UNITED STATES of America, Plaintiff-Appellee, v. Tyrone DAVIS, Defendant-Appellant.
No. 13-30133
United States Court of Appeals, Ninth Circuit.
Argued and Submitted En Banc September 10, 2015. Filed June 13, 2016.
Michael S. Morgan (argued), Assistant United States Attorney; Jenny A. Durkan, United States Attorney; United States Attorney‘s Office, Western District of Washington, Seattle, Washington; for Plaintiff-Appellee.
Nancy L. Talner, ACLU-WA Foundation, Seattle, Washington; Michael Filipovic, Federal Public Defender for the Western District of Washington, Seattle, Washington; Theresa M. DeMonte and Andrew R.W. Hughes, Calfo Harrigan Leyh & Eakes LLP, Seattle, Washington; Suzanne Lee Elliott, Co-Chair, WACDL Amicus Committee, Seattle, Washington; for Amici Curiae ACLU-WA, Federal Public Defender for the Western District of Washington, and WACDL.
Before: SIDNEY R. THOMAS, Chief Judge and WILLIAM A. FLETCHER, RICHARD A. PAEZ, RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN, CARLOS T. BEA, MORGAN CHRISTEN, JACQUELINE H. NGUYEN, ANDREW D. HURWITZ and JOHN B. OWENS, Circuit Judges.
Concurrence by Judge CHRISTEN
Dissent by Judge BEA
OPINION
PAEZ, Circuit Judge:
In this case, we must consider how to interpret the Supreme Court‘s fractured opinion in Freeman v. United States, 564 U.S. 522, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), which addressed whether a defendant sentenced pursuant to a
Revisiting Freeman and our application of Marks to fractured Supreme Court opinions, we hold that where we can identify no rationale common to a majority of the Justices, we are bound only by the result. In so holding, we join the D.C. Circuit, which concluded that Freeman lacks a controlling opinion because the plurality and concurring opinions do not share common reasoning whereby one analysis is a logical subset of the other. United States v. Epps, 707 F.3d 337, 350 (D.C. Cir. 2013) (internal quotation marks and citation omitted). Bound only by Freeman‘s specific result, the D.C. Circuit adopted the plurality opinion‘s approach, which holds that [e]ven 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
I.
A.
In 2005, pursuant to a plea agreement entered into under
At sentencing in 2006, the district court calculated Davis‘s total offense level as 37 with a Criminal History Category II, resulting in a Guidelines range of 235 to 293 months. The court accepted the
B.
When Davis pled guilty, the Guidelines punished defendants far more harshly for crack cocaine offenses than for powder cocaine offenses. A defendant responsible for one gram of crack cocaine faced the same Guidelines sentence as a defendant responsible for one hundred grams of powder cocaine. This 100:1 ratio was roundly criticized for its racially disparate effects. See, e.g., Kimbrough v. United States, 552 U.S. 85, 98, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (citing the Sentencing Commission‘s finding that the severe sentences required by the 100-to-1 ratio are imposed primarily upon black offenders) (internal quotation marks omitted). As a 2006 survey by the Substance Abuse and Mental Health Services Administration showed, whites formed the biggest group of crack cocaine users in absolute numbers,2 but African Americans were disproportionately arrested and convicted for crack cocaine offenses. A 2007 report by the Sentencing Commission documented that when Davis was sentenced in 2006, 81.8% of federal crack cocaine offenders were African American. U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy at 15 (2007) (2007 Report). Moreover, in a series of reports to Congress, the Sentencing Commission warned that the data no longer support the assumption that crack cocaine is more harmful than powder cocaine. Kimbrough, 552 U.S. at 97-98 (quoting U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy at 96 (2002); also citing the 2007 Report); see also United States v. Baptist, 646 F.3d 1225, 1226, 1228 n. 1 (9th Cir. 2011) (per curiam). Citing the urgent and compelling problems raised by the overly punitive crack sentencing scheme, the Sentencing Commission repeatedly called on Congress to reduce the 100:1 ratio. See, e.g., 2007 Report at 8-9. Federal judges and Department of Justice officials likewise joined the chorus of voices demanding reform. See, e.g., United States v. Then, 56 F.3d 464, 467 (2d Cir. 1995) (Calabresi, J., concurring) (The unfavorable and disproportionate impact that the 100-to-1 crack/cocaine sentencing ratio has on members of minority groups is deeply troubling.); Remarks of Attorney General Eric Holder, D.C. Court of Appeals Judicial Conference (June 19, 2009), available at http://www.justice.gov/opa/speech/attorney-general-eric-holder-dc-court-appeals-judicial-conference (It is the view of this Administration that the 100-to-1 crack-powder sentencing ratio is simply wrong. It is plainly unjust to hand down wildly disparate prison sentences for materially similar crimes.).
In 2010, Congress responded by passing the Fair Sentencing Act,
In 2012, Davis filed a pro se motion under
The district court denied the motion, holding that it lacked jurisdiction to modify Davis‘s sentence because it was based on the Rule 11(c)(1)(C) plea agreement, not the Guidelines. In so ruling, the district court concluded that it was bound by Justice Sotomayor‘s concurring opinion in Freeman. Davis appealed for a third time. A three-judge panel affirmed, relying on Austin. United States v. Davis, 776 F.3d 1088 (9th Cir. 2015). We granted rehearing en banc. United States v. Davis, 795 F.3d 1188 (9th Cir. 2015).6
II.
A.
In Freeman v. United States, the Supreme Court considered whether a defendant sentenced under a
A four-justice plurality held that [e]ven 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 a dissenting opinion by Chief Justice Roberts, four Justices took the contrary position that a sentence imposed under a Rule 11(c)(1)(C) agreement is never based on the Guidelines because the agreement itself serves as the foundation for the sentence imposed. Id. at 544, 131 S.Ct. 2685 (Roberts, C.J., dissenting).
Concurring only in the judgment, Justice Sotomayor staked out yet a third position. Justice Sotomayor argued that a sentence imposed under a Rule 11(c)(1)(C)
To say that Freeman divided the Court would be an understatement. Not only did the plurality and dissenting opinions take opposite positions, but both also strongly criticized Justice Sotomayor‘s concurrence. The plurality warned that the consequences of [the concurrence‘s] erroneous rule would be significant, id. at 533, 131 S.Ct. 2685 (plurality opinion), while the dissent complained that Justice Sotomayor‘s approach would foster confusion in an area in need of clarity, id. at 550, 131 S.Ct. 2685 (Roberts, C.J., dissenting). The dissenting opinion accurately stated that the plurality and concurrence agree on very little except the judgment. Id. at 544, 131 S.Ct. 2685 (Roberts, C.J., dissenting). Thus, the 4-1-4 Freeman Court did not articulate a clear path forward for analysis of sentence-reduction requests by defendants sentenced under Rule 11(c)(1)(C) agreements.
B.
1.
In Marks v. United States, the Supreme Court explained that [w]hen a fragmented Court decides a case and no single ratio
The D.C. Circuit has offered a clear example of the first approach. In King v. Palmer, the court explained:
Marks is workable—one opinion can be meaningfully regarded as narrowest than another—only when one opinion is a logical subset of other, broader opinions. In essence, 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.
950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). The D.C. Circuit reaffirmed this approach in Epps, describing Marks as applicable only when the concurrence posits a narrow test to which the plurality must necessarily agree as a logical consequence of its own, broader position. 707 F.3d at 348 (emphasis omitted) (quoting King, 950 F.2d at 782).
The second approach looks to results rather than reasoning. It defines the narrowest ground as the rule that would necessarily produce results with which a majority of the Justices from the controlling case would agree. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 694-97 (3d Cir. 1991) (finding that Justice O‘Connor‘s concurring opinions controlled the fractured decisions in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), and Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990), because a majority of justices in each case would have agreed with her result), aff‘d in part, rev‘d in part, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).
2.
Our cases interpreting Marks have not been a model of clarity. On one occasion, we cited the results language described above. See United States v. Williams, 435 F.3d 1148, 1157 n. 9 (9th Cir. 2006) (explaining that a concurrence is controlling under Marks if it would affect a narrower range of cases than that of the plurality). Nonetheless, in Williams and other decisions applying Marks to a fractured Supreme Court decision, we analyzed whether the reasoning of a narrower opinion fit entirely into the circle drawn by a broader opinion in order to derive a rule. Our most recent decision to address Marks explicitly employed the reasoning approach. Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012). In Lair, we approvingly cited King and held that the Marks standard applies only where one opinion can be meaningfully regarded as narrower than another and can represent a common denominator of the Court‘s reasoning. Id. at 1205 (quoting United States v. Rodriguez-Preciado, 399 F.3d 1118, 1140 (9th Cir.), amended by 416 F.3d 939 (9th Cir. 2005)). Unless the narrowest opinion is actually the logical subset of other broader opinions, ... the only binding aspect of a splintered decision is its specific result. Id. (internal quotation marks and citation omitted).
To foster clarity, we explicitly adopt the reasoning-based approach to applying Marks. This approach is not only consistent with our most recent caselaw, see Lair, 697 F.3d 1200, but also makes the most sense.7 A fractured Supreme
III.
Applying Marks, as clarified above, to Freeman, we overrule our holding in Austin that Justice Sotomayor‘s concurrence controls.8 Instead, we adopt the analysis of the D.C. Circuit in Epps that there was no common denominator in Freeman because the plurality and concurring opinions do not share common reasoning whereby one analysis is a logical subset of the other. Epps, 707 F.3d at 350 (internal quotation marks and citation omitted).
Justice Sotomayor‘s concurrence cannot reasonably be described as a logical subset of Justice Kennedy‘s plurality opinion. The Freeman plurality explicitly rejected the concurrence‘s reasoning, in particular its underlying premise that a sentence imposed under a
Two examples from Epps are instructive.9 First consider the following scenario:
[T]he parties may state in the plea agreement that a particular range 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.
Id. at 350 n. 8. Justice Sotomayor would allow a sentence reduction in this example because the agreement explicitly call[s] for the defendant to be sentenced within a particular Guidelines sentencing range. Freeman, 564 U.S. at 538, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment). The plurality, on the other hand, would find [Freeman] 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. Epps, 707 F.3d at 350 n. 8. Thus, the plurality opinion is actually the narrower one in certain respects.
A second example produces a similar result:
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.
Id. Here again, if the court decides for reasons unrelated to the guidelines range to impose the sentence the parties agreed upon, the defendant would be eligible for a reduction under Justice Sotomayor‘s approach but not under the plurality‘s. Id.
These examples make clear that the plurality and concurring opinions cannot be explained by a diagram in which a circle representing the reasoning of Justice Sotomayor‘s opinion sits neatly within a circle representing the reasoning of the plurality opinion. Because both opinions would allow sentence reductions in situations where the other would not, Justice Sotomayor‘s con
We recognize that, with the exception of the D.C. Circuit, every other circuit that has considered the issue has adopted Justice Sotomayor‘s concurrence as the controlling opinion in Freeman. But we do not find those opinions convincing. Most engage with Marks only superficially, quoting its language with no analysis. See, e.g., United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013); United States v. Browne, 698 F.3d 1042, 1045-46 (8th Cir. 2012); United States v. Dixon, 687 F.3d 356, 359-60 (7th Cir. 2012); United States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011).11 Given their lack of meaningful analysis, these opinions lack persuasive force.
Those few cases that do discuss how Marks should apply to Freeman mistakenly conclude that although the gap between the plurality and the concurrence is wide, [] it is still possible to tease out a common denominator. United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir. 2011); see also United States v. Thompson, 682 F.3d 285, 289-90 (3d Cir. 2012). Not so. As the examples above demonstrate, there are some circumstances where defendants would be eligible for relief under Justice Sotomayor‘s approach but not under the plurality‘s. We therefore cannot agree with the First Circuit‘s assertion that 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 ... the sentencing judge‘s decision to accept that sentence is based on the guidelines. Rivera-Martinez, 665 F.3d at 348. A more nuanced reading of both opinions leads us to 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 of the other. Epps, 707 F.3d at 350 (internal quotation marks and citation omitted).
Marks instructs us to consider the opinions only of those Members who concurred in the judgments on the narrowest grounds when deriving a rule from a fractured Supreme Court decision. Marks, 430 U.S. at 193, 97 S.Ct. 990 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, & Stevens, JJ.) (emphasis added)). Nonetheless, we acknowledge that the Supreme Court and our sister circuits have considered dissenting opinions when interpreting fragmented Supreme Court decisions. See, e.g., United States v. Jacobsen, 466 U.S. 109, 115-17, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (relying on a dissenting opinion to derive the rule in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980)); Moses H. Cone Mem‘l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16-17, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (holding that Will v. Calvert Fire Insurance Co. did not overrule
Considering Chief Justice Roberts‘s dissent would not change our conclusion because we cannot derive any common denominator by combining Freeman‘s dissenting opinion with either the plurality or concurring opinion. First, no rule can be derived from the Freeman plurality and dissenting opinions, as neither is a logical subset of the other. Indeed, the plurality holding that [e]ven 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, Freeman, 564 U.S. at 534, 131 S.Ct. 2685 (plurality opinion) is diametrically opposed to the dissent‘s position that a sentence imposed under a Rule 11(c)(1)(C) agreement is never based on the Guidelines because the agreement itself serves as the foundation for the sentence imposed, id. at 544-45, 131 S.Ct. 2685 (Roberts, C.J., dissenting). In practical terms, this divergence means the dissent would categorically find all defendants sentenced under a Rule 11(c)(1)(C) agreement ineligible for a sentence reduction, while the plurality would permit a reduction in most cases. Thus, the plurality and dissent do not share common reasoning whereby one analysis is a logical subset of the other. Epps, 707 F.3d at 350 (internal quotation marks and citation omitted).
Second, Justice Sotomayor‘s concurring opinion is not a logical subset of the dissenting opinion, or vice versa. Again, the dissent would categorically bar defendants sentenced under Rule 11(c)(1)(C) agreements from seeking relief under
The Freeman dissent is similarly critical of Justice Sotomayor, describing her view that certain Rule 11(c)(1)(C) defendants are eligible for relief as just as mistaken
IV.
A.
Given that no opinion in Freeman controls, we consider which of the rationales set forth in the varying opinions is most persuasive. Epps, 707 F.3d at 351. In so doing, we are restricted only by the ultimate result in Freeman: that defendants sentenced under
As the plurality explained, three critical sources support this approach. First, [f]ederal sentencing law requires the district judge to impose sentences that comply with the purposes of federal sentencing, in light of the Guidelines and other
Second, Justice Kennedy looked to the district court‘s authority under
Third, the Guidelines policy statements that apply to Rule 11(c)(1)(C) plea agreements and
Not only does the plurality approach best conform with these relevant sources, but a contrary focus on the parties’ intentions would contribute to the unwarranted disparity that the [Sentencing Reform Act] was designed to reduce. Epps, 707 F.3d at 351. In reducing the crack cocaine sentencing range, Congress and the Sentencing Commission sought to address the urgent and compelling problem of crack-cocaine sentences. Freeman, 564 U.S. at 533, 131 S.Ct. 2685 (plurality opinion) (internal quotation marks omitted); supra at I.B. Section 3582(c)(2) empowers district judges to correct sentences that depend on frameworks, like the one for crack cocaine, that later prove unjustified. Freeman, 564 U.S. at 526, 131 S.Ct. 2685 (plurality opinion). Justice Sotomayor‘s approach would extend the benefit of the Commission‘s judgment only to an arbitrary subset of defendants whose agreed sentences were accepted in light of a since-rejected Guidelines range based on whether their plea agreements refer to the Guidelines. Id. at 533-34, 131 S.Ct. 2685. Thus, adoption of the concurring opinion would undercut a systemic solution to a systemic injustice. Id. at 534, 131 S.Ct. 2685. For all these reasons, we adopt the approach of the Freeman plurality opinion.
B.
Applying the plurality‘s approach, we hold that Davis is eligible for relief under
The district judge‘s decision to reimpose the eighteen-year sentence was also based on the Guidelines. During the resentencing hearing, the district court recalculated Davis‘s total offense level at 36 and a Guidelines range of 188 to 235 months. Then, reflecting on all the evidence presented, the court determined that the original eighteen-year sentence—which, at 216 months, fell within the calculated range—was fair and reasonable under the Guidelines.
Taken together, the text of Davis‘s plea agreement and the judge‘s statements during the sentencing hearing leave no
Conclusion
In sum, when applying Marks to a fractured Supreme Court decision, we look to those opinions that concurred in the judgment and determine whether one of those opinions sets forth a rationale that is the logical subset of other, broader opinions. When, however, no common denominator of the Court‘s reasoning exists, we are bound only by the specific result.
Applying that framework to Freeman, we conclude that, contrary to our prior decision in Austin, Justice Sotomayor‘s concurrence is not the logical subset of the plurality opinion. Nor can we extract a shared reasoning by including the dissent in our analysis. Thus, we overrule Austin and adopt the Freeman plurality approach as the most persuasive means of analyzing sentence reductions in the context of
REVERSED and REMANDED.
CHRISTEN, Circuit Judge, joined by THOMAS, Chief Judge, and TALLMAN, NGUYEN, and HURWITZ, Circuit Judges, concurring:
Freeman v. United States, 564 U.S. 522, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), addressed an issue of grave importance to Davis and to countless other prisoners in his position. The opinion issued today corrects an error in our circuit‘s interpretation of Freeman, but it also represents a missed opportunity to straighten out our circuit‘s inconsistent applications of Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).
Marks specifically directs lower courts how to interpret splintered Supreme Court decisions. Its rule tends to crop up in the most contentious cases where, as here, the stakes are significant. Freeman is important, but Marks has even broader application to the wide spectrum of issues we decide. I join in the court‘s holding—as far as it goes—but it is regrettable that our court articulates an incomplete interpretation of Marks. Leaving this work unfinished will surely result in continued uneven application of Marks within our circuit.
The rule announced in Marks appears simple at first glance but it has proven to be confounding. See Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (noting Marks has baffled and divided the lower courts that have considered it (quoting Nichols v. United States, 511 U.S. 738, 746, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994))). The opinion issued today untangles part of the problem because it decisively adopts a reasoning-based approach to determine when splin
Unfortunately, we leave unanswered whether our court will take into account dissenting opinions when applying Marks. I join the majority because its holding is entirely consistent with Marks: [W]e look to those opinions that concurred in the judgment and determine whether one of those opinions sets forth a rationale that is the logical subset of other, broader opinions. But I disagree with the majority‘s assumption that we might be free to take dissenting opinions into account in future Marks analyses. Marks leaves some questions unanswered, but it plainly limits our review to the opinions of those Members [of the Court] who concurred in the judgments. 430 U.S. at 193, 97 S.Ct. 990 (emphasis added). Because I do not see that this language leaves any room for our court to consider dissenting opinions, I would go further than the majority does and expressly state that dissents play no role in a Marks analysis. This is not to say that dissents serve no purpose. They can and should be read to provide context and a deeper understanding of the Court‘s decisions, but they do not inform our analysis of what binding rule, if any, emerges from a fractured decision.
The dissent points to National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949), as support for its view that dissenting opinions should be considered. Tidewater, of course, says nothing about how to interpret fractured Supreme Court decisions, though it was a fractured decision itself. In Tidewater, two concurring justices and four dissenting justices relied on the rule that Congress lacks authority to expand federal court subject matter jurisdiction beyond that provided in Article III. See id. at 604-46, 69 S.Ct. 1173. Our dissenting colleague is correct that courts have universally accepted this rule, but doing so does not require looking to Tidewater‘s dissenting opinions. Indeed, as recognized in Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983), this rule predates Tidewater by a long shot. See id. at 491, 103 S.Ct. 1962 (This Court‘s cases firmly establish that Congress may not expand the jurisdiction of the federal courts beyond the bounds established by the Constitution. (citing Hodgson v. Bowerbank, 9 U.S. 303, 5 Cranch 303, 3 L.Ed. 108 (1809); Kline v. Burke Constr. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 67 L.Ed. 226 (1922))); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 65, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (describing as fundamental that Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III (citing Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803))).
The Supreme Court at times looks to dissenting opinions when interpreting its own splintered decisions. See United States v. Jacobsen, 466 U.S. 109, 115, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Moses H. Cone Mem‘l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16-17, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). From this, the majority and dissent infer that we might be free to do the same. But the way the Supreme Court treats its own precedent says nothing about how lower courts must apply it. Marks, not Jacobsen or Moses H. Cone, is the Supreme Court authority that sets out the rule for lower courts to follow.1 In my
view, until the Supreme Court says otherwise, Marks precludes us from considering dissenting opinions.
BEA, Circuit Judge, dissenting:
From its very first sentence, the majority unjustifiably departs from not only our own, but also well-established Supreme Court precedent. We correctly and squarely resolved the questions presented by this case in United States v. Austin, 676 F.3d 924 (9th Cir. 2012) until it was overruled by today‘s majority. In Austin, we considered whether a judge had jurisdiction to modify a prisoner‘s sentence under
Our interpretation in Austin has garnered the support of eight out of the nine Circuits which have interpreted Freeman. See, e.g., United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013); United States v. Thompson, 714 F.3d 946, 949 (6th Cir. 2013); United States v. Browne, 698 F.3d 1042, 1045-47 (8th Cir. 2012); United States v. Weatherspoon, 696 F.3d 416, 422 (3rd Cir. 2012); United States v. Dixon, 687 F.3d 356, 359-60 (7th Cir. 2012); United States v. Austin, 676 F.3d 924, 927 (9th Cir. 2012); United States v. Rivera-Martinez, 665 F.3d 344, 345 (1st Cir. 2011); United States v. Brown, 653 F.3d 337 (4th Cir. 2011).2 The sole outlier circuit: the D.C. Circuit in United States v. Epps, 707 F.3d 337 (D.C. Cir. 2013). Thus, the Majority today rejects a widely accepted interpretation of Freeman in favor of a highly criticized, outlier approach, thus accentuating a Circuit split.
I cannot subscribe to the Majority‘s view. To start, the Majority‘s logical subset requirement is an invention of the D.C. Circuit that finds no support in Marks or any other Supreme Court precedent. The Majority‘s logical subset invention permits a concurring opinion to become the precedential decision of the Court if, and only if, its reasoning shares all points in common with another, broader opinion that also reaches the majority result. Of course, the concurring opinion may have fewer elements of the decision than does the plurality opinion, but it may not have any elements in conflict. See Maj. Op. at 1021-22. This notion is an invention in our circuit‘s jurisprudence, though the Majority tips its hat to the D.C. Circuit. See Maj. Op. at 1016-17, 1020. And even if there were a logical subset requirement as defined by the Majority, the Majority misreads Justice Kennedy‘s plurality opinion to the extent it concludes that there are circumstances in which Justice Sotomayor would permit sentence modification but the Kennedy plurality would not. Finally, the Majority‘s adoption of the Kennedy plurality‘s approach violates stare decisis because five Justices in Freeman (a majority), all agreed that we look to the plea agreement itself to determine whether a plea was based on the since-modified sentencing Guidelines. Under cases like National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949), we are bound by holdings that garner the support of a majority of the nine Justices on the entire Court, even if that agreement derives in part from votes from the dissent. Thus, the Majority flouts not only Freeman, but also Supreme Court jurisprudence relating to the binding effect of splintered Supreme Court opinions, as well as this Court‘s structural role as a federal intermediary court.
I. Facts
In 2005, Tyrone Davis pleaded guilty to possession with intent to distribute crack cocaine pursuant to a
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 ... 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.
The original panel affirmed, citing Austin as the controlling law of the circuit. United States v. Davis, No. 13-30133, op. at 1016-17.4 This case was successfully called en banc to reconsider our prior determination that, under the methodology prescribed by Marks, Justice Sotomayor‘s concurrence in Freeman constitutes the binding holding of that case.
II. Legal Analysis
A.
In Marks v. United States, the Supreme Court made clear that even splintered determinations of our highest court are binding on lower federal courts: When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds....’ Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (reversing the Sixth Circuit‘s determination that Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), had no binding precedential effect because it was a plurality opinion). At issue in Marks was the precedential effect of Memoirs—an earlier, splintered Supreme Court opinion. In Memoirs, a three-Justice plurality had held that sexually explicit literature was constitutionally protected unless it met the three-part definition of obscenity set forth in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).5 See Marks, 430 U.S. at 193, 97 S.Ct. 990 (citing Memoirs, 383 U.S. at 421, 86 S.Ct. 975). Justices Black and Douglas (both writing separately) concurred in Memoirs on the broader grounds that the First Amendment prohibits government censorship of any obscene material. See Memoirs, 383 U.S. at 421, 424-33, 86 S.Ct. 975. Finally, Justice Stewart concurred based on his somewhat different view that only hard-core pornography may constitutionally be suppressed. Id. at 421, 86 S.Ct. 975 (citing his dissenting opinion in Mishkin v. State of N.Y., 383 U.S. 502, 518, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966)). In sum, six Justices agreed that the material at issue in Memoirs was protected by the First Amendment, but no five Justices agreed about the scope of First Amendment protection for sexually explicit material nor about the proper reasoning to be employed to reach that result. In this circumstance, Marks explained, the three-Justice Memoirs plurality opinion, which applied the Roth tests, constituted the holding of the Court and provided the governing standards, because it was the narrowest grounds for finding First Amendment protection. Marks, 430 U.S. at 193-94, 97 S.Ct. 990.
The Majority today rejects the only application of Marks to Freeman that is consistent with stare decisis in favor of a widely-criticized approach endorsed by one panel in the D.C. Circuit in United States v. Epps, 707 F.3d 337, 351 (D.C. Cir. 2013).6 The Majority holds that Marks produces a controlling opinion only when the narrowest grounds in a splintered opinion is represent[s] a common denominator of the Court‘s reasoning, meaning the reasoning of a narrower opinion fit[s] entirely into the circle drawn by a broader opinion. Maj. Op. at 1021.
This reading is also consistent with Marks’ dictate that the holding of the Court ... [is] the position taken by those Members who concurred in the judgment on the narrowest grounds.... Marks, 430 U.S. at 193, 97 S.Ct. 990 (emphasis
The Majority‘s adoption of a logical subset precondition to Marks applicability is plagued by the same logical fallacy. King v. Palmer, the D.C. Circuit case on which the Majority relied, justified its invention of a logical subset requirement on the grounds that:
Marks is problematic[] [i]f applied in situations where the various opinions supporting the judgment are mutually exclusive [because] 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....
King v. Palmer, 950 F.2d 771, 782 (D.C. Cir. 1991). Even accepting, arguendo, the King court‘s premise that a concurring opinion should be given stare decisis effect only when it consistently produces a result with which a majority of the Court would agree, that, again, would support the adoption of a rule that it is each Justice‘s vote, and not his reasoning, that counts under Marks. The King court‘s conclusion that Marks works only when a majority of Justices subscribe to a given approach to a legal question, such that one opinion supporting the judgment ... fit[s] entirely within a broader circle drawn by the others, id. at 782, simply does not follow from that court‘s premise—or from the many Supreme Court precedents interpreting and applying Marks to splintered opinions over the last four decades.8 Indeed, to require complete overlap between both the result and the reasoning of Justices in the majority before a binding rule can be discerned renders Marks a virtual nullity. Agreement as to both the Court‘s reasoning and its result does not produce a concurring opinion—it produces a join.
It is the result produced by majority vote that determines the stare decisis effect of the judgment. That is because whether the majority vote is produced by the adoption of one rationale or two, the rule of law made—the decision—is based on a rationale or rationales expected to remain the same and produce the same result in the next applicable case. After all, stare decisis means to stand by things decided.
B.
A simple application of Marks’ methodology to Freeman compels a finding that Justice Sotomayor‘s concurrence is the holding of Freeman. See United States v. Austin, 676 F.3d 924, 927-28 (9th Cir. 2012). Five members of the Court agreed that Freeman—who had been sentenced pursuant to a Rule 11(c)(1)(C) agreement—was eligible for sentencing modification under
Concurring in result, Justice Sotomayor, a former district court judge experienced in actual sentencing, reasoned that plea agreements are sometimes based on sentencing guidelines, but only when the agreement itself expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, or the sentencing range is otherwise evident from the agreement itself. Id. at 534, 539, 131 S.Ct. 2685 (Sotomayor, J., concurring) (emphasis added). Chief Justice Roberts, writing for the four dissenting Justices, agree[d] with Justice Sotomayor that ‘the term of imprisonment imposed pursuant to a [Rule 11(c)(1)(C)] agreement is ... based on the agreement itself.’ Id. at 544, 131 S.Ct. 2685 (Roberts, C.J., dissenting) (emphasis added) (internal quotation marks omitted). However, the dissent would find that plea agreements are a matter of contract and thus never based on the sentencing Guidelines. Id. at 544-51, 131 S.Ct. 2685 (Roberts, C.J., dissenting).
Justice Sotomayor‘s opinion is controlling because sometimes is the middle ground between always and never. See United States v. Duvall, 740 F.3d 604, 612 (D.C. Cir. 2013) (Kavanaugh, J., concurring in the denial of rehearing en banc); see also supra, n.6. In circumstances in which Justice Sotomayor would permit reduction of a prior sentence, so too would the plurality (resulting in a five-Justice majority). Where Justice Sotomayor‘s criterion are not met, she would find agreement in the four-Justice dissent that the prisoner‘s sentence is not based on the
Under Justice Sotomayor‘s framework, Davis cannot seek resentencing, because his plea agreement does not meet either of her exceptions. It neither expressly cites, nor otherwise manifests that it is predicated upon, any particular Guidelines range. In fact, it omits several details (such as criminal history, and adjustments) necessary even to calculate a Guidelines range. Davis‘s sentence is therefore not subject to modification under
The Majority rejects this straight-forward approach on the grounds that circumstances could arise in which Justice Sotomayor would find a plea based on sentencing guidelines, but the Kennedy plurality would not. The Majority posits two hypotheticals, both of which assume express agreement in a plea bargain that a particular sentencing range applies (such that Justice Sotomayor would find the plea agreement based on the sentencing Guidelines, and subject to
The Majority is simply incorrect. The very fact that the sentencing judge in the Majority‘s hypotheticals must reject the Guidelines range recommended by the parties necessarily presupposes that the judge‘s analysis started with a consideration of the Guidelines range recommended in the plea agreement. Under the Kennedy plurality‘s approach, this consideration, at the inception of the sentencing, is enough to entitle a defendant to seek resentencing—regardless of the judge‘s ultimate reasons for approving the plea agreement. See Freeman, 564 U.S. at 529-30, 131 S.Ct. 2685 (plurality opinion) ([I]f the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense a basis for the sentence. (emphases added)). The Majority recognizes as much on page 1026 of its opinion, wherein it quotes Justice Kennedy‘s statement that the applicable Guidelines policy statement ‘forbids the district judge to accept an 11(c)(1)(C) agreement without first evaluating the recommended sentence’ under the Guidelines. Maj. Op. at 1026 (quoting Freeman, 564 U.S. at 529, 131 S.Ct. 2685, and USSG § 6B1.2(c)).
The Majority criticizes my reading of Justice Kennedy‘s plurality opinion—a reading adopted by an overwhelming majority of circuits—as oversimplified. In support of its more limited reading, the Majority relies solely on Justice Kennedy‘s statement that a recommended sentence is likely to be based on the Guidelines. Maj. Op. at 1022 n. 9 (quoting Freeman, 564 U.S. at 534, 131 S.Ct. 2685).
But Justice Kennedy‘s use of the word likely in one sentence cannot be read in isolation. In the immediately preceding paragraph, Justice Kennedy in fact rejects the notion—advanced by the Majority—that his approach would limit relief to only a subset of defendants. Freeman, 564 U.S. at 533-34, 131 S.Ct. 2685 ([When] [t]he Commission determine[s] that [the]
Nothing about Justice Kennedy‘s opinion suggests any exceptions. He notes that the Guidelines require the district judge to give due consideration to the relevant sentencing range, even if the defendant and prosecutor recommend a specific sentence as a condition of the guilty plea. Id. at 530, 131 S.Ct. 2685 (emphases added). He further reasons that [f]ederal sentencing law requires the sentencing judge to look to the Guidelines as a framework or starting point in every case. Id. at 529, 131 S.Ct. 2685. Thus, notwithstanding his use of the word likely in one sentence, Justice Kennedy‘s opinion is most reasonably read as endorsing an approach under which a defendant may always seek resentencing on the basis of amended Guidelines. Certainly, for the reasons already stated above, Justice Kennedy would permit a defendant to seek resentencing in the examples given by the Majority.
The Majority imbues far more meaning into Justice Kennedy‘s single use of the word likely than the rest of Justice Kennedy‘s plurality opinion can bear. It may be that Justice Kennedy simply did not want to speak in absolutes. That is, he declined to say, as a matter of empirical fact, that a judge always consults the sentencing Guidelines, because there is always the possibility that a judge could make a mistake or fail to follow the law. But one thing is for sure: Justice Kennedy does not even hint at a case in which the sentencing judge could lawfully start sentencing with any consideration other than the Guidelines, and the Majority has not suggested any either. See
Indeed, the failure of a sentencing judge to start the calculation of a sentence by considering the applicable sentencing Guidelines is in itself grounds for reversal for resentencing. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (instructing that appellate courts must first ensure that the district court committed no significant procedural error, such as failing to calculate ... the Guidelines range); United States v. Denton, 611 F.3d 646, 651 (9th Cir. 2010) (explaining that [a] failure to calculate the correct advisory range constitutes procedural error justifying reversal and remand for resentencing); United States v. Hammons, 558 F.3d 1100, 1106 (9th Cir. 2009) (holding that a sentencing court committed plain error by failing to ... calculate the app[licable] guideline range and vacating and remanding for resentencing).
C.
But even putting aside the logical subset issue, the Majority still cannot reach its result consistent with basic principles of stare decisis for the independent reason that we, as a federal intermediate court, are bound by holdings upon which five Justices of the Court agree—even if that agreement derives in part from dissenting Justices. The Supreme Court‘s fragmented decision in National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949), is a famous illustration of this principle.9
United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), provides a more recent example of the same rule. The question in Jacobsen was the government‘s authority to conduct a warrantless search on the heels of a private search that identified potential contraband. The Jacobsen Court extracted the controlling legal standard from its prior precedent in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), by combining the opinion of the Walter Court (which garnered only two votes) with the opinion of four dissenting Justices, which it described as the standard ... adopted by the majority of the Court in Walter.... Id. at 116-17 & n. 12 (emphasis added).
In Walter, a private party had opened a package containing films that, from the descriptions on the packaging, the private party concluded were contraband. Walter v. United States, 447 U.S. 649, 651-52, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). The government seized the films and, without obtaining a warrant, screened them from a projector. Id. at 652, 100 S.Ct. 2395. Delivering the two-Justice opinion of the Court, Justice Stevens reasoned that the government had violated the defendant‘s Fourth Amendment rights by actually watching films because the private party‘s search had consisted only of opening the package that contained the films. Id. at 657, 100 S.Ct. 2395 (The FBI‘s subsequent screening of such films constituted an expansion of the search that had been conducted previously by the private party.); see also Jacobsen, 466 U.S. at 115-16 (quoting Walter, 447 U.S. at 657 (Opinion of Stevens, J., joined by Stewart, J.)). Three Justices in Walter concurred in the judgment on the grounds that the government had exceeded its authority under the plain view doctrine, but expressly rejected the notion that the scope of one‘s Fourth Amendment right could be tethered to the scope of an antecedent private search. Walter, 447 U.S. at 660-62, 100 S.Ct. 2395 (White, J., concurring). A four-Justice dissent agreed with Justice Stevens that the legality of a governmental search depended on the scope of the private party‘s antecedent search, but would have found no constitutional violation because the FBI‘s subsequent viewing of the movies on a projector did not ‘change the nature of the search’ and [thus] was not an additional search subject to the warrant requirement. Id. at 663-64, 100 S.Ct. 2395 (Blackmun, J., dissenting);
Presented with these competing views in Walter, the Jacobsen Court (in a six-Justice opinion of the Court) held that a majority [in Walter] did agree on the appropriate analysis of a governmental search which follows on the heels of a private one. Two Justices [referring to Justices Stevens and Stewart] . . . [and] [f]our additional Justices [referring to the dissent] were . . . of the view that the legality of the governmental search must be tested by the scope of the antecedent private search. Jacobsen, 466 U.S. at 115-16, 104 S.Ct. 1652. The Majority opinion here simply cannot be squared with the Court‘s reading of Walter in Jacobsen. Jacobsen recognized that the rule adopted by the two-Justice plurality in Walter was the precedential holding of the Walter Court, because it garnered the approval of six Justices (a majority) of the Court. This was so even though the three-Justice concurrence specifically rejected the plurality‘s rationale, and thus neither the plurality opinion nor the concurrence was a logical subset of the other.
Moses H. Cone Mem‘l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) [hereinafter, Memorial Hospital] provides yet another example. There, the Court considered whether a lower court was bound to apply the Colorado River test,11 notwithstanding that a four-Justice plurality in Will v. Calvert Fire Insurance Co., 437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978), had purported to overrule it. Id. at 17, 103 S.Ct. 927. The Memorial Hospital Court affirmed that the Court of Appeals [had] correctly recognized that the four dissenting Justices and Justice Blackmun [who concurred in judgment in Will] formed a majority to require application of the Colorado River test. Id. (emphases added). By holding that the Fourth Circuit had correctly recognized that it was require[d] to apply the Colorado River test by virtue of a five-Justice majority comprised of four dissenting Justices and one concurring Justice, id. the Supreme Court in Memorial Hospital confirmed that its precedents relating to the consideration of dissenting opinions do bind us as a federal intermediate court (contrary to the suggestion of my concurring colleagues).
The Majority is correct that the Justices in Freeman did not agree on much. But a five-Justice majority (Justice Sotomayor, plus the four dissenting Justices) did agree on one point—that a sentence imposed under a
The Majority blatantly ignores Chief Justice Roberts’ express agreement with Justice Sotomayor and focuses only on the disagreements between them. But of course there are points on which they disagree; that is why there is both a concurrence and a dissent in Freeman (just as there was ample disagreement between the concurring and dissenting Justices in Tidewater). But those disagreements do not negate the fact that there are no sentence reductions which Justice Sotomayor would deny that the four dissenting Justices would not also deny. Where, as here, a plea agreement contains no mention of either the sentencing Guidelines or the criteria necessary to calculate the applicable Guidelines range (Justice Sotomayor‘s
In sum, the Majority makes a good case that federal sentencing law,
*
For all of these reasons, we had it right in Austin, and I respectfully dissent.
J.P. HYAN, an individual, Plaintiff-Appellant, v. Rosslyn Beth HUMMER, Esq., an individual; Eric C. Peterson, Esq., an individual; Rutter Hobbs and Davidoff, Inc., a corporation, Defendants-Appellees.
No. 14-56155
United States Court of Appeals, Ninth Circuit.
Submitted June 7, 2016 * Pasadena, California
Filed June 14, 2016
* The panel unanimously concludes this case is suitable for decision without oral argument. See