United States v. Tercero

• Decision Date: 31 October 2013
• Docket Number: No. 12–10404.,12–10404.
• Citation: 734 F.3d 979
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Teniah TERCERO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

734 F.3d 979

UNITED STATES of America, Plaintiff–Appellee,

v.Teniah TERCERO, Defendant–Appellant.

No. 12–10404.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 7, 2013.^*

Filed Oct. 31, 2013.

Mark Rosenbush, San Francisco, CA, for Defendant–Appellant.

Suzanne B. Miles, Assistant United States Attorney, Office of the United States Attorney, San Francisco, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Northern District of California, Richard Seeborg, District Judge, Presiding. D.C. No. 3:09–CR–00102–RS–3.

Before: DOROTHY W. NELSON, MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges.

OPINION

D.W. NELSON, Senior Circuit Judge:

Teniah Tercero (“Tercero”) appeals the district court's decision granting in part and denying in part her motion to reduce her sentence under 18 U.S.C. § 3582(c)(2) following the enactment of the Fair Sentencing Act. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

I. Background

Tercero's appeal concerns the retroactive application of the Fair Sentencing Act and the related amended Sentencing Guidelines ranges for offenses involving crack cocaine. See Fair Sentencing Act of 2010, Pub.L. No. 111–220, 124 Stat. 2372; U.S. Sentencing Guidelines Manual app. C, amends. 748, 750 (2010).

The government indicted Tercero on two counts: conspiracy to distribute crack cocaine and distribution of crack cocaine. Tercero pled guilty to a single count of possession with intent to distribute methamphetamine, as alleged in the information, in exchange for the dismissal of the charges in the indictment. The parties stipulated that, for the purposes of sentencing, Tercero possessed 115.8 grams of crack cocaine and 4.36 grams of methamphetamine, resulting in an adjusted offense level of 25. The parties agreed, however, that Tercero could argue for a sentence as low as 72 months. Tercero agreed to waive “any right ... to appeal any aspect of [her] sentence,” as well as any right to file any collateral attack on her conviction or sentence, such as by filing motion under 18 U.S.C. § 3582.

The district court found that the applicable Sentencing Guidelines range was 84 to 105 months based on a criminal history category of 4 and a total offense level of 25. The court then considered the factors set forth in 18 U.S.C. § 3553(a), finding that Tercero played a minor role in the conspiracy. While Tercero knew that she was committing a serious offense, she neither created nor organized it, thus, the district court concluded that her minor role made “her conduct less serious than a mechanical application of the guidelines would suggest.” Accordingly, the court found that a downward departure was appropriate and imposed a sentence of 72 months with a three-year term of supervised release.

Thereafter, Congress passed the Fair Sentencing Act, (“FSA”), and the Sentencing Commission amended the Sentencing Guidelines for crack cocaine offenses. Tercero then filed a § 3582 motion to reduce her sentence to 58 months, or 12 months below the recalculated Guidelines range. The district court found that Amendment 750 to the Guidelines warranted a reduction in Tercero's sentence from 72 to 70 months, based on adjusted offense level 24 and a resulting adjusted Guidelines range of 70 to 87 months. The district court concluded, however, that it did not have the authority to depart below 70 months in resentencing Tercero because U.S.S.G. § 1B1.10(b)(2)(A) prohibits reductions below the low end of the adjusted Guidelines range. For the reasons discussed below, we hold that the district court correctly interpreted and applied both § 3582(c) and § 1B1.10.

II. Standard of Review

We review de novo whether Tercero has waived her right to appeal her plea agreement. See United States v. Speelman, 431 F.3d 1226, 1229 (9th Cir.2005). We review for abuse of discretion a district court's ruling on a motion for reduction of sentence pursuant to § 3582(c)(2). United States v. Lightfoot, 626 F.3d 1092, 1094 (9th Cir.2010). “A district court may abuse its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact.” United States v. Chaney, 581 F.3d 1123, 1125 (9th Cir.2009) (internal quotation marks and citation omitted).

III. DiscussionA. Waiver

Tercero did not waive her right to appeal the reduced sentence. Although she did “agree to waive any right ... to appeal any aspect of [her] sentence, including any orders relating to forfeiture and/or restitution,” we have held that such a broad waiver does not encompass the right to appeal a § 3582(c) decision. Lightfoot, 626 F.3d at 1095. Moreover, although Tercero expressly waived her right to bring a § 3582 motion in her plea agreement, the government did not argue at the resentencing hearing that Tercero had waived this right. Thus, the government cannot rely on this provision to argue that Tercero's appeal is not properly before us. See Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir.2010) (“It is well-established that a party can waive waiver implicitly by failing to assert it.”) (internal quotation marks and citations omitted).

B. District Court Authority to Reduce Sentence

Congress passed the FSA to “restore fairness to Federal cocaine sentencing” by changing the threshold quantities of crack cocaine that trigger mandatory minimum sentences. Pub.L. 111–220, § 2, 124 Stat. 2372, 2372 (2010). Congress gave the Sentencing Commission the authority to amend the Guidelines to implement the FSA. Id. § 8. The Commission thereafter promulgated Amendment 750 to reduce the Guidelines' crack-related offense levels and made the amendment retroactive. U.S.S.G. app. C, amends. 750, 759.

Following the amendments to the Guidelines, the Commission also revised policy statement § 1B1.10. The previous version of § 1B1.10(b)(2)(B) permitted prisoners who had received below-Guidelines sentences to obtain reductions below the amended ranges in proportion to the downward departures imposed at their original sentencing. SeeU.S.S.G. § 1B1.10(b)(2)(B) (2010). Because this rule proved difficult to administer and prompted litigation, the Commission revised § 1B1.10 following enactment of the FSA to prohibit courts from reducing a “defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) ... to a term that is less than the minimum of the amended guideline range.” U.S.S.G. § 1B1.10(b)(2)(A) (2011); see Notice of FinalAction Regarding Amendment to Policy Statement 1B1.10, 76 Fed.Reg. 41332, 41334 (July 13, 2011).¹

In determining whether the district court erred, we look first to the relevant statute: 18 U.S.C. § 3582(c)(2). Section 3582 authorizes district courts to reduce a sentence retroactively when the Commission has subsequently lowered the Sentencing range. In § 3582, Congress specifically required that any sentence reductions be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. Under the plain language of this statute, then, the district court was required to apply § 1B1.10, and the district court concluded correctly that under the revised version of § 1B1.10, it could not adjust Tercero's sentence below 70 months.

Tercero argues that the revised version of § 1B1.10 is at odds with the plain language of the FSA and is therefore invalid. But Tercero has not identified any specific provision in the FSA with which § 1B1.10 conflicts. To the contrary, we are mindful that the Commission has the express authority to promulgate policy statements regarding the retroactivity of amendments to the Guidelines. See 18 U.S.C. § 994x.

Tercero also relies on United States v. LaBonte in support of her argument that § 1B1.10 conflicts with the FSA. 520 U.S. 751, 757, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997). In that case, the Supreme Court invalidated Amendment 506 as in direct conflict with the language of the Sentencing Reform Act. Id. at 756–57, 117 S.Ct. 1673. The Commission had promulgated Amendment 506 to define the phrase “offense statutory maximum” in furtherance of Congress's directive to “assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants....” 18 U.S.C. § 994(h). The amendment defined “offense statutory maximum” to preclude the consideration of statutory enhancements. LaBonte, 520 U.S. at 756–57, 117 S.Ct. 1673. The Supreme Court held that Amendment 506 was at odds with the plain language of § 994(h) because the “ordinary meaning” of the phrase “maximum term authorized,” is “the ‘highest’ or ‘greatest’ sentence allowed by statute,” not the unenhanced maximum. Id. at 757–58, 117 S.Ct. 1673 (quoting Black's Law Dictionary 979 (6th ed.1990)).

But Tercero does not argue that the revised version of § 1B1.10 conflicts with the text of the FSA. Instead, she contends that § 1B1.10 contradicts Congress's general intent in passing the FSA, which was “to restore fairness to Federal cocaine sentencing.” Pub.L. 111–220, § 2, 124 Stat. 2372, 2372. The most specific provision that Tercero identifies is § 8 of the Act, which instructs the Commission to promulgate all Guidelines, amendments and policy statements provided for in the Act. See id. § 8. That broad instruction, however, does not resemble the kind of specific language that required invalidation of Amendment 506 in LaBonte. Moreover, the FSA does not contain any specific language indicating how—or even whether—the Act should be applied retroactively. See generally id. In fact, we have held that the FSA does not apply retroactively to adjust the mandatory minimum sentences for crack cocaine offenses. United States v. Augustine, 712 F.3d 1290, 1291 (9th Cir.2013). Thus, we remain unpersuaded that Congressintended the FSA to implement the retroactive reduction of sentencing ranges in any particular way, much less one that conflicts with § 1B1.10 as revised.

Tercero urges us to conclude that we need...