and Submitted November 16, 2018 San Francisco, California
Appeals from the United States District Court Nos.
5:11-cr-00894-BLF-1 5:11-cr-00712-BLF-2 5:11-cr-00640-BLF-3
for the Northern District of California Beth Labson Freeman,
District Judge, Presiding
A. Smarandoiu (argued), Chief, Appellate Unit; Steven G.
Kalar, Federal Public Defender; Office of the Federal Public
Defender, San Francisco, California; for Defendant-Appellant.
J. Chan (argued), Assistant United States Attorney; J.
Douglas Wilson, Chief, Appellate Division; United States
Attorney's Office, San Francisco, California; for
Before: A. Wallace Tashima and Milan D. Smith, Jr., Circuit
Judges, and Lawrence L. Piersol, [*] District Judge.
the district court's denial of a motion for a sentence
reduction under 18 U.S.C. § 3582(c)(2) and remanding for
further proceedings, the panel held that a district court may
not sua sponte raise a defendant's waiver of the
right to file a § 3582(c)(2) motion and deny the motion
on that ground.
PIERSOL, DISTRICT JUDGE.
case of first impression, we consider whether a district
court may sua sponte raise a defendant's waiver
of the right to seek relief under 18 U.S.C. § 3582(c)(2)
and deny the defendant's motion for resentencing on that
ground. We hold that it may not. Accordingly, we reverse the
district court's denial of David Sainz's motion for a
2012, Sainz pleaded guilty to six drug offenses. Sainz's
advisory sentence range under the United States Sentencing
Guidelines was 188-235 months in prison. The district court
sentenced Sainz to 188 months in prison.
filed a notice of appeal, but later dismissed his appeals
when he and the government entered into a post-conviction
cooperation agreement. That agreement stated that Sainz's
sentence would be reduced if he provided substantial
assistance to the government. The agreement contained an
express waiver of Sainz's right to seek relief under 18
U.S.C. § 3582(c)(2).
government abided by its promise. It filed a motion to reduce
Sainz's sentence under Federal Rule of Criminal Procedure
35(b)(2), and recommended a 151-month prison sentence. Sainz
asked the court for the mandatory minimum sentence of 120
months in prison.
October 21, 2014, the district court held a resentencing
hearing. Sainz raised "the prospect of [an] additional
two-point reduction for . . . the congressional amendment,
which doesn't take [e]ffect until Congress's failure
to act on November 1st. Which I guess we can all
expect." Sainz was referring to a forthcoming amendment
to USSG § 2D1.1, which would lower by two levels the
base offense level for Sainz's convictions. Although the
amendment had not yet been enacted, the court agreed that the
amendment was likely to take effect on November 1 because
"[y]ou can expect Congress to do nothing." Sainz
and the sentencing judge then engaged in a colloquy about
whether the court could sentence Sainz below the 120-month
mandatory minimum sentence. The court concluded that
"Rule 35 opens the door to [a sentence] below the
mandatory minimum . . . . The power of the court is such that
I could reduce the sentence [below the mandatory
court sentenced Sainz to 120 months in prison. Following the
imposition of the sentence, the government asked the court
whether the sentence was "in contemplation of the
expected two-level guideline ...