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 ME R I C A , Plaintiff-Appellee ,

v.

T I N A

- M A R I E F I N AZZ O , Defendant-Appellant. No. 15-10272

D.C. No. 1:11-cr-00383-LEK-1

OPI NI ON

Appeal from the United States District Court for the District of Hawaii L eslie E. Kobayashi, District J udg e, Presiding
Argued and Submitted October 18, 2016

Honolulu, Hawaii

F iled November 10, 2016

B efore: J

. Clifford W a llace, J erome F arris, and Paul J . W atford, Circuit J udg es. Opinion by

J udg e W allaceU N I T E D S T A T E S V

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SUMMARY *

Crim inal Law

The panel affirmed the district c ourt’s order g ranting in p art and denying in part Tina-Marie F inaz z o’s motion for a sentence r eduction pursuant to 18 U .S.C. § 3582(c)(2) based
on a r etroactive 2014 amendment that lowered her applicable SentencingGuidelines rang e

. At the orig inal sentencing , the probation office
rec o mmended a downward variance, and the g overnment 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 distr i c t court adopted the re commendation and imposed a 172-month sentence based in part on F inaz zo’s early an d e x t ensive cooperation with law enforcement.

On F inaz z o’s § 3582(c)(2) motion, the di s t r i c t court reduced her s e n t e n ce to the bottom of the amended Guidelines rang e , 168 months, but denied h e r request for a downward variance comparable to what she received as part at her orig inal sentencing because the initial v ariance was not based on her substantial assistance to authorities.

Under U.S

. S

. G. § 1B 1.10(b)(2)(B ), a reduction comparably less than t h e amended Guidelines rang e may be appropriate for a defendant who r eceived at the t i m e o f sentencing a below-Guidelines sent e n ce a s the result of “a

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co nv 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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g overnment motion to reflect the defendan t ’ s substantial assistance to authorities.” T he panel held that the g overnment’s con du c t in this case did not amount to a motion, and rejected F i n az z o’s argument that the canon o f
con stitutional avoidance and the rule of lenity c ompel interpretation of § 1B1

. 1 0 ( b )(2)(B ) a s being trig g ered by a g overnment motion under 18 U.S.C. § 3553(a).

COUNSEL Craig W

. J erome (arg

ued) a nd Salina Kanai Althof, Assistant F ederal Public Defenders; Peter C. W olff, J r., F e deral Public Defender; H awaii F ederal Public Defender, Honolulu, Hawaii; for Defendant-Appellant.

Thomas Muehleck (arg ued), A ssistant United States Attorney ; F lorence T. Nakakuni, United States Attorney ; U n ited States Attorney ’s Office, Honolulu, Hawaii; for Plaintiff-Appellee.U N I T E D S T A T E S V

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OP INION

W A L L ACE, Senior Circuit J udg e: Appellant Tina-Marie F inaz z o appeals f rom the district court’s judg ment, challeng ing its o rder g ranting in p a r t a nd denying in part her motion for a sentence reduction. W e have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

. W e revi e w sentence reductions under 18 U .S.C. § 3582(c)(2) for abuse of discretion. U nited States v. D unn , 728 F .3d 1151, 1155 (9th Cir. 2013). “A dist ri ct court may abuse its discretion if it does not apply the correct law or if it rests its deci s i o n o n a clearly erroneous finding of material fact.” Id. , quoting United States v. Lightfoot , 626 F .3d 1092, 1094 (9th Cir. 2010).

I I

.
F inaz zo pleaded g uilty in 2011 to one count of conspiracy to distribute and to posses s with intent to distribute fifty g rams or more of methamphetamine. Her U n i t ed States Sentencing Guidel i n e s (Guidelines) rang e was 210 to 262
m o n t h s ’ i m p r i s o n m e n t , b u t t h e p r o b a t i o n o f f i c e recomme n ded a downward variance to 172 months. The g overnment assented to this recommendation with the caveat that it w as n o t m a k ing a motion for a d ownward departure under Gui d e l i n es § 5K1.1. At sentencing , the district court adopted the recom mendation and imposed a 172-month sentence, based in part on F inaz z o’s “ early and ex t ensive cooperation with law enforcement.”U N I T E D S T A T E S V

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The U nited States Sent e n c i n g C o m m i s sion (Commission) subsequently l o w e r ed the sentencing rang e for F inaz z o’s crime. Commission Guidelines Manual, app. C, amend. 782 (2014). F inaz z o then moved t h e d istrict court to reduce her sentence pursuant to 18 U.S.C. § 3582(c)(2), which pe rm i ts such re du ctions when the Commission has lowered the applicable Guidelines r a n g e after sen t encing

. The court g ranted that mot i o n in part, reducing F inaz z o’s sentence to 168 months—the bottom of the am e n ded Guidelines rang e

. B ut it denied F inaz zo’s request f or a downward varia n c e compara ble to what she had received as part of her orig inal sentence because the initial variance was not b a s e d o n her “substantial assistance.” F inaz z o appeals.

I I I

. W h en g r an t ing a sentence reduction under 18 U .S.C. § 3582(c)(2), a court cannot reduce the s e n t e n c e to a term “that is less than the minimum of the amended [G] uideline[ s] rang e .” Guidelines § 1B 1 .10(b)(2)(A). There is an ex c eption to this rule for a defendant who orig inally received a belowGuidelines sentence as the r esult of “a g o vernment motion to reflect the defendant’s substa ntial assistance to authorities.” Id. § 1B 1.10(b)(2)(B ). In such a c ase , “a reduction comparably less than the a mended [ G] uideline[ s] rang e

. . . may be appropriate.” Id.

F inaz zo argues, as she did in t h e district court, that the g overnment made such a motion at her sentencing , and she is therefore entitled to a more sig nificant reduction. She acknowledg es that the g overnment never filed a written motion; nevertheless, she contends that it made an o ra l “m o t i on” by adopting the probation office’s recommendedU N I T E D S T A T E S V

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sentence and not objecting when the court a t t r ibuted the request for a lower sentence to the government.

W e have defined a motion a s “ [ a] written or oral application requesting a court to make a specified ruling o r order.” S EC v. McCarthy , 3 22 F .3d 650, 657 (9th Cir. 2003) (alteration in orig inal), quoting Black’s Law Dictionary 1031 (7th e d. 1999). Assuming a r g uendo that this definition applies in the Guidelines contex t, the g overnment’s statement that it “ha[ d] no problem” with the pr o bation office’s recommendation cannot fairly b e cal l ed a motion. This acquiescence was not a request or even a sug g estion that the court impose a particular senten c e

. The g overnment merely refrained from objecting o r offering its own recommendation. A motion requires an affirmative act of solicitation, and this passive conduct does not qualify . W e therefore hold that the g overnment’s conduct in this case di d n o t amount to a motion.

The commentary to sect i o n 1B 1.10(b)(2)(B ) buttresses this conclusion. According to Application Note 3, th r ee provisions a

ut h o riz e a motion reflecting a defendant’s substantial assistance: Guidelines § 5K1.1, 18 U .S.C. § 3553(e), and F ederal Rule o f Criminal Procedure 35(b ). Guidelines § 1B 1.10 cmt. n.3. T he Guidelines thus contemplate that such a motion will, in some manner, be tied to one of these provisions. That d id not happen here. I n fact, the g overnment stated ex p licitly that it was no t making a motion under Guidelines § 5K1.1. Cons e q u ently , it would
un d ermine the Guidelines’ ex pectations to call the g overnment’s conduct in this case a motion.

F inaz zo a l s o argues that the c anon of constitutional avoidance and the rule of lenity compel us to interpret sectionU N I T E D S T A T E S V

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1B 1.10(b)(2)(B ) as b e ing trig g ered b y a g overnment motion under 18 U .S.C. § 3 553(a). To the e x t e n t t hat this argument encompasses the q u e s tion of whether the g overnment made
a m o t i on at all, neither the rule of lenity nor the canon o f constitutional avoidance appli e s

. B oth rules require that the statute at i s s u e be ambig uous, a nd this statute is not ambig uous. See Alme n d

a re z
- T o r re s v

. United States , 523 U.S. 224, 237–38 (1998) (canon o f constitutiona l avoidance); United States v. Bendtzen , 5 4 2 F .3d 722, 7 2 7–28 (9th Cir. 2008) (rule of lenity). According ly , we affirm the district court’s ruling

. AF F IRMED

.