United States v. Robert Pleasant

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA , No. 12-10213

Plaintiff - Appellant,

D.C. No.

v. 3:08-cr-00771-

MHP-1

ROBERT TERRELL PLEASANT ,

Defendant - Appellee.

OPINION

Appeal from the United States District Court

for the Northern District of California

Susan Illston, District Judge, Presiding

Argued and Submitted

December 7, 2012–San Francisco, California

Filed January 2, 2013

Before: Michael Daly Hawkins, A. Wallace Tashima,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Tashima

2 UNITED STATES V . PLEASANT

SUMMARY*

Criminal Law

The panel reversed the district court’s order granting a

sentence reduction under 18 U.S.C. § 3582(c)(2) after the

Sentencing Commission amended the crack-cocaine

guidelines.

Applying Justice Sotomayor’s controlling concurrence in

Freeman v. United States, 131 S. Ct. 2685 (2011), the panel

wrote that the defendant’s sentence satisfied the first prong of

§ 3582(c)(2) eligibility – it was “based on” the subsequently-

amended crack-cocaine guideline, U.S.S.G. § 2D1.1(c),

where the Rule 11(c)(1)(C) plea agreement expressly used

§ 2D1.1(c) to set the stipulated sentence.

The panel held, however, that the sentence did not satisfy

the second prong of § 3582(c)(2), which requires that the

reduction be consistent with applicable policy statements

issued by the Sentencing Commission. The panel wrote that

the reduction was not consistent with U.S.S.G.

§ 1B1.10(a)(1), which permits a reduction only if the

guideline range “applicable to” the defendant has

subsequently been lowered as a result of an amendment to the

Guidelines. The panel held that under Guidelines

Amendment 759 (2011), the defendant’s “applicable

guideline range” is the Career Offender range (U.S.S.G.

§ 4B1.1) for which the plea agreement recognized the

defendant qualified, but under which the defendant was not

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V . PLEASANT 3

sentenced only because the district court granted a downward

variance. The panel explained that Amendment 759 makes

clear that the applicable guideline is derived pre-departure

and pre-variance. The panel also explained that Freeman

addressed only when a sentence is “based on” a subsequently

amended sentencing range, not the meaning of “applicable

guidelines,” and that even if it had, Freeman would have been

abrogated by Amendment 759’s subsequent clarification of

the definition of “applicable guidelines.”

COUNSEL

Merry Jean Chan, Assistant United States Attorney, San

Francisco, California, for Plaintiff-Appellant.

Rita Bosworth, Assistant Federal Public Defender, San

Francisco, California, for Defendant-Appellee.

OPINION

TASHIMA, Circuit Judge:

After pleading guilty to possession with intent to

distribute crack cocaine, Robert Pleasant was sentenced to 77

months’ imprisonment. The plea agreement stipulated that

Pleasant should be sentenced under the crack-cocaine

guidelines, but it also acknowledged that his status as a

Career Offender exposed Pleasant to a sentence as high as

235 months. After the Sentencing Commission amended the

crack-cocaine guidelines, the district court granted a sentence

reduction under 18 U.S.C. § 3582(c)(2). We have jurisdiction

under 18 U.S.C. § 3742(b), and we reverse.

4 UNITED STATES V . PLEASANT

I.

Pleasant was indicted in 2008 for possessing, with intent

to distribute, crack cocaine in violation of 21 U.S.C.

§ 841(a)(1). He pled guilty pursuant to a Rule 11(c)(1)(C)1

plea agreement and, in doing so, admitted that he had

possessed over twelve grams of crack cocaine. The plea

agreement recognized that Pleasant qualified for sentencing

under the Career Offender guidelines (U.S.S.G. § 4B1.1), but

provided instead that his sentence should be at the low end of

the guidelines applicable to crack-cocaine offenses (U.S.S.G.

§ 2D1.1(c)). The district court accepted the plea agreement

by granting a variance from the Career Offender guidelines,

and thus sentenced Pleasant to 77 months imprisonment.2

Judgment was entered on March 17, 2009.

The Fair Sentencing Act of 2010 (“FSA”) modified,

among other things, the penalties for crack cocaine offenses

by reducing sentencing disparities between crack and powder

cocaine offenses. Pub. L. No. 111-220, 124 Stat. 2372

(2010). On November 1, 2010, the U.S. Sentencing

Commission exercised its authority under the FSA by issuing

Amendment 748, which revised penalties for crack cocaine

offenses under the § 2D1.1(c) drug quantity table. U.S.S.G.

app. C (2011). The Commission then issued Amendment

1

All references to “Rules” are to the Federal Rules of Criminal

Procedure.

2

The sentence was calculated under the 2009 Guidelines, as follows:

Pursuant to § 2D1.1(c)(8), Pleasant’s offense level was 24, which was

adjusted down by 3 points for acceptance of responsibility, to level 21.

His criminal history category was VI (which would have resulted with or

without application of the Career Offender Guidelines). His sentencing

range was accordingly 77–96 months.

UNITED STATES V . PLEASANT 5

750, which made the Amendment 748 changes permanent.

Id. Finally, the Commission issued Amendment 759, which:

(1) made the Amendment 750 changes retroactive; and (2)

modified § 1B1.10, which governs when a sentence may be

reduced by reason of a retroactive guideline amendment. Id.

In light of these amendments, Pleasant filed a “Notice of

Eligibility” for a reduction of sentence under 18 U.S.C.

§ 3582(c)(2).3 In response, the government argued that

Pleasant was not entitled to a reduction because his applicable

guidelines were the Career Offender guidelines, which had

not been amended. On March 23, 2012, the district court

granted the motion from the bench, relying on Freeman v.

United States, 131 S. Ct. 2685 (2011). Specifically, the court

held that, under Freeman, Pleasant’s original sentence was

“based on” the crack-cocaine guidelines.

Under the revised guidelines, Pleasant’s offense level was

20, adjusted down to 17 for acceptance of responsibility.

U.S.S.G. § 2D1.1(c)(10) (2011). Thus, with the same level VI

criminal history category, Pleasant’s new guideline range was

51–63 months. In light of the five-year mandatory minimum

for convictions under 21 U.S.C. § 841(a)(1), Pleasant was re-

3

Pleasant initially filed a premature pro se motion for a reduction in

sentence, which the district court denied without prejudice. He filed a

renewed pro se motion after the guideline amendments became effective.

Thereafter, appointed counsel filed a “Notice of Eligibility.” The filing

was presumably styled as a “notice” rather than a “motion” in order to

invoke the district court’s sua sponte authority under § 3582(c)(2) and not

run afoul of the waiver provision in the plea agreement. The district court,

indeed, relied on its sua sponte authority to order the reduction.

6 UNITED STATES V . PLEASANT

sentenced to 60 months.4 See 21 U.S.C. § 841(b)(1)(B)(iii)

(2009). The government timely appealed.

II.

We review de novo whether a district court has

jurisdiction to resentence a defendant under 18 U.S.C.

§ 3582. United States v. Leniear, 574 F.3d 668, 672 (9th Cir.

2009). Under § 3582(c)(2),5 a defendant is eligible for a

sentence reduction if two prongs are satisfied: “(1) the

sentence is ‘based on a sentencing range that has

subsequently been lowered by the Sentencing Commission’

and (2) ‘such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.’” United

States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009) (quoting

18 U.S.C. § 3582(c)(2)) (emphasis added). The “primary

4

Because Pleasant was sentenced before August 3, 2010 (the effective

date of the FSA) he cannot benefit from the lower statutory mandatory

minimums codified by the FSA. See United States v. Baptist, 646 F.3d

1225, 1228–29 (9th Cir. 2011) (per curiam). But he was still eligible for

reduction under the revised guidelines, which were made retroactive by

Amendment 759.

5

Section 3582(c)(2) provides:

[I]n the case of a defendant who has been sentenced to

a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing

Commission . . . , upon motion of the defendant or the

Director of the Bureau of Prisons, or on its own motion,

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.”

UNITED STATES V . PLEASANT 7

applicable policy statement” is U.S.S.G. § 1B1.10,6 which

states that a defendant is eligible for a sentence reduction if

“the guideline range applicable to that defendant has

subsequently been lowered as a result of an amendment to the

Guidelines . . . .” U.S.S.G. § 1B1.10(a)(1) (emphasis added).

Although the “applicable to” language from the policy

statement appears to mirror the “based on” language of the

first prong, each prong requires a separate analysis. See

Wesson, 583 F.3d at 730, 732.

A.

The government does not dispute that Pleasant satisfied

the first prong of § 3582(c)(2), but a brief discussion of that

issue provides necessary background for our discussion of the

second prong. In Freeman, the Supreme Court addressed

whether a defendant sentenced pursuant to a Rule 11(c)(1)(C)

plea agreement (“a (C) plea” or “a (C) agreement”) is eligible

for a sentence reduction under § 3582(c)(2). 131 S. Ct. at

2685. The critical question was whether, assuming there was

a relevant Guidelines amendment, such a defendant was

sentenced “based on” that amendment. A four-justice

plurality found that a court may “revisit a prior sentence to

whatever extent the sentencing range in question was a

relevant part of the analytical framework the judge used to

determine the sentence or to approve the agreement.” Id. at

2692–93.

Justice Sotomayor wrote separately and agreed with the

plurality, but did so on narrower grounds that make her

concurrence controlling. See United States v. Austin,

6

See U.S.S.G. § 1B1.10(a)(1) (noting that any reduction under

§ 3582(c)(2) “shall be consistent with this policy statement”).

8 UNITED STATES V . PLEASANT

676 F.3d 924, 927 (9th Cir. 2012). Specifically, Justice

Sotomayor held that a sentence imposed under a (C) plea is

“based on” an amended guideline if: (1) the agreement

“expressly uses a Guidelines sentencing range applicable to

the charged offense to establish the term of imprisonment”;

and (2) that sentencing range was subsequently amended.

Freeman, 131 S. Ct. at 2695 (Sotomayor, J., concurring in the

judgment) (emphasis added).

Applying Justice Sotomayor’s test here, Pleasant’s

sentence was clearly “based on” the crack-cocaine guidelines

because: (1) the plea agreement expressly used § 2D1.1(c) to

set the stipulated sentence; and (2) because that guideline was

“subsequently amended” via Amendments 748, 749, and 759.

Thus, even though the plea agreement recognized that

Pleasant’s status as a Career Offender could have triggered a

higher offense level, the agreement’s express reliance on

§ 2D1.1(c) means that, under § 3582(c), Pleasant’s sentence

was “based on” § 2D1.1(c). Id. at 2697 (noting that a

sentence reduction is available when the (C) agreement

“call[s] for the defendant to be sentenced within a particular

Guidelines sentencing range”). In sum, Pleasant satisfied the

first requirement for relief under § 3582(c).

B.

Although Pleasant satisfied the “based on” requirement of

§ 3582(c)(2), his sentence reduction would be proper only if

it was also consistent with U.S.S.G. § 1B1.10(a)(1). Wesson,

583 U.S. at 730. That provision permits a reduction only if

“the guideline range applicable to that defendant has

subsequently been lowered as a result of an amendment to the

Guidelines . . . .” U.S.S.G. § 1B1.10(a)(1) (emphasis added).

The central dispute in this appeal is the meaning of

UNITED STATES V . PLEASANT 9

“applicable to” and “applicable guidelines.” The government

contends that, in this case, the applicable guidelines are the

Career Offender guidelines because Pleasant qualified as a

Career Offender, even though he was not sentenced under

those guidelines. Pleasant argues that, under Freeman, the

applicable guideline is § 2D1.1 because the plea agreement

called for sentencing to be imposed under that provision.

The commentary to § 1B1.10 addresses this very

question.7 See Stinson v. United States, 508 U.S. 36, 38

(1993) (holding that Guidelines commentary is generally

“authoritative”). Specifically, Application Note 1(A) clarifies

that § 3582(c)(2) “is triggered only by an amendment . . . that

lowers the applicable guideline range (i.e., the guideline

range that corresponds to the offense level and criminal

history category determined pursuant to § 1B1.1(a), which is

determined before consideration of any departure provision

in the Guidelines Manual or any variance).” U.S.S.G.

§ 1B1.10 cmt. n.1(A) (2011) (emphasis added). This

language was added to resolve a circuit split that had arisen

over whether a defendant’s “applicable guideline range”

should be derived before or after the application of a

departure or variance. U.S.S.G. app. C, amend. 759. In short,

Amendment 759 makes clear that the applicable guideline is

derived pre-departure and pre-variance.

Under Amendment 759, Pleasant’s applicable guideline

range is the Career Offender range. The parties agree that

Pleasant qualifies as a Career Offender, and his plea

agreement outlined the stipulated ramifications of his Career

7

The relevant commentary is derived from the 2011 Guidelines Manual

which was in effect at the time the district court reduced Pleasant’s

sentence. See U.S.S.G. § 1B1.10, cmt. n.6.

10 UNITED STATES V . PLEASANT

Offender status. Pleasant was only able to avoid the Career

Offender guidelines because the district court granted a

downward variance. Accordingly, Pleasant’s pre-variance

guideline range, i.e., his “applicable guideline range,” is the

Career Offender guideline.

Section 6B1.2, which outlines the “Standards for

Acceptance of Plea Agreements,” confirms that a defendant’s

applicable range is distinct from the range agreed to in a plea

agreement. Specifically, § 6B1.2 allows a court to accept a

(C) agreement if “the agreed sentence is outside the

applicable guideline range for justifiable reasons.”

(emphases added). This provision expressly distinguishes

between the “applicable guideline range” and the “agreed

sentence.” Stated in terms of Pleasant’s plea, the applicable

guideline range was the Career Offender range, but the agreed

sentence was determined under the crack-cocaine range.8

In sum, § 1B1.10 mandates that the Career Offender

guidelines were Pleasant’s “applicable guidelines”; thus, the

district court did not have jurisdiction either to hear

Pleasant’s § 3582(c) motion or to act sua sponte.

8

As the Sixth Circuit has noted, this reading of “applicable guideline”

is consistent with the purpose of § 3582(c)(2). “By its terms, § 3582(c)(2)

seeks to allow a sentence reduction only when the Sentencing

Commission has determined that a defendant’s original sentencing range

was excessive. In this case . . . [i]t was only the sentencing court that

determined that [defendant’s] career offender range was excessive, acting

under its departure authority, rather than by recalculating or altering the

‘applicable guideline range.’” United States v. Pembrook, 609 F.3d 381,

387 n.8 (6th Cir. 2010) (internal citation omitted). In issuing Amendment

759, the Commission referenced Pembrook as being on the correct side of

a circuit split over whether “applicable guideline” should be derived pre-

or post-departure. See U.S.S.G. app. C, vol. III. at 421 (adopting the

approach taken by the Sixth, Eighth, and Tenth Circuits).

UNITED STATES V . PLEASANT 11

III.

Despite the clear directive in § 1B1.10, Pleasant contends

that Freeman controls the meaning of “applicable guidelines”

when a defendant is sentenced pursuant to a (C) agreement.

Pleasant misreads Freeman. Even if his reading were

accurate, Amendment 759 would have abrogated Freeman.

As discussed above, Freeman established that, under

§ 3582(c)(2), a defendant’s sentence is “based on” whatever

guidelines the parties have agreed to in a (C) agreement.

Thus, because Freeman’s (C) agreement called for sentencing

under the crack-cocaine guidelines, Justice Sotomayor

concluded that his sentence was “based on” those guidelines.

Freeman, 131 S. Ct. at 2699. This conclusion only satisfied

the first prong of § 3582(c)(2), however, because a defendant

must also show that a sentence reduction is consistent with

§ 1B1.10, which requires that a defendant’s “applicable

guideline range” have been amended.

As to this second prong, nothing in Freeman suggests that

Freeman’s agreed range was outside of the applicable range,

or that it arose from a departure or variance. Freeman’s

sentence thus satisfied “the second of § 3582(c)(2)’s

conditions” because the amendment had “‘the effect of

lowering [his] applicable guideline range.’” Id. at 2700

(Sotomayor, J., concurring in the judgment) (quoting

U.S.S.G. § 1B1.10(a)(2)(B)). But Pleasant’s circumstances

differ from Freeman’s because Pleasant’s “agreed sentence

[was] outside the applicable guideline range . . . .” U.S.S.G.

§ 6B1.2. In short, Freeman only addressed when a sentence

is “based on” a subsequently amended sentencing range, and

its holding does not control the question presented in this

appeal. See United States v. Ware, 694 F.3d 527, 534 (3d Cir.

12 UNITED STATES V . PLEASANT

2012) (holding that “the meaning of the term ‘based on’ – and

hence the holding of Freeman – is simply not germane to”

§ 1B1.10(a)(2)’s requirement that the amendment have

lowered the defendant’s applicable guideline range); see also

Freeman, 131 S. Ct. at 2701 (Roberts, C.J., dissenting) (“The

lone issue here is whether petitioner . . . meets the initial

prerequisite of having been sentenced to a term of

imprisonment ‘based on’ a subsequently reduced sentencing

range.”).

Even if Freeman’s sentence had been a deviation from

otherwise applicable guidelines, e.g., even if he was a Career

Offender, then, the Freeman ruling would be in direct conflict

with Amendment 759. As noted above, Amendment 759 –

which was issued after Freeman – specified that the

applicable guideline range is “determined before

consideration of any departure provision in the Guidelines

Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A).

Thus, Pleasant’s expansive view of Freeman directly

conflicts with later-promulgated Guidelines commentary, and

the commentary controls. See Stinson, 508 U.S. at 46

(“[P]rior judicial constructions of a particular guideline

cannot prevent the Commission from adopting a conflicting

interpretation . . . .”); Ware, 694 F.3d at 534 n.4

(Ҥ 3582(c)(2) expressly incorporates the Guidelines policies,

and therefore modification of the relevant policies may affect

the proper interpretation of the statute as a whole”).9

9

Similarly, the W estern District of W ashington recently observed that

“this Court cannot ignore that Freeman pre-dated the Commission’s

amendment of § 1B1.10 and that the Supreme Court has stated on many

occasions that the Commissions’ statements regarding sentencing

modifications, specifically those contained at § 1B1.10, are

determinative.” United States v. Vinnie, No. 04-326-RSL, 2012 W L

992113 at *2 (W.D. W ash. Mar. 22, 2012).

UNITED STATES V . PLEASANT 13

In sum, Freeman did not hold that a defendant’s agreed

sentencing range is necessarily the same as his applicable

sentencing range and, even if it did, Freeman would have

been abrogated by Amendment 759’s clarification of the

definition of “applicable guidelines.” Under that definition,

Pleasant’s applicable guidelines were the Career Offender

guidelines. Thus, Pleasant was not entitled to a reduction in

sentence under § 3582.

CONCLUSION

The district court’s order reducing Pleasant’s sentence is

reversed and the case is remanded with instructions to

reinstate Pleasant’s original sentence as set forth in his plea

agreement.

REVERSED and REMANDED.