In United States v. Asuncion, --- F.3d ---, No. 18-30130 (9th Cir. 2020), the Court affirmed the defendant's mandatory minimum life sentence under 21 U.S.C. § 841(b)(1)(A) (2018) based on his previous convictions for two or more “felony drug offenses,” as defined in 21 U.S.C. § 802(44).
This case arose before the First Step Act. In other words, the defendant was sentenced under the prior version of 841. The sentencing also took place before United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), which held that even if a state statute governing a prior drug offense prescribes a maximum sentence of more than one year, the state’s sentencing guideline system can affect whether the defendant was, in fact, convicted of a crime “punishable by imprisonment for a term exceeding one year.”
Based on these changes, the defendant made two primary arguments on appeal.
"First, he contends that under Valencia-Mendoza, none of his state crimes were 'punishable by imprisonment for more than one year' because the high ends of his guideline ranges never exceeded twelve months. If true, this would mean that Asuncion committed only one prior felony drug offense and should not have been sentenced as if he had committed two or more. And it would result in a sentence of 20 years rather than life in prison (assuming the First Step Act were held not to apply). See 21 U.S.C. § 841(b)(1) (2018)."
"Second, Asuncion argues that section 401 of the First Step Act should apply because his conviction and sentence were on appeal (and therefore still pending) when the law was enacted. If that were true, his three prior state convictions would not count (regardless of the outcome of his first argument), because the offenses were not “serious drug felonies” within the meaning of section 401. In this scenario, Asuncion, who received a mandatory life sentence, would need to be resentenced with fifteen years as the new mandatory minimum sentence—what the First Step Act prescribes for a defendant with one qualifying prior conviction. See § 401(a)(2)(A)(i), 132 Stat. at 5220."
The Court rejected both arguments.
As to the first claim, the Court held that because the defendant was sentenced for his prior state drug offenses under Washington’s previous guideline system -- which gave the judge broad, open-ended discretion to impose a sentence above the guideline range (and thus above a year) -- they all qualified as prior felony drug offenses.
As to the second claim, the Court held that the FSA did not apply to cases on appeal when the sentence was imposed before enactment: "a sentence is 'imposed' when the district court pronounces the sentence, and not, as Asuncion argues, when the conviction becomes final after appeal."
Important note: This does not (at least should not) apply to cases where the sentence was first imposed before the FSA, then the sentence was vacated on appeal, and the resentencing is taking place after the FSA. Because the original sentence was vacated, there is no longer any sentence imposed before the FSA.
