United States of America v. DANIEL ALLEN FLAHERTY, AKA Daniel Allen Flagherty

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL ALLEN FLAHERTY, AKA
Daniel Allen Flagherty,
Defendant-Appellant.
No. 17-30019
D.C. No.
2:08-cr-00137-WFN-29
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Argued and Submitted February 7, 2018
Seattle, Washington
Before: FISHER, GOULD and PAEZ, Circuit Judges.
Daniel Flaherty appeals the order of the district court denying his
motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). Because Flaherty’s
sentence was “based on a sentencing range that has subsequently been lowered by
the Sentencing Commission,” we vacate and remand.
FILED
FEB 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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Flaherty’s sentence was “based on” the Sentencing Guidelines. First, the
Rule 11(c)(1)(C) plea agreement was “clearly rooted in the Guidelines.” United
States v. Davis, 825 F.3d 1014, 1027 (9th Cir. 2016) (en banc). The agreement
stated the following: “[t]he Defendant understands and acknowledges that the
United States Sentencing Guidelines . . . are applicable to this case and that the
Court will determine the Defendant’s applicable advisory sentencing guideline
range at the time of sentencing”; Flaherty had a base offense level of 38 under the
drug quantity table, U.S.S.G. § 2D1.1(c)(1); Flaherty could be subject to a
two-level adjustment for possession of a firearm under § 2D1.1(b)(1); the
government promised to move for a three-level adjustment for acceptance of
responsibility under § 3E1.1; Flaherty was a career offender under § 4B1, making
his criminal history category VI; and Flaherty intended to move for a downward
departure or variance from the guideline range. Second, the district court’s
decision to accept the plea agreement was based on the guideline range. See
U.S.S.G. § 6B1.2(c); Freeman v. United States, 564 U.S. 522, 529 (2011)
(plurality opinion). Third, the government expressly relied on the guideline range
in seeking a 25-year sentence. See Sentencing Tr. 30. Fourth, the district court
calculated the guideline range at sentencing. See Sentencing Tr. 42.
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The district court, moreover, was required to consider the guideline range in
imposing a sentence within the agreed-upon range. See 18 U.S.C. § 3553(a)(4).
As the Supreme Court explained in Freeman, “[f]ederal sentencing law requires
the district judge in every case to impose ‘a sentence sufficient, but not greater than
necessary, to comply with’ the purposes of federal sentencing, in light of the
Guidelines and other § 3553(a) factors.” Freeman, 564 U.S. at 529 (plurality
opinion) (emphasis added) (quoting 18 U.S.C. § 3553(a)). “[T]he Guidelines are
the starting point and the initial benchmark, and are to be kept in mind throughout
the process.” United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc)
(citations and internal quotation marks omitted); accord Gall v. United States, 552
U.S. 38, 49-50 & n.6 (2007); Freeman, 564 U.S. at 529 (plurality opinion). This is
true even where, as here, the court imposes a sentence below the advisory
guideline range. See Davis, 825 F.3d at 1026 (“Because judges use the Guidelines
range as the starting point, they serve in a real sense as a basis for the sentence,
even where the judge varies from the recommended range.” (emphasis added)
(alterations and internal quotation marks omitted)).
The district court concluded the sentence was not “based on” the Guidelines
because, under Flaherty’s reading, “all sentences would be based on the
Guidelines.” We disagree. First, it is not surprising that most sentences imposed
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pursuant to an 11(c)(1)(C) agreement should be “based on” the Guidelines.
Freeman recognized that this was so when it explained that, “when a defendant
enters into an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and
impose the recommended sentence is likely to be based on the Guidelines.”
Freeman, 564 U.S. at 534 (plurality opinion) (emphasis added). Second, it is not
the case that every sentence is “based on” the Guidelines merely because the
district court calculates a guideline range. In Davis, for example, we explained that
a sentence may not be “based on” the guideline range when the sentencing court
“rejects it as a matter of policy and selects its sentence without regard to it.”
Davis, 825 F.3d at 1023 (quoting United States v. Epps, 707 F.3d 337, 350-51 n.8
(D.C. Cir. 2013)). Similarly, a sentence is not “based on” the guideline range
when it is supplanted by the statutory mandatory minimum sentence, as in United
States v. Rodriguez-Soriano, 855 F.3d 1040, 1045 (9th Cir. 2017).
We vacate the order denying Flaherty’s motion for a sentence reduction and
remand to the district court for proceedings consistent with this disposition. Our
decision does not preclude the government from seeking a stay of proceedings in
the district court pending the outcome of United States v. Koons, 850 F.3d 973 (8th
Cir.), cert. granted, 138 S. Ct. 543 (2017), or United States v. Hughes, 849 F.3d
1008 (11th Cir.), cert. granted, 138 S. Ct. 542 (2017).
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VACATED AND REMANDED.
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