US v. Sainz, No. 17-10310 (8-12-19)(Piersol w/Tashima & M. Smith). In an issue of first impression, the 9^th holds that a district court cannot sua sponte raise a defendant’s waiver of the right to seek relief under 3582(c)(2) and then deny relief on that ground.

Here, the defendant was being sentenced on a drug charge. He had cooperated. At sentencing, the court and the defendant discussed a lowering of the guideline range that was proposed, but was not yet in effect. The defendant was then sentenced.  In his plea, he had expressly waived the right to file a 3582(c)(2) motion.  Subsequently, though, he filed such a motion.

The district court (a new judge) then sua sponte raised waiver and denied the motion. The 9^th deemed this an abuse of discretion. Failure to raise an issue is deemed waived, and the gov’t failed to raise waiver in the district court. The court raising it sua sponte risked becoming an advocate. The dismissal was reversed and the case remanded.

Congrats to Carmen Smarandoiu, AFPD, Cal N (San Francisco).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/12/17-10310.pdf