USA v. Andrew Colson

Filing 920090723

Opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANDREW COLSON, Defendant-Appellant.

No. 08-10287 D.C. No. 2:03-CR-00559-RCJ ORDER

Appeal from the United States District Court for the District of Nevada Robert C. Jones, District Judge, Presiding Submitted February 23, 2009* San Francisco, California Filed July 23, 2009 Before: Alex Kozinski, Chief Judge, Michael Daly Hawkins and Ronald M. Gould, Circuit Judges.

COUNSEL Franny A. Forsman, Federal Public Defender, Jason F. Carr, Assistant Federal Public Defender, Las Vegas, Nevada, for the appellant. Gregory A. Browner, United States Attorney, Peter S. Levitt, Assistant United States Attorney, Las Vegas, Nevada, for the appellee.
*The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

9425

9426

UNITED STATES v. COLSON

ORDER Andrew Colson ("Colson") appeals the district court's discretionary denial of his 18 U.S.C. § 3582(c)(2) sentence reduction motion. Although we have previously held that such decisions are not reviewable on appeal, see United States v. Lowe, 136 F.3d 1231, 1233 (9th Cir. 1998), Colson argues that Lowe is no longer good law in light of United States v. Booker, 543 U.S. 220 (2005), and United States v. Carty, 520 F.3d 984 (9th Cir. 2008) (en banc). We agree. After Booker and Carty each of which held that any element of a sentencing decision, whether discretionary or not, may be "unreasonable" and therefore unlawful Lowe`s conclusion that discretionary sentencing decisions are unreviewable on appeal is no longer good law. We conclude that 18 U.S.C. § 3582(c)(2) sentence reduction decisions are reviewable in their entirety for abuse of discretion under 28 U.S.C. § 1291. The order filed March 10, 2009, is hereby VACATED. The government's Motion to Dismiss Appeal is DENIED, and its Motion to Toll Briefing Schedule During Pendency of Motion is GRANTED. The parties shall file their briefs within the time set forth in Federal Rule of Appellate Procedure 31(a), commencing from the filed date of this order.

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