United States v. 2020-11-20 | 20-10043 | USA V. EDDIE HOUSTON, JR. | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

EDDIE HOUSTON, JR.,
Defendant-Appellant.
No. 20-10043

D.C. No.
2:07-cr-00109-TLN-1

ORDER

Filed November 20, 2020

Before: Jay S. Bybee and Lawrence J. VanDyke, Circuit
Judges, and Vince Chhabria,
*
District Judge.

Order;
Dissent by Judge Chhabria

*
The Honorable Vince Chhabria, United States District Judge for
the Northern District of California, sitting by designation.

2 UNITED STATES V. HOUSTON

SUMMARY
**

Criminal Law

The panel denied a petition for panel rehearing and
denied on behalf of the court a petition for rehearing en banc.

Dissenting from the denial of the petition for panel
rehearing, District Judge Chhabria wrote that he would grant
rehearing, vacate the memorandum disposition, and
schedule oral argument (which the panel previously
concluded was unnecessary) because of the possibility that
the panel erred in resting its ruling on the conclusion that the
district court was not required to consider the sentencing
factors in connection with the motion to reduce the sentence.

COUNSEL

Heather E. Williams, Federal Defender; David M. Porter,
Assistant Federal Defender; Office of the Federal Public
Defender, Sacramento, California; for Defendant-Appellant.

McGregor W. Scott, United States Attorney; Camil A.
Skipper, Appellate Chief; Jason Hitt, Assistant United States
Attorney; United States Attorney’s Office, Sacramento,
California; for Plaintiff-Appellee.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

UNITED STATES V. HOUSTON 3

ORDER
Judges Bybee and VanDyke vote to deny and Judge
Chhabria would grant the petition for panel rehearing. Judge
VanDyke votes to deny and Judge Bybee recommends
denial of the petition for rehearing en banc. The full court
has been advised of the petition for rehearing en banc, and
no judge has requested a vote on whether to rehear the matter
en banc. Fed. R. App. P. 35.
The petitions for rehearing and rehearing en banc are
therefore DENIED.

CHHABRIA, District Judge, dissenting from the denial of
the petition for panel rehearing:
I would grant rehearing, vacate our memorandum
disposition, and schedule oral argument (which we
previously concluded was unnecessary) because of the
possibility that we erred in resting our ruling on the
conclusion that the district court was not required to consider
the sentencing factors in connection with the motion to
reduce the defendant’s sentence. See United States v. Easter,
No. 19-2587, 2020 WL 5525395 (3rd Cir. Sep. 15, 2020);
United States v. Chambers, 956 F.3d 667 (4th Cir. 2020);
United States v. Smith, 959 F.3d 701 (6th Cir. 2020). See also
United States v. Kelley, 962 F.3d 470, 478 (9th Cir. 2020)
(holding that a plenary resentencing proceeding is not
required in this context but contemplating that the district
court will consider the statutory sentencing factors in
deciding whether the reduction is warranted). But see United
States v. Moore, 963 F.3d 725 (8th Cir. 2020); United States
v. Mannie, No. 19-6102, 2020 WL 4810084 (10th Cir.
2020); United States v. Shaw, 957 F.3d 734 (7th Cir. 2020).