Opinion
Case No. 1:11-CR-00188-(4)-LJO-BAM
06-15-2016
UNITED STATES OF AMERICA, Plaintiff, v. GUSTAVO MORENO, Defendant.
ORDER VACATING PRIOR ORDER TO HOLD IN ABEYANCE DEFENDANT'S MOTION TO REDUCE SENTENCE AND REFERRING CASE TO FEDERAL DEFENDER'S OFFICE (ECF Nos. 145, 151)
On January 12, 2016, Defendant, Gustavo Moreno ("Mr. Moreno"), filed a pro se motion to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2). (ECF No. 145). The Court referred the motion to the Federal Defender's Office ("FDO") on January 19, 2016 (ECF No. 146). On January 28, 2016, the FDO filed a notice of non-supplementations of Defendant's motion (ECF No. 147). On February 29, 2016, the government filed its opposition to Mr. Moreno's motion (ECF No. 149).
Because the Ninth Circuit granted en banc review of United States v. Davis, 795 F.3d 1188 (9th Cir. 2015) United States v. Davis, 776 F.3d 1088, 1090 (9th Cir.) reh'g en banc granted, opinion vacated, 795 F.3d 1188 (9th Cir. 2015), the resolution of which impacts the instant motion, this Court rendered an Order on March 15, 2016, holding in abeyance petitioner's § 3582 motion pending the resolution of Davis. See ECF No. 151.
This week, the Ninth Circuit rendered its decision in United States v. Davis, No. 13-30133, 2016 WL 3245043 (9th Cir. June 13, 2016), holding that a defendant sentenced under an 11(c)(1)(C) agreement is eligible for relief under § 3582(c)(2) "because the district court's 'decision to accept the plea and impose the recommended sentence' was 'based on the Guidelines.'" Id. at *11 (quoting Freeman v. United States, 564 U.S. 522, 534 (2011) (plurality opinion). The Ninth Circuit emphasized that "Davis's Rule 11(c)(1)(C) plea agreement was clearly rooted in the Guidelines." Id. By explicitly overruling United States v. Austin, 676 F.3d 924 (9th Cir.2012), upon which the Government's opposition to the instant motion relies (see ECF No. 635), the circuit court fashions a new and different rule applicable to this case. See Davis, 2016 WL 3245043, at *6 ("we overrule our holding in Austin," and "adopt the analysis of the D.C. Circuit") (citing United States v. Epps, 707 F.3d 337, 350 (D.C. Cir. 2013) (finding no common denominator in Freeman)).
Under Davis, Mr. Moreno apparently no longer faces a bar to his eligibility for relief under § 3582(c)(2) based on the nature and content of his plea agreement, which was, like the plea agreement in Davis, offered to the Court under Federal Rule of Criminal Procedure 11(c)(1)(C) and "based on the Guidelines." Id. at *11 (quoting Freeman, 564 U.S. at 534). This is not dispositive, however. The parties have yet to address how the Davis holding, among other factors, specifically affects Moreno's request for reduction. Also, the FDO's notice of non-supplementation precedes Davis. See ECF No. 147. Given the changed circumstances, the Court finds appropriate a fresh referral and scheduling order in order to give the parties an opportunity to respond.
CONCLUSION AND ORDER
Accordingly, IT IS HEREBY ORDERED that the Court's Order (ECF No. 151) holding the case in abeyance is VACATED. IT IS FURTHER ORDERED that, pursuant to Eastern District of California General Order 546, the FDO is appointed to represent Defendant in this matter. The FDO SHALL have 90 days from the Ninth Circuit's mandate in Davis to file a supplement to Defendant's pro se § 3582 Motion, or to notify the Court that it again does not intend to supplement to the motion. Thereafter, the government SHALL have 30 days from the date of the FDO's filing to file a supplemental response to Defendant's § 3582 Motion. IT IS SO ORDERED.
Entry of judgment on Davis was made June 13, 2016, a mandate will issue on or before June 20, 2016 (see Fed. R. App. Proc. 41), and thereafter the parties have 90 days in which to petition for a writ of certiorari. See U.S. Sup. Ct. R. 13, 28 U.S.C. If Davis is timely appealed, this Court will again hold the instant motion in abeyance. --------
Dated: June 15 , 2016
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE