Tuesday, June 14, 2016

1.  Unites States v. Tyrone Davis, No. 13-30133 (6-13-16)(en banc)(Paez for majority; concurrence by Christen and others; dissent by Bea). In an en banc opinion, the 9th reconsidered the Supreme Court's fractured opinion in Freeman v. US, 564 US 522 (2011), which held that a defendant was eligible for a sentence reduction under 18 U.S.C. ยง 3582(c)(2), when there was a retroactive guideline amendment.  The decision though had a plurality and concurrences, and not a single guiding rationale.  As a result, in US v. Austin, 676 F.3d 924 (9th Cir. 2012), the 9th used the narrowest interpretation on which a majority of justices agreed.  This is the approach of Marks v. US, 430 US 188 (1977), 

Reconsidering Freeman, Marks, and Austin, the 9th holds that where there is no rationale common to a majority of justices, the 9th is bound only by the result.  Thus, the 9th joins the DC Circuit in holding that when a defendant enters into an 11(c)(1)(C) plea, the court must necessarily consider the guidelines range to see if the plea should be accepted and sentence imposed.  As such, a defendant should be eligible to see a guidelines reduction under 3582.

The concurrences agree, but differ from the opinion in the assumption that a Marks analysis can make use of dissenting opinions.

Dissenting, Bea argues that the rationale in Freeman is that the plea agreement is examined first to see if it was based on the guidelines.

The decision is here:


2.  Unites States v. Beecroft, No. 12-10175 (6-13-16)(O'Scannlain with M. Smith and Morris, D.J.). This is a restitutions and forfeiture appeal.  The 9th affirms the order for restitution, finding the order did not err in the loss calculation, and that the restitution was not grossly disproportional excessive.  The 9th also found that forfeiture on substantive counts was not excessive.  However, the forfeiture on the conspiracy count was, and the amount was remanded for reconsideration.

The decision is here:



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