Lead Opinion
Opinion for the Court filed by Circuit Judge KAVANAUGH.
Oрinion concurring in the judgment filed by Senior Circuit Judge WILLIAMS.
From 2007 to 2009, David Duvall and others distributed large quantities of powder cocaine to mid-level drug dealers, who then cooked 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 Rule 11(c)(1)(C) plea agreement. A Rule 11(c)(1)(C) plea agreement generally specifies an agreed-upon sentence or sentencing range. Here, the District Court accepted the plea agreement and sentenced Duvall to 14 years’ imprisonment, as the agreement required.
On appеal, 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.” 18 U.S.C. § 3582(c)(2). Here, however, Duvall’s sentence was not based on a Guidelines sentencing range, but was instead based on a plea agreement
Duvall also raises a choice-of-counsel argument, which we find meritless.
We therefore affirm the judgment of the District Court.
I
From at least 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 Gоvernment 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 an 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 pleа agreement was negotiated pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), which allows plea agreements conditioned on a specific sentence or sentencing range. If the district court accepts a Rule 11(c)(1)(C) plea agreement, the court must impose the sentence listed in the plea agreement. If the district court does not accept the plea agreement (for example, because of the court’s concerns about the agreed-upon sentence), the defendant is free to withdraw his plea.
The District Court accepted Duvall’s guilty plea on April 21, 2010. When Du-vall 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, thе 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. Du-vall’s attorneys withdrew, and the Court then appointed a new attorney to assist Duvall and to help Duvall determine whether he should withdraw his рlea.
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 U.S. SENTENCING GuiDELINES MANUAL app. C, amеnd. 750 (2011). In addition, the Commission made those reductions retroactive. Id. amend. 759.
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 Rule 11(c)(1)(C) plea agreement, not on the now-reduced Guidelines sentencing range, as is required for a sentence reduction under 18 U.S.C. § 3582(c)(2).
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 Court, 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.
Ill
Duvall next argues that he is entitled to a sentence reduction because of the Sentencing Commission’s recent revision to the crack-cocаine Guidelines.
Federal law allows a defendant 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.” 18 U.S.C. § 3582(c)(2). About a year after Duvall was sentenced for conspiracy to distribute crack cocaine, the U.S. Sentencing Commission amended the advisory Sentencing Guidelines governing crack-related offenses and gave those amendments retroactive effect. See U.S. SENTENCING GuiDELINES MANUAL app. C, amend. 750 (2011) (effective Nov. 1, 2011) (adjusting Guidelines); id., amend. 759 (effective Nov. 1, 2011) (making Amendment 750 retroactive).
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 crack-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 Rule 11(c)(1)(C) plea agreement in sentencing.
Rule 11(c)(1)(C) plea agreements allow the prosecutor and the defendant to agree on a determinate sentence or sentencing range, which is then submitted to the judge for approval. See Fed.R.Crim.P. 11(c)(1)(C); United States v. Berry,
In cases involving Rule 11(c)(1)(C) plea agreements, it can be difficult to determine what the sentence is “based on” for purposes of the Section 3582(c)(2) sentence reduction provision. Section 3582(c)(2) applies only if the sentence was based on a Guidelines sentencing range. Is the sentence in a Rule 11(c)(1)(C) ease based on the рlea agreement? Is it based on a Guidelines sentencing range? On both?
The Supreme Court recently addressed that question in Freeman v. United States, — U.S.-,
For purposes of this appeаl, both parties agree that Justice Sotomayor’s opinion controls our analysis in light of the Supreme Court’s decision in Marks v. United States,
Justice Sotomayor’s opinion sets forth two possible ways in which a Rule 11(c)(1)(C) plea agreement may be “based on” a Guidelines sentencing range, thereby making the defendant eligible for a sentence reduction under Section 3582(c)(2) if the relevant Guidelines sentencing range is later amended.
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,
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.
We affirm the judgment of the District Court.
So ordered.
Notes
. The Government notes in its brief that every court of appeals to address the issue has found Justice Sotomayor’s Freeman opinion controlling under the principle of Marks v. United States.
. The Freeman analysis may prove difficult in some cases, but it is likely to be a relatively short-lived issue for the courts. At oral argument, the Assistant U.S. Attorney indicated that the U.S. Attorney’s Office now drafts Rule 11(c)(1)(C) plea agreements with an eye to avoiding later litigation on the Freeman issue. Doing so is consistent with Justice Sotomayor’s suggestion that parties draft future plea agreements to avoid this problem. See Freeman,
Concurrence Opinion
concurring in the judgment:
I agree with the judgment of the court affirming the district court’s denial of Du-vall’s motion to reduce his sentence under 18 U.S.C. § 3582(c)(2). I write separately to explain my disagreement with the proposition, agreed on by the parties and (quite understandably) accepted by my colleagues, that Justice Sotomayor’s opinion in Freeman v. United States, — U.S. -,
Our decision in United States v. Berry,
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,
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 bе patched together to create a controlling principle is Marks v. United States,
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,
In attempting to answer the last question, we reviewed eases involving the patching of fragmented opinions. Thе 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,
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’Con-nor’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,
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 Sotoma-yor’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 § 3581(c)(2) permitted a “district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framewоrk the judge used to determine the sentence or to approve the agreement.” Freeman,
While a coincidence of result will doubtless be common between Justice Sotoma-yor’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 coсaine base (before adoption in 2008 of Amendment 706, reducing the penalties for crack). This puts his Guidelines base offense level at 36. See USSG § 2Dl.l(e) (drug table at (2)) (as amended in 2007). Since he has accepted responsibility, he is entitled to a 3-point reduction of his offense level, to 33. See id. § 3E1.1. Suppose also that the defendant has been in and out of prison over the past 15 years as a result of five prior convictions for non-drug offenses, each resulting in imprisonment terms of more than 13 months. Suppose finally that two of these prior offenses were felony crimes of violence. This criminal history earns our hypothetical defendant 15 criminal history points, producing a criminal history category of VI. See id. § 4A1.1, § 5A (table). According to the Sentencing Table, an offense level of 33 and a criminal history level of VI yield a sentencing range of 235-293 months. All this is duly recorded in the plea agreement, which further agrees on a sentence of 262 months and makes no mention of the career offender provisions of the Guidelines.
Suppose now that the sentencing judge, in reviewing the plea agreement under Rule 11(c)(1)(C), disagrees with its approach. The judge reasons that the defendant’s two prior convictions for crimes of violence make the defendant a career offеnder, per USSG § 4Bl.l(a). Since the maximum statutory sentence for the defendant’s crime is life, see 21 U.S.C. § 841(b)(l)(A)(iii), the judge determines that the defendant’s offense level is 37, and his criminal history category is VI (as it is for all career offenders under the Guidelines). See USSG § 4Bl.l(b). The judge then ascertains that the defendant is enti-
The sentencing judge could, at that point, reject the plea agreement because of its mode of calculation. But suppose he accepts it, as thе 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 § 3582(c) reduction: the agreement’s sentence includes the magic words of a range and points directly to a subsequently amended Guideline. The generally more expansive plurality opinion, however, would apparently reject the reduction: the Guideline altered by Amendment 706 would not have been “a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement.” Freeman,
Cases such as this will occur any time the parties to a Rule 11(c)(1)(C) agreement agree to ignore some aspect of an alleged offense that would trigger a mandatory minimum or a mandatory enhancement that the sentencing judge deems inappropriate to ignore, but the agreement yields an ultimate sentence that the judge regards as othеrwise “sufficient, but not greater than necessary,” to achieve the goals of sentencing as required by 18 U.S.C. § 3553(a).
3. “[BJased 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.” 18 U.S.C. § 3582(e)(2). I think it fair to say that Congress’s concern in the choice of these words was not with “based on” but with the succeeding phrase—“a sentencing range that has subsequently been lowered by the Sentencing Commission.” It wanted to makе clear that the district court’s sentence reduction authority was not to be all-purpose, but linked to a range that an amendment had “lowered.” Bearing that in mind, I would give the statutory language a natural reading, roughly tracking (but perhaps broader than) the Freeman plurality’s view. At least as a first approximation, it would embrace a sentence pursuant to a Rule 11(c)(1)(C) plea agreement if (1) the plea is to a charge governed by a Guideline subsequently amended pursuant to 28 U.S.C. § 994(o); and (2) there is no trumping factor incorporated into the sentence (or the agreed-upon range, if the plea proceeds by that device, see Rule 11(c)(1)(C)), such as a mandatory minimum for use of weapons or career offender status, which trumping factor remains unaltered by the Guidelines amendment in question. Of course in a case where a sentence segment meets these criteria but is supplemented by a separate add-on for time that cannot run concurrently, see, e.g., 18 U.S.C. § 924(c)(1)(A), § 3582(c)(2) would apply to the segment meeting the criteria.
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 § 3582(c)(2); what happens next lies within the sound discretion of the district court. Consider for example a judge whose regular practice, for expressly stated reasons, has been to replace the once-prevailing crack-to-powder ratio of 100-to-1 with a 1—to—1 ratio. United States v. Lewis,
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, which I would have urged my colleagues to order, had persuaded me to modify the above views). Our precedent in United States v. Berry,
Putting aside the “based on” language at issue here and in Berry itself, the Berry panel turned to other language in § 3582(c)(2) which neither party had briefed—the clause allowing a reduction only if it “is consistent with applicable policy statements issued by the Sentencing Commission.” It then turned to USSG § lB1.10(a)(2)(B), which says that a sentence reduction under § 3582(c)(2) is not authorized if the amendment “does not have the effect of lowering the defendant’s applicable guideline range.” This would seem to me merely a reformulation of the obvious meaning of § 3582(c)(2)—that the amended Guideline in question must have been the source of the original sentence range. Without considering that possibility, the court held thаt the “applicable guideline range” under § lB1.10(a)(2)(B) was the career-offender range, which was potentially applicable but which the government had never asked the sentencing court to apply.
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 prevеnt the grant of a § 3582(c)(2) motion directed to a sentence that appeared to have been based on a match-up between a specific later-amended Guideline and the facts of the
The Berry approach seems, moreover, to contradict the rule that a § 3582(c)(2) proceeding is not an occasion to correct sentencing errors unrelated to the amended guideline. Dillon v. United States, — U.S. -,
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.
. Unless the defendant satisfied the "based on” requirement, or the court assumed in his favor that he did so, he would lose without regard to the provisions invoked by Berry.