United States v. 2021-05-27 | 20-10212 | USA V. JOSEPH HALL | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
JOSEPH HALL,
Defendant-Appellant.
No. 20-10212
D.C. No.
2:06-cr-00310-HDM-PAL-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted May 14, 2021
Pasadena, California
Before: BERZON and BYBEE, Circuit Judges, and CARDONE,** District Judge.
Joseph Hall appeals the district court’s partial denial of his motion for a
reduced sentence. We review the district court’s sentencing decision for abuse of
discretion, United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc), and
affirm.
The parties recognize that the district court correctly calculated Hall’s new
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
MAY 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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statutory sentencing range; correctly held Hall is a career offender under the
Sentencing Guidelines; and, based on Hall’s career offender status and his
statutory offense maximum, correctly calculated his new Guidelines sentencing
range. The record does not support Hall’s contention that the district court
nonetheless erred because it believed Hall’s requested variance would be
impermissible and thus “fail[ed] to consider the § 3553(a) factors.” Id.
Hall argued to the district court that a downward variance from the
Guidelines was warranted under the 18 U.S.C. § 3553(a) sentencing factors to take
into account the subsequent, nonretroactive change in law since his 2006 offense.1
The government agreed that such a variance would be permissible, although it
argued against any variance in this case.
After hearing the parties’ arguments, the district court correctly stated the
two-step analysis under U.S. v. Kelley, 962 F.3d 470, 475 (9th Cir. 2020), petition
1 Hall agrees he is subject to a statutory sentencing range of 10 years to life
imprisonment because of prior felony drug convictions. Under Section 401 of the
First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), however, Hall’s prior
convictions would no longer qualify for an enhanced statutory sentence because
they are not “serious drug felon[ies].” Thus, if current law applied retroactively to
Hall’s resentencing, Hall’s new statutory sentencing range would have instead
been 5 to 40 years’ imprisonment, which would have reduced his Guidelines
sentence to about 22-27 years’ imprisonment. Section 401 “appl[ies] to any offense
that was committed before [December 21, 2018], if a sentence for the offense has
not been imposed as of such date.” Hall does not argue that Section 401 applies
retroactively to his resentencing. See United States v. Asuncion, 974 F.3d 929, 934
(9th Cir. 2020); United States v. Kelley, 962 F.3d 470, 475 (9th Cir. 2020), petition
for cert. filed, No. 20-7474 (U.S. Mar. 17, 2021).

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for cert. filed, No. 20-7474 (U.S. Mar. 17, 2021); accurately represented Hall’s
position with regard to the § 3553(a) factors; stated that “[u]nder any law, [Hall is]
a career offender,” thus recognizing that two sets of law were arguably pertinent
for § 3553(a) purposes; and reiterated that Hall’s overall criminal record did not
justify deviating from a bottom-of-the-Guidelines sentence.
Hall’s contrary understanding of the district court’s ruling misreads the
record. The district court’s comment that “[t]he Court does not consider Hall’s
exposure to any enhanced sentence” pertained to the first step of the Kelley
analysis, where the district court calculates the new statutory and Guideline
sentencing range, not the second step of determining the appropriate sentence
under § 3553(a), which is the subject of this appeal. The court’s comment that
“[t]he Court will not consider” a particular defense argument addressed an
alternative avenue for sentencing relief under 18 U.S.C. § 3582, not a variance
under § 3553(a).
Given the record, as well as both the “assum[ption] that districts judges
know the law” and the presumption that “[a] within-Guidelines sentence ordinarily
needs little explanation,” Carty, 520 F.3d at 992, the district court did not abuse its
discretion.
AFFIRMED.

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