United States v. Brito, No. 15-30229 (Fletcher with Fisher; dissent by McKeown) --- The panel reversed the denial of a motion for sentence reduction under 18 U.S.C. § 3582(c)(2) based on a retroactive application of Amendment 782 (the "drugs minus two" amendment), holding that the district court was allowed to account for an adjustment to the original sentence given to account for time spent in state custody that would not be credited toward the federal sentence as presentence incarceration credit.

The defendant pleaded guilty to a drug trafficking crime in federal court.  That criminal conduct also led to a revocation of supervision by a state court, for which the defendant spent four months in custody before being sentenced in federal court.  As a result, BOP wouldn't credit the defendant with those four months, so the federal judge subtracted four months from the sentence he would otherwise have imposed in order to make the total term of imprisonment a reasonable sentence.  In the wake of Amendment 782, the defendant asked for a sentence reduction to a sentence that is four months below the Guidelines range that applied after Amendment 782 (which the Commission made retroactive).  The district court denied the reduction because in its view U.S.S.G. § 1B1.10 did not permit a reduction below the bottom of the new Guidelines range.

A divided panel of the Ninth Circuit reversed, holding that the district court could carry over the four-month adjustment when awarding a sentence reduction under Amendment 782.  The "term of imprisonment" to which the defendant had been originally sentenced, see 18 U.S.C. § 3583(c)(2), included this four-month adjustment.  Under United States v. Drake, 49 F.3d 1438 (9th Cir. 1995), that four-month period was already part of the federal sentence.  Thus it could remain part of the sentence when a reduction based on Amendment 782 was granted.  Furthermore, carrying over this four-month period would not result in a windfall to the defendant; the reduction was awarded for reasons unrelated to the drug quantity (the basis for the Amendment 782 sentence reduction).

Judge McKeown did not believe that Drake's reasoning applied, and that the "term of imprisonment" mentioned in § 3582(c)(2) and § 1B1.10 did not account for the adjustment awarded because BOP would not award presentence incarceration credit.

Kudos to Steve Sady and Liz Daily of the Portland FPD office.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/22/15-30229.pdf