U.S. v. Samueli, No. 08-50417 (9-24-09). The 9th (Gould joined by Fernandez and England) dismiss an appeal for lack of jurisdiction. The defendant had an 11(c)(1)(C) plea rejected by the court. He did not withdraw from his guilty plea, but sought interlocutory review, arguing that this disputed issue was final, that the issue evades review, and that it is separate from the merits. The 9th sidesteps the first prong (final order) because neither the second and third prongs had been met. The merits of rejection of the plea could wait until after sentencing in this case.

U.S. v. Sipai, No. 08-10300 (9-24-09). The defendant got a 3553 break when he was sentenced for crack. Despite the career offender status, and many criminal history points, the court went from 210-262 mos. to 144 mos. based on defendant's diminished mental abilities, nature of criminal record, the small amount of drugs involved, and similar sentences. Other sentences were run concurrent. The government and defense counsel seemed to concur. Subsequently, on Nov. 1, 2007, the Commission reduced the crack guidelines. The defendant now asked for a resentencing under the retroactive authority of 3582(c)(2). The district court held that it lacked jurisdiction to further reduce its sentence, and the 9th, on appeal (Hug joined by Bea and Edmunds) agreed. The 9th cited U.S. v. Leniear, 574 F.3d 668 (9th Cir. 2009), which held that for a retroactive reduction under 3582, the guidelines had to have been lowered, and that consistency with Commission policy statements is required. The policy statements read that if there is a non-guideline sentence under Booker, "generally" a further reduction is not appropriate. Here, the sentence was a non-guideline one. [Ed note: This opinion should not be read as meaning that once a non-guideline sentence was imposed, jurisdiction is lost. The court can determine what it considered in imposing the prior sentence, and if guidelines had entered into the equation, then the court could use its discretion under the "generally" language.]