US v. Dunn, No. 12-10388 (9-6-13) (M. Smith and Anello, D.J.; concurrence by O'Scannlain).

Resentencing for crack was "over and Dunn" for this defendant. The defendant was convicted of selling crack near a school while on SR. The court rejected the plea, and imposed a 100 month sentence. The purpose was to ensure adequate punishment if the SR violation was run concurrent (it was before a different judge, who indeed ran it concurrent). Subsequently, the Sentencing Commission lowered the crack guidelines. This court refused to reduce the sentence by 17 months. The defendant appealed, arguing unreasonableness. The 9th first wondered if there was jurisdiction. The Supremes in Dillon seemed to say that there was no appeal from such a reduction decision. The 9th allows an appeal to see if the guidelines were correctly applied and procedure was followed. The 9th held that it had jurisdiction under that limited focus. Second, the 9th then affirmed the denial as the court had considered the factors. O'Scannlain concurred, arguing that Dillon was clear that there was not jurisdiction.