Case Information
*1 Before M ANION , S YKES , and H AMILTON , Circuit Judges. H AMILTON , Circuit Judge.
Ricky Dixon is serving a sentence for conspiracy to distribute crack cocaine. The district court denied his motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) based on retro- active changes to the crack cocaine sentencing guide- lines. The district court held that it lacked the authority to grant Dixon the relief he sought because his sen- tence was based not on a sentencing range that was *2 2
subsequently lowered retroactively, but was instead
based on his binding plea agreement. In light of the
Supreme Court’s several opinions in
Freeman v. United
States,
Dixon pled guilty to conspiracy to possess crack cocaine
with the intent to distribute it. He was sentenced in
November 2001 pursuant to a binding plea agreement.
(It was governed by the provision that was then codified
as Federal Rule of Criminal Procedure 11(e)(1)(C) but
was later moved without substantive change to Rule
11(c)(1)(C).) Dixon and the government agreed “that the
sentence imposed by the Court shall include a term of
imprisonment in the custody of the Bureau of Prisons
for at least fifteen but no more than twenty years.” Ac-
cepting the parties’ agreement, the district court sen-
tenced Dixon to fifteen years and ten months in prison.
[1]
3
Ten years later, in November 2011, Dixon filed a
motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2), Amendment 750 to the Sentencing Guide-
lines, and U.S.S.G. § 1B1.10. The district court denied
his motion, concluding that Dixon’s sentence was based
on his binding plea agreement rather than on a
Guideline sentencing range that had been lowered. As
a result, Dixon was not legally eligible for a sentence
reduction. Dixon appeals. We review
de novo
a district
court’s determination of whether a sentence is legally
eligible for a discretionary reduction under § 3582(c)(2).
See
United States v. Johnson
, 571 F.3d 716, 717 (7th Cir.
2009); accord,
United States v. Rivera
, 662 F.3d 166, 170
(2d Cir. 2011) (even though a ruling granting or denying
an eligible offender’s request for a reduction under
§ 3582(c)(2) is reviewed for abuse of discretion, an order
declaring an offender legally ineligible for a reduction
is reviewed
de novo
);
United States v. Fanfan
,
The Sentencing Commission issued a policy state- ment, effective November 1, 2011, that made retroactive the terms of Amendment 748, which had lowered the offense levels for most crack cocaine offenses. U.S.S.G. § 1B1.10(c); U.S.S.G. Appx. C., Amend. 750 (Part A). The Commission’s exercise of this authority triggered an exception to the general rule that sentencing courts are not authorized to modify sentences after they are im- posed. The precise phrasing of the statutory exception is critical for the issue presented here: a district court may exercise this authority “in 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. . . . ” 18 U.S.C. § 3582(c)(2) (emphasis added). The question is whether Dixon’s sentence, which was imposed pursuant to a binding plea agreement, was “based on” a subsequently reduced sentencing range or whether it was instead based on the agreement itself, distinct from the guide- line range.
In
Freeman v. United States,
Justice Sotomayor agreed with the dissent that a sen- tence imposed pursuant to a binding plea agreement is based on the agreement so that relief under § 3582(c)(2) is usually not available. The binding plea agreement is the foundation of the term of imprisonment, and “at the moment of sentencing, the court simply implements the terms of the agreement it has already accepted.” Id . at 2696. In this view, the fact that a judge may consult the Sentencing Guidelines when deciding whether to accept a binding plea agreement is irrelevant. “[P]lea bargaining necessarily occurs in the shadow of the sen- tencing scheme to which the defendant would otherwise be subject. . . . The term of imprisonment imposed by the district court, however, is not ‘based on’ those back- ground negotiations; instead . . . it is based on the binding agreement produced by those negotiations.” . at 2697 (internal citations omitted).
Justice Sotomayor concluded, however, that there should be two limited exceptions to this general rule. One applied to Freeman, so she voted to grant relief in that specific case. The first exception is when a binding plea agreement itself “call[s] for the defendant to be sentenced within a particular Guidelines sentencing range,” which the court then accepts. Id . at 2697. In such a case, “there can be no doubt that the term of imprisonment the court imposes is ‘based on’ the agreed-upon sentencing range within the meaning of § 3582(c)(2).” Id . Under the second exception:
a plea agreement might provide for a specific term of imprisonment — such as a number of months — but also make clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty. As long as that sentencing range is evident from the agreement itself, for purposes of § 3582(c)(2) the term of imprisonment imposed by the court in accordance with that agreement is “based on” that range. . at 2697-98. In , this second exception applied.
Freeman’s binding plea agreement expressly used the Guidelines to establish the term of imprisonment, so Justice Sotomayor concurred in the plurality’s judgment that the district court had authority to reduce his sen- tence. See id . at 2699-2700.
When a majority of the justices do not agree on a
single rationale for deciding a case, “the holding of the
Court may be viewed as that position taken by those
Members who concurred in the judgments on the nar-
rowest grounds.”
Marks v. United States
,
Under Justice Sotomayor’s approach, a prisoner sen-
tenced under a binding plea agreement is eligible for
§ 3582(c)(2) relief only if the binding plea agreement
itself expressly refers to and relies on a guideline sen-
tencing range. Dixon’s written plea agreement provided
that “the parties have agreed that the sentence imposed
by the Court shall include a term of imprisonment in
the custody of the Bureau of Prisons for at least fifteen
but no more than twenty years.” Because there was no
specific reference to a Guideline range, Dixon’s agree-
ment does not qualify for Justice Sotomayor’s first excep-
tion. To qualify under her second exception, his agree-
ment either would have had to “expressly use” a Guide-
line range or a Guidelines sentencing range would have
to be “evident from the agreement itself.” No Guideline
range appears in the written terms of the plea agree-
ment that could have formed the basis for the fifteen
to twenty year sentencing range. Nevertheless, the agree-
ment sets forth information about Dixon’s offense level
(37) and criminal history category (VI). The Guideline
range for offense level 37 and criminal history category VI
is 360 months to life in prison. That much is evident
from the agreement itself. Unlike the plea agreement in
Freeman
, though, Dixon’s plea agreement did not
expressly link the offense level and criminal history to
the much lower agreed sentence range — fifteen to
twenty years’ imprisonment. In short, the written terms
of the agreement itself do not “make clear” that any
particular Guidelines range was “employed.” See
,
Instead, the link between the Guidelines and the range under the binding plea agreement came from the pros- ecutor’s oral statements at the sentencing hearing. Dixon argues that those statements show beyond rea- sonable doubt that, although a Guidelines range is not expressly stated in the written agreement, the imprison- ment range agreed to by the parties was based on the Guidelines. The agreed range was from one-half to two- thirds of the bottom of the applicable Guideline range, with the reduction based on Dixon’s substantial assistance to the government. See U.S.S.G. § 5K1.1 (down- ward departure for substantial assistance). At the sen- tencing hearing, the prosecutor advised the court that Dixon had provided helpful and truthful informa- tion relating to several ongoing investigations and had assisted the government in securing the cooperation of other individuals still on the street, ultimately making “a strong recommendation for a downward departure in this case.” The prosecutor explained more specifically the terms of the parties’ agreement as providing a de- parture for substantial assistance: “In terms of some additional guidance for Your Honor. The range, the 15- to 20-year range is a half to a third off. That’s the spread.” Nov. 2, 2001 Tr. at 18-19. The judge sentenced Dixon to 190 months, saying that was “close to the low end of the agreement .” Id. at 24. For present purposes, these oral statements tie the range in the binding plea agreement directly to the applicable Guideline range: the parties agreed that Dixon’s sentence should be one-half to two- thirds of the low end of his applicable Guideline range.
If the written agreement itself had said what the pros- ecutor told the court, that Dixon should receive a discount of one-third to one-half from the bottom of the applicable Guideline range, then under Justice Sotomayor’s opinion, the district court could have exer- cised its discretion to decide to grant or deny relief to Dixon. See 131 S. Ct. at 2700 n.9. But are such oral statements sufficient to allow § 3582(c)(2) relief under Justice Sotomayor’s approach in ? As we read the opinion, we think the answer is no.
The Sixth Circuit recently considered this question
from the opposite perspective, whether oral statements
could contradict a written plea agreement’s reliance on
a Guideline range, and said no. In
United States v. Smith
,
In this case, it is the defendant who seeks to rely on the oral statements. The prosecutor’s oral statements in Dixon’s sentencing hearing informed the court of the parties’ negotiations that resulted in the binding plea agreement for a one-third to one-half discount from the bottom of the applicable Guideline range. It is hard to believe that these assurances were not relevant, per- haps even decisive, in the judge’s decision to accept the binding plea agreement. Nevertheless, Justice Sotomayor’s controlling opinion in Freeman addressed this possibility and rejected reliance on the parties’ negoti- ations and oral explanations beyond the scope of the written agreement itself.
All that matters is whether the parties’ binding plea agreement was expressly based on the Sentencing Guide- lines, not whether the Guidelines informed the parties’ decision to enter into the agreement or whether the Guidelines informed the court’s decision to accept the agreement. See, e.g. , Rivera-Martínez , 665 F.3d at 349-50 (defendant ineligible where plea agreement contained an offense level but did not identify any Guidelines sentencing range or a criminal history category); Brown , 653 F.3d at 340 (defendant ineligible where plea agree- ment, although specifying a range of possible terms of imprisonment, did not “expressly use a Guidelines sen- tencing range to establish his term of imprisonment”). Dixon’s binding plea agreement contained an offense level and criminal history category sufficient to determine that the applicable Guideline range was 360 months to life in prison. The written agreement then provided for a binding range of 180 to 240 months in prison. The written agreement therefore did not expressly base the agreed sentence on a Guideline range in the written agreement itself. Pursuant to Justice Sotomayor’s controlling opinion in , we find ourselves con- strained to conclude that Dixon’s sentence was not “based on” a subsequently-reduced Sentencing Guide- line range. Accordingly, Dixon is not eligible for a sentence reduction under § 3582(c)(2). The judgment of the district court is
A FFIRMED . 7-18-12
Notes
[1] A binding plea agreement may stipulate that “a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guide- lines, or policy statement, or sentencing factor does or does not apply.” Fed. R. Crim. P. 11(c)(1)(C). Once the court accepts the plea agreement, “such a recommendation or request binds the court.” . A court considering a binding plea agreement has only three options: “accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.” Fed. R. Crim. P. 11(c)(3)(A). If the court accepts the agreement, “the agreed disposition will be included in the judgment.” Fed. R. Crim. P. 11(c)(4). If the court rejects it, the defendant must be advised that “the court is not required (continued...)
[1] (...continued) to follow the plea agreement” and must be given an oppor- tunity to withdraw the plea. Fed. R. Crim. P. 11(c)(5)(B).