United States v. Brito

• Decision Date: 22 August 2017
• Docket Number: No. 15-30229,15-30229
• Citation: 868 F.3d 875
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gilbert BRITO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

868 F.3d 875

UNITED STATES of America, Plaintiff–Appellee,

v.Gilbert BRITO, Defendant–Appellant.

No. 15-30229

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 7, 2016, Portland, Oregon

Filed August 22, 2017

Stephen R. Sady (argued), Chief Deputy Federal Public Defender; Elizabeth G. Daily, Research & Writing Attorney; Office of the Federal Public Defender, Portland, Oregon; for Defendants–Appellants.

Jeffrey S. Sweet (argued), Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; Billy J. Williams, United States Attorney; United States Attorney's Office, Eugene, Oregon; for Plaintiff–Appellee.

Before: M. Margaret McKeown, William A. Fletcher, and Raymond C. Fisher, Circuit Judges.

Dissent by Judge McKeown

OPINION

W. FLETCHER, Circuit Judge:

In April 2015, Gilbert Brito filed a motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence for possession of heroin with intent to distribute. Section 3582(c)(2) authorizes a reduction of a defendant's "term of imprisonment" if the U.S. Sentencing Commission has lowered the applicable guideline range pursuant to 28 U.S.C. § 994(o ). In November 2014, the Sentencing Commission had reduced by two most of the offense levels on the Drug Quantity Tables. The effect of the change was to reduce the sentencing guideline range for many drug offenses. Brito's original guideline range was reduced from 84 to 105 months to a new range of 70 to 87 months. Brito had originally been sentenced to 76 months in federal custody. Brito sought a reduction of his sentence in federal prison to 66 months.

At Brito's original sentencing, in determining his term of imprisonment, the district court had credited Brito with four months for time he had served in state custody. In his motion for reduction of sentence, Brito sought a similar four-month credit. The district court believed that it was precluded from granting the requested credit by U.S.S.G. § 1B1.10(b)(2)(A), which provides in relevant part that a court may not reduce a "term of imprisonment" to a "term that is less than the minimum of the amended guideline range." The minimum of Brito's amended guideline range was 70 months. A four-month credit would have reduced the sentence to 66 months in federal custody. The district court did not believe it had the authority to treat Brito's four months in state custody as part of his "term of imprisonment." It therefore reduced Brito's sentence to 70 months in federal custody.

For the reasons that follow, we conclude that "term of imprisonment," as used in 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10(b)(2)(A), can include time spent in state custody. If the district court at the original sentencing gave credit for time spent in state custody in determining the defendant's sentence, the "term of imprisonment" on the motion for sentence reduction can include the time spent in both federal and state custody. In the case now before us, the district court in its discretion may give Brito credit for the four months he served in state custody, thereby reducing his sentence to 66 months in federal custody and resulting in a total "term of imprisonment" of 70 months. We vacate and remand.

I. Background

Brito was charged in federal court with possession of heroin with intent to distribute, felony possession of a firearm, and carrying a firearm in furtherance of a drug trafficking crime. Pursuant to a plea agreement, Brito pleaded guilty to a single count of possession of heroin with intent to distribute. The presentence report calculated the base offense level under the Drug Quantity Table as 26 and recommended adjustments resulting in a total offense level of 25. Based on his criminal history category of IV, Brito's advisory guidelines range was 84 to 105 months. Brito and the government agreed to recommend a sentence of 80 months imprisonment, which took into account a four-month downward variance based on Brito's guilty plea. Id.

At sentencing in November 2012, Brito's attorney Thomas Hester asked for a further reduction, from 80 to 76 months, to take into account four months Brito had served in state custody after violating conditions of supervision under a prior Oregon conviction. The conduct constituting the state-court violation was the same conduct for which Brito was charged in federal court. Brito had begun serving his four months in state custody after his arrest on federal charges. By the time of his original federal sentencing, Brito had already completed his time in state custody.

The district court accepted the request that Brito be given credit for his four months in state custody. Because Brito had already completed the time, the district court believed that it could not give him a concurrent sentence. See United States v. Turnipseed , 159 F.3d 383, 387 (9th Cir. 1998) ("If a defendant has been released from state prison after having served the term imposed, no term of imprisonment remains with which the federal sentence can ‘run concurrently.’ "); but see Setser v. United States , 566 U.S. 231, 132 S.Ct. 1463, 1468, 182 L.Ed.2d 455 (2012) ("Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings."). Instead, the district court gave him credit for time served, thereby achieving the same result. At sentencing, the district court asked Brito's attorney, "Now, just so I'm clear, you're not asking for concurrent time because the time has run, you're asking me to drop four months in order to account for the time that's run; is that right?" After receiving an affirmative answer, the court said, "Mr. Hester is asking that I do what's often done, which is take into account by way of reduction of time already served essentially for the same criminal conduct. And so I'm going to do that in this case." The district court then sentenced Brito to 76 months in federal custody, resulting in a total term of imprisonment, in state and federal custody, of 80 months.

On November 1, 2014, the Sentencing Guidelines were amended, reducing by two levels the base offense levels for most federal drug possession and distribution crimes. Guidelines Amendment 782 lowered the sentencing range for "offense levels assigned to the quantities that trigger the statutory mandatory minimum penalties in § 2D1.1, and made parallel changes to § 2D1.11." Guidelines Amendment 788 made Amendment 782 retroactive, allowing prisoners sentenced under the old Guidelines to petition for resentencing under the new Guidelines.

A reduction in sentence after a reduction in the guideline range is authorized by 18 U.S.C. § 3582(c)(2), which provides:

[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 ), ... 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.

(Emphases added.) A reduction in sentence under § 3582(c)(2) is not a resentencing. As the Supreme Court wrote in Dillon v. United States , 560 U.S. 817, 825, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) :

By its terms, § 3582(c)(2) does not authorize a sentencing or resentencing proceeding. Instead, it provides for the "modif[ication of] a term of imprisonment" by giving courts the power to "reduce" an otherwise final sentence in circumstances specified by the Commission.

(Alteration in original.)

The "applicable policy statement[ ] issued by the Sentencing Commission" provides:

In a case in which a defendant is serving a term of imprisonment , and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (d) below, the court may reduce the defendant's term of imprisonment as provided by 18 U.S.C. 3582(c)(2).

U.S.S.G. § 1B1.10(a)(1) (emphases added). Amendment 782 is one of the amendments listed in subsection (d). A different policy statement limits the permissible reduction in sentence:

Except as provided in subdivision (B), the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1) of this subsection.

U.S.S.G. § 1B1.10(b)(2)(A) (emphasis added.) Subdivision (B) permits a reduction of the term of imprisonment below the minimum of the amended guideline range for a defendant who provided "substantial assistance to authorities." U.S.S.G. § 1B1.10(b)(2)(B). Brito has not provided assistance to authorities that would qualify under subdivision (B).

Based on Amendment 782, Brito moved for a reduction in sentence under § 3582(c)(2). Under Amendment 782, the new base offense level for Brito's offense is 24. His new guideline range is 70 to 87 months. In his motion, Brito sought credit for the four months he had served in state custody in determining his new "term of imprisonment." The district court recognized that the sentencing court had given Brito a four-month credit at his original sentencing for the time he had served in state custody: "[T]he sentencing court lacked any authority to order a concurrent sentence. Due to this lack of authority, the best explanation for the additional 4–month reduction Defendant received is that it was a downward variance granted to achieve the functional result of a concurrent sentence." However, the district court concluded that it was precluded, in ruling on Brito's motion for a reduction in sentence, from giving him credit for the time served in state custody. The district court therefore reduced Brito's sentence to 70 months in federal...