US v. Spears, Sr., No. 13-30253 (6-2-16)(Bea with Gilman; dissent by Tashima).
Here, the defendant, serving life for relevant conduct for crack offenses, tries to take advantage of the guidelines amendment that raises the crack thresholds. The 9th affirmed denial of a motion to modify a sentence as a result of sentencing guidelines amendments for lack of jurisdiction. The denial was based on amendment 750, which raised the crack drug thresholds. The majority held that the amount under the guidelines would still have been life. As for a subsequent guidelines amendment, the defendant must file another motion. Lastly, the motion to modify is not a proper vehicle to challenge procedural errors at sentencing.
Dissenting, Tashima argues that the motion is allowed if the guidelines are adjusted downward. They were. That should end the analysis. Instead, the majority engages in fact finding, and effectively resentencing, which should be left to the court.
The decision is here: