                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 14 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30200

              Plaintiff - Appellee,              D.C. No. 3:04-cr-05350-RBL-9

  v.
                                                 MEMORANDUM *
TIMOTHY DILLON,

              Defendant - Appellant.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                            Submitted October 8, 2010 **
                               Seattle, Washington

Before: THOMAS and M. SMITH, Circuit Judges, and COLLINS, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 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 Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
      Defendant-Appellant Timothy Dillon appeals an order of the United States

District Court for the Western District of Washington denying his motion for a

reduction of his 97-month sentence for drug-related offenses. After his guilty plea

in 2006, this Court affirmed Dillon’s conviction and above-Guidelines sentence.

United States v. Dillon, 244 F. App’x 152, 155-56 (9th Cir. 2007). Dillon

subsequently filed a pro se application with the district court to reduce his sentence

on account of the Sentencing Commission’s amendments to the Guidelines, which

reduced the crack-cocaine offense levels. See United States Sentencing Guidelines

Manual (U.S.S.G.) app. C, amdt. 706 (2007). The parties are presumed to be

familiar with the remaining facts, and we do not recount them here except as

necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291

and affirm.

      There are two issues: (1) the government challenges the district court’s

jurisdiction to consider Dillon’s § 3582(c)(2) application on the grounds that

reducing an above-Guidelines sentence is inconsistent with the Sentencing

Commission’s policy statements; and (2) Dillon asserts that the district court

abused its discretion in refusing to modify his sentence.




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      1. District Court’s Jurisdiction

      “We review de novo whether a district court has jurisdiction to resentence a

defendant under 18 U.S.C. § 3582.” United States v. Tupuola, 587 F.3d 1025,

1027 (9th Cir. 2009) (citing United States v. Leniear, 574 F.3d 668, 672 (9th Cir.

2009)). Although the Government did not advance its jurisdictional argument in

the district court, because it presents a jurisdictional question, we may consider it.

See United States v. Powell, 24 F.3d 28, 30 (9th Cir. 1994) (“[W]e review

questions of jurisdiction even if raised for the first time on appeal.”).

      Generally, a district court “may not modify a term of imprisonment once it

has been imposed.” 18 U.S.C. § 3582(c); see also United States v. Wesson, 583

F.3d 728, 730 (9th Cir. 2009). “However, 18 U.S.C. § 3582(c)(2) creates an

exception to this rule by allowing modification of a term of imprisonment if:

(1) the sentence is ‘based on a sentencing range that has subsequently been

lowered by the Sentencing Commission’ and (2) ‘such a reduction is consistent

with applicable policy statements issued by the Sentencing Commission.’” Wesson,

583 F.3d at 728.

      The argument advanced by the government is based primarily on this court’s

now withdrawn and superseded opinion in United States v. Sipai, 582 F.3d 994

(9th Cir. 2009), withdrawn and superseded, --- F.3d ----, 2010 WL 3785527, at *2


                                            3
(9th Cir. Sept. 30, 2010). In the original Sipai decision, we affirmed a district

court’s determination that it lacked jurisdiction to consider a sentence-reduction

motion from a defendant who had already received a below-Guidelines sentence

based on the 18 U.S.C. § 3553 factors. 582 F.3d at 996-97. The first Sipai

decision was based on the Sentencing Commission’s policy statement that “if the

original term of imprisonment constituted a non-[G]uideline sentence determined

pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005),

a further reduction generally would not be appropriate.” Sipai, 582 F.3d at 996

(citing U.S.S.G. § 1B1.10(b)(2)(B)).

      In amending Sipai, this court clarified that district courts have “discretion”

to consider a § 3582(c)(2) reduction when a defendant received a discretionary

below-Guidelines sentence. 2010 WL 3785527, at *2. Our modification

recognizes that the Sentencing Commission’s use of the modifier “generally” is not

consistent with a categorical jurisdictional bar. Id.

      In light of the recent Sipai decision, the Government’s jurisdictional

argument is on soft ground–we can discern no meaningful distinction between

reducing a below-Guidelines and reducing an above-Guidelines sentence.

Regardless, Dillon independently satisfies both prongs for § 3582(c)(2)

jurisdiction. First, his original sentence was based on a Guidelines sentencing


                                           4
range which has now been lowered,1 as opposed to a statutory minimum, plea

agreement, or other sentencing consideration. See, e.g., Wesson, 583 F.3d at 731

(holding there was no jurisdiction under § 3582(c)(2) when the district court

applied U.S.S.G. § 4B1.1’s alternative sentencing scheme); United States v. Bride,

581 F.3d 888, 891 (9th Cir. 2009) (finding no jurisdiction where sentence was

imposed pursuant to a plea agreement); United States v. Jackson, 577 F.3d 1032,

1035-36 (9th Cir. 2009) (finding no jurisdiction where district court “used the

mandatory minimum, not the Sentencing Guidelines range, as the starting point for

determining [the defendant’s] sentence”). Second, Dillon’s petition is not contrary

to the Sentencing Commission’s policy statements because he is not seeking a

“further” reduction in his sentence. Indeed, because his 97-month sentence is

above the Guidelines, this would be his “first” reduction. Accordingly, Dillon’s

application presents no jurisdictional concerns.




      1
        See Dillon, 244 F. App’x at 155 (“After . . . calculating Dillon’s Guidelines
range to be between 63 and 78 months, . . . [t]he district court then sentenced
Dillon to 97 months incarceration, explaining that this was a sufficiently ‘long
time’ to reflect the ‘extremely serious’ nature of the offense, to ‘protect the public
from further crimes and to [provide an] adequate deterrent from criminal conduct
generally.’”).

                                          5
      2. Denial of Dillon’s Motion

      We review a district court’s decision to deny a § 3582(c)(2) motion for

abuse of discretion. United States v. Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009).

To comply with § 3582(c)(2), the district court must:

      (1) determine whether the defendant was “sentenced to a term of
      imprisonment based on a sentencing range that has subsequently been
      lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o)”;
      (2) “consider[ ] the factors set forth in section 3553(a) to the extent that
      they are applicable”; and (3) determine whether “a reduction is
      consistent with applicable policy statements issued by the Sentencing
      Commission.”

Id. at 1126 (brackets in original) (quoting 18 U.S.C. § 3582(c)(2)).

      Although the district court’s initial order denying Dillon’s motion without

explanation is troubling, the amplifications provided by the court in its denial of

Dillon’s motion for reconsideration amply support its decision. Notably, the

district court noted that “the reasons for the original sentence remain,” thus

carrying forward its prior findings about the gravity of Dillon’s crimes. The court

also properly analyzed Dillon’s motion against the backdrop of § 3553(a),

speaking of the seriousness of the offense, Dillon’s role, and the need for

deterrence. See 18 U.S.C. § 3553(a)(1) (nature and circumstances of the offense);

id. § 3553(a)(2)(A) (seriousness of the offense); id. § 3553(a)(2)(B) (deterrence).




                                           6
      Moreover, there was no need for the district court to specifically tackle each

of Dillon’s arguments given that the reasonableness of Dillon’s sentence was

already confirmed by the prior appeal. See Dillon, 244 F. App’x at 155 (“[The

district court] justified the sentence by referencing a number of case-specific facts

regarding Dillon’s ‘history and characteristics’ and the seriousness of Dillon’s

offense, as well as by referencing at least two other factors listed in 18 U.S.C. §

3553(a).”) (internal references omitted). In light of the Supreme Court’s

admonition that § 3582(c)(2) is not a “plenary resentencing proceeding” Dillon v.

United States, 130 S. Ct. 2683, 2691–92 (2010), the district court committed no

error in denying Dillon’s motion.

      AFFIRMED.




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