USA v. Gilbert Brito

Filing

FILED OPINION (M. MARGARET MCKEOWN, WILLIAM A. FLETCHER and RAYMOND C. FISHER) VACATED; REMANDED. Judge: MMM Dissenting, Judge: WAF Authoring. FILED AND ENTERED JUDGMENT. [10552986]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 15-30229

v.

D.C. No.
3:12-cr-00328-MO-1

GILBERT BRITO,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief District Judge, Presiding
Argued and Submitted November 7, 2016
Portland, Oregon
Filed August 22, 2017
Before: M. Margaret McKeown, William A. Fletcher,
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge W. Fletcher;
Dissent by Judge McKeown

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UNITED STATES V. BRITO
SUMMARY*

Criminal Law
The panel vacated the district court’s order on the
defendant’s motion under 18 U.S.C. § 3582(c)(2) seeking a
sentence reduction based on retroactive Sentencing
Guidelines Amendment 782 concerning drug offenses, and
remanded for further proceedings.
In determining the term of imprisonment at his original
sentencing, the district court credited the defendant with four
months for time he had served in state custody. In his motion
for reduction of sentence, the defendant sought a similar fourmonth credit. Reducing the defendant’s sentence from 76 to
70 months, the district court believed that it was precluded
from granting the requested credit by U.S.S.G.
§ 1B1.10(b)(2)(A), which provides that a court may not
reduce a “term of imprisonment” to a “term that is less than
the minimum of the amended guideline range.”
The panel held that “term of imprisonment,” as used in
§ 3582(c)(2) and § 1B1.10(b)(2)(A), can include time spent
in state custody, and that if the district court at the original
sentencing gave credit for time spent in state custody in
determining the defendant’s sentence, the “term of
imprisonment” on the motion for sentence reduction can
include the time spent in both federal and state custody. The
panel concluded that the district court in its discretion may
give the defendant credit for the four months he served in
*

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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state custody, thereby reducing his sentence to 66 months in
federal custody.
Dissenting, Judge McKeown wrote that the majority
endeavors to skirt the Guidelines’ affirmative prohibition
against reducing the “term of imprisonment” below the lower
end of the amended guideline range by stretching the decision
in United States v. Drake, 49 F.3d 1438 (9th Cir. 1995), from
a context where it makes sense to one where it does not.

COUNSEL
Stephen R. Sady (argued), Chief Deputy Federal Public
Defender; Elizabeth G. Daily, Research & Writing Attorney;
Office of the Federal Public Defender, Portland, Oregon; for
Defendants-Appellants.
Jeffrey S. Sweet (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; Billy J. Williams, United
States Attorney; United States Attorney’s Office, Eugene,
Oregon; for Plaintiff-Appellee.

OPINION
W. FLETCHER, Circuit Judge:
In April 2015, Gilbert Brito filed a motion under
18 U.S.C. § 3582(c)(2) to reduce his sentence for possession
of heroin with intent to distribute. Section 3582(c)(2)
authorizes a reduction of a defendant’s “term of
imprisonment” if the U.S. Sentencing Commission has
lowered the applicable guideline range pursuant to 28 U.S.C.

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§ 994(o). In November 2014, the Sentencing Commission
had reduced by two most of the offense levels on the Drug
Quantity Tables. The effect of the change was to reduce the
sentencing guideline range for many drug offenses. Brito’s
original guideline range was reduced from 84 to 105 months
to a new range of 70 to 87 months. Brito had originally been
sentenced to 76 months in federal custody. Brito sought a
reduction of his sentence in federal prison to 66 months.
At Brito’s original sentencing, in determining his term of
imprisonment, the district court had credited Brito with four
months for time he had served in state custody. In his motion
for reduction of sentence, Brito sought a similar four-month
credit. The district court believed that it was precluded from
granting the requested credit by U.S.S.G. § 1B1.10(b)(2)(A),
which provides in relevant part that a court may not reduce a
“term of imprisonment” to a “term that is less than the
minimum of the amended guideline range.” The minimum of
Brito’s amended guideline range was 70 months. A fourmonth credit would have reduced the sentence to 66 months
in federal custody. The district court did not believe it had
the authority to treat Brito’s four months in state custody as
part of his “term of imprisonment.” It therefore reduced
Brito’s sentence to 70 months in federal custody.
For the reasons that follow, we conclude that “term of
imprisonment,” as used in 18 U.S.C. § 3582(c)(2) and
U.S.S.G. § 1B1.10(b)(2)(A), can include time spent in state
custody. If the district court at the original sentencing gave
credit for time spent in state custody in determining the
defendant’s sentence, the “term of imprisonment” on the
motion for sentence reduction can include the time spent in
both federal and state custody. In the case now before us, the
district court in its discretion may give Brito credit for the

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four months he served in state custody, thereby reducing his
sentence to 66 months in federal custody and resulting in a
total “term of imprisonment” of 70 months. We vacate and
remand.
I. Background
Brito was charged in federal court with possession of
heroin with intent to distribute, felony possession of a
firearm, and carrying a firearm in furtherance of a drug
trafficking crime. Pursuant to a plea agreement, Brito
pleaded guilty to a single count of possession of heroin with
intent to distribute. The presentence report calculated the
base offense level under the Drug Quantity Table as 26 and
recommended adjustments resulting in a total offense level of
25. Based on his criminal history category of IV, Brito’s
advisory guidelines range was 84 to 105 months. Brito and
the government agreed to recommend a sentence of
80 months imprisonment, which took into account a fourmonth downward variance based on Brito’s guilty plea. Id.
At sentencing in November 2012, Brito’s attorney
Thomas Hester asked for a further reduction, from 80 to 76
months, to take into account four months Brito had served in
state custody after violating conditions of supervision under
a prior Oregon conviction. The conduct constituting the
state-court violation was the same conduct for which Brito
was charged in federal court. Brito had begun serving his
four months in state custody after his arrest on federal
charges. By the time of his original federal sentencing, Brito
had already completed his time in state custody.
The district court accepted the request that Brito be given
credit for his four months in state custody. Because Brito had

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already completed the time, the district court believed that it
could not give him a concurrent sentence. See United States
v. Turnipseed, 159 F.3d 383, 387 (9th Cir. 1998) (“If a
defendant has been released from state prison after having
served the term imposed, no term of imprisonment remains
with which the federal sentence can ‘run concurrently.’”); but
see United States v. Setser, 132 S.Ct. 1463, 1468 (2012)
(“Judges have long been understood to have discretion to
select whether the sentences they impose will run
concurrently or consecutively with respect to other sentences
that they impose, or that have been imposed in other
proceedings, including state proceedings.”). Instead, the
district court gave him credit for time served, thereby
achieving the same result. At sentencing, the district court
asked Brito’s attorney, “Now, just so I’m clear, you’re not
asking for concurrent time because the time has run, you’re
asking me to drop four months in order to account for the
time that’s run; is that right?” After receiving an affirmative
answer, the court said, “Mr. Hester is asking that I do what’s
often done, which is take into account by way of reduction of
time already served essentially for the same criminal conduct.
And so I’m going to do that in this case.” The district court
then sentenced Brito to 76 months in federal custody,
resulting in a total term of imprisonment, in state and federal
custody, of 80 months.
On November 1, 2014, the Sentencing Guidelines were
amended, reducing by two levels the base offense levels for
most federal drug possession and distribution crimes.
Guidelines Amendment 782 lowered the sentencing range for
“offense levels assigned to the quantities that trigger the
statutory mandatory minimum penalties in §2D1.1, and made
parallel changes to §2D1.11.” Guidelines Amendment 788
made Amendment 782 retroactive, allowing prisoners

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sentenced under the old Guidelines to petition for
resentencing under the new Guidelines.
A reduction in sentence after a reduction in the guideline
range is authorized by 18 U.S.C. § 3582(c)(2), which
provides:
[I]n the case of a defendant who has been
sentenced to a term of imprisonment based on
a sentencing range that subsequently been
lowered by the Sentencing Commission
pursuant to 28 U.S.C. § 994(o), . . . the court
may reduce the term of imprisonment, after
considering the factors set forth in section
3553(a) to the extent that they are applicable,
if such a reduction is consistent with
applicable policy statements issued by the
Sentencing Commission.
(Emphases added.)
A reduction in sentence under
§ 3582(c)(2) is not a resentencing. As the Supreme Court
wrote in Dillon v. United States, 560 U.S. 817, 825 (2010):
By its terms, § 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.
(Alteration in original.)

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The “applicable policy statement[] issued by the
Sentencing Commission” provides:
In a case in which a defendant is serving a
term of imprisonment, and the guideline range
applicable to that defendant has subsequently
been lowered as a result of an amendment to
the Guidelines Manual listed in subsection (d)
below, the court may reduce the defendant’s
term of imprisonment as provided by
18 U.S.C. 3582(c)(2).
U.S.S.G. § 1B1.10(a)(1) (emphases added). Amendment 782
is one of the amendments listed in subsection (d). A different
policy statement limits the permissible reduction in sentence:
Except as provided in subdivision (B), the
court shall not reduce the defendant’s term of
imprisonment under 18 U.S.C. § 3582(c)(2)
and this policy statement to a term that is less
than the minimum of the amended guideline
range determined under subdivision (1) of this
subsection.
U.S.S.G. § 1B1.10(b)(2)(A) (emphasis added.) Subdivision
(B) permits a reduction of the term of imprisonment below
the minimum of the amended guideline range for a defendant
who provided “substantial assistance to authorities.”
U.S.S.G. § 1B1.10(b)(2)(B). Brito has not provided
assistance to authorities that would qualify under subdivision
(B).
Based on Amendment 782, Brito moved for a reduction
in sentence under § 3582(c)(2). Under Amendment 782, the

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new base offense level for Brito’s offense is 24. His new
guideline range is 70 to 87 months. In his motion, Brito
sought credit for the four months he had served in state
custody in determining his new “term of imprisonment.” The
district court recognized that the sentencing court had given
Brito a four-month credit at his original sentencing for the
time he had served in state custody: “[T]he sentencing court
lacked any authority to order a concurrent sentence. Due to
this lack of authority, the best explanation for the additional
4-month reduction Defendant received is that it was a
downward variance granted to achieve the functional result of
a concurrent sentence.” However, the district court
concluded that it was precluded, in ruling on Brito’s motion
for a reduction in sentence, from giving him credit for the
time served in state custody. The district court therefore
reduced Brito’s sentence to 70 months in federal custody.
II. Standard of Review
Section 3582(c)(2) “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, 560 U.S. at 825 (alteration in original).
We review for abuse of discretion a district court’s ruling on
a motion under § 3582(c)(2). See United States v. Lightfoot,
626 F.3d 1092, 1094 (9th Cir. 2005). “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 omitted). Whether a district
court can give credit for time previously served in prison is a
question of law that we review de novo. See United States v.
Peters, 470 F.3d 907, 908–09 (9th Cir. 2006) (per curiam).

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III. Discussion

The Sentencing Guidelines provide a regular procedure
for sentencing reductions “in the case of a defendant who has
been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. 994(o).”
18 U.S.C. § 3582(c)(2). District courts must engage in a twostep inquiry to determine if a reduction is appropriate. See
Dillon, 560 U.S. at 826; United States v. Dunn, 728 F.3d
1151, 1155 (9th Cir. 2013). First, a district court must
determine whether a prisoner is eligible for a sentence
reduction under the Commission’s policy statement in
§ 1B1.10. See Dillon, 560 U.S. at 827. Second, a district
court must “consider any applicable § 3553(a) factors and
determine whether, in its discretion, the reduction authorized
by reference to the policies relevant at step one is warranted
in whole or in part under the particular circumstances of the
case.” Id. We have called these steps the “eligibility prong”
and the “discretionary prong.” Dunn, 728 F.3d at 1157. The
eligibility prong is at issue in this case.
Under the eligibility prong, the district court must
“determine the amended guideline range that would have
been applicable to the defendant if the amendment(s) to the
guidelines listed in subsection (d) had been in effect at the
time the defendant was sentenced . . . and shall leave all other
guideline application decisions unaffected.” U.S.S.G.
§ 1B1.10(b)(1).
Section 1B1.10(b)(2)(A) limits the
permissible reduction in sentence. It provides, in relevant
part, that “the court shall not reduce the defendant’s term of
imprisonment under 18 U.S.C. § 3582(c)(2) and this policy
statement to a term that is less than the minimum of the

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amended guideline range determined under subdivision (1) of
this subsection.” § 1B1.10(b)(2)(A).
The Fair Sentencing Act (“FSA”) was designed to
“restore fairness to Federal cocaine sentencing” by
eliminating the unfair distinction between crack and powder
cocaine. Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372 (2010). The Sentencing Commission
promulgated policy statement U.S.S.G. § 1B1.10 as part of its
implementation of the FSA. In the initial version of
§ 1B1.10, a cocaine defendant who had received a belowguidelines departure or variance in his original sentence could
receive a reduced sentence below the amended guideline
range, to a degree comparable to the original belowguidelines sentence. See U.S.S.G. § 1B1.10(b)(2) (2010).
The Commission revised the policy statement two years
later, adopting the statement that governs this case. See
U.S.S.G. § 1B1.10(b)(2) (2012). “Because [§ 1B1.10(b)(2)
(2010)] proved difficult to administer and prompted
litigation, the Commission revised § 1B1.10 . . . to prohibit
courts from reducing a ‘defendant’s term of imprisonment . . .
to a term that is less than the minimum of the amended
guideline range.’” United States v. Tercero, 734 F.3d 979,
981–82 (9th Cir. 2013); see also Notice of Final Action
Regarding Amendment to Policy Statement 1B1.10,
76 Fed.Reg. 41332, 41334 (July 13, 2011). In United States
v. Davis, 739 F.3d 1222 (9th Cir. 2014), we described the
Commission’s rationale for adopting the revised policy
statement:
In adopting revised § 1B1.10(b), the
Commission sought to avoid undue
complexity and litigation and to promote

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uniformity in sentences. The Commission
was also concerned that retroactively
amending the guidelines could result in a
windfall for defendants who had already
received a departure or variance, especially
one that took into account the disparity in
treatment between powder and crack cocaine
that the FSA sought to correct.

Id. at 1225 (citation omitted); see also U.S.S.G. Manual
App’x C, Amend. 759, Reason for Amendment, at 420 (2011)
(“The Commission has determined that . . . a single limitation
applicable to both departures and variances furthers the need
to avoid unwarranted sentencing disparities and avoids
litigation in individual cases.”).
For the reasons that follow, we conclude that a
defendant’s “term of imprisonment,” as used in the statute
and the guideline, includes time spent in both state and
federal custody. See 18 U.S.C. § 3582(c)(2); U.S.S.G.
§ 1B1.10(b)(2)(A). Our conclusion is consistent with United
States v. Drake, 49 F.3d 1438 (9th Cir. 1995), a case in which
we determined whether time previously served in state prison
should be counted as part of the term of imprisonment for
purposes of a federal statutory mandatory minimum. See id.
at 1440–41. Anthony Drake had been convicted of armed
robbery and had been sentenced to sixty-six months in an
Oregon prison. See id. at 1439. While he was serving his
state sentence, Drake pleaded guilty in federal court to
possession of the handgun used in the Oregon robbery.
Because he had previously been convicted of three violent
felonies, he was subject to a mandatory minimum of
180 months under 18 U.S.C. § 924(e)(1). See id. Drake and

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the government agreed to a 188-month federal term of
imprisonment.
At the time of his federal sentencing, Drake had fifty-four
months yet to serve in state prison. He had already served
twelve months. All parties agreed that the federal sentence
could run concurrently with the fifty-four months remaining
in state custody. The contested issue was whether, in
determining the time to be spent in federal custody, Drake
could be given credit for the twelve months he had already
served in state custody. If he received credit for the twelve
months, Drake would serve only 176 months in federal
prison, four months less than the federal statutory mandatory
minimum. We framed the question as follows: “We thus
must determine whether Drake’s state sentence constitutes
‘imprisonment’ for the purposes of 18 U.S.C. § 924(e)(1)
such that the total sentence served will satisfy the mandatory
minimum.” Id. at 1440 (emphasis added). We concluded
that Drake’s twelve months already served in state custody
counted as part of his federal term of imprisonment, and that
he should therefore be sentenced to 176 months in federal
custody. See id. at 1440–41.
We hold here, as we concluded in Drake, that time
already served in state custody “constitutes ‘imprisonment’”
under the applicable federal law. In Drake, the applicable
federal law was the 180-month mandatory minimum
specified in § 924(e)(1). Here, the applicable federal law is
the reduction in sentence authorized in § 3582(c)(2) and the
minimum of the amended guideline range referred to in
§ 1B1.10(b)(2)(A). Because we conclude that the time Brito
has already served in state custody is part of his “term of
imprisonment” under §§ 3582(c)(2) and § 1B1.10(b)(2)(A),
we hold that the district court, in making its resentencing

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determination, has the authority to give credit for the four
months Brito already served in state custody.
This understanding of “imprisonment” accords with our
understanding of “imprisonment” in Drake. It is also
consistent with the Commission’s policy rationale for
adopting the current version of § 1B1.10(b)(2), which we
described in Davis. Allowing a district court to count time
already served in state custody does not return the court and
the parties to the complex calculations and lack of uniformity
that led to the abandonment of the initial version of
§ 1B1.10(b)(2). See Davis, 739 F.3d at 1225. Further,
counting time already served will not “result in a windfall for
defendants who had already received a departure or variance
. . . that took into account the disparity in treatment between
powder and crack cocaine that the FSA sought to correct.”
Id. A departure or variance based on time already served in
state custody is not based on the disparity between powder
and crack cocaine. Far from giving a windfall, such a
reduction in sentence provides fair treatment to those who
have completed their time in state custody and for whom a
concurrent sentence is therefore no longer available.
Finally, allowing a district court to count time already
served in state custody as part of the “term of imprisonment”
under § 1B1.10(b)(2)(A) does not result in a resentencing by
that court. See Dillon, 560 U.S. at 825 (Ҥ 3582(c)(2) does
not authorize a . . . resentencing proceeding.”). The reduction
in sentence authorized under § 3582(c)(2) and § 1B1.10 rests
on the new guideline calculation under Amendment 782.
That calculation is the basis—and the only basis—upon
which a sentence may be reduced. Section 1B1.10(b)(2)(A)
limits the amount by which a sentence may be reduced by
specifying that the new “term of imprisonment” may be no

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lower than the minimum of the new guideline range.
Defining “term of imprisonment” to include time spent in
state custody tells a district court how to understand the
limitation imposed by § 1B1.10(b)(2)(A). It does not change
the calculation that results in the new guideline range, and it
does not transform a reduction in sentence into a
resentencing.
Conclusion
We conclude that the district judge had the authority on
a motion for sentence reduction to take Brito’s four months
in state custody into account in reducing his sentence under
18 U.S.C. § 3582(c)(2). Because the district court reduced
Brito’s sentence to only 70 months, believing it had no
authority to reduce it further, we vacate and remand for
further proceedings consistent with this opinion.
VACATED and REMANDED.

McKEOWN, Circuit Judge, dissenting:
The key issue in this appeal is whether the phrase “term
of imprisonment” in 18 U.S.C. § 3582(c)(2) and the federal
Sentencing Guidelines includes time already served in state
custody such that the court is not bound by the guideline
minimum. The majority says yes, but I respectfully dissent.
The statute relates to reduction of an original sentence based
on retroactive changes to the Guidelines. However, the
Guidelines affirmatively prohibit reducing the “term of
imprisonment” below the lower end of the amended guideline

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range.1 The majority offers no precedent on this “term of
imprisonment” question but endeavors to skirt the guideline
restriction by reference to United States v. Drake, 49 F.3d
1438 (9th Cir. 1995). In my view, the majority stretches the
decision in Drake from a context where it makes sense to one
where it does not.
In Drake, which involved an original sentencing, we
concluded that district courts may run concurrent federal and
state sentences consecutively to meet a mandatory minimum.
Id. at 1440–41. Gilbert Brito’s case is missing all of the
crucial elements. Most importantly, Brito’s appeal stems
from a sentence-reduction proceeding where much of the
court’s sentencing discretion has evaporated. Second, we
don’t have concurrent sentences because Brito had already
completed his state sentence at the time of his federal
sentencing. The original-sentencing judge and Brito’s
attorney acknowledged that “[Brito was] not asking for
concurrent time because the [state] time ha[d] run.” These
material differences render Drake inapposite to Brito’s case.
The distinction between an original sentencing and a
sentence reduction is not insignificant. Conflating the two
proceedings flouts Congress’s expressed intention to cabin
district courts’ discretion in the latter. The Supreme Court
has emphasized that § 3582(c)(2) “authorize[s] only a limited
adjustment to an otherwise final sentence and not a plenary
resentencing proceeding.” Dillon v. United States, 560 U.S.
817, 826 (2010).

1

The Guidelines include an exception when a defendant provides
substantial assistance to the government. U.S.S.G. § 1B1.10(b)(2)(B).
For ease of reading, I do not reiterate the exception each time I state the
general rule.

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Reflective of that dichotomy, stark differences are
apparent on the face of the statute at issue in Drake and the
provisions here. The sentencing statute in Drake, 18 U.S.C.
§ 924(e)(1), does not use the Guideline’s “term of
imprisonment” phrase at all. Instead, it provides that the
defendant “shall be . . . imprisoned not less than fifteen
years.” That language centers on the length of time that the
defendant is to be “imprisoned,” which plausibly could
include time served on a concurrent state sentence. So long
as the defendant spends at least fifteen total years in prison,
the statutory requirement has been satisfied because
“[§ 924(e)(1)] does not specify any particular way in which
that imprisonment should be achieved.” United States v.
Cruz, 595 F.3d 744, 746 (7th Cir. 2010) (citation omitted).
The verbiage in § 924(e)(1) stands in sharp contrast to the
restrictive language of the Guideline, U.S.S.G.
§ 1B1.10(b)(2)(A), which states that “the court shall not
reduce the defendant’s term of imprisonment under 18 U.S.C.
§ 3582(c)(2) and this policy statement to a term that is less
than the minimum of the amended guideline range.” That
language dictates in forceful terms that a court may not drop
a sentence below the guideline minimum. Whereas
§ 924(e)(1) looks to the length of time the defendant is to be
imprisoned, § 1B1.10(b)(2)(A) restricts the court’s ability to
impose a particular term of imprisonment. That difference in
focus makes sense because an original sentencing involves a
judgment about how long a defendant should serve, while a
sentence reduction allows minor modifications based on
Guidelines changes but without authorizing a comprehensive
resentencing.
More to the point, § 1B1.10(b)(2)(A) links the phrase
“term of imprisonment” to the implementing statute, but

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§ 3582(c)(2) cannot bear Drake’s state-plus-federal-time
interpretation. “Term of imprisonment” appears twice in
§ 3582(c)(2):
[I]n the case of a defendant who has been
sentenced to a term of imprisonment based on
a sentencing range that has subsequently been
lowered by the Sentencing Commission . . . ,
the court may reduce the term of
imprisonment, after considering the factors set
forth in section 3553(a) to the extent that they
are applicable, if such a reduction is
consistent with applicable policy statements
issued by the Sentencing Commission.
(Emphases added.)
In the first clause, “term of
imprisonment” cannot include state time because district
courts are not empowered to “sentence [a defendant] to” state
time, although state time may be subtracted to achieve a fair
federal sentence. The second clause similarly focuses on the
district court’s authority, which is limited to fashioning a
federal, not state, sentence. And at multiple places,
§ 3582(c)(2) references aspects of distinctly federal
sentencing procedure, i.e., the federal Guidelines and the
federal statutes. Read together, § 1B1.10(b)(2)(A) and
§ 3582(c)(2) leave no room for Drake: the bottom of the
amended guideline range provides the absolute floor for the
federal sentence.
In light of this unyielding language, it’s no
wonder that our precedent consistently and
forcefully states that “a court cannot reduce
the sentence to a term ‘that is less than the
minimum of the amended [guideline] range.’”

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UNITED STATES V. BRITO

19

United States v. Finazzo, 841 F.3d 816, 818
(9th Cir. 2016) (quoting § 1B1.10(b)(2)(A)).2
The majority unjustifiably breaks from this
line of authority and creates an anomaly for
defendants who have served state time,
upending the streamlined sentence-reduction
proceeding that Congress sought to institute.
Even on its own terms, the majority’s solution
to incorporate discharged state time into the
phrase “term of imprisonment” is difficult to
understand because the Guidelines treat
discharged state time as a departure. See
U.S.S.G. § 5K2.23. In view of these
structural and linguistic statutory differences,
Drake cannot simply be carried over from the
original-sentencing context to the sentencereduction context.
Another key difference compounds the majority’s error:
Drake, unlike this case, involved concurrent sentences. The
court in Drake relied on that fact, framing the issue as one
about “the relation between the concurrent sentencing statutes
and the statutory mandatory minimums” and grounding its
reasoning in “concurrent sentencing principles.” 49 F.3d at
1440–41 (citation omitted). As the Supreme Court later
validated, “[j]udges have long been understood to have
discretion to select whether the sentences they impose will
2

See also United States v. Davis, 739 F.3d 1222, 1224 (9th Cir. 2014)
(“[Section 1B1.10(b)(2)(A)] prohibits a court from reducing a defendant’s
sentence to a term that is less than the minimum of the amended
guidelines range . . . .”); United States v. Tercero, 734 F.3d 979, 982 (9th
Cir. 2013) (“[T]he district court concluded correctly that under the revised
version of § 1B1.10, it could not adjust [the defendant]’s sentence below
70 months.”).

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20

UNITED STATES V. BRITO

run concurrently or consecutively.” Setser v. United States,
566 U.S. 231, 236 (2012).
Unlike in Drake, we cannot draw on that background rule
of broad discretion here because our case does not involve
concurrent sentences, as the majority tacitly concedes. Our
case law is crystal clear that “[i]f a defendant,” like Brito,
“has been released from state prison after having served the
term imposed, no term of imprisonment remains with which
the federal sentence can ‘run concurrently.’” United States v.
Turnipseed, 159 F.3d 383, 387 (9th Cir. 1998); see also
Sentence, Black’s Law Dictionary (10th ed. 2014) (defining
“concurrent sentences” as “[t]wo or more sentences of jail
time to be served simultaneously”). The relevant statutory
provision and Guideline use “concurrently” in the same way:
they refer to running a sentence “concurrently” with another
that is “undischarged” or imposed “at the same time.” See
18 U.S.C. § 3584(a); U.S.S.G. § 5G1.3(b)(2). And if all of
that weren’t enough, Brito’s attorney and the originalsentencing judge explicitly disavowed that this case involves
concurrent sentencing. This acknowledgement puts even
more distance between our case and Drake.
We should follow § 1B1.10(b)(2)(A) and uphold the
district court’s conclusion that it could not sentence Brito
below the bottom of the amended guideline range. Thus, the
district court properly stated that it could give Brito no less
than 70 months. Because Brito’s remaining statutory and
constitutional arguments were rejected in United States v.
Padilla-Diaz, 862 F.3d 856 (9th Cir. 2017), I would affirm.