In a rare decision, Tenth concludes 3582(c)(2) movant is eligible for sentence reduction despite Rule 11(c)(1)(C) plea agreement
U.S. v. Jordan, 853 F.3d 1334 (4/18/17) (Kan.) - The 10th finds Mr. Jordan eligible for a sentence reduction under 18 USC § 3582(c)(2)/11(c)(1)(C). The 11(c)(1)(C) agreement called for a sentence within the range of 135 to 168 months based on an offense level of 31. The agreement did not mention what criminal history category Mr. Jordan was in. The agreement said both that the range did not offend the advisory guidelines and that the partes were not requesting the imposition of a guideline sentence. The PSR found the offense level to be 33 because it found a higher amount of cocaine was involved than did the parties, leading to a range of 168 to 210. No one objected to the PSR. At sentencing, the district court accepted the agreement, noted the discrepancy in the range calculations and imposed a 168-month sentence, It pointed out the sentence was the low end of the PSR's range, which it thought was "an important factor." With Guideline Amendment 782, both the parties' and the PSR's offense level decreased by two levels. Mr. Jordan filed a § 3582(c)(2) motion. The district court denied the motion on the ground that the sentence was based on the agreement not on a subsequently reduced guideline range.
Pursuant to 10th precedent, the 10th assesses whether Mr. Jordan's sentence was based on a subsequently-reduced range according to the analysis of Justice Sotomayor's concurrence in Freeman. In answering that question in the affirmative, the 10th fights back a number of problems.
First, it holds it doesn't matter that the agreement did not state Mr. Jordan's criminal history category. The 10th has beaten back many a § 3582(c)(2) claim based on that fact. But here the 10th says the criminal history category was III because that corresponds to the offense level and range the parties agreed to. Importantly, the 10th explains that the agreement in Freeman was not 100% explicit about how the parties' sentence was calculated Justice Sotomayor figured it out with some logic, despite some missing information. Also importantly, the 10th relies to some extent on the parties' representations at the plea hearing and the PSR's calculations indicating what the criminal history category was, i.e, extra-agreement evidence. The 10th uniformly, until now, has dismissed the relevance of such evidence in other Freeman cases.
Second, the 10th says the agreement did not have to spell out the drug quantity attributable to Mr. Jordan. The agreement's factual basis indicated 10 kilograms of cocaine was involved and that corresponded to the ultimate offense level agreed-to, given an upward enhancement for firearm possession and an acceptance-of-responsibility reduction [the enhancement and reduction were apparently not mentioned in the agreement].
Third, the 10th is undisturbed by the statement in the agreement that the parties were not requesting the imposition of a guidelines sentence. Reviewing the agreement as a whole, the 10th concludes the reference to a guideline rage renders that statement ambiguous. Ambiguities must be construed against the government. The 10th notes prior 10th decisions relying on that very disclaimer to deny relief. This case is different, the 10th says, because the link between the stipulated sentence and the Guidelines in those cases was somewhat more tenuous than in this case.
Fourth, the 10th sweeps away the problem that the parties agreed to one guideline range and the district court found another. The 10th disagrees that the range upon which a defendant's sentence is "based" under § 3582(c)(2) has to be the same as the range "applicable to" the offense under § 1B1.10. The 10th finds inapposite its prior decision in U.S. v. White, 765 F.3d 1240 (2014), in which the 10th held § 3582(c)(2)'s "based on" language referred to the correctly calculated range. That was a non-11(c)(1)(C) case the 10th points out. In an 11(c)(1)(C) case, under Justice Sotomayor's Freeman concurrence, the range that matters is the one the parties agreed to, even if it differs from the district court's range.
Fifth, what about the fact that § 1B1.10's "applicable" range might be the district court's range and § 1B1.10 prohibits considering departures from that range? The 10th says it doesn't need to address that question. Mr. Jordan only asked for the bottom end of the court's range, 135 months.
Sixth, it doesn't matter, the 10th rules, that the new "applicable" range is identical to the old parties' guideline range. That fact might be relevant to what sentence the district court ultimately imposes, but it does not bear on the court's jurisdiction.
Pursuant to 10th precedent, the 10th assesses whether Mr. Jordan's sentence was based on a subsequently-reduced range according to the analysis of Justice Sotomayor's concurrence in Freeman. In answering that question in the affirmative, the 10th fights back a number of problems.
First, it holds it doesn't matter that the agreement did not state Mr. Jordan's criminal history category. The 10th has beaten back many a § 3582(c)(2) claim based on that fact. But here the 10th says the criminal history category was III because that corresponds to the offense level and range the parties agreed to. Importantly, the 10th explains that the agreement in Freeman was not 100% explicit about how the parties' sentence was calculated Justice Sotomayor figured it out with some logic, despite some missing information. Also importantly, the 10th relies to some extent on the parties' representations at the plea hearing and the PSR's calculations indicating what the criminal history category was, i.e, extra-agreement evidence. The 10th uniformly, until now, has dismissed the relevance of such evidence in other Freeman cases.
Second, the 10th says the agreement did not have to spell out the drug quantity attributable to Mr. Jordan. The agreement's factual basis indicated 10 kilograms of cocaine was involved and that corresponded to the ultimate offense level agreed-to, given an upward enhancement for firearm possession and an acceptance-of-responsibility reduction [the enhancement and reduction were apparently not mentioned in the agreement].
Third, the 10th is undisturbed by the statement in the agreement that the parties were not requesting the imposition of a guidelines sentence. Reviewing the agreement as a whole, the 10th concludes the reference to a guideline rage renders that statement ambiguous. Ambiguities must be construed against the government. The 10th notes prior 10th decisions relying on that very disclaimer to deny relief. This case is different, the 10th says, because the link between the stipulated sentence and the Guidelines in those cases was somewhat more tenuous than in this case.
Fourth, the 10th sweeps away the problem that the parties agreed to one guideline range and the district court found another. The 10th disagrees that the range upon which a defendant's sentence is "based" under § 3582(c)(2) has to be the same as the range "applicable to" the offense under § 1B1.10. The 10th finds inapposite its prior decision in U.S. v. White, 765 F.3d 1240 (2014), in which the 10th held § 3582(c)(2)'s "based on" language referred to the correctly calculated range. That was a non-11(c)(1)(C) case the 10th points out. In an 11(c)(1)(C) case, under Justice Sotomayor's Freeman concurrence, the range that matters is the one the parties agreed to, even if it differs from the district court's range.
Fifth, what about the fact that § 1B1.10's "applicable" range might be the district court's range and § 1B1.10 prohibits considering departures from that range? The 10th says it doesn't need to address that question. Mr. Jordan only asked for the bottom end of the court's range, 135 months.
Sixth, it doesn't matter, the 10th rules, that the new "applicable" range is identical to the old parties' guideline range. That fact might be relevant to what sentence the district court ultimately imposes, but it does not bear on the court's jurisdiction.
posted by Anonymous at 10:22 AM
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