United States v. Brown

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

v.  No. 09-7561

JAMES RODERCK BROWN, a/k/a JB,

Defendant-Appellee.



Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, District Judge.

(1:04-cr-00087-IMK-1)

Argued: September 21, 2010

Decided: August 9, 2011

Before WILKINSON, SHEDD, and DUNCAN,

Circuit Judges.

Reversed by published opinion. Judge Shedd wrote the opin-

ion in which Judge Wilkinson and Judge Duncan joined.

COUNSEL

ARGUED: Shawn Angus Morgan, OFFICE OF THE

UNITED STATES ATTORNEY, Clarksburg, West Virginia,

for Appellant. Brian Joseph Kornbrath, Federal Public

Defender, Clarksburg, West Virginia, for Appellee. ON

2 UNITED STATES v. BROWN

BRIEF: Sharon L. Potter, United States Attorney, Wheeling,

West Virginia, for Appellee.

OPINION

SHEDD, Circuit Judge:

The United States appeals the district court’s grant of

James Brown’s motion for a reduced sentence pursuant to 18

U.S.C. § 3582(c)(2). The Government argues that the district

court lacked the authority to grant such relief because

Brown’s sentence was not "based on" a sentencing range that

was subsequently lowered but, rather, on his plea agreement

entered pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C). In light of the Supreme Court’s recent opinion,

Freeman v. United States, 564 U.S. ___ (2011), we agree with

the Government and reverse the order of the district court.

I.

On January 21, 2005, Brown pled guilty to maintaining a

place at his residence for the purpose of manufacturing, dis-

tributing, and using cocaine base, also known as crack, in vio-

lation of 21 U.S.C. § 856(a)(1). Brown entered a plea

agreement under Federal Rule of Criminal Procedure

11(c)(1)(C). The plea agreement provides that:

The United States and the defendant agree, pursuant

to Rule 11(c)(1)(C) of the Federal Rules of Criminal

Procedure, that the appropriate sentence in this case

is incarceration for not less than 180 months and not

more than 240 months. The defendant understands

that should the Court, after consideration of the cir-

cumstances surrounding this case, accept this plea

agreement that the Court will not have the discretion

to sentence him to less than 180 months. This agree-

UNITED STATES v. BROWN 3

ment is made by the government in consideration of

the defendant’s plea of guilty thereby relieving the

government of its burden of proof on Count Two.

This agreement is made by the defendant in consid-

eration of the government’s declination to pursue a

mandatory life sentence on Count One under the pro-

visions of Title 21, United States Code, §§ 841(b)(1)

and 851(a).

(J.A. 18 (emphasis added).) On June 9, 2005, after reviewing

the applicable Sentencing Guidelines range, the district court

sentenced Brown to a 210 month term of imprisonment in

accordance with the terms of the plea agreement.

On May 22, 2009, Brown filed a motion for a reduced sen-

tence pursuant to 18 U.S.C. § 3582(c)(2) based on the United

States Sentencing Commission’s 2007 retroactive crack

cocaine amendments. The district court granted Brown’s

motion and reduced his sentence to 180 months. The Govern-

ment appealed, contending that the district court lacked the

authority to modify Brown’s sentence entered under a Rule

11(c)(1)(C) plea agreement. Following oral argument, the

Supreme Court granted certiorari in Freeman v. United States,

564 U.S. ___ (2011), to answer this same question, and we

held our opinion in abeyance pending the Supreme Court

decision.

II.

A district court has the authority to reduce a previously

imposed term of imprisonment "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[.]" 18 U.S.C. § 3582(c)(2). At issue

in this case is whether a sentence imposed pursuant to a Rule

11(c)(1)(C) plea agreement is "based on" a sentencing range.

A Rule 11(c)(1)(C) plea agreement may stipulate that "a spe-

cific sentence or sentencing range is the appropriate disposi-

4 UNITED STATES v. BROWN

tion of the case, or that a particular provision of the

Sentencing Guidelines, or policy statement, or sentencing fac-

tor does or does not apply[.]" Fed. R. Crim. P. 11(c)(1)(C).

"[S]uch a recommendation or request binds the court once the

court accepts the plea agreement." Id.

In Freeman, the Supreme Court faced the same question

presented here and responded by delivering a fractured opin-

ion. A plurality of the Court concluded that a district court can

always grant § 3582(c)(2) relief to a defendant who enters

into a Rule 11(c)(1)(C) plea agreement. In contrast, a four-

Justice dissent determined that a district court can never grant

§ 3582(c)(2) relief to such defendants because their sentences

are based, not on a sentencing range, but on their plea agree-

ments. Finally, in a concurring opinion, Justice Sotomayor

decided that district courts can sometimes grant § 3582(c)(2)

relief to a defendant who enters a Rule 11(c)(1)(C) plea agree-

ment.

Justice Sotomayor agreed with the dissent that a sentence

imposed pursuant to a Rule 11(c)(1)(C) plea agreement is

based on the agreement and, therefore, § 3582(c)(2) relief is

usually not available. The fact that a judge may consult the

Sentencing Guidelines when deciding whether to accept a

Rule 11(c)(1)(C) plea agreement is irrelevant. "[P]lea bargain-

ing necessarily occurs in the shadow of the sentencing scheme

to which the defendant would otherwise be subject. The term

of imprisonment imposed by the district court, however, is not

‘based on’ those background negotiations; instead . . . it is

based on the binding agreement produced by those negotia-

tions." Freeman, slip op. at 5 (Sotomayor, J., concur-

ring)(internal citations omitted). However, Justice Sotomayor

established an exception to this general rule — where the plea

agreement itself expressly refers to and relies upon a Guide-

lines sentencing range. This limited exception is defined as

follows:

[I]f a (C) agreement expressly uses a Guidelines sen-

tencing range applicable to the charged offense to

UNITED STATES v. BROWN 5

establish the term of imprisonment, and that range is

subsequently lowered by the United States Sentenc-

ing Commission, the term of imprisonment is "based

on" the range employed and the defendant is eligible

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

Freeman, slip op. at 1 (Sotomayor, J., concurring). Under the

fragmented opinion, Justice Sotomayor’s rationale becomes

the Court’s holding.1

III.

Applying Justice Sotomayor’s test, we believe the district

court lacked the authority to grant Brown § 3582 relief.

Brown’s Rule 11(c)(1)(C) plea agreement does not expressly

use a Guidelines sentencing range to establish his term of impris-

onment.2 His plea agreement simply states that "the appropri-

ate sentence in this case is incarceration for not less than 180

months and not more than 240 months." (J.A. 18.) The fact

that the district court consulted the Guidelines in establishing

Brown’s specific sentence is irrelevant. See Freeman, slip op.

1

"It is well established, under Marks v. United States, 430 U.S. 188, 97

S.Ct. 990, 51 L.Ed.2d 260 (1977), that when a decision of the Court lacks

a majority opinion, the opinion of the Justices concurring in the judgment

on the ‘narrowest grounds’ is to be regarded as the Court’s holding." A.T.

Massey Coal Co. v. Massanari, 305 F.3d 226, 236 (4th Cir. 2002). In our

view, under the Marks rule, Justice Sotomayor’s concurrence is the

Court’s holding in Freeman because it is the narrowest opinion that "em-

bodies a position implicitly approved by at least five Justices who support

the judgment." Id. Every Justice who joined in the plurality opinion would

agree with Justice Sotomayor that "when a (C) agreement expressly 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)." Freeman, slip op. at

6 (Sotomayor, J., concurring).

2

In contrast, the relevant plea agreement in Freeman explicitly calcu-

lated the applicable Guidelines range and states that "[Freeman] agrees to

have his sentence determined pursuant to the Sentencing Guidelines."

Freeman, slip op. at 4.

6 UNITED STATES v. BROWN

at 5 (Sotomayor, J., concurring). Therefore, Brown’s plea

agreement does not satisfy the limited exception recognized

in Justice Sotomayor’s concurrence. Consequently, the plea

agreement itself "is the foundation for the term of imprison-

ment" imposed, and the district court lacked the authority

under § 3582(c)(2) to grant Brown’s motion for a reduced

sentence. Freeman, slip op. at 2 (Sotomayor, J., concurring).

IV.

For the foregoing reasons, we reverse the district court’s

order granting Brown’s motion for a reduced sentence.

REVERSED