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United States v. Tercero

United States Court of Appeals, Ninth Circuit

October 31, 2013

UNITED STATES of America, Plaintiff-Appellee,
v.
Teniah TERCERO, Defendant-Appellant.

Submitted Oct. 7, 2013.[*]

Page 980

Mark Rosenbush, San Francisco, CA, for Defendant-Appellant.

Suzanne B. Miles, Assistant United States Attorney, Office of the United States Attorney, San Francisco, CA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of California, Richard Seeborg, District Judge, Presiding. D.C. No. 3:09-CR-00102-RS-3.

Before: DOROTHY W. NELSON, MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges.

OPINION

D.W. NELSON, Senior Circuit Judge:

Teniah Tercero (" Tercero" ) appeals the district court's decision granting in part and denying in part her motion to reduce her sentence under 18 U.S.C. § 3582(c)(2) following the enactment of the Fair Sentencing Act. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.

I. Background

Tercero's appeal concerns the retroactive application of the Fair Sentencing Act and the related amended Sentencing Guidelines ranges for offenses involving crack cocaine. See Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372; U.S. Sentencing Guidelines Manual app. C, amends. 748, 750 (2010).

The government indicted Tercero on two counts: conspiracy to distribute crack cocaine and distribution of crack cocaine. Tercero pled guilty to a single count of possession with intent to distribute methamphetamine, as alleged in the information, in exchange for the dismissal of the charges in the indictment. The parties stipulated that, for the purposes of sentencing, Tercero possessed 115.8 grams of crack cocaine and 4.36 grams of methamphetamine, resulting in an adjusted offense level of 25. The parties agreed, however, that Tercero could argue for a sentence as low as 72 months. Tercero agreed to waive " any right ... to appeal any aspect of [her] sentence," as well as any right to file any collateral attack on her conviction or sentence, such as by filing motion under 18 U.S.C. § 3582.

The district court found that the applicable Sentencing Guidelines range was 84 to 105 months based on a criminal history category of 4 and a total offense level of 25. The court then considered the factors set forth in 18 U.S.C. § 3553(a), finding that Tercero played a minor role in the conspiracy. While Tercero knew that she was committing a serious offense, she neither created nor organized it, thus, the district court concluded that her minor role made " her conduct less serious than a mechanical application of the guidelines would suggest." Accordingly, the court found that a downward departure was appropriate and imposed a sentence of 72 months with a three-year term of supervised release.

Thereafter, Congress passed the Fair Sentencing Act, (" FSA" ), and the Sentencing Commission amended the Sentencing Guidelines for crack cocaine offenses. Tercero then filed a § 3582 motion to ...


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