US v. Asuncion, No. 18-30130 (9-4-20)(Chhabria w/Fletcher & Rawlinson). This is a sad case, illustrating that timing can be everything. The 9th affirms a mandatory life sentence under 841(b)(1)(A) as the defendant was found to have two prior “felony drug sentences” under 802(44).  The sentences of the defendant’s priors were under a year (!) under a state (Wash) guideline system. The max though was 5 years. The state court had “broad open-ended discretion” in sentencing. This differs from the recent case, Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), where a guideline sentence for a drug offense was under a year but the court had sharply constricted ability to do anything but impose a guideline sentence. The defendant here was sentenced under a state guideline system that had subsequently been narrowed and required specific findings. Timing is everything.

Timing is also everything in the First Step Act. The defendant was sentenced prior to enactment in December 2018. If it was subsequent, under his record, with only one federal serious drug felony, he would “only” face a mandatory 15 years. The 9th holds that the defendant, who was sentenced in May 2018, is “ineligible for resentencing, a conclusion that follows inescapably from the statute’s text.” All the circuits that have considered this issue has come to the same conclusion: 1st, 3d, 6th, 7th, and DC; see also the 4th and 5th with interpreting identical language in another section.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/04/18-30130.pdf