § 860(a).

A. Dunn’s Crack Cocaine Sentence

Dunn entered into a plea agreement with the Government and pleaded guilty to the crack cocaine charge. In the plea agreement, Dunn and the Government agreed to propose a 84-month prison sentence, with 8 years of supervised release. The parties agreed that Dunn’s base offense level was 23, but they did not specify a criminal history category.2 The parties separately agreed that Dunn would serve a 16-month consecutive sentence for his supervised release violation, which was pending before Judge Maxine Chesney, in Case No. CR-01-0083.

1 In 2002, Dunn pleaded guilty to a firearm charge, and was…