United States v. Thompson

• Decision Date: 19 June 2012
• Docket Number: No. 11–4120.,11–4120.
• Citation: 682 F.3d 285
• Parties: UNITED STATES of America, v. Colbert THOMPSON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

682 F.3d 285

UNITED STATES of America,

v.Colbert THOMPSON, Appellant.

No. 11–4120.

United States Court of Appeals, Third Circuit.

Argued April 26, 2012.

Opinion Filed: June 19, 2012.

Lisa B. Freeland, Federal Public Defender (argued), Renee D. Pietropaolo, Assistant Federal Public Defender, Pittsburgh, PA, Counsel for Appellant.

Rebecca Ross Haywood, Assistant U.S. Attorney (argued), David J. Hickton, United States Attorney, Pittsburgh, PA, Counsel for Appellee.

Before: GREENAWAY, JR., ROTH, and TASHIMA,^* Circuit Judges.

OPINION

TASHIMA, Circuit Judge.

Colbert Thompson pled guilty to distribution of fewer than five grams of crack cocaine, but his sentencing range was ultimately calculated based on his classification as a career offender. After the United States Sentencing Commission issued a retroactive amendment to the Sentencing Guidelines that lowered the base offense levels for crack cocaine offenses, Thompson moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). He conceded, however, that United States v. Mateo, 560 F.3d 152 (3d Cir.2009), foreclosed his argument, and the District Court denied the motion. On appeal, Thompson requests that the panel reconsider Mateo in light of Freeman v. United States, ––– U.S. ––––, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). We conclude that Mateo remains good law and therefore will affirm.

I

In 2002, Thompson was indicted on two counts, and pled guilty to one, of distributing fewer than five grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). Because Thompson had two prior felony convictions, he qualified for treatment as a career offender under the Guidelines. See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4B1.1 (2002).¹

This was consequential. The Guideline for career offenders has its own sentencing ranges, with offense levels determined by reference to the statutory maximum sentences authorized for various offenses of conviction. See id. If the career offender offense level “is greater than the offense level otherwise applicable, the offense level from the [career offender] table ... shall apply.” Id. § 4B1.1(b). In Thompson's case, the career offender offense level was much greater than the offense level “otherwise applicable”—that is, the offense level for distribution of fewer than five grams of crack cocaine. As calculated by the Probation Office in its PSR, Thompson's crack cocaine offense yielded a base offense level of 20, see id. § 2D1.1(a)(3), (c)(10); his career offender offense level was 32, see id. § 4B1.1(b)(3) (listing an offense level of 32 for offenses with a statutory maximum of 20 years' imprisonment); 21 U.S.C. § 841(b)(1)(C) (providing for a 20–year maximum for the crack cocaine offense to which Thompson pled guilty). Thus, in effect, Thompson's career offender offense level made his crack cocaine base offense level irrelevant.

The career offender designation altered Thompson's Guidelines range in another respect, too. According to the PSR, Thompson's prior criminal convictions resulted in a criminal history score of 12 and a criminal history category of V. SeeU.S.S.G. ch. 5, pt. A (sentencing table). But, as a career offender, Thompson was assigned a criminal history category of VI. See id. § 4B1.1(b) (mandating a criminal history category of VI for career criminals).

Based on a total offense level of 29 ² and a criminal history category of VI, Thompson's Guidelines range was determined to be 151 to 188 months' imprisonment. See id.ch. 5, pt. A (sentencing table). Had Thompson not been classified as a career offender, his Guidelines range would have been 46 to 57 months. See id.

At sentencing, Thompson's counsel requested a downward departure on the ground that the career offender designation over-represented his prior record. The District Court denied that request and sentenced Thompson to 151 months in prison, the bottom of the career offender range. Thompson appealed. This Court affirmed the District Court's designation of Thompson as a career criminal and otherwise dismissed the appeal. United States v. Thompson, 88 Fed.Appx. 480 (3d Cir.2004).

In 2008, the Sentencing Commission retroactively reduced the base offense levels for crack cocaine offenses. See U.S.S.G. app. C, amend. 706 (Nov. 2010) (effective Nov. 1, 2007) (adjusting Guidelines); id. amend. 713 (effective Mar. 3, 2008) (making Amendment 706 retroactive). The following year, in Mateo, we considered whether a crack cocaine offender sentenced as a career offender was eligible for a sentence reduction based on the recent Guidelines amendment to crack cocaine offense levels. We concluded that he was not. Mateo, 560 F.3d at 156. To be eligible for a reduction in sentence pursuant to § 3582(c)(2), a defendant must 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). That means, we said, that a § 3582(c)(2) reduction is available only if the Guidelines amendment has “the effect of lowering the sentencing range actually used at sentencing.” Mateo, 560 F.3d at 155 (internal quotation marks omitted) (emphasis added). The crack cocaine amendment had no effect on Mateo's sentencing range: it altered the calculation of the base offense level for his crack cocaine offense, but not the calculation of the career offender Guidelines range actually used to compute his Guidelines sentence. Accordingly, we held that § 3582(c)(2) relief was unavailable to Mateo. Id. at 156.

In 2011, the Supreme Court decided Freeman, a case concerning the availability of § 3582(c)(2) relief based on the crack cocaine amendment to the Guidelines. After Freeman was decided, Thompson filed a motion to reduce his sentence under § 3582(c)(2). He conceded that Mateo foreclosed his motion, but argued that Mateo should be revisited in light of Freeman. Bound by Mateo, the District Court denied Thompson's motion. This timely appeal followed.

II

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. § 1291. The single issue in this case—whether, given Freeman, we should overrule Mateo—is a question of law over which we exercise plenary review. United States v. Flemming, 617 F.3d 252, 257 (3d Cir.2010).

III

Thompson concedes that Mateo controls this case. As in Mateo, Thompson was convicted of a crack cocaine offense; as there, Thompson's sentencing range was ultimately calculated based on his status as a career offender rather than as a crack cocaine offender. Thompson asks us to reconsider Mateo because, he contends, both the plurality and concurring opinions in Freeman “called Mateo's narrow interpretation of the statutory meaning of ‘based on’ into question.” We do not agree.

In Freeman, the defendant had entered a guilty plea pursuant to a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). Freeman, 131 S.Ct. at 2691. Such an agreement allows the parties to bind the district court to a pre-agreed sentence if the court accepts the plea. SeeFed.R.Crim.P. 11(c)(1)(C) (a sentence or sentencing range “recommendation or request [under this provision] binds the court once the court accepts the plea agreement”). The question in Freeman was whether a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement can be “based on” a sentencing range within the meaning of § 3582(c)(2). Freeman, 131 S.Ct. at 2691.

The question divided the Court. Justice Kennedy, writing for four Justices, delivered the judgment of the Court that a defendant can be eligible for such relief. Id. at 2690 (Kennedy, J.). But the plurality's rationale differed markedly from that of Justice Sotomayor, who concurred in the judgment and supplied the necessary fifth vote. See id. at 2695 (Sotomayor, J., concurring). Justice Kennedy wrote that a sentence imposed pursuant to a binding Rule 11(c)(1)(C) agreement is still “based on” a Guidelines sentencing range, as long as “the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement.” Id. at 2692–93 (Kennedy, J.). Even in the context of a Rule 11(c)(1)(C) agreement, the defendant's Guidelines range matters: it informs the judge's “decision to accept the plea,” a decision that entails “impos[ing] the recommended sentence.” Id. at 2690;see id. at 2692 (stating that the relevant Guidelines policy statement “forbids the district judge to accept an 11(c)(1)(C) agreement without first evaluating the recommended sentence in light of the defendant's applicable sentencing range”). Justice Kennedy concluded that “the district court has authority to entertain § 3582(c)(2) motions when sentences are imposed in light of the Guidelines, even if the defendant enters into an 11(c)(1)(C) agreement.” Id. at 2693.

Justice Sotomayor took a different approach. In her view, “the term of imprisonment imposed by a district court pursuant to an agreement authorized by Federal Rule of Criminal Procedure 11(c)(1)(C) ... is ‘based on’ the agreement itself, not on the judge's calculation of the Sentencing Guidelines.” Id. at 2695 (Sotomayor, J., concurring). But she identified two exceptions: (1) where the plea agreement itself “call[s] for the defendant to be sentenced within a particular Guidelines sentencing range,” or (2) where it makes clear that “the basis for the specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty.” Id. at 2697. Because Freeman's plea agreement clearly stated that his sentence would be “determined pursuant to the Sentencing Guidelines,” and recommended a sentence that was “evident[ly]” based on the figure at the bottom end of Freeman's Guidelines range, his plea agreement satisfied an exception to Justice Sotomayor's general rule. Id. at 2699–2700. She therefore concurred in the judgment. Id.

IV

As a three-judge panel we are, of course,...