SOTOMAYOR, J., CONCURRING IN JUDGMENT
FREEMAN V. UNITED STATES
564 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-10245
WILLIAM FREEMAN, PETITIONER
v. UNITED
STATES
on writ of certiorari to the united states court of
appeals for the sixth circuit
[June 23, 2011]
Justice Sotomayor, concurring in
the judgment.
I agree with the plurality that
petitioner William Freeman is eligible for sentence reduction under
18 U. S. C. §3582(c)(2), but I differ as to the reason why. In
my view, the term of imprisonment imposed by a district court
pursuant to an agreement authorized by Federal Rule of Criminal
Procedure 11(c)(1)(C) ((C) agreement) is “based on” the agreement
itself, not on the judge’s calculation of the Sentencing
Guidelines. However, I believe that if a (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 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).
I
To ask whether a particular term
of imprisonment is “based on” a Guidelines sentencing range is to
ask whether that range serves as the basis or foundation for the
term of imprisonment. No term of imprisonment— whether derived from
a (C) agreement or otherwise—has legal effect until the court
enters judgment imposing it. As a result, in applying §3582(c)(2) a
court must discern the foundation for the term of imprisonment
imposed by the sentencing judge. As the plurality explains, in the
normal course the district judge’s calculation of the Guidelines
range applicable to the charged offenses will serve as the basis
for the term of imprisonment imposed. See
ante, at 5; see
also
Gall v.
United States,
552 U. S. 38, 49
(2007).
Sentencing under (C) agreements,
however, is different. At the time of sentencing, the term of
imprisonment imposed pursuant to a (C) agreement does not involve
the court’s independent calculation of the Guidelines or
consideration of the other 18 U. S. C. §3553(a) factors. The
court may only accept or reject the agreement, and if it chooses to
accept it, at sentencing the court may only impose the term of
imprisonment the agreement calls for; the court may not change its
terms. See Fed. Rule Crim. Proc. 11(c)(3)(A) (“To the extent the
plea agreement is of the type specified in [Rule 11(c)(1)(C)], the
court may accept the agreement, reject it, or defer a decision
until the court has reviewed the presentence report”); Advisory
Committee’s Notes on 1979 Amendments to Fed. Rule Crim. Proc. 11,
18 U. S. C. App., pp. 583–584 (1982 ed.) (“[C]ritical to a …
(C) agreement is that the defendant receive the … agreed-to
sentence”); accord,
United States v.
Rivera-Martínez, 607 F. 3d 283, 286 (CA1 2010);
United States v.
Green, 595 F. 3d 432, 438
(CA2 2010).
In the (C) agreement context, therefore, it is
the binding plea agreement that is the foundation for the term of
im-prisonment to which the defendant is sentenced. At the moment of
sentencing, the court simply implements the terms of the agreement
it has already accepted. Contrary to the plurality’s view, see
ante, at 5–6, the fact that USSG §6B1.2(c) (Nov. 2010)
instructs a district court to use the Guidelines as a yardstick in
deciding whether to accept a (C) agreement does not mean that the
term of imprisonment imposed by the court is “based on” a
particular Guidelines sentencing range. The term of imprisonment
imposed by the sentencing judge is dictated by the terms of the
agreement entered into by the parties, not the judge’s Guidelines
calculation. In short, the term of imprisonment imposed pursuant to
a (C) agreement is, for purposes of §3582(c)(2), “based on” the
agreement itself.
To hold otherwise would be to contravene the
very purpose of (C) agreements—to bind the district court and allow
the Government and the defendant to determine what sentence he will
receive. Although district courts ordinarily have significant
discretion in determining the appropriate sentence to be imposed on
a particular defendant, see
Gall, 552 U. S., at 46, under
Rule 11(c)(1)(C) it is the parties’ agreement that determines the
sentence to be imposed, see Advisory Committee’s Notes on 1999
Amendments to Fed. Rule Crim. Proc. 11, 18 U. S. C. App.,
p. 1570 (2000 ed.) (noting that, under a (C) agreement, “the
government and defense have actually agreed on what amounts to an
appropriate sentence … . [T]his agreement is binding on the
court once the court accepts it”). To be sure, the court “retains
absolute discretion whether to accept a plea agreement,”
ibid., but once it does it is bound at sentencing to give
effect to the parties’ agreement as to the appropriate term of
imprisonment.
Allowing district courts later to reduce a
term of im-prisonment simply because the court itself considered
the Guidelines in deciding whether to accept the agreement would
transform §3582(c)(2) into a mechanism by which courts could
rewrite the terms of (C) agreements in ways not contemplated by the
parties. At the time that §3582(c)(2) was enacted in 1984, it was
already well understood that, under Rule 11, the term of
imprisonment stipulated in a (C) agreement bound the district court
once it accepted the agreement. See Fed. Rule Crim. Proc. 11(e)(1)
(1982) (specifying that the parties to a (C) agreement may “agree
that a specific sentence is the appropriate disposition of the
case”);
United States v.
French, 719 F. 2d
387, 389, n. 2 (CA11 1983)
(per curiam) (noting that
a Rule 11(e)(1)(C) plea agreement was a “ ‘binding’ plea
bargain”).[
Footnote 1]
In the absence of any indication from the
statutory text or legislative history that §3582(c)(2) was meant to
fundamentally alter the way in which Rule 11(c)(1)(C) operates, I
cannot endorse the plurality’s suggestion that §3582(c)(2) should
be understood “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.”
Ante, at 6; cf.
Dillon v.
United States, 560 U. S. ___, ___
(2010) (slip op., at 8) (“Congress intended [§3582(c)(2)] to
authorize only a limited adjustment to an otherwise final
sentence”).
By the same token, the mere fact that the
parties to a (C) agreement may have considered the Guidelines in
the course of their negotiations does not empower the court under
§3582(c)(2) to reduce the term of imprisonment they ultimately
agreed upon, as Freeman argues. Undoubtedly, he is correct that in
most cases the Government and the defendant will negotiate the term
of imprisonment in a (C) agreement by reference to the applicable
Guidelines provisions. See Brief for Petitioner 30–31 (“[T]he
Guidelines are … the starting point and initial benchmark for plea
negotiations”); Brief for United States 33 (noting the “concededly
strong likelihood that the parties will … calculat[e] and
conside[r] potential Guidelines ranges in the course of negotiating
a plea agreement and selecting a specific sentence”). This only
makes sense; plea bargaining necessarily occurs in the shadow of
the sentencing scheme to which the defendant would otherwise be
subject. See
United States v.
Booker,
543 U. S. 220, 255
(2005) (“[P]lea bargaining takes place in the shadow of … a
potential trial” (emphasis deleted)).
The term of imprisonment imposed by the
district court, however, is not “based on” those background
negotia- tions; instead, as explained above, it is based on the
binding agreement produced by those negotiations. I therefore
cannot agree with Freeman that §3582(c)(2) calls upon district
courts to engage in a free-ranging search through the parties’
negotiating history in search of a Guidelines sentencing range that
might have been relevant to the agreement or the court’s acceptance
of it. Nor can I agree with the plurality that the district judge’s
calculation of the Guidelines provides the basis for the term of
imprisonment imposed pursuant to a (C) agreement.
II
These conclusions, however, do
not mean that a term of imprisonment imposed pursuant to a (C)
agreement can
never be reduced under §3582(c)(2), as the
Government contends. For example, Rule 11(c)(1)(C) allows the
parties to “agree that a specific … sentencing range is the
appropriate disposition of the case.” In delineating the
agreed-upon term of imprisonment, some (C) agreements may call for
the defendant to be sentenced within a particular Guidelines
sentencing range. In such cases, the district court’s acceptance of
the agreement obligates the court to sentence the defendant
accordingly, and 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). If that
Guidelines range is sub-sequently lowered by the Sentencing
Commission, the de-fendant is eligible for sentence reduction.
Similarly, 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. Therefore, when a (C) agreement
expressly uses a Guidelines sentencing range to establish the term
of imprisonment, and that range is subsequently lowered by the
Commission, the defendant is eligible for sentence reduction under
§3582(c)(2).[
Footnote 2]
In so holding, I necessarily reject the
categorical rule advanced by the Government and endorsed by the
dissent, which artificially divorces a (C) agreement from its
express terms.[
Footnote 3]
Because the very purpose of a (C) agreement is to allow the parties
to determine the defendant’s sentence, when the agreement itself
employs the particular Guidelines sentencing range applicable to
the charged offenses in establishing the term of imprisonment, the
defendant is eligible to have his sentence reduced under
§3582(c)(2).[
Footnote 4] In
such cases, the district court’s reduction of the sentence does not
rewrite the plea agreement; instead, it enforces the agreement’s
terms.
Like the plurality, I am not persuaded by the
Government’s argument that allowing a term of imprisonment imposed
pursuant to a (C) agreement to be reduced under §3582(c)(2)
deprives the Government of the benefit of the bargain it struck
with the defendant. When a (C) agreement explicitly employs a
particular Guidelines sentencing range to establish the term of
imprisonment, the agreement itself demonstrates the parties’ intent
that the imposed term of imprisonment will be based on that range,
as required for sentence reduction under the statute.[
Footnote 5] The Government’s concern that
application of §3582(c)(2) to (C) agreements will result in certain
defendants receiving an “unjustified windfall” is therefore
misplaced. See Brief for United States 40, 43.
Furthermore, in cases where the Government
believes that even the limited sentence reduction authorized by
§3582(c)(2) and USSG §1B1.10 improperly benefits the defendant, it
can argue to the district court that the court should not exercise
its discretion under the statute to reduce the sentence.[
Footnote 6] See
Dillon, 560 U.
S., at ___ (slip op., at 9) (noting that, in applying §3582(c)(2),
the court must “consider whether the authorized reduction is
warranted, either in whole or in part, according to the factors set
forth in [18 U. S. C.] §3553(a)”).
Finally, if the Government wants to ensure
ex ante that a particular defendant’s term of imprisonment
will not be reduced later, the solution is simple enough: Nothing
prevents the Government from negotiating with a defendant to secure
a waiver of his statutory right to seek sentence reduction under
§3582(c)(2), just as it often does with respect to a defendant’s
rights to appeal and collaterally attack the conviction and
sentence.[
Footnote 7] See 18 U.
S. C. §3742; 28 U. S. C. §2255 (2006 ed., Supp. III); see
also App. 28a–29a (provision in Freeman’s agreement expressly
waiving both rights). In short, application of §3582(c)(2) to an
eligible defendant does not—and will not—deprive the Government of
the benefit of its bargain.
III
In order to conclude that Freeman
is eligible for sentence reduction under §3582(c)(2), the plea
agreement between Freeman and the Government must use a Guidelines
sentencing range that has subsequently been lowered by the
Sentencing Commission to establish the term of imprisonment imposed
by the District Court. Freeman’s agreement does.
The agreement states that Freeman
“agrees to have his sentence determined pursuant to the Sentencing
Guidelines,” App. 28a, and that 106 months is the total term of
imprisonment to be imposed,
id., at 26a. The agreement
also makes clear that the §924(c)(1)(A) count to which Freeman
agrees to plead guilty carries a minimum sentence of 60 months,
“which must be served consecutively to” any other sentence imposed.
Id., at 27a. This leaves 46 months unaccounted for. The
agreement sets Freeman’s offense level at 19, as determined by the
quantity of drugs and his acceptance of responsibility, and states
that the parties anticipate a criminal history category of IV.
Id., at 27a–28a. Looking to the Sentencing Guidelines, an
offense level of 19 and a criminal history category of IV produce a
sentencing range of 46 to 57 months.[
Footnote 8] See USSG ch. 5, pt. A (sentencing table).
Therefore, contrary to the dissent’s curious suggestion that “there
is no way of knowing what th[e] sentence was ‘based on,’ ”
post, at 6, it is evident that Freeman’s agreement
employed the 46-month figure at the bottom end of this sentencing
range, in combination with the 60-month mandatory minimum sentence
under §924(c)(1)(A), to establish his 106-month sentence.[
Footnote 9] Thus the first of
§3582(c)(2)’s conditions is satisfied—Freeman’s term of
imprisonment is “based on” a Guidelines sentencing range.
In 2007 the Commission amended the Guidelines
provisions applicable to cocaine base offenses, such that the
offense level applicable to the quantity of drugs for which Freeman
was charged was lowered from 22 to 20. See App. 142a–143a (Sealed);
USSG Supp. App. C, Amdt. 706. Taking into account the three-level
reduction for acceptance of responsibility, Freeman’s recalculated
offense level is 17, resulting in an amended sentencing range of 37
to 46 months. Thus there can be no doubt that the Guidelines
sentencing range originally used to establish Freeman’s term of
imprisonment “has subsequently been lowered by the Sentencing
Commission,” §3582(c)(2), such that the amendment “ha[s] the effect
of lowering [Freeman’s] applicable guideline range,”
§1B1.10(a)(2)(B). As a result, Freeman’s term of imprisonment
satisfies the second of §3582(c)(2)’s conditions. I therefore
concur in the plurality’s judgment that he is eligible for sentence
reduction.
Footnote 1
Prior to 2002, Rule 11’s provisions governing
binding plea agreements were located in Rule 11(e)(1)(C). In
substance they were largely identical to the current rules in
11(c)(1)(C). See Fed. Rule Crim. Proc. 11(e)(1)(C) (2000).
Footnote 2
The dissent suggests that this rule results
from a “mistaken shift in analysis” in this opinion from the
actions of the judge to the intent of the parties. See
post, at 4 (opinion of Roberts, C. J.). The purpose
of a (C) agreement, however, is to bind the sentencing court to the
terms agreed upon by the parties. See
supra, at 3–4.
Therefore, to determine whether a sentence imposed pursuant to a
(C) agreement was “based on” a Guidelines sentencing range, the
reviewing court must necessarily look to the agreement itself.
Footnote 3
The majority of the Courts of Appeals to have
addressed this question have taken approaches consistent with the
one I take today. See
United States v.
Rivera-Martínez, 607 F. 3d 283, 286–287 (CA1 2010);
United States v.
Ray, 598 F. 3d 407, 409–410
(CA7 2010);
United States v.
Main, 579 F. 3d 200,
203 (CA2 2009);
United States v.
Scurlark, 560 F.
3d 839, 842–843 (CA8 2009). It appears that only the Third Circuit
has applied the absolute rule advanced by the Government. See
United States v.
Sanchez, 562 F. 3d 275,
282, and n. 8 (2009). As noted by the plurality, see
ante, at 1, even the Sixth Circuit allows for sentence
reduction “to avoid a miscarriage of justice or to correct a mutual
mistake,”
United States v.
Peveler, 359
F. 3d 369, 378, n. 4 (2004) (in-ternal quotation marks
omitted). And only two Courts of Appeals have adopted a
wide-ranging approach similar to the one suggested by Freeman. See
United States v.
Garcia, 606 F. 3d 209, 214 (CA5
2010)
(per curiam);
United States v.
Cobb, 584 F. 3d 979, 985 (CA10 2009).
Footnote 4
The dissent contends that, even when a (C)
agreement expressly uses a Guidelines sentencing range to establish
the term of imprisonment, the district court imposing a sentence
pursuant to that agreement does not “appl[y]” that range within the
meaning of the appli-cable Guidelines policy statement. See
post, at 4–5 (citing USSG §1B1.10(b)(1) (Nov. 2010)). But
in so arguing, the dissent—like the Government—would have courts
ignore the agreement’s express terms, which the court “applie[s]”
when imposing the term of imprisonment.
Footnote 5
The plurality asserts that “[t]here is no
good reason to extend the benefit [of sentence reduction] only to
an arbitrary subset of defendants … based on whether their plea
agreements refer to the Guidelines.”
Ante, at 10. But the
“good reason” is evident: Rule 11(c)(1)(C)’s entire purpose is to
allow the parties’ intent to determine sentencing outcomes. See
supra, at 3–4. If a (C) agreement does not indicate the
parties’ intent to base the term of imprisonment on a particular
Guidelines range subsequently lowered by the Commission, then
§3582(c)(2) simply does not apply.
Footnote 6
For example, the district court might decline
to reduce the term of imprisonment of an eligible defendant in
light of the Government’s argument that it made significant
concessions in the agreement—such as dropping a charge or forgoing
a future charge—and therefore it would not have agreed to a lower
sentence at the time the agreement was made.
Footnote 7
The opposite would not necessarily be true,
however, under the reading of §3582(c)(2) proposed by the
Government and the dissent. If a district court has no statutory
authority to reduce a term of imprisonment imposed pursuant to a
(C) agreement—because such a term is never “based on” a Guidelines
sentencing range within the meaning of §3582(c)(2)—it is not clear
how the parties could effectively confer that authority upon the
court by the terms of their agreement.
Footnote 8
Because it is the parties’ agreement that
controls in the (C) agreement context, see
supra, at 3–4,
even if the District Court had calculated the range differently
than the parties, see
post, at 8 (Roberts, C. J.,
dissenting), Freeman would still be eligible for resentencing, as
long as the parties’ chosen range was one that was “subsequently …
lowered by the Sentencing Commission,” §3582(c)(2).
Footnote 9
The dissent asks whether Freeman would be
eligible for sentence reduction if the agreement had called for a
53-month term of imprisonment. See
post, at 7. Though that
question is not presented by the facts of this case, the answer is
evident from the foregoing discussion: If the agreement itself made
clear that the parties arrived at the 53-month term of imprisonment
by determining the sentencing range ap-plicable to Freeman’s
offenses and then halving the 106-month figure at its low end, he
would have been eligible under §3582(c)(2). See
United
States v.
Franklin, 600 F. 3d 893, 897 (CA7
2010) (noting that a (C) agreement would not foreclose relief under
§3582(c)(2) if it provided that the term of imprisonment was to be
40 percent below the low end of the applicable sentencing
range).
Of course, if a (C) agreement “does not
contain any references to the Guidelines,”
post, at 8
(Roberts, C. J., dissenting), there is no way of knowing
whether the agreement “use[d] a Guidelines sentencing range to
establish the term of imprisonment,”
supra, at 6, and a
prisoner sentenced under such an agreement would not be eligible.
It is therefore unclear why the dissent believes that the
straightforward inquiry called for by the rule I apply today will
“foster confusion” among the lower courts.
Post, at 7.
This approach is consistent with the one already taken by most
Courts of Appeals, see n. 3,
supra, and there is no
indication that they have found it unpalatable, cf.
post,
at 9.
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