FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSE LIZARRARAS-CHACON,

Defendant-Appellant.

No. 20-30001

D.C. No.

3:11-cr-00517-HZ-1

OPINION

Appeal from the United States District Court

for the District of Oregon

Marco A. Hernandez, Chief District Judge, Presiding

Argued and Submitted April 16, 2021

Seattle, Washington

Filed September 23, 2021

Before: Michael Daly Hawkins and M. Margaret 

McKeown, Circuit Judges, and Dean D. Pregerson,*

District Judge.

Opinion by Judge Pregerson

* The Honorable Dean D. Pregerson, United States District Judge 

for the Central District of California, sitting by designation.
2 UNITED STATES V. LIZARRARAS-CHACON

SUMMARY**

Criminal Law

Reversing the district court’s denial of a motion for 

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

remanding, the panel held that legislative and judicial 

developments affecting mandatory statutory minimums are 

relevant considerations to the 18 U.S.C. § 3553(a) factors at 

step two of a § 3582(c)(2) motion.

The parties agreed that Sentencing Guidelines 

Amendment 782 retroactively reduced the defendant’s 

guideline range, making him eligible for a reduction under 

§ 3582(c)(2). And the Government did not dispute that the 

defendant accurately presented the intervening 

developments affecting the mandatory minimum: (1) this 

court’s decision in United States v. Valencia-Mendoza, 912 

F.3d 1215 (9th Cir. 2019), which established that the 

defendant was never lawfully subject to a 20-year mandatory 

minimum because his 2010 prior conviction was not an 

offense “punishable by imprisonment for more than a year”; 

and (2) the First Step Act of 2018’s prospective reduction of 

the mandatory minimum from 20 to 15 years, and its 

replacing “felony drug offense” with “serious drug felony” 

as the predicate-offense requirement for triggering the 

mandatory minimum.

Because the district court appears to have erroneously 

concluded that it could not consider intervening 

** 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. LIZARRARAS-CHACON 3

developments affecting the mandatory minimum in its 

§ 3553(a) factor analysis, the panel concluded that the 

district court abused its discretion. The panel remanded for 

the district court to consider the fullest information possible, 

including the intervening changes in the law raised by the 

defendant, to ensure that the sentence is sufficient but not 

greater than necessary.

COUNSEL

Elizabeth G. Daily (argued), Assistant Federal Public 

Defender, Portland, Oregon, for Defendant-Appellant.

Amy E. Potter (argued), Criminal Appellate Chief, United 

States Attorney’s Office, Eugene, Oregon; for PlaintiffAppellee.

OPINION

PREGERSON, District Judge:

The sole issue in this appeal is whether legislative and 

judicial developments affecting mandatory statutory 

minimums are relevant considerations to the 18 U.S.C. 

§ 3553(a) factors at step two of a motion for reduction of 

sentence under 18 U.S.C. § 3582(c)(2). We hold that they 

are. Because the district court in this case appears to have 

believed that such developments did not fit within the 

§ 3553(a) factors, and as such, that it did not have discretion 

to consider such developments, we reverse and remand.
4 UNITED STATES V. LIZARRARAS-CHACON

FACTUAL BACKGROUND & PROCEDURAL HISTORY

A. Plea Agreement and Sentencing

On November 29, 2011, Jose Lizarraras-Chacon 

(“Defendant”) was arrested and later charged by superseding 

indictment with conspiracy to possess with intent to 

distribute 1,000 grams or more of heroin in violation of 

21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i) (Count 1) and 

possession with intent to distribute 100 grams or more of 

heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 

841(b)(1)(B)(i) (Count 2). On October 24, 2012, the United 

States (“Government”) filed an Information to Establish 

Prior Conviction under 21 U.S.C. § 851 to increase the 

mandatory minimum sentence based on Defendant’s 2010 

drug conviction in Clackamas County, Oregon for which 

Defendant was sentenced to 90 days in jail and 36 months of 

supervised probation. The Information charged that, as a 

result of the 2010 drug conviction, Defendant was subject to 

a mandatory minimum of 20 years under 21 U.S.C. 

§ 841(b)(1)(A).

On the day of trial, Defendant and the Government 

entered into a binding plea agreement under Rule 

11(c)(1)(C) of the Federal Rules of Criminal Procedure. 

Under the terms of the plea agreement, the parties agreed 

that Defendant would plead guilty to Counts 1 and 2, that the 

base offense level was 34, under the then-existing Drug 

Quantity Table for conduct involving between three and ten 

kilograms of heroin and that various guideline enhancements 

and reductions applied. The parties agreed to jointly 
UNITED STATES V. LIZARRARAS-CHACON 5

recommend a total sentence of 210 months of incarceration 

followed by five years of supervised release.1

On April 8, 2013, the district court adopted the parties’ 

Guidelines calculations and found that Defendant’s total 

Offense Level was 35, at Criminal History Category III. The 

Offense Level included enhancements for possession of a 

firearm, aggravating role as a leader, and using children in 

the offense. The resulting applicable guideline range at the 

time was 210–262 months. Because the district court 

accepted the parties’ Rule 11(c)(1)(C) plea agreement, the 

recommended sentence was binding upon the court. 

Accordingly, the district court sentenced Defendant to 

210 months’ imprisonment, followed by five years of 

supervised release.

B. First Motion for Reduction of Sentence

On April 21, 2016, Defendant filed a pro se Motion to 

Reduce Sentence under 18 U.S.C. § 3582(c) based on 

Sentencing Guidelines Amendment 782, which reduced 

most base offense levels in the U.S.S.G. § 2D1.1 Drug 

Quantity Table by two levels. The district court 

subsequently appointed counsel to represent Defendant. 

Defendant and the Government filed a joint response to the 

motion in which the parties agreed that Amendment 782 

retroactively reduced Defendant’s guideline range, making 

Defendant eligible for a sentence reduction to 169 months. 

The Government opposed a reduction, however, as a matter 

of discretion based on the factors set forth in 18 U.S.C. 

§ 3553(a) (“§ 3553(a)”).

1 Although the sentence imposed was below the mandatory 

minimum, that was for reasons not at issue in this appeal.
6 UNITED STATES V. LIZARRARAS-CHACON

On June 2, 2017, the district court denied Defendant’s 

motion. The court noted that “Defendant’s 210-month 

sentence was the benefit of the bargain that he struck with 

[the Government] on the first day of trial to avoid the 240-

month mandatory minimum that he was facing” and that 

“Defendant wanted a sentence that was less than the twentyyear minimum.” After evaluating the § 3553(a) factors, the 

court concluded that Defendant’s sentence should not be 

modified. Defendant did not appeal.

C. Second Motion for Reduction of Sentence

On May 17, 2019, Defendant filed a second Motion for 

Reduction of Sentence based on Amendment 782. The 

district court again appointed counsel. Defendant argued 

that three intervening legal and judicial developments 

demonstrated that the 210-month sentence imposed was now 

greater than necessary to serve the purposes of sentencing 

and were relevant to the § 3553(a) factors. Specifically, 

Defendant argued that (1) the Ninth Circuit’s decision in 

United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 

2019), established that Defendant was never lawfully subject 

to a 20-year mandatory minimum because his 2010 prior 

conviction was not a “felony drug offense”; and (2) the First 

Step Act of 2018 abolished the 20-year mandatory minimum 

and replaced it with a 15-year minimum triggered by “more 

serious prior convictions, which would be inapplicable” to 

Defendant. Defendant also argued that evidence of his postoffense rehabilitation supported a sentence reduction.

On January 13, 2020, the district court denied 

Defendant’s motion. The district court concluded that 

Defendant was eligible for a sentence reduction. However, 

the district court rejected Defendant’s arguments that the 

developments in the law should be considered in the court’s 

§ 3553(a) analysis. The district court explained:
UNITED STATES V. LIZARRARAS-CHACON 7

[t]o the extent that [Defendant] may be 

arguing that changes to the relevant 

mandatory minimum under United States v. 

Valencia Mendoza . . . and the First Step Act 

of 2018 somehow change the [c]ourt’s 

analysis of the § 3553(a) factors, the court 

does not agree. [Defendant] does not explain 

how changes to a mandatory minimum might 

fit within the § 3553(a) framework.

The district court noted the § 3553(a) factor that 

appeared to be most relevant to Defendant’s arguments, 

§ 3553(a)(4)(A), did “not appear to contemplate changes to 

a mandatory minimum by act of Congress or ruling from the 

courts.” In a parenthetical, the district court then quoted 

Hughes v. United States, 138 S. Ct. 1765 (2018), for the 

apparent proposition that it would have imposed the same 

sentence, even if defendant had been subject to a lower 

range.

JURISDICTION AND STANDARD OF REVIEW

This Court has jurisdiction pursuant to 18 U.S.C. 

§ 3742(a)(1)–(2) and 28 U.S.C. § 1291. We review 

discretionary denials of 18 U.S.C. § 3582(c)(2) motions “for 

abuse of discretion, which occurs if the district court does 

not apply the correct law or predicates its decision on a 

clearly erroneous factual finding.” United States v. Trujillo, 

713 F.3d 1003, 1008 n.3 (9th Cir. 2013). The court reviews 

the district court’s exercise of sentence reduction authority 

based on the § 3553(a) factors for reasonableness. United 

States v. Dunn, 728 F.3d 1151, 1158 (9th Cir. 2013).
8 UNITED STATES V. LIZARRARAS-CHACON

DISCUSSION

The parties agree that Defendant’s motion for reduction 

of sentence under § 3582(c)(2) is analyzed under the twostep approach set forth in Dillon v. United States and further 

agree that only step two of the analysis is at issue. 560 U.S. 

817, 827 (2010). At step two, a 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.”2

 Id.

I. Intervening Developments Affecting a Mandatory 

Minimum are Relevant to a § 3553(a) Factor Analysis

A. The Intervening Developments at Issue

The Government does not dispute that Defendant 

accurately presented the intervening developments affecting 

the mandatory minimum to the district court. Briefly, the 

first intervening development is this Court’s decision in 

Valencia-Mendoza. At the time of sentencing, Defendant 

was subject to the then-existing 20-year statutory mandatory 

minimum as a result of a 2010 prior drug conviction because, 

based on existing precedent, the state statutory maximum 

exceeded one year, thereby qualifying the 2010 conviction 

2 The Government’s initial position in this appeal was that under 

United States v. Kelley, 962 F.3d 470 (9th Cir. 2020), a district court 

could not consider the intervening changes in a § 3553(a) factor analysis. 

In a subsequent Rule 28(j) letter, the Government recognized that the 

§ 3553(a) factors “may capture other changes in the law, for example, 

changes in the mandatory minimum sentences prescribed for the 

defendant’s crime of conviction and defendant’s current eligibility for 

it.” We take the opportunity to reinforce the two-step approach set forth 

in Dillon.
UNITED STATES V. LIZARRARAS-CHACON 9

as an offense “punishable by imprisonment for more than 

one year.” See 21 U.S.C. § 802(44). In 2019, in ValenciaMendoza, we overruled that precedent. See 912 F.3d at 1224 

(holding that where an offense as “actually prosecuted and 

adjudicated—was punishable under [state] law by no more 

than six months in prison,” the offense is not “punishable by 

more than one year”) (overruling United States v. RiosBeltran, 361 F.3d 1204 (9th Cir. 2004)); United States v. 

Murillo, 422 F.3d 1152 (9th Cir. 2005); United States v. 

Crawford, 520 F.3d 1072 (9th Cir. 2008)). We held that a 

sentencing court must also consider state sentencing factors. 

Id. at 1222. In Defendant’s case, as is undisputed by the 

Government, under state sentencing guidelines, Defendant’s 

conviction could not result in a sentence of more than 

180 days in jail. Therefore, under Valencia-Mendoza, if 

sentenced today, Defendant’s 2010 conviction would not 

trigger the 20-year mandatory minimum.

The second intervening development is Congress’s 

amendment to the mandatory minimum in the First Step Act 

in 2018. As relevant here, the First Step Act did two things: 

(1) prospectively reduced the mandatory minimum to 

15 years and (2) amended the requirement for a predicate 

offense to trigger the mandatory minimum—now requiring 

a “serious drug felony” instead of a “felony drug offense.” 

21 U.S.C. § 841(b)(1)(A). A defendant sentenced after the 

effective date of the First Step Act who is otherwise 

identically situated to Defendant, with an identical prior

conviction, would face a mandatory minimum sentence of 

only 10 years.

B. Section 3553(a) Factors in a Motion for Reduction of 

Sentence under § 3582(c)(2)

As part of the Sentencing Reform Act, § 3582(c)(2) 

furthers the Act’s purpose of “creat[ing] a comprehensive 
10 UNITED STATES V. LIZARRARAS-CHACON

sentencing scheme in which those who commit crimes of 

similar severity under similar conditions receive similar 

sentences.” Hughes, 138 S. Ct. at 1776. Under § 3582(c)(2), 

a “district court[] may adjust sentences imposed pursuant to 

a range that the [Sentencing] Commission concludes is too 

severe, out of step with the seriousness of the crime and the 

sentencing ranges of analogous offenses, and inconsistent 

with the Act’s purposes.” Id. (citations and alteration 

omitted). To that end, after determining that a defendant is 

eligible for a sentence reduction, § 3582(c)(2) requires a 

district court to consider “Section 3553(a) [factors] to the 

extent that they are applicable.” 18 U.S.C. § 3582(c)(2). 

Section 3553(a)’s “overarching statutory charge for a district 

court is to ‘impose a sentence sufficient, but not greater than 

necessary’ to reflect the seriousness of the offense, promote 

respect for the law, and provide just punishment; to afford 

adequate deterrence; [and] to protect the public.” United 

States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc) 

(quoting § 3553(a) and (a)(2)).

Section 3553(a) enumerates several factors that a court 

“shall consider”:

(1) the nature and circumstances of the 

offense and the history and characteristics of 

the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the 

offense, to promote respect for the law, 

and to provide just punishment for the 

offense;
UNITED STATES V. LIZARRARAS-CHACON 11

(B) to afford adequate deterrence to 

criminal conduct;

(C) to protect the public from further 

crimes of the defendant; and

(D) to provide the defendant with needed 

educational or vocational training, 

medical care, or other correctional 

treatment in the most effective manner;

(3) the kinds of sentences available;

. . .

(6) the need to avoid unwarranted sentence 

disparities among defendants with similar 

records who have been found guilty of 

similar conduct; and

(7) the need to provide restitution to any 

victims of the offense.

§ 3553(a)(1)–(7). We have explained that “[a]n analysis 

under § 3553(a) involves considering the totality of the 

circumstances, but ‘[t]he district court need not tick off each 

of the § 3553(a) factors to show that it has considered 

them.’” Dunn, 728 F.3d at 1159 (second alteration in 

original) (quoting Carty, 520 F.3d at 992).

We have also emphasized that “a court’s discretionary 

decision under the § 3553(a) factors, at step two [of the

§ 3582(c)(2) inquiry], exceeds the limited scope of a 

resentencing ‘adjustment’ applicable to step one.” Dunn, 

728 F.3d at 1158 (emphasis added). Therefore, although at 
12 UNITED STATES V. LIZARRARAS-CHACON

step one of the inquiry, a district court will “substitute only 

the amendments listed . . . for the corresponding guideline 

provisions that were applied when the defendant was 

sentenced and shall leave all other guideline application 

decisions unaffected,” at step two, there are no similar 

limitations on what a district court may consider. Dillon, 

560 U.S. at 827 (citation omitted).

C. Intervening Developments Are Relevant to the § 3553(a) 

Factors

In Pepper, the Supreme Court explained that an 

underlying principle in federal judicial tradition is that “the 

punishment should fit the offender and not merely the 

crime.” Pepper v. United States, 562 U.S. 476, 487–88 

(2011) (citation omitted). In seeking to ensure that the 

“punishment fit the offender,” the Supreme Court explained 

that judges should use “the fullest information possible 

concerning the defendant’s life and characteristics.” Id.

at 488 (citation omitted). In a § 3553(a) factor analysis, such 

information should include, where applicable, postsentencing and post-offense rehabilitation. Id. at 480, 488

(holding that the court of appeals’ ruling prohibiting the 

district court from considering evidence of a defendant’s 

rehabilitation since the initial sentencing “conflict[ed] with 

longstanding principles of federal sentencing law and 

Congress’ express directives in [18 U.S.C.] §§ 3661 and 

3553(a).”). It follows that in a § 3553(a) factor analysis, a 

district court must similarly use the fullest information 

possible concerning subsequent developments in the law, 

such as changes in sentencing guidelines, legislative changes 

to a mandatory minimum, and changes to a triggering 

predicate offense to ensure the punishment will “fit the 

crime” and critically, to ensure that the sentence imposed is 

also “‘sufficient, but not greater than necessary’ to reflect the 
UNITED STATES V. LIZARRARAS-CHACON 13

seriousness of the offense, promote respect for the law, and 

provide just punishment; to afford adequate deterrence; 

[and] to protect the public.” Carty, 520 F.3d at 991 (quoting 

§ 3553(a) and (a)(2)).

Subsequent developments affecting a mandatory 

minimum are relevant, for example, to the “nature and 

circumstances of the offense,” the “seriousness of the 

offense,” the needs “to provide just punishment for the 

offense,” and “to afford adequate deterrence to criminal 

conduct.” § 3553(a)(1), (2)(A)–(B). The “seriousness of the 

offense,” is broad and logically includes any subsequent 

reevaluation of sentencing issues reflected in legislation. 

Subsequent legislation, such as the reduction of the 

mandatory minimum in the First Step Act, is a legislative 

reassessment of the relative seriousness of the offense. 

Legislative changes or guideline changes do not happen in a 

vacuum. They represent a societal judgment that it is 

necessary, from time to time, to reconsider and adjust what 

is an appropriate sentence consistent with the goals of the 

criminal justice system. Congress’s legislative action 

through the First Step Act, reducing the mandatory 

minimum and requiring a higher-level predicate offense 

reflects a decision that prior sentences were greater than 

necessary.3

 Similarly, a development in the law, such as our 

3 See, e.g., United States v. Shaw, 957 F.3d 734, 742 (7th Cir. 2020)

(discussing § 3553(a) factors in a motion for sentence reduction under 

the First Step Act and stating that a “statutory minimum and maximum 

often anchor a court’s choice of a suitable sentence” and “today’s 

Guidelines may reflect updated views about the seriousness of a 

defendant’s offense or criminal history”); cf. United States v. Taylor, 

648 F.3d 417, 427 (6th Cir. 2011) (stating that “amendments to the 

Guidelines are relevant to the § 3553(a) factors,” and “the Sentencing 

Commission’s view of the defendant’s offense conduct, revealed in the 

Commission’s actions to revise the Guidelines, is highly relevant to the 
14 UNITED STATES V. LIZARRARAS-CHACON

holding in Valencia-Mendoza, is also relevant to assessing 

the “history and characteristics of the defendant.” 

§ 3553(a)(1). At the time of sentencing, Defendant’s 2010 

prior conviction was deemed a “felony drug offense.” Now, 

under our holding in Valencia-Mendoza, the 2010 prior 

conviction would not qualify as a “felony drug offense.”

Our holding today is consistent with the mandate that a 

district court consider the “totality of the circumstances.” 

Dunn, 728 F.3d at 1159.

II. The District Court’s Order

The Government argues, alternatively, that the district 

court did consider the intervening changes to the mandatory 

minimum and concluded that none of the developments 

caused it to reconsider its original § 3553(a) factor analysis. 

According to Defendant, the only fair reading of the district 

court’s order is that the district court misunderstood the 

breadth of Dillon’s second step and erroneously believed 

that the restrictions at step one required it to apply a 

circumscribed, guideline-based § 3553(a) analysis.

The district court’s order is, at best, ambiguous. 

Defendant raised a “specific, nonfrivolous argument 

tethered to a relevant § 3553(a) factor,” and as such, the 

district court was required to consider Defendant’s 

arguments within the § 3553(a) framework.4 See Trujillo, 

district court’s assessment of the nature and circumstances of the offense, 

§ 3553(a)(1), and the seriousness of the offense, § 3553(a)(2)(A).” 

(internal quotation marks omitted)).

4 To be clear, the district court could have considered the 

developments affecting the mandatory minimum and nonetheless 

concluded that a reduction in Defendant’s sentence was not warranted 
UNITED STATES V. LIZARRARAS-CHACON 15

713 F.3d at 1009 (citation omitted). It is not clear from the 

record that the district court recognized that it had the 

discretion to consider relevant developments in the law in a 

§ 3553(a) factor analysis. The district court stated that 

Defendant did not explain “how changes to a mandatory 

minimum might fit within the § 3553(a) framework.” The 

statement indicates that the district court misapprehended 

the breadth of the § 3553(a) factors. The district court’s 

subsequent parenthetical to Hughes is insufficient to 

overcome the erroneous statement and instead creates an 

ambiguity. Because the record is not clear, remand is 

necessary.

CONCLUSION

Because the district court appears to have erroneously 

concluded that it could not consider intervening 

developments affecting the mandatory minimum in its 

§ 3553(a) factor analysis, we conclude that the district court 

abused its discretion. On remand, the district court shall 

consider the fullest information possible, including the 

intervening changes in the law raised by Defendant, to 

ensure that the sentence is sufficient but not greater than 

necessary.

REVERSED AND REMANDED.

based on the totality of the circumstances and after considering all of the 

relevant § 3553(a) factors.