United States v. Kenneth Green
674 F. App'x 756
| 9th Cir. | 2017Background
- Kenneth Green pleaded guilty to distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and received an 188-month sentence.
- Green objected to a statement in the presentence report (PSR) describing the contents of an arrest report and to factual assertions about officers’ beliefs regarding his gang membership.
- Parties and court discussed the career-offender guideline; parties agreed the court could reject it on policy grounds.
- The district court considered Green’s mitigating arguments, declined to grant a downward variance, and imposed a within-Guidelines sentence based on Green’s criminal history and § 3553(a) factors.
- Green appealed, arguing Rule 32 violation (unresolved PSR objection), failure to consider Kimbrough discretion, procedural sentencing errors, and substantive unreasonableness.
- The Ninth Circuit affirmed, concluding the court resolved the PSR objection, was aware of Kimbrough discretion, did not plainly err procedurally, and did not abuse its sentencing discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court violated Fed. R. Crim. P. 32 by not resolving Green’s PSR objection | Green: court failed to resolve objection to PSR statement about arrest-report contents | Government: court found PSR statement accurately recited the arrest report; objection resolved | Court: No Rule 32 violation; court resolved objection and officer-belief challenge falls outside Rule 32 scope (Stoterau) |
| Whether court failed to appreciate Kimbrough discretion to vary from career-offender guideline | Green: court did not recognize or exercise discretion under Kimbrough to vary on policy grounds | Government: parties agreed court could reject career-offender guideline; court considered variance and declined | Court: Court was aware of Kimbrough discretion but declined to exercise it; no error (Ayala-Nicanor) |
| Whether sentencing was procedurally erroneous (insufficiently addressing mitigation, inadequate explanation, treating Guidelines as presumptive, reliance on erroneous facts) | Green: court failed to sufficiently address mitigation, explain sentence, treated Guidelines as presumptive, and relied on erroneous facts | Government: court listened to and addressed mitigation, explained within-Guidelines sentence under §3553(a), and relied on undisputed recidivism | Court: No plain error; court adequately addressed arguments and explanation; any error did not affect substantial rights (Valencia-Barragan; Dallman) |
| Whether the 188-month sentence was substantively unreasonable | Green: sentence excessive given circumstances | Government: sentence reasonable given §3553(a) factors and significant criminal history | Court: No abuse of discretion; sentence substantively reasonable in light of §3553(a) and totality of circumstances (Gall; Gutierrez-Sanchez) |
Key Cases Cited
- United States v. Stoterau, 524 F.3d 988 (9th Cir.) (Rule 32 limits and scope for PSR objections)
- Kimbrough v. United States, 552 U.S. 85 (Sup. Ct.) (district courts may vary based on policy disagreements with Guidelines)
- United States v. Ayala-Nicanor, 659 F.3d 744 (9th Cir.) (recognition of Kimbrough discretion and appellate review)
- United States v. Valencia-Barragan, 608 F.3d 1103 (9th Cir.) (plain-error standard for procedural sentencing errors)
- United States v. Dallman, 533 F.3d 755 (9th Cir.) (substantial-rights showing in sentencing plain-error review)
- Gall v. United States, 552 U.S. 38 (Sup. Ct.) (abuse-of-discretion standard for substantive-reasonableness review)
- United States v. Gutierrez-Sanchez, 587 F.3d 904 (9th Cir.) (district court’s discretion in weighing §3553(a) factors)