United States v. Victor Charles Reed, 914 F.2d 1288 (9th Cir. 1990). · Go Syfert
United States v. Victor Charles Reed, 914 F.2d 1288 (9th Cir. 1990). Cases Citing This Book View Copy Cite
45 citation events (11 in the last 25 years) across 4 distinct courts.
Strongest positive: United States v. Chang In Bang (ca9, 2001-02-05)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 30 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Chang In Bang
9th Cir. · 2001 · confidence medium
The government contends that under United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990), we lack jurisdiction to review Bang’s challenge to his sentence.
discussed Cited as authority (rule) United States v. Regalado-Frias
9th Cir. · 2001 · confidence medium
United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990); see also United States v. Young, 988 F.2d 1002, 1004 (9th Cir.1993) (“This court lacks jurisdiction to review the district court’s discretionary selection of a sentence within a properly calculated guideline range.”).
discussed Cited as authority (rule) United States v. William Williams
9th Cir. · 1997 · confidence medium
See Williams v. United States, 503 U.S. 193, 204-05 (1992); United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990). 4 If his appeal waiver puts the "applicable guideline range" beyond appellate scrutiny, then as a practical matter, any guideline range would suffice.
discussed Cited as authority (rule) United States v. Raymond Hollis Curtsinger
6th Cir. · 1995 · confidence medium
See United States v. Macias, 930 F.2d 567, 571-72 (7th Cir. 1991); United States v. Reed, 914 F.2d 1288, 1289 (9th Cir. 1990); United States v. Zapata-Alvarez, 911 F.2d 1025, 1027 (5th Cir. 1990); United States v. Burton, 898 F.2d 595, 598 (8th Cir. 1990). 6 We conclude that Curtsinger's argument that he was improperly convicted of two counts of carrying a firearm in relation to a crime of violence in violation of 18 U.S.C.
discussed Cited as authority (rule) United States v. Vincent Peter Camacho
9th Cir. · 1995 · confidence medium
See Williams v. United States, 112 S.Ct. 1112, 1121 (1992) ("The selection of the appropriate sentence from within the guideline range, ... [is] left solely to the sentencing court." (citation omitted)); United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990); see also 18 U.S.C.
discussed Cited as authority (rule) United States v. Frank v. Okiyama
9th Cir. · 1994 · confidence medium
Whether the district court may calculate a sentence in this manner was settled by United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990); see also United States v. Sanchez-Lopez, 879 F.2d 541, 558-59 (9th Cir.1989).
discussed Cited as authority (rule) United States v. Jayson R. Thompson
9th Cir. · 1994 · confidence medium
Because we lack jurisdiction to review a district court's discretionary decision to impose sentence at a particular place within the applicable Guidelines range, see United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990), this appeal is dismissed. * The panel unanimously finds this case suitable for decision without oral argument.
discussed Cited as authority (rule) United States v. Antonio Rodriguez-Chavez, Aka: Alberto Rodriguez-Chavez, Jose Vasquez-Luna (2×) also: Cited "see"
9th Cir. · 1994 · confidence medium
Williams v. United States, --- U.S. ----, 112 S.Ct. 1112, 1121 (1992) ("The selection of the appropriate sentence from within the guideline range, ... [is] left solely to the sentencing court.") (citation omitted); United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990) (sentence imposed anywhere within applicable Guidelines range cannot be construed as violation of law or incorrect application of Guidelines); see also 18 U.S.C.
cited Cited as authority (rule) United States v. Rosario Higuera-Rocha, Tirzo Acosta Gastelum v. United States
9th Cir. · 1993 · confidence medium
United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990).
discussed Cited as authority (rule) United States v. Fabiola Morales-Quintero
9th Cir. · 1993 · confidence medium
United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990). 6 "A guilty plea is an admission of each and every element required to establish the offense." United States v. Kidder, 869 F.2d 1328, 1332-33 (9th Cir.1989).
discussed Cited as authority (rule) United States v. Artem B. David (2×)
9th Cir. · 1993 · confidence medium
We disagree. 19 The former claim is precluded by this court's decision in United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990) (rejecting argument that judge had "double-counted" defendant's role in crime "by considering it once when increasing the offense level ... and a second time when deciding to sentence [him] at the upper end of the Guidelines range"). 20 The latter claim is similarly without merit, because "sentencing anywhere within the applicable Guidelines range cannot be construed either as a violation of law, or an incorrect application of the Guidelines." Reed, 914 F.2d at 12…
discussed Cited as authority (rule) United States v. Thomas Russell Yeomans
9th Cir. · 1992 · confidence medium
U.S. v. Morales, 898 F.2d 99, 102 (9th Cir.1990); U.S. v. Sanchez, 914 F.2d 1355, 1363 (9th Cir.1990) [quoting from Morales, "a district court's discretionary decision not to depart downward from the guidelines is not subject to review on appeal."], cert. denied, --- U.S. ----, 111 S.Ct. 1626 (1991); U.S. v. Bos, 917 F.2d 1178, 1180 (9th Cir.1990); U.S. v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990).
cited Cited as authority (rule) United States v. Frederick Nelson Jones
9th Cir. · 1992 · confidence medium
United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990).
cited Cited as authority (rule) United States v. Alton Parker Henderson, United States of America v. Kenneth Stewart
9th Cir. · 1992 · confidence medium
United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990).
discussed Cited as authority (rule) United States v. Ronald David Rogers
6th Cir. · 1992 · confidence medium
See United States v. Macias, 930 F.2d 567, 571-72 (7th Cir.1991); United States v. Reed, 914 F.2d 1288, 1289 (9th Cir.1990); United States v. Zapata-Alvarez, 911 F.2d 1025, 1027 (5th Cir.1990); United States v. Burton, 898 F.2d 595, 598 (8th Cir.1990). 5 Rogers's assertion that the district court retaliated for his challenge to inaccurate information in the presentence report is meritless.
cited Cited "see" United States v. Nichol
9th Cir. · 2006 · signal: see · confidence high
See United States v. Reed, 914 F.2d 1288 (9th Cir.1990); compare United States v. Mares-Molina, 913 F.2d 770, 773 (9th Cir.1990).
cited Cited "see" United States v. Leon Smith
9th Cir. · 1995 · signal: see · confidence high
See United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990). 9 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument.
cited Cited "see" United States v. Juan T. Ruiz
9th Cir. · 1994 · signal: see · confidence high
See United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990). 3 DISMISSED. * The panel unanimously finds this case suitable for decision without oral argument.
cited Cited "see" United States v. Raymond Edward Middleton
9th Cir. · 1994 · signal: see · confidence high
See United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990). 3 DISMISSED. * The panel unanimously finds this case suitable for decision without oral argument.
cited Cited "see" United States v. Paul Brumfield, Jr.
9th Cir. · 1994 · signal: see · confidence high
See United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990).
cited Cited "see" United States v. Todd Ray Burnside
9th Cir. · 1994 · signal: see · confidence high
See United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990) (lawful sentence within guideline range is unreviewable)
cited Cited "see" United States v. Nickolas Martinez, Jr.
9th Cir. · 1993 · signal: see · confidence high
See United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990). 13 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument.
cited Cited "see" United States v. Marvin Lee Effinger
9th Cir. · 1992 · signal: see · confidence high
See United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990).
cited Cited "see" United States v. James E. Campbell
6th Cir. · 1991 · signal: see · confidence high
See United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990).
discussed Cited "see" United States v. Frank Javier Tamez
9th Cir. · 1991 · signal: see · confidence high
See United States v. Reed, 914 F.2d 1288 (9th Cir.1990) (enhancement appropriate where defendant admitted to playing an organizing role in a drug distribution operation); United States v. Mares-Molina, 913 F.2d 770 (9th Cir.1990) (enhancement inappropriate where defendant owned a warehouse where drugs were being stored, but where there was no evidence that he “exercised control or was responsible for organizing, supervising, or managing others in the commission of the offense.” Id. at 773 ); United States v. Carvajal, 905 F.2d 1292 (9th Cir.1990) (enhancement justified where defendant init…
discussed Cited "see" United States v. Jesus Arturo Garcia (2×)
10th Cir. · 1990 · signal: see · confidence high
See United States v. Reed, 914 F.2d 1288 (9th Cir.1990); United States v. Braslawsky, 913 F.2d 466 (7th Cir.1990); United States v. Dugan, 912 F.2d 942 (8th Cir.1990).
discussed Cited "see, e.g." United States v. Christopher Ray Plouffe (2×)
9th Cir. · 2006 · signal: see, e.g. · confidence medium
See, e.g., United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990); United States v. Pelayo-Bautista, 907 F.2d 99, 101 (9th Cir.1990).
discussed Cited "see, e.g." United States v. Plouffe (2×)
9th Cir. · 2006 · signal: see, e.g. · confidence medium
See, e.g., United States v. Reed, 914 F.2d 1288, 1290 (9th Cir. 1990); United States v. Pelayo-Bautista, 907 F.2d 99, 101 (9th Cir. 1990).
cited Cited "see, e.g." United States v. Shonubi
E.D.N.Y · 1995 · signal: see, e.g. · confidence medium
See, e.g., United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990).
cited Cited "see, e.g." United States v. Ricky Allen Hays
6th Cir. · 1992 · signal: see also · confidence medium
See also United States v. Reed, 914 F.2d 1288, 1290 (9th Cir.1990).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Victor Charles REED, Defendant-Appellant
89-10284.
Court of Appeals for the Ninth Circuit.
Sep 18, 1990.
914 F.2d 1288
Michael H. Murray, Law Offices of Timothy B. Rien, Livermore, Cal., for defendant-appellant., Eric R. Havian, Asst. U.S. Atty., Appellate Section, San Francisco, Cal., for plaintiff-appellee.
Goodwin, Sneed, Noonan.
Cited by 38 opinions  |  Published
Pinpoint authority: bottom 54%
SNEED, Circuit Judge:

Appellant Reed pleaded guilty to one felony count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1988). A second count of conspiracy to distribute cocaine was dropped by the United States. Initially appellant was not sentenced under the Sentencing Guidelines, but subsequent to Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), he was resentenced to 97 months in prison and a five-year term of supervised release. In this appeal he challenges his sentences on four grounds. We affirm.

[*1289] I.

FACTS AND PROCEEDINGS BELOW

The district court, in sentencing Reed to 97 months in prison and a five-year term of supervised release, set the base offense level at 28, adjusted up two levels because of Reed’s leadership role in the offense, Guidelines § 3Bl.l(c), and adjusted down two levels for Reed’s acceptance of responsibility, Guidelines § 3E1.1. Reed requested a downward departure under Guidelines § 5K2.0 because of his unstable family history and family responsibilities. The court declined the request. Based upon an offense level of 28 and criminal history category of I, the sentencing range spanned from 78 to 97 months. The district court found “that public safety mandates a sentence at the high end of the Guidelines range because the defendant is, by his own admission, the leader of a drug operation that trafficked in large quantities of high-quality cocaine for a substantial period of time.”

Reed appeals and challenges his sentence. First, he argues that the Sentencing Guidelines are unconstitutional as a violation of the Presentment Clause. Second, Reed claims that the district court misapplied the Guidelines in determining his role in the offense. Third, he asserts that the district court violated 18 U.S.C. § 3553(b) (1988) by failing to determine whether the mitigating circumstances advanced by him justified a downward departure from the Guidelines. Finally, Reed states that the district court erred by allowing Reed’s role in the offense to influence its decision to sentence Reed at the upper end of the Guidelines range. Reed argues that his role in the offense had already been considered in the calculation of his offense level, and therefore should not also be a consideration in selecting his sentence from within the range.

The United States argues that there is no violation of the Presentment Clause and that the district court did not misapply the Guidelines. It then asserts that this court has no jurisdiction to review the third and fourth issues raised by Reed.

Such appellate jurisdiction as we possess rests on 28 U.S.C. § 1291 (1988).

II.

THE PRESENTMENT CLAUSE CHALLENGE

The Presentment Clause reads as follows:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary ... shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives ....

U.S. Const, article I, § 7, cl. 3.

Reed essentially repeats the challenge that was made in United States v. Litteral, 910 F.2d 547, 551-52 (9th Cir.1990). There we held that “the Sentencing Guidelines do not violate Chadha.” Id. at 551-52 (citing INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983)). We need not address this issue further.

III.

REED’S LEADERSHIP ROLE

Section 3Bl.l(c) of the Sentencing Guidelines provides that the court is to “increase [by 2 levels] the offense level.... [i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity. ...” Reed says he did not play such a role and challenges the district court’s conclusion that he was, by his own admission, the leader I of a drug operation. Although Reed is correct that he never explicitly stated that he was a leader of the drug operation, he did' make admissions as to his conduct which indicate that he played an organizing role jn the offense. We have examined the record and are satisfied that the district cour[ did not err.

[*1290] IV.

REFUSAL TO DEPART DOWNWARD

Appellant seeks review of the district court’s refusal to depart downward from the Guidelines, as is permitted by-section 5K2.0. The panel does not have the jurisdiction to review this challenge. See United States v. Morales, 898 F.2d 99, 100 (9th Cir.1990).

V.

THE SENTENCING OF REED TO THE UPPER END OF THE RANGE

Reed claims that the district court “double-counted” his role in the offense by considering it once when increasing the offense level pursuant to section 3Bl.l(c) and a second time when deciding to sentence Reed at the upper end of the Guidelines range. The United States contends that Morales also applies and that, as a consequence, we have no jurisdiction to review the district court’s decision to sentence Reed at the upper end of the Guidelines range. We agree.

This court may review a sentence if the sentence:

(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range ... or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

18 U.S.C. § 3742(a) (1988). We find that, as in the case of a district court’s discretionary decision not to depart downward from the Guidelines, none of the subparts of section 3742(a) characterizes a district court’s discretionary decision to sentence at a particular place within the applicable Guidelines range.

The only limit to a district court’s discretion in sentencing anywhere within the prescribed range is set forth in Chapter 5 of the Sentencing Guidelines. The Chapter 5 directive requires courts to “impose a sentence sufficient, but not greater than necessary, to comply with the statutory purpose of sentencing” set forth in 18 U.S.C. § 3553(a). [1] Therefore, sentencing anywhere within the applicable Guidelines range cannot be construed either as a violation of law, see 18 U.S.C. § 3742(a)(1), or an incorrect application of the Guidelines, see 18 U.S.C. § 3742(a)(2). In addition, if the sentence is within the Guidelines range, it is, by definition, not greater than the sentence specified in that range. See 18 U.S.C. § 3742(a)(3). Finally, if the sentence is within the range, there clearly is a sentencing guideline that applies, see 18 U.S.C. § 3742(a)(4), and we thus lack jurisdiction to review an appellant’s challenge. See United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591-92, 30 L.Ed.2d 592 (1972) (“[A] sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.”).

AFFIRMED.

1

. Section 3553(a) sets forth the factors to be considered in sentencing a defendant. Subsection (a)(2) identifies the statutory purpose of sentencing:

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

18 U.S.C. § 3553(a)(2) (1988).