United States v. Jose Lizarraras-Chacon

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30001

Plaintiff-Appellee,

D.C. No.

v. 3:11-cr-00517-HZ-1

JOSE LIZARRARAS-CHACON,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Oregon

Marco A. Hernandez, Chief District Judge, Presiding

Argued and Submitted April 16, 2021

Seattle, Washington

Filed September 23, 2021

Before: Michael Daly Hawkins and M. Margaret

McKeown, Circuit Judges, and Dean D. Pregerson, *

District Judge.

Opinion by Judge Pregerson

*

The Honorable Dean D. Pregerson, United States District Judge

for the Central District of California, sitting by designation.

2 UNITED STATES V. LIZARRARAS-CHACON

SUMMARY **

Criminal Law

Reversing the district court’s denial of a motion for

reduction of sentence under 18 U.S.C. § 3582(c)(2) and

remanding, the panel held that legislative and judicial

developments affecting mandatory statutory minimums are

relevant considerations to the 18 U.S.C. § 3553(a) factors at

step two of a § 3582(c)(2) motion.

The parties agreed that Sentencing Guidelines

Amendment 782 retroactively reduced the defendant’s

guideline range, making him eligible for a reduction under

§ 3582(c)(2). And the Government did not dispute that the

defendant accurately presented the intervening

developments affecting the mandatory minimum: (1) this

court’s decision in United States v. Valencia-Mendoza, 912

F.3d 1215 (9th Cir. 2019), which established that the

defendant was never lawfully subject to a 20-year mandatory

minimum because his 2010 prior conviction was not an

offense “punishable by imprisonment for more than a year”;

and (2) the First Step Act of 2018’s prospective reduction of

the mandatory minimum from 20 to 15 years, and its

replacing “felony drug offense” with “serious drug felony”

as the predicate-offense requirement for triggering the

mandatory minimum.

Because the district court appears to have erroneously

concluded that it could not consider intervening

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. LIZARRARAS-CHACON 3

developments affecting the mandatory minimum in its

§ 3553(a) factor analysis, the panel concluded that the

district court abused its discretion. The panel remanded for

the district court to consider the fullest information possible,

including the intervening changes in the law raised by the

defendant, to ensure that the sentence is sufficient but not

greater than necessary.

COUNSEL

Elizabeth G. Daily (argued), Assistant Federal Public

Defender, Portland, Oregon, for Defendant-Appellant.

Amy E. Potter (argued), Criminal Appellate Chief, United

States Attorney’s Office, Eugene, Oregon; for Plaintiff-

Appellee.

OPINION

PREGERSON, District Judge:

The sole issue in this appeal is whether legislative and

judicial developments affecting mandatory statutory

minimums are relevant considerations to the 18 U.S.C.

§ 3553(a) factors at step two of a motion for reduction of

sentence under 18 U.S.C. § 3582(c)(2). We hold that they

are. Because the district court in this case appears to have

believed that such developments did not fit within the

§ 3553(a) factors, and as such, that it did not have discretion

to consider such developments, we reverse and remand.

4 UNITED STATES V. LIZARRARAS-CHACON

FACTUAL BACKGROUND & PROCEDURAL HISTORY

A. Plea Agreement and Sentencing

On November 29, 2011, Jose Lizarraras-Chacon

(“Defendant”) was arrested and later charged by superseding

indictment with conspiracy to possess with intent to

distribute 1,000 grams or more of heroin in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i) (Count 1) and

possession with intent to distribute 100 grams or more of

heroin, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B)(i) (Count 2). On October 24, 2012, the United

States (“Government”) filed an Information to Establish

Prior Conviction under 21 U.S.C. § 851 to increase the

mandatory minimum sentence based on Defendant’s 2010

drug conviction in Clackamas County, Oregon for which

Defendant was sentenced to 90 days in jail and 36 months of

supervised probation. The Information charged that, as a

result of the 2010 drug conviction, Defendant was subject to

a mandatory minimum of 20 years under 21 U.S.C.

§ 841(b)(1)(A).

On the day of trial, Defendant and the Government

entered into a binding plea agreement under Rule

11(c)(1)(C) of the Federal Rules of Criminal Procedure.

Under the terms of the plea agreement, the parties agreed

that Defendant would plead guilty to Counts 1 and 2, that the

base offense level was 34, under the then-existing Drug

Quantity Table for conduct involving between three and ten

kilograms of heroin and that various guideline enhancements

and reductions applied. The parties agreed to jointly

UNITED STATES V. LIZARRARAS-CHACON 5

recommend a total sentence of 210 months of incarceration

followed by five years of supervised release. 1

On April 8, 2013, the district court adopted the parties’

Guidelines calculations and found that Defendant’s total

Offense Level was 35, at Criminal History Category III. The

Offense Level included enhancements for possession of a

firearm, aggravating role as a leader, and using children in

the offense. The resulting applicable guideline range at the

time was 210–262 months. Because the district court

accepted the parties’ Rule 11(c)(1)(C) plea agreement, the

recommended sentence was binding upon the court.

Accordingly, the district court sentenced Defendant to

210 months’ imprisonment, followed by five years of

supervised release.

B. First Motion for Reduction of Sentence

On April 21, 2016, Defendant filed a pro se Motion to

Reduce Sentence under 18 U.S.C. § 3582(c) based on

Sentencing Guidelines Amendment 782, which reduced

most base offense levels in the U.S.S.G. § 2D1.1 Drug

Quantity Table by two levels. The district court

subsequently appointed counsel to represent Defendant.

Defendant and the Government filed a joint response to the

motion in which the parties agreed that Amendment 782

retroactively reduced Defendant’s guideline range, making

Defendant eligible for a sentence reduction to 169 months.

The Government opposed a reduction, however, as a matter

of discretion based on the factors set forth in 18 U.S.C.

§ 3553(a) (“§ 3553(a)”).

1

Although the sentence imposed was below the mandatory

minimum, that was for reasons not at issue in this appeal.

6 UNITED STATES V. LIZARRARAS-CHACON

On June 2, 2017, the district court denied Defendant’s

motion. The court noted that “Defendant’s 210-month

sentence was the benefit of the bargain that he struck with

[the Government] on the first day of trial to avoid the 240-

month mandatory minimum that he was facing” and that

“Defendant wanted a sentence that was less than the twenty-

year minimum.” After evaluating the § 3553(a) factors, the

court concluded that Defendant’s sentence should not be

modified. Defendant did not appeal.

C. Second Motion for Reduction of Sentence

On May 17, 2019, Defendant filed a second Motion for

Reduction of Sentence based on Amendment 782. The

district court again appointed counsel. Defendant argued

that three intervening legal and judicial developments

demonstrated that the 210-month sentence imposed was now

greater than necessary to serve the purposes of sentencing

and were relevant to the § 3553(a) factors. Specifically,

Defendant argued that (1) the Ninth Circuit’s decision in

United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir.

2019), established that Defendant was never lawfully subject

to a 20-year mandatory minimum because his 2010 prior

conviction was not a “felony drug offense”; and (2) the First

Step Act of 2018 abolished the 20-year mandatory minimum

and replaced it with a 15-year minimum triggered by “more

serious prior convictions, which would be inapplicable” to

Defendant. Defendant also argued that evidence of his post-

offense rehabilitation supported a sentence reduction.

On January 13, 2020, the district court denied

Defendant’s motion. The district court concluded that

Defendant was eligible for a sentence reduction. However,

the district court rejected Defendant’s arguments that the

developments in the law should be considered in the court’s

§ 3553(a) analysis. The district court explained:

UNITED STATES V. LIZARRARAS-CHACON 7

[t]o the extent that [Defendant] may be

arguing that changes to the relevant

mandatory minimum under United States v.

Valencia Mendoza . . . and the First Step Act

of 2018 somehow change the [c]ourt’s

analysis of the § 3553(a) factors, the court

does not agree. [Defendant] does not explain

how changes to a mandatory minimum might

fit within the § 3553(a) framework.

The district court noted the § 3553(a) factor that

appeared to be most relevant to Defendant’s arguments,

§ 3553(a)(4)(A), did “not appear to contemplate changes to

a mandatory minimum by act of Congress or ruling from the

courts.” In a parenthetical, the district court then quoted

Hughes v. United States, 138 S. Ct. 1765 (2018), for the

apparent proposition that it would have imposed the same

sentence, even if defendant had been subject to a lower

range.

JURISDICTION AND STANDARD OF REVIEW

This Court has jurisdiction pursuant to 18 U.S.C.

§ 3742(a)(1)–(2) and 28 U.S.C. § 1291. We review

discretionary denials of 18 U.S.C. § 3582(c)(2) motions “for

abuse of discretion, which occurs if the district court does

not apply the correct law or predicates its decision on a

clearly erroneous factual finding.” United States v. Trujillo,

713 F.3d 1003, 1008 n.3 (9th Cir. 2013). The court reviews

the district court’s exercise of sentence reduction authority

based on the § 3553(a) factors for reasonableness. United

States v. Dunn, 728 F.3d 1151, 1158 (9th Cir. 2013).

8 UNITED STATES V. LIZARRARAS-CHACON

DISCUSSION

The parties agree that Defendant’s motion for reduction

of sentence under § 3582(c)(2) is analyzed under the two-

step approach set forth in Dillon v. United States and further

agree that only step two of the analysis is at issue. 560 U.S.

817, 827 (2010). At step two, a court must “consider any

applicable § 3553(a) factors and determine whether, in its

discretion, the reduction authorized by reference to the

policies relevant at step one is warranted in whole or in part

under the particular circumstances of the case.” 2 Id.

I. Intervening Developments Affecting a Mandatory

Minimum are Relevant to a § 3553(a) Factor Analysis

A. The Intervening Developments at Issue

The Government does not dispute that Defendant

accurately presented the intervening developments affecting

the mandatory minimum to the district court. Briefly, the

first intervening development is this Court’s decision in

Valencia-Mendoza. At the time of sentencing, Defendant

was subject to the then-existing 20-year statutory mandatory

minimum as a result of a 2010 prior drug conviction because,

based on existing precedent, the state statutory maximum

exceeded one year, thereby qualifying the 2010 conviction

2

The Government’s initial position in this appeal was that under

United States v. Kelley, 962 F.3d 470 (9th Cir. 2020), a district court

could not consider the intervening changes in a § 3553(a) factor analysis.

In a subsequent Rule 28(j) letter, the Government recognized that the

§ 3553(a) factors “may capture other changes in the law, for example,

changes in the mandatory minimum sentences prescribed for the

defendant’s crime of conviction and defendant’s current eligibility for

it.” We take the opportunity to reinforce the two-step approach set forth

in Dillon.

UNITED STATES V. LIZARRARAS-CHACON 9

as an offense “punishable by imprisonment for more than

one year.” See 21 U.S.C. § 802(44). In 2019, in Valencia-

Mendoza, we overruled that precedent. See 912 F.3d at 1224

(holding that where an offense as “actually prosecuted and

adjudicated—was punishable under [state] law by no more

than six months in prison,” the offense is not “punishable by

more than one year”) (overruling United States v. Rios-

Beltran, 361 F.3d 1204 (9th Cir. 2004)); United States v.

Murillo, 422 F.3d 1152 (9th Cir. 2005); United States v.

Crawford, 520 F.3d 1072 (9th Cir. 2008)). We held that a

sentencing court must also consider state sentencing factors.

Id. at 1222. In Defendant’s case, as is undisputed by the

Government, under state sentencing guidelines, Defendant’s

conviction could not result in a sentence of more than

180 days in jail. Therefore, under Valencia-Mendoza, if

sentenced today, Defendant’s 2010 conviction would not

trigger the 20-year mandatory minimum.

The second intervening development is Congress’s

amendment to the mandatory minimum in the First Step Act

in 2018. As relevant here, the First Step Act did two things:

(1) prospectively reduced the mandatory minimum to

15 years and (2) amended the requirement for a predicate

offense to trigger the mandatory minimum—now requiring

a “serious drug felony” instead of a “felony drug offense.”

21 U.S.C. § 841(b)(1)(A). A defendant sentenced after the

effective date of the First Step Act who is otherwise

identically situated to Defendant, with an identical prior

conviction, would face a mandatory minimum sentence of

only 10 years.

B. Section 3553(a) Factors in a Motion for Reduction of

Sentence under § 3582(c)(2)

As part of the Sentencing Reform Act, § 3582(c)(2)

furthers the Act’s purpose of “creat[ing] a comprehensive

10 UNITED STATES V. LIZARRARAS-CHACON

sentencing scheme in which those who commit crimes of

similar severity under similar conditions receive similar

sentences.” Hughes, 138 S. Ct. at 1776. Under § 3582(c)(2),

a “district court[] may adjust sentences imposed pursuant to

a range that the [Sentencing] Commission concludes is too

severe, out of step with the seriousness of the crime and the

sentencing ranges of analogous offenses, and inconsistent

with the Act’s purposes.” Id. (citations and alteration

omitted). To that end, after determining that a defendant is

eligible for a sentence reduction, § 3582(c)(2) requires a

district court to consider “Section 3553(a) [factors] to the

extent that they are applicable.” 18 U.S.C. § 3582(c)(2).

Section 3553(a)’s “overarching statutory charge for a district

court is to ‘impose a sentence sufficient, but not greater than

necessary’ to reflect the seriousness of the offense, promote

respect for the law, and provide just punishment; to afford

adequate deterrence; [and] to protect the public.” United

States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc)

(quoting § 3553(a) and (a)(2)).

Section 3553(a) enumerates several factors that a court

“shall consider”:

(1) the nature and circumstances of the

offense and the history and characteristics of

the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the

offense, to promote respect for the law,

and to provide just punishment for the

offense;

UNITED STATES V. LIZARRARAS-CHACON 11

(B) to afford adequate deterrence to

criminal conduct;

(C) to protect the public from further

crimes of the defendant; and

(D) to provide the defendant with needed

educational or vocational training,

medical care, or other correctional

treatment in the most effective manner;

(3) the kinds of sentences available;

...

(6) the need to avoid unwarranted sentence

disparities among defendants with similar

records who have been found guilty of

similar conduct; and

(7) the need to provide restitution to any

victims of the offense.

§ 3553(a)(1)–(7). We have explained that “[a]n analysis

under § 3553(a) involves considering the totality of the

circumstances, but ‘[t]he district court need not tick off each

of the § 3553(a) factors to show that it has considered

them.’” Dunn, 728 F.3d at 1159 (second alteration in

original) (quoting Carty, 520 F.3d at 992).

We have also emphasized that “a court’s discretionary

decision under the § 3553(a) factors, at step two [of the

§ 3582(c)(2) inquiry], exceeds the limited scope of a

resentencing ‘adjustment’ applicable to step one.” Dunn,

728 F.3d at 1158 (emphasis added). Therefore, although at

12 UNITED STATES V. LIZARRARAS-CHACON

step one of the inquiry, a district court will “substitute only

the amendments listed . . . for the corresponding guideline

provisions that were applied when the defendant was

sentenced and shall leave all other guideline application

decisions unaffected,” at step two, there are no similar

limitations on what a district court may consider. Dillon,

560 U.S. at 827 (citation omitted).

C. Intervening Developments Are Relevant to the § 3553(a)

Factors

In Pepper, the Supreme Court explained that an

underlying principle in federal judicial tradition is that “the

punishment should fit the offender and not merely the

crime.” Pepper v. United States, 562 U.S. 476, 487–88

(2011) (citation omitted). In seeking to ensure that the

“punishment fit the offender,” the Supreme Court explained

that judges should use “the fullest information possible

concerning the defendant’s life and characteristics.” Id.

at 488 (citation omitted). In a § 3553(a) factor analysis, such

information should include, where applicable, post-

sentencing and post-offense rehabilitation. Id. at 480, 488

(holding that the court of appeals’ ruling prohibiting the

district court from considering evidence of a defendant’s

rehabilitation since the initial sentencing “conflict[ed] with

longstanding principles of federal sentencing law and

Congress’ express directives in [18 U.S.C.] §§ 3661 and

3553(a).”). It follows that in a § 3553(a) factor analysis, a

district court must similarly use the fullest information

possible concerning subsequent developments in the law,

such as changes in sentencing guidelines, legislative changes

to a mandatory minimum, and changes to a triggering

predicate offense to ensure the punishment will “fit the

crime” and critically, to ensure that the sentence imposed is

also “‘sufficient, but not greater than necessary’ to reflect the

UNITED STATES V. LIZARRARAS-CHACON 13

seriousness of the offense, promote respect for the law, and

provide just punishment; to afford adequate deterrence;

[and] to protect the public.” Carty, 520 F.3d at 991 (quoting

§ 3553(a) and (a)(2)).

Subsequent developments affecting a mandatory

minimum are relevant, for example, to the “nature and

circumstances of the offense,” the “seriousness of the

offense,” the needs “to provide just punishment for the

offense,” and “to afford adequate deterrence to criminal

conduct.” § 3553(a)(1), (2)(A)–(B). The “seriousness of the

offense,” is broad and logically includes any subsequent

reevaluation of sentencing issues reflected in legislation.

Subsequent legislation, such as the reduction of the

mandatory minimum in the First Step Act, is a legislative

reassessment of the relative seriousness of the offense.

Legislative changes or guideline changes do not happen in a

vacuum. They represent a societal judgment that it is

necessary, from time to time, to reconsider and adjust what

is an appropriate sentence consistent with the goals of the

criminal justice system. Congress’s legislative action

through the First Step Act, reducing the mandatory

minimum and requiring a higher-level predicate offense

reflects a decision that prior sentences were greater than

necessary. 3 Similarly, a development in the law, such as our

3

See, e.g., United States v. Shaw, 957 F.3d 734, 742 (7th Cir. 2020)

(discussing § 3553(a) factors in a motion for sentence reduction under

the First Step Act and stating that a “statutory minimum and maximum

often anchor a court’s choice of a suitable sentence” and “today’s

Guidelines may reflect updated views about the seriousness of a

defendant’s offense or criminal history”); cf. United States v. Taylor,

648 F.3d 417, 427 (6th Cir. 2011) (stating that “amendments to the

Guidelines are relevant to the § 3553(a) factors,” and “the Sentencing

Commission’s view of the defendant’s offense conduct, revealed in the

Commission’s actions to revise the Guidelines, is highly relevant to the

14 UNITED STATES V. LIZARRARAS-CHACON

holding in Valencia-Mendoza, is also relevant to assessing

the “history and characteristics of the defendant.”

§ 3553(a)(1). At the time of sentencing, Defendant’s 2010

prior conviction was deemed a “felony drug offense.” Now,

under our holding in Valencia-Mendoza, the 2010 prior

conviction would not qualify as a “felony drug offense.”

Our holding today is consistent with the mandate that a

district court consider the “totality of the circumstances.”

Dunn, 728 F.3d at 1159.

II. The District Court’s Order

The Government argues, alternatively, that the district

court did consider the intervening changes to the mandatory

minimum and concluded that none of the developments

caused it to reconsider its original § 3553(a) factor analysis.

According to Defendant, the only fair reading of the district

court’s order is that the district court misunderstood the

breadth of Dillon’s second step and erroneously believed

that the restrictions at step one required it to apply a

circumscribed, guideline-based § 3553(a) analysis.

The district court’s order is, at best, ambiguous.

Defendant raised a “specific, nonfrivolous argument

tethered to a relevant § 3553(a) factor,” and as such, the

district court was required to consider Defendant’s

arguments within the § 3553(a) framework. 4 See Trujillo,

district court’s assessment of the nature and circumstances of the offense,

§ 3553(a)(1), and the seriousness of the offense, § 3553(a)(2)(A).”

(internal quotation marks omitted)).

4

To be clear, the district court could have considered the

developments affecting the mandatory minimum and nonetheless

concluded that a reduction in Defendant’s sentence was not warranted

UNITED STATES V. LIZARRARAS-CHACON 15

713 F.3d at 1009 (citation omitted). It is not clear from the

record that the district court recognized that it had the

discretion to consider relevant developments in the law in a

§ 3553(a) factor analysis. The district court stated that

Defendant did not explain “how changes to a mandatory

minimum might fit within the § 3553(a) framework.” The

statement indicates that the district court misapprehended

the breadth of the § 3553(a) factors. The district court’s

subsequent parenthetical to Hughes is insufficient to

overcome the erroneous statement and instead creates an

ambiguity. Because the record is not clear, remand is

necessary.

CONCLUSION

Because the district court appears to have erroneously

concluded that it could not consider intervening

developments affecting the mandatory minimum in its

§ 3553(a) factor analysis, we conclude that the district court

abused its discretion. On remand, the district court shall

consider the fullest information possible, including the

intervening changes in the law raised by Defendant, to

ensure that the sentence is sufficient but not greater than

necessary.

REVERSED AND REMANDED.

based on the totality of the circumstances and after considering all of the

relevant § 3553(a) factors.