United States v. D.M.
2017 U.S. App. LEXIS 17288
| 9th Cir. | 2017Background
- In 2012 D.M. was caught with methamphetamine and cocaine, pled guilty to possession with intent to distribute, and faced a 120-month statutory minimum under 21 U.S.C. § 841(b)(1)(A)(viii).
- The government moved under 18 U.S.C. § 3553(e)/§ 5K1.1 to permit a below‑mandatory minimum sentence for substantial assistance; the district court imposed 57 months after granting multiple departures (including substantial assistance and a fast-track departure) and retained discretion to alter supervised release for good behavior.
- The Sentencing Commission adopted Amendment 782 (lowering drug offense base offense levels) and made it retroactive via Amendment 788, prompting D.M. (with the government’s concurrence) to seek a § 3582(c)(2) reduction to 51 months under USSG § 1B1.10(b)(2)(B).
- The district court denied relief, concluding that § 1B1.10(b)(2)(B) permitted considering only the portion of the original sentence attributable to the substantial‑assistance departure and therefore D.M. was ineligible for a reduction because removing the fast‑track departure made the comparable reduction exceed his actual sentence.
- D.M. appealed; the government argued the appeal was moot because D.M. had been released from custody.
- The Ninth Circuit held the appeal is not moot (supervised‑release relief remains possible), and that § 1B1.10(b)(2)(B) allows consideration of the other applicable departures (not only the portion labeled as substantial assistance) when computing a "comparably less" reduction; the district court’s denial was vacated and the case remanded.
Issues
| Issue | Plaintiff's Argument (D.M.) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Is the appeal moot because D.M. was released from custody? | Appeal is not moot — district court can modify supervised release and the court retains authority to reduce/terminate it under 18 U.S.C. § 3583, so effective relief remains. | Moot — D.M. only sought a custodial reduction and, having been released, there is no longer a live controversy. | Not moot — supervised‑release relief and § 3583 modification/termination keep a live case-or-controversy; appeal proceeds. |
| When § 1B1.10(b)(2)(B) applies (original sentence below guideline due to govt motion for substantial assistance), may the court consider other departures applied in the original sentence (e.g., fast‑track) when calculating a "comparably less" reduction? | Yes — "term of imprisonment imposed" points to the actual sentence; computing "comparably less" should use the full set of departures that produced the imposed sentence to avoid deconstructing the original sentence and to preserve cooperative defendants’ benefits. | No — only the reduction directly attributable to substantial assistance should be used to calculate the comparable reduction; otherwise the exception risks overbroad application. | Yes — the Ninth Circuit adopts the broader reading: courts may consider other departures that produced the original imposed term when calculating a comparably less reduction under USSG § 1B1.10(b)(2)(B); vacated and remanded for resentencing consideration. |
Key Cases Cited
- United States v. Navarro, 800 F.3d 1104 (9th Cir. 2015) (discusses Amendment 782 and its effects)
- United States v. Ornelas, 825 F.3d 548 (9th Cir. 2016) (interprets computation of amended guideline range under § 1B1.10(a)(2)(B))
- United States v. Phelps, 823 F.3d 1084 (7th Cir. 2016) (rejects isolating only the assistance credit and allows considering the overall sentence reduction)
- Dillon v. United States, 560 U.S. 817 (2010) (limits on when a criminal sentence may be modified)
- United States v. Verdin, 243 F.3d 1174 (9th Cir. 2001) (explains mootness and continuing personal stake while serving supervised release)
- United States v. Strong, 489 F.3d 1055 (9th Cir. 2007) (party asserting mootness bears heavy burden; supervised‑release modification can preserve relief)