FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TINA-MARIE FINAZZO,

Defendant-Appellant.

No. 15-10272

D.C. No.

1:11-cr-00383-LEK-1

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
2 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.
UNITED STATES V. FINAZZO 3

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.
4 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.”
UNITED STATES V. FINAZZO 5

The United States SentencingCommission (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
6 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
UNITED STATES V. FINAZZO 7

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.