Freeman v. United States

(Slip Opinion) OCTOBER TERM, 2010 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

FREEMAN v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 09–10245. Argued February 23, 2011—Decided June 23, 2011

In order to reduce unwarranted federal sentencing disparities, the Sen

tencing Reform Act of 1984 authorizes the United States Sentencing

Commission to create, and to retroactively amend, Sentencing Guide

lines to inform judicial discretion. Title 18 U. S. C. §3582(c)(2) per

mits a defendant who was sentenced to a term of imprisonment

“based on” a Guidelines sentencing range that has subsequently been

lowered by retroactive amendment to move for a sentence reduction.

This case concerns §3582(c)(2)’s application to cases in which the de

fendant and the Government have entered into a plea agreement un

der Federal Rule of Criminal Procedure 11(c)(1)(C), which permits

the parties to “agree that a specific sentence or sentencing range is

the appropriate disposition of the case,” and “binds the court [to the

agreed-upon sentence] once [it] accepts the plea agreement.”

Petitioner Freeman was indicted for various crimes, including pos

sessing with intent to distribute cocaine base. 21 U. S. C. §841(a)(1).

He entered into an 11(c)(1)(C) agreement to plead guilty to all

charges; in return the Government agreed to a 106-month sentence.

The agreement states that the parties independently reviewed the

applicable Guidelines, noted that Freeman agreed to have his sen

tence determined under the Guidelines, and reflected the parties’ un

derstanding that the agreed-to sentence corresponded with the

minimum sentence suggested by the applicable Guidelines range of

46 to 57 months, along with a consecutive mandatory minimum of 60

months for possessing a firearm in furtherance of a drug-trafficking

crime under 18 U. S. C. §924(c)(1)(A). Three years after the District

Court accepted the plea agreement, the Commission issued a retroac

tive Guidelines amendment to remedy the significant disparity be

tween the penalties for cocaine base and powder cocaine offenses.

2 FREEMAN v. UNITED STATES

Syllabus

Because the amendment’s effect was to reduce Freeman’s applicable

sentencing range to 37 to 46 months plus the consecutive 60-month

mandatory minimum, he moved for a sentence reduction under

§3582(c)(2). However, the District Court denied the motion, and the

Sixth Circuit affirmed because its precedent rendered defendants

sentenced pursuant to 11(c)(1)(C) agreements ineligible for

§3582(c)(2) relief, barring a miscarriage of justice or mutual mistake.

Held: The judgment is reversed, and the case is remanded.

355 Fed. Appx. 1, reversed and remanded.

JUSTICE KENNEDY, joined by JUSTICE GINSBURG, JUSTICE BREYER,

and JUSTICE KAGAN, concluded that defendants who enter into

11(c)(1)(C) agreements that specify a particular sentence as a condi

tion of the guilty plea may be eligible for relief under §3582(c)(2). Pp.

5–10.

(a) The text and purpose of the statute, Rule 11(c)(1)(C), and the

governing Guidelines policy statements compel the conclusion that

the district court has authority to entertain §3582(c)(2) motions when

sentences are imposed in light of the Guidelines, even if the defen

dant enters into an 11(c)(1)(C) agreement. The district judge must,

in every case, impose “a sentence sufficient, but not greater than nec

essary, to comply with” the purposes of federal sentencing, in light of

the Guidelines and other relevant factors. §3553(a). The Guidelines

provide a framework or starting point—a basis, in the term’s com

monsense meaning—for the judge’s exercise of discretion. Rule

11(c)(1)(C) permits the defendant and the prosecutor to agree on a

specific sentence, but that agreement does not discharge the district

court’s independent obligation to exercise its discretion. In the usual

sentencing, whether following trial or plea, the judge’s reliance on the

Guidelines will be apparent when the judge uses the Guidelines

range as the starting point in the analysis and imposes a sentence

within the range. Gall v. United States, 552 U. S. 38, 49. Even

where the judge varies from the recommended range, id., at 50, if the

judge uses the sentencing range as the beginning point to explain the

deviation, then the Guidelines are in a real sense a basis for the sen

tence. The parties’ recommended sentence binds the court “once the

court accepts the plea agreement,” Rule 11(c)(1)(C), but the relevant

policy statement forbids the judge to accept an agreement without

first giving due consideration to the applicable Guidelines sentencing

range, even if the parties recommend a specific sentence as a condi

tion of the guilty plea, see U. S. Sentencing Commission, Guidelines

Manual §6B1.2. This approach finds further support in the policy

statement applicable to §3582(c)(2) motions, which instructs the dis

trict court in modifying a sentence to substitute the retroactive

amendment, but to leave all original Guidelines determinations in

Cite as: 564 U. S. ____ (2011) 3

Syllabus

place, §1B1.10(b)(1). Pp. 5–7.

(b) Petitioner’s sentencing hearing transcript reveals that the Dis

trict Court expressed its independent judgment that the sentence

was appropriate in light of the applicable Guidelines range. Its deci

sion was therefore “based on” that range within §3582(c)(2)’s mean

ing. P. 7.

(c) The Government’s argument that sentences that follow an

11(c)(1)(C) agreement are based only on the agreement itself and not

the Guidelines, and are therefore ineligible for §3582(c)(2) reduction,

must be rejected. Even 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.

Pp. 7–10.

JUSTICE SOTOMAYOR concluded that if an agreement under Federal

Rule of Criminal Procedure 11(c)(1)(C) ((C) agreement) expressly uses

a Guidelines sentencing range applicable to the charged offense to es

tablish the term of imprisonment, and that range is subsequently

lowered by the Sentencing Commission, the prison term is “based on”

the range employed and the defendant is eligible for sentence reduc

tion under 18 U. S. C. §3582(c)(2). Pp. 1–11.

(a) The term of imprisonment imposed by a district court pursuant

to a (C) agreement is “based on” the agreement itself, not on the

judge’s calculation of the Guidelines sentencing range. To hold oth

erwise would be to contravene the very purpose of (C) agreements—to

bind the district court and allow the Government and the defendant

to determine what sentence he will receive. Pp. 1–5.

(b) This does not mean, however, that a term of imprisonment im

posed under a (C) agreement can never be reduced under §3582(c)(2).

Because the very purpose of a (C) agreement is to allow the parties to

determine the defendant’s sentence, when the agreement itself em

ploys a particular Guidelines sentencing range applicable to the

charged offenses in establishing the term of imprisonment imposed

by the district court, the defendant is eligible to have his sentence re

duced under §3582(c)(2). Pp. 5–9.

(c) Freeman is eligible. The offense level and criminal history cate

gory set forth in his (C) agreement produce a sentencing range of 46

to 57 months; it is evident that the parties combined the 46-month

figure at the low end of the range with the 60-month mandatory

minimum sentence under §924(c)(1)(A) to establish the 106-month

sentence called for in the agreement. Under the amended Guide

lines, however, the applicable sentencing range is now 37 to 46

months. Therefore, Freeman’s prison term is “based on” a sentencing

range that “has subsequently been lowered by the Sentencing Com

4 FREEMAN v. UNITED STATES

Syllabus

mission,” rendering him eligible for sentence reduction. Pp. 9–11.

KENNEDY, J., announced the judgment of the Court and delivered an

opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined. SO-

TOMAYOR, J., filed an opinion concurring in the judgment. ROBERTS,

C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO,

JJ., joined.

Cite as: 564 U. S. ____ (2011) 1

Opinion of KENNEDY, J.

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–10245

_________________

WILLIAM FREEMAN, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2011]

JUSTICE KENNEDY announced the judgment of the Court

and delivered an opinion, in which JUSTICE GINSBURG,

JUSTICE BREYER, and JUSTICE KAGAN join.

The Sentencing Reform Act of 1984, 18 U. S. C. §3551

et seq., calls for the creation of Sentencing Guidelines to

inform judicial discretion in order to reduce unwarranted

disparities in federal sentencing. The Act allows retro

active amendments to the Guidelines for cases where

the Guidelines become a cause of inequality, not a bulwark

against it. When a retroactive Guideline amendment is

adopted, §3582(c)(2) permits defendants sentenced based

on a sentencing range that has been modified to move for

a reduced sentence.

The question here is whether defendants who enter into

plea agreements that recommend a particular sentence

as a condition of the guilty plea may be eligible for relief

under §3582(c)(2). See Fed. R. Crim. Proc. 11(c)(1)(C)

(authorizing such plea agreements). The Court of Appeals

for the Sixth Circuit held that, barring a miscarriage of

justice or mutual mistake, defendants who enter into

11(c)(1)(C) agreements cannot benefit from retroactive

Guideline amendments.

Five Members of the Court agree that this judgment

must be reversed. The Justices who join this plurality

opinion conclude that the categorical bar enacted by the

2 FREEMAN v. UNITED STATES

Opinion of KENNEDY, J.

Court of Appeals finds no support in §3582(c)(2), Rule

11(c)(1)(C), or the relevant Guidelines policy statements.

In every case the judge must exercise discretion to im

pose an appropriate sentence. This discretion, in turn, is

framed by the Guidelines. And the Guidelines must be

consulted, in the regular course, whether the case is one in

which the conviction was after a trial or after a plea,

including a plea pursuant to an agreement that recom

mends a particular sentence. The district judge’s decision

to impose a sentence may therefore be based on the Guide

lines even if the defendant agrees to plead guilty under

Rule 11(c)(1)(C). Where the decision to impose a sentence

is based on a range later subject to retroactive amend

ment, §3582(c)(2) permits a sentence reduction.

Section 3582(c)(2) empowers district judges to correct sen

tences that depend on frameworks that later prove un

justified. There is no reason to deny §3582(c)(2) relief to

defendants who linger in prison pursuant to sentences

that would not have been imposed but for a since-rejected,

excessive range.

JUSTICE SOTOMAYOR would reverse the judgment on a

different ground set out in the opinion concurring in the

judgment. That opinion, like the dissent, would hold that

sentences following 11(c)(1)(C) agreement are based on the

agreement rather than the Guidelines, and therefore that

§3582(c)(2) relief is not available in the typical case. But

unlike the dissent she would permit the petitioner here to

seek a sentence reduction because his plea agreement in

express terms ties the recommended sentence to the

Guidelines sentencing range.

The reasons that lead those Members of the Court who

join this plurality opinion may be set forth as follows.

I

A

Federal courts are forbidden, as a general matter, to

Cite as: 564 U. S. ____ (2011) 3

Opinion of KENNEDY, J.

“modify a term of imprisonment once it has been imposed,”

18 U. S. C. §3582(c); but the rule of finality is subject to a

few narrow exceptions. Here, the exception is contained in

a statutory provision enacted to permit defendants whose

Guidelines sentencing range has been lowered by retro

active amendment to move for a sentence reduction if the

terms of the statute are met. The statute provides:

“In 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 pursuant to 28 U. S. C. 994(o) . . . 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.” §3582(c)(2).

This case concerns the application of the statute to cases

in which defendants enter into plea agreements under

Rule 11(c)(1)(C). That Rule permits the parties to “agree

that a specific sentence or sentencing range is the appro

priate disposition of the case, . . . [a request which] binds

the court once the court accepts the plea agreement.” The

question is whether defendants who enter into 11(c)(1)(C)

agreements that specify a particular sentence may be said

to have been sentenced “based on” a Guidelines sentencing

range, making them eligible for relief under §3582(c)(2).

B

Petitioner William Freeman was indicted in 2005 for

various crimes, including possessing with intent to dis

tribute cocaine base. 21 U. S. C. §§841(a)(1); (b)(1)(C). He

entered into an agreement under Rule 11(c)(1)(C) in which

he agreed to plead guilty to all charges. In return the

Government “agree[d] that a sentence of 106 months’ in

carceration is the appropriate disposition of this case.”

4 FREEMAN v. UNITED STATES

Opinion of KENNEDY, J.

App. 26a. The agreement states that “[b]oth parties have

independently reviewed the Sentencing Guidelines appli

cable in this case,” and that “[Freeman] agrees to have his

sentence determined pursuant to the Sentencing Guide

lines.” The agreement reflects the parties’ expectation

that Freeman would face a Guidelines range of 46 to 57

months, id., at 27a–28a (Offense Level 19, Criminal His

tory Category IV), along with a consecutive mandatory

minimum of 60 months for possessing a firearm in fur

therance of a drug-trafficking crime under 18 U. S. C.

§924(c)(1)(A). The recommended sentence of 106 months

thus corresponded with the minimum sentence suggested

by the Guidelines, in addition to the 60-month §924(c)

(1)(A) sentence.

The District Court accepted the plea agreement. At the

sentencing hearing, the court “adopt[ed] the findings of

the probation officer disclosed in the probation report and

application of the guidelines as set out therein.” App. 47a.

“[H]aving considered the advisory guidelines and 18 USC

3553(a),” the court imposed the recommended 106-month

sentence, which was “within the guideline ranges”—the

46- to 57-month range the parties had anticipated plus the

mandatory 60 months under §924(c)(1)(A)—and “sufficient

to meet the objectives of the law.” Id. at 48a–49a.

Three years later, the Commission issued a retroactive

amendment to the Guidelines to remedy the significant

disparity between the penalties for cocaine base and pow

der cocaine offenses. See United States Sentencing Com

mission, Guidelines Manual Supp. App. C, Amdt. 706

(Nov. 2010) (USSG) (effective Nov. 1, 2007) (adjusting

Guidelines); id., Amdt. 713 (effective Mar. 3, 2008) (mak

ing Amendment 706 retroactive). Its effect was to reduce

Freeman’s applicable sentencing range to 37 to 46 months,

again with the consecutive 60-month mandatory mini

mum. App. 142a–144a (Sealed).

Freeman moved for a sentence reduction under

Cite as: 564 U. S. ____ (2011) 5

Opinion of KENNEDY, J.

§3582(c)(2). The District Court, however, denied the

motion, and the Court of Appeals for the Sixth Circuit

affirmed. United States v. Goins, 355 Fed. Appx. 1 (2009).

Adhering to its decision in United States v. Peveler, 359

F. 3d 369 (2004), the Court of Appeals held that defen

dants sentenced following 11(c)(1)(C) agreements that

specify a particular sentence are ineligible for §3582(c)(2)

relief, barring a miscarriage of justice or mutual mistake.

This Court granted certiorari. 561 U. S. __ (2010).

II

Federal sentencing law requires the district judge in

every case to impose “a sentence sufficient, but not greater

than necessary, to comply with” the purposes of federal

sentencing, in light of the Guidelines and other §3553(a)

factors. 18 U. S. C. §3553(a). The Guidelines provide a

framework or starting point—a basis, in the commonsense

meaning of the term—for the judge’s exercise of discretion.

E.g., 1 Oxford English Dictionary 977 (2d ed. 1989). Rule

11(c)(1)(C) permits the defendant and the prosecutor to

agree that a specific sentence is appropriate, but that

agreement does not discharge the district court’s inde

pendent obligation to exercise its discretion. In the usual

sentencing, whether following trial or plea, the judge’s

reliance on the Guidelines will be apparent, for the judge

will use the Guidelines range as the starting point in the

analysis and impose a sentence within the range. Gall v.

United States, 552 U. S. 38, 49 (2007). Even where the

judge varies from the recommended range, id., at 50, if the

judge uses the sentencing range as the beginning point to

explain the decision to deviate from it, then the Guidelines

are in a real sense a basis for the sentence.

Rule 11(c)(1)(C) makes the parties’ recommended sen

tence binding on the court “once the court accepts the plea

agreement,” but the governing policy statement confirms

that the court’s acceptance is itself based on the Guide

6 FREEMAN v. UNITED STATES

Opinion of KENNEDY, J.

lines. See USSG §6B1.2. That policy statement forbids

the district judge to accept an 11(c)(1)(C) agreement with

out first evaluating the recommended sentence in light

of the defendant’s applicable sentencing range. The com

mentary to §6B1.2 advises that a court may accept an

11(c)(1)(C) agreement “only if the court is satisfied either

that such sentence is an appropriate sentence within the

applicable guideline range or, if not, that the sentence de

parts from the applicable guideline range for justifiable

reasons.” Cf. Stinson v. United States, 508 U. S. 36 (1993)

(Guidelines commentary is authoritative). Any bargain

between the parties is contingent until the court accepts

the agreement. The Guidelines require the district judge

to give due consideration to the relevant sentencing range,

even if the defendant and prosecutor recommend a specific

sentence as a condition of the guilty plea.

This approach finds further support in the policy state

ment that applies to §3582(c)(2) motions. See USSG

§1B1.10. It instructs the district court in modifying a

sentence to substitute only the retroactive amendment

and then leave all original Guidelines determinations in

place. §1B1.10(b)(1). In other words, the policy statement

seeks to isolate whatever marginal effect the since

rejected Guideline had on the defendant’s sentence. Work

ing backwards from this purpose, §3582(c)(2) modification

proceedings should be available to permit the district

court to revisit a prior sentence to whatever extent the

sentencing range in question was a relevant part of the

analytic framework the judge used to determine the sen

tence or to approve the agreement. This is the only rule

consistent with the governing policy statement, a state

ment that rests on the premise that a Guideline range

may be one of many factors that determine the sentence

imposed.

Thus, the text and purpose of the three relevant

sources—the statute, the Rule, and the governing policy

Cite as: 564 U. S. ____ (2011) 7

Opinion of KENNEDY, J.

statements—require the conclusion that the district court

has authority to entertain §3582(c)(2) motions when sen

tences are imposed in light of the Guidelines, even if the

defendant enters into an 11(c)(1)(C) agreement.

III

The transcript of petitioner’s sentencing hearing reveals

that his original sentence was based on the Guidelines.

The District Court first calculated the sentencing range,

as both §3553(a)(4) and §6B1.2(c) require. App. 47a, 49a.

It explained that it “considered the advisory guidelines

and 18 USC 3553(a),” and that “the sentence imposed . . .

fall[s] within the guideline rang[e] and [is] sufficient to

meet the objectives of the law.” Id., at 48a–49a. Apart

from the defense attorney’s initial statement that the case

involved a “(C) plea,” id., at 47a, the hearing proceeded as

if the agreement did not exist. The court expressed its

independent judgment that the sentence was appropriate

in light of the applicable Guidelines range, and its decision

was therefore “based on” that range.

IV

The Government asks this Court to hold that sentences

like petitioner’s, which follow an 11(c)(1)(C) agreement,

are based only on the agreement and not the Guidelines,

and therefore that defendants so sentenced are ineligible

for §3582(c)(2) relief. The Government’s position rests in

part on the concern that the conclusion reached here will

upset the bargain struck between prosecutor and defen

dant. See Brief for United States 42–43. That, however,

has nothing to do with whether a sentence is “based on”

the Guidelines under §3582(c)(2). And in any event, the

concern is overstated. Retroactive reductions to sentenc

ing ranges are infrequent, so the problem will not arise

often. Thompson, DOJ’s Attack on Federal Judicial “Leni

ency,” the Supreme Court’s Response, and the Future of

8 FREEMAN v. UNITED STATES

Opinion of KENNEDY, J.

Criminal Sentencing, 44 Tulsa L. Rev. 519, 535 (2009).

More important, the district court’s authority under

§3582(c)(2) is subject to significant constraints, constraints

that can be enforced by appellate review.

The binding policy statement governing §3582(c)(2)

motions places considerable limits on district court discre

tion. All Guidelines decisions from the original sentencing

remain in place, save the sentencing range that was al

tered by retroactive amendment. USSG §1B1.10(b)(1). In

an initial sentencing hearing, a district court can vary

below the Guidelines; but, by contrast, below-Guidelines

modifications in §3582(c)(2) proceedings are forbidden,

USSG §1B1.10(b)(2)(A), except where the original sen

tence was itself a downward departure. §1B1.10(b)(2)(B).

And the court must always “consider the nature and seri

ousness of the danger to any person or the community that

may be posed by a reduction in the defendant’s term of

imprisonment.” §1B1.10, comment., n. 1(B)(ii). The dis

trict court’s authority is limited; and the Courts of Ap

peals, and ultimately this Court, can ensure that district

courts do not overhaul plea agreements, thereby abusing

their authority under §3582(c)(2). See Dillon v. United

States, 560 U. S. ___ (2010) (reviewing and affirming a

§3582(c)(2) sentence reduction); Gall, 552 U. S., at 49 (all

sentences are reviewable for abuse of discretion).

The Government would enact a categorical bar on

§3582(c)(2) relief. But such a bar would prevent district

courts from making an inquiry that is within their own

special knowledge and expertise. What is at stake in this

case is a defendant’s eligibility for relief, not the extent of

that relief. Indeed, even where a defendant is permitted

to seek a reduction, the district judge may conclude that a

reduction would be inappropriate. District judges have a

continuing professional commitment, based on scholarship

and accumulated experience, to a consistent sentencing

policy. They can rely on the frameworks they have de

Cite as: 564 U. S. ____ (2011) 9

Opinion of KENNEDY, J.

vised to determine whether and to what extent a sentence

reduction is warranted in any particular case. They may,

when considering a §3582(c)(2) motion, take into account

a defendant’s decision to enter into an 11(c)(1)(C) agree

ment. If the district court, based on its experience and

informed judgment, concludes the agreement led to a more

lenient sentence than would otherwise have been imposed,

it can deny the motion, for the statute permits but does

not require the court to reduce a sentence. This discretion

ensures that §3582(c)(2) does not produce a windfall.

As noted, the opinion concurring in the judgment sug

gests an intermediate position. That opinion argues that

in general defendants sentenced following 11(c)(1)(C)

agreements are ineligible for §3582(c)(2) relief, but relief

may be sought where the plea agreement itself contem

plates sentence reduction. The statute, however, calls for

an inquiry into the reasons for a judge’s sentence, not the

reasons that motivated or informed the parties. If, as the

Government suggests, the judge’s decision to impose a

sentence is based on the agreement, then §3582(c)(2)

does not apply. The parties cannot by contract upset an

otherwise-final sentence. And the consequences of this

erroneous rule would be significant. By allowing modifica

tion only when the terms of the agreement contemplate it,

the proposed rule would permit the very disparities the

Sentencing Reform Act seeks to eliminate.

The Act aims to create a comprehensive sentencing

scheme in which those who commit crimes of similar

severity under similar conditions receive similar sen

tences. See 18 U. S. C. §3553(a)(6); K. Stith & J.

Cabranes, Fear of Judging 104–105 (1998). Section

3582(c)(2) contributes to that goal by ensuring that district

courts may adjust sentences imposed pursuant to a range

that the Commission concludes are too severe, out of step

with the seriousness of the crime and the sentencing

ranges of analogous offenses, and inconsistent with the

10 FREEMAN v. UNITED STATES

Opinion of KENNEDY, J.

Act’s purposes.

The crack-cocaine range here is a prime example of an

unwarranted disparity that §3582(c)(2) is designed to cure.

The Commission amended the crack-cocaine Guidelines

to effect a “partial remedy” for the “urgent and compel

ling” problem of crack-cocaine sentences, which, the Com

mission concluded, “significantly undermines the various

congressional objectives set forth in the Sentencing Re

form Act.” United States Sentencing Commission, Report

to Congress: Cocaine and Federal Sentencing Policy,

pp. 8–10 (May 2007); see also USSG Supp. App. C, Amdt.

706; Kimbrough v. United States, 552 U. S. 85, 99–100

(2007). The Commission determined that those Guide

lines were flawed, and therefore that sentences that relied

on them ought to be reexamined. There is no good reason

to extend the benefit of the Commission’s judgment only to

an arbitrary subset of defendants whose agreed sentences

were accepted in light of a since-rejected Guidelines range

based on whether their plea agreements refer to the

Guidelines. Congress enacted §3582(c)(2) to remedy sys

temic injustice, and the approach outlined in the opinion

concurring in the judgment would undercut a systemic

solution.

Even when a defendant enters into an 11(c)(1)(C) agree

ment, 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 eligi

ble to seek §3582(c)(2) relief. This straightforward analy

sis would avoid making arbitrary distinctions between

similar defendants based on the terms of their plea

agreements. And it would also reduce unwarranted dis

parities in federal sentencing, consistent with the pur

poses of the Sentencing Reform Act.

* * *

The judgment of the Court of Appeals is reversed and

Cite as: 564 U. S. ____ (2011)

11

Opinion of KENNEDY, J.

this case is remanded for further proceedings.

It is so ordered.

Cite as: 564 U. S. ____ (2011) 1

SOTOMAYOR, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–10245

_________________

WILLIAM FREEMAN, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2011]

JUSTICE SOTOMAYOR, concurring in the judgment.

I agree with the plurality that petitioner William Free

man is eligible for sentence reduction under 18 U. S. C.

§3582(c)(2), but I differ as to the reason why. In my 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) ((C) agreement) is “based

on” the agreement itself, not on the judge’s calculation of

the Sentencing Guidelines. However, I believe that if a (C)

agreement expressly uses a Guidelines sentencing range

applicable to the charged offense to establish the term of

imprisonment, and that range is subsequently lowered by

the United States Sentencing Commission, the term of

imprisonment is “based on” the range employed and

the defendant is eligible for sentence reduction under

§3582(c)(2).

I

To ask whether a particular term of imprisonment is

“based on” a Guidelines sentencing range is to ask

whether that range serves as the basis or foundation for

the term of imprisonment. No term of imprisonment—

2 FREEMAN v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

whether derived from a (C) agreement or otherwise—has

legal effect until the court enters judgment imposing it.

As a result, in applying §3582(c)(2) a court must discern

the foundation for the term of imprisonment imposed by

the sentencing judge. As the plurality explains, in the

normal course the district judge’s calculation of the Guide

lines range applicable to the charged offenses will serve as

the basis for the term of imprisonment imposed. See ante,

at 5; see also Gall v. United States, 552 U. S. 38, 49 (2007).

Sentencing under (C) agreements, however, is different.

At the time of sentencing, the term of imprisonment im

posed pursuant to a (C) agreement does not involve the

court’s independent calculation of the Guidelines or con

sideration of the other 18 U. S. C. §3553(a) factors. The

court may only accept or reject the agreement, and if

it chooses to accept it, at sentencing the court may only

impose the term of imprisonment the agreement calls for;

the court may not change its terms. See Fed. Rule Crim.

Proc. 11(c)(3)(A) (“To the extent the plea agreement is of

the type specified in [Rule 11(c)(1)(C)], the court may

accept the agreement, reject it, or defer a decision until

the court has reviewed the presentence report”); Advisory

Committee’s Notes on 1979 Amendments to Fed. Rule

Crim. Proc. 11, 18 U. S. C. App., pp. 583–584 (1982 ed.)

(“[C]ritical to a . . . (C) agreement is that the defendant

receive the . . . agreed-to sentence”); accord, United States

v. Rivera-Martínez, 607 F. 3d 283, 286 (CA1 2010); United

States v. Green, 595 F. 3d 432, 438 (CA2 2010).

In the (C) agreement context, therefore, it is the binding

plea agreement that is the foundation for the term of im

prisonment to which the defendant is sentenced. At the

moment of sentencing, the court simply implements the

terms of the agreement it has already accepted. Contrary

to the plurality’s view, see ante, at 5–6, the fact that USSG

§6B1.2(c) (Nov. 2010) instructs a district court to use the

Guidelines as a yardstick in deciding whether to accept a

Cite as: 564 U. S. ____ (2011) 3

SOTOMAYOR, J., concurring in judgment

(C) agreement does not mean that the term of imprison

ment imposed by the court is “based on” a particular

Guidelines sentencing range. The term of imprisonment

imposed by the sentencing judge is dictated by the terms

of the agreement entered into by the parties, not the

judge’s Guidelines calculation. In short, the term of im

prisonment imposed pursuant to a (C) agreement is, for

purposes of §3582(c)(2), “based on” the agreement itself.

To hold otherwise would be to contravene the very pur

pose of (C) agreements—to bind the district court and

allow the Government and the defendant to determine

what sentence he will receive. Although district courts

ordinarily have significant discretion in determining the

appropriate sentence to be imposed on a particular defen

dant, see Gall, 552 U. S., at 46, under Rule 11(c)(1)(C) it

is the parties’ agreement that determines the sentence to

be imposed, see Advisory Committee’s Notes on 1999

Amendments to Fed. Rule Crim. Proc. 11, 18 U. S. C. App.,

p. 1570 (2000 ed.) (noting that, under a (C) agreement,

“the government and defense have actually agreed on

what amounts to an appropriate sentence . . . . [T]his

agreement is binding on the court once the court accepts

it”). To be sure, the court “retains absolute discretion

whether to accept a plea agreement,” ibid., but once it

does it is bound at sentencing to give effect to the parties’

agreement as to the appropriate term of imprisonment.

Allowing district courts later to reduce a term of im

prisonment simply because the court itself considered

the Guidelines in deciding whether to accept the agree

ment would transform §3582(c)(2) into a mechanism by

which courts could rewrite the terms of (C) agreements in

ways not contemplated by the parties. At the time that

§3582(c)(2) was enacted in 1984, it was already well un

derstood that, under Rule 11, the term of imprisonment

stipulated in a (C) agreement bound the district court once

it accepted the agreement. See Fed. Rule Crim. Proc.

4 FREEMAN v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

11(e)(1) (1982) (specifying that the parties to a (C) agree

ment may “agree that a specific sentence is the appropri

ate disposition of the case”); United States v. French, 719

F. 2d 387, 389, n. 2 (CA11 1983) (per curiam) (noting that

a Rule 11(e)(1)(C) plea agreement was a “ ‘binding’ plea

bargain”).1

In the absence of any indication from the statutory text

or legislative history that §3582(c)(2) was meant to fun

damentally alter the way in which Rule 11(c)(1)(C) oper

ates, I cannot endorse the plurality’s suggestion that

§3582(c)(2) should be understood “to permit the district

court to revisit a prior sentence to whatever extent the

sentencing range in question was a relevant part of the

analytic framework the judge used to determine the sen

tence or to approve the agreement.” Ante, at 6; cf. Dillon

v. United States, 560 U. S. ___, ___ (2010) (slip op., at 8)

(“Congress intended [§3582(c)(2)] to authorize only a

limited adjustment to an otherwise final sentence”).

By the same token, the mere fact that the parties to a

(C) agreement may have considered the Guidelines in the

course of their negotiations does not empower the court

under §3582(c)(2) to reduce the term of imprisonment they

ultimately agreed upon, as Freeman argues. Undoubt

edly, he is correct that in most cases the Government and

the defendant will negotiate the term of imprisonment in a

(C) agreement by reference to the applicable Guidelines

provisions. See Brief for Petitioner 30–31 (“[T]he Guide

lines are . . . the starting point and initial benchmark for

plea negotiations”); Brief for United States 33 (noting the

“concededly strong likelihood that the parties will . . .

calculat[e] and conside[r] potential Guidelines ranges in

——————

1 Prior

to 2002, Rule 11’s provisions governing binding plea agree

ments were located in Rule 11(e)(1)(C). In substance they were largely

identical to the current rules in 11(c)(1)(C). See Fed. Rule Crim. Proc.

11(e)(1)(C) (2000).

Cite as: 564 U. S. ____ (2011) 5

SOTOMAYOR, J., concurring in judgment

the course of negotiating a plea agreement and selecting a

specific sentence”). This only makes sense; plea bargain

ing necessarily occurs in the shadow of the sentencing

scheme to which the defendant would otherwise be sub

ject. See United States v. Booker, 543 U. S. 220, 255

(2005) (“[P]lea bargaining takes place in the shadow of . . .

a potential trial” (emphasis deleted)).

The term of imprisonment imposed by the district court,

however, is not “based on” those background negotia-

tions; instead, as explained above, it is based on the binding

agreement produced by those negotiations. I therefore

cannot agree with Freeman that §3582(c)(2) calls upon

district courts to engage in a free-ranging search through

the parties’ negotiating history in search of a Guidelines

sentencing range that might have been relevant to the

agreement or the court’s acceptance of it. Nor can I agree

with the plurality that the district judge’s calculation of

the Guidelines provides the basis for the term of impris

onment imposed pursuant to a (C) agreement.

II

These conclusions, however, do not mean that a term of

imprisonment imposed pursuant to a (C) agreement can

never be reduced under §3582(c)(2), as the Government

contends. For example, Rule 11(c)(1)(C) allows the parties

to “agree that a specific . . . sentencing range is the appro

priate disposition of the case.” In delineating the agreed

upon term of imprisonment, some (C) agreements may

call for the defendant to be sentenced within a particular

Guidelines sentencing range. In such cases, the district

court’s acceptance of the agreement obligates the court to

sentence the defendant accordingly, and there can be no

doubt that the term of imprisonment the court imposes is

“based on” the agreed-upon sentencing range within the

meaning of §3582(c)(2). If that Guidelines range is sub

sequently lowered by the Sentencing Commission, the de

6 FREEMAN v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

fendant is eligible for sentence reduction.

Similarly, a plea agreement might provide for a specific

term of imprisonment—such as a number of months—but

also make clear that the basis for the specified term is

a Guidelines sentencing range applicable to the offense

to which the defendant pleaded guilty. As long as that

sentencing range is evident from the agreement itself, for

purposes of §3582(c)(2) the term of imprisonment imposed

by the court in accordance with that agreement is “based

on” that range. Therefore, when a (C) agreement ex

pressly uses a Guidelines sentencing range to establish

the term of imprisonment, and that range is subsequently

lowered by the Commission, the defendant is eligible for

sentence reduction under §3582(c)(2).2

In so holding, I necessarily reject the categorical rule

advanced by the Government and endorsed by the dissent,

which artificially divorces a (C) agreement from its ex

press terms.3 Because the very purpose of a (C) agreement

——————

2 Thedissent suggests that this rule results from a “mistaken shift in

analysis” in this opinion from the actions of the judge to the intent of

the parties. See post, at 4 (opinion of ROBERTS, C. J.). The purpose of a

(C) agreement, however, is to bind the sentencing court to the terms

agreed upon by the parties. See supra, at 3–4. Therefore, to determine

whether a sentence imposed pursuant to a (C) agreement was “based

on” a Guidelines sentencing range, the reviewing court must necessar

ily look to the agreement itself.

3 The majority of the Courts of Appeals to have addressed this ques

tion have taken approaches consistent with the one I take today. See

United States v. Rivera-Martínez, 607 F. 3d 283, 286–287 (CA1 2010);

United States v. Ray, 598 F. 3d 407, 409–410 (CA7 2010); United States

v. Main, 579 F. 3d 200, 203 (CA2 2009); United States v. Scurlark, 560

F. 3d 839, 842–843 (CA8 2009). It appears that only the Third Circuit

has applied the absolute rule advanced by the Government. See United

States v. Sanchez, 562 F. 3d 275, 282, and n. 8 (2009). As noted by the

plurality, see ante, at 1, even the Sixth Circuit allows for sentence

reduction “to avoid a miscarriage of justice or to correct a mutual

mistake,” United States v. Peveler, 359 F. 3d 369, 378, n. 4 (2004) (in

ternal quotation marks omitted). And only two Courts of Appeals

have adopted a wide-ranging approach similar to the one suggested by

Cite as: 564 U. S. ____ (2011) 7

SOTOMAYOR, J., concurring in judgment

is to allow the parties to determine the defendant’s sen

tence, when the agreement itself employs the particular

Guidelines sentencing range applicable to the charged

offenses in establishing the term of imprisonment, the

defendant is eligible to have his sentence reduced under

§3582(c)(2).4 In such cases, the district court’s reduction of

the sentence does not rewrite the plea agreement; instead,

it enforces the agreement’s terms.

Like the plurality, I am not persuaded by the Govern

ment’s argument that allowing a term of imprisonment

imposed pursuant to a (C) agreement to be reduced under

§3582(c)(2) deprives the Government of the benefit of the

bargain it struck with the defendant. When a (C) agree

ment explicitly employs a particular Guidelines sentenc

ing range to establish the term of imprisonment, the

agreement itself demonstrates the parties’ intent that

the imposed term of imprisonment will be based on that

range, as required for sentence reduction under the stat

ute.5 The Government’s concern that application of

——————

Freeman. See United States v. Garcia, 606 F. 3d 209, 214 (CA5 2010)

(per curiam); United States v. Cobb, 584 F. 3d 979, 985 (CA10 2009).

4 The dissent contends that, even when a (C) agreement expressly

uses a Guidelines sentencing range to establish the term of imprison

ment, the district court imposing a sentence pursuant to that agree

ment does not “appl[y]” that range within the meaning of the appli

cable Guidelines policy statement. See post, at 4–5 (citing USSG

§1B1.10(b)(1) (Nov. 2010)). But in so arguing, the dissent—like the

Government—would have courts ignore the agreement’s express terms,

which the court “applie[s]” when imposing the term of imprisonment.

5 The plurality asserts that “[t]here is no good reason to extend the

benefit [of sentence reduction] only to an arbitrary subset of defendants

. . . based on whether their plea agreements refer to the Guidelines.”

Ante, at 10. But the “good reason” is evident: Rule 11(c)(1)(C)’s entire

purpose is to allow the parties’ intent to determine sentencing out

comes. See supra, at 3–4. If a (C) agreement does not indicate the

parties’ intent to base the term of imprisonment on a particular Guide

lines range subsequently lowered by the Commission, then §3582(c)(2)

simply does not apply.

8 FREEMAN v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

§3582(c)(2) to (C) agreements will result in certain defen

dants receiving an “unjustified windfall” is therefore mis

placed. See Brief for United States 40, 43.

Furthermore, in cases where the Government believes

that even the limited sentence reduction authorized by

§3582(c)(2) and USSG §1B1.10 improperly benefits the

defendant, it can argue to the district court that the court

should not exercise its discretion under the statute to

reduce the sentence.6 See Dillon, 560 U. S., at ___ (slip

op., at 9) (noting that, in applying §3582(c)(2), the court

must “consider whether the authorized reduction is war

ranted, either in whole or in part, according to the factors

set forth in [18 U. S. C.] §3553(a)”).

Finally, if the Government wants to ensure ex ante that

a particular defendant’s term of imprisonment will not be

reduced later, the solution is simple enough: Nothing

prevents the Government from negotiating with a defen

dant to secure a waiver of his statutory right to seek sen

tence reduction under §3582(c)(2), just as it often does

with respect to a defendant’s rights to appeal and collater

ally attack the conviction and sentence.7 See 18 U. S. C.

§3742; 28 U. S. C. §2255 (2006 ed., Supp. III); see also

App. 28a–29a (provision in Freeman’s agreement ex

pressly waiving both rights). In short, application of

——————

6 For example, the district court might decline to reduce the term of

imprisonment of an eligible defendant in light of the Government’s

argument that it made significant concessions in the agreement—such

as dropping a charge or forgoing a future charge—and therefore it

would not have agreed to a lower sentence at the time the agreement

was made.

7 The opposite would not necessarily be true, however, under the

reading of §3582(c)(2) proposed by the Government and the dissent. If

a district court has no statutory authority to reduce a term of impris

onment imposed pursuant to a (C) agreement—because such a term is

never “based on” a Guidelines sentencing range within the meaning of

§3582(c)(2)—it is not clear how the parties could effectively confer that

authority upon the court by the terms of their agreement.

Cite as: 564 U. S. ____ (2011) 9

SOTOMAYOR, J., concurring in judgment

§3582(c)(2) to an eligible defendant does not—and will

not—deprive the Government of the benefit of its bargain.

III

In order to conclude that Freeman is eligible for sen

tence reduction under §3582(c)(2), the plea agreement

between Freeman and the Government must use a Guide

lines sentencing range that has subsequently been low

ered by the Sentencing Commission to establish the term

of imprisonment imposed by the District Court. Free

man’s agreement does.

The agreement states that Freeman “agrees to have his

sentence determined pursuant to the Sentencing Guide

lines,” App. 28a, and that 106 months is the total term of

imprisonment to be imposed, id., at 26a. The agreement

also makes clear that the §924(c)(1)(A) count to which

Freeman agrees to plead guilty carries a minimum sen

tence of 60 months, “which must be served consecutively

to” any other sentence imposed. Id., at 27a. This leaves

46 months unaccounted for. The agreement sets Free

man’s offense level at 19, as determined by the quantity of

drugs and his acceptance of responsibility, and states that

the parties anticipate a criminal history category of IV.

Id., at 27a–28a. Looking to the Sentencing Guidelines,

an offense level of 19 and a criminal history category of

IV produce a sentencing range of 46 to 57 months.8 See

USSG ch. 5, pt. A (sentencing table). Therefore, contrary

to the dissent’s curious suggestion that “there is no way

of knowing what th[e] sentence was ‘based on,’ ” post, at 6,

it is evident that Freeman’s agreement employed the

——————

8 Because it is the parties’ agreement that controls in the (C) agree

ment context, see supra, at 3–4, even if the District Court had calcu

lated the range differently than the parties, see post, at 8 (ROBERTS,

C. J., dissenting), Freeman would still be eligible for resentencing, as

long as the parties’ chosen range was one that was “subsequently . . .

lowered by the Sentencing Commission,” §3582(c)(2).

10 FREEMAN v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

46-month figure at the bottom end of this sentencing range,

in combination with the 60-month mandatory minimum

sentence under §924(c)(1)(A), to establish his 106-month

sentence.9 Thus the first of §3582(c)(2)’s conditions is

satisfied—Freeman’s term of imprisonment is “based on” a

Guidelines sentencing range.

In 2007 the Commission amended the Guidelines provi

sions applicable to cocaine base offenses, such that the

offense level applicable to the quantity of drugs for which

Freeman was charged was lowered from 22 to 20. See

App. 142a–143a (Sealed); USSG Supp. App. C, Amdt. 706.

Taking into account the three-level reduction for accep

tance of responsibility, Freeman’s recalculated offense

level is 17, resulting in an amended sentencing range of 37

to 46 months. Thus there can be no doubt that the Guide

lines sentencing range originally used to establish Free

man’s term of imprisonment “has subsequently been

——————

9 The dissent asks whether Freeman would be eligible for sentence

reduction if the agreement had called for a 53-month term of impris

onment. See post, at 7. Though that question is not presented by the

facts of this case, the answer is evident from the foregoing discussion: If

the agreement itself made clear that the parties arrived at the 53

month term of imprisonment by determining the sentencing range ap

plicable to Freeman’s offenses and then halving the 106-month figure

at its low end, he would have been eligible under §3582(c)(2). See

United States v. Franklin, 600 F. 3d 893, 897 (CA7 2010) (noting that a

(C) agreement would not foreclose relief under §3582(c)(2) if it provided

that the term of imprisonment was to be 40 percent below the low end

of the applicable sentencing range).

Of course, if a (C) agreement “does not contain any references to the

Guidelines,” post, at 8 (ROBERTS, C. J., dissenting), there is no way of

knowing whether the agreement “use[d] a Guidelines sentencing range

to establish the term of imprisonment,” supra, at 6, and a prisoner

sentenced under such an agreement would not be eligible. It is there

fore unclear why the dissent believes that the straightforward inquiry

called for by the rule I apply today will “foster confusion” among the

lower courts. Post, at 7. This approach is consistent with the one

already taken by most Courts of Appeals, see n. 3, supra, and there

is no indication that they have found it unpalatable, cf. post, at 9.

Cite as: 564 U. S. ____ (2011) 11

SOTOMAYOR, J., concurring in judgment

lowered by the Sentencing Commission,” §3582(c)(2), such

that the amendment “ha[s] the effect of lowering [Free

man’s] applicable guideline range,” §1B1.10(a)(2)(B). As

a result, Freeman’s term of imprisonment satisfies the

second of §3582(c)(2)’s conditions. I therefore concur in

the plurality’s judgment that he is eligible for sentence

reduction.

Cite as: 564 U. S. ____ (2011) 1

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 09–10245

_________________

WILLIAM FREEMAN, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2011]

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA,

JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.

The plurality and the opinion concurring in the judg­

ment agree on very little except the judgment. I on the

other hand agree with much of each opinion, but disagree

on the judgment. I agree with the concurrence that the

sentence imposed under a Rule 11(c)(1)(C) plea agreement

is based on the agreement, not the Sentencing Guidelines.

I would, however, adhere to that logic regardless whether

the agreement could be said to “use” or “employ” a Guide­

lines range in arriving at the particular sentence specified

in the agreement. Ante, at 1 (opinion of SOTOMAYOR, J.).

In that respect I agree with the plurality that the ap­

proach of the concurrence to determining when a Rule

11(c)(1)(C) sentence may be reduced is arbitrary and

unworkable. Ante, at 9–10.

Section 3582(c)(2) provides that “in the case of a defen­

dant who has been sentenced to a term of imprisonment

based on a sentencing range that has subsequently been

lowered by the Sentencing Commission,” a district court

“may reduce the term of imprisonment . . . if such a reduc­

tion is consistent with applicable policy statements issued

by the Sentencing Commission.” 18 U. S. C. §3582(c)(2).

The lone issue here is whether petitioner William Free­

man meets the initial prerequisite of having been sen­

2 FREEMAN v. UNITED STATES

ROBERTS, C. J., dissenting

tenced to a term of imprisonment “based on” a subse­

quently reduced sentencing range.

I agree with JUSTICE SOTOMAYOR that “the term of im­

prisonment imposed pursuant to a (C) agreement is, for

purposes of §3582(c)(2), ‘based on’ the agreement itself.”

Ante, at 3. In this case, Freeman executed a written plea

agreement in which the parties “agree[d] that a sentence

of 106 months’ incarceration [was] the appropriate disposi­

tion.” App. 26a. Because the plea agreement was entered

pursuant to Rule 11(c)(1)(C), that proposed sentence be­

came binding on the District Court once it accepted the

agreement. See Fed. Rule Crim. Proc. 11(c)(1)(C) (the

parties’ “request” for “a specific sentence” “binds the court

once the court accepts the plea agreement”). As a result,

when determining the sentence to impose on Freeman, the

District Court needed to consult one thing and one thing

only—the plea agreement. See ante, at 2 (opinion of

SOTOMAYOR, J.) (“At the moment of sentencing, the court

simply implements the terms of the agreement it has al­

ready accepted”).

I also agree with JUSTICE SOTOMAYOR that the “term of

imprisonment imposed by the sentencing judge is dictated

by the terms of the agreement entered into by the par­

ties, not the judge’s Guidelines calculation,” and that

“[a]l-lowing district courts later to reduce a term of impris­

onment simply because the court itself considered the

Guidelines in deciding whether to accept the agreement

would transform §3582(c)(2) into a mechanism by which

courts could rewrite the terms of (C) agreements in ways

not contemplated by the parties.” Ante, at 3.

But then comes the O. Henry twist: After cogently ex­

plaining why a Rule 11(c)(1)(C) sentence is based on the

plea agreement, JUSTICE SOTOMAYOR diverges from that

straightforward conclusion and holds that Freeman never­

theless satisfies the threshold requirement in §3582(c)(2).

According to her opinion, if a Rule 11(c)(1)(C) “agreement

Cite as: 564 U. S. ____ (2011) 3

ROBERTS, C. J., dissenting

expressly uses a Guidelines sentencing range applicable

to the charged offense to establish the term of imprison­

ment”—or if such use is “evident from the agreement”—

then the defendant’s “term of imprisonment is ‘based on’

the range employed and the defendant is eligible for sen­

tence reduction under §3582(c)(2).” Ante, at 1, 6. This

exception is in my view as mistaken as the position of the

plurality—and basically for the same reasons.

JUSTICE SOTOMAYOR begins the departure from her

own rule innocently enough. As she explains, “some (C)

agreements may call for the defendant to be sentenced

within a particular Guidelines sentencing range.” Ante, at

5. In such a case, according to JUSTICE SOTOMAYOR, there

can be “no doubt” that the prison term the court imposes is

“based on” the agreed-upon sentencing range, and there­

fore the defendant is eligible for sentence reduction. Ibid.

Whether or not that is true, it provides no support for

the next step:

“Similarly, a plea agreement might provide for a

specific term of imprisonment—such as a number of

months—but also make clear that the basis for the

specified term is a Guidelines sentencing range appli­

cable to the offense to which the defendant pleaded

guilty. As long as that sentencing range is evident

from the agreement itself . . . the term of imprison­

ment imposed by the court in accordance with that

agreement is ‘based on’ that range.” Ante, at 6.

This category of cases is not “similar” to the first at all.

It is one thing to say that a sentence imposed pursuant to

an agreement expressly providing that the court will

sentence the defendant within an applicable Guidelines

range is “based on” that range. It is quite another to

conclude that an agreement providing for a specific term is

“similarly” based on a Guidelines range, simply because

the specified term can be said to reflect that range.

4 FREEMAN v. UNITED STATES

ROBERTS, C. J., dissenting

According to the concurrence, if the parties simply “con­

sider[ ] the Guidelines” or “negotiate . . . by reference”

to them, the defendant is not eligible for a sentence reduc­

tion. Ante, at 4. If, however, the agreement sets forth a

specific term but it is somehow “clear that the basis for the

specified term is a Guidelines sentencing range,” then the

defendant is eligible for a sentence reduction. Ante, at 6.

This head-scratching distinction between negotiating by

reference to the Guidelines and using them as a basis for

the specified term makes for an unworkable test that can

yield only arbitrary results.

The confusion is compounded by the varying standards

in the concurrence. Sometimes the test is whether an

agreement “expressly uses” a Guidelines sentencing range,

ante, at 1, 6; see ante, at 7 (“explicitly employs”). Other

times the test is whether such use is “evident,” ante, at 6,

9; see ante, at 10, n. 9 (“clear”). A third option is whether

the agreement “indicate[s] the parties’ intent to base the

term of imprisonment on a particular Guideline range.”

Ante, at 7, n. 5 (emphasis added).

The error in the concurring opinion is largely attribut­

able to a mistaken shift in analysis. In the first half of the

opinion, the inquiry properly looks to what the judge does:

He is, after all, the one who imposes the sentence. After

approving the agreement, the judge considers only the

fixed term in the agreement, so the sentence he actually

imposes is not “based on” the Guidelines.

In the second half of the opinion, however, the analysis

suddenly shifts, and focuses on the parties: Did they “use”

or “employ” the Guidelines in arriving at the term in their

agreement? But §3582(c)(2) is concerned only with

whether a defendant “has been sentenced to a term of

imprisonment based on a sentencing range.” Only a court

can sentence a defendant, so there is no basis for examin­

ing why the parties settled on a particular prison term.

This conclusion dovetails with USSG §1B1.10(b)(1)—

Cite as: 564 U. S. ____ (2011) 5

ROBERTS, C. J., dissenting

the Sentencing Commission’s policy statement governing

whether a defendant is eligible for a reduction under

§3582(c)(2). As we explained last Term, §3582(c)(2) re­

quires a district court “to follow the Commission’s instruc­

tions in §1B1.10 to determine the prisoner’s eligibility

for a sentence modification.” Dillon v. United States,

560 U. S. ___, ___ (2010) (slip op., at 9). According to

§1B1.10(b)(1), the court must first determine “the

amended guideline range that would have been applicable

to the defendant” if the retroactively amended provision

had been in effect at the time of his sentencing. “In mak­

ing such determination, the court shall substitute only

the amendments . . . for the corresponding guideline pro­

visions that were applied when the defendant was sen

tenced.” USSG §1B1.10(b)(1), p. s. (emphasis added).

As noted, the District Court sentenced Freeman pursu­

ant to the term specified by his plea agreement; it never

“applied” a Guidelines provision in imposing his term of

imprisonment. The fact that the court may have “use[d]

the Guidelines as a yardstick in deciding whether to ac­

cept a (C) agreement does not mean that the term of im­

prisonment imposed by the court is ‘based on’ a particular

Guidelines sentencing range.” Ante, at 2–3 (opinion of

SOTOMAYOR, J.). Even if the Guidelines were “used” or

“employed” by the parties in arriving at the Rule

11(c)(1)(C) sentencing term, they were not “applied when

the defendant was sentenced.” Once the District Court

accepted the agreement, all that was later “applied” was

the sentence set forth in that agreement.

JUSTICE SOTOMAYOR is wrong to assert that her stan­

dard “does not rewrite the plea agreement” but rather

“enforces the agreement’s terms.” Ante, at 7. According to

the concurrence, “[w]hen a (C) agreement explicitly em­

ploys a particular Guidelines sentencing range to establish

the term of imprisonment, the agreement itself demon­

strates the parties’ intent that the imposed term of im­

6 FREEMAN v. UNITED STATES

ROBERTS, C. J., dissenting

prisonment will be based on that range,” and therefore

subject to reduction if the Commission subsequently low­

ers that range. Ibid. In this case, JUSTICE SOTOMAYOR

concludes that Freeman’s agreement contemplated such a

reduction, even though the parties had “agree[d] that a

sentence of 106 months’ incarceration is the appropriate

disposition of this case.” App. 26a.

There is, however, no indication whatever that the par­

ties to the agreement contemplated the prospect of low­

ered sentencing ranges. And it is fanciful to suppose that

the parties would have said “106 months” if what they

really meant was “a sentence at the lowest end of the

applicable Guidelines range.” Cf. App. 25a (parties in this

case recommending “a fine at the lowest end of the appli­

cable Guideline Range”). In concluding otherwise, the

concurrence “ignore[s] the agreement’s express terms.”

Ante, at 7, n. 4.

The reality is that whenever the parties choose a fixed

term, there is no way of knowing what that sentence was

“based on.” The prosecutor and the defendant could well

have had quite different reasons for concluding that 106

months was a good deal. Perhaps the prosecutor wanted

to devote the limited resources of his office to a different

area of criminal activity, rather than try this case. Per­

haps the defendant had reason to question the credibility

of one of his key witnesses, and feared a longer sentence if

the case went to trial.

Indeed, the fact that there may be uncertainty about

how to calculate the appropriate Guidelines range could be

the basis for agreement on a fixed term in a plea under

Rule 11(c)(1)(C). Here the agreement made clear that

there was some doubt about the Guidelines calculations.

See App. 28a (“Both parties reserve the right to object to

the USSG §4A1.1 calculation of defendant’s criminal

history”); ibid. (the parties acknowledge that their Guide­

lines calculations “are not binding upon the Court” and

Cite as: 564 U. S. ____ (2011) 7

ROBERTS, C. J., dissenting

that the “defendant understands the Court will independ­

ently calculate the Guidelines at sentencing and defendant

may not withdraw the plea of guilty solely because the

Court does not agree with . . . [the] Sentencing Guideline

application”).

In addition, parties frequently enter plea agreements

that reflect prosecutorial decisions not to pursue particu­

lar counts. If a defendant faces three counts, and agrees

to plead to one if the prosecutor does not pursue the other

two, is the sentence reflected in the Rule 11(c)(1)(C)

agreement in any sense “based on” the Guidelines sentenc­

ing range for the one count to which the defendant

pleaded? Surely not. The concurrence tacitly concedes as

much when it suggests that an agreement to “drop[ ] a

charge or forgo[ ] a future charge” could ultimately be

grounds for not reducing the defendant’s sentence. Ante,

at 8, n. 6. But what this really shows is a basic flaw in the

“based on” test adopted by that opinion.

Finally, JUSTICE SOTOMAYOR’s approach will foster con­

fusion in an area in need of clarity. As noted, courts

will be hard pressed to apply the distinction between

referring to and relying on a Guidelines range. Other

questions abound:

What if the agreement contains a particular Guidelines

calculation but the agreement’s stipulated sentence is out­

side the parties’ predicted Guidelines range? The test

in the concurring opinion is whether the agreement “uses”

or “employs” a Guidelines sentencing range to establish

the term of imprisonment, ante, at 1, not whether that

term falls within the range. In this case, what if the term

was 53 months—exactly half the low end of the sentencing

range anticipated by the parties? Is it “evident” in that

case that the Guidelines were used or employed to estab­

lish the agreed-upon sentence?*

——————

* JUSTICE SOTOMAYOR responds that “[i]f the agreement itself made

8 FREEMAN v. UNITED STATES

ROBERTS, C. J., dissenting

What if the plea agreement does not contain any refer­

ences to the Guidelines—not even the partial and tenta­

tive Guidelines calculations in Freeman’s agreement—but

the binding sentence selected by the parties corresponds

exactly to the low end of the applicable Guidelines range?

Is it “evident” in that case that the agreement is based on

a sentencing range?

What if the District Court calculates the applicable

Guidelines range differently than the parties? This is no

academic hypothetical. See, e.g., United States v. Frank

lin, 600 F. 3d 893, 896–897 (CA7 2010) (noting that “the

district court settled on a higher guidelines range than

that contemplated in the [Rule 11(c)(1)(C)] plea agree­

ment”). Is a Rule 11(c)(1)(C) sentence still subject to

reduction if the parties relied on the wrong sentencing

range? JUSTICE SOTOMAYOR’s surprising answer is “yes,”

see ante, at 9, n. 8, even though the governing Guide­

lines provision specifies that a defendant is only eligible

for sentence reduction if the amended Guideline has “the

effect of lowering the defendant’s applicable guideline

range”—presumably the correct applicable guideline

range. See USSG §1B1.10(a)(2), p. s. Relying on error is

just one unforeseen consequence of looking not to the

specified term in a Rule 11(c)(1)(C) agreement, but instead

trying to reconstruct what led the parties to agree to that

term in the first place.

This confusion will invite the very thing JUSTICE

SOTOMAYOR claims to disavow: a “free-ranging search” by

district courts “through the parties’ negotiating history in

search of a Guidelines sentencing range that might have

been relevant to the agreement.” Ante, at 5. This is par­

——————

clear” that the parties arrived at the 53-month figure by determining

the sentencing range and then halving the range’s low end—106

months—then the sentence could be reduced. Ante, at 10, n. 9. Does

the 53-month figure itself make that clear? What if the figure is 26½

months?

Cite as: 564 U. S. ____ (2011) 9

ROBERTS, C. J., dissenting

ticularly unfortunate given that the whole point of Rule

11(c)(1)(C) agreements is to provide the parties with cer­

tainty about sentencing.

* * *

As with any negotiation, parties entering a Rule 11(c)

(1)(C) plea agreement must take the bitter with the

sweet. Because of today’s decision, however, Freeman gets

more sweet and the Government more bitter than either

side bargained for. But those who will really be left with a

sour taste after today’s decision are the lower courts

charged with making sense of it going forward.

I respectfully dissent.