United States v. Davis

• Decision Date: 13 June 2016
• Docket Number: No. 13–30133,13–30133
• Parties: United States of America, Plaintiff–Appellee, v. Tyrone Davis, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

825 F.3d 1014

United States of America, Plaintiff–Appellee

v.Tyrone Davis, Defendant–Appellant.

No. 13–30133

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc September 10, 2015

Filed June 13, 2016

Nathaniel Garrett (argued), San Francisco, California; Anna M. Tolin, Kirkland, Washington, for Defendant–Appellant.

Michael S. Morgan (argued), Assistant United States Attorney; Jenny A. Durkan, United States Attorney; United States Attorney's Office, Western District of Washington, Seattle, Washington; for Plaintiff–Appellee.

Nancy L. Talner, ACLU–WA Foundation, Seattle, Washington; Michael Filipovic, Federal Public Defender for the Western District of Washington, Seattle, Washington; Theresa M. DeMonte and Andrew R.W. Hughes, Calfo Harrigan Leyh & Eakes LLP, Seattle, Washington; Suzanne Lee Elliott, Co–Chair, WACDL Amicus Committee, Seattle, Washington; for Amici Curiae ACLU–WA, Federal Public Defender for the Western District of Washington, and WACDL.

Before: Sidney R. Thomas, Chief Judge and William A. Fletcher, Richard A. Paez, Richard C. Tallman, Johnnie B. Rawlinson, Consuelo M. Callahan, Carlos T. Bea, Morgan Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz and John B. Owens, Circuit Judges.

Concurrence by Judge Christen

Dissent by Judge Bea

OPINION

PAEZ

, Circuit Judge:

In this case, we must consider how to interpret the Supreme Court's fractured opinion in Freeman v. United States

, which addressed whether a defendant sentenced pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). 564 U.S. 522, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). Although a majority of the Court held that in such cases defendants remain eligible for relief under § 3582(c)(2), the plurality and concurring opinions did not agree on a single rationale. Citing Marks v. United States , 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), which provides guidance on interpreting fractured Supreme Court opinions, we held in United States v. Austin that Justice Sotomayor's concurring opinion was controlling, as it represented the narrowest grounds on which a majority of the justices agreed. See 676 F.3d 924 (9th Cir. 2012). Applying Justice Sotomayor's approach, the district court denied Appellant Tyrone Davis's (“Davis”) motion for a sentence reduction, ruling that his sentence was based on a Rule 11(c)(1)(C) plea agreement and not a “sentencing range that has subsequently been lowered by the Sentencing Commission” as required by § 3582(c)(2).

Revisiting Freeman

and our application of Marks to fractured Supreme Court opinions, we hold that where we can identify no rationale common to a majority of the Justices, we are bound only by the result. In so holding, we join the D.C. Circuit, which concluded that Freeman lacks a controlling opinion “because the plurality and concurring opinions do not share common reasoning whereby one analysis is a logical subset of the other.” United States v. Epps , 707 F.3d 337, 350 (D.C. Cir. 2013) (internal quotation marks and citation omitted). Bound only by Free man 's

specific result, the D.C. Circuit adopted the plurality opinion's approach, which holds that “[e]ven when a defendant enters into an 11(c)(1)(C) agreement, the judge's decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief.” Freeman , 564 U.S. at 534, 131 S.Ct. 2685 (plurality opinion). We also adopt this approach and overrule Austin. Applying the plurality approach, we conclude that Davis is eligible to seek a sentence reduction under § 3582(c)(2). We therefore reverse the district court's denial of Davis's motion and remand for a determination of whether Davis should receive a reduction in his sentence.

I.

A.

In 2005, pursuant to a plea agreement entered into under Rule 11(c)(1)(C)

, Davis pled guilty to a series of counts related to distribution of cocaine base, or “crack cocaine.”¹ In his plea agreement, Davis admitted his offense conduct involved at least 170.5 grams of crack cocaine. Given the quantity of crack cocaine for which Davis accepted direct responsibility, the parties agreed that Davis's base offense level was 34 under United States Sentencing Guidelines (“USSG”) § 2D1.1(c)(3) (Nov. 2005) and that the appropriate prison sentence would be eighteen years. The plea agreement acknowledged that under Rule 11(c)(1)(C), the district court had discretion to accept or reject the proposed agreement and recommended sentence. If the district court accepted the agreement, then under Rule 11(c)(1)(C) the recommended sentence would be binding on the court. On the other hand, if the court rejected the recommended sentence, the parties could withdraw from the agreement.

At sentencing in 2006, the district court calculated Davis's total offense level as 37 with a Criminal History Category II, resulting in a Guidelines range of 235 to 293 months. The court accepted the Rule 11(c)(1)(C)

plea agreement and imposed the recommended eighteen-year (216–month) sentence. We reversed and remanded, holding that the district court had erred in its determination of Davis's criminal history category and in its imposition of an “organizer or leader” enhancement. United States v. Davis , 312 Fed.Appx. 909, 911–14 (9th Cir. 2009). At Davis's resentencing in 2009, the district court calculated his total offense level as 36 with a Criminal History Category I, resulting in a Guidelines range of 188 to 235 months. The court reimposed the plea agreement's recommended eighteen-year (216–month) sentence, finding it “fair and reasonable” under the Guidelines. We affirmed. United States v. Davis , 389 Fed.Appx. 616 (9th Cir. 2010).

B.

When Davis pled guilty, the Guidelines punished defendants far more harshly for crack cocaine offenses than for powder cocaine offenses. A defendant responsible for one gram of crack cocaine faced the same Guidelines sentence as a defendant responsible for one hundred grams of powder cocaine. This 100:1 ratio was roundly criticized for its racially disparate effects. See, e.g. , Kimbrough v. United States , 552 U.S. 85, 98, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)

(citing the Sentencing Commission's finding that the “severe sentences required by the 100–to–1 ratio are imposed primarily upon black offenders”) (internal quotation marks omitted). As a 2006 survey by the Substance Abuse and Mental Health Services Administration showed, whites formed the biggest group of crack cocaine users in absolute numbers,² but African Americans were disproportionately arrested and convicted for crack cocaine offenses. A 2007 report by the Sentencing Commission documented that when Davis was sentenced in 2006, 81.8% of federal crack cocaine offenders were African American. U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy at 15 (2007) (“2007 Report”). Moreover, in a series of reports to Congress, the Sentencing Commission warned that the “data no longer support” the assumption that crack cocaine is more harmful than powder cocaine. Kimbrough , 552 U.S. at 97–98, 128 S.Ct. 558 (quoting U.S. Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy at 96 (2002); also citing the 2007 Report); see also

United States v. Baptist , 646 F.3d 1225, 1226, 1228 n. 1 (9th Cir. 2011) (per curiam). Citing the “urgent and compelling” problems raised by the overly punitive crack sentencing scheme, the Sentencing Commission repeatedly called on Congress to reduce the 100:1 ratio. See, e.g. , 2007 Report at 8–9. Federal judges and Department of Justice officials likewise joined the chorus of voices demanding reform. See, e.g. , United States v. Then , 56 F.3d 464, 467 (2d Cir. 1995) (Calabresi, J., concurring) (“The unfavorable and disproportionate impact that the 100–to–1 crack/cocaine sentencing ratio has on members of minority groups is deeply troubling.”); Remarks of Attorney General Eric Holder, D.C. Court of Appeals Judicial Conference (June 19, 2009), available at http://www.justice.gov/opa/speech/attorney-general-eric-holder-dc-court-appeals-judicial-conference (“It is the view of this Administration that the 100–to–1 crack-powder sentencing ratio is simply wrong. It is plainly unjust to hand down wildly disparate prison sentences for materially similar crimes.”).

In 2010, Congress responded by passing the Fair Sentencing Act, Pub. L. No. 111–220, 124 Stat. 2372 (2010)

, which dramatically reduced the sentencing ratio to 18:1. The Fair Sentencing Act also gave the Sentencing Commission “emergency authority” to “make such conforming amendments to the Federal sentencing guidelines.” Id. § 8. The Sentencing Commission responded by issuing amended Guidelines reflecting the new 18:1 ratio³ and made the changes retroactive⁴ for all defendants who have “been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

C.

In 2012, Davis filed a pro se motion under § 3582(c)(2)

seeking a retroactive reduction of his sentence in light of the amended Guidelines.⁵ Before the Fair Sentencing Act, the stipulated amount of 170.5 grams of crack cocaine in Davis's Rule 11(c)(1)(C) plea agreement resulted in a base offense level of 34. After the dramatic reduction in the sentencing ratio, that same amount yielded a base offense level of 28. USSG § 2D1.1(c)(6) (2011). Davis argued that he was eligible for a sentence modification under § 3582(c)(2) because his sentence was “based on” the Guidelines.

The district court denied the motion, holding that it lacked jurisdiction to modify Davis's sentence because it was “based on” the Rule 11(c)(1)(C)

plea agreement, not the Guidelines. In so ruling, the district court concluded that it was bound by Justice Sotomayor's concurring opinion in Freeman. Davis appealed for a third time....