STIPULATED REQUEST TO CONTINUE DATE OF HEARING; [lodged] Order

WILLIAM B. SHUBB, District Judge.

On April 22, 2015, Defendant, ISMAEL GONZALEZ CHAVARRIA, by and through counsel, assistant federal defender David M. Porter, filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). CR 86. The government opposed the motion on May 11, 2015, on the grounds that the nature and content of his plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) precludes his eligibility for such reduction. Opp. at 1-2. The hearing on the motion is currently set for August 10, 2015 at 9:30 A.M. For the reasons set forth below, the parties file this stipulated request to continue the hearing to December 7, 2015 at 9:30 A.M.

In opposing Mr. Chavarria's motion to reduce, the government relied on the Ninth Circuit case U.S. v. Austin, 676 F.3d 924 (9th Cir. 2012) and the Supreme Court case Freeman v. U.S., 131 S.Ct. 2685 (2011), for the proposition that a (c)(1)(C) binding plea agreement must make clear the particular Guideline range on which the defendant's sentence was based in order for the defendant to be eligible for a reduction under 18 U.S.C. § 3582(c)(2). Opp. at 4. In this Circuit, Austin held Justice Sotomayor's concurring opinion in Freeman (a fractured 4-1-4 opinion) is the controlling opinion pursuant to Marks v. United States, 430 U.S. 188 (1977) ("Justice Sotomayor's concurrence is the controlling opinion because it reached this conclusion [that a (c)(1)(C) agreement did not bar eligibility for a sentence reduction] on the `narrowest grounds.'" Austin, 676 F. 3d at 927-28). In January 2015, the Ninth Circuit affirmed Austin in U.S. v. Davis, 776 F.3d 1088 (9th Cir. 2015), in a 2-1 opinion. Defense does not dispute that Ninth Circuit law under Austin and Davis precludes a reduction in Mr. Chavarria's case based on the fact that his binding plea agreement does not contain reference to a particular guideline range as the basis for sentence.

However, in her concurrence in Davis, Judge Berzon called for en banc review to consider whether Austin was correctly decided. Davis, 776 F.3d at 1091. On February 24, 2015, the appellant in U.S. v. Davis filed a petition for rehearing en banc. Dkt. 31. The appellee responded on April 24, 2015. Dkt. 37. If this Circuit grants en banc rehearing and ultimately rejects Austin's finding that Justice Sotomayor's opinion controls on the very issue barring Mr. Chavarria from the requested relief, the Ninth Circuit may fashion a new and different rule that would be applicable to Mr. Chavarria's case. In other words, the parties respectfully submit that this Court should await the resolution of the petition for en banc review in Davis to ascertain the law to be applied to Mr. Chavarria's motion for a sentence reduction.

To allow time for a decision from the Ninth Circuit on both the petition for rehearing and (potentially) from the en banc panel on the merits of the case, the parties stipulate and respectfully request that this Court continue Mr. Chavarria's motion for sentence reduction until December 7, 2015 at 9:30 a.m. for a status hearing.

ORDER

Pursuant to the parties' stipulation, and good cause appearing therefor, the hearing on Mr. Chavarria's motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) is RESET from August 10, 2015, to Monday, December 7, 2015, at 9:30 A.M.