United States v. Jason Washington , 580 F. App'x 578 ( 2014 )

FILED
NOT FOR PUBLICATION JUN 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30143
Plaintiff - Appellant, D.C. No. 9:11-cr-00061-DLC-1
v.
MEMORANDUM*
JASON WASHINGTON,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Argued and Submitted June 3, 2014
Seattle, Washington
Before: GOODWIN, McKEOWN, and WATFORD, Circuit Judges.
1. The district court found that Jason Washington did not possess a firearm
“in connection with the offense” under 18 U.S.C. § 3553(f)(2). The court did not
clearly err in so finding. See United States v. Ferryman, 444 F.3d 1183, 1185 (9th
Cir. 2006). The court carefully considered the circumstances surrounding those
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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instances in which Washington possessed a firearm and concluded that
Washington had proved by a preponderance of the evidence that he lawfully
possessed the firearms for purposes unconnected to the drug offenses at issue. We
cannot say that the court’s finding leaves us “with a definite and firm conviction
that a mistake has been made.” Id. at 1186.
2. The district court also found that Washington was not “an organizer,
leader, manager, or supervisor of others in the offense, as determined under the
sentencing guidelines.” 18 U.S.C. § 3553(f)(4). The enhancement for role in the
offense applies under U.S.S.G. § 3B1.1 when “the defendant exercised some
control over others involved in the commission of the offense or was responsible
for organizing others for the purpose of carrying out the crime.” United States v.
Yi, 704 F.3d 800, 807 (9th Cir. 2013) (citation and internal quotation marks
omitted). We conclude that the district court committed two legal errors in
conducting this analysis.
First, the court did not address Washington’s control over others or his
organizational role at all. Instead, it concluded that the enhancement should not
apply because Washington did not present a recidivism risk or danger to the public,
two of the factors the Sentencing Commission has indicated underlie the role
enhancement. See § 3B1.1 cmt. background. Although sentencing courts may
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draw upon background commentary to inform their analysis, they must begin with
the plain language of the guidelines. See United States v. Cruz-Gramajo, 570 F.3d
1162, 1167, 1168 n.4 (9th Cir. 2009). As with the enhancement for obstruction of
justice, if the court determines that the factual predicate for the enhancement under
§ 3B1.1 has been established, application of the enhancement is mandatory. See,
e.g., United States v. Ancheta, 38 F.3d 1114, 1118 (9th Cir. 1994) (holding that
once a guideline provision’s criteria have been met, the enhancement is
“mandatory, not discretionary”). When imposing a sentence, the court may, of
course, consider departing from the applicable guidelines range if it believes the
enhancement overstates the defendant’s culpability. See Koon v. United States,
518 U.S. 81, 92 (1996). But when determining eligibility for the safety valve, the
court must apply the enhancement according to its plain terms, without regard to
departures. See United States v. Valencia-Andrade, 72 F.3d 770, 773–74 (9th Cir.
1995) (holding that a court calculating defendant’s criminal history points for
purposes of safety valve eligibility must do so without considering departures).
Second, the court erred by importing the “heartland” analysis of Koon into
the safety valve context. That analysis is appropriate only when, after correctly
calculating the applicable guidelines range, a court is considering whether to grant
a variance or departure from that range. It has no relevance when a court is
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determining whether a particular guideline enhancement applies in the first place.
The guidelines make this clear by stating that a court must apply the enhancement
for role in the offense before considering any departures or variances. See
U.S.S.G. § 1B1.1.
3. In light of the above, we reverse and remand with respect to the role
enhancement under § 3B1.1 so that the district court may reconsider its analysis,
taking into account Washington’s “control over others involved in the commission
of the offense” and his responsibility “for organizing others for the purpose of
carrying out the crime.” Yi, 704 F.3d at 807. If the court determines that the
factual predicate for the role enhancement has been established in light of the
evidence in the record, that finding would preclude safety valve relief. 18 U.S.C.
§ 3553(f)(4); U.S.S.G. § 5C1.2 cmt. n.5. On the other hand, if the record does not
support application of the enhancement after the court analyzes it within the
framework laid out above, safety valve relief would be available.
VACATED AND REMANDED.
FILED
United States v. Washington, No. 13-30143 JUN 25 2014
MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, concurring: U.S. COURT OF APPEALS
Whether all components of the safety valve statute remain constitutional
after Alleyne v. United States, 133 S. Ct. 2151 (2013), is an open question. While
at least one circuit has concluded post-Alleyne that the statute doesn’t offend the
Sixth Amendment, see United States v. Harakaly, 734 F.3d 88, 97–99 (1st Cir.
2013), our circuit has yet to decide the issue. See United States v. Tequida-Esquer,
No. 13-10514 (9th Cir. appeal docketed Oct. 7, 2013). Having prevailed below on
the issue of safety valve eligibility, Washington had no occasion to brief the issue
in this appeal, and we therefore do not address it.