United States v. Ricardo Epps

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 11, 2012 Decided February 12, 2013

No. 11-3002

UNITED STATES OF AMERICA,

APPELLEE

v.

RICARDO EUGENE EPPS,

ALSO KNOWN AS MAN, ALSO KNOWN AS FAT MAN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:99-cr-00175-1)

Mary Manning Petras, Assistant Federal Public

Defender, argued the cause for appellant. With her on the briefs

was A.J. Kramer, Federal Public Defender.

Bernard J. Apperson III, Assistant U.S. Attorney, argued

the cause for appellee. On the brief were Ronald C. Machen Jr.,

U.S. Attorney, and Roy W. McLeese III, James S. Sweeney, and

Elizabeth H. Danello, Assistant U.S. Attorneys. Sarah Chasson

and Elizabeth Trosman, Assistant U.S. Attorneys, entered

appearances.

Before: ROGERS and BROWN, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

2

Opinion for the Court by Circuit Judge ROGERS and

Senior Circuit Judge WILLIAMS.

Dissenting opinion by Circuit Judge BROWN.

ROGERS, Circuit Judge and WILLIAMS, Senior Circuit

Judge: In Freeman v. United States, 131 S. Ct. 2685 (2011), the

Supreme Court held that the district court is not categorically

barred from reducing a defendant’s sentence under 18 U.S.C.

§ 3582(c)(2) where the defendant entered into a plea agreement

pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).

The decision was splintered, however, with the plurality and

concurring opinions adopting different reasoning. Prior to

Freeman, the district court denied Ricardo Epps’ § 3582(c)(2)

motion for a reduction of his Rule 11(c)(1)(C) sentence. United

States v. Epps, 756 F. Supp. 2d 88 (D.D.C. 2010). Epps appeals,

contending that there is no controlling opinion in Freeman and

that because the district court (as well as the Rule 11(c)(1)(C)

agreement) relied upon the crack-cocaine Guidelines range

when determining whether to accept the stipulated sentence, his

sentence was imposed “based on” the Guidelines range and the

district court was authorized under § 3582(c)(2) to reconsider

and reduce his sentence in light of the Sentencing Commission’s

reduction of the sentencing range applicable to him. For the

following reasons, we reverse and remand the case to the district

court.

I.

On October 29, 1999, Epps was sentenced to 188

months’ imprisonment for violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(iii), and 846 and, in view of the quantity of illegal

drugs for which he was responsible, to five years’ supervised

release, see id. § 841(b)(1)(A)(viii). Epps had entered a Rule

3

11(c)(1)(C) plea agreement.1 The district court accepted Epps’

plea, ordered a presentence investigation, and stated that it

would determine whether to accept the stipulated 188 month

sentence upon reviewing the presentence report. Tr. Aug. 6,

1999 at 11–12.

At the sentencing hearing, upon reviewing the

presentence report, the district court recalculated the Guidelines

sentencing range applicable to Epps. Tr. Oct. 29, 1999 at 12–13.

Rejecting a two-level addition to the base level offense for

possession of a firearm, the district court calculated the offense

level at 35. Id. With a criminal history category of III, Epps’

Guidelines sentencing range was 210 to 260 months. The

prosecutor joined defense counsel in seeking a downward

departure from the Guidelines range to 188 months, explaining

their agreement to that term was a way to avoid the need to

litigate disputes regarding the Guidelines calculations. Id. at

6–8. The district court agreed to depart from the Guidelines

range and sentenced Epps to 188 months’ imprisonment. Id. at

14. At the time, the district court expressed concern about the

disparity between the Guidelines sentencing range for crack and

powder cocaine offenses, noting that Epps’ sentence would have

1

Rule 11(c)(1)(C) provides that, if the parties reach

agreement on a plea, the plea agreement may specify that an attorney

for the government will:

agree that a specific sentence or sentencing range is the

appropriate disposition of the case, or that a particular

provision of the Sentencing Guidelines, or policy statement,

or sentencing factor does or does not apply (such a

recommendation or request binds the court once the court

accepts the plea agreement).

FED. R. CRIM. P. 11(c)(1)(C) (emphasis added).

4

been “substantially less” if his offense had involved powder

rather than crack cocaine. See id. at 11, 14.

On October 16, 2008, Epps filed a motion to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2)2 in light of the

Sentencing Commission’s amendments to the crack cocaine

Guidelines in November 2007 and March 2008, see U.S.S.G.

(2011), Supp. to App. C, Amend. 706, 711, which the

Commission in 2008 made retroactive, id. at Amend. 713, 716.

Applying the amendments would reduce Epps’ offense level to

33 and the applicable Guidelines sentencing range to 168 to 210

months. The government opposed the motion on the ground that

Epps’ sentence was based on the 188 months stipulated in his

Rule 11(c)(1)(C) plea agreement, not on the Guidelines range

that was applicable to him. Epps responded that because his

sentence and the stipulated range were calculated in relation to,

and therefore “based on,” a Guidelines range that was

subsequently reduced, § 3582(c)(2) authorized the district court

to reduce his sentence. The district court denied Epps’ motion.

See Epps, 756 F. Supp. 2d at 89. Epps appealed on January 4,

2011; on January 11, 2011, this court held his appeal in

2

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

pursuant to 28 U.S.C. 994(o), 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.

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

5

abeyance pending the Supreme Court’s decision in Freeman,

where the stated question was “whether a defendant is ineligible

for a sentence reduction under 18 U.S.C. § 3582(c)(2) solely

because the district court accepted a Rule 11(c)(1)(C) plea

agreement.” Pet. for Writ of Cert., Freeman, 131 S. Ct. 2685

(No. 09-10245).

II.

As a threshold matter, the government maintains, on

three grounds, that this court lacks jurisdiction now that Epps

has completed his period of imprisonment and commenced his

five-year term of supervisory release that is mandatory.3 Epps

responds that his appeal is not moot because its resolution could

affect his term of supervised release in view of 18 U.S.C.

§ 3583(e)(1), which provides that a district court “may . . .

terminate a term of supervised release and discharge the

defendant released at any time after the expiration of one year of

supervised release . . . if it is satisfied that such action is

warranted by the conduct of the defendant released and the

interest of justice.” We conclude, notwithstanding Epps’ release

from incarceration while his appeal was pending and the

commencement of his term of supervised release, that we have

jurisdiction.

1. Because 21 U.S.C. § 841(b)(1)(A) mandates five

years’ supervised release, the government maintains there is no

relief this court could order, even if it agrees with the merits of

Epps’ motion, because the district court “has no authority to

reduce [Epps’] term of supervised release.” Appellee’s Supp.

Br. at 7.

3

On October 11, 2012, upon determining that Epps had been

released by the Bureau of Prisons on May 11, 2012, the court ordered

the parties to file supplemental briefs on whether this appeal is moot.

6

Before § 841 was amended in 2002, the circuits were

split on the relationship between two provisions prescribing the

terms of supervised release for overlapping categories of

felonies. In 18 U.S.C. § 3583(b)(2), Congress stated that

“[e]xcept as otherwise provided, the authorized terms of

supervised release are . . . for a Class C or Class D felony, not

more than three years.” But in 21 U.S.C. § 841(b)(1)(A)(1994),

which applied to Epps at the time of his Rule 11(c)(1)(C) plea

agreement, Congress described the appropriate term of

supervised release as follows: “Any sentence under this

subparagraph shall . . . impose a term of supervised release of at

least 5 years in addition to such term of imprisonment.” This

led courts to take conflicting views on which statutory provision

prevailed when both were applicable to a defendant being

sentenced. Compare, e.g., United States v. Kelly, 974 F.2d 22,

24 (5th Cir. 1992) (three years is the maximum term), with

United States v. Garcia, 112 F.3d 395, 397–98 (9th Cir. 1997)

(term of supervised release can be greater than three years). In

2002, Congress resolved the uncertainty between § 3583's

ceiling and § 841's floor in favor of § 841, rendering

§ 841(b)(1)(A) to read: “Notwithstanding section 3583 of Title

18, any sentence under this subparagraph shall . . . impose a

term of supervised release of at least 5 years in addition to such

term of imprisonment.” Id. (emphasis added). In United States

v. Johnson, 331 F.3d 962, 967 n.4 (D.C. Cir. 2003), this court

noted both the circuit split and that after the 2002 amendment

the term of supervised release for a § 841 conviction can exceed

three years, see also H. R. CONF. REP. NO. 107-685, at 188–89

(2002).

The government’s position that Congress’s clarification

of the § 3583/§ 841 conflict removed the district court’s

discretion in determining the length of Epps’ term of supervised

release assumes (without discussion) that the 2002 amendment

to § 841 was retroactive. Yet “the presumption against

7

retroactive legislation is deeply rooted in our jurisprudence, and

embodies a legal doctrine centuries older than our Republic.”

Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994).

Indeed, the Court recently reiterated its commitment to the

“deeply rooted presumption against retroactive legislation” in

Vartelas v. Holder, 132 S. Ct. 1479, 1484 (2012). In Justice

Story’s classic formulation, an act is impermissibly retroactive

“when such application would . . . ‘attac[h] a new disability, in

respect to transactions or considerations already past.’” Id. at

1486–87 (quoting Soc’y for Propagation of Gospel v. Wheeler,

22 F. Cas. 756, 767 (1814)). Although deriving from

constitutional principles including the Ex Post Facto Clause, the

Contract Clause, and the Due Process Clause of the Fifth

Amendment, see id. at 1486, the operative principle is one of

interpretation: where the statutory text is ambiguous courts

presume that Congress did not intend retroactive application in

the sense defined by Justice Story, see Landgraf, 511 U.S. at

280.

The § 3583/§ 841 clash was unresolved in this circuit at

the time of the 2002 amendment to § 841. The Supreme Court,

however, as it noted in Vartelas, had applied the principle

against retroactivity in INS v. St. Cyr, 533 U.S. 289 (2001), to

justify a prospective-only interpretation of a statute that

replaced a discretionary decision with an automatic negative.4

4

In St. Cyr, a lawful permanent resident had pleaded guilty

to a criminal charge that made him deportable. Under the immigration

law then in effect, he would have been eligible to apply for a waiver

of deportation, but his removal proceeding commenced after Congress

withdrew such dispensation. 533 U.S. at 292. The Supreme Court

held that disallowance of discretionary waivers “attaches a new

disability, in respect to transactions or considerations already past,” id.

at 321 (internal quotation marks omitted), observing that aliens

“almost certainly relied upon th[e] likelihood [of receiving

discretionary relief] in deciding [to] forgo their right to a trial,” id. at

8

132 S. Ct. at 1491–92. Here too, by resolving the conflict

between discretion under § 3583 and its absence under § 841,

and uncertainty in this circuit as to which controlled, Congress

in 2002 “attac[hed] a new disability in respect to transactions or

considerations already past.” The 2002 amendment should

accordingly be interpreted as prospective only.

In Johnson, 331 F.3d at 967 n.4, this court did not wade

into the circuit split to harmonize the apparent conflict between

the statutes before 2002, nor has it subsequently done so; we

need not do so now. The government’s reliance on United

States v. Lafayette, 585 F.3d 435 (D.C. Cir. 2009), for the

proposition that this court has already decided that the five-year

term of supervised release is mandatory is misplaced. Although

Lafayette was sentenced and resentenced under § 841 prior to

the 2002 amendment, the court neither addressed the

problematic retroactivity questions with respect to the

appropriate term of supervised release nor acknowledged the

circuit split; the parties’ briefs did not refer to the split. See

Brief of Appellant, United States v. Lafayette, 2008 WL

6742228 (focusing on “the inaccurate and unlawful calculation”

of defendant’s prison sentence as leading to erroneous term of

supervised release); Brief of Appellee, United States v.

Lafayette, 2009 WL 2633676 (focusing on distinction between

supervised release term and imprisonment term). Here, as in

Lafayette, the issue of resolving the pre-2002 amendment circuit

split regarding the proper interpretation of § 841 and its

relationship to § 3583 has not been briefed, and the question can

be determined by the district court when it addresses Epps’

pending § 3583 motion, see Appellant’s Supp. Br. at 2–3, or

some successor motion. The point is simply that the 2002

325. Because applying the withdrawal of waiver would have “obvious

and severe retroactive effect” and Congress had not made its intention

clear, the Court held the amendment applied prospectively only. Id.

at 325–26 & n.55.

9

amendment’s prospective application means that reduction of

Epps’ term of imprisonment would, as he maintains, enhance

his prospect for securing a similar reduction in his term of

supervised release because the district court’s discretion in

determining the length of his supervised release is unaffected by

the 2002 amendment. See U.S.S.G. § 1B1.10.

2. Under 18 U.S.C. § 3583(e)(1), “[t]he district court

may . . . terminate a term of supervised release and discharge

the defendant released at any time after the expiration one year

of supervised release.” The government notes that Epps has yet

to complete one year of his supervised release term. Nothing

in the text of § 3583(e), however, prevents a defendant from

moving for a § 3583(e)(1) termination prior to the completion

of his first year. Indeed, the provision is ambiguous as to

whether it limits when the district court might act on that

motion; it requires only that the effect of any termination begin

“after the expiration [of] one year of supervised release.” 18

U.S.C. § 3583(e)(1).

Additionally, 18 U.S.C. § 3583(e)(2) provides an avenue

by which the district court “may modify, reduce, or enlarge the

conditions of supervised release, at any time prior to the

expiration or termination of the term of supervised release.” Id.

(emphasis added). While Epps has moved for a § 3583(e)(1)

termination, see Appellant’s Supp. Br. at 2, nothing prevents

him from moving, in the alternative, for a reduction pursuant to

§ 3583(e)(2). The only temporal restriction associated there is

that the judicial action must occur, logically, prior to the term’s

termination or expiration. Epps is obviously within that term.

3. In our unpublished opinion in United States v. Bundy,

391 F. App’x 886 (D.C. Cir. 2010), the court stated, as the

government notes, that the prospect of reduction of the

defendant’s term of supervised release “is so speculative that

any decision on the merits [of his claim to a reduced prison

10

term] would be merely advisory and not in keeping with Article

III’s restriction of power to live cases or controversies.” Id. at

887 (citing Burkey v. Marberry, 556 F.3d 142, 149 (3d Cir.

2009)) (internal quotation marks omitted). Bundy is not binding

here. “Although our circuit does not have a local rule directly

on point, . . . unpublished dispositions should not strictly bind

panels of the court . . . [and] do not constrain a panel of the

court from reaching a contrary conclusion in published opinion

after full consideration of the issue.” In re Grant, 635 F.3d

1227, 1232 (D.C. Cir. 2011).

More substantively, that Epps over-served his sentence

— as we must assume for jurisdictional arguments, see Am.

Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) —

is of paramount importance to whether he should continue

under supervised release for five years. In Bundy the court

relied on Burkey for the proposition that challenges such as

Epps’ are necessarily moot upon a defendant’s release from

prison. Burkey, in turn, purports to apply Supreme Court

precedents on the extent to which courts will presume

“collateral consequences” in comparable cases. The cases

considered in Burkey are not comparable. In Sibron v. New

York, 392 U.S. 40 (1968), the (alternative) holding was that a

defendant’s challenge to his conviction is not mooted by his

release; the prospect that the conviction would have “collateral

consequences,” such as impeachment of his character in a later

criminal trial, was sufficient. Id. at 54–56. En route to this

conclusion the Court summarized Pollard v. United States, 352

U.S. 354 (1957), as a case where “the Court abandoned all

inquiry into the actual existence of specific collateral

consequences and in effect presumed that they existed.” Sibron,

392 U.S. at 55. Then, in Lane v. Williams, 455 U.S. 624 (1982),

the Court declined to apply Sibron in a case where the

defendant challenged imposition of a mandatory parole term (on

the ground that he had not been warned of this consequence of

pleading guilty) that had expired by the time of the district

11

court’s final ruling. Finding no generally applicable legal

consequences from the expired parole term, the Court held the

case was moot, although it observed that if the defendant had

challenged the guilty plea itself, release from the parole would

not have mooted the case. Id. at 633. Similarly, in Spencer v.

Kemna, 523 U.S. 1 (1998), where the defendant challenged

parole revocation and was released from the renewed

incarceration (his term of imprisonment having expired) before

the district court ruled, the Court refused to presume collateral

consequences from the parole revocation (or, necessarily, from

its invalidation), and found the defendant’s attempted showing

of an actual likelihood of consequences too weak to support

justiciability. See id. at 985–86.

Epps’ case does not fit precisely into either the Sibron

or the Lane-Spencer paradigm. Unlike in Sibron, Epps is not

challenging his conviction; he is merely claiming the benefit of

an opportunity to have his sentence retroactively reduced. But,

because his five-year term of supervised release is still

unserved, and because of the relationship between a prison

sentence and supervised release (notwithstanding United States

v. Johnson, 529 U.S. 53 (2000)), there seems to be a very

substantial likelihood that a ruling that Epps’ incarceration

should have been shorter would influence the district court’s

readiness to reduce his term of supervised release. Epps’

circumstances thus differ from those examined in Lane and in

Spencer.

At least two courts of appeals clearly regard the

enhanced prospects for a reduced term of supervised release

under § 3583 as adequate to hold non-moot a released

prisoner’s claim to a lesser period of incarceration: the Second

Circuit in Levine v. Apker, 455 F.3d 71, 76–77 (2d Cir. 2006),

held that the prospect renders non-moot a released prisoner’s

challenge to a Bureau of Prisons regulation cutting off his

change of placement in a half-way house, while the Ninth

12

Circuit in Mujahid v. Daniels, 413 F.3d 991, 993–95 (9th Cir.

2005), viewed the prospect to render non-moot a prisoner’s

attack on the Bureau’s “good time” regulations. Similarly, the

Fourth Circuit held in Townes v. Jarvis, 577 F.3d 543, 546-49

& n.3 (4th Cir. 2009), relying on Levine and Mujahid, that a

prisoner’s challenge to a finding of parole ineligibility was not

moot due to the likelihood that a favorable ruling would yield

a reduction in ongoing parole. Against these cases, Burkey’s

assertion that “[w]here . . . the appellant is attacking a sentence

that has already been served, collateral consequences will not be

presumed, but must be proven,” 556 F.3d at 148, is overbroad

and suggests a failure to focus on the distinctive features of the

cases on which it relied.

This court has not yet weighed in on the subject of

whether a defendant’s motion for a sentence reduction under

§ 3582(c)(2) is rendered moot upon completion of his term of

imprisonment (beyond our unpublished treatment in Bundy), but

the logic of Levine and Mujahid seems far more persuasive than

that of Burkey. Our conclusion that Epps is eligible for a

reduced sentence under § 3582(c)(2), if it led to an actual

sentence reduction, would necessarily inform the district court’s

evaluation of a motion for termination or reduction of his term

of supervised release under § 3583(e)(1) or (e)(2). We note the

Supreme Court in Johnson identified relief under § 3583(e)(1)

or (e)(2) as potential means for addressing the injustice of a

prisoner’s being incarcerated beyond the proper expiration of

his prison term. 529 U.S. at 60.

Our dissenting colleague argues that we “conflate[] two

separate issues: whether Epps should have been allowed to

pursue § 3582(c)(2) relief, and whether he actually spent too

much time in prison,” and that it is only “the latter that would

be relevant to a district court deciding whether to modify the

term of Epps’ supervised release.” Dissent Op. at 2. This is a

false distinction. Epps’ claim is not the almost metaphysical

13

issue of whether he has “spent too much time in prison.” He

claims instead that the sentence is excessive in the sense that,

but for the matter of timing, he would be legally entitled under

§ 3582(c)(2) to have the district court consider the application

to him of the Sentencing Commission’s decision to retroactively

reduce the crack-powder distinction. He is entitled to have that

question answered.

III.

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

Supreme Court addressed whether defendants sentenced in

accordance with a Rule 11(c)(1)(C) plea agreement may be

eligible for a reduction of sentence under § 3582(c)(2). A four

Justice plurality held that “the text and purpose of the three

relevant sources — the statute [i.e., the Sentencing Reform

Act], the Rule, and the governing policy statements — require

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

agreement.” Id. at 2693 (Kennedy, J., joined by Ginsburg,

Breyer, and Kagan, JJ.). “In every case the judge must exercise

discretion to impose an appropriate sentence. This discretion,

in turn, is framed by the Guidelines.” Id. at 2960. Rejecting the

interpretation of the four Justices in dissent that a Rule

11(c)(1)(C) sentence is based only on the plea agreement and

not the Guidelines, see id. at 2701 (Roberts, C.J., joined by

Scalia, Thomas, and Alito, J.J., dissenting), the plurality

explained that concern about upsetting the bargain struck

between the defendant and the prosecutor “has nothing to do

with whether a sentence is ‘based on’ the Guidelines under

§ 3582(c)(2).” Id. at 2963. Further, such concern was

“overstated” because “[r]etroactive reductions to sentencing

ranges are infrequent, so the problem will not arise often,” and

“[m]ore important, the district court’s authority under

14

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

can be enforced by appellate review.” Id.5

Notably, the plurality veered from the approach adopted

by the concurring opinion of Justice Sotomayor — requiring

the plea agreement itself to contemplate sentence reduction —

on the ground that “[t]he statute . . . calls for an inquiry into

the reasons for a judge’s sentence, not the reasons that

motivated or informed the parties,” noting that “[t]he parties

cannot by contract upset an otherwise-final sentence.” Id. at

5

The plurality explained that “the governing policy statement

confirms that the [district] court’s acceptance [of the Rule 11(c)(1)(C)

plea agreement] is itself based on the Guidelines.” Freeman, 131 S.

Ct. at 2692. The commentary to § 6B1.2 instructs that the district

court may accept the plea “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 departs from the applicable guideline

range for justifiable reasons.” Id. (quoting U.S.S.G. § 6B1.2

commentary). Allowing the district court under § 3582(c)(2) “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 sentence or to approve the agreement,” the plurality

concluded, “is the only rule consistent with the government policy

statement . . . that rests on the premise that a Guideline range may be

one of the many factors that determine the sentence imposed.” Id. at

2692-93. The plurality also found support for its approach in the

policy statement that applies to § 3582(c)(2) motions, which placed

“considerable limits on district court discretion,” id. at 2693: U.S.S.G.

§ 1B1.10 instructs that the district court may “modify[] a sentence to

substitute only the retroactive amendment,” Freeman, 131 S. Ct. at

2692 (quoting policy statement), thus “isolating whatever marginal

effect the since-rejected Guideline had on the defendant’s sentence,”

id. Also, under § 1B1.10(b)(2), below-Guidelines modifications are

forbidden in § 3582(c)(2) proceedings, except where the original

sentence was a downward departure. Id. at 2693; see also id. (citing

§ 1B1.10, comment n).

15

2694. Discussing the concurrence’s approach, the plurality

emphasized that “the consequences of this erroneous rule would

be significant. By allowing modification only when the terms

of the agreement contemplate it, the proposed rule would permit

the very disparities the Sentencing Reform Act seeks to

eliminate.”6 Id. The plurality thus construed § 3582(c)(2) to

contribute to reducing sentencing disparities “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 Act’s purposes.”

Id. It cited the crack-cocaine range as “a prime example of an

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

In sum, the plurality held that “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.” Id. at 2695. “Even where

the judge varies from the recommended range . . . 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.”7 Id. at 2692.

6

The dissenting justices, like the plurality, concluded that

examination of the parties’ intent is largely irrelevant to the inquiry of

whether a Rule 11(c)(1)(C) agreement was “based on” the Guidelines

and “agree[d] with the plurality that the approach of the concurrence

to determining when a Rule 11(c)(1)(C) sentence may be reduced is

arbitrary and unworkable.” Freeman, 131 S. Ct. at 2700–01 (Roberts,

C. J., joined by Scalia, Thomas, Alito, JJ., dissenting).

7

Some circuit courts of appeals have concluded, because the

district court is required to use the Sentencing Guidelines as a baseline

for evaluating plea agreements, see Gall v. United States, 552 U.S. 38,

50–51 (2007); Rita v. United States, 551 U.S. 338, 348 (2007);

16

In contrast, the concurring opinion adopted a different

approach:

[I]f a [Rule 11(c)(1)(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 . . . the term of imprisonment is “based

on” the range employed and the defendant is

eligible for sentence reduction under

§ 3582(c)(2).

Freeman, 131 S. Ct. at 2695 (Sotomayor, J., concurring). This

is so because a term of imprisonment imposed pursuant to a

Rule 11(c)(1)(C) agreement is “‘based on’ the agreement itself,

not on the judge’s calculations of the Sentencing Guidelines.”

Id. Thus, the district court has jurisdiction to consider a

sentence reduction pursuant to § 3582(c)(2) only if the Rule

11(c)(1)(C) plea agreement either (1) explicitly “call[s] for the

defendant to be sentenced within a particular Guidelines range”

or (2) “make[s] clear that the basis for the specified term is a

Guidelines sentencing range applicable to the offense to which

the defendant pleaded guilty” and “that sentencing range is

evident from the agreement itself.” Id. at 2697.

A.

Due to the fragmented nature of the Supreme Court’s

holding in Freeman, it is not immediately obvious whether the

Court set a standard for evaluating whether sentences pursuant

U.S.S.G. § 6B1.2, that the logic of the plurality’s approach is “that a

district court can always grant § 3582(c)(2) relief to a defendant who

enters a Rule 11(c)(1)(C) plea agreement.” United States v. Brown,

653 F.3d 337, 339 (4th Cir. 2011); see also United States v. Rivera-

Martinez, 665 F.3d 344, 347 (1st Cir. 2011).

17

to Rule 11(c)(1)(C) agreements are eligible for § 3582(c)(2)

reductions that is controlling on lower courts, or, if it did, what

the precise contours of that standard are. In Marks v. United

States, 430 U.S. 188 (1977), the Supreme Court instructed:

“When a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five Justices,

the holding of the Court may be viewed as that position taken

by those Members who concurred in the judgments on the

narrowest grounds.” Id. at 193 (internal quotation omitted).

The Court has subsequently recognized that this seemingly-

simple rule is “more easily stated than applied,” noting that “the

Marks inquiry . . . has so obviously baffled and divided the

lower courts that have considered it” that it has created a

“degree of confusion” such that it is not always “useful to

pursue . . . to the utmost logical possibility.” Nichols v. United

States, 511 U.S. 738, 745–46 (1994); see also Grutter v.

Bollinger, 539 U.S. 306, 325 (2003). Parsing Freeman in light

of Marks is required to distill what impact that precedent has in

deciding Epps’ appeal.

This court has interpreted Marks to mean that the

narrowest opinion “must represent a common denominator of

the Court’s reasoning; it must embody a position implicitly

approved by at least five Justices who support the judgment.”

King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)

(emphasis added). Stated differently, Marks applies when, for

example, “the concurrence posits a narrow test to which the

plurality must necessarily agree as a logical consequence of its

own, broader position.” Id. at 782 (emphasis added).

In King, the en banc court addressed the question of

when counsel should receive a contingency enhancement under

a fee-shifting statute in addition to the “lodestar” award

computed by multiplying hours worked by a reasonable hourly

fee. Id. at 775. The court thus had to assess whether there was

sufficient common ground between the plurality opinion and the

18

concurring opinion in Pennsylvania v. Delaware Valley

Citizen’s Council for Clean Air, 483 U.S. 711 (1987)

(“Delaware Valley II”), to control its decision. See King, 950

F.2d at 775. In the splintered decision in Delaware Valley II,

the plurality concluded that contingency enhancements were

appropriate only in “exceptional cases.” 483 U.S. at 730

(White, J., joined by Rehnquist, C.J., Powell and Scalia, J.J.).

The concurring opinion, in contrast, concluded that “Congress

did not intend to foreclose consideration of contingency in

setting a reasonable fee,” agreeing with the dissent’s analysis on

this point and with respect to the view that “compensation for

contingency must be based on the difference in market

treatment of contingent fee cases as a class, rather than on an

assessment of the ‘riskiness’ of any particular case.” Id. at 731

(O’Connor, J., concurring in part and concurring in the

judgment)(emphasis in original). Nevertheless, the concurring

opinion agreed with the plurality that “no enhancement for risk

is appropriate unless the applicant can establish that without an

adjustment for risk the prevailing party ‘would have faced

substantial difficulties in finding counsel in the local or other

relevant market,’” id. at 733 (quoting plurality opinion at 731),

and concluded there was insufficient record evidence to justify

an enhancement, id. at 734.

Analyzing the precedential force of Delaware Valley II,

the en banc court in King overruled a prior holding (and

portions of prior cases) that had treated the concurring opinion

as controlling under Marks. See King, 950 F.2d at 785. The en

banc court noted that this circuit had not previously “focused on

the fact that there are two analytically distinct questions

involved in awarding a contingency enhancement” if its prior

view of Delaware Valley II were perpetuated. Id. at 777.

Reexamining Delaware Valley II, the en banc court concluded:

When . . . one opinion supporting the judgment

does not fit entirely within a broader circle

19

drawn by the others, Marks is problematic. If

applied in situations where the various opinions

supporting the judgment are mutually exclusive,

Marks will turn a single opinion that lacks

majority support into national law. When eight

of nine Justices do not subscribe to a given

approach to a legal question, it surely cannot be

proper to endow that approach with controlling

force, no matter how persuasive it may be. The

Court itself does not appear to apply Marks in

cases of this type.

Id. at 782 (referencing Coolidge v. New Hampshire, 403 U.S.

443 (1971), as an example). In sum, “all the analytically

necessary portions of a Supreme Court opinion” must overlap

in rationale in order for a controlling opinion to be discerned

pursuant to Marks; if no such common rationale exists the

Supreme Court precedent is to be read only for its persuasive

force. Id. at 784. On the merits of whether an enhancement

was available, the en banc court concluded there was “no

practical middle ground between providing enhancements

routinely and not providing them at all,” and adopted a view

similar to that of the plurality in Delaware Valley II that

contingency enhancements were unavailable in this circuit,

noting that “a majority of the Supreme Court clearly agrees that

the question of attorney’s fees must not turn into major

litigation in itself.” Id.

This court has not heretofore applied the Marks standard

articulated by the en banc court in King to the splintered

decision in Freeman. Most recently, the court applied the

concurring opinion of Justice Sotomayor in a similar case,

where a defendant, who had entered a Rule 11(c)(1)(C) plea

agreement, had filed a motion to reduce his sentence under

§ 3582(c)(2), and where the parties agreed that the concurring

opinion in Freeman controlled. In United States v. Duvall,

20

2013 WL 276016 (D.C. Cir., Jan. 25, 2013), the court affirmed

the district court’s decision that the defendant was ineligible for

§ 3582(c)(2) relief, stating: “For purposes of this appeal, both

parties agree that Justice Sotomayer’s opinion controls our

analysis in light of the Supreme Court’s decision in Marks v.

United States, 430 U.S. 188, 193 (1977). Accordingly, we do

not further address that question.” Id. at *4. The concurring

opinion discussed the en banc opinion in King, but concluded

relief was unavailable in light of United States v. Berry, 618

F.3d 13 (D.C. Cir. 2010). See Duvall, 2013 WL 276016 at *6-

11 (Williams, J., concurring in the judgment) (suggesting Berry

warrants en banc reconsideration). In other words, in Duvall,

because the parties agreed that Justice Sotomayor’s concurring

opinion controlled, the court had no occasion to reject

alternative arguments or to hold that the concurring opinion in

Freeman was controlling precedent. Absent such a holding

there is no law of the circuit to apply on that question. See

LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en banc).

Under Marks then, we conclude that there is no

controlling opinion in Freeman because the plurality and

concurring opinions do not share common reasoning whereby

one analysis is a “logical subset,” King, 950 F.2d at 781, of the

other. The plurality opinion rejects the concurring opinion’s

approach, stating its rationale is fundamentally incorrect

because § 3582(c)(2) “calls for an inquiry into the reasons for

a judge’s sentence, not the reasons that motivated or informed

the parties.” Freeman, 131 S. Ct. at 2694 (plurality opinion).

Although suggesting the approach in the concurring opinion is

an “intermediate position,” id., the plurality understands the

reasoning of the concurrence — that courts should examine the

intent of the parties to a Rule 11(c)(1)(C) agreement to

determine whether a sentence pursuant to such a plea is “based

on” the Guidelines — to be incompatible with its own because

the concurring opinion offers an analytically distinct rationale

to justify its approach. Indeed, eight of the nine Justices

21

rejected the framework of the concurring opinion, with the

dissent correctly predicting that it would “foster[] confusion in

a area in need of clarity,” 131 S. Ct. at 2704 (Roberts, C.J.,

joined by Scalia, Thomas, and Alito, J.J., dissenting), because

it initially examined what the district court judge did but then

“suddenly” shifted its focus to the parties’ intent, id. at 2702.

Thus the dissent “agree[d] with the plurality that the approach

of the concurrence . . . is arbitrary and unworkable.” Id. at

2700–01.

We have previously noted that other courts of appeals

have held that the concurring opinion in Freeman, as the

narrower interpretation of “based on,” is the holding of the

Court. See Duvall, 2013 WL 276016; supra n.1. But these

courts, like the government here, see Appellee’s Br. at 21,

appear not to have considered circumstances where

§ 3582(c)(2) relief would be available under the concurring

opinion but not the plurality opinion. Epps, referencing

acknowledgment of this possibility by the plurality in Freeman,

131 S. Ct. at 2694, offers examples where the concurring

opinion is not a subset of the plurality opinion. See Reply Br.

at 8-108; see also United States v. Duvall, 2013 WL 276016 at

8

As examples Epps suggests:

For example, the parties may state in the plea agreement that

a particular range applies and agree to a sentence at the

bottom of that range, but the district court may not agree that

the range determined by the parties applies, finding for

example that the career offender range is applicable instead,

but notwithstanding this finding accept the plea because it is

to a term that is acceptable to the court for reasons unrelated

to the guideline range determined by the parties. Using

Justice Sotomayor’s standard, if the sentencing range used by

the parties is subsequently reduced, the defendant would be

eligible for a sentence reduction because the plea agreement

22

*8-9 (Williams, J., concurring in the judgment) (offering

illustrative example where the concurring opinion is not a

subset of the plurality opinion). In other words, the set of cases

where the defendant prevails under the concurrence is not

always nestled within the set of cases where the defendant

prevails under the plurality as the Marks framework requires,

whether articulated as in King or in terms of “one opinion . . .

always lead[ing] to the same result that a broader opinion would

reach,” Jackson v. Danberg, 594 F.3d 210, 222 (3d Cir. 2010).

was accepted and provided for a stipulated sentence based on

a subsequently reduced range – according to Justice

Sotomayor, eligibility is determined based on the agreement.

The plurality, however, would find this defendant ineligible

because the range that the parties agreed to played no role in

the court’s determination that this was an appropriate

sentence, despite the fact that the court imposed the agreed-

upon term of imprisonment.

Reply Br. at 8-9. Another example Epps suggests is where:

The sentencing court . . . might consider and reject the

guideline range used by the parties, not because the court

finds that a different guidelines range (such as the career

offender range) applies, but because, having considered the

applicable guidelines range, the court rejects it as a matter of

policy and selects its sentence without regard to it. If under

these circumstances the court decides for reasons unrelated to

the guidelines range to impose the sentence the parties agreed

upon, under the plurality’s analysis, the defendant would not

be eligible even if the guideline range is later reduced. Under

Justice Sotomayor’s analysis, however, the defendant would

be eligible.

Id. at 9-10.

23

In sum, while five Justices in Freeman agreed that the

district court is not categorically barred from reducing a

sentence under § 3582(c)(2) in Rule 11(c)(1)(C) cases, the

concurring opinion is not controlling in this circuit and the

question for the court, upon independent analysis of the statute,

is when a sentence is “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.”

We consider, then, which, if any, of the rationales in Freeman

is persuasive. Cf. King, 950 F.2d at 784. In so doing, we are

bound only by the result in Freeman, namely that § 3582(c)(2)

relief is not invariably barred when a sentence was imposed

pursuant to a Rule 11(c)(1)(C) plea agreement. See id.

(referencing Nat’l Mut. Ins. Co. v. Tidewater Transfer Co., 337

U.S. 582, 655 (1949) (Frankfurter, J., dissenting)).

B.

Whether Epps is eligible for a § 3582(c)(2) reduction of

his sentence is a question of law, which this court reviews de

novo. See United States v. Cook, 594 F.3d 883, 886 (D.C. Cir.

2010). We conclude that the Freeman plurality’s interpretation,

looking to the Sentencing Reform Act, Rule 11(c)(1)(C), and

applicable Guidelines policies, is more persuasive than that of

the concurring opinion. The Sentencing Reform Act, which

seeks through Guidelines to frame the district court sentencing

discretion, requires, even under the advisory Guidelines

sentencing scheme, that the district court begin by calculating

the defendant’s sentence under the Guidelines. See Gall, 552

U.S. at 50–51. In light of the Act, Rule 11(c)(1)(C)’s

requirement for court approval, and the instructions in

applicable Guidelines policy statements, the plurality in

Freeman interpreted § 3582(c)(2) to mean that the focus, even

when there is a Rule 11(c)(1)(C) plea agreement, ought to be on

the reasons given by the district court for accepting the sentence

that it ultimately imposed, not on the parties’ agreement.

Freeman, 131 S. Ct at 2694 (plurality opinion). A contrary

focus on the parties’ intentions would contribute to the

24

unwarranted disparity that the Act was designed to reduce. Id.

The plurality thus reasonably viewed § 3582(c)(2) as a

mechanism for helping to reduce unwarranted sentencing

disparities, such as the crack-cocaine range. Id. at 2965; see

also Duvall, supra, at *9 (Williams, J., concurring) (suggesting

Congress’s concern was with the phrase — “a sentencing range

that has subsequently been lowered by the Sentencing

Commission” — in order “to make clear that the district court’s

sentence reduction authority was not to be all-purpose, but

linked to a range that an amendment had ‘lowered’”).

Epps’ Rule 11(c)(1)(C) plea agreement repeatedly refers

to the Sentencing Guidelines as the basis for determining Epps’

sentence. Paragraph 8, for example, states that “the sentence in

this case will be imposed in accordance with” the Guidelines.

See Plea Agreement ¶ 8 (emphasis added). Although prior to

Freeman, this court held that the phrase “accordance with” is

ambiguous and insufficient alone to anchor the inference that a

sentence was determined by an otherwise-unspecified

Guidelines range, see Cook, 594 F.3d at 888, there is further

evidence in Epps’ case that the Guidelines formed the basis of

his sentence. For example, Paragraph 12 recites the parties’

agreement, applying the Guidelines, to depart downward from

the base level of the offense pursuant to Epps’ acceptance of

responsibility, id. ¶ 12; see U.S.S.G. § 3E1.1, and the district

court, prior to imposing Epps’ sentence, recalculated his

Guidelines range before granting a downward departure to the

188 months stipulated in the plea agreement. See Tr. Oct. 29,

1999, at 12–14. Additionally, in evaluating Epps’ plea

agreement, the district court stated that it considered the

sentence imposed “sufficient” “in view of the fact that the crack

cocaine guidelines are what they are.” Id. at 14 (emphasis

added). Thus, in departing downward from the Guidelines

sentencing range and explaining the basis for its departure, the

district court anchored the inference that Epps’ sentence, unlike

25

the sentence in Cook, was determined “based on” a specific

Guidelines range.

The district court’s view that its findings were not

determinative of whether Epps’ sentence was “based on” the

Guidelines, see Epps, 756 F. Supp. 2d at 92–93, is persuasively

refuted by the Freeman plurality. To the extent Sentencing

Guidelines § 1B1.10 Application Note 5 advises that over-

serving a sentence is alone insufficient to warrant early

termination of supervised release, we recognize that the district

court is to consider many factors in ruling on a § 3582(c)(2)

motion and note only that over-serving a sentence is a strong

factor that, for the reasons explained above, is not necessarily

“too speculative” to have a substantial influence on remand.

Under the circumstances, upon “full consideration of the issue,”

Grant, 635 F.3d at 1232, nothing in this court’s precedent

requires adoption of a different approach. But cf. Berry, 618

F.3d at 46–47 (avoiding question of “when, if ever, a defendant

who enters a Rule 11(c)(1)(C) plea agreement is sentenced

‘based on a sentencing range’”); United States v. Heard, 359

F.3d 544, 548 (D.C. Cir. 2004) (dictum). Nor is there evidence

that statutory considerations trumped the applicable Guidelines

range in forming the basis of Epps’ sentence. Compare Cook,

594 F.3d at 883 (defendant ineligible for § 3582(c)(2) reduction

because sentence based on statutory mandatory minimum);

United States v. Tepper, 616 F.3d 583 (D.C. Cir. 2010) (same,

because sentence based on career offender status); Berry, 618

F.3d at 13 (same).

To recap: The court has jurisdiction of Epps’ appeal

notwithstanding his release from incarceration and the

commencement of his term of supervised release. His appeal is

not moot because applying the amended version of the

supervisory release provision would be impermissibly

retroactive and, in not applying this amended provision, it

becomes likely that Epps’ term of supervisory release may be

26

impacted by the outcome of this appeal; it remains for the

district court to address the pre-amendment inter-circuit conflict

as to which of two provisions on supervisory release applies to

Epps in considering his pending motion to reduce his

supervisory term. In the absence of necessary overlap between

the reasoning of the plurality and concurring opinions in the

Supreme Court’s decision in Freeman to discern a narrower

opinion that constitutes binding precedent, see King, 950 F.2d

at 771 (interpreting Marks), Epps qualifies for relief under

§ 3582(c)(2). Accordingly, we reverse and remand the case to

the district court.

BROWN, Circuit Judge, dissenting: Having been released

from prison, Epps can neither make good on the court’s

conclusion that he was eligible for a reduction in his sentence

under 18 U.S.C. § 3582(c)(2) nor credit any excess prison

time served against his term of supervised release, see United

States v. Johnson, 529 U.S. 53, 56–58 (2000). Realizing this,

the court attempts to evade the mootness doctrine by invoking

the collateral effects its holding might have in future

discretionary proceedings to reduce Epps’s terms of

supervised release. Because today’s decision fails to offer a

“more-than-speculative chance” of affecting Epps’s rights in

the future, I would dismiss his appeal as moot. Transwestern

Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990).

A district court’s discretion to decide whether to

terminate a defendant’s supervised release period is broad: if,

having considered the sentencing factors listed in 18 U.S.C.

§ 3553(a), the court “is satisfied that” termination of

supervised release “is warranted by the conduct of the

defendant released and the interest of justice,” then the district

court may elect to do so. 18 U.S.C. § 3583(e)(1). But as we

previously concluded, “the inability to obtain a reduced

sentence on account of the completion of a prison term,

though potentially relevant, is only one of many factors

guiding the district court’s exercise of its discretion under

§ 3583(e)(1),” rendering a decision here merely advisory.

United States v. Bundy, 391 F. App’x 886, 887 (D.C. Cir.

2010) (per curiam) (internal citation omitted).

Bundy may not bind us, but that does not mean its

reasoning is faulty. The collateral consequences of the court’s

decision inhabit the realm of the hypothetical: just as a

decision in Epps’s favor does not guarantee him relief under

§ 3583(e), neither would a decision reaching the opposite

conclusion have foreclosed it. Nor, for that matter, does the

court raise any argument Epps cannot make for himself.

What we have, then, is an opinion that neither forces a district

2

court to grant Epps a reduction in his supervised release

period nor offers him arguments that would otherwise be

unavailable to him. At most, the opinion lends Epps’s case

the clout of a judicial imprimatur—something a law review

article or op-ed by a well-respected jurist might similarly

accomplish. The court’s attempts to sidestep mootness rely

not on any precedential effect the opinion might have, but on

the mere fact that it endorses Epps’s analytical position. Cf.

Telecomms. Research & Action Ctr. v. FCC, 917 F.2d 585,

588 (D.C. Cir. 1990) (holding, in the administrative law

context, that a party may not predicate its Article III standing

on the content of an agency’s legal reasoning).

By assuming its decision “would necessarily inform the

district court’s evaluation of a motion for termination or

reduction of his term of supervised release,” Maj. Op. 12, the

court conflates two separate issues: whether Epps should have

been allowed to pursue § 3582(c)(2) relief, and whether he

actually spent too much time in prison. The court decides the

former, but it is the latter that would be relevant to a district

court deciding whether to modify the term of Epps’s

supervised release. See Johnson, 529 U.S. at 60 (“There can

be no doubt that equitable considerations of great weight exist

when an individual is incarcerated beyond the proper

expiration of his prison term.”). And if Epps served an

excessive prison term, that is because his original sentence

was imposed when the sentencing guidelines for crack

cocaine were harsher than the Sentencing Commission now

deems appropriate; it does not turn on the availability of

§ 3582(c)(2) relief. True, had a district court reduced Epps’s

sentence, it would have remedied—or at least mitigated—his

injury, thereby obviating the basis for seeking subsequent

modification of his supervised release term. But now that

Epps has completed his prison term, whether he should have

had access to this procedural avenue is irrelevant to the

3

§ 3583(e) inquiry. That Epps had no previous opportunity to

reduce his sentence may have deprived him of a chance to

correct a punishment that was potentially excessive in light of

the amended sentencing guidelines. It is not, however, the

reason the punishment was or was not excessive. What is

instead important is the actual term of imprisonment served.

For the purpose of § 3583(e), it matters not that Epps was

erroneously denied recourse to a sentence reduction. Even if

Congress had never enacted § 3582(c)(2), Epps could still

invoke the sentencing guidelines’ later amendment as a reason

to reduce his term of supervised release. If the sentence he

served was too long, it was too long. Today’s decision in no

way changes that fact; any collateral effect its holding may

have is illusory.

Because Epps’s release from prison renders ineffectual

any relief this Court might provide, his case is moot. See

Church of Scientology of Cal. v. United States, 506 U.S. 9, 12

(1992). I would therefore dismiss the appeal.