U.S.A v. Garcia

• Decision Date: 07 May 2010
• Docket Number: No. 08-50458.,08-50458.
• Citation: 606 F.3d 209
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Marco A. GARCIA, also known as Marco Garcia, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

606 F.3d 209

UNITED STATES of America, Plaintiff-Appellee,v.Marco A. GARCIA, also known as Marco Garcia, Defendant-Appellant.

No. 08-50458.

United States Court of Appeals, Fifth Circuit.

May 7, 2010.

Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, for Plaintiff-Appellee.

Marco A. Garcia, Greenville, IL, pro se.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit Judges.

PER CURIAM:

Through an agreement with the government, Marco A. Garcia pleaded guilty to conspiracy to distribute 500 or more grams of cocaine and 50 or more grams of crack, in violation of 21 U.S.C. §§ 841(a)(1) & 846. The district court accepted the plea agreement-which provided for a minimum prison term of 240 months-and, after calculating Garcia's guidelines range, sentenced him to 262 months. After retroactive implementation of the crack sentencing amendments, Garcia moved to reduce his sentence under 18 U.S.C. § 3582(c)(2). The district court granted the motion and changed Garcia's sentence to 240 months, the minimum stipulated to in the plea agreement. Garcia appeals, urging that the district court erred in holding that the plea agreement prevented further reduction. After confirming the district court had jurisdiction to modify Garcia's sentence, we affirm.

I.

In January 2006, a federal grand jury returned an indictment charging Garcia on seven counts of selling large quantities of crack and cocaine. Garcia bargained to plead guilty to count one-conspiracy to distribute at least 500 grams of cocaine and 1,500 grams of crack-in exchange for the government dropping the other six charges. The parties reduced the agreement to writing, with a sentence stipulation pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).¹ Paragraph 19 of the plea agreement stated that “the Defendant and Government agree that the sentence in this case will be at least 240 months.”²

The plea agreement also contemplated the sentencing guidelines, albeit with the 240 month minimum overlay. Paragraph 8 provided: “The parties agree to request the Court to consult with and take into account the United States Sentencing Guidelines and accompanying policy statements (‘the U.S.S.G.’) for the calculation of the Defendant's sentence pursuant to 18 U.S.C. § 3553.” Paragraphs 10 and 15 discussed the possibility that the government would move for a downward departure from the sentencing guidelines. The government in paragraph 17, citing to U.S.S.G. § 3E1.1(b), promised to move for an additional point deduction from Garcia's offense level as a “reward” for his timely plea. Finally, paragraph 19 declared that, besides the 240 month minimum, “[a]ll ... sentencing issues ... will be determined by the Court after the completion of a Presentence Investigation Report.”

At the sentencing hearing on June 8, 2006, the district court adopted the report and found Garcia's total offense level to be 37 and his criminal history category to be one, yielding a sentencing range of 210 to 262 months. The district court “adopt[ed] ... the application of the U.S. Sentencing Guidelines.” However, because it accepted the plea agreement, along with its 240 month minimum, the court ultimately determined the sentencing range to be 240 to 262 months and sentenced Garcia at the highest end, 262 months. In short, the range was bounded on the bottom by the plea agreement and on the top by the guidelines.

“In 2007, the United States Sentencing Commission amended the guidelines. Generally, it reduced the base offense levels for crack cocaine offenses by two, in order to reduce the sentencing disparity between crack and powder cocaine offenses; and it made these guidelines apply retroactively.” ³ Garcia moved for a reduction under 18 U.S.C. § 3582(c)(2), which provides that the district court may reduce a prison term “in 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.” Pursuant to U.S.S.G. § 1B1.10(b)(1), the district court “determine[d] the amended guideline range that would have been applicable to [Garcia] if the amendment[ ] to the guidelines ... had been in effect at the time [he] was sentenced.” That amended range came out to 168 to 210 months. But, in a continuing effort to honor the plea bargain, the district court determined the actual amended range to be 240 to 240 months, the agreed-to minimum sentenced.⁴ The district court granted Garcia's motion and reduced his sentence to 240 months. Garcia appealed, urging that the district court could have gone lower.

II.

a.

The first question is whether the district court had jurisdiction to reduce Garcia's sentence at all.⁵ Congress authorized reductions of this kind only where the court originally set the term of imprisonment “ based on a sentencing range that has subsequently been lowered by the Sentencing Commission.”⁶ We have held in an unpublished opinion that when a defendant receives a Rule 11(e)(1)(C) stipulated sentence, a reduction under § 3582(c)(2) “does not apply.”⁷

Most of the courts of appeals to consider the “based on” issue have come out the same way. When in a plea agreement a defendant and the government look to the sentencing guidelines and stipulate to one of their ranges, the Eighth Circuit has held that § 3582(c)(2) does not apply-because the sentence was based on Rule 11(c)(1)(C) and not “strictly in accordance” with the guidelines.⁸ The Third Circuit has held similarly, that a specific sentence stipulation under Rule 11(c)(1)(C) forecloses a § 3582(c)(2) resentencing,⁹ this over a pointed dissent.¹⁰ The Seventh Circuit has the same general rule, but allows for some flexibility: “In the absence of explicit language in the agreement to the contrary, a sentence imposed pursuant to a Fed.R.Crim.P. 11(c)(1)(C) plea agreement cannot be said to be ‘based on’ the Sentencing Guidelines. An agreement must clearly reflect an intent that the sentence be modified when the Guidelines shift.”¹¹ Outside of the § 3582(c)(2) context, the same court has been rigid, opining that “[a] sentence imposed under a Rule 11(c)(1)(C) plea arises directly from the agreement itself, not from the Guidelines, even though the court can and should consult the Guidelines in deciding whether to accept the plea.”¹² The Second Circuit has held that a defendant who entered into a Rule 11(c)(1)(C) agreement to serve no more than 96 months, and whose guidelines range turned out to be 120 to 150 months, could not qualify for a § 3582(c)(2) reduction, because his 84 month sentence was based not on the guidelines, but on the plea agreement.¹³ The Sixth Circuit takes the hardest line: in a case in which the defendant stipulated to a total offense level of 30, but not to a criminal history category, and the government promised to ask for a sentence on the low end of the applicable guidelines range, the district court's acceptance of the plea foreclosed later application of § 3582(c)(2).¹⁴ The court held that Rule 11(c)(1)(C) “precludes the district court from altering the parties' agreed sentence under 18 U.S.C. § 3582(c). This conclusion applies despite the retroactivity of a subsequent amendment to a relevant guideline utilized to determine the defendant's sentence.”¹⁵

Other circuits have come out differently. The Fourth Circuit, hewing closely to statutory text, held over strong dissent that a Rule 11(c)(1)(C) sentence stipulation did not disqualify defendants from § 3582(c)(2) resentencing, explaining, “a sentence may be both a guidelines-based sentence eligible for treatment under § 3582(c)(2) and a sentence stipulated to by the parties in a plea agreement.”¹⁶ (The court vacated its opinion by granting rehearing en banc and ultimately dismissed the appeal as moot.) And the Tenth Circuit lately has taken a position at the opposite end of the spectrum from the Sixth: in a case in which the Rule 11(c)(1)(C) stipulation specified that the defendant would receive a sentence on the low end of his guidelines range of 168 to 210 months, the circuit court held that the district court could reduce the sentence under § 3582(c)(2).¹⁷ The court explained that § 3582(c)(2) “allows for reductions of sentences which are based in any way on a qualifying range,” and proclaimed to “hold truer to the [statutory] language” than the circuit courts to come out differently.¹⁸ A dissenting judge wanted to follow previous Tenth Circuit law holding that Rule 11 sentence stipulations do not fall under the guidelines.¹⁹

Ultimately, none of these circuits dealt with a stipulated minimum sentence, so Garcia's case is the wrong vehicle with which to enter this demolition derby. Here, we have no reason to pass on a plea with a specific sentence, or a maximum, or a range bounded on both ends by the guidelines. However, the caselaw-rife with inter- and intra-circuit disagreement-does teach that wooden rules will not do. The jurisdictional question is whether the sentence was “based on” the subsequently amended crack-offense guidelines, and answering that question requires that we examine the nuances of both the plea agreement and the sentencing transcript in each particular case.²⁰

Doing so, we conclude the district court sentenced Garcia based on the sentencing guidelines-just as the plea agreement provided. The parties stipulated to a minimum sentencing range irrespective of the guidelines. ²¹ But the agreement allowed that the maximum point on Garcia's range could derive from the guidelines if the high end of the guidelines range exceeded 240 months. It did, and the district court sentenced Garcia to 262 months based on its guidelines calculation. The able district judge expressly said as much: “I adopt ... the application of the U.S. Sentencing Guidelines....” Garcia qualified to move for a reduction.

b.

A § 3582(c)(2) proceeding is not a full resentencing, ²² so Booker and its...