Craig Anthony Carrington v. United States of America, Robert Charles Tillitz v. United States

470 F.3d 920 Craig Anthony CARRINGTON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Robert Charles Tillitz, Petitioner-Appellant, v. United States of America, Respondent-Appellee. No. 05-36143. No. 05-36144. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 18, 2006. Filed December 13, 2006. Russell V. Leonard, Assistant Federal Public Defender, Tacoma, Washington, for petitioner-appellant Robert Charles Tillitz. Carol A. Elewski, Tumwater, Washington, for petitioner-appellant Craig Anthony Carrington. Helen J. Brunner, Assistant United States Attorney, Seattle, Washington, for the respondent-appellee. Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. Nos. CV-05-05286-RJB, CV-05-05144-RJB, CR-94-05074-RJB. Before: PREGERSON, NOONAN, and CALLAHAN, Circuit Judges. PREGERSON, Circuit Judge: 1 The two sentencing cases before us present unusual circumstances. In both, the district court expressed its dissatisfaction with the United States Sentencing Guidelines on the record during the sentencing hearing, at a time when the Guidelines' constitutionality…

The two sentencing cases before us present unusual circumstances. In both, the district court expressed its dissatisfaction with the United States Sentencing Guidelines on the record during the sentencing hearing, at a time when the Guidelines’ constitutionality was accepted. In addition, post-Booker, the district court implored us to recall our mandate in these two cases so that it could sentence Carrington and Tillitz to a just and proper sentence. We believe that these cases present extraordinary circumstances and accordingly, we recall our mandate and remand for re-sentencing.

I. Factual Background

A. Craig Carrington’s Original Sentencing Hearing

On May 14, 1990, Craig Carrington pleaded guilty to conspiracy to distribute 500 grams or more of a mixture and substance containing cocaine under 21 U.S.C. §§ 841 (a), 841(b)(1)(B). The district court, Judge Robert Bryan, held a two-day sentencing hearing on October 22-23, 1990. *922 During that hearing, Judge Bryan commented:

Judge Bryan sentenced Carrington to 324 months in prison, the low end of the applicable Guidelines range. Carrington’s conviction and sentence were upheld on direct and collateral appeals.

B. Robert…

concurring and dissenting:

The majority, after affirming the denial of appellants’ creative requests for relief by way of a writ of audita querela and pursuant to 18 U.S.C. § 3582 (c)(2) (modification of sentence), 1 misuses our equitable powers to recall the mandates in cases that became final over fifteen years ago and six years ago, respectively. I dissent because the majority misreads the factual record, *926 departs from controlling precedent and the positions taken by our sister circuits, and proposes a premise on which any defendant sentenced under the pre-Booker guidelines may seek to be re-sentenced.

I

Initially, it should be observed that there is nothing in the record of either of these cases to suggest any individual equities. As noted by the majority, at the initial sentencing hearings, Judge Bryan expressed his frustration with the lack of discretion afforded to district judges by the mandatory sentencing guidelines, (maj. op. at 924) But there is nothing to suggest that these appellants were different from any other persons sentenced under the guidelines. In fact, at oral argument, government counsel noted that when one of the appellants initially sought a…