Sunday, March 15, 2015

Case o' The Week: Lost in Austin - the Ninth fractures over fractures, crack resentencing

 A fractured panel fractures over a fractured opinion from a fractured Supreme Court.
  (Weirdly appropriate, for a “crack” case . . .)
United States v. Davis, 776 F.3d 1088 (9th Cir. Jan. 27, 2015), decision available here.

Players: Per curiam opinion, by Judges O’Scannlain, Kleinfeld and Berzon. Compelling concurrence by Judge Berzon.  

Facts: In 2005 Davis pleaded guilty pursuant to a Fed. R. Crim. Proc. 11(c)(1)(C) deal. Id. at 1089. He was sentenced to 18 years. Id. After the Sentencing Commission reduced the Guideline sentences for crack cocaine in 2010, Davis sought a retroactive reduction of his sentence. Id. The district court held that it lacked jurisdiction to modify his sentence, because Davis’s sentence was not ‘based on’ the Guidelines. Id.

Issue(s): In light of the Supreme Court’s divided decision in Freeman v. United States, 131 S. Ct. 2685 (2011), and the Ninth Circuit’s interpretation of that decision in United States v. Austin, 676 F.3d 924 (9th Cir. 2012), does the district court have jurisdiction to modify a sentence under 18 U.S.C. § 3582(c)(2) when the underlying sentence was pursuant to a (c)(1)(C) plea agreement?

Held: “We affirm.” Id. at 1089. “The district court’s determination in this case that it lacked jurisdiction to reduce Davis’s crack sentence is consistent with” United States v. Austin, 676 F.3d 924 (9th Cir. 2012).Id. at 1091

Of Note: When the case that is the subject of the Case o’ The Week memo is dusty enough to have earned an “F.3d” cite, fair to infer the drought in Ninth criminal opinions continues. As of the Ides of March, the last criminal opinion in the Ninth was the Mendez-Sosa case on March 2. See The opinion (not order, or amended opinion) before that? Feb 5, in Burgos-Ortega. If the trope, “no news is good news” is true, very good news of late in the Ninth.

How to Use: This disappointing decision is not a big surprise, given the Ninth’s decision in Austin. In a very thoughtful concurrence, Judge Berzon takes a hard look at how appellate courts are supposed to interpret fractured Supreme Court decisions. Id. at 1091 (Berzon, J., concurring). She finds Austin wanting, and opines that Marks (the lead opinion on fractured opinions) is not consistent with the Ninth’s approach in Austin. Id. at 1092 (discussing Marks v. United States, 430 U.S. 188 (1977)). Judge Berzon ends with an en banc flag: “We should reconsider Austin’s holding . . . .” Id. She’s right, Austin deserves another look, and preserving this issue in (c) cases seems prudent.
  More broadly, Judge Berzon’s concurrence is a helpful read when dealing with the (increasingly frequent) problem of fractured opinions, and how to glean the controlling holding under Marks. Not surprisingly, courts are even fractured on how to properly read fractured opinions. (Happily, the perpetual discord guarantees the defense will always have something to argue.)
Hon. Judge Claudia Wilken
For Further Reading: The Northern District of California now has a Post-Plea Diversion / Deferred Sentencing Court. See notice here. The agreement for the new Court has been signed by all the stakeholders in the district, and can be found here
   Many folks have worked long and hard to make this agreement a reality, but as Chief Judge Hamilton notes, much credit goes to the “tireless efforts of our immediate past Chief Judge, Claudia Wilken.”   
   Look for more details on the new Court this spring as enrollment and staffing get up and off the ground.

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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