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United States v. Finazzo

United States Court of Appeals, Ninth Circuit

November 10, 2016

United States of America, Plaintiff-Appellee,
v.
Tina-Marie Finazzo, Defendant-Appellant.

          Argued and Submitted October 18, 2016 Honolulu, Hawaii

         Appeal from the United States District Court for the District of Hawaii D.C. No. 1:11-cr-00383-LEK-1 Leslie E. Kobayashi, District Judge, Presiding

         COUNSEL

          Craig W. Jerome (argued) and Salina Kanai Althof, Assistant Federal Public Defenders; Peter C. Wolff, Jr., Federal Public Defender; Hawaii Federal Public Defender, Honolulu, Hawaii; for Defendant-Appellant.

          Thomas Muehleck (argued), Assistant United States Attorney; Florence T. Nakakuni, United States Attorney; United States Attorney's Office, Honolulu, Hawaii; for Plaintiff-Appellee.

          Before: J. Clifford Wallace, Jerome Farris, and Paul J. Watford, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel affirmed the district court's order granting in part and denying in part Tina-Marie Finazzo's motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based on a retroactive 2014 amendment that lowered her applicable Sentencing Guidelines range.

         At the original sentencing, the probation office recommended a downward variance, and the government assented with the caveat that it was not making a motion for a downward departure under U.S.S.G. § 5K1.1 based on substantial assistance to authorities. The district court adopted the recommendation and imposed a 172-month sentence based in part on Finazzo's early and extensive cooperation with law enforcement.

         On Finazzo's § 3582(c)(2) motion, the district court reduced her sentence to the bottom of the amended Guidelines range, 168 months, but denied her request for a downward variance comparable to what she received as part at her original sentencing because the initial variance was not based on her substantial assistance to authorities.

         Under U.S.S.G. § 1B1.10(b)(2)(B), a reduction comparably less than the amended Guidelines range may be appropriate for a defendant who received at the time of sentencing a below-Guidelines sentence as the result of "a government motion to reflect the defendant's substantial assistance to authorities." The panel held that the government's conduct in this case did not amount to a motion, and rejected Finazzo's argument that the canon of constitutional avoidance and the rule of lenity compel interpretation of § 1B1.10(b)(2)(B) as being triggered by a government motion under 18 U.S.C. § 3553(a).

          OPINION

          WALLACE, Senior Circuit Judge

         Appellant Tina-Marie Finazzo appeals from the district court's judgment, challenging its order granting in part and denying in part her motion for a sentence reduction. We have ...


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