Case o' The Week: Ninth Hears Us on Being Heard, and Hears Us Out (then denies . . . ) - Dunn and Crack Resentencing
With the Supreme Court (arguably) slashing away at appellate jurisdiction, for defendants seeking relief on crack re-sentencing just getting to the Ninth is half the fun.
Players: Decision by Judge Milan Smith, joined by D.J. Anello.
Concurrence by Judge O’Scannlain. Hard-fought appeal by ND Cal CJA Counsel Mark
Goldrosen.
Facts: Dunn sold crack to an undercover
agent, near a school, while on supervised release. Id. at *1. The district court imposed a 100 month sentence on the crack
case; Dunn didn’t appeal. Id.
In
2010, Congress passed the Fair Sentencing Act (FSA) that lowered Dunn’s crack
guidelines to 77-96 months. Id. at
*2. While in prison, Dunn took advantage of educational opportunities, got
transferred to a lower security facility, and offered his kidney to his ailing
brother. Id.
Dunn moved to reduce his
crack cocaine sentence under the F.S.A., emphasizing his post-convictions
efforts. Id. The district judge denied
that motion, and Dunn appealed the discretionary denial of a reduced sentence. Id. at *2.
Issue(s): “We first must decide whether we
have jurisdiction to review the district’s court’ denial of Dunn’s motion for a
§ 3582(c)(2) sentence reduction.” Id.
at *3. “As applied in this case, the pertinent inquiry is whether the reasoning
or theory of [the Supreme Court’s decision in Dillon] regarding the extension of Booker to § 3582(c)(2) proceedings is clearly irreconcilable with
[the Ninth Circuit’s earlier] decision in Colson
[permitting appellate review of § 3582(c)(2) proceedings in their entirety].” Id. at *4.
Held: “We
conclude that Dillon does not clearly
conflict with Colson because: (1) Dillon is not ‘closely on point’ with
regard to the jurisdictional question at issue, and (2) Dillon does not revise the reasonableness standard under Booker.” Id. at *4. “We hold that we have jurisdiction to review § 3582(c)(2) discretionary decisions under . . . Colson, which is not ‘clearly irreconcilable’
with Dillon. Miller v. Gammie, 335 F.3d 889, 989 (9th Cir. 2003) (en banc).” Id. at *1.
Of Note: Judge M. Smith ultimately denies the
defendant’s appeal in Dunn and upholds
the district’s court refusal to resentence lower. While disappointing, other
aspects of the case are of more interest.
Judge Smith spends most of his time
wrestling with a question that comes up frequently: what happens when the Ninth
holds one way, the Supremes later (arguably) hold another, and the en banc Circuit Court hasn’t yet revisited
the original decision? That’s a Miller v.
Gammie problem, and is a problem that arises surprisingly often. (The
Supremes have yet to fully appreciate the wisdom of the Ninth’s ways).
The rule
is this: a three-judge panel can only change course from the Ninth’s previous decision
when the Ninth law is “clearly irreconcilable” with the Supreme’s. That
question is the heart of Dunn, and
Judge Smith spends much of the opinion wrestling with whether the intervening
Supreme Court decision in Dillon really
conflicts with the Ninth’s previous Colson
case.
It’s an intellectually honest analysis that preserves appellate review on
discretionary denials of crack reductions (for now), and an interesting chapter
in the Ninth’s often uneasy relationship with the Nine.
How to
Use: Ninth precedent survives, Supreme
Court law doesn’t (yet) control: huzzah! Good news – in this case. In another
area of evolving law, such as Apprendi
and mand-mins, or the Fourth
Amendment and technology, we may someday be arguing the reverse: urging a three
judge panel to do the right thing and scrap moldy old Ninth law in favor of
some shiny new Supreme Court holding. When that happens, remember and re-read Dunn – Judge Smith’s analysis and
interpretation of Miller v. Gammie
can cut both ways.
For
Further Reading: It is 1.1 miles from S.F.’s Moscone
Center – where A.G. Holder announced the DOJ’s new drug policies – to SF’s Federal
Building, where AUSAs make charging decisions. Has the Holder Memo made the
distance yet? For a great article on the real distance between the Memo’s goals
and cases in the trenches, see article in The Atlantic here.
Image
of Cunard poster from http://farm4.staticflickr.com/3243/3125825374_1cec14c579.jpg
Steven Kalar, Federal Public Defender.
Website at www.ndcalfpd.org
.
..
Labels: Appellate Jurisdiction, Appellate Practice, Appellate Review, Crack, Milan Smith, Miller v. Gammie, O'Scannlain, Section 2582
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