United States v. Aurelio Ramirez

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2021
• Docket: 19-50131
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.