United States v. Rivera-Martínez

• Decision Date: 20 December 2011
• Docket Number: No. 09–1766.,09–1766.
• Citation: 665 F.3d 344
• Parties: UNITED STATES of America, Appellee, v. Robin Eddie RIVERA–MARTÍNEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

665 F.3d 344

UNITED STATES of America, Appellee,

v.Robin Eddie RIVERA–MARTÍNEZ, Defendant, Appellant.

No. 09–1766.

United States Court of Appeals, First Circuit.

Submitted Dec. 2, 2011.Decided Dec. 20, 2011.

Jean C. LaRocque, by appointment of the court, on supplemental brief for appellant.

Lanny A. Breuer, Assistant Attorney General, Greg D. Andres, Acting Deputy Assistant Attorney General, Vijay Shanker, Attorney, Appellate Section, Criminal Division, United States Department of Justice, Rosa Emilia Rodríguez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney (Appellate Chief), and Julia M. Meconiates, Assistant United States Attorney, on supplemental brief for appellee.

Before TORRUELLA, SELYA and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

In United States v. Rivera–Martínez ( Rivera–Martínez I ), 607 F.3d 283 (1st Cir.2010), we affirmed a district court decision finding the defendant ineligible for a sentence reduction under certain retroactive amendments to the federal sentencing guidelines. Id. at 286–88. The defendant petitioned for a writ of certiorari. While that petition was pending, the Supreme Court decided Freeman v. United States, ––– U.S. ––––, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). The Court then granted the petition in Rivera–Martínez I, vacated the judgment, and remanded for reconsideration in light of Freeman. Rivera–Martínez v. United States, ––– U.S. ––––, 131 S.Ct. 3088, 180 L.Ed.2d 910 (2011) (mem.).

The task committed to us requires a careful parsing of the three opinions filed in Freeman, an identification of Freeman 's holding, and a fresh determination of the defendant's eligibility for the sought-after sentence reduction. We conclude that Justice Sotomayor's concurring opinion embodies the Freeman Court's holding and that under its strictures the defendant remains ineligible for a reduced sentence.

I. BACKGROUND

On March 6, 2000, defendant-appellant Robin Eddie Rivera–Martínez pleaded guilty to conspiring to possess with intent to distribute more than five kilograms of crack cocaine. See 21 U.S.C. §§ 841(a)(1), 846. His plea was entered pursuant to a plea agreement (the Agreement) forged under Federal Rule of Criminal Procedure 11(c)(1)(C). Such a vehicle—a so-called C-type plea agreement—allows the parties to bind the district court to a pre-agreed sentence if the court accepts the plea. See, e.g., Rivera–Martínez I, 607 F.3d at 284; United States v. Teeter, 257 F.3d 14, 28 (1st Cir.2001).

Here, the Agreement stipulated that the defendant was accountable for over 1.5 kilograms of cocaine base.¹ On the date of the plea, this drug quantity corresponded to a base offense level of 38. After walking through various guideline adjustments, the Agreement arrived at a total offense level of 37. Although the parties agreed to a 240–month sentence, the Agreement said nothing about either the defendant's criminal history category or his guideline sentencing range.

Sentencing took place on September 12, 2000. The district judge rehearsed the guideline calculations limned in the presentence investigation report, accepted the Agreement, and sentenced the defendant to 240 months in prison.

We fast-forward to 2007, when the Sentencing Commission modified the quantities of crack cocaine that suffice to trigger certain base offense levels. See USSG App. C, Amend. 706 (Supp.2007) (modifying USSG § 2D1.1); see also USSG App. C, Amend. 711 (Supp.2007). The Commission soon made these amendments retroactive. See USSG App. C, Amend. 713 (Supp.2008).

Seizing upon these developments, the defendant moved for a sentence reduction under 18 U.S.C. § 3582(c)(2).² The district court denied the motion. We affirmed. See Rivera–Martínez I, 607 F.3d at 288. We determined that “[a]bsent an express statement in the plea agreement making the sentence dependent upon a guideline calculation, a sentence imposed pursuant to a C-type plea agreement is based on the agreement itself, not on the guidelines.” Id. at 287.³

The defendant petitioned for a writ of certiorari. On June 23, 2011, the Supreme Court decided Freeman. A few days later, it granted the defendant's certiorari petition, vacated this court's judgment, and remanded for reconsideration in light of Freeman.

II. ANALYSIS

To comply with the Supreme Court's mandate, we must identify Freeman 's holding, chart its contours, and apply the insights gleaned from those inquiries to the defendant's circumstances. This undertaking requires us to step back for a moment.

As a general rule, a sentencing court cannot revisit a final sentence. 18 U.S.C. § 3582(c). Section 3582(c)(2) provides an exception to this general rule:

[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 issued by the Sentencing Commission.

Id. § 3582(c)(2) (emphasis supplied). The question before the Freeman Court was whether a defendant who was sentenced pursuant to a C-type plea agreement can be eligible for section 3582(c)(2) relief.

The court of appeals had held that, in the absence of a miscarriage of justice, entering into a C-type plea agreement presented a categorical bar to section 3582(c)(2) relief. United States v. Goins, 355 Fed.Appx. 1, 2–3 (6th Cir.2009), rev'd in part sub nom., Freeman v. United States, –––U.S. ––––, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). Five Justices concluded that no such bar existed. But those five Justices reached this conclusion in different ways—and therein lies the rub.

A four-member plurality found determinative the analytic framework that undergirds the decisionmaking process employed by sentencing judges in federal criminal cases. Freeman, 131 S.Ct. at 2692–94 (Kennedy, J., with whom Ginsburg, Breyer, and Kagan, JJ., joined). The sentencing guidelines are integral to that process. Even in cases in which sentencing follows the execution of a C-type plea agreement, the sentencing judge is required to take the guidelines into account when deciding whether to accept the agreement and impose the agreed sentence. Id. at 2692–93. Viewed through this prism, a judge's decision to accept a C-type plea agreement will almost always be based on the guidelines, thereby rendering the defendant eligible for section 3582(c)(2) relief when those guidelines are amended and made retroactive. Id. at 2695.

Four votes, however, do not make a majority on a nine-judge court. To achieve the magic number, the plurality depended upon Justice Sotomayor, who also found the defendant eligible for section 3582(c)(2) relief. But Justice Sotomayor's approach differed sharply from that of the plurality. She concluded that a term of imprisonment imposed by a court pursuant to a C-type plea agreement is based on the agreement, not on the sentencing judge's assessment of the guidelines. Id. at 2695 (Sotomayor, J., concurring).

Withal, Justice Sotomayor carved out an exception for cases in which a C-type plea agreement “expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered.” Id. In that event, “the term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sentence reduction under § 3582(c)(2).” Id. The sentence imposed in Freeman came within this exception.

The four dissenting Justices, like Justice Sotomayor, concluded that sentences imposed pursuant to C-type plea agreements are based on the agreement, not on the guidelines. See id. at 2700 (Roberts, C.J., with whom Scalia, Thomas, and Alito, JJ., joined, dissenting). But unlike Justice Sotomayor, the dissenters argued that the imposition of a sentence pursuant to a C-type plea agreement always precluded section 3582(c)(2) relief. Id. at 2700–05.

These opinions leave some doubt as to the controlling rule. To allay this doubt, our first recourse is to Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). There, the Supreme Court explained that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Id. at 193, 97 S.Ct. 990 (internal quotation marks omitted). This “narrowest grounds” approach is useful when it can be applied straightforwardly, but it is sometimes unworkable. See, e.g., United States v. Johnson, 467 F.3d 56, 63–64 (1st Cir.2006).

The defendant asserts that Freeman is not amenable to the Marks “narrowest grounds” approach. As a default measure, he invites us to apply the plurality's reasoning. In support, he relies on our decision in Johnson.

Johnson cannot bear the weight that the defendant loads upon it. The language upon which the defendant relies—that “ Marks is workable ... only when one opinion is a logical subset of other, broader opinions,” id. at 63 (quoting King v. Palmer, 950 F.2d 771, 781 (D.C.Cir.1991) (en banc))—signifies only that “the narrowest opinion must represent a common denominator of the Court's reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment.” King, 950 F.2d at 781. Adhering to this standard, Freeman is fertile soil for a Marks analysis.

To be sure, Freeman 's plurality and concurrence agree on very little. The plurality looks to the analytic framework underlying a district judge's decision to accept a C-type plea agreement, see 131 S.Ct. at 2692–95 (plurality op.), whereas Justice Sotomayor's concurrence looks to the plea agreement to determine whether a particular sentence is based on an identifiable guideline...