United States v. Aurelio Ramirez ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50131
Plaintiff-Appellant, D.C. No. 8:17-cr-00017-JLS-1
v.
MEMORANDUM*
AURELIO RAMIREZ,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Josephine L. Staton, District Judge, Presiding
Submitted April 14, 2021**
Pasadena, California
Before: PAEZ and VANDYKE, Circuit Judges, and KORMAN,*** District Judge.
The U.S. Attorney appeals from the district court’s sentence of nine years, one
year below the statutory minimum. We have jurisdiction under 18 U.S.C. § 3742(b).
We vacate and remand for resentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
The district court erred by concluding that a motion to reduce the Guideline
range under U.S.S.G. § 5K1.1 also authorized a sentence below the statutory
minimum under 18 U.S.C. § 3553(e). Although both motions have as a prerequisite
that the defendant provided “substantial assistance,” the Supreme Court has held that
the “Government must in some way indicate its desire or consent that the court
depart below the statutory minimum before the court may do so.” Melendez v.
United States, 518 U.S. 120, 126 n.5 (1996). The Supreme Court has also explained
that “a motion under § 5K1.1 permitted departure from the guideline sentence, but
that the departure could not extend below the mandatory minimum absent an
additional motion by the government under § 3553(e).” United States v. Auld, 321
F.3d 861, 866 (9th Cir. 2003). The district court’s reliance on our decision in United
States v. Lee was misplaced, because the prosecutor in that case had moved for a
downward departure “from both the guidelines and the mandatory minimum
sentence.” 725 F.3d 1159, 1163 (9th Cir. 2013) (per curiam).
Citing Wade v. United States, 504 U.S. 181 (1992), defendant urges
affirmance on the theory that the district court found that the U.S. Attorney’s failure
to file a motion under § 3553(e) was irrational. We reject that argument. The district
court here made clear that it sentenced the defendant to a below-minimum sentence
because of its erroneous understanding of its legal authority, not based on a factual
finding that the U.S. Attorney had acted irrationally.
2
We therefore vacate the sentence and remand for sentencing in compliance
with the law. “On remand, the district court generally should be free to consider any
matters relevant to sentencing, even those that may not have been raised at the first
sentencing hearing, as if it were sentencing de novo.” United States v. Matthews,
278 F.3d 880, 885–86 (9th Cir. 2002) (en banc). We note, however, that a district
court’s authority to compel the U.S. Attorney to file a substantial-assistance motion
is circumscribed. See Wade, 504 U.S. at 186–87; United States v. Flores, 559 F.3d
1016, 1020–21 (9th Cir. 2009).
VACATED AND REMANDED.
3