United States v. Tina-Marie Finazzo, 2016 U.S. App. LEXIS 20296

Finazzo pleaded guilty (2011) to conspiracy to distribute ≥50 grams methamphetamine; initial Guidelines range 210–262 months.
Probation recommended a downward variance to 172 months; the government said it "had no problem" with that recommendation and explicitly stated it was not making a §5K1.1 motion.
The district court imposed 172 months, citing Finazzo’s early and extensive cooperation with law enforcement.
The Sentencing Commission amended the Guidelines (Amendment 782, 2014) lowering Finazzo’s Guideline range; she moved under 18 U.S.C. §3582(c)(2) for a sentence reduction.
The district court reduced the sentence to 168 months (bottom of amended range) but denied a further reduction comparable to her original below-Guidelines variance because the court found the original variance was not based on a government motion reflecting substantial assistance.
Finazzo appealed, arguing (1) the government’s acquiescence at sentencing constituted a "motion" under §1B1.10(b)(2)(B), entitling her to a reduction below the amended range, and (2) canon of constitutional avoidance and rule of lenity support a broader reading.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the government’s oral acquiescence at sentencing constituted a “government motion” reflecting substantial assistance under U.S.S.G. §1B1.10(b)(2)(B)	Government: its statement that it "had no problem" was not a motion; it made no request for a particular sentence.	Finazzo: government’s adoption/acquiescence to probation’s recommendation functioned as an oral motion entitling her to a comparably greater reduction.	Court: Government’s passive acquiescence is not an affirmative written/oral motion; no §5K1.1/§3553(e)/Rule 35(b) motion was made, so §1B1.10(b)(2)(B) does not apply.
Whether the canons of constitutional avoidance or lenity require treating the government’s conduct as a motion under §1B1.10(b)(2)(B)	Finazzo: interpret §1B1.10(b)(2)(B) to be triggered by a government motion under 18 U.S.C. §3553(a) to avoid constitutional issues and under lenity.	Government: statute and Guidelines commentary are unambiguous; canons inapplicable.	Court: Statute/Guildelines are unambiguous; neither canon applies. Affirmed.

United States v. Dunn, 728 F.3d 1151 (9th Cir.) (standard for §3582(c)(2) abuse of discretion review)
United States v. Lightfoot, 626 F.3d 1092 (9th Cir.) (abuse of discretion when court applies incorrect law or rests on clearly erroneous facts)
SEC v. McCarthy, 322 F.3d 650 (9th Cir.) (definition of a motion as written or oral application requesting court action)
Almendarez-Torres v. United States, 523 U.S. 224 (1998) (discussion of canon of constitutional avoidance)
United States v. Bendtzen, 542 F.3d 722 (9th Cir.) (application of the rule of lenity)