United States v. Austin

• Decision Date: 18 April 2012
• Docket Number: No. 10–10001.,10–10001.
• Citation: 12 Cal. Daily Op. Serv. 4231,676 F.3d 924,2012 Daily Journal D.A.R. 4919
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Lorenzo AUSTIN, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 4231

2012 Daily Journal D.A.R. 4919

676 F.3d 924

UNITED STATES of America, Plaintiff–Appellant,

v.Lorenzo AUSTIN, Defendant–Appellee.

No. 10–10001.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 2012.Filed April 18, 2012.

Benjamin B. Wagner, United States Attorney, Samuel Wong, Assistant United States Attorney, Sacramento, CA, for the plaintiff-appellant.

Daniel J. Broderick, Federal Defender, David M. Porter, Assistant Federal Defender, Sacramento, CA, for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior District Judge, Presiding. D.C. No. 2:05–cr–00269–LKK–EFB–1.

Before: J. CLIFFORD WALLACE, DOROTHY W. NELSON, and CARLOS T. BEA, Circuit Judges.

OPINION

BEA, Circuit Judge:

Lorenzo Austin was sentenced to a seventeen-year prison term pursuant to a plea agreement. Two years later, Austin filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), which the district court granted. While this case was pending, the United States Supreme Court decided Freeman v. United States, ––– U.S. ––––, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). We conclude that Justice Sotomayor's concurrence in Freeman controls this case because Austin's plea agreement was a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement (“(C) agreement”). Applying her opinion, we hold that the district court lacked jurisdiction to reduce Austin's sentence because the imposed seventeen-year sentence was “based on” the parties' plea agreement and not on “a sentencing range that has subsequently been lowered by the Sentencing Commission.” § 3582(c)(2); see Freeman, 131 S.Ct. at 2697–98 (Sotomayor, J., concurring).

I.

In 2005, Austin was charged by indictment with possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i); and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The government also filed an information charging Austin of having been previously convicted of a felony drug offense. Austin entered into a written plea agreement signed by Austin and the attorneys representing both sides. In the agreement, Austin agreed to plead guilty to violating § 841(a)(1) (drug possession with intent to distribute) and § 924(c)(1)(A)(i) (firearm possession in furtherance of a drug trafficking crime). In exchange, the government agreed to dismiss the § 922(g)(1) (felon in possession of firearm) charge and to move to strike the information. The plea agreement further stipulated that both parties agreed to recommend a seventeen-year sentence to the district judge. It also provided that it would be “null and void” if the court did not accept Austin's guilty pleas or failed to sentence Austin to the agreed-to seventeen-year prison term. On January 23, 2007, the district court entered judgment pursuant to the plea agreement and sentenced Austin to the agreed-to seventeen-year prison term.

On January 27, 2009, Austin filed a motion with the district court to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2); the government opposed the motion. The district court granted the motion holding that Austin's sentence was “based on” a sentencing range that had been subsequently lowered by the Sentencing Commission. The district court reduced Austin's sentence from seventeen years to fifteen years. The government appealed the district court's order granting Austin's § 3582(c)(2) motion. We reverse.

II.

“We review de novo whether a district court has jurisdiction to resentence a defendant under 18 U.S.C. § 3582[ (c)(2)].” United States v. Leniear, 574 F.3d 668, 672 (9th Cir.2009) (citation omitted). Once jurisdiction is established, however, the district court's decision whether to reduce a sentence under § 3582(c)(2) is reviewed for abuse of discretion. United States v. Colson, 573 F.3d 915, 916 (9th Cir.2009).

III.

In general, federal courts lack jurisdiction to “modify a term of imprisonment once it has been imposed.” § 3582(c). However, § 3582(c)(2) provides a narrow exception:

[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....

§ 3582(c)(2) (emphasis added).

In a fragmented opinion, the United States Supreme Court recently addressed the application of § 3582(c)(2) to sentences imposed pursuant to a (C) agreement. The issue before the Court was whether a sentence imposed pursuant to a (C) agreement can be nevertheless “based on” a sentencing range within the meaning of § 3582(c)(2).¹ If not, then any sentence imposed pursuant to such an agreement would be ineligible for a § 3582(c)(2) sentence reduction.

This issue arises because of the binding nature of (C) agreements and their corresponding procedural requirements. (C) agreements are one of the three types of plea agreements specified by Rule 11(c)(1).² Under a (C) agreement, if the defendant pleads guilty, the government may “agree that a specific sentence or sentencing range is the appropriate disposition of the case,” and “such a recommendation or request binds the court once the court accepts the plea agreement.” Fed.R.Crim.P. 11(c)(1)(C). Additionally, a court considering a (C) agreement may only “accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.” Rule 11(c)(3)(A). If the court accepts the agreement, “the agreed disposition will be included in the judgment.” Rule 11(c)(4). If the court rejects it, the defendant must be advised that “the court is not required to follow the plea agreement” and must be given “an opportunity to withdraw the plea.” Rule 11(c)(5)(B).

In Freeman, a four-justice plurality and Justice Sotomayor, concurring in the judgment, concluded that a sentence imposed pursuant to a (C) agreement does not preclude eligibility for § 3582(c)(2) relief. Freeman, 131 S.Ct. at 2693 (plurality opinion); id. at 2695 (Sotomayor, J., concurring). Justice Sotomayor's concurrence is the controlling opinion because it reached this conclusion on the “narrowest grounds.” See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). ³

Justice Sotomayor reasoned that the binding nature of a (C) agreement makes the agreement itself the “foundation for the term of imprisonment to which the defendant is sentenced.” Freeman, 131 S.Ct. at 2696 (Sotomayor, J., concurring). Accordingly, the term of imprisonment imposed pursuant to a (C) agreement is “dictated by the terms of the agreement entered into by the parties, not the judge's [Sentencing] Guidelines calculation.” Id. Thus, she concluded that “the term of imprisonment ... is, for purposes of § 3582(c)(2), ‘based on’ the agreement itself,” and “the mere fact that the parties ... may have considered the Guidelines in the course of their negotiations does not empower the court under § 3582(c)(2) to reduce the term of imprisonment they ultimately agreed upon.” Id. at 2696–97. In general, this would bar a defendant whose sentence was imposed pursuant to a (C) agreement from seeking a sentence reduction under § 3582(c)(2). But Justice Sotomayor carved out two exceptions where a sentence imposed pursuant to a (C) agreement is nevertheless “based on” a Sentencing Guidelines range. Id. at 2697–98.

The first exception is when a (C) agreement itself “call[s] for the defendant to be sentenced within a particular Guidelines sentencing range,” which the court then accepts. Id. at 2697. This exception does not apply here because Austin's plea agreement contained a specific term and makes no mention of a particular sentencing range.

The second exception, which Austin argues is applicable here, provides:

[A] plea agreement might provide for a specific term of imprisonment—such as a number of months—but also make clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty. As long as that sentencing range is evident from the agreement itself, for purposes of § 3582(c)(2) the term of imprisonment imposed by the court in accordance with that agreement is “based on” that range. Therefore, when a (C) agreement expressly uses a Guidelines sentencing range to establish the term of imprisonment, and that range is subsequently lowered by the Commission, the defendant is eligible for sentence reduction under § 3582(c)(2).

Id. at 2697–98 (emphasis added).

Application of this standard in Freeman itself is illustrative. The plea agreement in Freeman stated that “Freeman ‘agrees to have his sentence determined pursuant to the Sentencing Guidelines,’ ... and that 106 months is the total term of imprisonment to be imposed.” Id. at 2699. The agreement anticipated that Freeman would face 60 months for his guilty plea to possessing a firearm in furtherance of a drug-trafficking crime under 18 U.S.C. § 924(c)(1)(A), which was the mandatory minimum sentence and was to be served consecutively to any other sentence imposed. Id. The agreement also “set [ ] Freeman's offense level at 19, as determined by the quantity of drugs and his acceptance of responsibility, and state[d] that the parties anticipate a criminal history category of IV.” Id. Justice Sotomayor then applied the Sentencing Guidelines to this information to produce a sentencing range of 46 to 57 months for Freeman's non-firearm crimes, including possessing with intent to distribute cocaine base. Id. From this result, she concluded that it was “evident that Freeman's agreement employed the...