United States v. David Breen, 103 F.3d 141 (9th Cir. 1996). · Go Syfert
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United States v. David Breen, 103 F.3d 141 (9th Cir. 1996). Cases Citing This Book View Copy Cite
35 citation events (2 in the last 25 years) across 6 distinct courts.
Strongest positive: (PS) Crozier v. California Department of Water Resources (caed, 2019-10-18)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 4 distinct citers. How cited ↗
discussed Cited "see" (PS) Crozier v. California Department of Water Resources
E.D. Cal. · 2019 · signal: see · confidence high
See Torczyner v. Lockheed Missiles & 27 1 Because defendant’s statute of limitations argument disposes of plaintiff’s entire complaint, the 28 court does not address defendant’s argument regarding sovereign immunity. 1 Space Co., 103 F.3d 141 (9th Cir. 1996). 2 Here, the last possible date of discrimination was September 27, 2017,2 the date plaintiff 3 alleges she was fired under the AWOL statute, making plaintiff’s deadline to file an 4 administrative charge with the EEOC March 26, 2018 or July 24, 2018, depending on whether the 5 180 or 300-day term applied.
discussed Cited "see" United States v. Cothran
11th Cir. · 1997 · signal: see · confidence high
See United States v. Adams, 104 F.3d 1028, 1030-31 (8th Cir.1997); see United States v. Torres, 99 F.3d 360 (10th Cir.1996), petition for cert. filed, --- U.S.L.W. ---- (U.S. Jan. 28, 1997) (No. 96-7743); see United States v. Breen, 928 F.Supp. 977 (D.Alaska), aff'd, 103 F.3d 141 (9th Cir.1996). 4 Cothran claims that new evidence would prove that he was aware only of Patch No. 2 containing ninety-six plants, just under the statutory mandatory minimum floor.
discussed Cited "see" United States v. Roger Franklin Cothran
11th Cir. · 1997 · signal: see · confidence high
See United States v. Adams, 104 F.3d 1028, 1030-31 (8th Cir.1997); see United States v. Torres, 99 F.3d 360 (10th Cir.1996), cert. denied, — U.S. —, 117 S.Ct. 1273 , — L.Ed.2d — (1997); see United States v. Breen, 928 F.Supp. 977 (D.Alaska), aff'd, 103 F.3d 141 (9th Cir.1996).
discussed Cited "see, e.g." Ultimax Cement Manufacturing Corp. v. CTS Cement Manufacturing Corp.
C.D. Cal. · 2012 · signal: see also · confidence low
No. 1586, Part 4, at 6:18-21.) “The binding effect on a party of a clear and unambiguous admission of fact made by his or her attorney in an opening statement was acknowledged by the Supreme Court in Oscanyan v. Arms Co., 103 U.S. 261, 263 , 26 L.Ed. 539 (1880). and has been frequently recognized in subsequent lower court decisions involving civil cases.” United States v. McKeon, 738 F.2d 26, 31 (2d Cir.1984); see also U.S. v. Carleson, 103 F.3d 141 (9th Cir.1996) (“Statements made by an attorney concerning a matter within his employment may be admissible against the party retaining the …
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United States
v.
David Breen
96-30167.
Court of Appeals for the Ninth Circuit.
Dec 6, 1996.
103 F.3d 141
Unpublished

103 F.3d 141

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
David BREEN, Defendant-Appellant.

No. 96-30167.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 2, 1996.[*]
Decided Dec. 6, 1996.

Before: SNEED, TROTT and THOMAS, Circuit Judges.

1

MEMORANDUM[**]

2

David Breen appeals the district court's denial of his motion for resentencing under the Sentencing Guidelines for his guilty plea conviction of conspiring to manufacture marijuana. Breen contends that Amendment 516 to the Drug Quantity Table of U.S.S.G. § 2D1.1 is retroactive and would require resentencing, and on resentencing he would qualify under the safety valve provision for a reduced sentence. We affirm.

3

In our recent decision in United States v. Mullanix, No. 96-30121, slip op. 14335 (9th Cir. October 30, 1996), we held that where a defendant is sentenced pursuant to the statutorily required minimum, rather than pursuant to a sentencing range, a district court has no authority to reduce the sentence under 18 U.S.C. § 3582(c)(2). Breen, like the defendant in Mullanix, had a guideline range of fifty-seven to seventy-one months. Breen, like Mullanix, was sentenced "to the statutorily required minimum of sixty months." Breen, unlike Mullanix, was granted a downward departure for substantial assistance to the government pursuant to U.S.S.G. § 5K1.1, and received a sentence of 48 months imprisonment.

4

Breen contends that because his pre-departure sentence of 60 months was within the guideline range, he was sentenced pursuant to the guidelines, and therefore eligible for resentencing under 18 U.S.C. § 3582(c). A district court only has authority to modify a sentence under Section 3582(c)(2) where the defendant "has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently lowered." Here, a resentence of Breen pursuant to Amendment 516 would result in a 12-18 month sentence and the mandatory minimum dictates a 48 month sentence. Breen is already serving a 48 month sentence. We agree with the district court that, if resentenced, Breen would be subject to the mandatory minimum, and therefore his sentencing range has not been subsequently lowered.

5

Breen further contends that even if the 60 month sentence was pursuant to the statutory mandatory minimum, that the Section 5K1.1 substantial assistance departure "waived" the application and effect of a mandatory minimum sentence. Breen, however, errs in assuming that Section 5K1.1 is used to calculate the adjusted offense level. A motion under Section 5K1.1 only gives the court the authority to make a departure once the initial sentence has been determined. The departure pursuant to Section 5K1.1, therefore, did not "waive" the application of the mandatory minimum sentence. Accordingly, the district court is

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3