UNITED STATES of America, Plaintiff-Appellee, v. Paul SANDERS, Defendant-Appellant
67 F.3d 855
9th Cir.
1995
Check Treatment

*1 IV. 555a(a) claim for precludes Jones’ injunctive and for Ms claims

damages, and relief No other moot. declaratory relief are constitutionally required. We or is available grant court’s the district accordingly affirm City. summary judgment to of AFFIRMED. Parada, Public Deputy Federal

Oswald California, Defender, Angeles, defen- Los dant-appellant. Villarreal, Krinsky As- and Alicia Miriam STATES

UNITED Attorneys, Ange- Los sistant Urnted Plaintiff-Appellee, California, les, plaintiff-appellee. Defendant-Appellant. SANDERS, Paul WIGGINS, FLETCHER, and Before: Judges. Circuit WIGGINS; Dissent by Judge Opimon 9, 1995. June and Judge FERNANDEZ. 5, 1995. WIGGINS, Judge:

OVERVIEW bank to a 1993 Paul Sanders during a using firearm robbery and violence, in violation of crime of 924(c)(1). 2113(a) (d); imprison- to 50 months sentenced He was robbery months for and 60 the bank ment for sen- was also He use of the firearm. five-year term to a tenced former, three-year term and a terms, supervised release the latter. im- imprisonment, were like the terms consecutively. posed to run admits that

Sanders correct the district court circuit imposing consecutive argues that a he Sentencmg Guidelines to the proMbits consecutive vised release pursuant jurisdiction have and we reverse. *2 DISCUSSION Counts for which a statute mandates a sentence, consecutive such as counts I. Ninth Law Allowed Consecu- charging the use of a firearm in a violent Supervised tive Terms Release. (18 924(c)) § crime U.S.C. sep- are treated arately. imposed The sentence on such a undisputed It is that the district court’s count is the sentence indicated for the imposition supervised of consecutive terms of particular offense of conviction. That sen- release this case was under this tence then consecutively runs to the sen- court’s decision in United States v. Short imposed tences on the other counts. (9th Cir.1993). house, 7 F.3d 149 Short- amendment, house, The 1994 the added defendant to two the following at charges, provision: the end of one of which involved a the violation of 844(h). Note, however, § 18 U.S.C. The court noted that that even in the ease of a 844(h) analogous section to 18 imprisonment consecutive term of imposed 924(c) (the § (a), any statute at issue subsection term of case), 844(h) imposed vised provides: because section is to run concurrent- ly any shall with imprisonment supervised “[N]or the term of im other term of re- 3624(e). posed imposed. concurrently § under this subsection run See 18 U.S.C. any imprisonment....” other term of C, U.S.S.G.App. amend. noted, however, F.3d at 152. The court that § 5G1.2. This addition indicates that 844(h) (like 924(c)) section makes no we were mistaken in Shorthouse when we supervised reference to Turning release. ruled that section commentary 5G1.2’s Guidelines, Sentencing the court noted 3614(c)’s trump § meant to general 18 U.S.C. they, too, that supervised did not address prohibition against consecutive terms of su- specifically, § but that U.S.S.G. 5G1.2 pervised Accordingly, defendants provide did “in the case of a statute which who now face sentencing for crimes such as sentence, mandates consecutive ‘[t]hat sen not be sentenced to consecutive consecutively tence then runs to the sen supervised question release. The imposed tences other squarely us, counts.’” 7 therefore, before is whether to F.3d at (quoting § 5G1.2 com this 1994 amendment to Sanders’ sen- ¶4 (1992)). mentary, court The concluded tence. that this reference to consecutive sentences III.The Amendment to the Sentencing supervised included release terms. It then Applied Guidelines Will be to Sanders. 844(h)’s provision, § held that re The Ninth consistently Circuit has quirement sentences, of consecutive stated that when an amendment is a clarifica 3624(e), trumped by be alteration, rather than an general which supervised contains a rule law, then it should be in interpreting used release terms are to run provision question See, F.3d at 152. e.g., Quinn, United States v. 18 F.3d (9th Cir.), U.S. -, II. Sentencing The Longer Guidelines No (1994); S.Ct. 129 L.Ed.2d 871 Allow For Consecutive Super- Terms of Carrillo, 991 F.2d 591- vised Release. (9th Cir.),

A 1994 amendment to the Sentencing S.Ct. 126 L.Ed.2d 186 This ac Guidelines makes clear that Guidelines, cords Sentencing with the which lease terms are not to run consecutively, provide: “The Guidelines Manual in effect on even in punishments cases where date shall be in its en underlying imposed crimes must tirety. consecu- ... if a applies court tively. above, As described Manual, Shorthouse earlier edition of the Guidelines court relied commentary court subsequent amendments, shall consider holding. U.S.S.G. 5G1.2 for its Before the to the extent that such amendments are clar n amendment, commentary ifying read as rather than changes.” lBl.ll(b)(2). follows: reasoning upon the ex us based before in the ease The amendment substantive, is a ... amendment “The clause: rather than a ais circuit, thereby commentary to attendant 3B1.1 amendment. purpose of clause.” United implicating states (1991), Saucedo, clarify” that is “to *3 always to run grounds, v. Unit abrogated on other Stinson a 1913, clarifica States, is labelled an amendment 123 113 S.Ct. When ed retroactively. (1993). generally it is L.Ed.2d 598 608, Donaghe, 50 F.3d v. United States See case, ex In the Cir.1995). Further, (9th the commen 612 amendment, if implicated. The clause is not amend notes that the tary to the amendment amendment, as the clarifying treated as a over the in the split a circuits resolves ment intended, Sentencing Commission relationship between sentence, but decrease not increase Sanders’ 3624(e).1 An 5G1.2 we should Accordingly, we believe that it. gen split a circuit that resolves clearly intend- as it was the amendment treat modify existing not erally does clarifies and apply it amendment —and clarifying a ed—as (9th Adams, 1422, 1427 F.2d 761 In re law. retroactively. McMahon, 750 F.2d Cir.1985); Callejas v. Cir.1985). (9th CONCLUSION although the amendment We note reasons, foregoing reverse For the we clarify the clearly was meant case this of consecutive terms provision, it sentence Sentencing Guidelines release, to the district court the substan- remand changing the effect also had opinion. with this sentencing in Short- consistent circuit as stated law this tive con- case one Ninth Circuit At least house. Judge, dissenting: an amend- suggesting that language tains circuit, as law of effect on the

ment’s we will not doubt that There can be no statute, deter- to its effect opposed the Guidelines apply a substantive retro- apply an amendment whether to mines among those it retroactively, is listed unless Smallwood, 35 v. actively. United States See § 1B1.10. See changes set forth U.S.S.G. Cir.1994) (in (9th hold- 414, n. 8 417-18 F.3d 601, Aldana-Ortiz, 6 F.3d v. States would subsequent amendment ing that a Cir.1993). (9th clarifying apply doWe 602 crime, court noted earlier v. States See United changes substan- “[t]he Cir.1994). (9th 608, F.3d Donaghe, 50 of the meaning and effect tive law and the fact that the Commission the mere circuit_”). concern guidelines it so clarifying not make does a calls language from Small- quoted underlying the regarding precedent our it where the ex was with wood> Smallwood, 35 v. the law. See United clause, remainder clear as was made Cir.1994). (9th 414, When 418 n. F.3d “and, amend- [the quoted sentence: law change affects substantive Guideline Small- would increase applied [it] were] ment circuit, change. See it is of this Respectfully substantially. sentence wood’s (9th Johns, F.3d 1267 id.; v. United States Sentencing Commis- disagreeing Cir.1993). here. it is So only that the amendment conclusion sion’s change to has called The Commission substantive, we find that clarifying and not the amend but 5G1.2 Amend- the ... application of retroactive this circuit. directly law reverses ment post facto clause.” the ex violate ment would Shorthouse, v. that, See Small- case like Id. A Tenth Circuit -, (9th Cir.1993), U.S. wood, effect upon an amendment’s focused (1994). The L.Ed.2d 466 114 S.Ct. also a circuit it within law as existed (8th Gullickson, Cir. Circuits, F.2d Eighth and Tenth the Ninth 1. Unlike 1993). terms are Circuit held that imposed consecutively. United to be never fact

would benefit rather than harm Sanders is ERICKSON, M.D., Bruce L. and Great point. beside the See United States v. Moo Eye Surgery Center, Falls (9th Cir.), neyham, 938 F.2d Plaintiffs-Appellees, 502 U.S. 112 S.Ct. L.Ed.2d 461 Had the Commission otherwise,

wanted it to be it could have rel., UNITED STATES of DE placed the provisions amendment under the PARTMENT OF HEALTH AND HU of U.S.S.G. 1B1.10. The fact that this was SERVICES, Defendants-Appel MAN clarifying preclude amendment would not lants. See, e.g., app. C, that. amend. 454 *4 (clarifying listed lB1.10(c)).

I, therefore, see no basis for applying upset sentence. him, When the district court sentenced it did Aug. 1995. exactly right way so in under the Guide- they interpreted lines as by were 1995. this circuit. We should not reversing upon Indeed, case based change. later

there is much in doing mischief so. will, example, encourage defen-

dants to file otherwise appeals meritless the off-chance that there will be some later

spasm activity from the Commission that change interpretation will of the Guide- Mooneyham, lines. See 938 F.2d at 141. That gamble, is not a bad when one considers frequency body. made As of the November 1994 up version we were Moreover,

to Amendment 509. ap- this new proach bypass § lBl.lO’s conferral of

discretion the district court when retro- (as made, here) active there will be no discretion. The defendant will

simply get the benefit of the change. Again, just good that is gamble too for a defen- pass up. dant to short, I think it takes matters out of order to first consider whether a defendant is by change benefitted and to then decide is substantive. We should first characterize the and then let result flow from that characterization. Here is substantive. The result non-retroactivity,

flows is and the sentence should be affirmed.

Thus, I respectfully dissent.