U.S. v. Dews, 08-6458.

• Decision Date: 30 December 2008
• Docket Number: No. 08-6476.,No. 08-6458.,08-6458.,08-6476.
• Citation: 551 F.3d 204
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darrell DEWS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Brian Allen, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

551 F.3d 204

UNITED STATES of America, Plaintiff-Appellee, v. Darrell DEWS, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Brian Allen, Defendant-Appellant.

No. 08-6458.

No. 08-6476.

United States Court of Appeals, Fourth Circuit.

Argued September 24, 2008.

Decided December 30, 2008.

ARGUED: Sapna Mirchandani, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellants. Barbara Slaymaker Sale, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland; Sherri Keene, Staff Attorney, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellants. Rod J. Rosenstein, United States Attorney, Mythili Raman, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before GREGORY and AGEE, Circuit Judges, and T.S. ELLIS, III, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Senior Judge ELLIS wrote the opinion, in which Judge GREGORY joined. Judge AGEE wrote a dissenting opinion.

ELLIS, Senior District Judge:

Appellants, Darrell Dews and Brian Allen, pled guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine base and one count of money laundering pursuant to plea agreements entered into under Rule 11(e)(1)(C), Fed.R.Crim.P.¹ Both plea agreements included an agreement that a custody sentence of 168 months would be the appropriate disposition of the case. Thereafter, a probation officer prepared presentence reports calculating the appropriate guidelines sentencing range. At each sentencing, the district judge considered the presentence investigation report, carefully ascertained the appropriate sentencing guidelines range, and then elected to impose a sentence of 168 months, the bottom of the applicable sentencing guidelines range and the sentence agreed upon in the Rule 11(e)(1)(C) plea agreements. Almost ten years later, the Sentencing Commission retroactively amended the guideline that applies to crack cocaine offenses. Based on the amendment, appellants moved for a reduction in sentence, which motions the district court denied on the ground that sentences imposed following a plea under Rule 11(e)(1)(C) are not eligible for reduction under 18 U.S.C. § 3582(c)(2). For the reasons that follow, we disagree and accordingly reverse and remand.

I.

A.

On April 14, 1998, Dews entered into a plea agreement with the government in which he agreed to plead guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine base and one count of money laundering. In the plea agreement, Dews and the government agreed pursuant to Rule 11(e)(1)(C), Fed.R.Crim.P., that the appropriate disposition of the case was a term of imprisonment of 168 months followed by five years of supervised release. The plea agreement explicitly stated, however, that "[i]n the federal system, sentence is imposed by the Court, and the Court is under no obligation to accept this plea agreement." (J.A. 38.) Both sides agreed that "[i]n the event that the Court rejects this plea agreement, either party may elect to declare the agreement null and void." (J.A. 37.)

Both sides also accepted that "a sentencing guideline range for this case will be determined by the Court pursuant to the Sentencing Reform Act of 1984" and that "the Court will impose a sentence within that guideline range" unless it found a basis for departure. (J.A. 35.)² Because of the importance of the sentencing guidelines range,³ the parties stipulated to a number of guidelines factors, agreeing, for example, "that at least 1½ kilograms of cocaine base were reasonably foreseeable to Mr. Dews and within the scope of his agreement and involvement, resulting in a base offense level of 38 pursuant to Sentencing Guideline [sic] §§ 2D1.1 (Cocaine distribution and conspiracy) and 1B1.3 (Relevant Conduct)." (J.A. 35-36.) The parties also agreed that the drug trafficking and money laundering offenses should be treated as closely related counts pursuant to U.S.S.G. § 3D1.1 and that a three-level downward adjustment would be appropriate to reflect Dews's timely plea and his acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. There was no agreement with respect to Dews's criminal history category.⁴

Although the parties stipulated to several sentencing factors, they understood that the district judge would not rely exclusively on the parties' stipulation as to the sentencing factors and the sentence, but would also consider the results of the probation officer's presentence report and independently calculate the sentencing guidelines range. The plea agreement stated that Dews could not withdraw his plea simply because the district judge might ultimately determine sentencing factors different from those anticipated by the parties. Rather, the plea agreement made clear that Dews could withdraw his plea only in the event that the district judge imposed a sentence other than 168 months. Alternatively, if the district judge imposed a greater sentence, Dews could choose not to withdraw his plea, but instead to appeal the district judge's guidelines range calculation.

On April 14, 1998, the district judge reviewed the terms of the plea agreement with the parties and accepted Dews's plea of guilty. Yet, the district judge deferred a decision on whether to accept the plea agreement, indicating that it would be necessary first to review the presentence report to determine whether the stipulated sentence was appropriate under the guidelines. During the plea hearing, the district judge noted the maximum penalty to which Dews could be sentenced, but stressed that "the actual sentence will be determined by reference to the sentencing guidelines." (J.A. 87.) Dews, the government, and the district judge clearly anticipated that the district judge would calculate the applicable guidelines range, determine whether the proposed term of imprisonment was within the range, and only then decide whether that sentence was appropriate.

A probation officer subsequently prepared a presentence report. Like the plea agreement, the presentence report stated that, under U.S.S.G. § 2D1.1, the base offense level for Dews's crack offense was 38. With a three-point deduction for acceptance of responsibility, the probation officer calculated an adjusted total offense level of 35.⁵ The probation officer also confirmed that Dews's criminal history category was I. Based on a total offense level of 35 and a criminal history category of I, the probation officer determined the guidelines imprisonment range was 168 to 210 months. The probation officer therefore concluded that the stipulated sentence was within the applicable guidelines range. At the sentencing hearing on May 29, 1998, neither Dews nor the government challenged any findings in the presentence report. Thereafter, the district judge sentenced Dews to 168 months of imprisonment, stating that "I will accept the recommendation in the plea agreement. It's within the guidelines. It is the lowest sentence available under those guidelines." (J.A. 118.)

B.

The facts relating to Allen's plea and sentencing are essentially similar to those in Dews's case. On April 10, 1998, Allen entered into a plea agreement pursuant to Rule 11(e)(1)(C) in which he agreed to plead guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine base and one count of money laundering. His plea agreement explicitly acknowledged that the district judge would determine the sentencing guidelines range and then impose a sentence within that range unless she found a basis for departure. The parties then stipulated to certain sentencing guidelines factors, including specifically that "at least 500 grams but not more than 1½ kilograms of cocaine base were reasonably foreseeable to Mr. Allen and within the scope of his agreement and involvement, resulting in a base offense level of 36 pursuant to Sentencing Guideline [sic] §§ 2D1.1 (Cocaine distribution and conspiracy) and 1B1.3 (Relevant Conduct)." (J.A. 28-29.) The parties also agreed that the drug trafficking and money laundering offenses were closely related counts under U.S.S.G. § 3D1.1 and that Allen should receive a three-level downward adjustment under U.S.S.G. § 3E1.1 to reflect his acceptance of responsibility and the timeliness of his plea. There was no agreement with respect to Allen's criminal history category, but the parties stated in the plea agreement that they believed it was III.

Based on these factors, Allen and the government agreed, pursuant to Rule 11(e)(1)(C), that the appropriate disposition of the case was for Allen to receive a term of imprisonment of 168 months in the event his criminal history category proved to be III or 188 months if his criminal history category turned out to be IV, with either term to be followed by five years of supervised release.⁶ The agreement stressed, however, that "[i]n the federal system, sentence is imposed by the Court, [and] the Court is under no obligation to accept this plea agreement." (J.A. 30.) The agreement made clear that if the Court imposed a different sentence, "either party may elect to declare the agreement null and void." (J.A. 30.)

On April 10, 1998, the district judge conducted a plea hearing in Allen's case in which she reviewed the terms of the plea agreement with the parties. Although the district judge found a factual basis for the plea, she made clear that she would not accept the Rule 11(e)(1)(C) plea agreement until she had reviewed the presentence report, independently calculated the guidelines range, and then determined whether one of the agreed-upon sentences was appropriate "depending on what the guideline factors are." (J.A. 72.)

A probation officer subsequently prepared a presentence report...