United States v. Teniah Tercero
2013 U.S. App. LEXIS 22184
| 9th Cir. | 2013Background
- Tercero pled guilty to possession with intent to distribute methamphetamine; information indicated 115.8 grams crack cocaine and 4.36 grams methamphetamine for sentencing purposes.
- Prior indictment charged conspiracy and distribution of crack cocaine; crack quantities were central to guideline calculations.
- Original district court imposed 72-month sentence after downward departure for minor role, with three years of supervised release.
- Fair Sentencing Act (FSA) amendments were later enacted and the Sentencing Commission amended guideline ranges; Amendment 750 reduced crack-related offense levels and was made retroactive.
- Tercero moved under 18 U.S.C. § 3582(c)(2) for a sentence reduction following the retroactive amendments; district court reduced to 70 months but declined further below this minimum per revised § 1B1.10.
- Panel affirmed, holding (1) no waiver precluded appeal of the § 3582(c)(2) reduction; (2) district court correctly applied § 3582(c)(2) and § 1B1.10, including the 70-month floor, under current law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of appeal on §3582(c)(2) sentence reduction | Tercero waived appeal rights in plea; waiver should bar appeal | Waiver broad but does not cover §3582(c)(2) appeals; government failed to timely raise waiver | Waiver did not bar appeal |
| Authority to reduce under §3582(c)(2) post-FSA | FSA intended broader retroactive reductions in sentencing | Amended §1B1.10 governs reductions and may limit reductions below amended minimums | District court correctly applied §3582(c)(2) and §1B1.10; could not reduce below amended minimums |
| Relation between FSA and §1B1.10 (retroactivity and purpose) | FSA reflects congressional intent to restore fairness in cocaine sentencing, may override guideline limits | §1B1.10 is consistent with FSA and Congress empowered the Commission to implement retroactivity | No conflict; §1B1.10 valid and binding; FSA does not override |
| Bona fide application of Dhillon/Dillon two-step framework | Dillon may permit deviation from §1B1.10 under certain circumstances | Two-step framework remains controlling; policy statements binding | Panel applied two-step framework; no reweighing of §3553(a) factors |
Key Cases Cited
- Lightfoot v. United States, 626 F.3d 1092 (9th Cir. 2010) (waiver of §3582(c)(2) appeal not implied by broad waiver)
- Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2010) (implicit waiver of waiver through failure to raise it)
- Dillon v. United States, 560 U.S. 817 (S. Ct. 2010) (two-step process: policy statements then §3553(a) factors)
- Dillon, United States v. Augustine, 712 F.3d 1290 (9th Cir. 2013) (FSA retroactivity limits and Commission role clarified)
- LaBonte v. United States, 520 U.S. 751 (S. Ct. 1997) (conflict between amendments and statutory text; maximum term interpretation)
- United States v. Augustine, 712 F.3d 1290 (9th Cir. 2013) (FSA retroactivity scope and circuit understanding)
- United States v. Berberena, 694 F.3d 514 (3d Cir. 2012) (APA considerations not applicable to policy statements of the Commission)
- Andrade v. U.S. Sentencing Comm’n, 989 F.2d 308 (9th Cir. 1993) (statutory directive to promulgate guidelines and policy statements)