USA v. Tina-Marie Finazzo

Filing

FILED OPINION (J. CLIFFORD WALLACE, JEROME FARRIS and PAUL J. WATFORD) AFFIRMED. Judge: JCW Authoring. FILED AND ENTERED JUDGMENT. [10192772]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 15-10272
D.C. No.
1:11-cr-00383-LEK-1

TINA-MARIE FINAZZO,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Argued and Submitted October 18, 2016
Honolulu, Hawaii
Filed November 10, 2016
Before: J. Clifford Wallace, Jerome Farris,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Wallace

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UNITED STATES V. FINAZZO
SUMMARY*

Criminal Law
The panel affirmed the district court’s order granting in
part and denying in part Tina-Marie Finazzo’s motion for a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based
on a retroactive 2014 amendment that lowered her applicable
Sentencing Guidelines range.
At the original sentencing, the probation office
recommended a downward variance, and the government
assented with the caveat that it was not making a motion for
a downward departure under U.S.S.G. § 5K1.1 based on
substantial assistance to authorities. The district court
adopted the recommendation and imposed a 172-month
sentence based in part on Finazzo’s early and extensive
cooperation with law enforcement.
On Finazzo’s § 3582(c)(2) motion, the district court
reduced her sentence to the bottom of the amended
Guidelines range, 168 months, but denied her request for a
downward variance comparable to what she received as part
at her original sentencing because the initial variance was not
based on her substantial assistance to authorities.
Under U.S.S.G. § 1B1.10(b)(2)(B), a reduction
comparably less than the amended Guidelines range may be
appropriate for a defendant who received at the time of
sentencing a below-Guidelines sentence as the result of “a
*

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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UNITED STATES V. FINAZZO

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government motion to reflect the defendant’s substantial
assistance to authorities.”
The panel held that the
government’s conduct in this case did not amount to a
motion, and rejected Finazzo’s argument that the canon of
constitutional avoidance and the rule of lenity compel
interpretation of § 1B1.10(b)(2)(B) as being triggered by a
government motion under 18 U.S.C. § 3553(a).

COUNSEL
Craig W. Jerome (argued) and Salina Kanai Althof, Assistant
Federal Public Defenders; Peter C. Wolff, Jr., Federal Public
Defender; Hawaii Federal Public Defender, Honolulu,
Hawaii; for Defendant-Appellant.
Thomas Muehleck (argued), Assistant United States
Attorney; Florence T. Nakakuni, United States Attorney;
United States Attorney’s Office, Honolulu, Hawaii; for
Plaintiff-Appellee.

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UNITED STATES V. FINAZZO
OPINION

WALLACE, Senior Circuit Judge:
Appellant Tina-Marie Finazzo appeals from the district
court’s judgment, challenging its order granting in part and
denying in part her motion for a sentence reduction. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I.
We review sentence reductions under 18 U.S.C.
§ 3582(c)(2) for abuse of discretion. United States v. Dunn,
728 F.3d 1151, 1155 (9th Cir. 2013). “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.” Id., quoting United States v. Lightfoot, 626 F.3d 1092,
1094 (9th Cir. 2010).
II.
Finazzo pleaded guilty in 2011 to one count of conspiracy
to distribute and to possess with intent to distribute fifty
grams or more of methamphetamine. Her United States
Sentencing Guidelines (Guidelines) range was 210 to 262
months’ imprisonment, but the probation office
recommended a downward variance to 172 months. The
government assented to this recommendation with the caveat
that it was not making a motion for a downward departure
under Guidelines § 5K1.1. At sentencing, the district court
adopted the recommendation and imposed a 172-month
sentence, based in part on Finazzo’s “early and extensive
cooperation with law enforcement.”

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The United States Sentencing Commission (Commission)
subsequently lowered the sentencing range for Finazzo’s
crime. Commission Guidelines Manual, app. C, amend. 782
(2014). Finazzo then moved the district court to reduce her
sentence pursuant to 18 U.S.C. § 3582(c)(2), which permits
such reductions when the Commission has lowered the
applicable Guidelines range after sentencing. The court
granted that motion in part, reducing Finazzo’s sentence to
168 months—the bottom of the amended Guidelines range.
But it denied Finazzo’s request for a downward variance
comparable to what she had received as part of her original
sentence because the initial variance was not based on her
“substantial assistance.” Finazzo appeals.
III.
When granting a sentence reduction under 18 U.S.C.
§ 3582(c)(2), a court cannot reduce the sentence to a term
“that is less than the minimum of the amended [G]uideline[s]
range.” Guidelines § 1B1.10(b)(2)(A). There is an exception
to this rule for a defendant who originally received a belowGuidelines sentence as the result of “a government motion to
reflect the defendant’s substantial assistance to authorities.”
Id. § 1B1.10(b)(2)(B). In such a case, “a reduction
comparably less than the amended [G]uideline[s] range . . .
may be appropriate.” Id.
Finazzo argues, as she did in the district court, that the
government made such a motion at her sentencing, and she is
therefore entitled to a more significant reduction. She
acknowledges that the government never filed a written
motion; nevertheless, she contends that it made an oral
“motion” by adopting the probation office’s recommended

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UNITED STATES V. FINAZZO

sentence and not objecting when the court attributed the
request for a lower sentence to the government.
We have defined a motion as “[a] written or oral
application requesting a court to make a specified ruling or
order.” SEC v. McCarthy, 322 F.3d 650, 657 (9th Cir. 2003)
(alteration in original), quoting Black’s Law Dictionary 1031
(7th ed. 1999). Assuming arguendo that this definition
applies in the Guidelines context, the government’s statement
that it “ha[d] no problem” with the probation office’s
recommendation cannot fairly be called a motion. This
acquiescence was not a request or even a suggestion that the
court impose a particular sentence. The government merely
refrained from objecting or offering its own recommendation.
A motion requires an affirmative act of solicitation, and this
passive conduct does not qualify. We therefore hold that the
government’s conduct in this case did not amount to a
motion.
The commentary to section 1B1.10(b)(2)(B) buttresses
this conclusion. According to Application Note 3, three
provisions authorize a motion reflecting a defendant’s
substantial assistance: Guidelines § 5K1.1, 18 U.S.C.
§ 3553(e), and Federal Rule of Criminal Procedure 35(b).
Guidelines § 1B1.10 cmt. n.3. The Guidelines thus
contemplate that such a motion will, in some manner, be tied
to one of these provisions. That did not happen here. In fact,
the government stated explicitly that it was not making a
motion under Guidelines § 5K1.1. Consequently, it would
undermine the Guidelines’ expectations to call the
government’s conduct in this case a motion.
Finazzo also argues that the canon of constitutional
avoidance and the rule of lenity compel us to interpret section

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UNITED STATES V. FINAZZO

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1B1.10(b)(2)(B) as being triggered by a government motion
under 18 U.S.C. § 3553(a). To the extent that this argument
encompasses the question of whether the government made
a motion at all, neither the rule of lenity nor the canon of
constitutional avoidance applies. Both rules require that the
statute at issue be ambiguous, and this statute is not
ambiguous. See Almendarez-Torres v. United States, 523 U.S.
224, 237–38 (1998) (canon of constitutional avoidance);
United States v. Bendtzen, 542 F.3d 722, 727–28 (9th Cir.
2008) (rule of lenity). Accordingly, we affirm the district
court’s ruling.
AFFIRMED.