United States v. Pleasant

• Citation: 704 F.3d 808
• Decision Date: 02 January 2013
• Docket Number: No. 12–10213.,12–10213.
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Robert Terrell PLEASANT, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

704 F.3d 808

UNITED STATES of America, Plaintiff–Appellant,

v.Robert Terrell PLEASANT, Defendant–Appellee.

No. 12–10213.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 7, 2012.

Filed Jan. 2, 2013.

Merry Jean Chan, Assistant United States Attorney, San Francisco, CA, for Plaintiff–Appellant.

Rita Bosworth, Assistant Federal Public Defender, San Francisco, CA, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of California, Susan Illston, District Judge, Presiding. D.C. No. 3:08–cr–00771–MHP–1.

Before: MICHAEL DALY HAWKINS, A. WALLACE TASHIMA, and MARY H. MURGUIA, Circuit Judges.

OPINION

TASHIMA, Circuit Judge:

After pleading guilty to possession with intent to distribute crack cocaine, Robert Pleasant was sentenced to 77 months' imprisonment. The plea agreement stipulated that Pleasant should be sentenced under the crack-cocaine guidelines, but it also acknowledged that his status as a Career Offender exposed Pleasant to a sentence as high as 235 months. After the Sentencing Commission amended the crack-cocaine guidelines, the district court granted a sentence reduction under 18 U.S.C. § 3582(c)(2). We have jurisdiction under 18 U.S.C. § 3742(b), and we reverse.

I.

Pleasant was indicted in 2008 for possessing, with intent to distribute, crack cocaine in violation of 21 U.S.C. § 841(a)(1). He pled guilty pursuant to a Rule 11(c)(1)(C)¹ plea agreement and, in doing so, admitted that he had possessed over twelve grams of crack cocaine. The plea agreement recognized that Pleasant qualified for sentencing under the Career Offender guidelines ( U.S.S.G. § 4B1.1), but provided instead that his sentence should be at the low end of the guidelines applicable to crack-cocaine offenses ( U.S.S.G. § 2D1.1(c)). The district court accepted the plea agreement by granting a variance from the Career Offender guidelines, and thus sentenced Pleasant to 77 months imprisonment.² Judgment was entered on March 17, 2009.

The Fair Sentencing Act of 2010 (“FSA”) modified, among other things, the penalties for crack cocaine offenses by reducing sentencing disparities between crack and powder cocaine offenses. Pub.L. No. 111–220, 124 Stat. 2372 (2010). On November 1, 2010, the U.S. Sentencing Commission exercised its authority under the FSA by issuing Amendment 748, which revised penalties for crack cocaine offenses under the § 2D1.1(c) drug quantity table. U.S.S.G. app. C (2011). The Commission then issued Amendment 750, which made the Amendment 748 changes permanent. Id. Finally, the Commission issued Amendment 759, which: (1) made the Amendment 750 changes retroactive; and (2) modified § 1B1.10, which governs when a sentence may be reduced by reason of a retroactive guideline amendment. Id.

In light of these amendments, Pleasant filed a “Notice of Eligibility” for a reduction of sentence under 18 U.S.C. § 3582(c)(2).³ In response, the government argued that Pleasant was not entitled to a reduction because his applicable guidelines were the Career Offender guidelines, which had not been amended. On March 23, 2012, the district court granted the motion from the bench, relying on Freeman v. United States, ––– U.S. ––––, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). Specifically, the court held that, under Freeman, Pleasant's original sentence was “based on” the crack-cocaine guidelines.

Under the revised guidelines, Pleasant's offense level was 20, adjusted down to 17 for acceptance of responsibility. U.S.S.G. § 2D1.1(c)(10)(2011). Thus, with the same level VI criminal history category, Pleasant's new guideline range was 51–63 months. In light of the five-year mandatory minimum for convictions under 21 U.S.C. § 841(a)(1), Pleasant was re-sentenced to 60 months.⁴See21 U.S.C. § 841(b)(1)(B)(iii) (2009). The government timely appealed.

II.

We review de novo whether a district court has jurisdiction to resentence a defendant under 18 U.S.C. § 3582. United States v. Leniear, 574 F.3d 668, 672 (9th Cir.2009). Under § 3582(c)(2),⁵ a defendant is eligible for a sentence reduction if two prongs are satisfied: “(1) the sentence is ‘ based on a sentencing range that has subsequently been lowered by the Sentencing Commission’ and (2) ‘such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.’ ” United States v. Wesson, 583 F.3d 728, 730 (9th Cir.2009) (quoting 18 U.S.C. § 3582(c)(2)) (emphasis added). The “primary applicable policy statement” is U.S.S.G. § 1B1.10,⁶ which states that a defendant is eligible for a sentence reduction if “the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines....” U.S.S.G. § 1B1.10(a)(1) (emphasis added). Although the “applicableto” language from the policy statement appears to mirror the “based on” language of the first prong, each prong requires a separate analysis. See Wesson, 583 F.3d at 730, 732.

A.

The government does not dispute that Pleasant satisfied the first prong of § 3582(c)(2), but a brief discussion of that issue provides necessary background for our discussion of the second prong. In Freeman, the Supreme Court addressed whether a defendant sentenced pursuant to a Rule 11(c)(1)(C) plea agreement (“a (C) plea” or “a (C) agreement”) is eligible for a sentence reduction under § 3582(c)(2). 131 S.Ct. at 2685. The critical question was whether, assuming there was a relevant Guidelines amendment, such a defendant was sentenced “based on” that amendment. A four-justice plurality found that a court may “revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytical framework the judge used to determine the sentence or to approve the agreement.” Id. at 2692–93.

Justice Sotomayor wrote separately and agreed with the plurality, but did so on narrower grounds that make her concurrence controlling. See United States v. Austin, 676 F.3d 924, 927 (9th Cir.2012). Specifically, Justice Sotomayor held that a sentence imposed under a (C) plea is “based on” an amended guideline if: (1) the agreement “ expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment”; and (2) that sentencing range was subsequently amended. Freeman, 131 S.Ct. at 2695 (Sotomayor, J., concurring in the judgment) (emphasis added).

Applying Justice Sotomayor's test here, Pleasant's sentence was clearly “based on” the crack-cocaine guidelines because: (1) the plea agreement expressly used § 2D1.1(c) to set the stipulated sentence; and (2) because that guideline was “subsequently amended” via Amendments 748, 749, and 759. Thus, even though the plea agreement recognized that Pleasant's status as a Career Offender could have triggered a higher offense level, the agreement's express reliance on § 2D1.1(c) means that, under § 3582(c), Pleasant's sentence was “based on” § 2D1.1(c). Id. at 2697 (noting that a sentence reduction is available when the (C) agreement “call[s] for the defendant to be sentenced within a particular Guidelines sentencing range”). In sum, Pleasant satisfied the first requirement for relief under § 3582(c).

B.

Although Pleasant satisfied the “based on” requirement of § 3582(c)(2), his sentence reduction would be proper only if it was also consistent with U.S.S.G. § 1B1.10(a)(1). Wesson, 583 F.3d at 730. That provision permits a reduction only if “the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines....” U.S.S.G. § 1B1.10(a)(1) (emphasis added). The central dispute in this appeal is the meaning of “applicable to” and “applicable guidelines.” The government contends that, in this case, the applicable guidelines are the Career Offender guidelines because Pleasant qualified as a Career Offender, even though he was not sentenced under those guidelines. Pleasant argues that, under Freeman, the applicable guideline is § 2D1.1 because the plea agreement called for sentencing to be imposed under that provision.

The commentary to § 1B1.10 addresses this very question.⁷See Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (holding that Guidelines commentary is generally “authoritative”). Specifically, Application Note 1(A) clarifies that § 3582(c)(2) “is triggered only by an amendment ... that lowers the applicable guideline range (i.e., the guideline range that corresponds to the offense level and criminal history category determined pursuant to § 1B1.1(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance ).” U.S.S.G. § 1B1.10 cmt. n. 1(A) (2011) (emphasis added). This language was added to resolve a circuit split that had arisen over whether a defendant's “applicable guideline range” should be derived before or after the application of a departure or variance. U.S.S.G. app. C, amend. 759. In short, Amendment 759 makes clear that the applicable guideline is derived pre-departure and pre-variance.

Under Amendment 759, Pleasant's applicable guideline range is the Career Offender range. The parties agree that Pleasant qualifies as a Career Offender, and his plea agreement outlined the stipulated ramifications of his Career Offender status. Pleasant was only able to avoid the Career Offender guidelines because the district court granted a downward variance. Accordingly, Pleasant's pre-variance guideline range, i.e., his “applicable guideline range,” is the Career Offender guideline.

Section 6B1.2, which outlines the “Standards for Acceptance of Plea Agreements,” confirms that a defendant's applicable range is distinct from the range agreed to in a plea agreement. Specifically, § 6B1.2 allows a court to accept a (C) agreement if “the agreed sentence is outside the applicable guideline range for justifiable reasons.” (emphases added). This provision expressly distinguishes between the ...