United States v. Michael Dunshie ( 2017 )


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  •                                                                             FILED
                               NOT FOR PUBLICATION
                                                                                DEC 13 2017
                        UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS
    
    
                                FOR THE NINTH CIRCUIT
    
    
    UNITED STATES OF AMERICA,                        No.   16-30264
    
                  Plaintiff-Appellee,                D.C. No.
                                                     4:10-cr-00014-RRB-1
     v.
    
    MICHAEL LEE DUNSHIE,                             MEMORANDUM*
    
                  Defendant-Appellant.
    
    
                        Appeal from the United States District Court
                                 for the District of Alaska
                        Ralph R. Beistline, District Judge, Presiding
    
                              Submitted December 8, 2017**
                                  Seattle, Washington
    
    Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.
    
          Defendant-Appellant Michael Dunshie appeals an order denying his motion
    
    for a sentence reduction under 18 U.S.C. § 3582(c)(2). We have jurisdiction under
    
    
    
    
          *
                 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).
    28 U.S.C. § 1291, and we review de novo. United States v. Spears, 
    824 F.3d 908
    ,
    
    912 (9th Cir. 2016). We affirm.
    
          The district court did not have jurisdiction to grant Dunshie’s motion.
    
    Because Dunshie was sentenced after the district court accepted the parties’ Rule
    
    11(c)(1)(C) plea agreement, he is not eligible for relief under § 3582(c)(2) unless
    
    “the district court’s ‘decision to accept the plea and impose the recommended
    
    sentence’ was ‘based on the [U.S. Sentencing] Guidelines.’” United States v.
    
    Davis, 
    825 F.3d 1014
    , 1027 (9th Cir. 2016) (en banc) (quoting Freeman v. United
    
    States, 
    564 U.S. 522
    , 534 (2011) (plurality opinion)).
    
           The record illustrates that the district court accepted the parties’ plea
    
    agreement for reasons unrelated to the Guidelines. Although the district court
    
    briefly acknowledged the Guidelines at sentencing and permitted the parties to
    
    make Guidelines-based arguments, the Guidelines did not influence the sentence.
    
    See id. at 1023 n.9. In fact, at one point, the district court remarked “none of this
    
    really matters.” Instead, the district court repeatedly emphasized that the sentence
    
    was a function of the plea agreement, which allowed Dunshie to avoid serious
    
    mandatory prison time for uncharged offenses. In exchange for Dunshie’s plea, the
    
    government agreed not to prosecute Dunshie for firearms offenses including a
    
    violation of 18 U.S.C. § 924(c), which carries a mandatory five-year sentence
    
    
                                               2
    enhancement. The government also agreed not to file an information under 21
    
    U.S.C. § 851 regarding Dunshie’s two prior felony drug convictions, which
    
    threatened a mandatory minimum of ten years and the potential for a life sentence.
    
    See 21 U.S.C. § 841(b)(1)(B). The looming specter of those penalties led the
    
    district court to conclude that “the plea agreement [was] a good one for [Dunshie],”
    
    even though the agreement recommended a sentence (10 years) that was
    
    significantly higher than the upper end of the Guidelines range for Dunshie’s
    
    offense of conviction (71 months). In short, the record reveals that the Guidelines
    
    did not inform the district court’s decision to accept the plea agreement and impose
    
    the recommended sentence.
    
          AFFIRMED.
    
    
    
    
                                              3
    

Document Info

DocketNumber: 16-30264

Filed Date: 12/13/2017

Modified Date: 12/13/2017