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United States of America v. John

February 7, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
JOHN MICHAEL FOX, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Alaska James K. Singleton, Senior District Judge, Presiding D.C. No. 3:96-CR-00080-JKS

The opinion of the court was delivered by: Judge O'Scannlain

FOR PUBLICATION

OPINION

Argued and Submitted December 9, 2010-Seattle, Washington

Before: Diarmuid F. O'Scannlain and Richard C. Tallman, Circuit Judges, and Barry T. Moskowitz, District Judge.*fn1

COUNSEL

OPINION

O'SCANNLAIN, Circuit Judge

We examine how much a sentence can be reduced based on a retroactive amendment to the Sentencing Guidelines.

I

In 1996, a federal grand jury issued a two-count indictment charging John Michael Fox with possessing crack cocaine with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), and with carrying a .45 caliber handgun during and in relation to a drug crime, in violation of 18 U.S.C. § 924(c)(1). Fox entered into a plea agreement in which he pled guilty to the drug charge and, in exchange, the government dropped the gun charge.

The Sentencing Guidelines indicated that Fox should receive a prison term of 360 months to life. This calculation was based on the facts that Fox (1) possessed nearly two kilograms of crack cocaine, (2) committed his offense while possessing a gun, (3) exercised a leadership role in the offense, and (4) was in Criminal History Category IV. The district judge sentenced Fox to 360 months in prison, the low end of the Guidelines range. The judge noted, however, that he would have downwardly departed, had the then-mandatory Sentencing Guidelines allowed him to do so.

On June 30, 2008, after serving approximately 132 months in prison, Fox moved to reduce his sentence based on retroactive amendments to the Sentencing Guidelines that lowered the base offense levels for crack-cocaine offenses.*fn2 The dis-trict court recalculated Fox's Guidelines range and found that his amended Guidelines range was 292-365 months. At the time, Ninth Circuit precedent held that United States v. Booker, 543 U.S. 220 (2005), which made the Guidelines advisory at initial sentencings, also allowed district courts to treat the Guidelines as advisory at sentence modification proceedings. See United States v. Hicks, 472 F.3d 1167, 1170 (9th Cir. 2007). Relying on Hicks, the district court determined that it was not bound by the Sentencing Commission's Policy Statement, which mandated that a sentence modification proceeding may not be used to reduce a sentence below the amended Guidelines range.

See U.S.S.G. § 1B1.10(b)(2)(a) (policy statement).*fn3 Freed from the amended Guidelines, the district court determined that a downward departure was warranted based on a number of factors unrelated to the retroactive amendments to the Guidelines, such as Fox's good behavior in prison. The district court reduced Fox's sentence to time served (134 ...


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