In
United States v. Rivera-Martínez (Rivera-Martínez I),
The task committed to us requires a careful parsing of the three opinions filed in Freeman, an identification of Freeman ’s holding, and a fresh determination of the defendant’s eligibility for the sought-after sentence reduction. We conclude that Justice Sotomayor’s concurring opinion embodies the Freeman Court’s holding and that under its strictures the defendant remains ineligible for a reduced sentence.
I. BACKGROUND
On March 6, 2000, defendant-appellant Robin Eddie Rivera-Martinez pleaded guilty to conspiring to possess with intent to distribute more than five kilograms of crack cocaine.
See
21 U.S.C. §§ 841(a)(1), 846. His plea was entered pursuant to a plea agreement (the Agreement) forged under Federal Rule of Criminal Procedure 11(c)(1)(C). Such a vehicle — a so-called C-type plea agreement — allows the parties to bind the district court to a pre-agreed sentence if the court accepts the plea.
See, e.g., Rivera-Martinez I,
Here, the Agreement stipulated that the defendant was accountable for over 1.5 kilograms of cocaine base. 1 On the date of the plea, this drug quantity corresponded to a base offense level of 38. After walking through various guideline adjustments, the Agreement arrived at a total offense *346 level of 37. Although the parties agreed to a 240-month sentence, the Agreement said nothing about either the defendant’s criminal history category or his guideline sentencing range.
Sentencing took place on September 12, 2000. The district judge rehearsed the guideline calculations limned in the presentence investigation report, accepted the Agreement, and sentenced the defendant to 240 months in prison.
We fast-forward to 2007, when the Sentencing Commission modified the quantities of crack cocaine that suffice to trigger certain base offense levels. See USSG App. C, Amend. 706 (Supp.2007) (modifying USSG § 2D1.1); see also USSG App. C, Amend. 711 (Supp.2007). The Commission soon made these amendments retroactive. See USSG App. C, Amend. 713 (Supp.2008).
Seizing upon these developments, the defendant moved for a sentence reduction under 18 U.S.C. § 3582(c)(2).
2
The district court denied the motion. We affirmed.
See Rivera-Martínez I,
The defendant petitioned for a writ of certiorari. On June 23, 2011, the Supreme Court decided Freeman. A few days later, it granted the defendant’s certiorari petition, vacated this court’s judgment, and remanded for reconsideration in light of Freeman.
II. ANALYSIS
To comply with the Supreme Court’s mandate, we must identify Freeman’s holding, chart its contours, and apply the insights gleaned from those inquiries to the defendant’s circumstances. This undertaking requires us to step back for a moment.
As a general rule, a sentencing court cannot revisit a final sentence. 18 U.S.C. § 3582(c). Section 3582(c)(2) provides an exception to this general rule:
[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 ... 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.
Id. § 3582(c)(2) (emphasis supplied). The question before the Freeman Court was whether a defendant who was sentenced pursuant to a C-type plea agreement can be eligible for section 3582(c)(2) relief.
The court of appeals had held that, in the absence of a miscarriage of justice, entering into a C-type plea agreement presented a categorical bar to section 3582(c)(2) relief.
United States v. Goins,
A four-member plurality found determinative the analytic framework that under-girds the decisionmaking process employed by sentencing judges in federal criminal cases.
Freeman,
Four votes, however, do not make a majority on a nine-judge court. To achieve the magic number, the plurality depended upon Justice Sotomayor, who also found the defendant eligible for section 3582(c)(2) relief. But Justice Sotomayor’s approach differed sharply from that of the plurality. She concluded that a term of imprisonment imposed by a court pursuant to a C-type plea agreement is based on the agreement, not on the sentencing judge’s assessment of the guidelines. Id. at 2695 (Sotomayor, J., concurring).
Withal, Justice Sotomayor carved out an exception for cases in which a C-type plea agreement “expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered.” Id. In that event, “the term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sentence reduction under § 3582(c)(2).” Id. The sentence imposed in Freeman came within this exception.
The four dissenting Justices, like Justice Sotomayor, concluded that sentences imposed pursuant to C-type plea agreements are based on the agreement, not on the guidelines. See id. at 2700 (Roberts, C.J., with whom Scalia, Thomas, and Alito, JJ., joined, dissenting). But unlike Justice Sotomayor, the dissenters argued that the imposition of a sentence pursuant to a C-type plea agreement always precluded section 3582(c)(2) relief. Id. at 2700-05.
These opinions leave some doubt as to the controlling rule. To allay this doubt, our first recourse is to
Marks v. United States,
The defendant asserts that Freeman is not amenable to the Marks “narrowest grounds” approach. As a default measure, he invites us to apply the plurality’s reasoning. In support, he relies on our decision in Johnson.
Johnson
cannot bear the weight that the defendant loads upon it. The language upon which the defendant relies — that
“Marks
is workable ... only when one
*348
opinion is a logical subset of other, broader opinions,”
id.
at 63 (quoting
King v. Palmer,
To be sure,
Freeman’s
plurality and concurrence agree on very little. The plurality looks to the analytic framework underlying a district judge’s decision to accept a C-type plea agreement,
see
The gap between the plurality and the concurrence is wide, but it is still possible to tease out a common denominator. In light of its perceived “consult the guidelines” requirement, the plurality would surely agree that in every case in which a defendant’s C-type plea agreement satisfies the criteria for Justice Sotomayor’s exception by “expressly us[ing] a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment,”
id.
at 2695 (Sotomayor, J., concurring), the sentencing judge’s decision to accept that sentence is based on the guidelines. Thus, Justice Sotomayor’s concurrence delineates the narrowest grounds on which at least five Justices agree. It is, therefore, the controlling opinion.
See Marks,
In reaching this conclusion, we do not write on a pristine page. In the uncertain wake of
Freeman,
two other courts of appeals have published opinions addressing this question. Both agree with our conclusion.
See United States v. Smith,
It remains for us to decide whether the defendant is eligible for a sentence reduction under the rationale of the concurrence. Justice Sotomayor allows for eligibility when the agreement itself expressly indicates that the term of imprisonment is based on a guideline sentencing range that has subsequently been reduced by the Sentencing Commission.
See Freeman,
The second scenario requires more elaboration. Justice Sotomayor wrote:
[A] plea agreement might ... make clear that the basis for [a] specified term [of imprisonment] 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 *349 court in accordance with that agreement is “based on” that range.
Id. at 2697-98. The defendant’s fallback argument is that he is eligible for section 3582(c)(2) relief under this scenario.
This argument assumes that the second scenario requires “an analysis of the reasons that motivated or informed the parties’ decision” to enter into the plea agreement. Appellant’s Supp. Br. at 9. Starting from this premise, he notes that the Agreement mentions some guideline components (including a total offense level) as well as a specified drug quantity. These references, the defendant says, make it hard to believe that the guidelines did not figure into the agreed sentence.
The defendant’s reasoning is plausible, but he is answering the wrong question. Justice Sotomayor’s concurrence expressly rejects an inferential approach. She acknowledges that a term of imprisonment in a C-type plea agreement will most often be negotiated by reference to the relevant guideline provisions.
Freeman,
Silhouetted against this backdrop, the concern that we voiced in
Rivera-Martínez I
echoes still. The Agreement does not identify any guideline sentencing range. Moreover, the Agreement does not contain any information about the defendant’s criminal history category.
See Rivera-Martínez I,
A comparison of the Agreement with the plea agreement in
Freeman
is telling. The latter agreement contained an explicit stipulation to
both
an offense level and a criminal history category.
See Freeman,
The short of it is that we cannot identify a referenced sentencing range from the Agreement alone. We would have to supplement the Agreement with either the parties’ background negotiations or the facts that informed the sentencing judge’s decision to accept the plea. Justice Soto-mayor’s concurrence forbids us from making such an archeological dig. See id. at 2696-98. We therefore conclude that the *350 defendant is not eligible for a sentencing reduction under section 3582(c)(2). 5
There is one loose end. The parties have agreed that the district court made a clerical error when it entered the amended judgment. The judgment describes the offense of conviction as “[p]ossess[ion] with intent to distribute in excess of 5 kg of cocaine, and in excess of 5 kg of cocaine base Schedule II Narcotic Drug Controlled Substances.” This is not the crime to which the defendant admitted his guilt. The judgment therefore should be amended to reflect that the defendant pleaded guilty only to conspiracy, not to the underlying substantive offense. Accordingly, we remand for the limited purpose of correcting this clerical error.
See
Fed.R.Crim.P. 36;
see also United States v. Arboleda,
III. CONCLUSION
We need go no further. For the reasons elucidated above, we again conclude that the defendant is ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). We therefore reinstate our judgment affirming the denial of the defendant’s motion while at the same time remanding for the limited purpose of correcting the district court’s judgment.
So Ordered.
Notes
. For present purposes, cocaine base is crack cocaine, and- we use the terms interchangeably.
. A further amendment, which post-dates the filing of the defendant's sentence reduction motion, has increased the quantities of crack cocaine needed to trigger certain base offense levels. See USSG App. C, Amend. 750, Pt. A & comment, (backg'd.) (Supp.2011).
. We also stated that Rule 11(c)(1)(C) prohibits a district court from altering a sentence "unless the terms of the plea agreement explicitly authorize it to do so.”
Rivera-Martínez I,
. Even if we were free to work backward, that effort would prove fruitless. When we look to the sentencing table armed with a 240-month sentence and an offense level of 37, the defendant's sentence places him in two distinct guideline sentencing ranges. See USSG Ch. 5, Pt. A (sentencing table).
. Justice Sotomayor herself foreshadowed this result. In explaining why she rejected absolutist approaches to the eligibility of individuals sentenced pursuant to C-type plea agreements for sentence reductions under retroactive guideline amendments, she cited our decision in
Rivera-Martínez I
with apparent approval.
See Freeman,