UNITED STATES оf America, Appellee v. David A. DUVALL, also known as Tone, Appellant.
Nos. 10-3091, 11-3114.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 1, 2012. Decided Jan. 25, 2013.
705 F.3d 479
Second, in struggling to address the complexities posed by regional integration and independent systems operators the Commission has pursued аn iterative process, with our explicit approval in at least one case. In TC Ravenswood v. FERC, 331 Fed.Appx. 8 (D.C.Cir.2009), we rejected Ravenswood‘s claim that the Commission‘s approval of an NYISO tariff amendment providing incremental variable cost compensation to dual fuel generators required it immediately to consider compensation for fixed costs related to reliability. Those issues seem at least as integrally related as the issues involved here, but we nonetheless approved the Commission‘s “incremental approach to [the] problem.” Id. at 9.
Finally, the specific context of the mitigation orders here itself exemplifies the iterative process. The Commission had рreviously accepted an NYISO filing applying the mitigation principle to three specific generators, and in doing so had observed that NYISO had submitted to the stakeholder process a proposal for mitigation generally. See New York Indep. Sys. Operator, Inc., 131 FERC 1 61,169, at PP 101-02 (2010), reh‘g pending; Order, 133 FERC 1 61,030, at PP 3-4. This of course is just the process to which the Commission has here remitted Ravenswood. Although delay may be costly, just such delay has occurred in the process of addressing supply-side market power, and it would take a far clearer case than this to justify our disrupting the pattern created by the Commission‘s choices over how to sequence its consideration of issues.
We also reject Ravenswood‘s argument that the Commission violаted due process and other obligations by neglecting to answer Ravenswood‘s arguments and proposals. The Commission in fact adequately explained its rejection of those proposals.
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The petition for review is therefore
Denied.
Sylvia Royce, appointed by the court, argued the cause and filed the briefs for appellant.
Before: GARLAND and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH.
Opinion concurring in the judgment filed by Senior Circuit Judge WILLIAMS.
KAVANAUGH, Circuit Judge:
From 2007 to 2009, David Duvall and others distributed large quantities of powder cocaine to mid-level drug dealers, who then сooked the cocaine into crack and sold it. In late 2009, Duvall was arrested and indicted for conspiracy to distribute crack cocaine.
Duvall pled guilty pursuant to a
On appeal, Duvall primarily argues that he is entitled to a sentence reduction because the advisory U.S. Sentencing Guidelines governing crack-related offenses were retroactively lowered after he was sentenced. Federal law allows sentence reductions when a defendant “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”
Duvall also raises a choice-of-counsel argument, which we find meritless.
We therefore affirm the judgment of the District Court.
I
From at lеast August 2007 until his arrest in September 2009, David Duvall and his associates supplied large quantities of powder cocaine to mid-level street dealers in the Washington, D.C., area. The dealers then cooked the cocaine into crack and sold it.
After Duvall was arrested and indicted, the Government notified the District Court that Duvall‘s record contained two prior drug convictions. As a result, Duvall would face a mandatory life sentence if found guilty at trial.
Duvall hired two attorneys to represent him. His attorneys negotiated with the Government, and the parties ultimately reached a plea agreement that avoided a possible life sentence. The agreement expressly listed аn agreed-upon sentence of 15 years’ imprisonment for conspiracy to distribute crack cocaine—far lower than the mandatory life sentence that Duvall would have received had he been convicted at trial. The plea agreement was negotiated pursuant to
The District Court accepted Duvall‘s guilty plea on April 21, 2010. When Duvall entered his plea, the Court asked if he was “satisfied with the services” of his attorneys. Plea Entry Tr. 24, Apr. 21, 2010. Duvall answered “no,” but he said that he still wanted to proceed with the plea. Id. at 24, 30.
After the plea hearing but before sentencing, the District Court received a letter from Duvall raising concerns about the effectiveness of his counsel. Duvall wrote that his “Sixth Amendment Right” to “effective assistance of [counsel] in criminal prosecution” was being violated because, among other things, he was promised discovery and a private investigator, but received none, and one of his attorneys was on the verge of being disbarred. Duvall App. 30.
To address Duvall‘s concerns, the District Court quickly convened a status conference that took place on May 3, 2010. At the conference, Duvall reiterated his grievances and noted that, due to his mistrust of counsel, he didn‘t “fully understand” if he was “facing life or not.” Status Conference Tr. 4, May 3, 2010. He wanted to plead guilty only if a conviction would truly trigger a mandatory life sentence. And he wasn‘t sure he was truly facing a mandatory life sentence if convicted at trial.
The Court asked if Duvall had “any money left to hire another lawyer.” Id. at 6. Duvall replied that he did not. Duvall‘s attorneys withdrew, and the Court then aрpointed a new attorney to assist Duvall and to help Duvall determine whether he should withdraw his plea.
At sentencing on September 10, 2010, after being invited to speak, Duvall expressed no objections to the plea agreement or to his new counsel. The District Court then sentenced Duvall to 14 years’ imprisonment.
About a year later, effective November 1, 2011, the U.S. Sentencing Commission permanently reduced the sentencing levels for certain crack-related offenses. See
Based on those new Guidelines, Duvall filed a motion to reduce his sentence. The District Court denied the motion. The Court found that Duvall‘s sentence was based on the
II
On appeal, Duvall contends that the District Court did not give him sufficient time to hire a new attorney of his choice, using his own means, between the May 2010 status conference—when Duvall jettisoned his original attorneys—and the September 2010 sentencing. Because he did not raise this argument in the District Cоurt, we review it only for plain error. The argument is meritless in light of (i) the four-month stretch between counsel‘s withdrawal and sentencing—a period in which Duvall could have hired a different attorney if he had the desire and means to do so; and (ii) the District Court‘s patient and careful handling of Duvall‘s stated concerns with his initial attorneys, including the Court‘s assignment of new counsel who assisted Duvall. Put simply, the District Court did not in any way prevent Duvall from hiring his counsel of choice. There was no error, much less plain error.
III
Duvall next argues that he is entitled to a sentence reduction because of the Sentencing Commission‘s recent revision to the crack-cocaine Guidelines.
Federal law allows a dеfendant to receive a sentence reduction when he “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”
Under the statute, Duvall is eligible for a sentence reduction if his sentence was “based on” a Guidelines sentencing range that was lowered by the сrack-related amendments to the Sentencing Guidelines. To determine whether Duvall‘s sentence was based on a Guidelines sentencing range, we must analyze the role of Duvall‘s
In cases involving
The Supreme Court recently addressed that question in Freeman v. United States, — U.S. —, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). Freeman was a splintered decision: Four Justices concluded that sentences under
For purposes of this appeal, both parties agree that Justice Sotomayor‘s opinion controls our analysis in light of the Supreme Court‘s decision in Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).1 Accordingly, we do not further address that question.
Justice Sotomayor‘s opinion sets forth two possible ways in which a
First, the plea agreement may not provide for a specific term of imprisonment but instead may explicitly provide “for the defendant to be sentenced within a particular Guidelines sentencing range.” Freeman, 131 S.Ct. at 2697 (opinion of Sotomayor, J.). In that situation, the defendant has been sentenced “based on” the specified Guidelines sentencing range for purposes of
Second, the plea agreement may provide for a specific term of imprisonment but may still “make clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which
In applying Justice Sotomayor‘s opinion, there of course may be some close calls at the margins.2 But this case is not a close call. Here, unlike in Freeman itself, Duvall‘s plea agreement neither expressly specified the Guidelines sentencing range nor expressly specified the offense level or criminal history category. The plea agreement simply stated that the parties “agree that 180 months is the appropriate sentence for this offense.” Therefore, we do not even get to the separate question of whether the agreement made clear that the specified Guidelines range was used by the parties to determine the agreed-upon sentence. Applying Justice Sotomayor‘s analysis in Freeman, we conclude that Duvall‘s sentence was not based on a Guidelines sentencing range and that he therefore is not eligible for a sentence reduction under
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We affirm the judgment of the District Court.
So ordered.
WILLIAMS, Senior Circuit Judge, concurring in the judgment:
I agree with the judgment of the court affirming the district court‘s denial of Duvall‘s motion to reduce his sentence under
Our decision in United States v. Berry, 618 F.3d 13 (D.C.Cir.2010), is something
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1. Reaching the issue of identifying any controlling Supreme Court authority. While our normal practice is to “decide only questions presented by the parties,” Greenlaw v. United States, 554 U.S. 237, 244, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) (internal citatiоn omitted), we are “not limited to the particular legal theories advanced by the parties,” and we have discretion “to identify and apply the proper construction of governing law.” U.S. Nat‘l Bank of Or. v. Indep. Ins. Agents, 508 U.S. 439, 446, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (internal citation omitted). There is good reason to exercise this discretion here. I do not believe United States courts should close the door on a man‘s chance at release from prison on the basis of a framework (1) that eight out of nine justices of the Supreme Court have squarely rejected, and (2) that depends on the talismanic presence of special words in a plea agreement. Until Freeman, parties to
2. Ascertaining a controlling viewpoint in splintered Supreme Court opinions. The leading Supreme Court decision on determining when two or more Supreme Court opinions can be patched together to create a controlling principle is Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). Given our thorough interpretation of Marks in King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991), I will jump directly to King, incorporating its references back to Marks. I should explain first that King appears susceptible of two readings, a “strong” one (yielding a relatively narrow view of when such patching is correct), and a “weak” one (yielding a somewhat broader view). Under both, the opinion of Justice Sotomayor is not controlling. I start with the strong reading, which appears to me to be correct.
The question in King was whether there was sufficient common ground between the plurality opinion and that of Justice O‘Connor in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (”Delaware Valley II“), to control our decision about when if ever counsel should receive a contingency enhancement under a fee-shifting statute, in addition to the “lodestar” award computed by multiplying hours worked by a reasonable hourly fee. Four justices believed that contingency enhancеments “should be reserved for exceptional cases,” id. at 728, 107 S.Ct. 3078 (plurality opinion); four were at virtually the opposite end of the spectrum, believing that these enhancements would be “appropriate in most circumstances,” id. at 741, 107 S.Ct. 3078 (Blackmun, J., dissenting). The ninth, Justice O‘Connor, agreed with the dissenters that “Congress did not intend to foreclose consideration of contingency in setting a reasonable fee.” id. at 731, 107 S.Ct. 3078. Nonetheless, she joined the plurality in reversing the enhancement in Delaware Valley II and specifically endorsed the plurality‘s conclusion “that no enhancement for risk is appropriate unless the applicant can establish that without an adjustment for risk the prevailing party ‘would have fаced substantial difficulties in finding counsel in the local or other relevant market.‘” Id. at 733 (quoting plurality opinion at 733). Despite their com-
In attempting to answer the last question, we reviewed cases involving the patching of fragmented opinions. The most prominent of these is Marks, which considered the earlier decision of A Book Named “John Cleland‘s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966) (”Memoirs“). There a plurality of three justices took the view that a book could be banned as obscеnity if it is “utterly without redeeming social value,” whereas Justices Black and Douglas would have held categorically that obscenity could never be banned. Accordingly, “[b]ecause Justices Black and Douglas had to agree, as a logical consequence of their own position, with the plurality‘s view that anything with redeeming social value is not obscene, the plurality of three in effect spoke for five justices: Marks’ ‘narrowest grounds’ approach yielded a logical result.” King, 950 F.2d at 781 (emphasis added). By contrast, Delaware Valley II was “not a case in which the concurrence posits a narrow test to which the plurality must necessarily agree as a logical consequence of its own, broader position.” Id. at 782 (emphasis added).
Applying this principle to the problem before us in King, we noted first that the question of the availability of a fee enhancement (the focus of the plurality opinion) was inseparable from the question of how to calculate such an enhancement (the virtually exclusive focus of Justice O‘Connor‘s opinion). Id. at 783. And here we found a gap between Justice O‘Connor and the plurality: Justice O‘Connor‘s opinion focused solely on contingency enhancements payable in the market, with no ceiling, while the plurality analyzed the claim‘s risk of not prevailing at trial and imposed a ceiling of one-third of the lodestar. Id. We concluded, “Because [Justice O‘Connor‘s] answer to [the] question [of how to calculate the enhancement] is so clearly at odds with that of the plurality, ... we are left without a controlling opinion....” Id.
Returning to the general principle, we drew a contrast with the situation in Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), which used two distinct majorities to arrive at a judgment, so that both constituted binding law. That, we said, was quite different from the situation “the Marks methodology addresses, where there is no explicit majority agreement on all the analytically necessary portions of a Supreme Court opinion.” King, 950 F.2d at 784 (emphasis added). Obviously we saw our task as resolving whether one could find implicit “majority agreement on all the analytically necessary portions of a Supreme Court opinion.”
It seems quite obvious that there is no overlap at all between “the analytically necessary portions” of the plurality‘s opinion in Freeman (which looks to the sentencing judge‘s explicit or implicit reasoning) and that of Justice Sotomayor (which looks to the presence or absence of specific phrases in the plea agreement). Thus on the strong view of King Justice Sotomayor‘s view cannot control in this circuit.
I now turn to the “weak” reading of King. The basis for such a reading would be disregard of the language cited above requiring agreement by the plurality with the other opinion “as a logical consequence of its own, broader position.” I can see no basis for such disregard, but it is conceiva-
In Freeman a four-justice plurality believed that
While a coincidence of result will doubtless be common betweеn Justice Sotomayor‘s opinion and the plurality‘s, Justice Sotomayor‘s opinion is not a subset of the plurality‘s in Freeman. Below I describe a case where Justice Sotomayor would grant relief but the plurality would deny it.
Suppose a defendant pleads guilty to distributing five kilograms of cocaine base (before adoption in 2008 of Amendment 706, reducing the penalties for crack). This puts his Guidelines base offense level at 36. See
Suppose now that the sentencing judge, in reviewing the plea аgreement under
The sentencing judgе could, at that point, reject the plea agreement because of its mode of calculation. But suppose he accepts it, as the agreed-on 262 months is within what he regards as the correct range. By doing so, he has imposed a sentence identical to that in the plea agreement, but seemingly based on a Guideline range that (as it turns out) was not lowered by Amendment 706 (or any other retroactive amendment). By contrast, the sentence in the plea agreement is explicitly traceable to a Guideline range that Amendment 706 lowered.
For this hypothetical, Justice Sotomayor would accept a
Cases such as this will occur any time the parties to a
3. “[B]ased on a sentencing range that has subsequently been lowered by the Sentencing Commission” interpreted without controlling Supreme Court authority. In the absence of a binding Supreme Court opinion, we must determine when a sentence is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”
Such analysis corresponds with ordinary uses of the phrase “based on.” A sentence under these circumstances is “based on” the Guidelines just as West Side Story is based on Romeo & Juliet: the basis is not exclusive, but significant enough to justify
Passing this test, of course, would only get the defendant in the door of
4. The impact of our decision in Berry. Duvall‘s agreement would pass the test formulated above. But for another problem, I would therefore reverse and remand the district court‘s denial of the motion for reduction of his sentence (at least I would do so unless briefing on the matters discussed above, whiсh I would have urged my colleagues to order, had persuaded me to modify the above views). Our precedent in United States v. Berry, 618 F.3d 13 (D.C.Cir.2010), however, directs the opposite result. There the defendant sought to gain the benefit of a
Putting aside the “based on” language at issue here and in Berry itself, the Berry panel turned to other language in
The gist of Berry is then as follows: Notwithstanding that the government and defendant had agreed on a sentence that in no way relied on the career-offender provisions, and that the sentencing court had accepted that agreement, and that the parties had never litigated the applicability of the career-offender provisions, the court of appeals brought those provisions into the case; the effect was to prеvent the grant of a
The Berry approach seems, moreover, to contradict the rule that a
Nevertheless, Berry is the law of the circuit. Because Duvall was potentially subject to a mandatory life sentence, his case is indistinguishable from Berry‘s. We must therefore affirm the district court‘s denial of his motion for a reduced sentence, and do likewise in future cases unless and until the court en banc should see fit to overturn Berry.
Noel CANNING, a Division of the Noel Corporation, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent; International Brotherhood Of Teamsters Local 760, Intervenor.
Nos. 12-1115, 12-1153.
United States Court of Appeаls, District of Columbia Circuit.
Argued Dec. 5, 2012. Decided Jan. 25, 2013.