United States v. Tyrone Davis

Per Curiam Opinion; Concurrence by Judge BERZON.

OPINION

In 2005, Davis was convicted on the basis of his plea agreement and sentenced to 18 years for conspiracy, distribution, and possession with intent to distribute cocaine base, that is, crack. We affirmed his sentence on direct appeal. Subsequently, in 2010, the United States Sentencing Commission reduced the Sentencing Guidelines retroactively for crack cocaine. Davis sought a retroactive reduction of his sentence based upon this change. The district court held that it lacked jurisdiction to modify his sentence because his sentence was not “based on” the Guidelines. 1 We review de novo, 2 and affirm.

Davis’s plea agreement recites that it is entered into pursuant to Rule 11(c)(1)(C). 3 A “(c)(1)(C)” agreement is one that the district court has discretion to accept or reject, but if the district court does not agree upon the particular sentence the parties have agreed to, then the defendant is entitled to withdraw from the agreement. 4 There is no issue in this case *1090 regarding whether the agreement was, as it recites, an 11(c)(1)(C) agreement.

The agreement lists some, but not all, of the factors that would enable a…

concurring:

I agree with the per curiam opinion, given the holding of United States v. Austin, 676 F.3d 924 (9th Cir.2012). In my view, however, Austin was incorrectly decided and should be reconsidered by this court en banc. We should instead adopt the rationale of United States v. Epps, 707 F.3d 337 (D.C.Cir.2013).

In Austin , we held that Justice Sotoma-yor’s opinion in Freeman v. United States, — U.S. -, 131 S.Ct. 2685 , 180 L.Ed.2d 519 (2011), was controlling under Marks v. United States, 430 U.S. 188 , 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977). See Austin, 676 F.3d at 927-28 . Subsequently, in Epps , the D.C. Circuit concluded that none of the opinions in Freeman represented the holding of the Court. Epps, 707 F.3d at 348-51 . The D.C. Circuit then went on to hold, independently of any binding Supreme Court precedent but in accord with the plurality opinion in Freeman , that, for purposes of 18 U.S.C. § 3582 (c)(2), “the focus, even when there is a [Fed.R.Crim.P.] 11(c)(1)(C) plea agreement, ought to be on the reasons given by the district court for accepting the sentence that it ultimately imposed, not on the parties’ agreement.” Id. at 351 . I agree.

Under Marks, the holding…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-30133 Plaintiff-Appellee, D.C. No. v. 3:04-cr-05350-RBL-

TYRONE DAVIS,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Argued and Submitted May 14, 2014—Seattle, Washington

Filed January 27, 2015

Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld, and Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion; Concurrence by Judge Berzon SUMMARY*

Criminal Law

The panel affirmed the district court’s denial of a motion pursuant to 18 U.S.C. § 3582(c)(2) for reduction of sentence based upon the retroactive amendments to the Sentencing Guidelines governing crack cocaine.

The panel held that the district court’s determination that it lacked jurisdiction to reduce the defendant’s sentence because the sentence was not “based on” the Guidelines is compelled under United States v. Austin, 676 F.3d 924 (9th Cir. 2012), where the defendant’s Fed. R. Crim. P. 11(c)(1)(C) plea agreement neither…