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United States v. Brito

United States Court of Appeals, Ninth Circuit

August 22, 2017

United States of America, Plaintiff-Appellee,
v.
Gilbert Brito, Defendant-Appellant.

          Argued and Submitted November 7, 2016 Portland, Oregon

         Appeal from the United States District Court for the District of Oregon D.C. No. 3:12-cr-00328-MO-1 Michael W. Mosman, Chief District Judge, Presiding

          Stephen R. Sady (argued), Chief Deputy Federal Public Defender; Elizabeth G. Daily, Research & Writing Attorney; Office of the Federal Public Defender, Portland, Oregon; for Defendants-Appellants.

          Jeffrey S. Sweet (argued), Assistant United States Attorney; Kelly A. Zusman, Appellate Chief; Billy J. Williams, United States Attorney; United States Attorney's Office, Eugene, Oregon; for Plaintiff-Appellee.

          Before: M. Margaret McKeown, William A. Fletcher, and Raymond C. Fisher, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel vacated the district court's order on the defendant's motion under 18 U.S.C. § 3582(c)(2) seeking a sentence reduction based on retroactive Sentencing Guidelines Amendment 782 concerning drug offenses, and remanded for further proceedings.

         In determining the term of imprisonment at his original sentencing, the district court credited the defendant with four months for time he had served in state custody. In his motion for reduction of sentence, the defendant sought a similar four-month credit. Reducing the defendant's sentence from 76 to 70 months, the district court believed that it was precluded from granting the requested credit by U.S.S.G. § 1B1.10(b)(2)(A), which provides that a court may not reduce a "term of imprisonment" to a "term that is less than the minimum of the amended guideline range."

         The panel held that "term of imprisonment, " as used in § 3582(c)(2) and § 1B1.10(b)(2)(A), can include time spent in state custody, and that if the district court at the original sentencing gave credit for time spent in state custody in determining the defendant's sentence, the "term of imprisonment" on the motion for sentence reduction can include the time spent in both federal and state custody. The panel concluded that the district court in its discretion may give the defendant credit for the four months he served in state custody, thereby reducing his sentence to 66 months in federal custody.

         Dissenting, Judge McKeown wrote that the majority endeavors to skirt the Guidelines' affirmative prohibition against reducing the "term of imprisonment" below the lower end of the amended guideline range by stretching the decision in United States v. Drake, 49 F.3d 1438 (9th Cir. 1995), from a context where it makes sense to one where it does not.

          OPINION

          W. FLETCHER, Circuit Judge

         In April 2015, Gilbert Brito filed a motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence for possession of heroin with intent to distribute. Section 3582(c)(2) authorizes a reduction of a defendant's "term of imprisonment" if the U.S. Sentencing Commission has lowered the applicable guideline range pursuant to 28 U.S.C. § 994(o). In November 2014, the Sentencing Commission had reduced by two most of the offense levels on the Drug Quantity Tables. The effect of the change was to reduce the sentencing guideline range for many drug offenses. Brito's original guideline range was reduced from 84 to 105 months to a new range of 70 to 87 months. Brito had originally been sentenced to 76 months in federal custody. Brito sought a reduction of his sentence in federal prison to 66 months.

         At Brito's original sentencing, in determining his term of imprisonment, the district court had credited Brito with four months for time he had served in state custody. In his motion for reduction of sentence, Brito sought a similar four-month credit. The district court believed that it was precluded from granting the requested credit by U.S.S.G. § 1B1.10(b)(2)(A), which provides in relevant part that a court may not reduce a "term of imprisonment" to a "term that is less than the minimum of the amended guideline range." The minimum of Brito's amended guideline range was 70 months. A four-month credit would have reduced the sentence to 66 months in federal custody. The district court did not believe it had the authority to treat Brito's four months in state custody as part of his "term of imprisonment." It therefore reduced Brito's sentence to 70 months in federal custody.

         For the reasons that follow, we conclude that "term of imprisonment, " as used in 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10(b)(2)(A), can include time spent in state custody. If the district court at the original sentencing gave credit for time spent in state custody in determining the defendant's sentence, the "term of imprisonment" on the motion for sentence reduction can include the time spent in both federal and state custody. In the case now before us, the district court in its discretion may give Brito credit for the four months he served in state custody, thereby reducing his sentence to 66 months in federal custody and resulting in a total "term of imprisonment" of 70 months. We vacate and remand.

         I. Background

         Brito was charged in federal court with possession of heroin with intent to distribute, felony possession of a firearm, and carrying a firearm in furtherance of a drug trafficking crime. Pursuant to a plea agreement, Brito pleaded guilty to a single count of possession of heroin with intent to distribute. The presentence report calculated the base offense level under the Drug Quantity Table as 26 and recommended adjustments resulting in a total offense level of 25. Based on his criminal history category of IV, Brito's advisory guidelines range was 84 to 105 months. Brito and the government agreed to recommend a sentence of 80 months imprisonment, which took into account a four-month downward variance based on Brito's guilty plea. Id.

         At sentencing in November 2012, Brito's attorney Thomas Hester asked for a further reduction, from 80 to 76 months, to take into account four months Brito had served in state custody after violating conditions of supervision under a prior Oregon conviction. The conduct constituting the state-court violation was the same conduct for which Brito was charged in federal court. Brito had begun serving his four months in state custody after his arrest on federal charges. By the time of his original federal sentencing, Brito had already completed his time in state custody.

         The district court accepted the request that Brito be given credit for his four months in state custody. Because Brito had already completed the time, the district court believed that it could not give him a concurrent sentence. See United States v. Turnipseed, 159 F.3d 383, 387 (9th Cir. 1998) ("If a defendant has been released from state prison after having served the term imposed, no term of imprisonment remains with which the federal sentence can 'run concurrently.'"); but see United States v. Setser, 132 S.Ct. 1463, 1468 (2012) ("Judges have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings, including state proceedings."). Instead, the district court gave him credit for time served, thereby achieving the same result. At sentencing, the district court asked Brito's attorney, "Now, just so I'm clear, you're not asking for concurrent time because the time has run, you're asking me to drop four months in order to account for the time that's run; is that right?" After receiving an affirmative answer, the court said, "Mr. Hester is asking that I do what's often done, which is take ...


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