FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA  No. 08-10298

Plaintiff-Appellee, D.C. No.

v.  2:05-cr-00034-LKKDAD LINDA ANN CHANEY,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, District Judge, Presiding

Argued and Submitted June 8, 2009

Submission Vacated June 10, 2009

Resubmitted August 5, 2009

San Francisco, California

Filed September 15, 2009

Before: Procter Hug, Jr., Betty B. Fletcher and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins

13395
COUNSEL

David M. Porter, Assistant Federal Public Defender, Sacramento, California, for the defendant-appellant.

Philip A. Ferrari, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.

OPINION

HAWKINS, Circuit Judge:

Linda Ann Chaney (“Chaney”) appeals the denial of her 18

U.S.C. § 3582(c)(2) motion for a reduced sentence. Chaney

was caught in a sting operation distributing large amounts of

cocaine base (“crack”) and charged with seven related counts.

She agreed to cooperate with federal authorities and signed a

plea agreement in exchange for a lower sentence. Some time

after Chaney was sentenced to 103 months pursuant to the

plea agreement, the Sentencing Commission passed Amendment 706 to the Sentencing Guidelines (the “Guidelines”),

retroactively reducing by two points the Guidelines range for

crack offenses. 

Chaney—who had initially been eligible for a Guidelines

range of 235 to 293 months and subject to a mandatory minimum sentence of 20 years to life—sought a reduction of her

103-month sentence by retroactive application of Amendment

706. The district court exercised its discretion and denied the

motion. Chaney timely appealed. Concluding that the district

court did not abuse its discretion, we affirm.

UNITED STATES v. CHANEY 13397
I. BACKGROUND

A. Original Sentencing

After getting caught in a federal sting operation distributing

large amounts of crack cocaine, Chaney agreed to cooperate

with federal authorities and signed a plea agreement according to which she would provide truthful testimony concerning

subordinates in her drug distribution ring.1

In exchange for these agreements and concessions, the government dismissed all but two charges, declined to allege any

prior offenses at sentencing, and agreed to recommend a sentence reduction of “up to 50%” from the minimum applicable

Guidelines sentence. The parties stipulated to a base offense

level of 31, a criminal history category of IV, and a minimum

Guidelines sentence of 151 months. The government accordingly submitted a letter pursuant to U.S.S.G. § 5K1.1 to the

district court recommending a reduced sentence of 108

months, or a 28% downward departure. Both Chaney and the

1According to the plea agreement, Chaney further 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.” She agreed further that “[i]f . . . her sentence

is ever reduced at her request, the government shall have the right (1) to

prosecute the defendant on any of the counts to which [she] pleaded

guilty; (2) to reinstate any counts that may be dismissed pursuant to this

agreement; and (3) to file any new charges that would otherwise be barred

by this agreement.” 

The government, however, has not attempted to enforce any appeal

waiver or agreement not to seek a sentence reduction in this case. Accordingly, we do not address whether Chaney waived her right to file the present § 3582(c)(2) sentence reduction motion or to appeal from its denial.

See United States v. Jacobo Castillo, 496 F.3d 947, 957 (9th Cir. 2007)

(en banc) (“’[P]lea agreements are construed under the principles of contract law’ and ‘[a] party may waive a contract provision that is beneficial

to it.’ . . . ‘[An appeal] waiver is not binding [if] the government has

waived the issue.’ ” (quoting United States v. Story, 439 F.3d 226, 231

(5th Cir. 2006))). 

13398 UNITED STATES v. CHANEY
government further agreed “not to move for, or argue in support of, any sentence other than the sentence determined by

the sentencing guidelines consistent with the stipulations

herein.”

Notwithstanding the plea agreement, the presentence report

(“PSR”) deviated from the parties’ stipulations because,

according to the report, Chaney was eligible for a “leadership

role” enhancement under U.S.S.G. § 3B1.1. In light of this

upward adjustment, the PSR calculated a base offense level of

35, rather than 31, and recommended that Chaney be sentenced to a term of imprisonment of 235 months, at the bottom of the Guidelines range of 235 to 293 months.

Citing language from the plea agreement, Chaney objected

to the PSR’s calculation of the Guidelines range because it

included a non-stipulated upward adjustment. The government responded in its 5K1 letter that “[r]egardless of the

math, the government’s belief is that the appropriate sentence

. . . is 108 months.” Noting that the government “d[oes]n’t

care much one way or another” whether the leadership

enhancement applies, “as long as 9 years is the bottom line,”

the district court found that “the total offense level is 35,” and

“[t]he guideline range is as specified in the [PSR]” (i.e., 235

to 293 months), but sentenced Chaney to 103 months, 56%

below the minimum Guidelines sentence.

B. Section 3582(c)(2) Hearings

The Guidelines for crack cocaine offenses were amended

after Chaney’s judgment became final. See Guidelines Manual (2007), Appendix C, Amendment 706. The amendment

adjusts downward by two levels the base offense level

assigned to each threshold quantity of crack cocaine listed in

the Drug Quantity Table in U.S.S.G. § 2D1.1. Amendment

706 authorizes sentence reductions pursuant to 18 U.S.C.

§ 3582(c)(2) for crack cocaine offenders sentenced prior to

UNITED STATES v. CHANEY 13399
November 1, 2007. See United States v. Ross, 511 F.3d 1233,

1237 n.2 (9th Cir. 2008).

Chaney filed a § 3582(c)(2) sentence reduction motion in

light of Amendment 706. She argued that she had received a

56% downward departure from the 235-month Guidelines

sentence, and, invoking U.S.S.G. § 1B1.10(b)(1), asserted that

she should receive a “comparable” departure under the

revised Guidelines sentence of 188 months (i.e., a final sentence of 83 months, reduced from 103 months). The government opposed the motion, arguing that Chaney’s sentence was

not “based on” the Guidelines within the meaning of

§ 3582(c)(2), and therefore that a reduction of sentence was

not warranted.

The district court held two hearings on the motion. In the

first hearing, the court noted, “I have very little recollection

of this case,” and adjourned the hearing to give the parties and

the court an opportunity to more carefully review the record.

At the second hearing, the court repeatedly stated its belief

that “this was not a sentence ordained by the guidelines.” For

example, the court stated that Chaney had been sentenced

according to “the totality of the circumstances” rather than the

Guidelines; that the “case . . . really deals with a sentence

which was not at all tied to the guidelines”; that although “the

guidelines were the starting point, . . . they weren’t an ending

point at all”; and that “[t]his is a case which does not appear

to me to be a case based on the guidelines.”

At the government’s insistence that “probably the safest

way” for the district court to deny Chaney’s motion would be

to assume arguendo that her sentence was based on the Guidelines and to “decline in its discretion based on all the facts not

to give the proportional 56 percent . . . reduction,” the court

ultimately declined in its discretion to make the commensurate departure. Chaney timely appealed.

13400 UNITED STATES v. CHANEY
II. DISCUSSION

A. Jurisdiction & Standard of Review

Our jurisdiction to review discretionary denials of

§ 3582(c)(2) sentence reduction motions rests on 28 U.S.C.

§ 1291. United States v. Colson, 2009 WL 2185406, at *1

(9th Cir. July 23, 2009). We review such denials for abuse of

discretion. Id.; see also United States v. Sprague, 135 F.3d

1301, 1304 (9th Cir. 1998) (citing United States v. Townsend,

98 F.3d 510, 512 (9th Cir. 1996) (per curiam)). “ ‘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.’ ” Sprague, 135 F.3d at 1304 (quoting Kayes v.

Pacific Lumber Co., 51 F.3d 1449, 1464 (9th Cir. 1995)).

Underlying questions of law are reviewed de novo. United

States v. Paulk, 569 F.3d 1094, 1095 (9th Cir. 2009) (per

curiam) (citing Townsend, 98 F.3d at 513.).

B. Whether § 3582(c)(2) Requires a Two-step Analysis

Chaney first argues that § 3582(c)(2) required the district

court, before denying her sentence reduction motion, to determine what sentence it would have imposed had Amendment

706 been in effect at her original sentencing, and that denying

her motion without this determination was an abuse of discretion. The government counters that “there is no requirement

in the Ninth Circuit that a district court engage in a two-step

analysis” that necessitates a determination of what sentence it

would have imposed, and that the district court did all that

was required of it in disposing of Chaney’s § 3582(c)(2)

motion.

We agree. It is well settled that “ ‘[s]tatutory interpretation

begins with the plain language of the statute.’ ” Coos County

Bd. of County Comm’rs v. Kempthorne, 531 F.3d 792, 803-04

(9th Cir. 2008) (quoting K & N Eng’g, Inc. v. Bulat, 510 F.3d

1079, 1081 (9th Cir. 2007)). Here, no plausible reading of the

UNITED STATES v. CHANEY 13401
plain language of § 3582(c)(2) requires the district court to

determine at all what sentence it would have imposed had the

amendment been in effect at the original sentencing, much

less to do so mandatorily prior to determining whether a

reduction is appropriate.

[1] By its plain terms, § 3582(c)(2) requires that the district

court: (1) determine whether the defendant was “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)”; (2) “consider[ ] the factors set

forth in section 3553(a) to the extent that they are applicable”;

and (3) determine whether “a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). There is simply no other

requirement to be found in the plain text of the statute.

Chaney’s assertion that “there is no ambiguity” that

§ 3582(c)(2) requires a sequential two-step analysis is therefore without foundation.

In the absence of a persuasive textual argument, Chaney

relies primarily on two out-dated cases from the Eighth and

Eleventh Circuits that have been abrogated by recent changes

to the Guidelines. In United States v. Vautier, 144 F.3d 756

(11th Cir. 1998), the Eleventh Circuit determined that

“§ 3582(c)(2) and the Sentencing Guidelines together” create

a “two-step analysis” that requires a district court, first, to

“substitute the amended guideline range for the originally

applied guideline range and determine what sentence it would

have imposed,” and, second, “in light of the conclusion

reached in the first step,” to “determine whether or not to

reduce the defendant’s original sentence.” Id. at 760 (citing

U.S.S.G. § 1B1.10(b)). In United States v. Wyatt, 115 F.3d

606 (8th Cir. 1997), the Eighth Circuit similarly concluded

that “the Guidelines instruct the sentencing court to consider

what sentence it would have imposed had the retroactive

amendment been in effect at the time the defendant was sentenced” before “mak[ing] a discretionary determination of

13402 UNITED STATES v. CHANEY
whether to reduce the defendant’s term of imprisonment.” Id.

at 608-09 (citing U.S.S.G. § 1B1.10(b) and 18 U.S.C.

§ 3582(c)(2)).

[2] In developing this two-step sequence, however, both

decisions expressly relied on U.S.S.G. § 1B1.10(b) (1997),

which, at the time each case was decided, expressly instructed

a district court presented with a § 3582(c)(2) motion to “consider the sentence that it would have imposed had the amendment(s) to the guidelines . . . been in effect at the time the

defendant was sentenced.” U.S.S.G. § 1B1.10(b) (1997). In

2008, however, the Sentencing Commission amended the

Guidelines so they now require a district court to determine

only “the amended guideline range that would have been

applicable,” rather than the “term of imprisonment it would

have imposed.” Compare U.S.S.G. § 1B1.10(b) (2007) with

U.S.S.G. § 1B1.10(b)(1) (2008).2 Here, there is no dispute that

the district court did “determine the amended guideline range

that would have been applicable.” Accordingly, the district

court did not abuse its discretion for failing to determine what

sentence it would have imposed had Amendment 706 been in

effect at the time of the original sentencing.

C. Clear Error Respecting the Leadership 

Enhancement

Chaney also argues that the district court abused its discretion because it was “confused” and “misunderst[ood]”

whether the leadership enhancement had been applied.

Because the leadership enhancement was imposed notwithstanding the plea agreement, according to Chaney, “it cannot

be said that the court exercised its discretion in a fair and judicious manner” in light of its confusion.

2The 2008 amendment to § 1B1.10 took effect on March 3, 2008; the

district court decided Chaney’s § 3582(c)(2) motion on April 22, 2008. 

UNITED STATES v. CHANEY 13403
[3] This argument is meritless. Although a district court can

abuse its discretion by basing a decision on a clearly erroneous finding of fact, Sprague, 135 F.3d at 1304, there is no

doubt here that the district court did find that it originally

included the leadership enhancement in its original Guidelines

calculation or that it did consider the same enhancement in its

§ 3582(c)(2) recalculation of the Guidelines range. 

AFFIRMED.

13404 UNITED STATES v. CHANEY