NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. TUSTUJI MATU WAKAUWN,

Defendant

- Appellant. No. 16

- 30228
D.C. No. 2:12

- cr - 06060

- EFS

- 1

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding Submitted October 5, 2017 ** Seattle, Washington Before: LIPEZ, *** WARDLAW, and OWENS, Circuit Judges. Defendant Tustuji Matu Wakauwn appeals from the district court’s order denying his motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed . R. App. P. 34(a)(2).

*** The Honorable Kermit Victor Lipez, United States Circuit Judge for the First Circuit, sitting by designation. 

# FILED

OCT 10 2017 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Amendment 782 to the U.S. Sentencing Guidelines. As the parties are familiar with the facts, we do not recount them here. We reverse the district court’s order
and remand for furt her proceedings under § 3582(c)(2).
1. When the district court held that Mr. Wakauwn’s sentence was “ineligible” for reduction because it was not “based on” the Guidelines, it denied Mr. Wakauwn’s motion at ste p one of the two

- step § 3582(c)(2) analysis , see Dillon v. United States , 560 U.S. 817, 826

– 27 (2010), and thus indicated that it lacked jurisdiction to grant relief under that statute , s ee United States v. Spears , 824 F .3 d 908, 916 (9th Cir. 2016). T his court reviews such determinations de

novo
. See United States v. Davis , 825 F.3d 1014 , 1019 & n.6 (9th Cir. 2016) (en banc).
2. The district court erred in holding that Mr. Wakauwn’s sentence was ineligible for reduction because it was not “based on” the Guidelines, but rather on his Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement and “factors other than the Guidelines.” A sentence is eligibl e for reduction under § 3582(c)(2) if it was “based on” a Guidelines range that a retroactive amendment subsequently lowered

. Dillon , 560 U.S. at 825

– 26

. A sentence pursuant to a Rule 11 (c)(1)(C) plea agreement is eligible for reduction under § 3582(c)(2) when the district court’s decision to accept the plea ag reement and im pose the recommended
sentence was “based on” a subsequently lowered Guidelines range
. Davis , 8253

F.3d at 1026.
Here , the government does not dispute that retroactive Amendment 782 subsequently lowered the Guidelines range applicable to Mr. Wakauwn’s conviction. And just as in Davis , the district court’s decision to accept Mr. Wakauwn’s Rule 11(c)(1)(C) plea agreement and impose the recommended sentence was “based on” the Guidelines range subsequently l owered by Amendment 782. Several undisputed facts lead us to this conclusion. First, the Rule 11(c)(1)(C) plea agreement required the district court to “determine the Defendant’s applicable sentencing guideline ran ge at the time of sentencing.” Cf

. Davis , 825 F.3d at 1027. Second, the agreement stated that the amount of actual methamphetamine for which Mr. Wakauwn admitted direct responsibility would yield a base offense level of 26 under U.S.S.G. § 2D1.1. Id . Third, the agreement explained that Mr. Wakauwn qualified for a Guidelines reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility. Id . Fourth, during the sentencing hearing, the district court calculated that Mr. Wakauwn’s total offense level was 23 and that his Guidelines range wa s 92 to 115 months. I d . Then, reflecting on all the evidence presented, the court determined that the recommended sentence

— which, at 100 months, fell within the calculated range

— was “just.” I

d

. While i t is true that the district court “focused primari ly” on the non

-4

Guidelines 18 U.S.C. § 3553(a) factors in its statement of reasons and at Mr. Wakauwn’ s sentencing hearing, § 3553(a) mandates consideration of those f actors

. Moreover, nothing in the record indicates that, had the recommended term of 100

m onths fallen above the Guidelines range

— if, for example, the post

- Amendment range of 77 to 96 months had applied

— the district court still would have concluded that 100 months was “not greater than necessary” to achieve the purposes set forth in § 3553(a). See Davis , 825 F.3d at 1027 (“[A] defendant should be eligible for a sentence reduction when one factor in a defendant’s sentence was a ‘since

- rejected Guideline.’” (quoting Freeman v. United States , 564 U.S. 522, 530 (2011) (plurality opinion))) ; cf

. Uni ted States v. Rodriguez

- Soriano , 855 F.3d 104 0, 1044 (9th Cir. 2017) (holding that a Rule 11(c)(1)(C) sentence was not “based on” the Guidelines where the district court calculated the applicable Guidelines range, then disregarded that range due to the app licability of a statutory mandatory minimum). Accordingly, as in Davis , the district court’s “‘decision to accept the plea and impose the recommended sentence’ was ‘based on the Guidelines,’” and that sentence is eligible for reduction through § 3582(c)( 2). See 825 F.3d at 1027 (quoting Freeman , 564 U.S. at 534 (plurality opinion)). On remand, the district court should proce ed to step two of the § 3582(c)(2) analysis and “consider any applicable § 3553(a) factors and determine whether, in its discretion , the reduction5

authorized by reference to [U.S.S.G. § 1B1.10] is warranted in whole or in part under the particular circumstances of the case.” Dillon , 560 U.S. at 8 27.
REVERSED AND REMANDED.