                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 07 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.     16-50396

              Plaintiff-Appellant,               D.C. No.
                                                 2:15-cr-00620-ODW-1
 v.

DARREN EUGENE ELLIS, AKA C-                      MEMORANDUM*
Note,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Otis D. Wright II, District Judge, Presiding

                             Submitted July 10, 2018**
                               Pasadena, California

Before: BERZON and N.R. SMITH, Circuit Judges, and CASTEL,*** District
Judge.




      *
             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 P. Kevin Castel, United States District Judge for the
Southern District of New York, sitting by designation.
      The government appeals the district court’s imposition of a one-year and

one-day sentence for defendant Darren Ellis’s conviction for distributing at least

five grams of methamphetamine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii). The

government maintains that Ellis was subject to a five-year mandatory minimum,

despite the significant and moving mitigating evidence Ellis presented at

sentencing.1 We agree.

      1. Federal drug laws require that, for those convicted of distributing “5

grams or more of methamphetamine,” “such person shall be sentenced to a term of

imprisonment which may not be less than 5 years.” 21 U.S.C. § 841(b)(1)(B)(viii).

Because Ellis admitted to distributing approximately 24.6 grams of

methamphetamine, the district court was required to sentence him to at least five

years’ imprisonment under § 841(b)(1)(B)(viii) unless an exception applied.2 See

United States v. Skyes, 658 F.3d 1140, 1146 (9th Cir. 2011) (internal quotation

marks and alterations omitted). Ellis does not claim that any exception applied.


      1
        We do not summarize that mitigating evidence here, as it was submitted
under seal. Suffice it to say that we understand why Judge Wright found the
evidence compelling.
      2
          “The statutory minimum sentence must be imposed unless the defendant is
a first-time offender who qualifies for the ‘safety valve’ under guideline section
5C1.2, or the government moves for a downward departure based on the
defendant’s ‘substantial assistance.’” United States v. Haynes, 216 F.3d 789, 799
(9th Cir. 2000), amended on denial of reh’g (Aug. 15, 2000).
                                          2
Instead, he argues that the district court could refuse to impose the mandatory

minimum sentence because such a sentence would violation the Eighth

Amendment and because he was the victim of sentencing entrapment. We

disagree.

      2. Imposition of a five-year sentence here would not violate the Eighth

Amendment. “The Supreme Court has upheld far tougher sentences for less

serious or, at the very least, comparable offenses.” United States v. Hammond, 742

F.3d 880, 884 (9th Cir. 2014) (approving of a five-year mandatory minimum

sentence for arson). Although the five-year mandatory minimum sentence is

certainly a serious term of imprisonment, it is not so unusual or disproportionate to

Ellis’ crime of distributing just under an ounce of methamphetamine—a not-tiny

amount of a serious, harmful drug—to warrant an “exceedingly rare” court

intervention under the Eighth Amendment. Ewing v. California, 538 U.S. 11, 22

(2003) (internal quotation marks omitted).

      3. Ellis waived any right to raise a sentencing entrapment defense. Because

Ellis not only gave up affirmative defenses in his plea agreement, but also “fully

admitted to the drug quantities on which his sentence was based,” Ellis’s “guilty

plea forecloses him from raising this claim.” United States v. Briggs, 623 F.3d

724, 730 (9th Cir. 2010).


                                          3
      4. During sentencing, Judge Wright explained:

      I know it’s very easy for the system to do what the system has always
      done, which is simply lock [Ellis] up and warehouse him. I’m not
      certain that that is going to change anything. He’s already
      experienced that, and here we are.

      I think it’s time to fix what is broken, and I think we have the power
      to fix it.

      So my tentative [ruling] is to impose a fairly short custodial sentence,
      bordering on time served and with immediate referral for him to enter
      the Star program3 where he can get the mental health treatment that he
      needs, where we can take care of his addiction so that he is clean and
      sober and will be able to take advantage of some of these other
      services that are afforded the members of . . . the Star team. . . .

      And I apologize to the government, whose advice I value and
      generally go along with because the government’s recommendations
      are generally tempered by reason, by a desire to seek justice, and I’m
      often guided by the government’s recommendations.

      But here, my conscience, and certainly all of our desire to make sure
      justice is done, tells me a long period of incarceration is not what is
      called for here. It is not reasonable.

      Whether or not we would agree, Congress does not. It requires a mandatory

minimum sentence far, far higher than the sentence Judge Wright found reasonable


      3
        The Substance Abuse Treatment and Reentry Program (“STAR”) “is a
post-conviction reentry program for high risk substance abuse offenders which
provides integrated drug and alcohol treatment services with justice system case
processing.” United States District Court: Central District of California, Substance
Abuse Treatment and Reentry Program (STAR) (last visited August 2, 2018),
https://www.cacd.uscourts.gov/judges-requirements/court-programs/substance-abu
se-treatment-and-reentry-program-star.
                                          4
and appropriate. So we have no choice but to vacate Ellis’s sentence and remand

for resentencing consistent with the applicable five-year minimum sentence.

      REVERSED, VACATED, and REMANDED.




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