UNITED STATES of America, Plaintiff-Appellee v. Calvin Tyrone BAILEY, Jr., Defendant-Appellant.
No. 14-3823.
United States Court of Appeals, Eighth Circuit.
Submitted: Jan. 11, 2016. Filed: April
819 F.3d
Before MURPHY, SMITH, and BENTON, Circuit Judges.
Patrick Lee Spivey, argued, Little Rock, AR, for Plaintiff-Appellee.
Edward O. Walker, AUSA, argued, Little Rock, AR, for Defendant-Appellant.
PER CURIAM.
Calvin Bailey, Jr. was charged with conspiring to possess with intent to distribute cocaine base, in violation of
I. Background
Bailey was charged in a one-count indictment, along with nine other individuals, with conspiring to possess with intent to distribute more than 50 grams of cocaine base. After several of Bailey’s codefendants pleaded guilty, Bailey entered a guilty plea pursuant to a Rule 11(c)(1)(C) plea agreement. In agreeing to a sentence of 96 months’ imprisonment, the parties stipulated the following:
A. The parties agree that the base offense level is 16 pursuant to U.S.S.G. § 2D1.1(c)([12]).
B. The parties agree that the amount of controlled substance is between 2.8 grams but less than 5.6 grams of cocaine base.
C. The defendant is eligible for a 2 point reduction for acceptance of responsibility unless the defendant takes any action between the entry of the guilty plea and imposition of the sentence that is inconsistent with acceptance of responsibility. If the offense level is 16 or greater, the determination of whether the defendant is eligible for a third point reduction for acceptance of responsibility will be made by the United States at the time of sentencing.
D. The parties stipulate that no other enhancements or reductions under Section 2D1.1 or Chapter 3 of the Guidelines apply.
E. The defendant agrees and stipulates that he specifically waives any and all challenges to the searches, seizures, arrests and statements that have taken place as of the date of the execution of this plea agreement by the defendant in this investigation by any entity, and in any forum where the offense may be pursued and/or forfeiture may be sought.
The district court reviewed the terms of the plea agreement with Bailey and made sure that Bailey understood them. By working out a Rule 11(c)(1)(C) plea agreement, Bailey reduced his term of imprisonment by approximately six years.2 The district court accepted the plea agreement.
In response to the congressional directive in
II. Discussion
On appeal, Bailey argues that the district court erred because his “plea agreement is explicitly based, in part, on a Guidelines provision that was subsequently lowered by Amendment 782.” We review de novo a district court’s legal conclusion that a sentence is ineligible for modification under
Where a defendant’s “term of imprisonment [is] based on a sentencing range that has subsequently been lowered by the Sentencing Commission ..., the court may reduce the term of imprisonment.”
In Freeman v. United States, 564 U.S. 522 (2011), the Supreme Court addressed whether a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement can be reduced under
In Freeman, Justice Sotomayor concluded that
if a [Rule 11(c)(1)](C) agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission, the term of imprisonment is “based on” the range employed and the
defendant is eligible for sentence reduction under § 3582(c)(2) .
Id. at 534 (Sotomayor, J., concurring). A sentence is “based on” a Guidelines range if “that range serves as the basis or foundation for the [sentence].” Id. Strictly speaking, the plea agreement itself is the foundation for a sentence in the Rule 11(c)(1)(C) context. Id. at 535. Yet, a sentence imposed pursuant to such an agreement may still be reduced under
The language of Bailey’s plea agreement determines the applicability of
This plea agreement clearly fails to fit the first category of cases that Justice Sotomayor determined are “based on” the Guidelines—the plea agreement does not expressly use a particular Guidelines sentencing range. Looking to the second category, Bailey’s plea agreement also comes up short, though the distance is less. The agreement sets forth a specific term of 96 months’ imprisonment. The agreement stipulates that the base offense level is 16 and that Bailey is eligible for a two-level reduction for acceptance of responsibility. Because the PSIR had not been completed at the time the parties entered into the plea agreement, Bailey’s criminal history category and career-offender status remained undetermined. Bailey, however, anticipated a criminal history category of VI. Under the Guidelines, an offense level of 14 and criminal history category of VI yields a sentencing range of 37 to 46 months’ imprisonment. But, if Bailey were a career offender, as the government anticipated and as the PSIR later determined, his base offense level would be 32. Taking into account the two-level reduction for acceptance of responsibility, Bailey’s offense level would be 30, with a Guidelines range of 168 to 210 months’ imprisonment.
The language of the plea agreement does not “make clear” how the 96-month sentence was calculated or ultimately chosen. The 96-month sentence does not fall within the lower Guidelines range that the stipulated facts would yield. Nor does it fall within the higher Guidelines range under which Bailey would be sentenced as a career offender. As Bailey acknowledges, the plea agreement indicates that it was the product of a negotiation between two potentially applicable ranges: a higher range as a career offender (168 to 210 months) and the explicitly referenced lower range (37 to 46 months). The plea agreement reflects the reality that “plea bargaining necessarily occurs in the shadow of the sentencing scheme to which the defendant would otherwise be subject.” See Freeman, 564 U.S. at 537 (Sotomayor, J., concurring). It does not, however, “make clear that the basis for the specified
III. Conclusion
Accordingly, we affirm the judgment of the district court.