UNITED STATES OF AMERICA, APPELLEE v. RICARDO EUGENE EPPS, ALSO KNOWN AS MAN, ALSO KNOWN AS FAT MAN, APPELLANT
No. 11-3002
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 11, 2012 Decided February 12, 2013
Appeal from the United States District Court for the District of Columbia (No. 1:99-cr-00175-1)
Bernard J. Apperson III, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese III, James S. Sweeney, and Elizabeth H. Danello, Assistant U.S. Attorneys. Sarah Chasson and Elizabeth Trosman, Assistant U.S. Attorneys, entered appearances.
Before: ROGERS and BROWN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Dissenting opinion by Circuit Judge BROWN.
ROGERS, Circuit Judge and WILLIAMS, Senior Circuit Judge: In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court held that the district court is not categorically barred from reducing a defendant‘s sentence under
I.
On October 29, 1999, Epps was sentenced to 188 months’ imprisonment for violation of
At the sentencing hearing, upon reviewing the presentence report, the district court recalculated the Guidelines sentencing range applicable to Epps. Tr. Oct. 29, 1999 at 12-13. Rejecting a two-level addition to the base level offense for possession of a firearm, the district court calculated the offense level at 35. Id. With a criminal history category of III, Epps’ Guidelines sentencing range was 210 to 260 months. The prosecutor joined defense counsel in seeking a downward departure from the Guidelines range to 188 months, explaining their agreement to that term was a way to avoid the need to litigate disputes regarding the Guidelines calculations. Id. at 6-8. The district court agreed to depart from the Guidelines range and sentenced Epps to 188 months’ imprisonment. Id. at 14. At the time, the district court expressed concern about the disparity between the Guidelines sentencing range for crack and powder cocaine offenses, noting that Epps’ sentence would have
On October 16, 2008, Epps filed a motion to reduce his sentence рursuant to
II.
As a threshold matter, the government maintains, on three grounds, that this court lacks jurisdiction now that Epps has completed his period of imprisonment and commenced his five-year term of supervisory release that is mandatory.3 Epps responds that his appeal is not moot because its resolution could affect his term of supervised release in view of
1. Because
The government‘s position that Congress‘s clarification of the
The
In Johnson, 331 F.3d at 967 n.4, this court did not wade into the circuit split to harmonize the apparent conflict between the statutes before 2002, nor has it subsequently done so; we need not do so now. The government‘s reliance on United States v. Lafayette, 585 F.3d 435 (D.C. Cir. 2009), for the proposition that this court has already decided that the five-year term of supervised release is mandatory is misplaced. Although Lafayette was sentenced and resentenced under
2. Under
Additionally,
3. In our unpublished opinion in United States v. Bundy, 391 F. App‘x 886 (D.C. Cir. 2010), the court stated, as the government notes, that the prospect of reduction of the defendant‘s term of supervised release “is so speculative that any decision on the merits [of his claim to a reduced prison
More substantively, that Epps over-served his sentence — as we must assume for jurisdictional arguments, see Am. Nat‘l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) — is of paramount importance to whether he should continue under supervised release for five years. In Bundy the court relied on Burkey for the proposition that challenges such as Epps’ are necessarily moot upon a defendant‘s release from prison. Burkey, in turn, purports to apply Supreme Court precedents on the extent to which courts will presume “collateral consequences” in comparable cases. The cases considered in Burkey are not comparable. In Sibron v. New York, 392 U.S. 40 (1968), the (alternative) holding was that a defendant‘s challenge to his conviction is not mooted by his release; the prospect that the conviction would have “collateral consequences,” such as impeachment of his character in a later criminal trial, was sufficient. Id. at 54-56. En route to this conclusion the Court summarized Pollard v. United States, 352 U.S. 354 (1957), as a case where “the Court abandoned all inquiry into the actual existence of specific collateral consequences and in effect presumed that they existed.” Sibron, 392 U.S. at 55. Then, in Lane v. Williams, 455 U.S. 624 (1982), the Court declined to apply Sibron in a case where the defendant challenged imposition of a mandatory parole term (on the ground that he had not been warned of this consequence of pleading guilty) that had expired by the time of the district
Epps’ case does not fit precisely into either the Sibron or the Lane-Spencer paradigm. Unlike in Sibron, Epps is not challenging his conviction; he is merely claiming the benefit of an opportunity to have his sentence retroactively reduced. But, because his five-year term of supervised release is still unserved, and because of the relationship between a prison sentence and supervised release (notwithstanding United States v. Johnson, 529 U.S. 53 (2000)), there seems to be a very substantial likelihood that a ruling that Epps’ incarceration should have been shorter would influence the district court‘s readiness to reduce his term of supervised release. Epps’ circumstances thus differ from those examined in Lane and in Spencer.
At least two courts of appeals cleаrly regard the enhanced prospects for a reduced term of supervised release under
This court has not yet weighed in on the subject of whether a defendant‘s motion for a sentence reduction under
Our dissenting colleague argues that we “conflate[] two separate issues: whether Epps should have been allowed to pursue
III.
In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court addressed whether defendants sentenced in accordance with a Rule 11(c)(1)(C) plea agreement may be eligible for a reduction of sentence under
Notably, the plurality veered from the approach adopted by the concurring opinion of Justice Sotomayor — requiring the plea agreement itself to contemplate sentence reduction — on the ground that “[t]he statute . . . calls for an inquiry into the reasons for a judge‘s sentence, not the reasons that motivated or informed the parties,” noting that “[t]he parties cannot by contract upset an otherwise-final sentence.” Id. at 2694. Discussing the concurrence‘s approach, the plurality emphasized that “the consequences of this erroneous rule would be significant. By allowing modification only when the terms of the agreement contemplate it, the proposed rule would permit the very disparities the Sentencing Refоrm Act seeks to eliminate.”6 Id. The plurality thus construed
In sum, the plurality held that “when a defendant enters into an 11(c)(1)(C) agreement, the judge‘s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek
In contrast, the concurring opinion adopted a different approach:
[I]f 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 . . . the term of imprisonment is “based on” the range employed and the defendant is eligible for sentence reduction under
§ 3582(c)(2) .
Freeman, 131 S. Ct. at 2695 (Sotomayor, J., concurring). This is so because a term of imprisonment imposed pursuant to a Rule 11(c)(1)(C) agreement is “‘based on’ the agreement itself, not on the judge‘s calculations of the Sentencing Guidelines.” Id. Thus, the district court has jurisdiction to consider a sentence reduction pursuant to
A.
Due to the fragmented nature of the Supreme Court‘s holding in Freeman, it is not immediately obvious whether the Court set a standard for evaluating whether sentences pursuant
This court has interpreted Marks to mean that the narrowest opinion “must represent a common denominator of the Court‘s reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment.” King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc) (emphasis added). Stated differently, Marks applies when, for example, “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).
In King, the en banc court addressed the question of when 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.
Analyzing the precedential force of Delaware Valley II, the en banc court in King overruled a prior holding (and portions of prior cases) that had treated the concurring opinion as controlling under Marks. See King, 950 F.2d at 785. The en banc court noted that this circuit had not previously “focused on the fact that there are two analytically distinct questions involved in awarding a contingency enhancement” if its prior view of Delaware Valley II were perpetuated. Id. at 777. Reexamining Delaware Valley II, the en banc court concluded:
When . . . one opinion supporting the judgment does not fit entirely within a broader circle
drawn by the others, Marks is problematic. If applied in situations where the various opinions supporting the judgment are mutually exclusive, Marks will turn a single opinion that lacks majority support into national law. When eight of nine Justices do not subscribe to a given approach to a legal question, it surely cannot be proper to endow that approach with controlling force, no matter how persuasive it may be. The Court itself does not appear to apply Marks in cases of this type.
Id. at 782 (referencing Coolidge v. New Hampshire, 403 U.S. 443 (1971), as an example). In sum, “all the analytically necessary portions of a Supreme Court opinion” must overlap in rationale in order for a controlling opinion to be discerned pursuant to Marks; if no such common rationale exists the Supreme Court precedent is to be read only for its persuasive force. Id. at 784. On the merits of whether an enhancement was available, the en banc court concluded there was “no practical middle ground between providing enhancements routinely and not providing them at all,” and adopted a view similar to that of the plurality in Delaware Valley II that contingency enhancements were unavailable in this circuit, noting that “a majority of the Supreme Court clearly agrees that the question of attorney‘s fees must not turn into major litigation in itself.” Id.
This court has not heretofore applied the Marks standard articulated by the en banc court in King to the splintered decision in Freeman. Most recently, the court аpplied the concurring opinion of Justice Sotomayor in a similar case, where a defendant, who had entered a Rule 11(c)(1)(C) plea agreement, had filed a motion to reduce his sentence under
Under Marks then, we conclude that there is no controlling opinion in Freeman because the plurality and concurring opinions do not share common reasoning whereby one analysis is a “logical subset,” King, 950 F.2d at 781, of the other. The plurality opinion rejects the concurring opinion‘s approach, stating its rationale is fundamentally incorrect because
We have previously noted that other courts of appeals have held that the concurring opinion in Freeman, as the narrower interpretation of “based on,” is the holding of the Court. See Duvall, 2013 WL 276016; supra n.1. But these courts, like the government here, see Appellee‘s Br. at 21, appear not to have considered circumstances where
B.
Whether Epps is eligible for a
Epps’ Rule 11(c)(1)(C) plea agreement repeatedly refers to the Sentencing Guidelines as the basis for determining Epps’ sentence. Paragraph 8, for example, states that “the sentence in this case will be imposed in accordance with” the Guidelines. See Plea Agreement ¶ 8 (emphasis added). Although prior to Freeman, this court held that the phrase “accordance with” is ambiguous and insufficient alone to anchor the inference that a sentence was determined by an otherwise-unspecified Guidelines range, see Cook, 594 F.3d at 888, there is further evidence in Epps’ case that the Guidelines formed the basis of his sentence. For example, Paragraph 12 recites the parties’ agreement, applying the Guidelines, to depart downward from the base level of the offense pursuant to Epps’ acceptance of responsibility, id. ¶ 12; see U.S.S.G. § 3E1.1, and the district court, prior to imposing Epps’ sentence, recalculated his Guidelines range before granting a downward departure to the 188 months stipulated in the plea agreement. See Tr. Oct. 29, 1999, at 12-14. Additionally, in evaluating Epps’ plea agreement, the district court stated that it considered the sentence imposed “sufficient” “in view of the fact that the crack cocaine guidelines are what they are.” Id. at 14 (emphasis added). Thus, in departing downward from the Guidelines sentencing range and explaining the basis for its departure, the district court anchored the inference that Epps’ sentence, unlike
The district court‘s view that its findings were not determinative of whether Epps’ sentence was “based on” the Guidelines, see Epps, 756 F. Supp. 2d at 92-93, is persuasively refuted by the Freeman plurality. To the extent Sentencing Guidelines § 1B1.10 Application Note 5 advises that over-serving a sentence is alone insufficient to warrant early termination of supervised release, we recognize that the district court is to consider many factors in ruling on a
To recap: The court has jurisdiction of Epps’ appeal notwithstanding his release from incarceration and the commencement of his term of supervised release. His appeal is not moot because applying the amended version of the supervisory release provision would be impermissibly retroactive and, in not applying this amended provision, it becomes likely that Epps’ term of supervisory release may be
A district court‘s discretion to decide whether to terminate a defendant‘s supervised release period is broad: if, having considered the sentencing factors listed in
Bundy may not bind us, but that does not mean its reasoning is faulty. The collateral consequences of the court‘s decision inhabit the realm of the hypothеtical: just as a decision in Epps‘s favor does not guarantee him relief under
By assuming its decision “would necessarily inform the district court‘s evaluation of a motion for termination or reduction of his term of supervised release,” Maj. Op. 12, the court conflates two separate issues: whether Epps should have been allowed to pursue
Because Epps‘s release from prison renders ineffectual any relief this Court might provide, his case is moot. See Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). I would therefore dismiss the appeal.
Notes
agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to
28 U.S.C. 994(o) , upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Reply Br. at 8-9. Another example Epps suggests is where:For example, the parties may state in the plea agreement that a particular rangе applies and agree to a sentence at the bottom of that range, but the district court may not agree that the range determined by the parties applies, finding for example that the career offender range is applicable instead, but notwithstanding this finding accept the plea because it is to a term that is acceptable to the court for reasons unrelated to the guideline range determined by the parties. Using Justice Sotomayor‘s standard, if the sentencing range used by the parties is subsequently reduced, the defendant would be eligible for a sentence reduction because the plea agreement was accepted and provided for a stipulated sentence based on a subsequently reduced range – according to Justice Sotomayor, eligibility is determined based on the agreement. The plurality, however, would find this defendant ineligible because the range that the parties agreed to played no role in the court‘s determination that this was an appropriate sentence, despite the fact that the court imposed the agreed upon term of imprisonment.
Id. at 9-10.The sentencing court . . . might consider and reject the guideline range used by the parties, not because the court finds that a different guidelines range (such as the career offender range) applies, but because, having considered the applicable guidelines range, the court rejects it as a matter of policy and selects its sentence without regard to it. If under these circumstances the court decides for reasons unrelated to the guidelines range to impose the sentence the parties agreed upon, under the plurality‘s analysis, the defendant would not be eligible even if the guideline range is later reduced. Under Justice Sotomayor‘s analysis, however, the defendant would be eligible.