*1 permanent in- recognize not to regulations Maj. at 8-9. Op. transfers.
ter-pollutant impair regulations do not
Because those im- obligations, create new rights,
vested duties, attach new disabilities new or
pose transactions, regulations past impermissibly retroactive
are not upheld.
should be America, Appellee
UNITED STATES BERRY, as also known
Steven Punch, Appellant.
Ricardo
No. 09-3084. Appeals, States Court of
District of Columbia Circuit.
Argued May 3, 2010. Sept.
Decided *2 sentencing ranges
establishes
based on
characteristics of the offense and offender.
994(b)(1);
Sentencing
See id.
U.S.
(2009)
A
Guidelines Manual Ch.
Pt.
Although
[hereinafter U.S.S.G.].
only advisory,
Guidelines are
the sentenc-
ing court must “consult” them and “take
them into account.”
United
Booker,
220, 264,
543 U.S.
125 S.Ct.
Petras,
Mary Manning
Assistant Feder-
(2005). Indeed,
the defendant
com-
at the time the defendant
years
tencing ranges.
old
*3
conviction;
offense of
the instant
mitted
Amendment
The Commission made
(2)
a
of conviction is
instant offense
retroactive,
C, amend.
supp. app.
U.S.S.G.
a crime of violence
felony that is either
(Mar. 3, 2008),
in turn
which
made
offense; and
substance
or a controlled
defendants convicted of crack-co-
some
(3)
prior
has at least two
the defendant
caine
for sentence reduc-
offenses
of either a crime of
felony convictions
3582(c)(2).
See
tions under 18 U.S.C.
of-
or a controlled substance
violence
—States,
U.S. -,
Dillon v. United
fense.
(2010).
2683,
with of crack cocaine July Berry pled guilty In to one C, points. supp. app. two See U.S.S.G. possession count of with intent to distrib- (Nov. 2007). For example, amend. 706 cocaine, grams ute more than 50 of crack amendment, a defendant re- before 841(a)(1) §§ in violation of 21 grams 150 and 500 sponsible between 841(b)(l)(A)(iii). The Probation Office de- of crack cocaine received a base offense 2Dl.l(c)(3) Berry termined that was a career offender level of 34. See U.S.S.G. (2006). amendment, subject advisory to an Guidelines After the a defendant imprisonment. 262 to months’ Presen- responsible for the same amount of crack ¶¶ (PSR) Investigation Report level of 32. tence cocaine receives base offense sentencing, government 53. At defense counsel con- does not concede subject to ca- accuracy Berry’s pro- ceded that was this account but Def.’s Mem. in explanation reer-offender vides no of its own. 1-2. Aid of The district 2008, Berry In sought advantage to take court also concluded of the retroactive of Amend- sentencing range. See Statement of Rea- ment 706 and moved in the district court Accompanying sons of Con- for a sentence reduction under 18 U.S.C. viction. summarily The district court denied the motion. United States v. Ber- Berry’s plea agreement, govern- *4 (D.D.C. 2009). 11, ry, Aug. No. 05-00150 ment assented to a term of 168 months, Berry appeals. jurisdiction We have un- well below the career-offender der plea pursuant The to United States v. was entered Cook, 883, (D.C.Cir.2010). 594 F.3d 885 Federal Rule of Criminal Procedure 11(c)(1)(C), present ques- Because the issues prosecutor which allows the involved law, tions of our agree and the defendant to to a sentence review is de novo. See id. that if at 886. impose the district court must it
accepts plea. the Fed.R.CrimP. II. 11(c)(1)(C) (explaining parties’ that the sentencing request “binds the court once require- defendant must meet two accepts plea agreement”); the court the ments to be for a sentence reduc- Goodall, 700, see United States v. 236 F.3d First, tion under the defen- (D.C.Cir.2001) 703, (holding 705 that dis- dant must have been sentenced “based on trict courts have “broad discretion” in con- a sentencing range that has sidering accept whether to a Rule been lowered.” 18 U.S.C. 11(c)(1)(C) plea agreement that “fail- but Second, a reduction in the defendant’s sen- by ure to abide the of that agree- terms tence must be applicable “consistent with accepted ment” once “constitutes revers- policy by statements issued the error”). ible The accepted district court Commission.” Id. 11(c)(1)(C) and,
the Rule in plea accor- parties The in this case focused their terms, dance with its sentenced to arguments requirement. They on the first 168 months’ in 2007. when, ever, dispute a defendant who 11(c)(1)(C) The record explain before us does not enters a Rule plea agreement is parties how the arrived the term of 168 sentenced “based on a sentencing range.” According Berry, months. to had he not Courts are divided this issue. See offender, Williams, been a career his sentencing United States v. (5th Cir.2010)
range would have been to 210 months. (describing 168 371-72 the con- ¶¶ 7-8; 20, 22, Appellant’s Br. at see PSR flicting conclusions of different courts U.S.S.G. Ch. Pt. A. He appeals). government derives this would have us range using alternative the base offense hold that a sentence in entered accordance 11(c)(1)(C) corresponding quantity level to the plea agreement with a Rule drugs See, in Appel- involved his offense. See on” agreement. “based that Scurlark, lant’s Br. at 7. He proposed avers the United States v.
prison term of 168 months reflected Berry urges a broader parties’ view, agreement that his sentence be at arguing that when the sentence the 11(c)(1)(C) parties specify low end of this alternative a Rule id, which we refer to as the “non-career accordance with a sentenc- Though wary resolving on a we are the sentence is “based ing range, See, fully question argued, briefed and we e.g., United sentencing range.” (10th exercise our discretion to do so here. Cobb, properly “When an issue or claim is before Cir.2009). need not resolve this de- We court, the court is not to limited bate here. legal particular theories advanced parties, but rather retains the independent Instead, on the statute’s we focus power identify apply proper re requirement: any second of governing construction law.” Kamen v. must be “consistent with duction Servs., Inc., 90, 99, Kemper Fin. 500 U.S. issued policy statements 1711, 114 (1991); S.Ct. L.Ed.2d 3582(e)(2). We Commission.” 18 U.S.C. Harrison, statement, policy conclude that one such (D.C.Cir.2000). appeal This concerns pro found in 1B1.10 of the Berry’s eligibility for sentence reduction case. hibits a sentence reduction 3582(c)(2), and we think it fit to Accordingly, we affirm the denial of his *5 address the clear instruction of the statute for a reduced sentence on this motion eligibility and of Dillon that such turns on not ground. doing, so we do address a whether reduction is consistent with the Berry’s sentence was “based on” or what policy Guidelines statement. circumstances, any, in what a defendant lB1.10(a)(2)(B) Section of the Guidelines 11(c)(1)(C) agree plea who enters a Rule prohibits sentence modifications under particular ment is sentenced “based on” a 3582(c)(2) if a retroactive Guidelines 3582(c)(2).* range. amendment “does not have the effect of arguments ad party Neither raised lowering applicable guide- the defendant’s 1B1.10, because when dressing perhaps lB1.10(a)(2)(B). range.” line there they argued Thus, briefed and this case the issue we must address is wheth- that sec question was some as whether er Amendment 706 has “the effect of low- tion, ering” Berry’s “applicable guideline applies only pro §in which lB1.10(a)(2)(B). If it rangq.” U.S.S.G. A ceedings, binding advisory. pan was or not, does a sentence reduction “is not con- Ninth had held that at el of the policy sistent with this statement and aspects least certain of 1B1.10 were ad not therefore is authorized 18 Hicks, visory. United 3582(c)(2).” lB1.10(a)(2). argu 1173 After oral appeal, Supreme ment this Court case, In this we have two candidates for rejected that unequivocally position. See Berry’s “applicable guideline range.” One Dillon, It 130 S.Ct. is now clear range is the career-offender of 262 to 327 that a that court must first determine “[a] guideline range months. That is the § 1B1.10” be reduction is consistent with applied district court determined to Ber- granting case, fore sentence reduction under ry’s Berry a determination conceded Id. at see United correct. Because Amendment 706 Flemming, range, v. 260 & n. States does not lower the career-offender Cir.2010). (3d for a Berry ineligible 11 is sentence * agreement concurring plea colleague would hold that a ment of conviction or Our 11(c)(1)(C) under a Rule defendant sentenced Concurring Op. at specifically so states. See he was sentenced “based on can show express point. 19. We no view on this if, minimum, judg- sentencing range” at a Honken, Cir.2004); v. range.” United States “applicable guideline
if this is his Corber, (8th Cir.1999); See, Cir.2010). (7th Cir.1991) (en The alternative Poff, range of 168 to the non-career banc). is appear- Most useful is the term’s is the months. That 501.1(a), §in provides “[a] ance which applicable with the Guidelines accordance guidelines sentence conforms with the are not career offend- to defendants who imprisonment if it within the minimum ers, used in Berry alleges parties applicable and maximum terms of the their selecting the 168-month guideline-conform- If a guideline 11(c)(1)(C) ex- plea agreement. As Rule ing sentence is defined as one within “the above, 706 does lower plained Amendment guideline range,” it must be the the non-career If range” applicable guideline case that “the range,” he Berry’s “applicable guideline conforming of to the Guide- product is the for a sentence reduction. might be contrary conclusion lines’ instructions. not contend that the non- does guide- would be nonsensical: how could ap- results from the correct career from line-conforming sentence result of the Guidelines to his case. To plication conforming to instructions? the Guidelines’ range results contrary, he admits this Similarly, Chapter 5 the Guidelines re- ignores pro- if one guideline range” peatedly “applicable uses Appellant’s visions of the Guidelines. guideline range resulting to describe the (“Mr. Berry’s guideline Br. at 78 sentenc- (a) steps through (g) from *6 to 210 months ... with- ing was 168 Application the Guidelines’ Instructions out career offender of 5B1.1(a)(1), (2); § 1B1.1. U.S.S.G. id. added)). guideline provisions.” (emphasis 501.1(b), (c), (d), (f); 5G1.1(a), (b), id. for a re- eligible To hold (c); Cook, nn. see 887 & require the conclusion that duction would Munn, also “applicable guidelines range” his could be (4th Cir.2010) (explaining parties’ negotiation, and “applicable court arrives at the defendant’s not This is not a sound Guidelines. guideline range” proceeding through after result. (a) steps through (g) Application case, In this we conclude that the Instructions). again that the Once we see “applicable guideline range” referenced in “applicable guideline range” product is the produced 1B1.10 is that the correct from of, surprisingly, applying the Guide- Guidelines, Corber, application of the In they applied. lines as are meant to be 768, which, Berry, 596 F.3d at for is the case, application yielded such the ca- Although the range. career-offender range. reer-offender phrase “applicable guideline range” is not sum, Berry, “applicable guide- 1B1.10, may glean defined in we its range” purposes line of 1B1.10 is meaning from its uses elsewhere in the and not presume a generally as courts non-career Because Amendment meaning every the same term have applicable guideline 706 does not lower his appears legislation, where it in the same range, Berry ineligible for a sentence see, SEC, e.g., Goldstein v. See (D.C.Cir.2006), a presumption that ex Dillon, Guidelines, see, 1B1.10(a)(2)(B); 130 S.Ct. at tends to the Perez, 2691. court has no occasion to decide III. under what pur- circumstances defendant sentenced denying of the district court The order 11(c)(1)(C)plea agreement to a Rule suant a reduced sentence is Berry’s motion for may be for relief under section Affirmed. Op. at See 18.
ROGERS, Judge, concurring
judgment:
Although judgment I concur in the af- court’s denial of Ber-
firming the district modify imprison- motion to his term of
ry’s 3582(c)(2), I pursuant to 18
ment grounds. The record
do so on different the district court did not indicates Bennett, Michael BENNETT and Linda on the impose sentence based individually and as Co-Administrators range under the United States Bennett, Ann Estate of Marla Guidelines for either a non-career offender Deceased, Appellants Rather, or a career offender. the district career offender sen- court calculated the
tencing range under the Guidelines and IRAN, ISLAMIC REPUBLIC OF expressly departing then stated that it was al., Appellees. et imposing from that the 168 imprisonment month term of set forth No. 09-5147. plea agreement, which the district Appeals, United States Court of accepted. court had State- District Columbia Circuit. Reasons; ment Fed.R.CrimP. ll(c)(l)(C)(4). plea agree- Nor did the Argued Jan. ment that the term of state *7 Sept. Decided guideline sentencing range.
was based on a circumstances, these where dis guideline trict court has calculated a sen
tencing range departed and then from it imposed a sentence on the term imprisonment set forth
agreement, ineligible the defendant is pursuant
relief to 18 U.S.C.
“based on a has been lowered Sen
tencing Commission.” See United States Bride, Cir.2009);
v. Main,
(2d Cir.2009); see also United
Garcia, 209,
Because neither nor the
plea agreement indicate sen-
tence of 168 months’ guideline sentencing range,
based on a