United States v. Trujillo

• Decision Date: 16 April 2013
• Docket Number: No. 11–50353.,11–50353.
• Citation: 713 F.3d 1003
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Rodolfo TRUJILLO, aka El Negro, aka Alexander Quintana Ruiz, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

713 F.3d 1003

UNITED STATES of America, Plaintiff–Appellee,

v.Rodolfo TRUJILLO, aka El Negro, aka Alexander Quintana Ruiz, Defendant–Appellant.

No. 11–50353.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 8, 2013.

Filed April 16, 2013.

Wendy T. Wu (argued), Assistant United States Attorney, Cyber & Intellectual Property Crimes Section; Robert E. Dugdale, Assistant United States Attorney, Chief, Criminal Division, Los Angeles, CA, for Plaintiff–Appellee.

Brianna J. Mircheff (argued), Deputy Federal Public Defender, Los Angeles, CA, for Defendant–Appellant.

Appeal from the United States District Court for the Central District of California, Dean D. Pregerson, District Judge, Presiding. D.C. No. 2:92–cr–00256–DDP–1.

Before: WILLIAM C. CANBY, JR., STEPHEN REINHARDT, and KIM McLANE WARDLAW, Circuit Judges.

OPINION

CANBY, Senior Circuit Judge:

Rodolfo Trujillo was convicted in 1993 of conspiracy to possess and of possessing with intent to distribute 2,915 kilograms of cocaine. He was sentenced to 360 months imprisonment. Subsequently, the Sentencing Commission amended the Sentencing Guidelines to lower the offense level applicable to Trujillo, with an application note indicating that upward departures from the new level might be warranted in cases involving an excessive quantity of drugs. U.S.S.G. § 2D1.1 & Application Note 17.¹ The amendment was made retroactive.²

Trujillo subsequently moved under 18 U.S.C. § 3582(c)(2) for a reduction of his sentence. The district court denied the reduction, invoking the application note that permitted an upward departure because of the excessive quantity of drugs involved. Thirteen years later, Trujillo filed a second § 3582(c)(2) motion for a reduction of his sentence, arguing in part that favorable treatment was justified by various factors under 18 U.S.C. § 3553(a), including his family ties, his lack of other criminal history, his post-sentencing rehabilitation, and the need to avoid unwarranted sentencing disparities. The district court entertained the successive motion without objection from the government, but denied relief principally on the ground that Trujillo's role in the offense and the amount of drugs involved justified an upward departure. The district court did not discuss the § 3553(a) factors urged by Trujillo. Trujillo now appeals.

We address three principal issues: First, the government contends that the district court lacked jurisdiction to entertain a second motion under § 3582(c)(2). We conclude that § 3582 contains no such jurisdictional bar. Any non-jurisdictional challenges to a second motion were waived by the government when it failed to object.

Second, we conclude that the district court erred in failing to explain at all its rejection of Trujillo's arguments based on the § 3553(a) sentencing factors. We accordinglyvacate the district court's order and remand for further proceedings.

Third, we reject Trujillo's contention that the upward departure under the amended Guideline's application note violated the Ex Post Facto Clause.

I.

On appeal, the government contends for the first time that the district court lacked subject matter jurisdiction to consider Trujillo's second § 3582(c)(2) motion. See Ratanasen v. State of Cal., Dep't of Health Serv., 11 F.3d 1467, 1473 (9th Cir.1993) (jurisdictional questions are an exception to the general rule that arguments not raised before district court are waived on appeal). The government begins with the well-established rule that a district court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). In the absence of an exception to that rule, we have held that the bar against modifications is jurisdictional. See United States v. Aguilar–Reyes, 653 F.3d 1053, 1055 (9th Cir.2011). Section 3582(c)(2) provides such an exception, but the government contends that Trujillo's successive motion did not meet that section's requirements, thus leaving the jurisdictional bar in place. Section 3582(c)(2) states:

[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 ..., 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 statute in terms clearly does not prohibit a second motion. The government contends, however, that Trujillo's second motion does not qualify for § 3582(c)(2)'s exception because he was serving the sentence imposed by the district court in response to his first motion under that section, and the Sentencing Commission did not lower the Guideline “subsequently” to that sentence.

The government's argument relies on a strained reading of the statute, and a mischaracterization of the first motion proceeding. The sentence that Trujillo is serving is the one originally imposed upon him when he was convicted. That sentence was not modified by the district court in response to Trujillo's first motion under § 3582(c)(2); the court simply declined to “exercise its discretion to lower Trujillo's sentence below its current level.” To construe that ruling as the occasion on which Trujillo was “sentenced to a term of imprisonment” within the meaning of § 3582(c)(2) is neither a reasonable interpretation of the statute nor a reasonable description of what happened at the first motion hearing. See Dillon v. United States, ––– U.S. ––––, 130 S.Ct. 2683, 2691, 177 L.Ed.2d 271 (2010) (“[A] district court proceeding under § 3582(c)(2) does not impose a new sentence in the usual sense.”). Trujillo was, and is, serving a sentence of imprisonment imposed upon him at the time of his conviction, and the district court had jurisdiction under § 3582(c)(2) to entertain his second motion because the term of that sentence was “subsequently” lowered by the Sentencing Commission.

Our conclusion that § 3582(c)(2) does not impose or result in a jurisdictional bar to a second motion is buttressed by the Supreme Court's instruction that we construe statutory limitations as non-jurisdictional in the absence of clear directions from Congress. “If the Legislature clearlystates that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed .... But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” Arbaugh v. Y & H Corp., 546 U.S. 500, 515–16, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (internal citations and footnote omitted). The label “jurisdictional” is properly reserved for designating the types of cases and individuals within a court's reach. Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). It is ordinarily not the correct classification for “claim-processing rules” such as temporal or, as here, numerical limitations on motions addressed to the same tribunal. See id. at 455–56, 124 S.Ct. 906;Joshi v. Ashcroft, 389 F.3d 732, 734–35 (7th Cir.2004) (holding that a limitation on the number of motions to reopen or reconsider does not create a jurisdictional bar); cf. Socop–Gonzalez v. INS, 272 F.3d 1176, 1192–93 (9th Cir.2001) (en banc) (holding that a 90–day filing deadline for motions to reopen or reconsider did not create a jurisdictional bar). “[T]he emergent distinction ... is between those [limits] that govern the transition from one court (or other tribunal) to another, which are jurisdictional, and other [limits], which are not.” Joshi, 389 F.3d at 734.

Our sister Circuits have divided on the question whether a district court lacks jurisdiction to entertain a second § 3582(c)(2) motion. The Seventh and Fourth Circuits have precluded second motions in terms suggesting a lack of jurisdiction. United States v. Redd, 630 F.3d 649, 651 (7th Cir.2011); United States v. Goodwyn, 596 F.3d 233, 236 (4th Cir.2010); see also United States v. Randall, 666 F.3d 1238, 1242–43 & n. 6 (10th Cir.2011) (upholding denial of untimely motion for reconsideration of order denying § 3582(c)(2) relief, but under abuse of discretion standard).

The Third Circuit, however, upheld a district court's entertainment of a second § 3582(c)(2) motion in a case closely parallel to ours. United States v. Weatherspoon, 696 F.3d 416 (3rd Cir.2012), cert. denied,––– U.S. ––––, 133 S.Ct. 1301, 185 L.Ed.2d 233 (2013). In Weatherspoon, as here, the government failed to object to a district court's entertainment of a second § 3582(c)(2) motion and challenged it for the first time on appeal as a jurisdictional defect. The Third Circuit referred to the contrary circuit authority, and stated:

Though our sister circuits may be right that such silence [of Congress in failing specifically to authorize successive motions], when read in light of the statute's purpose of restricting a district court's authority to revisit a criminal sentence, means that a defendant is only entitled to one bite at the apple, it does not follow that this restriction goes to the subject matter jurisdiction of the district court. After all, a rule derived from congressional silence does not support an inference that Congress has “clearly stated” its intent to limit a district court's jurisdiction to one § 3582(c)(2) motion. See ... Animal Sci. Prods., Inc. [ v. China Minmetals Corp.], 654 F.3d [462,] 468 [3rd Cir.2011] (applying the Arbaugh “clearly states” test).

Id. at 421. We agree with this jurisdictional analysis and reject any contrary views that may have been adopted in whole or in part by other circuits.

Holding as we do that the district court had jurisdiction to entertain Trujillo's second motion under § 3582(c)(2), we need not address the...