                                                                          FILED
                            NOT FOR PUBLICATION
                                                                            JUL 10 2017
                     UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10532

               Plaintiff-Appellee,               D.C. No.
                                                 1:12-cr-00507-DKW-1
          v.

RANDALL KAWIKA CHAR, AKA                         MEMORANDUM*
Randall K. Char,

               Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Hawaii
                  Derrick Kahala Watson, District Judge, Presiding

                        Argued and Submitted June 16, 2017
                                Honolulu, Hawaii

Before: FISHER, PAEZ and NGUYEN, Circuit Judges.

      Randall Kawika Char appeals from the district court’s judgment and

challenges the 144-month sentence imposed following his guilty plea conviction

for two counts of distributing methamphetamine in violation of 21 U.S.C.




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
§ 841(a)(1) and (b)(1)(A). We have jurisdiction under 28 U.S.C. § 1291, and we

vacate and remand for resentencing.

      1. A defendant is eligible for a sentencing reduction under 18 U.S.C. §

3582(c)(2) only if his sentence was “based on” a subsequently lowered guidelines

range. See United States v. Rodriguez-Soriano, 855 F.3d 1040, 1042 (9th Cir.

2017). Although Char initially argued the district court should have reduced his

sentence beyond 144 months, he now concedes the district court should not have

reduced his sentence under § 3582(c)(2) at all. Char’s sentence was not “based on”

a subsequently lowered guidelines range, but on a statutory mandatory minimum

and a substantial assistance motion. See 21 U.S.C. § 841(b)(1)(A) and 18 U.S.C.

§ 3553(e). Notwithstanding this error, we will not enlarge Char’s sentence. A

defendant “who appeals but faces no cross-appeal can proceed anticipating that the

appellate court will not enlarge his sentence.” Greenlaw v. United States, 554 U.S.

237, 252 (2008).

      2. Upon motion of the government, a district court may impose a sentence

below a statutory mandatory minimum to reflect a defendant’s substantial

assistance in the investigation or prosecution of others. See 18 U.S.C. § 3553(e).

The district court erred procedurally by not adequately explaining why it rejected

the government’s recommendation for a 10-year sentence reduction, from 240 to


                                          2
120 months. See Gall v. United States, 552 U.S. 38, 51 (2007) (holding a district

court commits procedural error when it does not “adequately explain the chosen

sentence”). The district court did not give “substantial weight” to the

government’s evaluation of the defendant’s assistance, see U.S.S.G. § 5K1.1 cmt.

n.3 (“Substantial weight should be given to the government’s evaluation of the

extent of the defendant’s assistance, particularly where the extent and value of the

assistance are difficult to ascertain.”); nor did it address Char’s specific argument

that his rehabilitation affected his assistance, see United States v. Carty, 520 F.3d

984, 992-93 (9th Cir. 2008) (en banc) (“[W]hen a party raises a specific,

nonfrivolous argument . . . the judge should normally explain why he accepts or

rejects the party’s position.”). Here, the government’s recommendation for a

considerable reduction of 10 years recognized that Char lived up to his end of the

agreement and provided substantial assistance in the investigation notwithstanding

that it was somewhat less than anticipated due to factors beyond his control.

      VACATED AND REMANDED. On remand, the district court shall

reconsider the government’s recommendation for a 10-year sentence reduction but

may not enlarge Char’s sentence beyond 144 months. See Greenlaw, 554 U.S.

at 252.




                                           3
