FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

DAVID JAMES SAINZ, 

Defendant-Appellant.

Nos. 17-10310

17-10311

17-10312

D.C. Nos.

5:11-cr-00894-BLF-1

5:11-cr-00712-BLF-2

5:11-cr-00640-BLF-3

OPINION

Appeals from the United States District Court

for the Northern District of California

Beth Labson Freeman, District Judge, Presiding

Argued and Submitted November 16, 2018

San Francisco, California

Filed August 12, 2019

Before: A. Wallace Tashima and Milan D. Smith, Jr., 

Circuit Judges, and Lawrence L. Piersol,* District Judge.

Opinion by Judge Piersol

* The Honorable Lawrence L. Piersol, United States District Judge 

for the District of South Dakota, sitting by designation.
2 UNITED STATES V. SAINZ

SUMMARY**

Criminal Law

Reversing the district court’s denial of a motion for a 

sentence reduction under 18 U.S.C. § 3582(c)(2) and 

remanding for further proceedings, the panel held that a 

district court may not sua sponte raise a defendant’s waiver 

of the right to file a § 3582(c)(2) motion and deny the motion 

on that ground.

COUNSEL

Carman A. Smarandoiu (argued), Chief, Appellate Unit; 

Steven G. Kalar, Federal Public Defender; Office of the 

Federal Public Defender, San Francisco, California; for 

Defendant-Appellant.

Merry J. Chan (argued), Assistant United States Attorney; J. 

Douglas Wilson, Chief, Appellate Division; United States 

Attorney’s Office, San Francisco, California; for PlaintiffAppellee.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. SAINZ 3

OPINION

PIERSOL, District Judge:

In this case of first impression, we consider whether a 

district court may sua sponte raise a defendant’s waiver of 

the right to seek relief under 18 U.S.C. § 3582(c)(2) and 

deny the defendant’s motion for resentencing on that ground. 

We hold that it may not. Accordingly, we reverse the district 

court’s denial of David Sainz’s motion for a sentence 

reduction.

I. Background

In July 2012, Sainz pleaded guilty to six drug offenses. 

Sainz’s advisory sentence range under the United States 

Sentencing Guidelines was 188–235 months in prison. The 

district court sentenced Sainz to 188 months in prison.

Sainz filed a notice of appeal, but later dismissed his 

appeals when he and the government entered into a postconviction cooperation agreement. That agreement stated 

that Sainz’s sentence would be reduced if he provided 

substantial assistance to the government. The agreement 

contained an express waiver of Sainz’s right to seek relief 

under 18 U.S.C. § 3582(c)(2).

The government abided by its promise. It filed a motion 

to reduce Sainz’s sentence under Federal Rule of Criminal 

Procedure 35(b)(2), and recommended a 151-month prison 

sentence. Sainz asked the court for the mandatory minimum 

sentence of 120 months in prison.

On October 21, 2014, the district court held a 

resentencing hearing. Sainz raised “the prospect of [an] 

additional two-point reduction for . . . the congressional 
4 UNITED STATES V. SAINZ

amendment, which doesn’t take [e]ffect until Congress’s 

failure to act on November 1st. Which I guess we can all 

expect.” Sainz was referring to a forthcoming amendment 

to USSG § 2D1.1, which would lower by two levels the base 

offense level for Sainz’s convictions. Although the 

amendment had not yet been enacted, the court agreed that 

the amendment was likely to take effect on November 1 

because “[y]ou can expect Congress to do nothing.” Sainz 

and the sentencing judge then engaged in a colloquy about 

whether the court could sentence Sainz below the 120-month 

mandatory minimum sentence. The court concluded that 

“Rule 35 opens the door to [a sentence] below the mandatory 

minimum . . . . The power of the court is such that I could 

reduce the sentence [below the mandatory minimum].”

The court sentenced Sainz to 120 months in prison. 

Following the imposition of the sentence, the government 

asked the court whether the sentence was “in contemplation 

of the expected two-level guideline reduction.” The 

sentencing judge responded that he

[had taken] that into consideration . . . I have 

taken [into] consideration the reduction that 

comes with that because of the motion made 

by the court, made and accepted by the court 

. . . [I] have before me the anticipation that 

the next week there will be a reduction of the 

sentence level . . . all of that consideration 

leads to my conclusion that a sentence of 120 

months is sufficient under the circumstances.

In October 2015, Sainz moved for a reduction of his 120-

month sentence under 18 U.S.C. § 3582(c)(2), which allows 

resentencing for “a defendant who has been sentenced to a 

term of imprisonment based on a sentencing range that has 
UNITED STATES V. SAINZ 5

subsequently been lowered.” Under Amendment 782, 

Sainz’s Guidelines range had been reduced from 188–235 

months in prison to 151–188 months in prison.

The district court1 denied Sainz’s motion. The court 

based its holding on the fact that “Sainz expressly waived 

the right to seek relief under 18 U.S.C. § 3582,” even though 

neither party had raised the waiver. The court also declined 

to consider a reduction to Sainz’s sentence sua sponte on the 

ground that “[the district court] expressly considered the 

potential effect of then-expected Amendment 782 in 

determining the appropriate sentence reduction for Sainz’s 

cooperation.”

II. Standard of Review

This Court reviews for abuse of discretion a district 

court’s decision to grant or deny a sentence reduction under 

18 U.S.C. § 3582(c)(2). 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)). Whether a district court may sua sponte raise a 

defendant's waiver of the right to seek relief under 18 U.S.C. 

§ 3582(c)(2) is a legal question, which we review de novo. 

See United States v. Chaney, 581 F.3d 1123, 1125 (9th Cir. 

2009) (questions of law underlying a district court’s denial 

of a motion under 18 U.S.C. § 3582(c)(2) are reviewed de 

novo).

1 Judge D. Lowell Jensen, who originally sentenced Sainz in 

October 2014, retired from the bench in November 2014. Accordingly, 

the case was reassigned to Judge Beth Labson Freeman.
6 UNITED STATES V. SAINZ

III. Discussion

We begin our analysis by noting that no circuit has 

directly addressed whether it is appropriate for a district 

court to invoke sua sponte a defendant’s waiver in an 

agreement with the government of the right to file a 

§ 3582(c)(2) motion. Indeed, the government does not cite 

a single case in which a district court sua sponte raised the 

defendant’s waiver of such a right after the government 

failed to raise it.

Although we have not addressed whether a district court 

may raise a defendant’s waiver, we have concluded that, on 

appeal, courts should not raise waiver sua sponte. If the 

government does not raise the argument in the district court 

that a defendant has waived the right to bring a § 3582(c)(2) 

motion in a plea agreement, we have held that the 

government has waived the right to make this argument on 

appeal. We addressed the issue tangentially in United States 

v. Chaney, 581 F.3d 1123 (9th Cir. 2009). In Chaney, the 

defendant sought a sentence reduction under § 3582(c)(2). 

The district court denied the § 3582(c)(2) motion on the 

merits. See id. at 1125. In her plea agreement, the defendant 

had waived her rights “to appeal any aspect of her sentence 

as long as her sentence is no longer than the top of the 

sentencing guidelines range” and “to bring a post-conviction 

attack on her . . . sentence.” Id. at 1124 n.1. Because the 

government had not sought to enforce the defendant’s 

agreement not to seek a sentence reduction in the district 

court, we expressly declined to address whether the 

defendant waived her right to file the § 3582(c)(2) motion or 

to appeal from its denial. See id.

We also declined to raise a waiver sua sponte in 

Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2010). There, 

we held that, even though the defendants may have waived 
UNITED STATES V. SAINZ 7

the issue of whether they were entitled to qualified immunity 

by failing to raise the issue in the district court, the plaintiff 

waived the waiver because he failed to raise it on appeal and 

instead addressed qualified immunity on the merits. See id. 

at 1068 (“[We] will not address waiver if not raised by the 

opposing party.”). We addressed defendants’ qualified 

immunity defense on the merits and concluded they were 

entitled to qualified immunity. Id. at 1070. The holding in 

Norwood on waiver was not unequivocal, however, because 

we also noted that even if we had discretion to sua sponte 

enforce the waiver, we would choose not to do so because 

“the more prudent course is to resolve the case on the basis 

of the issues actually briefed and argued by the parties.” Id.

at 1068.

The government, relying on two habeas cases, contends 

that the district court was permitted to sua sponte raise 

Sainz’s waiver because the government was silent about the 

waiver and, therefore, its waiver was not shown to be 

intentional. See Day v. McDonough, 547 U.S. 198 (2006), 

and Wood v. Milyard, 566 U.S. 463 (2012). We conclude 

that neither case supports the government’s argument.

In Day, which the government relied on for the first time 

at oral argument, the Supreme Court held that a district court 

had the authority to raise sua sponte the § 2244(d) statute of 

limitations defense and dismiss the petition as untimely even 

though the State’s answer had expressly conceded the 

timeliness of the petition. 547 U.S. at 202. Because 

§ 2244(d) is not jurisdictional, “courts are under no 

obligation to raise the time bar sua sponte.” Id. at 205 

(emphasis omitted). But the Court held that “the limitations 

defense resembles other threshold barriers—exhaustion of 

state remedies, procedural default, nonretroactivity—courts 

have typed ‘nonjurisdictional,’ although recognizing that 
8 UNITED STATES V. SAINZ

those defenses ‘implicat[e] values beyond the concerns of 

the parties.’” Id. (quoting Acosta v. Artuz, 221 F.3d 117, 123 

(2d Cir. 2000)). “The considerations of comity, finality, and 

the expeditious handling of habeas proceedings that 

motivated AEDPA . . . counsel against an excessively rigid 

or formal approach to the affirmative defenses now listed in 

Habeas Rule 5.” Id. at 208 (citing Granberry v. Greer, 481 

U.S. 129, 131–34 (1987)). The Court recognized that “it 

would make scant sense to distinguish in this regard 

AEDPA’s time bar from other threshold constraints on 

federal habeas petitioners.” Id. at 209. The Court also 

stated, however, that “should a State intelligently choose to 

waive a statute of limitations defense, a district court would 

not be at liberty to disregard that choice,” id. at 210 n.11, as 

it would be “an abuse of discretion to override a State’s 

deliberate waiver of a limitations defense,” id. at 202.

The Court in Day concluded that the State’s concession 

that the habeas petition was timely was a mistake that was 

patent on the face of the State’s filings; the district court had 

“confronted no intelligent waiver on the State’s part, only an 

evident miscalculation of the elapsed time under a statute 

designed to impose a tight time constraint on federal habeas 

petitioners.” Id. at 202; see also id. at 203 (explaining that 

the State had miscalculated the deadline by “[o]verlooking 

controlling Eleventh Circuit precedent”). There was 

“nothing in the record suggest[ing] that the State 

‘strategically’ withheld the defense or chose to relinquish it.” 

Id. at 211. Accordingly, the Court held that the district court 

had the discretion to raise the issue.2

2 But “before acting on its own initiative, a court must accord the 

parties fair notice and an opportunity to present their positions,” it must 

“assure itself that the petitioner is not significantly prejudiced by the 
UNITED STATES V. SAINZ 9

Day does not support the weight that the government 

puts on it. The State in Day made a mistake in calculating 

the tolled time for the statute of limitations, and the district 

court confronted a petition that was obviously untimely. 

Here, the government never claimed in its appellate brief that 

it inadvertently failed to invoke Sainz’s waiver, and there is 

no obvious mistake about the waiver as there was in the 

State’s calculation of the tolled time in Day. Instead, the 

government omitted an argument based on facts of which it 

was well aware: Sainz had waived his right to file a 

§ 3582(c)(2) motion as part of the post-conviction 

cooperation agreement that the government entered into with 

him. Nevertheless, the government never relied on that 

waiver when addressing the § 3582(c)(2) motion before the 

district court. Furthermore, the policy concerns surrounding 

§ 2254 habeas petitions and the rules that favor allowing the 

district court to raise the timeliness of a habeas petition sua 

sponte are not present in this case. For these reasons we find 

that Day is not applicable to this case.

Wood also is not persuasive authority for the 

government’s position. In Wood, the movant filed a § 2254 

habeas petition that was arguably untimely. Wood, 566 U.S. 

at 474. The State told the district court that it would not 

challenge the timeliness of the petition and the district court 

addressed the petition on the merits. Id. The Supreme Court 

delayed focus on the limitation issue,” and it must “determine whether 

the interests of justice would be better served by addressing the merits or 

by dismissing the petition as time barred.” Id. at 210 (quoting Granberry, 

481 U.S. at 136) (other citations and quotations omitted). Here, Sainz 

was not given notice and an opportunity to address waiver, he was 

prejudiced when his motion for a sentence reduction was denied based 

on the waiver, and the record shows that the government waived the 

waiver. These considerations support our conclusion that the district 

court should not have sua sponte raised Sainz’s waiver.
10 UNITED STATES V. SAINZ

ruled that, given that the State deliberately waived its 

challenge to the timeliness of the petition, the Tenth Circuit 

abused its discretion by ignoring the district court’s review 

of the merits of Wood’s petition and sua sponte dismissing 

the petition on statute of limitations grounds. Id. (noting that 

“the State . . . deliberately steered the District Court away 

from the question and towards the merits of Wood’s 

petition”).

The government argues that, in contrast to Wood, there 

is no evidence it intentionally refrained from invoking 

Sainz’s waiver of his right to file a § 3582(c)(2) motion, and 

thus the district court properly denied the motion by sua 

sponte raising Sainz’s waiver.

But the situation here differs from Wood. The 

government’s silence about Sainz’s waiver did not lead the 

district court to ask if the government wished to intentionally 

relinquish or abandon the defense, and the government did 

not expressly disavow the waiver. The government has not 

pointed to any evidence in the record that it inadvertently 

failed to raise Sainz’s waiver below. We decline to hold that 

the government’s silence about a defendant’s waiver of the 

right to file a § 3582(c)(2) motion allows the district court to 

sua sponte raise the waiver.

Indeed, we have held that the government can waive 

waiver by failing to assert it. United States v. Tercero, 734 

F.3d 979, 981 (9th Cir. 2013) (“It is well-established that the 

government can waive waiver implicitly by failing to assert 

it.”) (quoting Norwood, 591 F.3d at 1068). In other words, 

the government must do more than remain silent; it must 

expressly invoke the waiver to avoid waiving it. 

Accordingly, because the Day and Wood habeas cases do not 

control the outcome here, under our law and the 

circumstances in this case, it would be an abuse of discretion 
UNITED STATES V. SAINZ 11

for the court to conclude that the government’s silence and 

failure to invoke the waiver of the right to file the 

§ 3582(c)(2) motion allows the district court to raise the 

waiver on its own volition.

We are also persuaded by the reasoning of several 

circuits that have declined to raise sua sponte a defendant’s 

waiver of his right to appeal his sentence if the government 

did not raise the issue. The Tenth Circuit has recognized that 

the obligation to raise a waiver of a right to appeal rests 

solely with the government; if the government does not raise 

the issue, it is forfeited. See United States v. Calderon, 428 

F.3d 928 (10th Cir. 2005). The Tenth Circuit explained that 

one of the reasons for this result, “rooted in the adversarial 

character of litigation,” is that in some cases “the 

government might conclude that justice would be better 

served by allowing a criminal defendant to appeal a 

wrongful sentence, even when the plea agreement included 

an appeal waiver.” Calderon, 428 F.3d at 931. Likewise, in 

United States v. Garner, 519 F.App’x 823 (4th Cir. 2013), 

the Fourth Circuit stated its policy not to sua sponte raise a 

defendant’s waiver of his right to appeal. See id. at 825 

(citing United States v. Poindexter, 492 F.3d 263, 271 (4th 

Cir. 2007); United States v. Blick, 408 F.3d 162, 168 (4th 

Cir. 2005)).

Sainz relies heavily on Burgess v. United States, 874 

F.3d 1292 (11th Cir. 2017), where the defendant expressly 

waived his right to bring a § 2255 motion as part of his plea 

agreement and, after he filed a § 2255 motion, the 

government did not argue that the defendant had waived this 

right. The district court, sua sponte and without notice to the 

parties, denied one of the § 2255 claims based on the waiver, 

even though the government did not invoke it. Id. at 1294–

95. The Eleventh Circuit reversed, holding that the rules 
12 UNITED STATES V. SAINZ

applicable to civil cases rather than the reasoning of Day and 

Wood apply to a waiver of the right to file a § 2255 motion. 

See id. at 1299. Those rules require the parties to assert 

affirmative defenses. See id. at 1296–97. The Eleventh 

Circuit distinguished the concerns underlying a district 

court’s sua sponte raising a habeas procedural defense such 

as timeliness in Day and Wood from a district court’s 

invocation of a collateral-action waiver in a privately 

negotiated plea agreement.

First, the latter “does not reflect an institutionally 

determined judgment that concerns of finality and judicial 

economy generally outweigh the interest of ensuring that a 

defendant has been convicted and sentenced within the 

bounds of the law.” Id. at 1299. Second, allowing courts 

sua sponte to invoke collateral-attack waivers contravenes 

“the usual rule in our party-presentation system,” which 

“requires the parties to invoke their own claims and 

defenses.” Id. at 1300. “If a court engages in what may be 

perceived as the bidding of one party by raising claims or 

defenses on its behalf, the court may cease to appear as a 

neutral arbiter, and that could be damaging to our system of 

justice.” Id. Third, “the neutral-arbiter concern is particularly 

apt when the court invokes an affirmative defense on behalf 

of the government, where the only source of the defense 

stems from the plea agreement.” Id. The Eleventh Circuit 

noted that the integrity of the courts could be impaired if they 

invoke the benefits of plea agreements on behalf of the 

government when Federal Rule of Criminal Procedure 

11(c)(1) prohibits courts from participating in pleanegotiations in the first instance.

Applying the Civil Rules, the Eleventh Circuit held that 

the government must expressly invoke a § 2255 waiver; 

otherwise, the district court may not invoke it. See id. at 
UNITED STATES V. SAINZ 13

1301. The court may, however, ask the government whether 

it intends to rely on the waiver and entertain a motion to 

amend the pleadings by the government if its initial response 

failed to invoke the waiver. Id.

Although § 3582(c)(2) proceedings, unlike § 2255 

proceedings, are deemed criminal in nature, see United 

States v. Ono, 72 F.3d 101, 102 (9th Cir. 1995), we conclude 

that the Eleventh Circuit’s analysis in Burgess is persuasive. 

We thus apply the same principles to the government’s 

failure to raise a § 3582(c)(2) waiver and hold that district 

courts are not allowed to raise the waiver sua sponte. Just as 

a party may waive a contract provision that is beneficial to 

it, the government may waive a beneficial provision in a plea 

agreement. When the district court raises the issue sua 

sponte, it risks becoming an advocate for the government, 

undermining the principle of party presentation. As the 

Supreme Court has reasoned:

[Courts] do not, or should not, sally forth 

each day looking for wrongs to right. We 

wait for cases to come to us, and when they 

do we normally decide only questions 

presented by the parties. Counsel almost 

always know a great deal more about their 

cases than we do, and this must be 

particularly true of counsel for the United 

States, the richest, most powerful, and best 

represented litigant to appear before us.

Greenlaw v. United States, 554 U.S. 237, 244 (2008) 

(quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th 

Cir. 1987) (R. Arnold, J., concurring in denial of reh’g en 

banc)). The better method, consistent with our system of 

party presentation, is to entrust to counsel for the 
14 UNITED STATES V. SAINZ

government the decision whether to enforce the waiver of a

right to file a § 3582(c)(2) motion for a sentence reduction.

Here, the United States was represented by an Assistant 

United States Attorney who undoubtedly was familiar with 

the record and Sainz’s waiver of his right to file a 

§ 3582(c)(2) motion, a term the government negotiated for 

as part of the post-conviction cooperation agreement. There 

could be many reasons why the government did not raise the 

issue of waiver in the district court even though it had 

bargained for the waiver.3 “But as a general rule, our 

adversary system is designed around the premise that the 

parties know what is best for them, and are responsible for 

advancing the facts and arguments entitling them to relief.” 

Greenlaw, 554 U.S. at 244 (quoting Castro v. United States, 

540 U.S. 375, 386 (2003)) (internal quotation marks 

omitted) (Scalia, J., concurring in part and concurring in 

judgment). “The rule that points not argued will not be 

considered is more than just a prudential rule of 

convenience; its observance, at least in the vast majority of 

cases, distinguishes our adversary system of justice from the 

inquisitorial one.” United States v. Burke, 504 U.S. 229, 246 

3 In his opening brief, Sainz’s counsel stated:

The government’s approach in Mr. Sainz’s case is 

consistent with its approach throughout litigation of 

sentence reduction motions under Amendment 782 in 

the Northern District of California. To undersigned 

counsel’s knowledge, the government did not invoke 

the § 3582(c)(2) waivers in any of the many cases 

where such waivers existed and indeed the parties 

proceeded via stipulation in the vast majority of those 

cases.

The government did not deny or otherwise respond to this representation 

in its appellate brief.
UNITED STATES V. SAINZ 15

(1992), superseded by statute on other grounds, (Scalia, J., 

concurring). Accordingly, when the government fails to 

raise waiver in the district court and chooses to litigate a 

§ 3582(c)(2) motion on the merits, the district court abuses 

its discretion if it raises the defendant’s waiver sua sponte.

IV. Conclusion

Because the government waived Sainz’s waiver of his 

right to file a § 3582(c)(2) motion by failing to raise it in the 

district court, the district court abused its discretion by 

raising the waiver sua sponte. Therefore, we reverse the 

district court’s denial of the § 3582(c)(2) motion on waiver 

grounds and remand this case to the district court for further 

proceedings consistent with this opinion.

REVERSED AND REMANDED.