US v. Rodriguez-Soriano, No. 15-30039 (5-2-17)(McKeown w/Tallman & Christen).  The defendant was sentenced in 2005 to a 300 month sentence.  This was a departure, under 5K1.1, from a mandatory life sentence.  Still, it is a long time.  Then, in November 2014, the Sentencing Commission lowered the guidelines for the base offense level for certain drug types and quantities.  The defendant moved, pursuant to the amendment, for a sentence reduction.  The government joined him!  Does he get the reduction? No.  The district court denied the reduction, reasoning that the court's sentence was not based on the guidelines level as it was in 2005, but the interplay between the mandatory life sentence and the 5K motion.

On appeal, the 9th affirmed.  The 9th affirmed because the threshold matter is whether his original sentences was "based on" the guideline range the district court originally calculated.  Because the district court said that the original range was not relevant to the sentence, the defendant does not get the benefit of the amendment.  The 9th acknowledges that had the circumstances been different, the defendant may have benefitted.

The opinion lays out the analysis for such amendments, the meaning of  "based on" in the plurality opinion of Freeman v. US, 564 US 522 (2011)(11(c)(1)(C) reductions), and the 9th's en banc decision in US v. Davis, 825 F.3d 1014 (9th Cir. 2016)(en banc).  In Davis, the 9th altered its analysis of Freeman. The 9th changed from adopting Sotomayer's concurrence, where a reduction was possible if the sentencing had adopted the guideline calculations, to the plurality, where the examination was whether the sentence was "based on" the guidelines. 

Tough loss for Michael Donahoe and Joslyn Hunt of the Fed Defenders of Montana.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/02/15-30039.pdf