George Bustamante v. United States, 2:12-cv-06002

Petitioner George Bustamante filed three motions in this matter: a pro se 2255 petition and two §3582(c)(2) motions (one with counsel, one pro se).
Bustamante was charged in a four-count indictment on June 24, 2009 with conspiracy to distribute crack and methamphetamine, distribution of crack and methamphetamine, and related offenses.
On March 10, 2010, Bustamante pled guilty to count two under a Rule 11(c)(1)(B) plea agreement, with the government dismissing the remaining counts and not pursuing illegal firearm possession charges; the parties proposed a 120-month sentence.
The Fair Sentencing Act of 2010 raised minimums and changed drug quantities; the Sentencing Guidelines were later amended (Amendment 748) lowering crack-related offenses; Bustamante’s sentencing position acknowledged possible benefit from FSA and amendments but ultimately adhered to the plea agreement calculation.
On December 13, 2010, the court accepted the plea agreement and sentenced Bustamante to 120 months.
The government later moved to dismiss the 2255 motion, and the court treated the three filings as a single request for relief under §3582(c)(2), denying relief and denying requests for counsel and an evidentiary hearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §3582(c)(2) applies when sentence is based on a (C) plea agreement	Bustamante argued for relief under §3582(c)(2) due to lowered guidelines.	USA contends sentence was based on the (C) agreement, not the guideline range.	Not eligible; sentence was based on the (C) agreement.
Whether Freeman exceptions allow a §3582(c)(2) reduction	Bustamante contends exceptions should apply.	Government contends exceptions do not apply here.	Freeman exceptions inapplicable; not based on a lower range.
Whether the court should appoint counsel or hold an evidentiary hearing	Requests appointment of counsel and an evidentiary hearing.	Arguments resolved as matters of law without new evidence.	Both requests denied.

Freeman v. United States, 131 S. Ct. 2685 (2011) (concurrence discussing when §3582(c)(2) applies to (C) plea agreements; sentencing range must be evident from the agreement or the range was used to fix the term.)
United States v. Austin, 676 F.3d 924 (9th Cir. 2012) (holding that if the sentencing range is not evident from the plea, §3582(c)(2) does not apply.)