United States v. Cyrus Braswell

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 27, 2021
• Docket: 19-30140
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30140

Plaintiff-Appellee, D.C. No. 3:97-cr-00068-HRH-1

v. MEMORANDUM* CYRUS D.A. BRASWELL, AKA Cyrus Dennis Braswell,

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska H. Russel Holland, District Judge, Presiding

Submitted January 20, 2021**

Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.

Cyrus D.A. Braswell appeals pro se from the district court’s order denying

his motion for a retroactive sentence reduction under the First Step Act of 2018

and granting his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* 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). Braswell first contends that, under § 3582(c)(2), the district court was

required to resentence him to a term within the 188-235 month amended

Guidelines range resulting from the application of Amendment 750. The district

court did not abuse its discretion by reducing Braswell’s sentence to time served.

See Dillon v. United States, 560 U.S. 817, 827 (2010). As the district court

correctly noted, Braswell had already served 260 months of his sentence—a period

longer than the high end of the amended Guidelines range—and therefore could

not receive a sentence reduction below time served. See U.S.S.G.

§ 1B1.10(b)(2)(C) (“In no event may the reduced term of imprisonment be less

than the term of imprisonment the defendant has already served.”).

Braswell next contends that the district court erred by denying his motion for

sentence reduction under § 404(b) of the First Step Act, which, inter alia, permits

retroactive application of § 2 of the Fair Sentencing Act of 2010 for certain crack

cocaine offenses. See United States v. Kelley, 962 F.3d 470, 472 (9th Cir. 2020).

The district court did not abuse its discretion by concluding that Braswell was not

entitled to relief under the First Step Act. See id. As the court correctly noted, the

mandatory minimum sentence and Guidelines range applicable to Braswell were

unchanged by the retroactive application of the Fair Sentencing Act because his

original offense involved 1,942 grams of crack cocaine. See id. (noting that § 2

requires that a covered offense involve 280 or more grams of crack cocaine, rather

2 19-30140 than only 50 or more grams, in order to trigger a sentence of 10 years to life).

Moreover, contrary to Braswell’s contentions, the First Step Act does not authorize

a plenary resentencing at which the district court can reconsider its original

sentencing determinations. See id. at 475.

Braswell also challenges the district court’s separate order denying, as an

unauthorized second or successive motion under 28 U.S.C. § 2255, his motion to

dismiss the indictment. Braswell previously sought to challenge this order, but this

court denied him a certificate of appealability in Appeal No. 19-35642. Braswell’s

contentions regarding the sufficiency of the indictment are therefore not properly

before us, and we will not consider them.

We also decline to consider Braswell’s remaining arguments as not properly

before this court.

All pending motions are denied.

AFFIRMED.

3 19-30140