United States v. Weatherspoon

• Decision Date: 10 October 2012
• Docket Number: No. 11–4429.,11–4429.
• Parties: UNITED STATES of America v. Kevin WEATHERSPOON a/k/a Fifty a/k/a 50 Kevin Weatherspoon, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

696 F.3d 416

UNITED STATES of America

v. Kevin WEATHERSPOON a/k/a Fifty a/k/a 50Kevin Weatherspoon, Appellant.

No. 11–4429.

United States Court of Appeals,Third Circuit.

Argued July 13, 2012.

Opinion Filed: Oct. 10, 2012.

Frederick W. Ulrich, Esq. [ARGUED], James V. Wade, Esq., Office of Federal Public Defender, Harrisburg, PA, for Defendant–Appellant, Kevin Weatherspoon.

William S. Houser, Esq. [ARGUED], Office of the United States Attorney, Scranton, PA, for Appellee, the United States of America.

Before: FUENTES, HARDIMAN and ROTH, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge.

For the second time, Kevin Weatherspoon seeks a reduction in his sentence for conspiring to distribute and possess with intent to distribute over 50 grams of cocaine base. In October 2006, he pled guilty and was sentenced to a 120–month term of imprisonment pursuant to a binding plea agreement with the government. A few years later, the U.S. Sentencing Commission issued a retroactive amendment which reduced Weatherspoon's Guidelines range. We rejected Weatherspoon's first motion for a sentence reduction because he was sentenced pursuant to a binding plea agreement. In this motion, he argues that he is nevertheless eligible for a reduction because under the Supreme Court's recent decision in Freeman v. United States, –––U.S. ––––, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), the sentence contained in his plea agreement was “based on” the Sentencing Guidelines. We disagree, and we will affirm the District Court's denial of his motion.

I.

In May 2005, Kevin Weatherspoon was indicted by a federal grand jury for crimes relating to the distribution and possession of cocaine, cocaine base and marijuana. In lieu of trial, Weatherspoon pled guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine base pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement (a “(C) plea agreement”).¹ In that agreement, the parties agreed that Weatherspoon should receive a sentence of 120 months' imprisonment because that sentence was “a reasonable sentence under the facts and circumstances of the case.” (Appendix (“App.”) at 13–14.)

Weatherspoon's plea agreement contains only a few references to the Sentencing Guidelines. The agreement does not expressly state what the parties believed Weatherspoon's Guidelines range would be or if they used the Guidelines to determine that a 120–month term of imprisonment was the appropriate sentence. Nor does it provide his offense level or criminal history category.

The agreement does, however, note that “[t]he defendant ... agrees that any legal and factual issues relating to the application of the Federal Sentencing Guidelines to the defendant's conduct, including facts that support any specific offense characteristic or other enhancement or adjustment and the appropriate sentence within the statutory maximum provided for by law, will be determined by the court at a sentencing hearing.” (App. at 12.) The (C) plea agreement also makes certain recommendations relevant to the calculation of his offense level. Specifically, the parties agreed that for the purposes of sentencing, the court should: (1) attribute at least 500 grams but less than 1.5 kilograms of cocaine base to Weatherspoon; and (2) attribute at least 500 grams but less than 1.5 kilograms of cocaine hydrochloride to him. Weatherspoon was also to receive a three-level reduction to his offense level because of his acceptance of responsibility. There is no mention in the agreement of his use of a firearm or his role in the conspiracy. Nor did it indicate that the facts mentioned in the agreement were the only ones relevant to the calculation of his offense level. The agreement notes that his statutory maximum sentence was 20 years' imprisonment.²

Weatherspoon pled guilty on October 23, 2006. At his change of plea hearing, the government summarized the plea agreement. The prosecutor mentioned that Weatherspoon faced a maximum sentence of 20 years' imprisonment but did not mention what his applicable Guidelines range was. The government also noted that the parties agreed that Weatherspoon should receive a 120–month sentence, but did not indicate any basis for that determination. The prosecutor did mention that “the [g]overnment and defense have agreed to recommend a sentence in this ... agreement that will likely be somewhat lower than the actual guideline[s] range, and that was in consideration of his appeal waiver, his timely guilty plea, et cetera.” (App. at 49–50.) After explaining Weatherspoon's rights to him, the District Court accepted Weatherspoon's guilty plea.

For sentencing, the Probation Department prepared a pre-sentence report. Using the 2006 edition of the Guidelines manual, the Probation Officer, accepting the factual recommendations in the plea agreement, calculated Weatherspoon's base offense level as 36. She then added two additional points for Weatherspoon's possession of a firearm in furtherance of a drug offense under U.S.S.G. § 2D1.1(b)(1), and three additional points for Weatherspoon's role as a supervisor in the organization, under U.S.S.G. § 3B1.1(b). Finally, she subtracted three points for Weatherspoon's acceptance of responsibility, under U.S.S.G. § 3E1.1(a), (b). Ultimately, the Probation Officer determined that Weatherspoon had a total offense level of 38. Because this was Weatherspoon's first offense, his criminal history category was I, corresponding to a Guidelines range of 235 to 293 months. Due to the statutory maximum of 20 years, however, the top of his Guidelines range was reduced to 240 months.

The District Court sentenced Weatherspoon on February 15, 2007. At sentencing, the District Court did not explicitly calculate or adopt a particular Guidelines range. Rather, after brief argument, it accepted the recommended sentence of 120 months. It explained that in accepting that sentence, it took “into consideration the presentence investigation report, the statements by [Weatherspoon's] lawyer and the seriousness of the charges.” (App. at 68.) The District Court also considered the applicable § 3553(a) factors, particularly the “kinds of sentences that are available, and the advisory sentencing range and policies prescribed by the United States Sentencing Commission.” (App. at 68–69.)

On November 1, 2007, nine months after Weatherspoon's sentencing, the Sentencing Commission passed Amendment 706 to the Guidelines, which reduced the cocaine base equivalency. In March 2008, the amendment was made retroactive. The amendment effectively reduced Weatherspoon's total offense level from 38 to 36, resulting in a reduction of his Guidelines range from 235–240 months to 188–235 months.

Shortly after, Weatherspoon filed his first motion for a reduction in his sentence under 18 U.S.C. § 3582(c)(2), which allows a court to reduce a defendant's sentence retroactively based on a change in the Guidelines. Weatherspoon contended that since his 120–month sentence represented a 49% reduction from the bottom of his then-Guidelines range, his sentence should be proportionately reduced to 96 months based on his new Guidelines range. The District Court denied that motion, finding that his sentence was still “comparably less than the amended guideline range.” (App. at 92.)

Weatherspoon appealed to this Court. We held that Weatherspoon was ineligible for a reduction because of his binding plea agreement. United States v. Weatherspoon, 338 Fed.Appx. 143, 143 (3d Cir.2009) (citing United States v. Sanchez, 562 F.3d 275, 282 (3d Cir.2009)).³ The Supreme Court denied Weatherspoon's petition for certiorari on November 30, 2009. Weatherspoon v. United States, ––– U.S. ––––, 130 S.Ct. 768, 175 L.Ed.2d 535 (2009).

Two years later, the United States Supreme Court issued its ruling in Freeman v. United States, ––– U.S. ––––, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). A plurality of the Court held that defendants who pled guilty to (C) plea agreements are eligible for relief under § 3582(c)(2) whenever the district court uses the Guidelines as a basis for accepting the agreement. Id. at 2695. Justice Sotomayor concurred, finding that these defendants are only eligible when their plea agreements make clear that the parties used the Guidelines as a foundation for the term of imprisonment set forth in the agreement. Id. at 2697–98. Thus, five members of the Supreme Court concluded that defendants who pled guilty pursuant to (C) plea agreements could be eligible for relief, overruling our prior decision in Sanchez.

Based on this change in the law, Weatherspoon filed a second motion for a reduction in his sentence. The District Court denied that motion without reasoning and Weatherspoon filed a timely notice of appeal.

II.

When the district court determines that a defendant is ineligible for relief under 18 U.S.C. § 3582(c)(2), our review is plenary. United States v. Sanchez, 562 F.3d 275, 277 (3d Cir.2009), overruled on other grounds, Freeman, 131 S.Ct. at 2685;see also United States v. Lawson, 686 F.3d 1317, 1319–20 (11th Cir.2012). By contrast, when the district court determines that a defendant is eligible for relief but declines to reduce his sentence, our review is for an abuse of discretion. Sanchez, 562 F.3d at 278 n. 4;see also United States v. Austin, 676 F.3d 924, 926–27 (9th Cir.2012).

A district court's authority to alter or amend a defendant's sentence is limited. Under the Sentencing Reform Act of 1984, a district court loses any continuing authority over a sentence once it has been imposed, see18 U.S.C. § 3582(c), subject to two general exceptions. First, though not relevant here, a district court has the power to correct clerical or technical errors within 14 days of the entry of judgment. 18 U.S.C. § 3582(c)(1)(B); Fed.R.Crim.P. 35(a). Second, a district court has the power to amend a sentence, provided that it was based on a Guidelines range that has since been lowered. 18...