USA v. Teniah Tercero

Filing

FILED OPINION (DOROTHY W. NELSON, MILAN D. SMITH, JR. and SANDRA S. IKUTA) AFFIRMED. Judge: DWN Authoring. FILED AND ENTERED JUDGMENT. [8844751]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 12-10404

v.

D.C. No.
3:09-CR-00102-RS-3

TENIAH TERCERO,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted October 7, 2013*
San Francisco, California
Filed October 31, 2013
Before: Dorothy W. Nelson, Milan D. Smith, Jr.,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge D.W. Nelson

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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UNITED STATES V. TERCERO
SUMMARY**

Criminal Law
The panel affirmed the district court’s decision granting
in part and denying in part a motion for reduction of sentence
under 18 U.S.C. § 3582(c)(2) following enactment of the Fair
Sentencing Act.
The panel held that the defendant did not waive her right
to appeal the reduced sentence. The panel also held that
although the defendant expressly waived her right to bring a
§ 3582(c)(2) motion in her plea agreement, the government
did not argue at the resentencing hearing that the defendant
had waived that right and thus cannot rely on that provision
to argue that the appeal is not properly before this court.
The panel was unpersuaded that Congress intended the
Fair Sentencing Act to implement the retroactive reduction of
sentencing ranges for crack cocaine offenses in a particular
way, much less one that conflicts with U.S.S.G. § 1B1.10, as
revised by the Sentencing Commission to prohibit courts
from reducing a defendant’s term of imprisonment under
§ 3582(c)(2) to a term that is less than the minimum of the
amended guideline range.
The panel rejected the defendant’s contention that this
court need not comply with § 1B1.10, which the Supreme
Court in Dhillon v. United States, considering an earlier
version of § 1B1.10, held is binding on courts. The panel
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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observed that the district court correctly followed the twostep procedure reiterated in Dhillon.
The panel rejected the defendant’s contentions that the
revised § 1B1.10 conflicts with the purpose of the Sentencing
Guidelines, conflicts with the statute that authorized the
Commission to apply amendments retroactively, and is
arbitrary and capricious under the Administrative Procedures
Act.

COUNSEL
Mark Rosenbush, San Francisco, California, for DefendantAppellant.
Suzanne B. Miles, Assistant United States Attorney, Office
of the United States Attorney, San Francisco, California, for
Plaintiff-Appellee.

OPINION
D.W. NELSON, Senior Circuit Judge:
Teniah Tercero appeals the district court’s decision
granting in part and denying in part her motion to reduce her
sentence under 18 U.S.C. § 3582(c)(2) following the
enactment of the Fair Sentencing Act. We have jurisdiction
pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we
affirm.

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I. Background
Tercero’s appeal concerns the retroactive application of
the Fair Sentencing Act (“FSA”) and the related amended
Sentencing Guidelines ranges for offenses involving crack
cocaine. See Fair Sentencing Act of 2010, Pub. L. No. 111220, 124 Stat. 2372; U.S. Sentencing Guidelines Manual app.
C, amends. 748, 750 (2010).
The government indicted Tercero on two counts:
conspiracy to distribute crack cocaine and distribution of
crack cocaine. Tercero pled guilty to a single count of
possession with intent to distribute methamphetamine, as
alleged in the information, in exchange for the dismissal of
the charges in the indictment. The parties stipulated that, for
the purposes of sentencing, Tercero possessed 115.8 grams of
crack cocaine and 4.36 grams of methamphetamine, resulting
in an adjusted offense level of 25. The parties agreed,
however, that Tercero could argue for a sentence as low as 72
months. Tercero agreed to waive “any right . . . to appeal any
aspect of [her] sentence,” as well as any right to file any
collateral attack on her conviction or sentence, such as by
filing motion under 18 U.S.C. § 3582.
The district court found that the applicable Sentencing
Guidelines range was 84 to 105 months based on a criminal
history category of 4 and a total offense level of 25. The
court then considered the factors set forth in 18 U.S.C.
§ 3553(a), finding that Tercero played a minor role in the
conspiracy. While Tercero knew that she was committing a
serious offense, she neither created nor organized it, thus, the
district court concluded that her minor role made “her
conduct less serious than a mechanical application of the
guidelines would suggest.” Accordingly, the court found that

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a downward departure was appropriate and imposed a
sentence of 72 months with a three-year term of supervised
release.
Thereafter, Congress passed the Fair Sentencing Act, and
the Sentencing Commission amended the Sentencing
Guidelines for crack cocaine offenses. Tercero then filed a
§ 3582 motion to reduce her sentence to 58 months, or 12
months below the recalculated Guidelines range. The district
court found that Amendment 750 to the Guidelines warranted
a reduction in Tercero’s sentence from 72 to 70 months,
based on adjusted offense level 24 and a resulting adjusted
Guidelines range of 70 to 87 months. The district court
concluded, however, that it did not have the authority to
depart below 70 months in resentencing Tercero because
U.S.S.G. § 1B1.10(b)(2)(A) prohibits reductions below the
low end of the adjusted Guidelines range. For the reasons
discussed below, we hold that the district court correctly
interpreted and applied both § 3582(c) and § 1B1.10.
II. Standard of Review
We review de novo whether Tercero has waived her right
to appeal her plea agreement. See United States v. Speelman,
431 F.3d 1226, 1229 (9th Cir. 2005). We review for abuse of
discretion a district court’s ruling on a motion for reduction
of sentence pursuant to § 3582(c)(2). United States v.
Lightfoot, 626 F.3d 1092, 1094 (9th Cir. 2010). “A district
court may abuse its discretion if it does not apply the correct
law or if it rests its decision on a clearly erroneous finding of
material fact.” United States v. Chaney, 581 F.3d 1123, 1125
(9th Cir. 2009) (internal quotation marks and citation
omitted).

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III.

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Discussion
A. Waiver

Tercero did not waive her right to appeal the reduced
sentence. Although she did “agree to waive any right . . . to
appeal any aspect of [her] sentence, including any orders
relating to forfeiture and/or restitution,” we have held that
such a broad waiver does not encompass the right to appeal
a § 3582(c) decision. Lightfoot, 626 F.3d at 1095. Moreover,
although Tercero expressly waived her right to bring a § 3582
motion in her plea agreement, the government did not argue
at the resentencing hearing that Tercero had waived this right.
Thus, the government cannot rely on this provision to argue
that Tercero’s appeal is not properly before us. See Norwood
v. Vance, 591 F.3d 1062, 1068 (9th Cir. 2010) (“It is wellestablished that a party can waive waiver implicitly by failing
to assert it.”) (internal quotation marks and citations omitted).
B. District Court Authority to Reduce Sentence
Congress passed the FSA to “restore fairness to Federal
cocaine sentencing” by changing the threshold quantities of
crack cocaine that trigger mandatory minimum sentences.
Pub. L. 111-220, § 2, 124 Stat. 2372, 2372 (2010). Congress
gave the Sentencing Commission the authority to amend the
Guidelines to implement the FSA. Id. § 8. The Commission
thereafter promulgated Amendment 750 to reduce the
Guidelines’ crack-related offense levels and made the
amendment retroactive. U.S.S.G. app. C, amends. 750, 759.
Following the amendments to the Guidelines, the
Commission also revised policy statement § 1B1.10. The
previous version of § 1B1.10(b)(2)(B) permitted prisoners

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who had received below-Guidelines sentences to obtain
reductions below the amended ranges in proportion to the
downward departures imposed at their original sentencing.
See U.S.S.G. § 1B1.10(b)(2)(B)(2010). Because this rule
proved difficult to administer and prompted litigation, the
Commission revised § 1B1.10 following enactment of the
FSA to prohibit courts from reducing a “defendant’s term of
imprisonment under 18 U.S.C. § 3582(c)(2) . . . to a term that
is less than the minimum of the amended guideline range.”
U.S.S.G. § 1B1.10(b)(2)(A) (2011); see Notice of Final
Action Regarding Amendment to Policy Statement 1B1.10,
76 Fed. Reg. 41332, 41334 (July 13, 2011).1
In determining whether the district court erred, we look
first to the relevant statute: 28 U.S.C. § 3582(c)(2). Section
3582 authorizes district courts to reduce a sentence
retroactively when the Commission has subsequently lowered
the Sentencing range. In § 3582, Congress specifically
required that any sentence reductions be “consistent with
applicable policy statements issued by the Sentencing
Commission.” Id. Under the plain language of this statute,
then, the district court was required to apply § 1B1.10, and
the district court concluded correctly that under the revised
version of § 1B1.10, it could not adjust Tercero’s sentence
below 70 months.
Tercero argues that the revised version of § 1B1.10 is at
odds with the plain language of the FSA and is therefore
invalid. But Tercero has not identified any specific provision
in the FSA with which § 1B1.10 conflicts. To the contrary,

1

Section 1B1.10 carves out an exception to this prohibition for
defendants who provide “substantial assistance to authorities.” U.S.S.G.
§ 1B1.10(b)(2)(B). This exception does not apply to Tercero.

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we are mindful that the Commission has the express authority
to promulgate policy statements regarding the retroactivity of
amendments to the Guidelines. See 28 U.S.C. § 994
(a)(2)(C).
Tercero also relies on United States v. LaBonte in support
of her argument that § 1B1.10 conflicts with the FSA.
520 U.S. 751, 757 (1997). In that case, the Supreme Court
invalidated Amendment 506 as in direct conflict with the
language of the Sentencing Reform Act. Id. at 756–57. The
Commission had promulgated Amendment 506 to define the
phrase “offense statutory maximum” in furtherance of
Congress’s directive to “assure that the guidelines specify a
sentence to a term of imprisonment at or near the maximum
term authorized for categories of defendants . . . .” 28 U.S.C.
§ 994(h). The amendment defined “offense statutory
maximum” to preclude the consideration of statutory
enhancements. LaBonte, 520 U.S. 756–57. The Supreme
Court held that Amendment 506 was at odds with the plain
language of § 994(h) because the “ordinary meaning” of the
phrase “maximum term authorized,” is “the ‘highest’ or
‘greatest’ sentence allowed by statute,” not the unenhanced
maximum. Id. at 757–58 (quoting Black’s Law Dictionary
979 (6th ed. 1990)).
But Tercero does not argue that the revised version of
§ 1B1.10 conflicts with the text of the FSA. Instead, she
contends that § 1B1.10 contradicts Congress’s general intent
in passing the FSA, which was “to restore fairness to Federal
cocaine sentencing.” Pub. L. 111-220, § 2, 124 Stat. 2372,
2372. The most specific provision that Tercero identifies is
§ 8 of the Act, which instructs the Commission to promulgate
all Guidelines, amendments and policy statements provided
for in the Act. See id. § 8. That broad instruction, however,

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does not resemble the kind of specific language that required
invalidation of Amendment 506 in LaBonte. Moreover, the
FSA does not contain any specific language indicating
how—or even whether—the Act should be applied
retroactively. See generally id. In fact, we have held that the
FSA does not apply retroactively to adjust the mandatory
minimum sentences for crack cocaine offenses. United States
v. Augustine, 712 F.3d 1290, 1291 (9th Cir. 2013). Thus, we
remain unpersuaded that Congress intended the FSA to
implement the retroactive reduction of sentencing ranges in
any particular way, much less one that conflicts with
§ 1B1.10 as revised.
Tercero urges us to conclude that we need not comply
with § 1B1.10, as the Supreme Court held we must in Dillon
v. United States, 130 S. Ct. 2683, 2687 (2010). Tercero
argues that Dillon is of questionable validity because it
considered an earlier version of § 1B1.10. We disagree that
Dillon is distinguishable from the case before us. While
Tercero is correct that Dillon considered a different version
of § 1B1.10, the substance of the policy statement was not the
animating factor that caused the Court to hold that § 1B1.10
is binding on courts. Instead, Dillon reiterated that a court
must follow two steps in considering a motion to reduce a
sentence pursuant to 18 U.S.C. § 3582(c)(2): First, a court
must determine if a reduction is consistent with the
Sentencing Commission’s policy statements, and, then, a
court must consider whether a reduction is authorized in
whole or in part, according to the factors set forth in
§ 3553(a). Dillon, 130 S. Ct. at 2691. This analysis did not
hinge to any degree on the substantive content of § 1B1.10.
Thus, the amendment of that policy statement does not affect
this two-step process. As discussed, the district court
correctly followed this procedure. The court first determined

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that a reduction below 70 months would be inconsistent with
§ 1B1.10 as revised and therefore declined to grant Tercero’s
motion in full.
Nor does § 1B1.10 conflict with the purpose of the
Guidelines, as Tercero argues. She notes that the Guidelines
were meant to bring about “an effective, fair sentencing
system,” with honest, uniform and proportionate sentences.
Tercero contends that § 1B1.10 prevents the district court
from revising her sentence to reflect the very minor role she
played in the drug conspiracy. It is not in dispute, however,
that when the district court originally sentenced Tercero, it
did consider the sentencing factors set forth in 18 U.S.C.
§ 3553(a). A motion brought under § 3582(c)(2) “does not
authorize a sentencing or resentencing proceeding. Instead,
it provides for the ‘modif[ication of] a term of imprisonment’
by giving courts the power to ‘reduce’ an otherwise final
sentence in circumstances specified by the Commission.”
Dillon, 130 S. Ct. at 2690. “Section 3582(c)(2)’s text,
together with its narrow scope, shows that Congress intended
to authorize only a limited adjustment to an otherwise final
sentence and not a plenary resentencing proceeding.” Id. at
2691. The procedural posture of this case makes it
inappropriate for us to reweigh the sentencing factors set
forth in 18 U.S.C. § 3553(a) to assess the fairness of
Tercero’s 70-month sentence.
Tercero also argues that revised § 1B1.10 conflicts with
the statute that authorized the Commission to apply
amendments retroactively. But Congress has given the
Commission a “substantial role . . . with respect to sentencemodification proceedings.” Dillon, 560 U.S. at 2691. The
Sentencing Reform Act “charges the Commission both with
deciding whether to amend the Guidelines, and with

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determining whether and to what extent an amendment will
be retroactive.” Id.; see also 28 U.S.C. § 994(u). Congress
also has given the Commission the power to issue policy
statements to address, among other things, “the appropriate
use of . . . the sentence modification provisions set forth in”
§ 3582(c). 28 U.S.C. § 994(a)(2)(C). So rather than
conflicting with Congressional intent, as Tercero argues, the
revisions to § 1B1.10 fall squarely within the scope of
Congress’s articulated role for the Commission.
Finally, we reject Tercero’s claim that revised § 1B1.10
is arbitrary and capricious under the Administrative
Procedures Act (“APA”). The Commission is not an agency
subject to the requirements of the APA but “an independent
entity in the judicial branch.” Wash. Legal Found. v. U.S.
Sentencing Comm’n, 17 F.3d 1446, 1450 (D.C. Cir. 1994);
see also United States v. Berberena, 694 F.3d 514, 526–27
(3d Cir. 2012) (holding “the Commission is not required to
abide by the APA’s notice-and-comment provisions when
issuing policy statements”). Although Congress does require
the Commission to hold public hearings in promulgating the
Guidelines, this mandate does not extend to policy
statements. 28 U.S.C. § 994(a)(1), (a)(2) & (x); see Andrade
v. U.S. Sentencing Comm’n, 989 F.2d 308, 309 (9th Cir.
1993) (per curiam). Thus, to the extent Tercero relies on
cases in which we have reviewed agency decisions under the
APA’s “arbitrary and capricious” standard, those cases do not
apply to the Commission’s promulgation of § 1B1.10.
AFFIRMED.