Sunday, September 08, 2013

Case o' The Week: Ninth Hears Us on Being Heard, and Hears Us Out (then denies . . . ) - Dunn and Crack Resentencing

 With the Supreme Court (arguably) slashing away at appellate jurisdiction, for defendants seeking relief on crack re-sentencing just getting to the Ninth is half the fun. 
 United States v. Dunn, 2013 WL 4767357 (9th Cir. Sept. 6, 2013), decision available here.

Players: Decision by Judge Milan Smith, joined by D.J. Anello. Concurrence by Judge O’Scannlain. Hard-fought appeal by ND Cal CJA Counsel Mark Goldrosen.

Facts: Dunn sold crack to an undercover agent, near a school, while on supervised release. Id. at *1. The district court imposed a 100 month sentence on the crack case; Dunn didn’t appeal. Id. 
  In 2010, Congress passed the Fair Sentencing Act (FSA) that lowered Dunn’s crack guidelines to 77-96 months. Id. at *2. While in prison, Dunn took advantage of educational opportunities, got transferred to a lower security facility, and offered his kidney to his ailing brother. Id. 
  Dunn moved to reduce his crack cocaine sentence under the F.S.A., emphasizing his post-convictions efforts. Id. The district judge denied that motion, and Dunn appealed the discretionary denial of a reduced sentence. Id. at *2.

Issue(s): “We first must decide whether we have jurisdiction to review the district’s court’ denial of Dunn’s motion for a § 3582(c)(2) sentence reduction.” Id. at *3. “As applied in this case, the pertinent inquiry is whether the reasoning or theory of [the Supreme Court’s decision in Dillon] regarding the extension of Booker to § 3582(c)(2) proceedings is clearly irreconcilable with [the Ninth Circuit’s earlier] decision in Colson [permitting appellate review of § 3582(c)(2) proceedings in their entirety].” Id. at *4.  

Held: “We conclude that Dillon does not clearly conflict with Colson because: (1) Dillon is not ‘closely on point’ with regard to the jurisdictional question at issue, and (2) Dillon does not revise the reasonableness standard under Booker.” Id. at *4. “We hold that we have jurisdiction to review § 3582(c)(2) discretionary decisions under . . . Colson, which is not ‘clearly irreconcilable’ with Dillon. Miller v. Gammie, 335 F.3d 889, 989 (9th Cir. 2003) (en banc).” Id. at *1.

Of Note: Judge M. Smith ultimately denies the defendant’s appeal in Dunn and upholds the district’s court refusal to resentence lower. While disappointing, other aspects of the case are of more interest.
 Judge Smith spends most of his time wrestling with a question that comes up frequently: what happens when the Ninth holds one way, the Supremes later (arguably) hold another, and the en banc Circuit Court hasn’t yet revisited the original decision? That’s a Miller v. Gammie problem, and is a problem that arises surprisingly often. (The Supremes have yet to fully appreciate the wisdom of the Ninth’s ways). 
  The rule is this: a three-judge panel can only change course from the Ninth’s previous decision when the Ninth law is “clearly irreconcilable” with the Supreme’s. That question is the heart of Dunn, and Judge Smith spends much of the opinion wrestling with whether the intervening Supreme Court decision in Dillon really conflicts with the Ninth’s previous Colson case. 
  It’s an intellectually honest analysis that preserves appellate review on discretionary denials of crack reductions (for now), and an interesting chapter in the Ninth’s often uneasy relationship with the Nine.

How to Use: Ninth precedent survives, Supreme Court law doesn’t (yet) control: huzzah! Good news – in this case. In another area of evolving law, such as Apprendi and mand-mins, or the Fourth Amendment and technology, we may someday be arguing the reverse: urging a three judge panel to do the right thing and scrap moldy old Ninth law in favor of some shiny new Supreme Court holding. When that happens, remember and re-read Dunn – Judge Smith’s analysis and interpretation of Miller v. Gammie can cut both ways.
For Further Reading: It is 1.1 miles from S.F.’s Moscone Center – where A.G. Holder announced the DOJ’s new drug policies – to SF’s Federal Building, where AUSAs make charging decisions. Has the Holder Memo made the distance yet? For a great article on the real distance between the Memo’s goals and cases in the trenches, see article in The Atlantic here.

Image of Cunard poster from

Steven Kalar, Federal Public Defender. Website at



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