Federal Crack Sentence Reductions: Defendants Sentenced Pursuant to 11(c)(1)(C) Agreements Eligible for 3582(c)(2) Relief
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In 2007 the U.S. Sentencing Commission issued a retroactive amendment, Amendment 713, to the Sentencing Guidelines designed to eliminate the sentencing disparities in crack cocaine and powder cocaine cases. The amendment became effective in March 2008, and promptly triggered an outbreak of conflicting appellate court decisions, prompting the U.S. Supreme Court to intervene on several occasions and to restore judicial order. This past term the Court was once again was forced to confront another issue spun off by Amendment 713: whether the amendment could be retroactively applied in cases where a defendant entered into a plea agreement with the Government for a specific sentence. The Court, in Freeman v. United States, answered that question in the affirmative, although in a plurality decision.
Federal district courts, under 18 U.S.C. § 3582(c), generally do not have the authority to “modify a term of imprisonment once it has been imposed.” This is especially true where the defendant has entered into a plea agreement for a specific sentence endorsed by the sentencing judge. Subsection (c)(2), however, provides the following stipulation: “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 pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or upon 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.”
In 2005 William Freeman was indicted for a litany of crimes, including possession with intent to distribute cocaine base and possession of a firearm. Pursuant to Federal Rules of Criminal Procedure, Rule 11(c)(1)(C), he entered into a plea agreement with the Government calling for him to plead guilty to all the charges in exchange for a recommended 106-month sentence. The plea agreement specifically stated “[b]oth parties have independently reviewed the Sentencing Guidelines applicable in this case” and that Freeman agreed “to have his sentence determined pursuant to the Sentencing Guidelines.” The recommended 106-month sentence was the minimum sentence recommended on the drug count while a mandatory consecutive sentence was required on the gun count by 18 U.S.C. § 924(c)(1)(A). The trial court accepted the agreement after which it sentenced Freeman to 106 months on the drug count and the minimum 60-month term under Sec. 924.
Shortly after the Sentencing Commission adopted Amendment 713, Freeman filed a motion to reduce his 106-month cocaine sentence pursuant to Sec. 3582(c))(2). Under the amendment, Freeman would face a minimum sentence of 37 to 46 months. The district court denied the Sec. 3582(c)(2) motion and the Sixth Circuit, citing its holding in United States v. Goins, upheld the trial court’s ruling. Both courts essentially held that defendants sentenced pursuant to a plea agreement calling for a specific sentence are ineligible for Sec. 3582(c)(2) relief. This prompted the Supreme Court to intervene and decide the issue—hopefully once and for all. Too many lower courts, at both the district court and appellate court level, have resisted the spirit, if not the intent, of Amendment 713.
Under the Supreme Court decision in Gall v. United States, a federal sentencing judge must impose “a sentence sufficient but not greater than necessary to comply” with the Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553(a). The Guidelines, thus, become the starting point for federal sentencing, and while the Government and the defendant may enter into a plea agreement with a recommended sentence to be imposed, the trial judge must accept the plea before the recommended sentence becomes binding under Rule 11(c)(1)(C). But, as the Supreme Court pointed out in Freeman, the trial court cannot accept a plea agreement absent checking the Guidelines to find out if the recommended sentence falls within “the defendant’s sentencing range.”
U.S. Sentencing Guideline § 1B1.10(b)(1), as discussed in Freeman, “instructs the district court in modifying a sentence to substitute only the retroactive amendment and then leave all original Guidelines determinations in place. In other words, the policy statement [that applies to § 3882(c)(2) motions) seeks to isolate whatever marginal effect the since-rejected Guideline has on the defendant’s sentence. Working backwards from this purpose, § 3582(c)(2) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement. This is the only rule consistent with the governing policy statement, a statement that rests on the premise that a Guideline range may be one of many factors that determine the sentence imposed.
“Thus, the text and purpose of the three relevant sources—the statute, the Rule, and the governing policy statements—require the conclusion that the district court has authority to entertain § 3582(c)(2) motions when sentences are imposed in light of the Guidelines, even if the defendant enters into an 11(c))(1)(C) agreement.”
The Supreme Court turned back arguments by the Government, and the Sixth Circuit reasoning, that a sentence imposed under Rule 11(c))(1)(C) is based purely on the plea agreement, not the Guidelines; therefore, such sentence are not eligible for relief under § 3582(c))(2). The Government tried to overstate its argument by saying that if Amendment 713 applied, it could possibly “upset the bargain struck between the prosecutor and [Freeman].” The Court put this Government concern in its proper perspective with the following observation:
“ … That, however, has nothing to do with whether a sentence is ‘based on’ the Guidelines under § 3582(c)(2). And in any event the concern is overstated. Retroactive reduction to sentencing ranges are infrequent, so the problem will not arise often … More important, the district court’s authority under 3582(c)(2) is subject to significant contraints, constraints that that can be enforced by appellate review.
“The binding policy statements governing § 3582(c)(2) motions places considerable limits on district court discretion. All Guidelines decisions from the original sentencing remain in place, save the sentencing range that was altered by retroactive amendment … In an initial sentencing hearing, a district court can vary below the Guidelines, but, by contrast, below-Guidelines modifications in § 3582(c)(2) proceedings are forbidden … except where the original sentence was itself a downward departure … And the court must always ‘consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment.’ The district court’s authority is limited; and the Courts of Appeals, and ultimately this Court, can ensure that district courts do not overhaul plea agreements, thereby abusing their authority under § 3582(c)(2).
“”The Government would enact a categorical bar on § 3582(c)(2) relief. But such a bar would prevent district courts from making an inquiry that is within their own special knowledge and expertise. What is at stake in this case is a defendant’s eligibility for relief, not the extent of that relief. Indeed, even where a defendant is permitted to seek a reduction, the district judge may conclude that a reduction would be inappropriate. District judges have a continuing professional commitment, based on scholarship and accumulated experience, to a consistent sentencing policy. They can rely on the frameworks they have devised to determine whether and to what extent a sentence reduction is warranted in any particular case. They may, when considering a § 3582(c)(2) motion, take into account a defendant’s decision to enter into an 11(c)(1)(C) agreement. If the district court, based on its experience and informed judgment, concludes the agreement led to a more lenient sentence than would otherwise have been imposed, it can deny the motion, for the statute permits but does not require the court to reduce a sentence. This discretion ensures that § 3582(c)(2) does not produce a windfall.”
In effect the Supreme Court, through Justices Kennedy, joined by Justices Ginsburg, Breyer, and Kagan, held that § 3582(c)(2) motions raising a request for sentence modification under Amendment 713 in plea agreement cases are determined, not by the motive of the defendant and Government in reaching an agreement but by reasons the sentencing judge considered in imposing the original sentence. The Court instructed that this policy would be consistent with the purpose of the Guidelines and § 3553(a) to maintain a “sentencing scheme” that punishes those who commit similar crimes with similar sentences. Specifically, the Court pointed out that in enacting Amendment 713 the Sentencing Commission said the amendment is a “partial remedy” for the “urgent and compelling” problem that crack/powder cocaine disparities which have been a embarrassment to federal sentencing for decades—disparities that have “significantly undermine[d] the various congressional objectives set forth in the [1984] Sentencing Reform Act.”
Based on this reasoning by the Commission, the Court said “ … there is no good reason to 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. Congress enacted § 3582(c)(2) to remedy systemic injustice, and the approach outlined in the opinion concurring in the judgment would undercut a systemic solution.”
That mild backhanded criticism was directed at Justice Sotomayor who, in her concurring opinion, supported by majority opinion but differed with it on the issue that, in her view, “the term of imprisonment imposed by a district court pursuant to a plea agreement … is ‘based on’ the agreement itself, not on the judge’s calculation of the Sentencing Guidelines. However, I believe that if a [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 by the United States Sentencing Commission, the term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sentence reduction under § 3582(c)(2).”
We concur with Justice Sotomayor’s position. Most federal plea agreements are framed within the context of the Guidelines. When the trial judge accepts the plea agreement, he/she understands by the very language of the agreement that the Guidelines were consulted before the “agreed upon” sentence was recommended; and, as a matter of fact, the judge must conduct his/her own consideration of the Guidelines to make sure the recommended sentence is consistent with the Guidelines. Justice Sotomayor’s opinion illustrates the flaw in the majority opinion; namely, if the sentencing judge in the Freeman case states during a § 3582(c)(2) hearing that he would have imposed a more serious sentence than the recommended 106-month sentence absent the plea agreement, Freeman is not entitled to a new minimum sentence under Amendment 713.
That is unfair. The judge considered the Guidelines before imposing the recommended 106-month sentence. He, thus, had no problem with that sentence. That made the agreement a done deal. The judge should not now be allowed to conduct a second “independent” consideration of the Guidelines in a § 3582(c)(2) proceeding and conclude that even with the minimum sentencing range provided by Amendment 713, he would have imposed the 106-month minimum anyway. This procedure, we believe, undercuts both the spirit and purpose of Amendment 713. Sentencing disparities in crack/powder cocaine cases will continue to flourish in federal plea agreement cases because one judge will conclude he would have imposed a lesser sentence under Amendment 713 guidelines while another will say he would not in virtually identical cases.
We laud the Freeman decision because it does provide further clarification of Amendment 713 in the complicated and often convoluted federal sentencing process and make § 3582(c)(2) relief available, but it will do little to erase the sentencing disparities that exists in the many of current plea agreement cases.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair