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Ninth Circuit Announces that District Court Cannot Sua Sponte Raise Waiver as Ground to Dismiss Motion for Sentence Reduction

by Douglas Ankney

In a case of first impression, the U.S. Court of Appeals for the Ninth Circuit announced that a district court cannot sua sponte raise a defendant’s waiver of the right to seek relief under 18 U.S.C. § 3582(c)(2) and deny the defendant’s motion for resentencing on that ground.

In 2012, David James Sainz entered into an agreement that contained an express waiver of his right to seek relief under 18 U.S.C. § 3582(c)(2) in exchange for the reduction of his prison sentence based upon his extensive cooperation with the government. Sainz’s sentence was reduced from 188 months to 120 months.

After Sainz was sentenced, Congress enacted Amendment 782, which lowered Sainz’s Guidelines range. In 2015, Sainz moved for a sentence reduction under 18 U.S.C. § 3582(c)(2), which allows resentencing for “a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered.”

The district court denied Sainz’s motion based on the fact that“Sainz expressly waived the right to seek relief under 18 U.S.C. § 3582” even though neither party raised the issue of waiver. Sainz appealed.

The Ninth Circuit observed that no circuit had directly addressed whether a district court can sua sponte invoke a defendant’s waiver in an agreement with the government of the right to file a § 3582(c)(2) motion. The Court had previously concluded that courts should not raise waivers sua sponte on appeal. United States v. Chaney, 581 F.3d 1123 (9th Cir. 2009). And in Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2010), the Court stated it “will not address waiver if not raised by the opposing party” because “the more prudent course is to resolve the case on the basis of the issues actually briefed and argued by the parties.”

The Ninth Circuit, in rejecting the Government’s argument, distinguished the instant case from Day v. McDonough, 547 U.S. 198 (2006), and Wood v. Milyard, 566 U.S. 463 (2012). In Day, the Supreme Court upheld a district court’s dismissal of a habeas petition when it sua sponte raised the issue of timeliness.

The Supreme Court reasoned that the issue of being time-barred is like issues of procedural default, failure to exhaust state remedies, and nonretroactivity that implicate values beyond the concerns of the parties. Further, in Day, the Government had inadvertently waived the timeliness issue. None of those concerns were present in Sainz’s case. And in Wood, the Supreme Court ruled that the district court abused its discretion when it sua sponte dismissed a habeas petition as untimely after the state had expressly waived the issue. The Ninth Circuit opined that while the Government had not expressly waived Sainz’s waiver, nothing in the record indicated it had inadvertently failed to raise it. In fact, the Ninth Circuit had previously held that the Government waives a waiver by failing to assert it. Norwood.

The Court was persuaded by Burgess v. United States, 874 F.3d 1292 (11th Cir. 2017), where the defendant waived his right to bring a 28 U.S.C. § 2255 motion. After he filed a motion, the district court, sua sponte and without notice to the parties, denied one of the claims in the § 2255 motion based on the waiver. The Eleventh Circuit reversed, holding that the civil rules required parties to assert affirmative defenses. The Eleventh Circuit reasoned that counsel almost always know more about their cases than the courts do, so there may have been strategic reasons for not raising a waiver. Also, allowing courts to sua sponte invoke waivers damage our system of justice because it gives the appearance that the court is taking the side of one party rather than acting as a neutral arbiter.

The Ninth Circuit recognized that the civil rules do not apply to Sainz’s motion raised under the criminal code. Nevertheless, the principles and reasoning of Burgess are the same. Therefore, the Court concluded that the Government waived Sainz’s waiver of his right to file a § 3582(c)(2) motion by failing to raise it in district court, and the district court abused its discretion by raising the waiver sua sponte.

Accordingly, the Court reversed and remanded to the district court for further proceedings consistent with its opinion. See: United States v. Sainz, 2019 U.S. App. LEXIS 23919 (9th Cir. 2019). 

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