United States v. Gilbert Brito
2017 U.S. App. LEXIS 15958
9th Cir.2017Background
- Gilbert Brito pleaded guilty to possession of heroin with intent to distribute and was originally sentenced in 2012 to 76 months federal custody (reflecting a 4-month credit for time he had served in state custody), yielding a combined state+federal term of 80 months.
- In 2014 the Sentencing Commission retroactively reduced drug offense levels (Amendment 782, made retroactive by Amendment 788), lowering Brito’s guideline range from 84–105 to 70–87 months.
- Brito moved under 18 U.S.C. § 3582(c)(2) for a reduced federal sentence and sought to have the district court treat his previously served 4 months in state custody as part of his “term of imprisonment,” which would allow his federal custody to be reduced to 66 months (total 70 months).
- The district court reduced Brito’s federal sentence to 70 months but denied the requested 4-month credit, concluding U.S.S.G. § 1B1.10(b)(2)(A) barred reducing the “term of imprisonment” below the amended guideline minimum.
- The Ninth Circuit majority held that “term of imprisonment” in § 3582(c)(2) and § 1B1.10(b)(2)(A) can include time already served in state custody when the original sentencing court accounted for that time, and remanded to allow the district court discretion to credit Brito’s 4 months.
- A dissent argued Drake was inapposite, emphasized the limited nature of § 3582(c)(2) proceedings, and would have affirmed the district court’s refusal to reduce federal custody below the amended guideline minimum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "term of imprisonment" under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10(b)(2)(A) may include time already served in state custody | Brito: Yes — prior state time that the sentencing court credited can be counted toward the defendant’s overall "term of imprisonment," permitting a federal custody reduction below the amended-guideline minimum in federal custody while keeping the total term at the guideline floor | Government/District Court: No — the guideline forbids reducing the "term of imprisonment" to less than the amended guideline minimum; that floor applies to the federal sentence and precludes crediting discharged state time to go below the guideline minimum | Court: Yes — "term of imprisonment" can include state time already served when the original sentencing court accounted for it; remanded so district court may credit Brito’s 4 months (reducing federal custody to 66 months, total 70 months) |
Key Cases Cited
- Dillon v. United States, 560 U.S. 817 (2010) (§ 3582(c)(2) authorizes modification of a final sentence, not a plenary resentencing)
- United States v. Drake, 49 F.3d 1438 (9th Cir. 1995) (time served in state custody may count as part of a federal "term of imprisonment" for statutory sentencing purposes)
- Setser v. United States, 566 U.S. 231 (2012) (district courts have discretion to order sentences to run concurrently or consecutively)
- United States v. Turnipseed, 159 F.3d 383 (9th Cir. 1998) (if state sentence already discharged, no undischarged term exists to run concurrently)
- United States v. Davis, 739 F.3d 1222 (9th Cir. 2014) (discussing Sentencing Commission’s rationale for limiting reductions below amended guideline ranges)
- United States v. Tercero, 734 F.3d 979 (9th Cir. 2013) (interpretation of revised § 1B1.10(b) prohibiting reductions below amended guideline minima)
- United States v. Finazzo, 841 F.3d 816 (9th Cir. 2016) (reaffirming that courts cannot reduce a sentence to less than the amended guideline minimum)