Thursday, December 15th, 2016

Good News and Bad News for a Defendant Sentenced under a Rule 11(c)(1)(C) Plea Agreement Who Subsequently Moved for a Sentence Reduction under 18 U.S.C. §3582(c)(2)

In United States v. Jamahl Leonard, No. 15-2232-cr (Dec. 14,  2016) (Circuit Judges: Raggi, Chin, Droney), the Circuit, in a published opinion, vacates a district court’s ruling that the defendant is ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) and remands for further proceedings. But it also holds that the defendant cannot receive a sentence reduction to the extent he was seeking.

At the initial sentencing, the district court determined that the Guidelines range was 121 to 151 months. But the court sentenced Leonard under a plea agreement pursuant to  Fed.R.Crim.P.11(c)(1)(C) using an agreed-upon range of 97 to 121 months. Under Rule 11(c)(1)(C), the parties agree to a particular sentencing range (Fed.R.Crim.P.11(c)(1)(C)), but if the sentencing court rejects the agreement, it must “give the defendant an opportunity to withdraw the plea.” Fed.R.Crim.P.11(c)(5)(B).  Applying the range of the 11(c)(1)(C) agreement, the district court imposed a sentence of 114 months — which is in the middle of the 97-to-121 month range.

The Sentencing Commission later made a retroactive amendment to the Guidelines to lower the offense levels for drug offenses (like Mr. Leonard’s) by two levels. Thus, the initial 121-to-151-month Guidelines range would yield an amended range of 97 to 121 months — the range in the 11(c)(1)(C) agreement. But if the amended Guidelines were applied to the drug quantity calculations in the 11(c)(1)(C) agreement, that range would be lowered to 78 to 97 months.

The district court found that Leonard was ineligible for § 3582(c)(2) relief  because the  amended Guidelines range (of  97 to 121 months) is not lower than the range of the 11(c)(1)(C) agreement, which the court used in sentencing him to 114 months.

The Circuit reversed the district court and held that Leonard is eligible for § 3582(c)(2) relief. But he was limited to the range resulting from applying the amended Guidelines to the range calculated by the court (of 121 to 151 months), which yielded a range of 97 to 121 months. So “Leonard is at least eligible for a reduction in his 114-month Guidelines-based sentence, but not to any term lower than 97 months[.]” Op. at 39.

  1. The defendant’s eligibility for a § 3582(c)(2) reduction. To be “eligible” for a sentence reduction, Leonard had to show two things. First, he had to show that he was sentenced to a prison term “based on the Sentencing Guidelines.” Op. at 11 (emphasis added); 18 U.S.C. § 3582(c)(2) (the defendant must have been sentenced to a term of imprisonment “based on” a sentencing range that was “subsequently lowered by the Sentencing Commission”).

    , he had to show that a retroactive amendment to the Guidelines “lowered” the Guidelines range “applicable to [him] at the original sentencing.” Op. at 11 (emphasis added);  U.S.S.G. § 1B1.10(a)(2)(B) (defendant is not eligible for § 3582(c)(2) relief if an amendment “does not have the effect of  lowering the defendant’s applicable guideline range”). The government argued that Leonard’s  sentence was not “based on” the Sentencing Guidelines, but on the 11(c)(1)(C) agreement and this made him ineligible under § 3582(c)(2). The Circuit rejected this argument.In deciding whether Leonard’s sentence was “based on” the Sentencing Guidelines, the Circuit discussed the plurality opinion in Freeman v. United States, 564 U.S. 522 (2011)(plurality opinion) (construing § 3582(c)(2) in context of an 11(c)(1)(C) plea agreement).  And it discussed approaches to analyzing fragmented Supreme Court decisions to discern the majority holding. Op at 12-24. But the Circuit did not decide “which of Freeman’s rationales for decision is narrower, or which is more persuasive, because we conclude that Leonard’s 114-month sentence is properly recognized as ‘based on’ the Sentencing Guidelines under the reasoning of either the plurality or the concurrence.” Op. at 17. It concluded that, because the Sentencing Guidelines were used both in the court’s calculation of  the Sentencing Guidelines (of 121 to 151) and in the parties’ calculations of the ranges in the 11(c)(1)(C) agreement (of 97 to 121 months) and both calculations would now be lower under the amended Guidelines, Leonard’s 114-month sentence necessarily was “based on” the Sentencing Guidelines. The Circuit also held that the Guidelines range that was “applicable” at the initial sentencing was the 121-to-151-month range calculated by the court, which the retroactive amendments lowered (to 97 to 121 months). “The applicable range having been lowered to 97 to 121 months, the district court — in its discretion — could reduce Leonard’s sentence to anywhere from 97 to 113 months. Thus, Leonard is at least eligible for a sentence reduction to that extent.” Op. at 25.
  1. The extent of the sentence reduction under § 3582(c)(2) is based on the “applicable” range “as calculated by the district court … before it accepted an 11(c)(1)(C) agreement.”  Leonard  argued that once the court accepted the 11(c)(1)(C) agreement, the sentencing range in that agreement became the “applicable” range for determining the extent of the sentence reduction permitted by § 3582(c)(2). See U.S.S.G.  § 1B1.10 (b)(1) (“whether and to what extent” a sentence may be reduced is determined by “the amended Guideline range that would have been applicable . . . if the amendment(s) had been in effect at the time the defendant was sentenced”) (emphasis added). The retroactive amendments to the Guidelines, if applied to the drug quantity calculation in the 11(c)(1)(C) agreement, would result in a range 78 to 97 months (instead of 97 to 121). Thus, Leonard argued, because the retroactive amendments would have lowered the range in the 11(c)(1)(C) agreement, he was eligible to have his sentence reduced to a floor of  78 months (from the 114 months he was serving).The Circuit rejected Leonard’s argument. It held that the Guidelines range “applicable” at the initial sentencing was the range of “121 to 151 months, as determined by the district court before it accepted the parties’ 11(c)(1)(C) agreement specifying a 97-to-121 month range.” Op. at 39; see id. at 24-35; U.S.S.G. § 1B1.10(b)(1). Its view is that the court’s acceptance of the 11(c)(1)(C) agreement is equivalent to a departure or variance. And the Guidelines concerning § 3582(c)(2) relief provide that the applicable range is the range determined before a court considers any departure or variance. Op. at 27-28; U.S.S.G. § 1B1.10 cmt. n.1(A). It also construed language of U.S.S.G. § 1B1.1(a) as “plainly assign[ing] responsibility for determining the applicable Guidelines range to ‘the court,’ not the parties[.]” Op. at 26.Thus, the “relevant Guideline amendment reduced the originally applicable 121-to-151-month range to a 97-to-121-month reduction,” and “Leonard is eligible for a reduction of his 114-month sentence, but to no less than 97 months’ incarceration.” Op. at 5.
  1. Circuit rejects government’s harmless error argument.  The government argued that any error in the district court’s understanding of Leonard’s eligibility for a sentence reduction was necessarily harmless because, “‘having already used’ a 97-to-121-month sentencing range — pursuant to the parties’ 11(c)(1)(C) agreement — to determine an appropriate sentence, ‘it is beyond cavil that the district court would have imposed the same 114-month sentence’ in the exercise of its § 3582(c)(2) discretion.” Op. at 35-36. The Circuit concluded that the conclusion the government urged was not certain “because we do not know what weight the district court gave the initial applicable Guidelines range in granting the variance reflected in the parties’ agreed-to lower range. Thus, we cannot be certain that if the district court were presented with a lower applicable range equal to the agreed-to range, it would not sentence at the lower end of the range.” Op. at 36. Moreover, a court exercises its discretion to reduce a sentence under § 3582(c)(2) “only ‘after considering the factors set forth in section 3553(a),” which can be informed by post-sentencing behavior. Op. 36, 37 (citations omitted). So “the § 3553(a) factors may present differently on remand and be accorded different weights than at the initial sentence.” Op. at 37.
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