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Date: 10-02-2021
Case Style:
United States of America v. OSE LIZARRARAS-CHACON
Case Number: 20-30001
Judge: Dean D. Pregerson
Court: UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Plaintiff's Attorney: Amy E. Potter (argued), Criminal Appellate Chief, United
States Attorney’s Office
Defendant's Attorney:
Description:
San Francisco - Criminal defense lawyer represented defendant with conspiracy to possess with intent to distribute 1,000 grams or more of heroin and possession with intent to distribute 100 grams or more of heroin charges.
On November 29, 2011, Jose Lizarraras-Chacon
(“Defendant”) was arrested and later charged by superseding
indictment with conspiracy to possess with intent to
distribute 1,000 grams or more of heroin in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i) (Count 1) and
possession with intent to distribute 100 grams or more of
heroin, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(i) (Count 2). On October 24, 2012, the United
States (“Government”) filed an Information to Establish
Prior Conviction under 21 U.S.C. § 851 to increase the
mandatory minimum sentence based on Defendant’s 2010
drug conviction in Clackamas County, Oregon for which
Defendant was sentenced to 90 days in jail and 36 months of
supervised probation. The Information charged that, as a
result of the 2010 drug conviction, Defendant was subject to
a mandatory minimum of 20 years under 21 U.S.C.
§ 841(b)(1)(A).
On the day of trial, Defendant and the Government
entered into a binding plea agreement under Rule
11(c)(1)(C) of the Federal Rules of Criminal Procedure.
Under the terms of the plea agreement, the parties agreed
that Defendant would plead guilty to Counts 1 and 2, that the
base offense level was 34, under the then-existing Drug
Quantity Table for conduct involving between three and ten
kilograms of heroin and that various guideline enhancements
and reductions applied. The parties agreed to jointly
UNITED STATES V. LIZARRARAS-CHACON 5
recommend a total sentence of 210 months of incarceration
followed by five years of supervised release.1
On April 8, 2013, the district court adopted the parties’
Guidelines calculations and found that Defendant’s total
Offense Level was 35, at Criminal History Category III. The
Offense Level included enhancements for possession of a
firearm, aggravating role as a leader, and using children in
the offense. The resulting applicable guideline range at the
time was 210–262 months. Because the district court
accepted the parties’ Rule 11(c)(1)(C) plea agreement, the
recommended sentence was binding upon the court.
Accordingly, the district court sentenced Defendant to
210 months’ imprisonment, followed by five years of
supervised release.
B. First Motion for Reduction of Sentence
On April 21, 2016, Defendant filed a pro se Motion to
Reduce Sentence under 18 U.S.C. § 3582(c) based on
Sentencing Guidelines Amendment 782, which reduced
most base offense levels in the U.S.S.G. § 2D1.1 Drug
Quantity Table by two levels. The district court
subsequently appointed counsel to represent Defendant.
Defendant and the Government filed a joint response to the
motion in which the parties agreed that Amendment 782
retroactively reduced Defendant’s guideline range, making
Defendant eligible for a sentence reduction to 169 months.
The Government opposed a reduction, however, as a matter
of discretion based on the factors set forth in 18 U.S.C.
§ 3553(a) (“§ 3553(a)”).
1 Although the sentence imposed was below the mandatory
minimum, that was for reasons not at issue in this appeal.
6 UNITED STATES V. LIZARRARAS-CHACON
On June 2, 2017, the district court denied Defendant’s
motion. The court noted that “Defendant’s 210-month
sentence was the benefit of the bargain that he struck with
[the Government] on the first day of trial to avoid the 240-
month mandatory minimum that he was facing” and that
“Defendant wanted a sentence that was less than the twentyyear minimum.” After evaluating the § 3553(a) factors, the
court concluded that Defendant’s sentence should not be
modified. Defendant did not appeal.
C. Second Motion for Reduction of Sentence
On May 17, 2019, Defendant filed a second Motion for
Reduction of Sentence based on Amendment 782. The
district court again appointed counsel. Defendant argued
that three intervening legal and judicial developments
demonstrated that the 210-month sentence imposed was now
greater than necessary to serve the purposes of sentencing
and were relevant to the § 3553(a) factors. Specifically,
Defendant argued that (1) the Ninth Circuit’s decision in
United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir.
2019), established that Defendant was never lawfully subject
to a 20-year mandatory minimum because his 2010 prior
conviction was not a “felony drug offense”; and (2) the First
Step Act of 2018 abolished the 20-year mandatory minimum
and replaced it with a 15-year minimum triggered by “more
serious prior convictions, which would be inapplicable” to
Defendant. Defendant also argued that evidence of his postoffense rehabilitation supported a sentence reduction.
On January 13, 2020, the district court denied
Defendant’s motion. The district court concluded that
Defendant was eligible for a sentence reduction. However,
the district court rejected Defendant’s arguments that the
developments in the law should be considered in the court’s
§ 3553(a) analysis. The district court explained:
UNITED STATES V. LIZARRARAS-CHACON 7
[t]o the extent that [Defendant] may be
arguing that changes to the relevant
mandatory minimum under United States v.
Valencia Mendoza . . . and the First Step Act
of 2018 somehow change the [c]ourt’s
analysis of the § 3553(a) factors, the court
does not agree. [Defendant] does not explain
how changes to a mandatory minimum might
fit within the § 3553(a) framework.
The district court noted the § 3553(a) factor that
appeared to be most relevant to Defendant’s arguments,
§ 3553(a)(4)(A), did “not appear to contemplate changes to
a mandatory minimum by act of Congress or ruling from the
courts.” In a parenthetical, the district court then quoted
Hughes v. United States, 138 S. Ct. 1765 (2018), for the
apparent proposition that it would have imposed the same
sentence, even if defendant had been subject to a lower
range.
JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction pursuant to 18 U.S.C.
§ 3742(a)(1)–(2) and 28 U.S.C. § 1291. We review
discretionary denials of 18 U.S.C. § 3582(c)(2) motions “for
abuse of discretion, which occurs if the district court does
not apply the correct law or predicates its decision on a
clearly erroneous factual finding.” United States v. Trujillo,
713 F.3d 1003, 1008 n.3 (9th Cir. 2013). The court reviews
the district court’s exercise of sentence reduction authority
based on the § 3553(a) factors for reasonableness. United
States v. Dunn, 728 F.3d 1151, 1158 (9th Cir. 2013).
8 UNITED STATES V. LIZARRARAS-CHACON
DISCUSSION
The parties agree that Defendant’s motion for reduction
of sentence under § 3582(c)(2) is analyzed under the twostep approach set forth in Dillon v. United States and further
agree that only step two of the analysis is at issue. 560 U.S.
817, 827 (2010). At step two, a court must “consider any
applicable § 3553(a) factors and determine whether, in its
discretion, the reduction authorized by reference to the
policies relevant at step one is warranted in whole or in part
under the particular circumstances of the case.”2
Id.
I. Intervening Developments Affecting a Mandatory
Minimum are Relevant to a § 3553(a) Factor Analysis
A. The Intervening Developments at Issue
The Government does not dispute that Defendant
accurately presented the intervening developments affecting
the mandatory minimum to the district court. Briefly, the
first intervening development is this Court’s decision in
Valencia-Mendoza. At the time of sentencing, Defendant
was subject to the then-existing 20-year statutory mandatory
minimum as a result of a 2010 prior drug conviction because,
based on existing precedent, the state statutory maximum
exceeded one year, thereby qualifying the 2010 conviction
2 The Government’s initial position in this appeal was that under
United States v. Kelley, 962 F.3d 470 (9th Cir. 2020), a district court
could not consider the intervening changes in a § 3553(a) factor analysis.
In a subsequent Rule 28(j) letter, the Government recognized that the
§ 3553(a) factors “may capture other changes in the law, for example,
changes in the mandatory minimum sentences prescribed for the
defendant’s crime of conviction and defendant’s current eligibility for
it.” We take the opportunity to reinforce the two-step approach set forth
in Dillon.
UNITED STATES V. LIZARRARAS-CHACON 9
as an offense “punishable by imprisonment for more than
one year.” See 21 U.S.C. § 802(44). In 2019, in ValenciaMendoza, we overruled that precedent. See 912 F.3d at 1224
(holding that where an offense as “actually prosecuted and
adjudicated—was punishable under [state] law by no more
than six months in prison,” the offense is not “punishable by
more than one year”) (overruling United States v. RiosBeltran, 361 F.3d 1204 (9th Cir. 2004)); United States v.
Murillo, 422 F.3d 1152 (9th Cir. 2005); United States v.
Crawford, 520 F.3d 1072 (9th Cir. 2008)). We held that a
sentencing court must also consider state sentencing factors.
Id. at 1222. In Defendant’s case, as is undisputed by the
Government, under state sentencing guidelines, Defendant’s
conviction could not result in a sentence of more than
180 days in jail. Therefore, under Valencia-Mendoza, if
sentenced today, Defendant’s 2010 conviction would not
trigger the 20-year mandatory minimum.
The second intervening development is Congress’s
amendment to the mandatory minimum in the First Step Act
in 2018. As relevant here, the First Step Act did two things:
(1) prospectively reduced the mandatory minimum to
15 years and (2) amended the requirement for a predicate
offense to trigger the mandatory minimum—now requiring
a “serious drug felony” instead of a “felony drug offense.”
21 U.S.C. § 841(b)(1)(A). A defendant sentenced after the
effective date of the First Step Act who is otherwise
identically situated to Defendant, with an identical prior
conviction, would face a mandatory minimum sentence of
only 10 years.
B. Section 3553(a) Factors in a Motion for Reduction of
Sentence under § 3582(c)(2)
As part of the Sentencing Reform Act, § 3582(c)(2)
furthers the Act’s purpose of “creat[ing] a comprehensive
10 UNITED STATES V. LIZARRARAS-CHACON
sentencing scheme in which those who commit crimes of
similar severity under similar conditions receive similar
sentences.” Hughes, 138 S. Ct. at 1776. Under § 3582(c)(2),
a “district court[] may adjust sentences imposed pursuant to
a range that the [Sentencing] Commission concludes is too
severe, out of step with the seriousness of the crime and the
sentencing ranges of analogous offenses, and inconsistent
with the Act’s purposes.” Id. (citations and alteration
omitted). To that end, after determining that a defendant is
eligible for a sentence reduction, § 3582(c)(2) requires a
district court to consider “Section 3553(a) [factors] to the
extent that they are applicable.” 18 U.S.C. § 3582(c)(2).
Section 3553(a)’s “overarching statutory charge for a district
court is to ‘impose a sentence sufficient, but not greater than
necessary’ to reflect the seriousness of the offense, promote
respect for the law, and provide just punishment; to afford
adequate deterrence; [and] to protect the public.” United
States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc)
(quoting § 3553(a) and (a)(2)).
Section 3553(a) enumerates several factors that a court
“shall consider”:
(1) the nature and circumstances of the
offense and the history and characteristics of
the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the
offense, to promote respect for the law,
and to provide just punishment for the
offense;
UNITED STATES V. LIZARRARAS-CHACON 11
(B) to afford adequate deterrence to
criminal conduct;
(C) to protect the public from further
crimes of the defendant; and
(D) to provide the defendant with needed
educational or vocational training,
medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
. . .
(6) the need to avoid unwarranted sentence
disparities among defendants with similar
records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any
victims of the offense.
§ 3553(a)(1)–(7). We have explained that “[a]n analysis
under § 3553(a) involves considering the totality of the
circumstances, but ‘[t]he district court need not tick off each
of the § 3553(a) factors to show that it has considered
them.’” Dunn, 728 F.3d at 1159 (second alteration in
original) (quoting Carty, 520 F.3d at 992).
We have also emphasized that “a court’s discretionary
decision under the § 3553(a) factors, at step two [of the
§ 3582(c)(2) inquiry], exceeds the limited scope of a
resentencing ‘adjustment’ applicable to step one.” Dunn,
728 F.3d at 1158 (emphasis added). Therefore, although at
12 UNITED STATES V. LIZARRARAS-CHACON
step one of the inquiry, a district court will “substitute only
the amendments listed . . . for the corresponding guideline
provisions that were applied when the defendant was
sentenced and shall leave all other guideline application
decisions unaffected,” at step two, there are no similar
limitations on what a district court may consider. Dillon,
560 U.S. at 827 (citation omitted).
C. Intervening Developments Are Relevant to the § 3553(a)
Factors
In Pepper, the Supreme Court explained that an
underlying principle in federal judicial tradition is that “the
punishment should fit the offender and not merely the
crime.” Pepper v. United States, 562 U.S. 476, 487–88
(2011) (citation omitted). In seeking to ensure that the
“punishment fit the offender,” the Supreme Court explained
that judges should use “the fullest information possible
concerning the defendant’s life and characteristics.” Id.
at 488 (citation omitted). In a § 3553(a) factor analysis, such
information should include, where applicable, postsentencing and post-offense rehabilitation. Id. at 480, 488
(holding that the court of appeals’ ruling prohibiting the
district court from considering evidence of a defendant’s
rehabilitation since the initial sentencing “conflict[ed] with
longstanding principles of federal sentencing law and
Congress’ express directives in [18 U.S.C.] §§ 3661 and
3553(a).”). It follows that in a § 3553(a) factor analysis, a
district court must similarly use the fullest information
possible concerning subsequent developments in the law,
such as changes in sentencing guidelines, legislative changes
to a mandatory minimum, and changes to a triggering
predicate offense to ensure the punishment will “fit the
crime” and critically, to ensure that the sentence imposed is
also “‘sufficient, but not greater than necessary’ to reflect the
UNITED STATES V. LIZARRARAS-CHACON 13
seriousness of the offense, promote respect for the law, and
provide just punishment; to afford adequate deterrence;
[and] to protect the public.” Carty, 520 F.3d at 991 (quoting
§ 3553(a) and (a)(2)).
Subsequent developments affecting a mandatory
minimum are relevant, for example, to the “nature and
circumstances of the offense,” the “seriousness of the
offense,” the needs “to provide just punishment for the
offense,” and “to afford adequate deterrence to criminal
conduct.” § 3553(a)(1), (2)(A)–(B). The “seriousness of the
offense,” is broad and logically includes any subsequent
reevaluation of sentencing issues reflected in legislation.
Subsequent legislation, such as the reduction of the
mandatory minimum in the First Step Act, is a legislative
reassessment of the relative seriousness of the offense.
Legislative changes or guideline changes do not happen in a
vacuum. They represent a societal judgment that it is
necessary, from time to time, to reconsider and adjust what
is an appropriate sentence consistent with the goals of the
criminal justice system. Congress’s legislative action
through the First Step Act, reducing the mandatory
minimum and requiring a higher-level predicate offense
reflects a decision that prior sentences were greater than
necessary.3
Similarly, a development in the law, such as our
3 See, e.g., United States v. Shaw, 957 F.3d 734, 742 (7th Cir. 2020)
(discussing § 3553(a) factors in a motion for sentence reduction under
the First Step Act and stating that a “statutory minimum and maximum
often anchor a court’s choice of a suitable sentence” and “today’s
Guidelines may reflect updated views about the seriousness of a
defendant’s offense or criminal history”); cf. United States v. Taylor,
648 F.3d 417, 427 (6th Cir. 2011) (stating that “amendments to the
Guidelines are relevant to the § 3553(a) factors,” and “the Sentencing
Commission’s view of the defendant’s offense conduct, revealed in the
Commission’s actions to revise the Guidelines, is highly relevant to the
14 UNITED STATES V. LIZARRARAS-CHACON
holding in Valencia-Mendoza, is also relevant to assessing
the “history and characteristics of the defendant.”
§ 3553(a)(1). At the time of sentencing, Defendant’s 2010
prior conviction was deemed a “felony drug offense.” Now,
under our holding in Valencia-Mendoza, the 2010 prior
conviction would not qualify as a “felony drug offense.”
Our holding today is consistent with the mandate that a
district court consider the “totality of the circumstances.”
Dunn, 728 F.3d at 1159.
II. The District Court’s Order
The Government argues, alternatively, that the district
court did consider the intervening changes to the mandatory
minimum and concluded that none of the developments
caused it to reconsider its original § 3553(a) factor analysis.
According to Defendant, the only fair reading of the district
court’s order is that the district court misunderstood the
breadth of Dillon’s second step and erroneously believed
that the restrictions at step one required it to apply a
circumscribed, guideline-based § 3553(a) analysis.
The district court’s order is, at best, ambiguous.
Defendant raised a “specific, nonfrivolous argument
tethered to a relevant § 3553(a) factor,” and as such, the
district court was required to consider Defendant’s
arguments within the § 3553(a) framework.4
See Trujillo,
district court’s assessment of the nature and circumstances of the offense,
§ 3553(a)(1), and the seriousness of the offense, § 3553(a)(2)(A).”
(internal quotation marks omitted)).
4 To be clear, the district court could have considered the
developments affecting the mandatory minimum and nonetheless
concluded that a reduction in Defendant’s sentence was not warranted
UNITED STATES V. LIZARRARAS-CHACON 15
713 F.3d at 1009 (citation omitted). It is not clear from the
record that the district court recognized that it had the
discretion to consider relevant developments in the law in a
§ 3553(a) factor analysis. The district court stated that
Defendant did not explain “how changes to a mandatory
minimum might fit within the § 3553(a) framework.” The
statement indicates that the district court misapprehended
the breadth of the § 3553(a) factors. The district court’s
subsequent parenthetical to Hughes is insufficient to
overcome the erroneous statement and instead creates an
ambiguity. Because the record is not clear, remand is
necessary.
Outcome: Because the district court appears to have erroneously
concluded that it could not consider intervening
developments affecting the mandatory minimum in its
§ 3553(a) factor analysis, we conclude that the district court
abused its discretion. On remand, the district court shall
consider the fullest information possible, including the
intervening changes in the law raised by Defendant, to
ensure that the sentence is sufficient but not greater than
necessary.
Plaintiff's Experts:
Defendant's Experts:
Comments: