F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

J O R G E A V I L A A L B E R

T O N A V A R R O , Defendant-Appellant

. N o. 15-10245

D.C. No. 2:07 cr-0332 W B S-1

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California W illiam B . Shubb, Senior District J udg e, Presiding

Submitted Aug ust 11, 2015 * San F rancisco, California

F iled September 4, 2015

B efore: Stephen Reinhardt, A. W allace Tashima, and Consuelo M. Callahan, Circuit J udg es.

Opinion by

J u dg e Tashima

* T h e p an el u n an i m o u sly f in d s th i s case su i tab le f

o r d ecisio n w ith o u t

o ral arg u m en t. S ee Fed . R. A p p. P . 3 4 (a)(2 )(C).U N I T E D S T A T E S V

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V A R R O 2

SUMMARY * *

Crim inal Law

The panel affirmed the district court’s d e nial of J org e Avila Alberto N avarro’s mo t ion under 18 U.S.C. § 3582(c)(2) for reduction of sentence based on Amendments 782 and 788 to the Sentencing Guidelines.

The panel held that th e d istrict court did not a buse its discretion in g ranting Navarro’s motion under F ed. R. App. P. 4(b)(4) for an ex tension of time to file an appeal, and that the notice of appeal is therefore timely

.

The panel held that a district court canno t a p p ly a

r e troactive amendment to reduce an a lready imposed sent e n c e prior to that amendment’s e ffective d ate. The panel also h eld that the S e ntencing Commission’s determination of the appropriate effective date for a retroactive amendment is not invalid simply because the Commission made r eference to prisoners’ rehabilitative needs.

COUNSEL

Rachel R. G oldberg and Tara Az ad Amin, Sidley Austin L L P, Chicag o, I llinois; Robin E v e W echkin, Sidley Austin L L P, Seattle, W ashing ton; Heather E. W illiams, F ederal Defender,

a n d Hann a h L a b a r e e , As s i s t an t Fe d e r a l D e f e n d e r, Sacramento, California, for Defendant-Appellant.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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V A R R O 3

B enjamin B

. W ag ner, United States Attorney
, Camil A

. Skipper and J ason Hitt, Assistant United States Attorney s , Sacramento, California, for Plaintiff-Appellee.

OP INION

TASHI MA, Circuit J udg e:

I n this a ppeal, w e e x amine the scope of the United States Sentencin g C o mmission’s (the “Commission”) authority to l i mit the retroactive effect of its a mendments to i t s Sentencing Guidelines. W e h old that a district court cannot apply a retroactive amendment to reduce an already imposed

se n t e n c e prior to that amendment’s effective date. W e also hold that the Commission’s determination of the appropriate effective date for a retroactive amendment is not invalid simply because the Commission made reference to prisoners’ rehabilitative needs. W e therefore affirm.

I.

A.

I n 200 8
, J org e Avila Alberto Navarro pled g u ilty to possession with intent to distribute methamphetamine

. At sentencing

, the district court calculated the appropr i a t e Guidelines rang e t o be 151 to 188 months. On the
g overnment’s motion, t h e district court imposed a belowGuidelines sente n c e o f 113 months imprisonment. Under that sentence, Navarro is scheduled to b e r e l eased on September 9, 2015.U N I T E D S T A T E S V

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V A R R O 4

On November 1, 2 014, the Commission issued Amendment 782 to its Sentencing Guidelines, which lowered the rec o m m e n d e d s e ntences for certain drug crimes, including the crime of which Navarro was convicted. See United States Sentencing Commission, Guidelines M anual

, (hereinafter “USSG”), supp. app’x

. C, amend 7 8 2 ( 2014). At the same time, the Commission p r omulg ated another amendment, Amendment 788, which a mended § 1B 1.10 of the Guidelines
to authoriz e district courts to apply Amendmen t 7 82 retroactively to reduce the leng th certain already -imposed
sentenc e s , p rovided that “the effective date of the court’s order is November 1, 2015, or later.” See USSG, supp. app’x

. C
, a m end. 788 (2014); USSG § 1B 1.10. I n other w ords, Amendment 7 88 allowed d istrict co u rt s to hear motions for
sentence reduction imm e d iately

, but instructed that any reduction based on the new Guidelines could not be effective until November 1, 2015, at the earliest.

The Commission ex plained at leng th both its decision to amend the G uidelines, a n d its decision to delay that

a m e ndment’s retroactive effect. I n particular, t h e Commission was concerned, “ [ in] lig ht of t h e l a rg e number of cases potentially involv e d

, . . . that the ag encies of the federal c riminal justice sy stem responsible for the offenders’ reentry into society need[ ed] time to p r epare, and to help the offenders p repare, fo r that reentry .” Id. Summariz ing its considerations, the Commission determined that a o n e-y e ar delay would be needed:

(1) to g ive c ourts adequate time to obtain a nd review the information necessary to make an individualiz ed determi n a tion in each case o f wheth er a sentence reduction is appropriate, (2) to ensure that, to the e x tent practicable, allU N I T E D S T A T E S V

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offenders who a

re to be released have the opportunity to participate in reentry prog r ams and transitional services, such as placement in halfway houses, w h i l e still in the custody o f
t he B ureau of Prisons, which increases th ei r likelihood of successful r eentry to society a nd thereby promotes public safety

, and (3) to permit those ag encies that will be responsible for offenders after their release to prepare for the increased responsibility

.

Id. The Commissio n e nded by reiterating that “ offenders
cannot be released from custody pursuant to retroactive application of Amendment 782 before November 1, 2015.” Id.

B.

O n March 12, 2 015, N avarro filed a motion un d e r 18 U.S.C. § 3 582(c)(2) asking the d istrict court to reduce his
sentence based on Amendments 782 and 788. Navarro calculated that, using the amended G u i d elines and a pply ing the same b elow-rang e deviation from h is earlier sentence, he would be elig ible for immediate r elease. 1 However, Navarro is c u r r ently scheduled to be released o n September 9, 2015, well before Amendment 788’s November 1, 2015, effective date. Navarro arg ues that the d i s t rict court should a pply Amendment 7 8 2 as thoug h it w ere immediately retroactive, and according ly order his immediate release. Navarro

1 B ecau se w e d eterm in e th at th e d a t e o f Nav arro ’ s sch ed u l ed release
p reclu d es h im

f ro m seek in g a sen ten ce red u ctio n b ased o n A m en d m en ts 7 8 2 an d 7 8 8, w e d o n o t ad dress w h eth er an d to w

h at ex ten t h is sen ten ce

co u ld b e red u ced w ere th o se am en d m en ts ap plicab le to h im

.U N I T E D S T A T E S V

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V A R R O 6

contends that immediate application is necessary b e cause the Commission’s decision to d elay t h e effective date o f Amendment 788 was based, in part, on considerations r elated
to prisoners’ rehabilitative n ee d s , and because the Commission’s choice of a November 1
, 2015, effective date, rather than an earlier date, was unconstitutionally arbitrary

.

On April 21, 2015, the district court issued a written order deny ing N avarro’s motion. U nder F ederal Rule of Appellate Procedure 4( b)(1)(A), Navarro had fourteen day s from the district court’s final o rder to appeal the court’s decision. On May 8, 2015, seventeen day s after the order was file d

, Navarro moved under R u l e 4 ( b )(4) for an ex tension of the time to file a

n appeal. He claimed that defense counsel h ad incorrectly assumed the court w ould use a form order, and so

was awaiting t h a t order before appealing

. The district court g ranted Navarro’s motion o n May 11, 2015, reasoning that an

ex tension was warranted “ b ecause defense counsel represents that he did not file a n otice of appeal because he was waiting for the c ourt to sig n a F orm 247.” N avarro fil e d a notice o f appeal that same day

. The g overnment arg ues that the district
court should not have g ranted the motion, and that this appeal is therefore untimely

. 2

II.

Althoug h the requirement of a timely appeal is n o t a jurisdictional r u l e in criminal cases, where the g overnment properly o bj ec ts to an untimely filing

, we must dismiss the appeal. U

n ited States v. Sadler

, 480 F .3d 932, 941–42 (9th

2 T h e d istrict co u rt’ s o rd er g ran tin g Nav arro ’ s m o tio n to ex ten d tim e w as

en tered b ef

o re th e g o v ern m en t w as ab le to f ile an o p po sitio n to th e

m o tio n

.U N I T E D S T A T E S V

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Cir. 2007). B ecause the g o vernment challeng es the timeliness of Navarro’s appeal, we must first determine whether this appeal is, in fact, timely

.

F ederal Rule of Appellate P rocedure 4(b) g enerally requires that a criminal defendant file any notice o f appeal within fourteen day s o f the judg ment or order being appealed. However, “[ u] pon a finding o f ex cusable neg lect o r g ood

ca u se, the district court may

. . . ex tend the time to file a notice o f a

ppeal for a p eriod no t t o e x ceed 30 day s from the

ex p iration of the time otherwise p rescribed.” F ed. R. App. P. 4(b)(4). “W e review for abuse of discretion a district court’s decision to g rant or deny a motion for an ex tension of time to file a notice of appeal.” Pincay v

. Andrews

, 389 F .3d 853, 858 ( 9th Cir. 2004). “I f the court abused its discretion

. . . the

no t i ce of appeal is untimely

. ” Meza v

. W ash. S tate Dep’t of Soc. & Health Servs. , 683 F .2d 314, 315 (9th Cir. 1982).

Rule 4(b)(4) authoriz es a district court to ex tend the time
to appeal based on either of two g roun d s : “g ood cause” o r “ex c usable neg lect.” B oth are familiar terms in the world o f judicial p rocedure, and both represent relatively malleable concepts. The district court d i d not specifically state on which of the s e two g rounds it was ex tending the time to appeal. An analy sis of “ex cusable neg lect” g enerally requires

a court to analy

z e the four f

act o rs set o ut b y the Supreme Court. S ee P ioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

, 507 U.S. 380, 395 (1993); see also Lemoge v. United States
, 587 F .3d 1188, 1192 (9th Cir. 2009). B ecause the district
court did n ot eng ag e in this analy sis, we a ssume, instead, that it relied on the more loosely defined “ g ood cause” standard.

“‘Good cause’ is a non-rig orous stand a r d t hat has been construed broadly across procedural and statutory contex ts.”U N I T E D S T A T E S V

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Ahanchian v. X

enon P ictures, Inc.
, 624 F .3d 1253, 1 259 (9th Cir. 2010) (discussing “g ood cause” in the contex t of F e d. R. Civ. P. 6(b)(1)). Here, Navarro’s delay wa s d u e t o an understandable mistake about the unwritten procedures of the specific judg e before wh o m he was practicing

. As Navarro

ex p lained in his motion to ex tend the time t o appeal,

numerous other judge s i n the Eastern District of California have issued orders deny ing motions for sentence r eduction on

a g overnment-issued form known as “F orm 247.” I n several of these cases, courts have file d t he form following a short written order. 3 Moreover
, a l t h o ug h use of F orm 247 is not mandato r y , the Sentencing Commission has asked district
court s t o use the form when either g ranting or deny ing motions for sentence reduction. I n this case, defense counsel

m i stakenly believed that the order he received on Apri l 2 1
, 2015, was not an appealable f inal o rder, b u t a preliminary order that would be followed by a final o r d e r o n F orm 247. He quickly r ealiz ed his error, seventeen day s after the orig inal order, but not quickly enoug h to meet t h e d i ct ates of Rule 4(b)(1). There is no indication of ba d f ai t h

, o r that the
g overnm e n t was prejudiced by the three-day delay

. The district court recog niz ed the reasonableness of counsel’s mistake a nd c oncluded that it constituted g ood cause. W e cannot say that was an abuse of discretion. W e t h erefore conclude that Navarro’s notice of a p peal was timely

, a

nd proceed to the merits of this appeal.

3 Nav arro h as f

iled w ith th i s co u

rt a m o tio n to tak e j u d i c i a l n o t ice of

sev eral u n p u b lish ed d istrict co u rt o rd ers u sin g Fo rm 2 4 7

. T h at m o tio n is h ereb y g ran ted

. S

ee Fed

. R. Ev id

. 2 0 1 (b )(2 ); In re Ko rea n Air Lin es Co

., Ltd

. , 6 42 F.3 d 6 8 5 , 6 8 9 n .1 (9 th Cir. 2 01 1 ).U N I T E D S T A T E S V

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III.

W e beg in with Navarro’s arg ument that the district court should have treated Amendment 782 as immediately

r etroactive because the Commission considered prisone rs ’ rehabilitative needs in deciding to d elay its retroactive effect. F or the reasons d i scussed below, we conclude that this
arg ument is unavailing

.

A.

Once a sentence o f imprisonment has been imposed, that
sente n ce g enerally is treated as f inal. See 18 U .S.C. § 3582(b). However, in a n “ a ct of lenity ,” Cong ress has crafted a limited ex ception for prisoners who w ere sentenced based on Guide l i nes that have since been amended downward. Dillon v. United S tates , 5 6 0 U

. S

. 8 17, 828 (2010). I n such circumstances, 18 U .S.C. § 3582(c)(2) a llows

a defendant to request a reduced sentence based o n n ew Guidelines a

nd allows district courts to reduce a term o f imprisonment, so long as “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” As the Su p r e m e Court has ex plained, § 3582(c)(2) thus p r escribes a limited, two

- step inquiry

. Dillon

, 560 U .S. a t 8 2 6

. F irst, the court must look to “the Commission’s instructions in § 1B 1 .10 to d etermine the prisoner’s elig ibility for a se n t e n c e modification and the

ex tent of the reduction autho riz ed.” Id. at 827. B ecause the Commission has st a t u t o ry authority both to amend the Guidelines and to “determin[ e] whether a nd to what ex tent an amendm en t w i l l be retroactive

. . . [ a] court’s power under § 3 5 82(c)(2)

. . . depends in the first instance on t h e Commission’s decision not just to amend the Guidelines but to make the amendment retroactive.” Id. at 826.U N I T E D S T A T E S V

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“At step two of the inquiry

, § 3582(c)(2) instructs a court t o consider any applicable § 3553(a) factors and determi n e whether, in its d i s c retion, the reduction authoriz ed b y reference to t h e p o l icies relevant at step one is warranted in

w hole or in p art u nder the particular circumstances o f t h e case.” Id. at 827. This circumscribed inquiry is n ot to be treated as “plenary r e sentencing proceeding s.” Id. a t 826. Stated d ifferently

, “the only ‘appropriate use’ of sentence modification proceeding s u nder section 3582(c) is to adjust

a sentence in lig ht of a Guidelines amendment,” so courts may not use suc h proceeding s to “reconsider[ ] a sentence based o n factors u n related to a retroactive Guidelin e s amendment.” United States v. Fox
, 6 31 F .3d 1128, 1132 (9th Cir. 2011).

As the district c ourt correctly concluded, Navarro cannot make it past step o n e o f the Dillon inquiry

. The Commission’s instructions in § 1B 1.10 make it perfectly clear that a court may n ot reduce a “term of imprisonment b a sed on Amendment 782 unless the effective date of the court’s order is November 1, 2015, or later.” USSG § 1 B 1.10(e)(1). There is thus no way to reduce N avarro’s sentence “ consistent with applicable policy statements issued b y the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

B.

Navarr o c ontends that the district court should have i gn ored the ex plicit limitation on the retroactive effect o f Amendment 788, and treated that amendment as immediately

r e t r o a ctive, because the Commission mentioned r e h a b i l i t a t i v e

c o n c erns in its statement of reasons for the Amendme n t

. I n advancing this a

r g u ment, Navarro relies principal l y o n the Sup r e m e Court’s decision in Tapia v. United States
,U N I T E D S T A T E S V

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131 S. Ct. 2382 (2011), in which the Court h e ld the Sentencing R e form Act “precludes sentencing courts from imposing or leng the n i n g a prison term to promote an offender’s rehabilitation.” Id. at 2391. Tapia
, in turn, relied

on two related statutes, 18 U.S.C. § 3582(a) and 28 U .S.C. § 994(k). Section 3582(a) instructs sentencing c our t s “ i n determining whether to impose a term of imprisonment, and

. . . in determining the leng th of the term” to “recog niz [ e] that imprisonment is n o t an appropriate means of promoting

c orrection and rehabilitation.” Section 994(k) instruct s t h e Commission to “insure that the g uidelines reflect the inappropriateness of imposing a sentence to a term o f imprisonment for the purpose of rehabilitating the defendant

or provid i n g the defendant with needed educational o r vocational training

, medica l c are, or other correctional treatment.” I n Tapia
, the Court r ead these two sta t u t e s a s sending the Commission and senten cing judg es “the same messag e: Do not think about prison as a way to reha b i l itate an offender.” 131 S. Ct. at 2390.

Navarro contends that the Commission – a nd b y

ex tension, the district court – v iolated this proscription b y citing to rehabilitative conce rns in its stated reasons for Amendment 7 8 8

. I n particular N avarro cites to the Commission’s statement that a o n e-y ear delay was necessary

to ensure that, to the ex tent practicable, all offenders who a

re to be releas ed have the opportunity to participate in reentry prog r ams and transitional services, such a s placement in halfway houses, w h i l e still in the custody o f the B ureau of Prisons, w h ich increases their likelihood of successful r eentry to society a nd thereby promotes public safety

.U N I T E D S T A T E S V

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USSG, supp. a

pp’x

. C, a mend. 788. The g overnment does

n o t d ispute that this passag e indicates a consideration o f rehabilitation, and instead argu e s that (1) any flaw in the reasoning of Amendment 788 d oes not provide Navarro with

a b a s i s to reduce his sentence, a nd (2) reg ardless, Tapia i s inapplicable in sentence reduction proceeding s. 4

W e ag ree with the g overnment on both points. Fi r s t, Navarro simpl y h as n ot ex p lained how a flaw, if any , in the Commission’s reasoning in Amendment 788 would mandate

an immediate retroactive application of A mendment 782. A s discussed above, a district court is w itho u t p o w e r to g rant a sentence reduction not “ c onsiste n t with applicable p olicy
statements issued by the Sentencing Commission.” 18 U .S.C. § 3582(c)(2). Amendment 782 itself was not retroactive, a nd nothing outside of A mendment 788 would make A mendment 782 retroactive to Navarro. Even were we t o conclude that the Commission fatally e r red in promulg a t ing A mendment 788, and that the Amendment was therefo r e unenforceable, Navarro would still be left without a basis to h a ve his sentence reduced.

Moreover, we conclude

, a s did the district court, that Tapia does not apply to sentence reduction proceeding s. As the Supreme Court ex plained in Dillon and as we clarified in Fox
, sentence reduction proceeding s should not be treated a s

a second round of sentencing

. Simply put, the r e strictions

4 B ecau se w e co n clu d e th at Ta p i a do es n o t ap p ly in sen ten ce red u ctio n p ro ceed in g s, w e d o n o t ad d ress th e q u estio n o f w h eth er t h e q u o ted
p assag e actu ally rep resen ts th e so rt o f co n sid eratio n o f reh ab ilitatio n th at Ta p ia f o rb id s. W e n o te, h o w ev er, th at i t is f ar f ro m clear th at arran g in g tran sitio n an d reen try serv ices f o r cu rren tly in carcerated in m ates w o u ld

co n stitu te treatin g “ priso n a s a w ay t o reh ab i litate an o f f en d er.” Ta

p ia
, 1 3 1 S. Ct. at 2 3 9 0

.U N I T E D S T A T E S V

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and rules associated w i th sentencing do not carry o ver to sentence reduction proceeding s, which are instead g overned by their own set o f rules. S ee Dillon

, 560 U .S. at 828 (holding that the Six th A m e ndment rig ht to have essential facts found by a jury bey o nd a reasonable doubt does not apply to motions for sentence reduction).

Tapia d oes not chang e the d istinction discussed in Dillon

. B y its own terms, Tapia does not apply to sentence reduction. The Supreme Court specifically held that a court c o u ld not

“ impose or lengthen a p rison sentence to enable a n offender
to comp l e t e a treatment prog ram or otherwise to promote rehabilitation,” but said nothing about reducing ( or declining
t o reduce) a prison sentence. 131 S. Ct. at 2393 ( emphas i s added). A nd for g ood reason. T h e Court’s decision in Tapia followed directly from its interpre t ation of two specific statutory provisions: 1 8 U .S.C. § 3 582(a) and 28 U .S.C. § 994(k). B oth address sentencing

, n o t sente n c e reduction. Section 3582(a) presents instructions for a “co urt, in determining whether to impose a term of imprisonment, and

. . . in determining the leng th of the t e r m

. ” A s eparate subsection, § 3 582(c), g o verns se n t e nce reduction, and that subsection contains no rule ag a i n s t considering rehabilitation. Similarly

, § 994(k) instructs the Commission to “insure that the g uidelines reflect the inappr opriateness of imposing a sentence to a t e r m of imprisonment for the purpose o f rehabilitating the d e fendant.” (emphasis added). However, § 994(k) say s nothing a bout sent e nce reduction, and the subsection that authoriz es the commission to make amendments retroactive, § 99 4 (u), places no limit onU N I T E D S T A T E S V

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rehabilitative co n siderations. 5 Thus deprived of any f irm foothold in statutory tex t, Navarro is left to arg ue that Tapia should apply to his sentence reduction motion because
sentence reduction, like sentencing

, involves deciding h ow long an offender will stay in prison. B ut importing the rules of sentencing into sentence reduction is precisely what Dillon instructs us not to do. W e thus conclude that Tapia does not apply in sentence reduction proceeding s, and that it therefore does not provide a basis to cha l l e ng e the Commission’s decision to limit the retroactive e f fect of a Guidelines amendment.

IV.

Navarro nex t arg ue s t h a t the Commission’s decision to d e lay the effective date o f Amendment 7 88 for a ful l y e a r

– until November 1, 2015 – was unconstitutionally arbitrary

, in violation of the Due Process and Equal Protection Clauses o f the Constitution. 6 According to N ava rr o , the Commission

5 O f co u rse, b ef

ore th e Co m

m i ssio n can m ak e a Gu id elin es am en d m en t retro activ e, it m

u st am en d th e Gu id elin es in th e f irst p lace. Ev en w

h en an

am en d m en t w i ll b e ap p lied retro activ el y , t h e in i tial ch an g e to th e Gu i d elin es w i l l th u s still b e g o v ern ed by all t h e u su al ru les, in clu d in g § 9 9 4 (k ). Ho w ev er, Nav arro h as n o t c h a l len g ed th e sen t en cin g ran g e

ex p ressed b y th e am en ded Gu id elin es, o n ly th e Co m m issio n ’ s f

ailu re to

m ak e th at am en dm en t im m ed iately retro activ e.

6 T ech n ically

, th e Co m m i s sio n ’ s Gu id elin es are n o t g o v ern ed b y th e Eq u al P ro tectio n Clau s e o f th e Fo u rteen th A m en d m en t , w h i ch ap p lies

o n ly to t h e states, n o t to t

h e f ed eral g o v ern m en t o r fe d e r a l en tities. S ee Bo llin g v. S

h a rp e , 3 4 7 U.S. 4 9 7
, 4 9 8– 9 9 (1 9 54 ). H o w e v e r, t h e Du e P ro cess Clau s e o f th e Fif th A m en d m en t sim ilarly pro h ib its u n j u s tif ied d iscrim in atio n b y f

ed eral acto rs, an d o u r “ ap p ro ach to Fif th A m en d m en t eq u al p ro tectio n claim s h as alw ay s b een p re c i s ely th e sam e as t o eq u alU N I T E D S T A T E S V

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had a n insufficie n t basis to conclude that a one-y ear delay

, rather than a s h orter six -month delay

, was necessary to

a chieve its stated g oals. B y c h oosing the one-y ear del a y , N a v a r r o a r g u e s , t h e C o m m i s s i o n a r b i t r a r i l y a n d unconstitutionally discriminated ag ainst those prisoners w ho

w e r e d ue for release more than six months, but less t h a n a y ear, after Amendmen t 7 88 was issued. We find this
arg ument unpersuasive.

To beg in

, w e note that Navarro never presented this constitutional arg ument bef o r e the district court. I nstead, citing to cases involving the Administrative P rocedure A ct (“APA”), N avarro arg ued that the Commission’s decision not to make Amen d m e nt 782 retroactive prior to November 1, 2015, was “arbitrary

, capricious, or manifestly contrary to the statute.” See Chevron U

.S.A. Inc. v. Nat. Res. Def. Council, Inc.
, 467 U.S. 837, 844 (1984). The d istrict court correctly

r e jected this challeng e, c iting our prior holding that “[ t] he Commission is not an ag ency subject to t h e requirements o f the APA but ‘an independent entity in the j u dicial b ranch.’” See United States v. Tercero
, 734 F .3d 9 7 9, 984 (9th Cir. 2013) (quoting W

ash. Legal F

ound. v. U.S. S

e n t e n c ing Comm’n , 17 F .3d 1446, 1450 (D.C. Cir. 1994)).

Navarro’s c onstitutional arg ument is thus before the court f or the first time on appeal. W e g enerally will not entertain
arg uments that wer e n o t first presented before the district
court. See Davis v. Elec. Arts I nc. , 775 F .3d 1 172, 1180 (9th C i r

. 2015). “This court has discretion to decide whether t o reach such an issue, however, where the issue presented is a purely leg al one and the record below has b een f ully

p ro tectio n claim s u n d er th e F o u rteen t h A m en d m en t

. ” W

ein b erg er v. W iesen feld , 4 20 U.S. 6 3 6 , 6 3 8 n .2 (1 9 7 5 ).U N I T E D S T A T E S V

. N A

V A R R O 16

developed.” Davis v. Nordstrom, Inc. , 755 F .3d 1089, 1094 (9th Cir. 2 014). Here, we choose to ex e rcise that d i s c r e t ion
to reach the merits of N avarro’s c onstitutional claim because,

on the r e cord before u s, we have little doubt that Navarro has failed to demonstrate a constitutional violation.

W h en the Commission enacts Guidelines treating o ne class of o ffenders differently from another, equal protection
g enerally requires that the classification be “rationally r elated
t o a leg itimate g overnment interest.” United States v. Ruiz-Chairez

, 493 F .3d 1089, 1091 (9th Cir. 2007) (quoting City of Cleburne v. Cleburne Living Ctr. , 473 U.S. 432, 440 (1985)). 7 Under this rational-basis review, “[ t] he burden f alls

on the party seek i n g to disprove the rationality of the relationship between the classification and the purpose.” Id

. Navarro has not met this burden.

As discussed above, the Commission stated three g eneral

reasons for its decision to delay the effe ct i v e date o f Amendment 788: (1) g iving courts time t o r e view the larg e number of elig ibl e inmates and make individualiz ed determinations; (2) arrang ing f or transit i on and r e-entry prog r ams in order to reduce recidivism and p r otect public safety ; and (3) permitting a ffected ag encies to prepare for an increased workload. 8 USSG, app ’x

. C, amend. 788. These

7 T h e C o m

m issio n ’ s d ecisio n s w o u ld , o f co u rse, b e su b j ect to a h ig h er lev el o f scru tin y i f its classif i catio n im

p licated a f

u n dam e n t al rig h t o r a

su sp ect classif

icatio n

. S

ee Un i t e d S ta t es v. D’An

jo u , 16 F.3 d 60 4
, 6 1 2 (4 th Cir. 1 99 4 ).

8 We f o cu s h ere o n th e g o v ern m en tal in terests s tated b y th e Co m m issio n b ecau se th ey are m ost easily ad d ressed

. W e reco g n ize, h ow ev er, t h at

u n d er ratio n al- b asis re v i e w , th e g o v ern m en t acto r g en erally n eed n o t

“ actu ally articu l ate at an y t im e th e p u rp o s e o r ratio n ale su

p p o rtin g itsU N I T E D S T A T E S V

. N A

V A R R O 17

clearly constitute leg itimate g overnment interests. See Ewing

v. California

, 538 U.S. 11, 2 9 ( 2003) (recogniz ing “the State’s public-safety interest in incapacitating a nd d eterring recidivist felons”); Ba n k ers Life & Cas. Co. v. Crenshaw

, 4 8 6 U.S. 71, 82 (1988) (recogniz ing “the State’s interest i n conserving judicial resources”). There is also a rational connection between these interests and the one-y ear delay : The Commission reasonably was con c erned that making Amendment 782 immediately retroactive would lead to a r ush
to the courts, pressuring the district c ourts to make re l e a s e decisions quickly

, and putting p res s u r e on g overnment ag encies responsible for h e l p i ng prisoners transition b ack into outside society

. Thu s , the Commission’s decision easily survives rational-basis review.

Notwithstandin g the leg itimacy of the g overnment interests at stake, Navarro arg ues that the Commission’s decision violated due p rocess because there was insufficient evidence before the Commission for it t o c o n c l ude that a delay o f one y ear w as necessary

. This arg ument misapprehends the scope of rational-basis review. Generally

, “the absence o f leg islative f acts ex plaining the distinction on the record has no sig nificance i n rational-basis analy sis.” FCC v

. B each Commc’ns, Inc.
, 5 0 8 U

. S. 307, 315 (1993). Rather, rational-basis review allows f or decisions “based on rational speculation unsupported by evidence or empirical data.” Id. Moreover, “[ t] he rational basis standard

. . . does
not requir e t h a t the Commission choose the best means o f advancing its g oals.” Vermouth v. Corrothers

, 827 F .2d 599, 603 (9th Cir. 1987). I nstead, all that is needed i s s o me “rational connection” between the rule and the g overnmental

classif icatio n .” A r m o u r v

. City o f In d ia n a p olis, In d

. , 1 32 S. Ct. 2 0 7 3
, 2 0 8 2 (2 0 1 2 ) (q u otin g No r dlin g er v. Ha h n , 5 0 5 U.S. 1 , 1 5 (1 9 9 2 )).U N I T E D S T A T E S V

. N A

V A R R O 18

interest, reg ardless o f whether that rule is an “ex act fit” for the interest a t i s s ue. Mauro v. Arpaio
, 188 F .3d 1054, 1059–60 (9th Cir. 1 999). I t was rational for the Commission to believe that some delay was appropriate, and Navarro has
not d emonstrated that a blanket one-y ear delay bore no rational connection to any leg itimate g overnmental interest.

F inally

, N a v a rro c ontends that the one-y ear d elay was irrational as applied to him because h e is an alien who w ill be removed from the country upon his release. He t h u s arg ues that the Commission’s concerns about public s afety a nd transitional services have no weig ht in his specific case. This
arg ument ag ain overstates the scope of our review. Under the rational-basis standard, we a c c e p t “ g e n e r a liz ations even when there is an imperfe c t f i t b etween means and ends. A classification does not fail rational-basis review because it is
not made with mathematical nicety or b ecause in practice it results in some inequality

. ” Aleman v. G l i c k man , 2 17 F .3d 1191, 1201 (9th Cir. 2000) (quoting He l l e r v. Doe e x rel. Do e , 5 0 9 U.S. 312, 321 (1993)). The fact that the Commission’s reasoning w ill apply with g reater force to

some g roups of inmates than to o thers does not invalidate its otherwise-valid decision. W e therefo r e c onclude that Navarro h as n o t m e t his “burden ‘to neg ative every

c onceivable basis which mig ht support’” the Commission’s decision to delay the effective d ate of Amendment 788 for

one y ea r. Los Coyotes B and of Cahuilla & Cupeno Indians

v. Jewell

, 729 F .3d 1025, 1039 ( 9 t h C ir. 2013) (quoting Aleman , 217 F .3d at 1201).U N I T E D S T A T E S V

. N A

V A R R O 19

V.

Neither the Constitution nor any statute fo rbade the Commission from delay

ing the effective date of A mendment 788. 9 According ly , the judg ment of the district court is

AF F IRMED.

9 T h e o n l y o th er circu it to h av e ad d ressed th e d elay ed

- ef f ectiv e-d ate issu e also u

p h eld th e d elay

. S

ee Un ited S ta tes v. Ma iello

, No

. 1 5

- 1 0 5 3 2
, 2 0 1 5 W L 4 9 3 1 9 8 2 (1 1 th

Cir. A u g . 1 9 , 2 0 1 5 ).