United States v. Rodolfo Trujillo

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 11-50353

Plaintiff-Appellee,

D.C. No.

v. 2:92-cr-00256-

DDP-1

RODOLFO TRUJILLO , AKA El Negro,

AKA Alexander Quintana Ruiz,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted

January 8, 2013—Pasadena, California

Filed April 16, 2013

Before: William C. Canby, Jr., Stephen Reinhardt,

and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Canby

2 UNITED STATES V . TRUJILLO

SUMMARY*

Criminal Law

The panel vacated the district court’s order denying a

second motion pursuant to 18 U.S.C. § 3582(c)(2) for

reduction of a sentence imposed following the defendant’s

1993 conviction of conspiracy to possess and possessing with

intent to distribute cocaine.

The panel held that 18 U.S.C. § 3582 contains no

jurisdictional bar to the district court’s entertaining a second

motion under § 3582(c)(2), and that any non-jurisdictional

challenges to the second motion were waived by the

government when it failed to object.

The panel held that the district court erred in failing to

explain at all its rejection of the defendant’s arguments based

on the factors set forth in 18 U.S.C. § 3553(a).

The panel held that an upward departure permitted in an

application note to amended U.S.S.G. § 2D1.1 did not violate

the Ex Post Facto Clause.

COUNSEL

Wendy T. Wu (argued), Assistant United States Attorney,

Cyber & Intellectual Property Crimes Section; Robert E.

*

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 . TRUJILLO 3

Dugdale, Assistant United States Attorney, Chief, Criminal

Division, Los Angeles, California, for Plaintiff-Appellee.

Brianna J. Mircheff (argued), Deputy Federal Public

Defender, Los Angeles, California, for Defendant-Appellant.

OPINION

CANBY, Senior Circuit Judge:

Rodolfo Trujillo was convicted in 1993 of conspiracy to

possess and of possessing with intent to distribute 2,915

kilograms of cocaine. He was sentenced to 360 months

imprisonment. Subsequently, the Sentencing Commission

amended the Sentencing Guidelines to lower the offense level

applicable to Trujillo, with an application note indicating that

upward departures from the new level might be warranted in

cases involving an excessive quantity of drugs. U.S.S.G.

§ 2D1.1 & Application Note 17.1 The amendment was made

retroactive.2

1

Amendment 505, effective Nov. 1, 1994, lowered to 38 the maximum

offense level for trafficking in a quantity greater than 150 kilograms.

U.S.S.G. § 2D1.1(a)(2), (c)(1). Its Application Note 19, which stated that

an upward departure might be warranted on the basis of drug quantity, has

been renumbered multiple times and now appears in the 2012 Guideline

Manual as Application Note 26(B) to Guideline 2D1.1. In this opinion we

refer to it by the number used in the two district court decisions denying

Trujillo’s § 3582(c)(2) motions: Application Note 17.

2

Amendment 536, effective Nov. 1, 1995, made Amendment 505

retroactive. U.S.S.G. § 1B1.10(a), (c).

4 UNITED STATES V . TRUJILLO

Trujillo subsequently moved under 18 U.S.C.

§ 3582(c)(2) for a reduction of his sentence. The district

court denied the reduction, invoking the application note that

permitted an upward departure because of the excessive

quantity of drugs involved. Thirteen years later, Trujillo filed

a second § 3582(c)(2) motion for a reduction of his sentence,

arguing in part that favorable treatment was justified by

various factors under 18 U.S.C. § 3553(a), including his

family ties, his lack of other criminal history, his post-

sentencing rehabilitation, and the need to avoid unwarranted

sentencing disparities. The district court entertained the

successive motion without objection from the government,

but denied relief principally on the ground that Trujillo’s role

in the offense and the amount of drugs involved justified an

upward departure. The district court did not discuss the

§ 3553(a) factors urged by Trujillo. Trujillo now appeals.

We address three principal issues: First, the government

contends that the district court lacked jurisdiction to entertain

a second motion under § 3582(c)(2). We conclude that

§ 3582 contains no such jurisdictional bar. Any non-

jurisdictional challenges to a second motion were waived by

the government when it failed to object.

Second, we conclude that the district court erred in failing

to explain at all its rejection of Trujillo’s arguments based on

the § 3553(a) sentencing factors. We accordingly vacate the

district court’s order and remand for further proceedings.

Third, we reject Trujillo’s contention that the upward

departure under the amended Guideline’s application note

violated the Ex Post Facto Clause.

UNITED STATES V . TRUJILLO 5

I.

On appeal, the government contends for the first time that

the district court lacked subject matter jurisdiction to consider

Trujillo’s second § 3582(c)(2) motion. See Ratanasen v.

State of Cal., Dep’t of Health Serv., 11 F.3d 1467, 1473 (9th

Cir. 1993) (jurisdictional questions are an exception to the

general rule that arguments not raised before district court are

waived on appeal). The government begins with the well-

established rule that a district court “may not modify a term

of imprisonment once it has been imposed.” 18 U.S.C.

§ 3582(c). In the absence of an exception to that rule, we

have held that the bar against modifications is jurisdictional.

See United States v. Aguilar-Reyes, 653 F.3d 1053, 1055 (9th

Cir. 2011). Section 3582(c)(2) provides such an exception,

but the government contends that Trujillo’s successive

motion did not meet that section’s requirements, thus leaving

the jurisdictional bar in place. Section 3582(c)(2) states:

[I]n the case of a defendant who has been

sentenced to a term of imprisonment based on

a sentencing range that has subsequently been

lowered by the Sentencing Commission

pursuant to 28 U.S.C. 994(o), upon motion of

the defendant . . . , the court may reduce the

term of imprisonment, 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.

18 U.S.C. § 3582(c)(2). The statute in terms clearly does not

prohibit a second motion. The government contends,

6 UNITED STATES V . TRUJILLO

however, that Trujillo’s second motion does not qualify for

§ 3582(c)(2)’s exception because he was serving the sentence

imposed by the district court in response to his first motion

under that section, and the Sentencing Commission did not

lower the Guideline “subsequently” to that sentence.

The government’s argument relies on a strained reading

of the statute, and a mischaracterization of the first motion

proceeding. The sentence that Trujillo is serving is the one

originally imposed upon him when he was convicted. That

sentence was not modified by the district court in response to

Trujillo’s first motion under § 3582(c)(2); the court simply

declined to “exercise its discretion to lower Trujillo’s

sentence below its current level.” To construe that ruling as

the occasion on which Trujillo was “sentenced to a term of

imprisonment” within the meaning of § 3582(c)(2) is neither

a reasonable interpretation of the statute nor a reasonable

description of what happened at the first motion hearing. See

Dillon v. United States, 130 S. Ct. 2683, 2691 (2010) (“[A]

district court proceeding under § 3582(c)(2) does not impose

a new sentence in the usual sense.”). Trujillo was, and is,

serving a sentence of imprisonment imposed upon him at the

time of his conviction, and the district court had jurisdiction

under § 3582(c)(2) to entertain his second motion because the

term of that sentence was “subsequently” lowered by the

Sentencing Commission.

Our conclusion that § 3582(c)(2) does not impose or

result in a jurisdictional bar to a second motion is buttressed

by the Supreme Court’s instruction that we construe statutory

limitations as non-jurisdictional in the absence of clear

directions from Congress. “If the Legislature clearly states

that a threshold limitation on a statute’s scope shall count as

jurisdictional, then courts and litigants will be duly instructed

UNITED STATES V . TRUJILLO 7

. . . . But when Congress does not rank a statutory limitation

on coverage as jurisdictional, courts should treat the

restriction as nonjurisdictional in character.” Arbaugh v.

Y&H Corp., 546 U.S. 500, 515–16 (2006) (internal citations

and footnote omitted). The label “jurisdictional” is properly

reserved for designating the types of cases and individuals

within a court’s reach. Kontrick v. Ryan, 540 U.S. 443, 455

(2004). It is ordinarily not the correct classification for

“claim-processing rules” such as temporal or, as here,

numerical limitations on motions addressed to the same

tribunal. See id. at 455–56; Joshi v. Ashcroft, 389 F.3d 732,

734–35 (7th Cir. 2004) (holding that a limitation on the

number of motions to reopen or reconsider does not create a

jurisdictional bar); cf. Socop-Gonzalez v. INS, 272 F.3d 1176,

1192–93 (9th Cir. 2001) (en banc) (holding that a 90-day

filing deadline for motions to reopen or reconsider did not

create a jurisdictional bar). “[T]he emergent distinction . . .

is between those [limits] that govern the transition from one

court (or other tribunal) to another, which are jurisdictional,

and other [limits], which are not.” Joshi, 389 F.3d at 734.

Our sister Circuits have divided on the question whether

a district court lacks jurisdiction to entertain a second

§ 3582(c)(2) motion. The Seventh and Fourth Circuits have

precluded second motions in terms suggesting a lack of

jurisdiction. United States v. Redd, 630 F.3d 649, 651 (7th

Cir. 2011); United States v. Goodwyn, 596 F.3d 233, 236 (4th

Cir. 2010); see also United States v. Randall, 666 F.3d 1238,

1242–43 & n.6 (10th Cir. 2011) (upholding denial of

untimely motion for reconsideration of order denying

§ 3582(c)(2) relief, but under abuse of discretion standard).

The Third Circuit, however, upheld a district court’s

entertainment of a second § 3582(c)(2) motion in a case

8 UNITED STATES V . TRUJILLO

closely parallel to ours. United States v. Weatherspoon,

696 F.3d 416 (3rd Cir. 2012), cert. denied, 133 S. Ct. 1301

(2013). In Weatherspoon, as here, the government failed to

object to a district court’s entertainment of a second

§ 3582(c)(2) motion and challenged it for the first time on

appeal as a jurisdictional defect. The Third Circuit referred

to the contrary circuit authority, and stated:

Though our sister circuits may be right that such

silence [of Congress in failing specifically to

authorize successive motions], when read in light

of the statute’s purpose of restricting a district

court’s authority to revisit a criminal sentence,

means that a defendant is only entitled to one bite

at the apple, it does not follow that this restriction

goes to the subject matter jurisdiction of the

district court. After all, a rule derived from

congressional silence does not support an

inference that Congress has “clearly stated” its

intent to limit a district court’s jurisdiction to one

§ 3582(c)(2) motion. See . . . Animal Sci. Prods.,

Inc., 654 F.3d [462,] 468 [3rd Cir. 2011]

(applying the Arbaugh “clearly states” test).

Id. at 421. We agree with this jurisdictional analysis and

reject any contrary views that may have been adopted in

whole or in part by other circuits.

Holding as we do that the district court had jurisdiction to

entertain Trujillo’s second motion under § 3582(c)(2), we

need not address the validity or applicability of non-

jurisdictional restrictions of such motions urged by the

government, including law of the case or waiver by Trujillo

in not appealing the denial of his first motion. Those non-

UNITED STATES V . TRUJILLO 9

jurisdictional challenges were waived by the government’s

failure to object in the district court. See Slaven v. Am.

Trading Transp. Co., 146 F.3d 1066, 1069 (9th Cir. 1998).

II.

We proceed to the merits of Trujillo’s appeal.3 In

Trujillo’s second § 3582(c)(2) motion, he asked for a

sentence reduction based on United States v. Booker,

543 U.S. 220 (2005), Amendments 505 and 536 to the U.S.

Sentencing Guidelines (the basis of his first § 3582(c)(2)

motion), and the § 3553(a) factors. The district court

correctly noted that Booker did not lower the Sentencing

Guidelines, but rather made them advisory; it was also a

decision of the Supreme Court and not, as § 3582(c)(2)

requires, a reduction enacted by the Sentencing Commission.

See Dillon v. United States, 130 S. Ct. 2683, 2693 (2010).

The court then explained that it would not effectively reverse

the previous district court’s denial of Trujillo’s § 3582(c)(2)

motion based on Amendments 505 and 536. The court cited

Application Note 17 to U.S.S.G. § 2D1.1, which allowed for

an upward departure based on drug quantity in extraordinary

cases. The court explained:

Defendant’s conviction involved more than

2,800 kilograms of cocaine, an amount well

above ten times the 150 kilogram minimum in

3

W e have jurisdiction under 28 U.S.C. § 1291 to review the

discretionary denial of a § 3582(c)(2) sentence reduction motion. United

States v. Colson, 573 F.3d 915, 916 (9th Cir. 2009). W e review 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. Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009). W e review

de novo any underlying questions of law. Id.

10 UNITED STATES V . TRUJILLO

Amendment 505’s amended drug quantity

table . . . . In addition, Defendant was one of

the masterminds behind the . . . distribution of

the cocain[e] at issue. In light of these facts,

the court has consider[ed] Defendant’s

sentence under the new guidelines pursuant to

Amendment 505 and concludes that here—

where more than 10 times the maximum drug

quantity established by offense level 38 was

in Defendant’s possession—an upward

departure is warranted. Accordingly, the

court declines to . . . resentence Defendant.

The order did not discuss any of the § 3553(a) factors that

Trujillo argued in support of a lower sentence. Trujillo’s

presentation about the § 3553(a) factors comprised eight

pages of argument and an additional 39 pages of addenda

consisting of health records and certificates of achievement

from inmate programs. Congress enacted 18 U.S.C.

§ 3553(a) in order to ensure that judges impose sentences

“sufficient, but not greater than necessary, to comply with the

purposes” of imprisonment, such as deterrence, punishment,

and public safety. 18 U.S.C. § 3553(a), (a)(2); see Pepper v.

United States, 131 S. Ct. 1229, 1242 (2011). The factors

include: the nature and circumstances of the offense and the

history and characteristics of the defendant; the purposes of

sentencing; the kinds of sentences available; the sentences

and ranges established by the Sentencing Guidelines; relevant

policy statements issued by the Sentencing Commission; the

need to avoid unwarranted sentencing disparities among

similarly situated defendants; and the need to provide

restitution to victims. 18 U.S.C. § 3553(a). Accordingly, the

Supreme Court has consistently instructed that “the

punishment should fit the offender and not merely the crime,”

UNITED STATES V . TRUJILLO 11

and thus judges should use “the fullest information possible

concerning the defendant’s life and characteristics” to

determine the appropriate sentence. Pepper, 131 S. Ct. at

1235, 1240 (quoting Williams v. New York, 337 U.S. 241,

246–47 (1949)); Gall v. United States, 552 U.S. 38, 49–50

(2007) (“[A]fter giving both parties an opportunity to argue

for whatever sentence they deem appropriate, the district

judge should then consider all of the § 3553(a) factors to

determine whether they support the sentence requested by a

party.”); accord United States v. Ringgold, 571 F.3d 948, 950

(9th Cir. 2009).

A district court is required to “consider” the § 3553(a)

factors both in the initial imposition of a sentence and in any

subsequent reduction of a sentence after the modification of

a guidelines range by the Sentencing Commission. See

18 U.S.C. § 3582(a) (upon imposition of term of

imprisonment, sentencing court “shall consider the factors set

forth in section 3553(a) to the extent that they are

applicable”); 18 U.S.C. § 3582(c)(2) (court “may reduce the

term of imprisonment, after considering the factors set forth

in section 3553(a) to the extent they are applicable”). The

district court’s duty to consider the § 3553(a) factors

necessarily entails a duty to provide a sufficient explanation

of the sentencing decision to permit meaningful appellate

review. United States v. Carty, 520 F.3d 984, 992 (9th Cir.

2008) (en banc). We have held that there is no mechanical

requirement that a sentencing court discuss every factor; even

where a judge never mentions “§ 3553(a),” it may be clear

from the court’s experience and consideration of the record

that the factors were properly taken into account. Id. at

995–96; see Rita v. United States, 551 U.S. 338, 356–57

(2007) (“[W]hen a judge decides simply to apply the

12 UNITED STATES V . TRUJILLO

Guidelines to a particular case, doing so will not necessarily

require lengthy explanation.”).

The Supreme Court has instructed, however, that

“[w]here the defendant or prosecutor presents nonfrivolous

reasons for imposing a different sentence . . . the judge will

normally go further and explain why he has rejected those

arguments. Sometimes the circumstances will call for a brief

explanation; sometimes they will call for a lengthier

explanation.” Rita, 551 U.S. at 357. Our en banc court, too,

has made clear that “when a party raises a specific,

nonfrivolous argument tethered to a relevant § 3553(a) factor

. . . then the judge should normally explain why he accepts or

rejects the party’s position.” Carty, 520 F.3d at 992–93; see

United States v. Stoterau, 524 F.3d 988, 999 (9th Cir. 2008).

Here, Trujillo presented fairly extensive arguments and

evidence concerning the “characteristics of the defendant,”

pursuant to 18 U.S.C. § 3553(a)(1): in addition to citing his

lack of a prior criminal record, he presented evidence of: his

educational history including graduation from technical

school as a mechanical electrician; the support of his siblings

and two children; his considerable involvement in

constructive prison activities; his post-sentencing

rehabilitation; and his failing health. He also argued that the

judge should consider unwarranted sentencing disparities

pursuant to § 3553(a)(6). Trujillo cited United States v.

Zakharov, 468 F.3d 1171 (9th Cir. 2006), a case in which a

defendant convicted of possession and conspiracy to possess

with intent to distribute 9,200 kilograms of cocaine was

sentenced to 240 months imprisonment with five years

supervised release—notably, after both the enactment of the

Guidelines amendment that lowered the maximum offense

level for drug distribution to 38 and the application note that

permitted judges to depart upward if the amount distributed

UNITED STATES V . TRUJILLO 13

was greater than ten times the maximum amount listed for

that offense level (150 kilograms of cocaine). Id. at 1175.

Trujillo also cited United States v. Perlaza, 439 F.3d 1149,

1155, 1158 (9th Cir. 2006) where nine defendants were all

sentenced to 200 months or below for smuggling about 2000

kilograms of cocaine.4 (Trujillo’s sentence was 360 months

for 2,915 kilograms).

In Pepper and Gall, the Supreme Court made clear that

postsentencing or post-offense rehabilitation—particularly in

light of its tendency to reveal a defendant’s likelihood of

future criminal conduct—was a critical factor to consider in

the imposition of a sentence. See Pepper, 131 S. Ct. at

1242–43 (citing 18 U.S.C. § 3553(a)(2)(B)–(C)); Gall,

552 U.S. at 59 (same). In Kimbrough v. United States,

552 U.S. 85, 91 (2007), the Court also emphasized that

unwarranted disparities between offenders—and the concern

that such disparities would result in imposing sentences

“greater than necessary” to achieve the objectives of

sentencing—was an important factor for district courts to

consider.

Regardless of the ultimate force of Trujillo’s arguments,

they are not frivolous. The district court did not address any

of them, even to dismiss them in shorthand. This total

omission goes against the explicit policy considerations in

Rita, where the Supreme Court explained that while a district

judge need not enumerate every factor supporting a particular

sentence, “[A] statement of reasons is important. The

sentencing judge should set forth enough to satisfy the

4

The convictions of all but one of the defendants in Perlaza were

reversed on jurisdictional grounds unrelated to the length of their

sentences.

14 UNITED STATES V . TRUJILLO

appellate court that he has considered the parties’ arguments

and has a reasoned basis for exercising his own legal

decisionmaking authority.” 551 U.S. at 356.

The government asserts that the district court’s

explanation was adequate because its order began, “Having

reviewed the papers submitted to the court . . . ,” thereby

suggesting that the record had been adequately and

thoroughly considered. We find this argument unpersuasive.

First, the Rita instruction is concerned with explanation, not

merely consideration. Underlying this emphasis is a concern

that appellate courts and the public have an adequate basis for

concluding that sentencing occurred in a reasonable fashion.

551 U.S. at 357. It is true that, in Carty, we relied in part on

the district judge’s statement that he had “reviewed the

papers,” and because the papers had discussed the § 3553(a)

factors, we assumed that the judge had considered them. Id.

at 996. But we made this observation after considerable

discussion of other elements supporting our conclusion that

the sentencing judge, who had held an extensive sentencing

hearing dealing with the § 3553(a) factors, had set forth a

sufficient explanation of the sentence.5 See id. at 990. We do

not interpret Carty to stand for the proposition that a mere

statement that the judge had read the papers is, by itself and

automatically, sufficient as an explanation of the judge’s

treatment of the § 3553(a) factors. To draw such a conclusion

from Carty would deprive of all force the language in Rita

and Carty itself stating that a sentencing judge presented with

nonfrivolous arguments on § 3553(a) factors should

5

Carty also placed considerable emphasis on the fact that Carty’s case

was a simple one and that the sentence imposed was within the

Guidelines. Carty, 520 F.3d at 995. The denial of Trujillo’s § 3582(c)(2)

motion resulted in a sentence above the amended Guideline.

UNITED STATES V . TRUJILLO 15

ordinarily explain why he rejects them. Rita, 551 U.S. at

357–58; Carty, 520 F.3d at 992–93.

The government is correct in noting that the district court

discussed the quantity of drugs involved and Trujillo’s role,

both appropriate considerations under § 3553(a)(1). But Rita

and this Court instruct that, “[w]here the defendant or

prosecutor presents nonfrivolous reasons for imposing a

different sentence,” a sentencing judge “will normally go

further and explain why he has rejected those arguments.”

Rita, 551 U.S. at 357; accord Carty, 520 F.3d at 992–93;

Stoterau, 524 F.3d at 999–1000. Trujillo presented

nonfrivolous arguments, and the district court did not at all

explain the reasons for rejecting them; this was legal error.

We vacate the district court’s order and remand to the district

court for proceedings not inconsistent with this opinion.

III.

Finally, Trujillo argues that the district court, in

employing an upward departure pursuant to Application Note

17, violated the Ex Post Facto Clause, U.S. Const. Art. I, § 9,

cl. 3. For a court to violate the Ex Post Facto Clause in its

enforcement of a new law, “the law must be retrospective,

that is, it must apply to events occurring before its enactment;

and second, it must disadvantage the offender affected by it.”

Hamilton v. United States, 67 F.3d 761, 764 (9th Cir. 1995)

(quoting Miller v. Florida, 482 U.S. 423, 430 (1987))

(internal quotation marks omitted).

The district court did not explicitly address Trujillo’s

argument. In any case, the argument fails. Although the

revision of the sentencing guidelines and the addition of the

application note were clearly retrospective, they did not

16 UNITED STATES V . TRUJILLO

disadvantage Trujillo: the permission for upward departure

merely caused him to retain the same sentence that he had

been given before the law was revised. See U.S.S.G.

§ 2D1.1, Application Note 17.

This case is not like Hamilton, which involved a

defendant who was originally sentenced as a career offender

under the 1988 Guidelines, in part because his offense of

conviction was determined to be a “crime of violence.” The

Sentencing Commission thereafter amended the applicable

Guideline to specify that Hamilton’s offense of conviction,

possession of a firearm by a felon, did not qualify as a crime

of violence. The amendment was retroactive. When

Hamilton moved to modify his sentence to take account of the

Guideline amendment, the district court gave him the benefit

of the amendment, but then applied the 1993 Guidelines that

resulted in a larger sentence than he would have been subject

to under the original 1988 Guidelines, as amended only by

the retroactive amendment by the Sentencing Commission.

We held that application of the new, disadvantageous 1993

Guidelines violated the Ex Post Facto clause, even though the

new sentence did not exceed the original one. Hamilton,

67 F.3d at 764–65.

This case differs from Hamilton in two important

particulars. First, Trujillo was not subjected to a new and

more severe sentence under a new set of Guidelines unrelated

to the retroactive amendment applicable to his case. Instead,

Trujillo seeks to take advantage of one portion of a single

amendment to the Guideline under which he was sentenced,

and to disregard a condition that was added to the Application

Note to that very Guideline as part of the same amendment.

We agree with the government that Trujillo is not entitled to

select only the favorable portion of an amendment to a single

UNITED STATES V . TRUJILLO 17

Guideline and to disregard the unfavorable portion, so long as

his overall sentence is not increased beyond that originally

imposed.

Second, the amendment in Trujillo’s case, taken as a

whole and applied to his original sentence, did not render the

term of that sentence necessarily erroneous. The Guidelines

as amended still permitted the sentence Trujillo originally

received. Thus, the assessment of prejudice resulting from

the district court’s denial of relief to Trujillo is based on

whether his sentence after that denial exceeded his original

sentence, which it did not.

In Hamilton, in contrast, the retroactive amendment

providing that Hamilton’s offense of conviction was not a

crime of violence rendered his sentence erroneous. We

therefore compared his new sentence of 77 months to the

12–18 month sentence he would have been required to

receive had the retroactive amendment been in effect at his

original sentencing. Hamilton, 67 F.3d at 765. He was

accordingly disadvantaged by the application of the new set

of Guidelines, in violation of the Ex Post Facto clause.

Because Trujillo’s original sentence was not rendered legally

erroneous by the Sentencing Commission’s retroactive

amendment, we compare his current sentence to his original

sentence of 360 months to determine whether Application

Note 17 “disadvantaged” him. Because the district court’s

denial of relief under § 3582(c)(2) did not result in a sentence

that was longer than the one originally imposed, there was no

Ex Post Facto Clause violation.

18 UNITED STATES V . TRUJILLO

IV.

To sum up: The district court had jurisdiction to entertain

Trujillo’s second motion to modify his sentence under

§ 3582(c)(2). Its denial of relief did not violate the Ex Post

Facto Clause. Because the district court did not explain in

any way its reasons for rejecting Trujillo’s arguments

regarding the § 3553 factors, however, we vacate the district

court’s order and remand for further proceedings.

VACATED and REMANDED.