Friday, October 30, 2015

"Drugs minus 2" reduction unavailable where plea agreement specified the sentence

U.S. v. Price, 2015 WL 5915954 (10/9/15) (Kan) (unpub'd) - The 10th reviews a "Drugs Minus 2" 18 USC § 3582(c)(2) motion with a Rule 11(c)(1)(C) plea agreement with unfriendly reasoning and an unhappy result The parties agreed to a 20-year sentence. The agreement did not mention a guideline range but did say: "the proposed sentence does not offend the sentencing guidelines, but, because the sentence is sought under Rule 11(c)(1)(C), the parties are not requesting the imposition of a guideline sentence." The probation office, the government and the district court all figured the guideline range to be 210 to 262 months, making the agreed-to sentence within the range. Mr. Price filed a § 3582(c)(2) motion arguing his guideline range had subsequently been decreased to 168 to 210 months The 10th strictly applies Justice Sotomayor's concurrence in Freeman v. U.S., 131 S. Ct. 2685 (2011), the controlling law, according to the 10th. The 10th says Justice Sotomayor's opinion allows for an 11(c)(1)(C) sentence to be reducible pursuant to § 3582(c)(2) only if the plea agreement either (1) calls for a sentence within a range or (2) provides for a specific prison term but "makes clear" the basis for the specific term is the guideline range. Here, the 10th observes, the agreement did not call for a range, but for a specific prison term, and there was no mention of a range. The 10th sees the reference in the agreement to the parties not requesting a guideline sentence as showing no connection to a guideline range. Mr. Price's sentence was based on the agreement, not a guideline range, the 10th concludes. It doesn't matter if the government and the court relied on the guideline calculation. The agreement did not expressly rely on that calculation. So Mr. Price is out of luck.