US v. Brown, No. 20-50313 (8-2-22)(Daniels w/McKeown & Ikuta). After such knowledge, what forgive? Sure, a bit poetic, but it comes into play with this “safety valve” defendant and the First Step Act. The First Step Act proscribes using information in a safety valve proffer from enhancing a sentence. The defendant gave a safety valve proffer, which disclosed other drug courier trips. The court referenced this as part of the 3553 factors, along with other information, in sentencing the defendant to a 78 month sentence: below the mandatory minimum and below the guidelines range, but higher than the government recommendation (71 months) and what the defendant wanted. The court focused on a variety of factors, including use of a minor in the transport, the length of involvement with the traffickers, the impact on the community, and the earning of considerable sums. The case thus turns on “enhancing.”

As a first impression, the 9^th holds the sentence was not improper. A failure to reduce a sentence is not an enhancement. [The opinion cites extensive authority that a failure to reduce is not an enhancement.] The court considered a variety of factors – aggravating and mitigating – in fashioning this sentence. The First Step Act does not strip the court of the ability to consider the information in its sentencing discretion.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/08/02/20-50313.pdf

1.  United States v. Wright, No. 20-50361 (Bennett (D. Md.) with Berzon and Bea) –- The panel affirmed the denial of a motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A), holding that error in treating the Guidelines’s policy statement on compassionate release as binding can be harmless when the district court makes an alternative ruling based on the 18 U.S.C. § 3553(a) factors that is itself a proper exercise of sentencing discretion.  The panel also held that the defendant had abandoned his alternative request for home confinement by failing to separately argue it.

Kudos to Jessica Agatstein and Katie Hurrelbrink, Federal Defenders of San Diego, for a hard-fought appeal. 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/29/20-50361.pdf

 

2.  Sansing v. Shinn, No. 13-99001 (Watford with Callahan; Berzon dissenting) –- [This is an Arizona CHU case.]  The panel denied a petition for rehearing and issued a revised opinion and revised dissent that does not change the previous outcome of the appeal (no relief, but Berzon dissented and would order resentencing) but accounts for the Supreme Court’s recent ruling in Brown v. Davenport, 142 S. Ct. 1510 (2022), which discusses how to apply harmless-error review (here, to a claim under Ring v. Arizona, 536 U.S. 584 (2002)) in habeas proceedings.  The panel did not allow further petitions for rehearing based on the revised opinion and dissent.

The revised opinion is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/07/29/13-99001.pdf