United States v. Navarro

• Decision Date: 04 September 2015
• Docket Number: No. 15–10245.,15–10245.
• Citation: 800 F.3d 1104
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jorge Avila Alberto NAVARRO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

800 F.3d 1104

UNITED STATES of America, Plaintiff–Appellee

v.Jorge Avila Alberto NAVARRO, Defendant–Appellant.

No. 15–10245.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 11, 2015.^*

Filed Sept. 4, 2015.

Rachel R. Goldberg and Tara Azad Amin, Sidley Austin LLP, Chicago, IL; Robin Eve Wechkin, Sidley Austin LLP, Seattle, WA; Heather E. Williams, Federal Defender, and Hannah Labaree, Assistant Federal Defender, Sacramento, CA, for Defendant–Appellant.

Benjamin B. Wagner, United States Attorney, Camil A. Skipper and Jason Hitt, Assistant United States Attorneys, Sacramento, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Eastern District of California, William B. Shubb, Senior District Judge, Presiding. D.C. No. 2:07 cr–0332 WBS–1.

Before: STEPHEN REINHARDT, A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

In this appeal, we examine the scope of the United States Sentencing Commission's (the “Commission”) authority to limit the retroactive effect of its amendments to its Sentencing Guidelines. We hold that a district court cannot apply a retroactive amendment to reduce an already imposed sentence prior to that amendment's effective date. We also hold that the Commission's determination of the appropriate effective date for a retroactive amendment is not invalid simply because the Commission made reference to prisoners' rehabilitative needs. We therefore affirm.

I.

A.

In 2008, Jorge Avila Alberto Navarro pled guilty to possession with intent to distribute methamphetamine. At sentencing, the district court calculated the appropriate Guidelines range to be 151 to 188 months. On the government's motion, the district court imposed a below-Guidelines sentence of 113 months imprisonment. Under that sentence, Navarro is scheduled to be released on September 9, 2015.

On November 1, 2014, the Commission issued Amendment 782 to its Sentencing Guidelines, which lowered the recommended sentences for certain drug crimes, including the crime of which Navarro was convicted. See United States Sentencing Commission, Guidelines Manual, (hereinafter “USSG”), supp. app'x. C, amend 782 (2014). At the same time, the Commission promulgated another amendment, Amendment 788, which amended § 1B1.10 of the Guidelines to authorize district courts to apply Amendment 782 retroactively to reduce the length certain already-imposed sentences, provided that “the effective date of the court's order is November 1, 2015, or later.” See USSG, supp. app'x. C, amend. 788 (2014); USSG § 1B1.10. In other words, Amendment 788 allowed district courts to hear motions for sentence reduction immediately, but instructed that any reduction based on the new Guidelines could not be effective until November 1, 2015, at the earliest.

The Commission explained at length both its decision to amend the Guidelines, and its decision to delay that amendment's retroactive effect. In particular, the Commission was concerned, “[in] light of the large number of cases potentially involved, ... that the agencies of the federal criminal justice system responsible for the offenders' reentry into society need[ed] time to prepare, and to help the offenders prepare, for that reentry.” Id. Summarizing its considerations, the Commission determined that a one-year delay would be needed:

(1) to give courts adequate time to obtain and review the information necessary to make an individualized determination in each case of whether a sentence reduction is appropriate,

(2) to ensure that, to the extent practicable, all offenders who are to be released have the opportunity to participate in reentry programs and transitional services, such as placement in halfway houses, while still in the custody of the Bureau of Prisons, which increases their likelihood of successful reentry to society and thereby promotes public safety, and (3) to permit those agencies that will be responsible for offenders after their release to prepare for the increased responsibility.

Id. The Commission ended by reiterating that “offenders cannot be released from custody pursuant to retroactive application of Amendment 782 before November 1, 2015.” Id.

B.

On March 12, 2015, Navarro filed a motion under 18 U.S.C. § 3582(c)(2) asking the district court to reduce his sentence based on Amendments 782 and 788. Navarro calculated that, using the amended Guidelines and applying the same below-range deviation from his earlier sentence, he would be eligible for immediate release.¹ However, Navarro is currently scheduled to be released on September 9, 2015, well before Amendment 788's November 1, 2015, effective date. Navarro argues that the district court should apply Amendment 782 as though it were immediately retroactive, and accordingly order his immediate release. Navarro contends that immediate application is necessary because the Commission's decision to delay the effective date of Amendment 788 was based, in part, on considerations related to prisoners' rehabilitative needs, and because the Commission's choice of a November 1, 2015, effective date, rather than an earlier date, was unconstitutionally arbitrary.

On April 21, 2015, the district court issued a written order denying Navarro's motion. Under Federal Rule of Appellate Procedure 4(b)(1)(A), Navarro had fourteen days from the district court's final order to appeal the court's decision. On May 8, 2015, seventeen days after the order was filed, Navarro moved under Rule 4(b)(4) for an extension of the time to file an appeal. He claimed that defense counsel had incorrectly assumed the court would use a form order, and so was awaiting that order before appealing. The district court granted Navarro's motion on May 11, 2015, reasoning that an extension was warranted “because defense counsel represents that he did not file a notice of appeal because he was waiting for the court to sign a Form 247.” Navarro filed a notice of appeal that same day. The government argues that the district court should not have granted the motion, and that this appeal is therefore untimely.²

II.

Although the requirement of a timely appeal is not a jurisdictional rule in criminal cases, where the government properly objects to an untimely filing, we must dismiss the appeal. United States v. Sadler, 480 F.3d 932, 941–42 (9th Cir.2007). Because the government challenges the timeliness of Navarro's appeal, we must first determine whether this appeal is, in fact, timely.

Federal Rule of Appellate Procedure 4(b) generally requires that a criminal defendant file any notice of appeal within fourteen days of the judgment or order being appealed. However, “[u]pon a finding of excusable neglect or good cause, the district court may ... extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed.” Fed. R.App. P. 4(b)(4). “We review for abuse of discretion a district court's decision to grant or deny a motion for an extension of time to file a notice of appeal.” Pincay v. Andrews, 389 F.3d 853, 858 (9th Cir.2004). “If the court abused its discretion ... the notice of appeal is untimely.” Meza v. Wash. State Dep't of Soc. & Health Servs., 683 F.2d 314, 315 (9th Cir.1982).

Rule 4(b)(4) authorizes a district court to extend the time to appeal based on either of two grounds: “good cause” or “excusable neglect.” Both are familiar terms in the world of judicial procedure, and both represent relatively malleable concepts. The district court did not specifically state on which of these two grounds it was extending the time to appeal. An analysis of “excusable neglect” generally requires a court to analyze the four factors set out by the Supreme Court. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) ; see also Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir.2009). Because the district court did not engage in this analysis, we assume, instead, that it relied on the more loosely defined “good cause” standard.

“ ‘Good cause’ is a non-rigorous standard that has been construed broadly across procedural and statutory contexts.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir.2010) (discussing “good cause” in the context of Fed.R.Civ.P. 6(b)(1) ). Here, Navarro's delay was due to an understandable mistake about the unwritten procedures of the specific judge before whom he was practicing. As Navarro explained in his motion to extend the time to appeal, numerous other judges in the Eastern District of California have issued orders denying motions for sentence reduction on a government-issued form known as “Form 247.” In several of these cases, courts have filed the form following a short written order.³ Moreover, although use of Form 247 is not mandatory, the Sentencing Commission has asked district courts to use the form when either granting or denying motions for sentence reduction. In this case, defense counsel mistakenly believed that the order he received on April 21, 2015, was not an appealable final order, but a preliminary order that would be followed by a final order on Form 247. He quickly realized his error, seventeen days after the original order, but not quickly enough to meet the dictates of Rule 4(b)(1). There is no indication of bad faith, or that the government was prejudiced by the three-day delay. The district court recognized the reasonableness of counsel's mistake and concluded that it constituted good cause. We cannot say that was an abuse of discretion. We therefore conclude that Navarro's notice of appeal was timely, and proceed to the merits of this appeal.

III.

We begin with Navarro's argument that the district court should have treated Amendment 782 as immediately retroactive because the Commission considered prisoners' rehabilitative needs in deciding to delay its retroactive effect. For the reasons discussed below, we conclude that this argument is unavailing.

A.

Once a...