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United States v. Saelua

United States District Court, D. Hawaii

September 29, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
LEVI SAELUA, JR. Defendant.

         ORDER DENYING DEFENDANT LEVI SAELUA'S PRO SE "MOTION FOR LEAVE OF COURT FOR PRODUCTION OF SENTENCING TRANSCRIPTS TO AID IN THE RESOLUTION OF U.S.S.G. AMENDMENT 782" AND DEEMING WITHDRAWN HIS MOTION FOR LEAVE TO SUBSTITUTE CJA APPOINTED COUNSEL

          Susan Oki Mollway United States District Judge.

         This court has received from Defendant Levi Saelua his "Motion for Leave of Court For Production of Sentencing Transcripts To Aid in the Resolution of U.S.S.G. Amendment 782 and Motion for Leave to Substitute CJA Appointed Counsel." This motion was filed by the court clerk late in the day on September 26, 2016, and the court did not see this motion until after the status conference held the morning of September 26.

         The court deems the motion for leave to substitute counsel to be withdrawn, based on the discussion held during the status conference.

         The motion seeking transcripts is denied for three reasons.

         First, by the time Saelua submitted the transcript request, he knew that he was represented by counsel. This court will not allow a represented party to continue to operate pro se.

         Second, as discussed at the status conference on September 26, 2016, the court intends to stay this matter once it has addressed the issue of whether defense counsel is adopting or withdrawing Saelua's pro se "Motion for Leave to Supplement his 3582(c)(2) U.S.S.G. Amendment 782 Motion, " which appears to have been submitted before Saelua knew this court had appointed counsel for him. The stay will allow the court to consider anticipated appellate guidance relating to Saelua's separate motion for relief under 28 U.S.C. § 2255. The resolution of the separate § 2255 motion is likely to affect Saelua's Amendment 782 motion.

         Third, Saelua does not explain why the transcripts, which would have to be prepared by a court reporter at court expense, are relevant to his Amendment 782 motion. Saelua says that what was said at the sentencing hearing may indicate whether the sentencing guidelines influenced the sentence. The court understands that Saelua may be relying on the Ninth Circuit's en banc decision in United States v. Davis, 825 F.3d 1014 (9th Cir. 2016), which held that a defendant who entered into a binding plea agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure would be eligible for relief under a guideline amendment if the sentencing court's decision to accept the plea agreement was based on the guidelines that were subsequently amended. However, Saelua's reliance on Davis ignores Saelua's career offender status which, unless changed by the resolution of his separate § 2255 motion, renders him ineligible for relief under Amendment 782. That is, no matter what the sentencing transcript may show, Amendment 782 appears not to apply to Saelua. The Government has agreed that a career offender is ineligible as a matter of law for relief under Amendment 782. The Government nevertheless has opted not to object to the granting of relief under Amendment 782 because former Attorney General Eric Holder advised United States Attorneys to be sparing in seeking the imposition of mandatory minimum sentences or enhancements to such sentences. The Holder memorandum does not go to any guideline application in Saelua's case. This court has already indicated that, even with the lack of objection by the Government, the court is not inclined to reduce Saelua's sentence under Amendment 782 if Saelua remains a career offender.

         This is not because the court has any desire to keep Saelua incarcerated beyond the period that would apply if his sentence were lowered as requested. Rather, the court's concern is that such a reduced sentence would violate an applicable statute, and that imposition of an illegal sentence in this case, even though not objected to by any party, would be hard to square with the court's rejection of illegal sentences in other cases. The court does not express this concern lightly. The court realizes that the parties may wonder why this court does not simply close its eyes to the illegality and achieve what the parties might perceive as "rough justice" by granting Saelua's Amendment 782 motion. At the risk of appearing hidebound, this court cannot adjust its thinking to do that in this case. The court nevertheless has clearly in mind that five previous years of Saelua's life hang in the balance. The court also knows that there is true benefit in recognizing and respecting the parties' views. That is precisely why this court has done its best to see whether the unobjected-to reduction might be achieved within the law, and the court invites the attorneys in this case to explore that possibility further. In that spirit, this court, at the status conference on September 26, 2016, outlined for the parties the court's lack of objection to a clemency petition seeking a five-year reduction in Saelua's sentence, but the parties may be able to propose something better.[1]

         In earlier proceedings, this court pointed to 18 U.S.C. § 3582(c)(2), which states that, when a guideline has been amended, the court may reduce a sentence "after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Reducing Saelua's sentence under Amendment 782 would violate 18 U.S.C. § 3582(c)(2) because it would be inconsistent with the policy statement in § 1B.1.10(b)(2)(A) of the Sentencing Guidelines. Section 1B1.10(b)(2)(A) of the Sentencing Guidelines states:

Except as provided in subdivision (B) [addressing situations in which a defendant's sentence is reduced based on the defendant's substantial assistance to the Government], the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1) of this subsection.

         Saelua's guideline range under U.S.S.G. § 1B1.10(b)(1) would not be reduced at all because of his career offender status. That calculation was reviewed in detail in this court's minute order of July 5, 2016.

         In summary, Saelua does not show how the sentencing transcript will relate to relief under Amendment 782. His entitlement to relief will instead turn on whether his career offender status is rescinded by the granting of his § 2255 motion. If Saelua's attorney concludes that the sentencing transcript is needed to address the § 2255 motion, it is possible that Saelua's attorney will request the transcript, but the transcript does not appear relevant to the Amendment 782 motion standing on its own.

         Given the pro se nature of Saelua's latest filing, this court directs the Clerk of Court to serve this order not only on the attorneys, but also on Saelua himself. At this point, Saelua should stop submitting documents to this court ...


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