In re Sealed, 12–3012.

• Decision Date: 02 July 2013
• Docket Number: No. 12–3012.,12–3012.
• Citation: In re Sealed, 722 F.3d 361 (D.C. Cir. 2013)
• Parties: In re SEALED CASE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

722 F.3d 361

In re SEALED CASE.

No. 12–3012.

United States Court of Appeals, District of Columbia Circuit.

Argued April 18, 2013.

Decided July 2, 2013.

Appeal from the United States District Court for the District of Columbia(No. 1:99–cr–00265–01).

Before: GARLAND, Chief Judge, and ROGERS and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

Recent amendments to the United States Sentencing Guidelines provisions that apply to crack cocaine convictions have triggered a wave of motions under 18 U.S.C. § 3582(c)(2).That statute allows prisoners whose sentences were based on guideline ranges that have since been lowered to petition the district courts for earlier release.SeeDillon v. United States,560 U.S. 817, 130 S.Ct. 2683, 2690, 177 L.Ed.2d 271(2010).This appeal asks whether a crack offender sentenced below an otherwise applicable statutory mandatory minimum because he provided substantial assistance to law enforcement is eligible for a sentence reduction under § 3582(c)(2).We hold that he is.

I

In February 2000, the appellant pled guilty to possession with intent to distribute fifty grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii).Because he had been convicted of a prior felony drug offense, he faced a statutory mandatory minimum prison term of twenty years.21 U.S.C. § 841(b)(1)(A)(2006)(amended 2011).

The appellant subsequently provided substantial assistance in the prosecution of another case, and in return, the government filed a motion under 18 U.S.C. § 3553(e)and§ 5K1.1 of the Guidelines, authorizing the district court to set his sentence below the mandatory minimum and the guideline range.See18 U.S.C. § 3553(e)(“Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.”);U.S. Sentencing Guidelines Manual§ 5K1.1[hereinafter U.S.S.G.](“Upon motion of the government stating that the defendant has provided substantial assistance ... the court may depart from the guidelines.”).

At sentencing on May 12, 2000, the district court granted the government's substantial assistance motion and heard argument on the nature, scope, and timeliness of the appellant's assistance.The court then sentenced him to 135 months' imprisonment, explaining:

The guideline range, if there had not been the mandatory minimum, would have been the 151 to 188 [months] based on the offense level and the category, which is in category 6, an offense level 29.

I will do somewhat of a reduction, not only from the 20 years, looking to what he would have had [with] the mandatory minimums, and then some reduction from what he would have gotten without the mandatory minimums, and I would do a sentence of 135 months, which I think is fair in the context of the record and what's involved in the particular case.

Tr.5/12/2000, at 32–33.Because the appellant did not begin serving this sentence until he had served out a separate sentence handed down by the D.C. Superior Court, he remains in prison today.

In 2007, the United States Sentencing Commission adopted Amendment 706, reducing the disparity between sentences for powder and crack cocaine offenses by lowering the offense levels associated with given quantities of crack.U.S.S.G. app. C, amend. 706(Nov. 1, 2007).The Commission subsequently made Amendment 706 retroactive, allowing prisoners sentenced before its passage to petition for earlier release.Id.amend. 713(Mar. 3, 2008).On June 24, 2009, the appellant sought to take advantage of the amendment and moved for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), which provides:

[I]n 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 ... 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.

18 U.S.C. § 3582(c)(2).

While the appellant's motion was pending, the Commission adopted Amendment 750, which further reduced offense levels for crack crimes.U.S.S.G. supp. app. C, amend. 750(effective Nov. 1, 2011).As with Amendment 706, the Commission made Amendment 750 retroactive.Id.amend. 759(effective Nov. 1, 2011).On October 4, 2011, the appellant filed a second § 3582(c)(2) motion, which incorporated and subsumed his first, seeking the benefit of Amendment 750.Under that amendment, his offense level has been lowered from 29 to 23, yielding an amended guideline range of 92 to 115 months.The appellant therefore requested that the district court reduce his sentence to 92 months, the low end of the amended guideline range.Reducing his sentence to 92 months would result in his immediate release from prison.

The district court denied the appellant's motion, holding that the policy statement found at § 1B1.10 of the Guidelines Manual governing § 3582(c)(2) proceedings barred a prisoner who had been subject to a mandatory minimum from taking advantage of a retroactive amendment that lowered his guideline range.Tr.1/18/2012, at 6–8.

The appellant argues the district court erred and that he is eligible for a sentence reduction.We have jurisdiction over his appeal under 18 U.S.C. § 3742(a)(2)and28U.S.C. § 1291.Because the issues involved present questions of law only, our review is de novo.SeeUnited States v. Berry,618 F.3d 13, 16(D.C.Cir.2010).

II

A prisoner seeking a sentence reduction under § 3582(c)(2) must show that his sentence was “based on” a guideline range that has since been lowered by the Sentencing Commission, and that the reduction he seeks comports with U.S.S.G. § 1B1.10. 18 U.S.C. § 3582(c)(2);see alsoBerry,618 F.3d at 16.

A

In United States v. Epps,this court held that the plurality opinion in Freeman v. United States,––– U.S. ––––, 131 S.Ct. 2685, 180 L.Ed.2d 519(2011), guides our determination whether a sentence was “based on” a subsequently-lowered range.707 F.3d 337, 351(D.C.Cir.2013).The prisoner in Freeman sought a reduction in a sentence that was a condition of a plea agreement he had entered pursuant to Fed.R.Crim.P. 11(c)(1)(C).A four-Justice plurality took a broad view of the matter and reasoned that a sentence is “based on” a guideline range “to whatever extent” that range “was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement.”Freeman,131 S.Ct. at 2692–93(plurality opinion).Using that approach, a sentence that emerges from a Rule 11(c)(1)(C) plea agreement is always eligible for a subsequent reduction because “[t]he Guidelines require the district judge to give due consideration to the relevant sentencing range, even if the defendant and prosecutor recommend a specific sentence as a condition of the guilty plea.”Id. at 2692.

Justice Sotomayor concurred in the plurality's judgment but took a narrower view of the eligibility of Rule 11(c)(1)(C) sentences for reductions.She argued that the “term of imprisonment imposed by the sentencing judge [in the Rule 11(c)(1)(C) context] is dictated by the terms of the agreement entered into by the parties, not the judge's Guidelines calculation.”Id. at 2696(Sotomayor, J., concurring).She would have held that a sentence imposed pursuant to a Rule 11(c)(1)(C) agreement is eligible for a reduction only where the agreement “expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment.”Id. at 2695.

The divergence between the approaches of the plurality and Justice Sotomayor left the Court without a majority opinion.The rule in Marks v. United States provides that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260(1977)(citation and internal quotation marks omitted).Every other circuit to consider the meaning of § 3582(c)(2)'s “based on” requirement has felt bound by Justice Sotomayor's opinion.SeeUnited States v. Duvall,705 F.3d 479, 483 n. 1(D.C.Cir.2013)(listing cases).But we read Marks differently and announced in Epps that we would follow the plurality's view.Under our precedent in King v. Palmer,950 F.2d 771(D.C.Cir.1991)(en banc), the rule in Marks applies only where the narrowest opinion in a splintered decision “ ‘represent [s] a common denominator of the Court's reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment.’ ”Epps,707 F.3d at 348(quotingKing,950 F.2d at 781)(emphasis inEpps ).No position in Freeman garnered the support of a majority of the court, binding us only to the result, “namely that § 3582(c)(2) relief is not invariably barred when a sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement.”Id. at 351.We adopted the plurality's broader view, persuaded that it would reduce the disparities in sentencing that the statute was designed to correct.Id. at 351–52.

Under Epps, it is clear that the appellant's sentence was “based on” a subsequently-lowered range.Crucially, the district court explained during § 3582(c)(2) proceedings that, as a result of granting the government's § 3553(e) motion, the appellant's guideline range was the basis for his sentence because his mandatory minimum “no longer applied.”SeeTr.1/18/2012, at 5.At sentencing, the court announced that it would “do somewhat of a reduction, not only from”...