U.S. v. Trujillo, No. 11-50353 (04-16-13) (Canby with Reinhardt and Wardlaw)

There is no jurisdictional bar to a second bite of the 3582(c)(2) apple (retroactive guidelines amendment). The defendant, in 1993, was sentenced to 30 years.  The Commission subsequently lowered the guidelines range and Defendant moved for a reduction, which was denied.  Years later, after Booker, the defendant moved again for a reduction.  The court again denied, not explaining why it rejected the 3553 factors, and stating that the amount of drugs could justify keeping the sentence the same (an upward in effect).  On appeal, the 9th held that there was not a jurisdictional bar to a second crack to asking.  The statutory language is clear.  On this issue, the 9th finds itself aligned with the 3rd but in conflict with the 4th and 7th circuits (Circuit conflict alert).  As for nonjurisdictional bars, such as law of the case, the government waived the arguments by not raising them before the district court.  As for the merits of the retroactivity, the district court is not barred by ex post facto from denying the reduction on the theory of an onward for amount, as mentioned in commentary.  The case is remanded for resentencing because the district court failed to explain why it rejected the various 3553 grounds, with supporting appendix.  The grounds for reduction were not frivolous and the court should have address them.

Something to consider in trying again for a retroactive reduction.

Congratulations to Deputy Federal Defender Brianna Mircheff of the FPD Office for the Central District of California (L.A.).