United States v. D.M.

• Decision Date: 07 September 2017
• Docket Number: No. 16–50243,16–50243
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. D.M., Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

869 F.3d 1133

UNITED STATES of America, Plaintiff–Appellee,

v.D.M., Defendant–Appellant.

No. 16–50243

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 3, 2017 Pasadena, California

Filed September 7, 2017

COUNSEL

James Fife (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant–Appellant.

Helen H. Hong (argued), Assistant United States Attorney, United States Attorney's Office, San Diego, California, for Plaintiff–Appellee.

Before: Kim McLane Wardlaw and Consuelo M. Callahan, Circuit Judges, and Virginia M. Kendall,^* District Judge.

OPINION

CALLAHAN, Circuit Judge:

D.M. appeals the denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The Government agrees that D.M. was eligible for a sentence reduction, but contends that the appeal is moot because D.M. has been released from federal prison. We hold that the appeal is not moot, and that United States Sentencing Guideline § 1B1.10(b)(2)(B) allows a court to consider a number of departures when calculating a reduction in sentence where the defendant has provided substantial assistance. We vacate the district court's order denying D.M.'s motion for a sentence reduction and remand the case to the district court.

FACTUAL BACKGROUND

In April: 2012, D.M. was stopped at a border patrol checkpoint in California. Agents discovered 3.458 kilograms of methamphetamine and 0.984 kilograms of cocaine. D.M. was charged with, and subsequently pleaded guilty to, possession with intent to distribute under 21 U.S.C. § 841(a)(1). This triggered a mandatory minimum sentence of 120–months incarceration and five years of supervised release due to the amount of methamphetamine discovered. 21 U.S.C. § 841(b)(1)(A)(viii).

D.M. accepted responsibility and expressed a willingness to assist law enforcement. Pursuant to 18 U.S.C. § 3553(e), the government moved to permit the court to impose a sentence below the 120–month statutory minimum.¹ See 18 U.S.C. § 3553(e) (allowing a court to impose a sentence below the mandatory minimum pursuant to a Government motion "so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense").

D.M.'s original, pre-departure and pre-adjustment offense level under the United States Sentencing Guidelines (USSG) was 38. However, following additional adjustments for acceptance of responsibility and a minor role, as well as departures for fast track and substantial assistance, D.M.'s adjusted offense level was 21, which produced an adjusted guideline range of 57 to 71 months. The district court imposed a 57–month prison sentence, with five years of supervised release. The district court specifically retained jurisdiction to amend D.M.'s term of supervised release should he exhibit good behavior.

In November 2014, the United States Sentencing Commission (Sentencing Commission) passed Amendment 782, which lowered the recommended sentence for drug offenses. See United States v. Navarro , 800 F.3d 1104, 1107 (9th Cir. 2015). In particular, Amendment 782 provided for the lowering of the base offense level of certain drug convictions by two levels. See United States v. Ornelas , 825 F.3d 548, 553 (9th Cir. 2016). At the same time, the Sentencing Commission promulgated Amendment 788, which allowed courts to apply Amendment 782 retroactively. See Navarro , 800 F.3d at 1107. Thus, Amendment 782 applied to D.M. and lowered his base offense level to 36. See USSG § 2D1.1(c)(2).

PROCEEDINGS IN THE DISTRICT COURT

In light of Amendments 782 and 788, D.M., with the Government's concurrence, moved to reduce his sentence to 51 months. The Government joined D.M.'s request. The motion was made pursuant to 18 U.S.C. § 3582(c)(2) and USSG 1B1.10(b)(2)(B). The statute reads:

[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). The guideline subsection states:

Exception for Substantial Assistance. If the term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing pursuant to a government motion to reflect the defendant's substantial assistance to authorities, a reduction comparably less than the amended guideline range determined under subdivision (1) of this subsection may be appropriate.

USSG § 1B1.10(b)(2)(B).

At the initial hearing, the district court expressed reservations as to whether, in reducing D.M.'s sentence, it could consider departures other than the departure attributable to substantial assistance. The district court noted that, if it could only consider the substantial assistance departure, then it could not reduce D.M.'s sentence because the minimum available sentence would be longer than the sentence D.M. was serving. Seeking clarification on the issue, the district court ordered further briefing. At a second hearing, the district court reiterated that it wanted the Government's position "in writing" so it could fully consider the Government's reasoning before ruling. Following a third hearing, the district court denied the joint application for sentence reduction.

The district court defined the issue as: "When a defendant previously received a substantial assistance departure as well as an additional departure for fast-track, in granting ‘a reduction comparably less than the amended guideline range,’ may the Court include in the calculation the fast-track departure?" The court held that USSG § 1B1.10 did not allow for the inclusion of the fast-track departure.

This conclusion rendered D.M. ineligible for a reduction in his sentence. Here is the math. In determining D.M.'s initial sentence, the court determined that the applicable adjusted offense level was 29, and it granted a four-level departure under USSG § 5K1.1 for substantial assistance and another four-level departure under USSG § 5K3.1 for D.M. having agreed to the fast-track procedure. This produced a guideline range of 57 to 71 months of imprisonment, and the district court sentenced D.M. to 57 months. At the resentencing hearing, D.M.'s adjusted total offense level was 28, which resulted in an amended guideline range of 110 to 137 months. Under the district court's approach—considering only the substantial assistance departure in its calculation—the parties agreed that the four-level departure for substantial assistance was about 30%. Applying the 30% reduction to the low end of the amended guideline range, 110 months, produced a proposed minimum sentence of 77 months [110 x 70% = 77]. This is greater than the 57–month sentence that D.M. had originally received. Thus, because D.M. had received the benefit of a fast-track departure in his initial sentence, when that departure was excluded from the calculation of a reduction of sentence pursuant to § 3582(c)(2) and USSG § 1B1.10(b)(2)(B), the minimum possible sentence was greater than the sentence he had received, and he was not eligible for a reduction.²

D.M. filed a timely notice of appeal from the denial of his motion for a sentence reduction.

THE APPEAL IS NOT MOOT

We first consider the Government's assertion that this appeal is moot and should be dismissed. "A case becomes moot when it no longer satisfies the case-or-controversy requirement of Article III, section 2, of the Constitution." United States v. Verdin , 243 F.3d 1174, 1177 (9th Cir. 2001). The parties must retain a personal stake in the outcome throughout the entirety of the proceedings. Id . A defendant challenging the length of his prison sentence has a personal stake in the outcome while he serves his sentence. Id . at 1178. This includes when the defendant has completed his term of incarceration but is still serving a term of supervised release. Id ."[A] possibility of the court's reducing or modifying [a defendant's] supervised release" satisfies the case or controversy requirement. Gunderson v. Hood , 268 F.3d 1149, 1153 (9th Cir. 2001).

"The party asserting mootness bears a ‘heavy burden of establishing that there is no effective relief remaining for a court to provide.’ " United States v. Strong , 489 F.3d 1055, 1059 (9th Cir. 2007) (quoting GATX/Airlog Co. v. U.S. Dist. Court , 192 F.3d 1304, 1306 (9th Cir. 1999) ). In Strong , we reiterated "that where the district court has the statutory discretion to modify a defendant's term of supervised release following a successful sentencing challenge, the possibility that the district court may exercise such discretion following this court's decision is sufficient to prevent an appeal from becoming moot." Id . at 1060. In other words, to avoid mootness based on a defendant's release from custody pending appeal, the district court must have the authority to reduce the defendant's supervised release.

The Government posits that, because D.M. has been released from federal custody, this appeal is moot and should be dismissed. Citing a couple of our unpublished decisions, the Government argues that D.M. sought only a reduction of his custodial sentence and that, once he finished serving his sentence, no court could provide that relief.³ It further argues that 18 U.S.C. § 3582(c) does not provide for a reduction in the supervised release portion of a sentence.

D.M. has been released from prison, and his five-year-term of supervised release has commenced. Nonetheless, the appeal is not moot because the district court may modify D.M.'s term of supervised release. See 18 U.S.C. § 3583(e)(2) ("The court may ... modify,...