                                                                              FILED
                             NOT FOR PUBLICATION
                                                                               FEB 23 2018
                      UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No.   17-30019

               Plaintiff-Appellee,                 D.C. No.
                                                   2:08-cr-00137-WFN-29
          v.

DANIEL ALLEN FLAHERTY, AKA                         MEMORANDUM*
Daniel Allen Flagherty,

               Defendant-Appellant.

                    Appeal from the United States District Court
                       for the Eastern District of Washington
                   Wm. Fremming Nielsen, District Judge, Presiding

                        Argued and Submitted February 7, 2018
                                 Seattle, Washington

Before: FISHER, GOULD and PAEZ, Circuit Judges.

               Daniel Flaherty appeals the order of the district court denying his

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Because Flaherty’s

sentence was “based on a sentencing range that has subsequently been lowered by

the Sentencing Commission,” we vacate and remand.



      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Flaherty’s sentence was “based on” the Sentencing Guidelines. First, the

Rule 11(c)(1)(C) plea agreement was “clearly rooted in the Guidelines.” United

States v. Davis, 825 F.3d 1014, 1027 (9th Cir. 2016) (en banc). The agreement

stated the following: “[t]he Defendant understands and acknowledges that the

United States Sentencing Guidelines . . . are applicable to this case and that the

Court will determine the Defendant’s applicable advisory sentencing guideline

range at the time of sentencing”; Flaherty had a base offense level of 38 under the

drug quantity table, U.S.S.G. § 2D1.1(c)(1); Flaherty could be subject to a

two-level adjustment for possession of a firearm under § 2D1.1(b)(1); the

government promised to move for a three-level adjustment for acceptance of

responsibility under § 3E1.1; Flaherty was a career offender under § 4B1, making

his criminal history category VI; and Flaherty intended to move for a downward

departure or variance from the guideline range. Second, the district court’s

decision to accept the plea agreement was based on the guideline range. See

U.S.S.G. § 6B1.2(c); Freeman v. United States, 564 U.S. 522, 529 (2011)

(plurality opinion). Third, the government expressly relied on the guideline range

in seeking a 25-year sentence. See Sentencing Tr. 30. Fourth, the district court

calculated the guideline range at sentencing. See Sentencing Tr. 42.




                                           2
      The district court, moreover, was required to consider the guideline range in

imposing a sentence within the agreed-upon range. See 18 U.S.C. § 3553(a)(4).

As the Supreme Court explained in Freeman, “[f]ederal sentencing law requires

the district judge in every case to impose ‘a sentence sufficient, but not greater than

necessary, to comply with’ the purposes of federal sentencing, in light of the

Guidelines and other § 3553(a) factors.” Freeman, 564 U.S. at 529 (plurality

opinion) (emphasis added) (quoting 18 U.S.C. § 3553(a)). “[T]he Guidelines are

the starting point and the initial benchmark, and are to be kept in mind throughout

the process.” United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc)

(citations and internal quotation marks omitted); accord Gall v. United States, 552

U.S. 38, 49-50 & n.6 (2007); Freeman, 564 U.S. at 529 (plurality opinion). This is

true even where, as here, the court imposes a sentence below the advisory

guideline range. See Davis, 825 F.3d at 1026 (“Because judges use the Guidelines

range as the starting point, they serve in a real sense as a basis for the sentence,

even where the judge varies from the recommended range.” (emphasis added)

(alterations and internal quotation marks omitted)).

      The district court concluded the sentence was not “based on” the Guidelines

because, under Flaherty’s reading, “all sentences would be based on the

Guidelines.” We disagree. First, it is not surprising that most sentences imposed


                                            3
pursuant to an 11(c)(1)(C) agreement should be “based on” the Guidelines.

Freeman recognized that this was so when it explained that, “when a defendant

enters into an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and

impose the recommended sentence is likely to be based on the Guidelines.”

Freeman, 564 U.S. at 534 (plurality opinion) (emphasis added). Second, it is not

the case that every sentence is “based on” the Guidelines merely because the

district court calculates a guideline range. In Davis, for example, we explained that

a sentence may not be “based on” the guideline range when the sentencing court

“rejects it as a matter of policy and selects its sentence without regard to it.”

Davis, 825 F.3d at 1023 (quoting United States v. Epps, 707 F.3d 337, 350-51 n.8

(D.C. Cir. 2013)). Similarly, a sentence is not “based on” the guideline range

when it is supplanted by the statutory mandatory minimum sentence, as in United

States v. Rodriguez-Soriano, 855 F.3d 1040, 1045 (9th Cir. 2017).

      We vacate the order denying Flaherty’s motion for a sentence reduction and

remand to the district court for proceedings consistent with this disposition. Our

decision does not preclude the government from seeking a stay of proceedings in

the district court pending the outcome of United States v. Koons, 850 F.3d 973 (8th

Cir.), cert. granted, 138 S. Ct. 543 (2017), or United States v. Hughes, 849 F.3d

1008 (11th Cir.), cert. granted, 138 S. Ct. 542 (2017).


                                            4
VACATED AND REMANDED.




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