Amicus Curiae Brief — Timothy D. Koons, Kenneth Jay Putensen, Randy Feauto, Esequiel Gutierrez, and Jose Manuel Gardea, Petitioners v. United States

No. 17-5716

__________________________________________________

IN THE

Supreme Court of the United States

________________

TIMOTHY D. KOONS, ET AL.,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

________________

On Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

_______________

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS

AMICUS CURIAE IN SUPPORT OF

PETITIONERS

________________

JEFFREY T. GREEN

DANIEL T. HANSMEIER*

CO-CHAIR AMICUS

500 State Avenue

COMMITTEE

Suite 201

NATIONAL ASSOCIATION

Kansas City, KS 66101

OF CRIMINAL DEFENSE

(913) 551-6901

LAWYERS

daniel_hansmeier@fd.org

1660 L Street, N.W.

Washington, D.C. 20036

(202) 872-8600

Counsel Amicus Curiae

January 29, 2018

* Counsel of Record

________________________________________________

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT ............................................................... 3

I.

Section 3553(e) cooperators are eligible for

§ 3582(c)(2) sentence reductions because

such cooperators are not subject to

statutorily required mandatory minimum

sentences........................................................ 3

II.

Alternatively, § 3553(e) cooperators are

eligible for § 3582(c)(2) sentence reductions

under USSG § 1B1.10(c). ............................ 11

III. Alternatively, § 3553(e) cooperators are

eligible for § 3582(c)(2) sentence reductions

because district courts necessarily consult

the offense-specific guideline range at

sentencing . ................................................. 17

CONCLUSION ......................................................... 20

ii

TABLE OF AUTHORITIES

Page

CASES

Caraco Pharm. Lab., Ltd., v. Novo Nordisk A/S,

566 U.S. 399 (2012) .................................................. 9

Dillon v. United States, 560 U.S. 817 (2010) 12, 13, 16

Dorsey v. United States, 567 U.S. 260 (2012) ............. 6

Freeman v. United States, 564 U.S. 522

(2011) .................................................... 15, 17, 18, 19

Gall v. United States, 552 U.S. 38 (2007) ................. 17

In re Sealed Case, 722 F.3d 361

(D.C. Cir. 2013) ............................................... 6, 8, 20

Melendez v. United States, 518 U.S. 120 (1996) ... 6, 10

New Process Steel, L.P. v. NLRB, 560 U.S. 674

(2010) ...................................................................... 10

Peugh v. United States, 569 U.S. 530 (2013) ............ 17

United States v. Billue, 576 F.3d 898 (8th Cir. 2009) 8

United States v. Booker, 543 U.S. 220 (2005) ........... 10

United States v. LaBonte, 520 U.S. 751 (1997) ......... 16

United States v. Savani, 733 F.3d 56 (3d Cir. 2013) .. 6

United States v. Williams, 474 F.3d 1130 (8th Cir.

2007) ...................................................................... 8, 9

United States v. Williams, 808 F.3d 253 (4th Cir.

2015) ........................................................................ 13

iii

STATUTES

18 U.S.C. § 3553(a) ...................................................... 8

18 U.S.C. § 3553(e) ............................................ passim

18 U.S.C. § 3582(c)(2) ........................................ passim

28 U.S.C. § 994............................................................. 3

28 U.S.C. § 994(a)(2) .................................................. 12

28 U.S.C. § 994(n) .............................................. passim

28 U.S.C. § 994(o) .................................... 11, 12, 16, 20

28 U.S.C. § 994(p) ...................................................... 11

28 U.S.C. § 994(u) .................................... 11, 12, 16, 20

OTHER AUTHORITIES

Fed.R.Crim.P. 11(c)(1)(C) .................................... 15, 19

USSG § 1B1.1(a) ...................................................... 3, 4

USSG § 1B1.1(a)(1) ...................................................... 4

USSG § 1B1.1(a)(2) ...................................................... 4

USSG § 1B1.1(a)(3) ...................................................... 4

USSG § 1B1.1(a)(4) ...................................................... 4

USSG § 1B1.1(a)(5) ...................................................... 4

USSG § 1B1.1(a)(6) ...................................................... 4

USSG § 1B1.1(a)(7) ............................................ passim

USSG § 1B1.1(a)(8) ...................................................... 4

USSG § 1B1.1(b) .......................................................... 5

iv

USSG § 1B1.10................................................... passim

USSG § 1B1.10(b)(1) .................................................... 7

USSG § 1B1.10(b)(2)(B) ............................................... 7

USSG § 1B1.10(c)............................................... passim

USSG § 1B1.10(d) .................................................. 7, 12

USSG § 2D1.1 .................................................... passim

USSG § 2D1.1(a) .......................................................... 4

USSG § 2D1.1(b) .......................................................... 4

USSG § 2D1.1(c) ................................................ 4, 7, 12

USSG § 2D1.1(d) .......................................................... 4

USSG § 2D1.1(e) .......................................................... 4

USSG § 2D1.1, comment. (n.24) .................................. 5

USSG § 5G1.1 ............................................ 4, 11, 13, 14

USSG § 5G1.1(b) ................................................ passim

USSG § 5K1.1 .................................................... passim

USSG § 5K1.1, comment. (n.1) .................................... 5

USSG app. C, amend. 759 ......................................... 18

USSG app. C, amend. 780 (Supp. 2016) ............... 8, 13

USSG app. C, amend. 782 (Supp. 2016) ............... 7, 12

USSG, Ch. 3 ................................................................. 4

USSG, Ch. 4 ................................................................. 4

USSG, Ch.5, Pt.A ......................................................... 4

USSG, Ch.5, Pt.B ......................................................... 4

v

USSG, Ch.5, Pt.C ......................................................... 4

USSG, Ch.5, Pt.D......................................................... 4

USSG, Ch.5, Pt.E ......................................................... 4

USSG, Ch.5, Pt.F ......................................................... 4

USSG, Ch.5, Pt.G......................................................... 4

USSG, Ch.5, Pt.H ........................................................ 5

USSG, Ch.5, Pt.K......................................................... 5

1

INTEREST OF AMICUS CURIAE1

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary

professional bar association that works on behalf of

criminal defense attorneys to ensure justice and due

process for those accused of crime or misconduct.

NACDL was founded in 1958. It has a nationwide

membership of many thousands of direct members,

and up to 40,000 with affiliates. NACDL’s members

include private criminal defense lawyers, public

defenders, military defense counsel, law professors,

and judges. NACDL is the only nationwide

professional bar association for public defenders and

private criminal defense lawyers. NACDL is dedicated

to advancing the proper, efficient, and just

administration of justice. NACDL files numerous

amicus briefs each year in the U.S. Supreme Court and

other federal and state courts, seeking to provide

amicus assistance in cases that present issues of broad

importance to criminal defendants, criminal defense

lawyers, and the criminal justice system as a whole.

SUMMARY OF THE ARGUMENT

Criminal defendants who provide substantial

assistance to the government, and who receive

sentences below an otherwise applicable mandatory

minimum sentence pursuant to 18 U.S.C. § 3553(e),

are eligible for sentence reductions under 18 U.S.C.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae state that

no counsel for any party authored this brief in whole or in part,

and that no entity or person aside from counsel for amicus curiae

made any monetary contribution toward the preparation and

submission of this brief. Pursuant to Supreme Court Rule 37.3(a),

amicus curiae state that counsel for all parties consented to the

filing of this brief.

2

§ 3582(c)(2). This is so regardless of the procedure used

by a sentencing court in any particular case. The

relevant statutory and guideline provisions make clear

that the sentencing range at the initial sentencing is

the offense-specific guideline range (here, USSG

§ 2D1.1), and not the no-longer-applicable mandatory

minimum. When the United States Sentencing

Commission (“the Commission”) retroactively amends

that sentencing range, a reduction under § 3582(c)(2)

is appropriate.

Alternatively, assuming that the sentencing range

at the initial sentencing is not the offense-specific

guideline range, but is instead the guideline sentence

under USSG § 5G1.1(b), a reduction under § 3582(c)(2)

is still available for § 3553(e) cooperators. This is so

because the Commission has provided that the

§ 3582(c)(2) sentence-reduction analysis must be made

“without regard to” § 5G1.1(b). USSG § 1B1.10(c). And

for that reason, the “sentencing range” in § 3553(e)

cooperator cases has necessarily been lowered via the

retroactive reduction to the offense-specific guideline

range (here, § 2D1.1).

Finally, a categorical rule permitting § 3582(c)(2)

reductions for all eligible § 3553(e) cooperators

recognizes that a district court must always consult

the offense-specific guideline range when imposing

sentence in such a case. This recognition is itself

sufficient to find that all § 3553(e) cooperators are

initially sentenced based on the offense-specific

guideline range (here, § 2D1.1). When that range has

subsequently been lowered by the Commission (as

§ 2D1.1 was here), § 3582(c)(2) permits the district

court to reduce the defendant’s sentence.

3

ARGUMENT

I. Section 3553(e) cooperators are eligible for

§ 3582(c)(2) sentence reductions because such

cooperators are not subject to statutorily

required mandatory minimum sentences.

In 18 U.S.C. § 3553(e), Congress made clear its

intent that criminal defendants who cooperate with

the government should be rewarded for that

cooperation, even in the teeth of a statutorily

authorized mandatory minimum sentence. The

provision authorizes a district court, upon motion by

the government, to sentence a cooperator below an

otherwise applicable mandatory minimum sentence.

The framework for the imposition of such a sentence is

the United States Sentencing Guidelines (guidelines).

18 U.S.C. § 3553(e) (“Such sentence shall be imposed

in accordance with the guidelines and policy

statements issued by the Sentencing Commission

pursuant to [28 U.S.C. § 994].”). Indeed, when it

established the Sentencing Commission, Congress

provided that the “Commission shall assure that the

guidelines reflect the general appropriateness of

imposing a lower sentence than would otherwise be

imposed, including a sentence that is lower than that

established by statute as a minimum sentence, to take

into account a defendant’s substantial assistance.” 28

U.S.C. § 994(n).

The Commission, in turn, did just that. But to

understand how, it is important to understand the

structure of the guidelines. The first chapter provides

an introduction and general application principles.

Importantly, USSG § 1B1.1(a) provides instructions to

district courts on how to “determine the sentence and

the guideline range” in each case. The first five steps

4

(of eight) instruct district courts to calculate the

defendant’s offense level using the various provisions

in the first three chapters. USSG § 1B1.1(a)(1)-(5). For

instance, in drug cases (like the cases at issue here), a

district court begins at USSG § 2D1.1. The § 2D1.1

base offense level is generally set by the type and

quantity of drug at issue in the case. USSG § 2D1.1(c).

The district court then adjusts the offense level up or

down depending on characteristics particular to the

offense. USSG § 2D1.1(a)-(e); USSG, Ch. 3.

The sixth step in § 1B1.1(a) instructs district courts

to determine the defendant’s criminal history category

via Chapter Four. USSG § 1B1.1(a)(6). The seventh

step instructs district courts to “[d]etermine the

guideline range in Part A of Chapter Five that

corresponds to the offense level and criminal history

category determined above.” USSG § 1B1.1(a)(7). In

other words, at this step, the district court consults the

Sentencing Table, which provides a guideline range

based upon the offense level and criminal history

category in each case (the offense-specific guideline

range). USSG Ch.5, Pt.A.

With this guideline range established, at the eighth

step, district courts are instructed to “[d]etermine from

Parts B through G of Chapter Five the sentencing

requirements and options related to probation [part

B], imprisonment [part C], supervision conditions

[part D], fines [part E], and restitution [part F].” USSG

§ 1B1.1(a)(8). In particular, Part G of Chapter Five is

geared “to implementing the total sentence of

imprisonment.” USSG § 5G1.1 addresses “statutorily

authorized maximum sentence[s]” and “statutorily

required minimum sentence[s].” Section 5G1.1(b)

provides that, “[w]here a statutorily required

5

minimum sentence is greater than the maximum of

the applicable guideline range, the statutorily required

minimum sentence shall be the guideline sentence.”

(emphasis added).

Thus, in the run-of-the-mill case involving a

statutory minimum sentence, at step eight, the

statutory minimum effectively trumps the guideline

range calculated at step seven. But in the § 3553(e)

cooperator context, there is no “statutorily required

minimum sentence.” As explained above, district

courts have the authority to sentence § 3553(e)

cooperators

below

any

otherwise

applicable

mandatory minimum sentence. By its plain terms

then, § 5G1.1(b) has no application to § 3553(e)

cooperators. The guideline range applicable to

§ 3553(e) cooperators is the range calculated at step

seven (USSG § 1B1.1(a)(7)). In this manner, the

Commission crafted the guidelines consistently with

Congress’s directive to the Commission to provide for

sentences below the statutory minimum for

cooperating defendants, 28 U.S.C. § 994(n). See also

USSG § 2D1.1, comment. (n.24) (noting, in the drug

context, that a “mandatory minimum sentence may be

‘waived’ and a lower sentence imposed (including a

downward departure, as provided in 28 U.S.C.

§ 994(n), by reason of a defendant’s substantial

assistance)”).

Additionally, after steps seven and eight, § 1B1.1(b)

requires district courts to apply “Parts H and K of

Chapter Five,” as well as any other applicable policy

statement within the guidelines. In USSG § 5K1.1, the

Commission authorized a downward departure for

cooperating defendants, including for § 3553(e)

cooperators, USSG § 5K1.1, comment. (n.1). This

6

provision instructs district courts, upon motion of the

government, to “depart from the guidelines.” USSG

§ 5K1.1. Thus, in fulfilling Congress’s directive in

§ 994(n), the Commission has authorized downward

departures from the guideline range applicable in

cooperator cases (including § 3553(e) cooperator

cases).

This Court’s precedent generally confirms that a

§ 3553(e) cooperator’s sentencing (or guideline) range

has nothing to do with the no-longer-applicable

mandatory minimum. See, e.g., Dorsey v. United

States, 567 U.S. 260, 285 (2012) (noting that § 3553(e)

is one of “two mechanisms through which an offender

may escape an otherwise applicable mandatory

minimum”); Melendez v. United States, 518 U.S. 120,

126-129 (1996) (referencing a departure “from the

applicable Guidelines range” under § 5K1.1, as

opposed to the imposition of a sentence “below the

statutory minimum” under § 3553(e), and not once

endorsing a departure “from” the statutory minimum).

And the D.C. Circuit has held as much. In re Sealed

Case, 722 F.3d 361, 366 (D.C. Cir. 2013) (“granting the

§ 3553(e) motion freed the district court to use the

guideline range and disregard the mandatory

minimum”). “The government’s substantial assistance

motion under 18 U.S.C. § 3553(e) ‘waived’ the

statutory minimum and permitted the district court to

impose a lower sentence based on the appellant’s

applicable guideline range.” Id. at 368; see also United

States v. Savani, 733 F.3d 56, 59 (3d Cir. 2013) (noting

that, in light of the government’s § 3553(e) motion, the

district court employed the § 2D1.1 guideline range,

and departed further from it, in sentencing one of the

defendants).

7

In sum, Congress directed the Commission to

ensure that § 3553(e) cooperators receive sentences

below any otherwise applicable statutory minimum

sentence. 28 U.S.C. § 994(n); 18 U.S.C. § 3553(e). The

Commission did just that by superseding the guideline

range with a mandatory minimum only when the

mandatory minimum is “required” by statute. USSG

§ 5G1.1(b). Because a district court is not “required” to

impose a mandatory minimum in a § 3553(e)

cooperator case, the guideline range in such cases is

the offense-specific range calculated at step seven

(USSG § 1B1.1(a)(7)). Moreover, under USSG § 5K1.1,

a district court can further depart “from the

guidelines,” even in § 3553(e) cooperator cases.

Under this framework, § 3553(e) cooperators are

eligible for sentence reductions under § 3582(c)(2).

Here, the retroactive reduction at issue was made to

the drug-quantity guideline (USSG § 2D1.1(c)). USSG

app. C, amend. 782 (Supp. 2016); USSG § 1B1.10(d)

(listing Amendment 782 as retroactive). Thus,

§ 3553(e) cooperators whose sentencing ranges were

based on § 2D1.1(c) are eligible for § 3582(c)(2)

reductions. As long as the § 3553(e) cooperator’s

guideline range has been lowered via the retroactive

amendment, the cooperator is eligible for a reduction

under § 3582(c)(2). USSG § 1B1.10(b)(1); see also

USSG § 1B1.10(b)(2)(B) (providing for reductions in

cases where a cooperator was sentenced below the

applicable guidelines range); USSG § 1B1.10(c)

(confirming that § 3553(e) cooperators are eligible for

reductions despite an otherwise inapplicable statutory

minimum).2

2 Of course, eligibility is not entitlement. District courts retain

discretion to determine the extent, if any, of any authorized

8

Below, the Eighth Circuit ignored this

straightforward approach because of Circuit precedent

holding, “[w]hen the district court grants a § 3553(e)

substantial assistance motion and grants a

substantial assistance departure to a defendant whose

guidelines range is entirely below the mandatory

minimum sentence, the court must use the mandatory

minimum as the starting point.” J.A. 52 (citing United

States v. Billue, 576 F.3d 898, 904-905 (8th Cir. 2009)).

But Eighth Circuit precedent incorrectly provides that

§ 5G1.1(b) applies in § 3553(e) cooperator cases. Billue,

576 F.3d at 904. As just explained, by its plain terms,

§ 5G1.1(b) applies only when there is a “statutorily

required minimum sentence.” Once the government

files its § 3553(e) motion, the district court is not

“required” to impose any statutory minimum sentence.

18 U.S.C. § 3553(e); In re Sealed Case, 722 F.3d at 368;

see also USSG app. C, amend. 780 (Supp. 2016), reason

for amend. (indicating approval of the approach in In

re Sealed Case). Thus, § 5G1.1(b) has no application in

the § 3553(e)-cooperator context. The applicable

guideline range is the offense-specific range calculated

at step seven (USSG § 1B1.1(a)(7)), without regard to

the no-longer-applicable mandatory minimum.

The Eighth Circuit also cited Circuit precedent for

the proposition that any “reduction below the

statutory minimum must be based exclusively on

assistance-related considerations.” J.A. 52 (quoting

United States v. Williams, 474 F.3d 1130, 1131 (8th

Cir. 2007)). From this premise, the Eighth Circuit

assumed that the Commission could not set as the

starting point in a § 3553(e) cooperator case the

reduction under the factors listed in 18 U.S.C. § 3553(a). 18

U.S.C. § 3582(c)(2).

9

offense-specific guideline range calculated at step

seven (USSG § 1B1.1(a)(7)), but instead had to use the

mandatory minimum as the starting point. J.A. 52.

According to Eighth Circuit precedent, “the text of

§ 3553(e)” requires this latter approach. Williams, 474

F.3d at 1131.

The Eighth Circuit relied on § 3553(e)’s title –

“Limited authority to impose a sentence below a

statutory minimum” – as well as the first sentence of

§ 3553(e), which provides a court with authority “to

impose a sentence below a level established by statute

as a minimum sentence so as to reflect a defendant’s

substantial assistance.” Id. at 1332. But the “limited

authority” referred to in the statute’s title most

naturally means that a district court’s § 3553(e)

authority is “limited” to those who provide substantial

assistance. In other words, the “authority to impose a

sentence below a statutory minimum” is “limited” to

those who provide substantial assistance. 18 U.S.C.

§ 3553(e). The provision’s title says nothing more than

that.

The first sentence of § 3553(e) merely confirms the

point: a district court has the authority to sentence

below a statutory minimum “so as to reflect a

defendant’s substantial assistance.” The most natural

reading of this phrase, again, is that a district court

may impose a sentence below a statutory minimum if

the defendant provides substantial assistance to the

government. See, e.g., Caraco Pharm. Lab., Ltd., v.

Novo Nordisk A/S, 566 U.S. 399, 416 (2012) (“the most

natural reading of a statute” controls). Had Congress

wanted to constrain district courts’ consideration of

other non-assistance-related factors, it easily could

have done so by including additional language (such as

10

“only so as to reflect” or “to reflect the extent of a

defendant’s substantial assistance”). See, e.g., New

Process Steel, L.P. v. NLRB, 560 U.S. 674, 681 (2010)

(“if Congress had intended to authorize two members

alone to act for the Board on an ongoing basis, it could

have said so in straightforward language”).

This Court’s decision in Melendez provides further

support. Melendez held, consistent with § 3553(e)’s

text, that a district court cannot impose a sentence

below a statutory minimum under § 3553(e) without a

government motion invoking § 3553(e). 518 U.S. at

125-126. Melendez did not hold that § 3553(e)’s first

sentence provided any additional Congressional

constraint on district courts at sentencing. Instead,

Melendez held that the second sentence in § 3553(e)

(requiring any sentence below a statutory minimum to

be imposed in accordance with the guidelines) directed

the Commission to constrain a district court’s

discretion at sentencing. Id. at 128-129.3

Moreover, while Melendez recognized that § 5K1.1

“may guide the district court when it selects a sentence

below the statutory minimum,” Melendez did not hold

that § 5K1.1 was the only guide in such circumstances.

Id. at 129-130. Nor did Melendez imply (let alone hold)

that the Commission was required to set the starting

point for any § 3553(e) reduction at a point consistent

with the (no-longer-applicable) mandatory minimum.

Rather, a guidelines scheme that sets a § 3553(e)

cooperator’s guideline range at step seven, USSG

§ 1B1.1(a)(7), without applying § 5G1.1(b), is

3 Melendez was decided in 1996, almost a decade prior to this

Court’s decision in United States v. Booker, 543 U.S. 220 (2005).

Although not relevant here, we doubt that the Commission can

“constrain” sentencing courts in this context post-Booker.

11

consistent with Melendez’s further indication that the

government must file an additional § 5K1.1 motion, in

addition to the § 3553(e) motion, in order to authorize

a sentence below the offense-specific guideline range.

518 U.S. at 131. In other words, the § 3553(e) motion

gets the sentence to the guideline range, whereas an

additional § 5K1.1 motion gets the sentence below that

range. See id.

For all of these reasons, § 3553(e) cooperators are

eligible for § 3582(c)(2) sentence reductions. Because

the Eighth Circuit held otherwise, this Court should

reverse.

II. Alternatively, § 3553(e) cooperators are

eligible for § 3582(c)(2) sentence reductions

under USSG § 1B1.10(c).

As just explained, the Eight Circuit is wrong to

require district courts in § 3553(e) cooperator cases to

use the no-longer-applicable mandatory minimum (or

§ 5G1.1) to calculate the guideline range. But even if

not, § 3553(e) cooperators are still eligible for

§ 3582(c)(2) sentence reductions in light of USSG

§ 1B1.10(c). The relevant provisions related to

retroactive guideline amendments confirm the point.

In 28 U.S.C. § 994(o), Congress authorized the

Commission to “review and revise” the guidelines.

Section 994(p) directs the Commission to “submit to

Congress amendments to the guidelines” each year

(“not later than the first day of May”). 28 U.S.C.

§ 994(p). Such amendments typically take effect on

November 1 of that year, “except to the extent that the

effective date is revised or the amendment is otherwise

modified or disapproved by Act of Congress.” Id. Under

28 U.S.C. § 994(u), “[i]f the Commission reduces the

12

term of imprisonment recommended in the guidelines

applicable to a particular offense or category of

offenses,” the Commission has the authority to apply

the amendment retroactively to “prisoners serving

terms of imprisonment for the offense.” See also 28

U.S.C. § 994(a)(2) (directing the Commission to draft a

policy statement to implement § 3582(c)(2)).

The Commission has amended the guidelines over

800 times, with 29 amendments made retroactive to

already-sentenced prisoners. See USSG § 1B1.10(d)

(listing the retroactive amendments). The amendment

at issue here, Amendment 782, was made retroactive

by the Commission. Id. The amendment applies to

drug trafficking offenses. USSG app. C, amend. 782,

reason for amend. It generally reduces by two levels

the offense levels assigned to the various drug

quantities tabled at § 2D1.1(c). Id. To paraphrase

§ 994(u), the Commission reduced the term of

imprisonment recommended in the guidelines

applicable to drug trafficking offenses, and made the

reductions retroactive to prisoners serving terms of

imprisonment for drug trafficking offenses.

Section 3582(c)(2) recognizes the Commission’s

authoritative role in retroactive sentence reductions.

To be eligible for a reduction, the defendant’s sentence

must have been “based on a sentencing range that has

subsequently been lowered by the Sentencing

Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C.

§ 3582(c)(2). And any reduction must be “consistent

with applicable policy statements issued by the

Sentencing Commission.” Id. The applicable policy

statement is USSG § 1B1.10. This policy statement

binds district courts. Dillon v. United States, 560 U.S.

817, 830 (2010). “[Section] 3582(c(2) requires the

13

[district] court to follow the Commission’s instructions

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

sentence modification and the extent of the reduction

authorized.” Id. at 827.

In 2014, at the same time the Commission

retroactively reduced the guidelines applicable to drug

trafficking offenses (§ 2D1.1), the Commission

amended § 1B1.10 to ensure that § 3553(e) cooperators

were eligible for § 3582(c)(2) sentence reductions.

Section 1B1.10(c) expressly provides that, in § 3553(e)

cooperator cases, “the amended guideline range shall

be determined without regard to the operation of

§ 5G1.1.” Thus, even assuming that § 5G1.1 applies at

the initial sentencing in § 3553(e) cooperator cases, the

Commission has instructed that such cooperators are

nonetheless eligible for § 3582(c)(2) sentence

reductions because § 5G1.1 does not apply in

§ 3582(c)(2) proceedings. See also USSG app. C,

amend. 780 (Supp. 2016), reason for amend. (listing as

an example a cooperator whose guideline range fell

entirely below the inapplicable mandatory minimum,

like the petitioners here, and explaining that this

defendant would be eligible for a § 3582(c)(2) sentence

reduction).

Section 1B1.10(c), which binds the district courts,

and which Congress implicitly approved of, is enough

to resolve this case. United States v. Williams, 808

F.3d 253, 261 (4th Cir. 2015). Section 1B1.10(c)

“dictates eligibility for § 3582(c)(2) relief.” Id. at 260.

Either § 5G1.1(b) is not applied at sentencing, and a

§ 3553(e) cooperator is eligible for a § 3582(c)(2)

reduction (as explained in Section I above), or

§ 5G1.1(b) applies at sentencing, and a § 3553(e)

cooperator is eligible for a § 3582(c)(2) reduction

14

because § 1B1.10(c) directs that § 5G1.1(b) is

disregarded in the § 3582(c)(2) context.

The Eighth Circuit below acknowledged as much.

J.A. 50-51. But the Eighth Circuit nonetheless held

that the petitioners were ineligible for reductions

because of what it termed § 3582(c)(2)’s “threshold

question” – “whether each [petitioner] was sentenced

‘based on a sentencing range that has subsequently

been lowered by the Sentencing Commission.’” J.A. 51.

In so holding, the Eighth Circuit did not rest its

decision on any application of § 5G1.1(b) at the initial

sentencing, but instead on the application of the (nolonger-applicable) mandatory minimum at the initial

sentencing. J.A. 52 (“If § 5G1.1(b) did not exist, the

district court would still have set these defendants’

sentences at the mandatory minimum before

considering a substantial assistance departure.”).

The Eighth Circuit’s decision is incorrect for three

reasons. First, as a practical matter, a district court

never sets § 3553(e) “sentences at the mandatory

minimum,” J.A. 52, because § 3553(e), by its own

terms, does away with the mandatory minimum.

Second, the Eighth Circuit’s analysis ignores the

second sentence in § 3553(e), which requires the

district court to impose any sentence following a

§ 3553(e) motion “in accordance with the guidelines.”

A district court that “sets [a defendant’s] sentence[] at

the mandatory minimum,” J.A. 52, has not imposed

sentence “in accordance with the guidelines,” 18

U.S.C. § 3553(e). And third, if “§ 5G1.1 did not exist,”

as the Eighth Circuit assumed, J.A. 52, there would be

no feasible way in which to construe the guidelines to

require a district court to set the “sentences at the

mandatory minimum,” id. It is only at § 5G1.1 that a

15

district court is instructed to consider a “statutorily

required minimum sentence.”

The Eighth Circuit was also wrong to criticize the

Commission for ignoring this Court’s decision in

Freeman v. United States, 564 U.S. 522 (2011), when

it added section (c) to § 1B1.10. J.A. 54-56. Section

1B1.10(c) applies to cooperators. Freeman involves

defendants who enter into Rule 11(c)(1)(C) agreements

(whether cooperators or not). 564 U.S. at 525. Those

two things are not the same. The Rule 11(c)(1)(C)

context is different because it involves a “bargain

struck between prosecutor and defendant.” Id. at 531.

Rule 11(c)(1)(C) allows the parties to agree to a

“specific sentence or sentencing range,” and nothing

within Rule 11(c)(1)(C) requires an agreed-upon

sentence or sentencing range to contemplate the

guidelines. Fed.R.Crim.P. 11(c)(1)(C); see also

Freeman, 564 U.S. at 549 (Roberts, C.J., dissenting)

(“The reality is that whenever the parties choose a

fixed term, there is no way of knowing what that

sentence was ‘based on.’”). But here, § 3553(e) requires

district courts to sentence cooperators “in accordance

with the guidelines.” Moreover, nothing within

§ 1B1.10 addresses Rule 11(c)(1)(C) agreements. In

contrast, § 1B1.10(c) expressly addresses § 3553(e)

cooperators.

To apply Freeman’s holding (whatever it is)4

beyond the Rule 11(c)(1)(C) context, and to use it to

ignore § 3553(e)’s plain text, as well as a binding policy

statement directly on point (and not disapproved of by

Congress) is a stretch too far. This is particularly true

in light of this Court’s previous recognition that, when

4 This Court has granted certiorari to revisit Freeman (or at least

clarify its holding) in Hughes v. United States, No. 17-155.

16

Congress has instructed the Commission to

promulgate a particular requirement, the “number of

steps the Commission employs to achieve that

requirement is unimportant.” United States v.

LaBonte, 520 U.S. 751, 761 (1997). The requirements

here are three-fold: (1) to ensure that the guidelines

reward § 3553(e) cooperators with lower sentences, 28

U.S.C. § 994(n); (2) to amend the guidelines when

warranted, 28 U.S.C. § 994(o); and (3) to determine

whether any such amendments should be made

retroactive, 28 U.S.C. § 994(u). The Commission took

the appropriate steps to achieve these requirements

by: (1) limiting the application of § 5G1.1(b) to

statutorily required minimum sentences; (2)

promulgating § 5K1.1; (3) retroactively reducing the

guidelines applicable to drug trafficking offenses; and

(4) eliminating § 5G1.1(b) from the retroactivity

analysis under § 1B1.10(c) in order to ensure that

§ 3553(e) cooperators convicted of drug trafficking

offenses are eligible for § 3582(c)(2) reductions.

These steps fit comfortably with § 3582(c)(2)’s text,

which predicates sentence reductions upon both the

existence of a retroactive guideline amendment and

consistency with the Commission’s applicable policy

statements. Dillon, 560 U.S. at 827. If a district court

ignores § 5G1.1(b) (as it should) and originally

sentences a § 3553(e) cooperator based on his offensespecific guideline range, § 3582(c)(2) relief will be

available if the Commission later retroactively lowers

that range. But even if a district court originally

sentences a § 3553(e) cooperator based on § 5G1.1(b),

§ 3582(c)(2) relief will still be available upon a later

retroactive guideline amendment, given the

Commission’s instruction (via § 1B1.10(c)) to ignore

17

§ 5G1.1(b) when determining the cooperator’s

amended guideline range. Either way, categorically,

§ 3553(e) cooperators are eligible for § 3582(c)(2)

reductions.

III.

Alternatively, § 3553(e) cooperators are

eligible

for

§

3582(c)(2)

sentence

reductions

because

district

courts

necessarily consult the offense-specific

guideline range at sentencing.

If this Court is not yet convinced that § 3553(e)

cooperators are eligible for § 3582(c)(2) reductions, one

additional consideration should tip the scales in

petitioners’ favor: when sentencing § 3553(e)

cooperators, § 3553(e)’s plain text requires district

courts to impose sentence “in accordance with the

guidelines.” As with sentencings in general, “district

courts must begin their analysis with the Guidelines

and remain cognizant of them throughout the

sentencing process.” Peugh v. United States, 569 U.S.

530, 541 (2013) (emphasis in original) (quoting Gall v.

United States, 552 U.S. 38, 50 n.6 (2007)). “The

Guidelines provide a framework or starting point—a

basis, in the commonsense meaning of the term—for

the judge’s exercise of discretion.” Freeman, 564 U.S.

at 529 (plurality opinion). “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.” Id. (citations

omitted).

The Freeman plurality correctly applied these

principles to the § 3582(c)(2) context.

[Section 1B1.10] seeks to isolate whatever

18

marginal effect the since-rejected Guideline had

on the defendant’s sentence. Working

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 sentence or to approve the agreement. This

is the only rule consistent with [§ 1B1.10], a

[binding policy] statement that rests on the

premise that a Guideline range may be one of

many factors that determine the sentence

imposed.

Id. at 530. These principles apply with even more force

in the § 3553(e) cooperator context. This issue involves

criminal defendants who readily admitted guilt and

who provided substantial assistance to the

government. See, e.g., USSG app. C, amend. 759,

reason for amend. (noting that the “guidelines and the

relevant statutes have long recognized that

defendants who provide substantial assistance are

differently situated than other defendants and should

be considered for a sentence below a guideline or

statutory minimum even when” non-cooperating

defendants are still subject to the guideline or

statutory minimum). To permit § 3582(c)(2) reductions

only where the district court at the initial sentencing

ignored § 5G1.1(b) and instead used the § 2D1.1

guideline range “would permit the very disparities the

Sentencing Reform Act seeks to eliminate,” Freeman,

564 U.S. at 533, and which § 1B1.10(c) in fact

eliminates.

For these reasons, it is particularly appropriate for

19

this Court to hold that all § 3553(e) cooperators are

eligible for § 3582(c)(2) sentence reductions. In such

cases, the sentencing court’s sentence is not just “likely

to be based on the Guidelines,” Freeman, 564 U.S. at

534, but is instead required to be based on the

guidelines, 18 U.S.C. § 3553(e). “This straightforward

analysis would avoid making arbitrary distinctions

between similar defendants based on the [district

court’s initial sentencing procedure]. And it would also

reduce unwarranted disparities in federal sentencing,

consistent with the purposes of the Sentencing Reform

Act.” Freeman, 564 U.S. at 534.

As we read Freeman, eight Justices thought a

categorical rule should apply to § 3582(c)(2) eligibility

in the Rule 11(c)(1)(C) context. The four-Justice

plurality concluded that the district court was

required to consider “the relevant sentencing range” in

every case, “even if the defendant and prosecutor

recommend a specific sentence as a condition of the

guilty plea.” 564 U.S. at 530. In contrast, the four

dissenting Justices concluded that “the sentence

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

based on the agreement, not the Sentencing

Guidelines.” 564 U.S. at 544 (Roberts, C.J.,

dissenting). The plurality and the dissent agreed that

the concurrence’s case-by-case approach was

“arbitrary and unworkable.” Id. The recent grant in

Hughes confirms the point. See n.4, supra.

If a categorical approach is in order (and we think

it is), the only plausible approach is the one that deems

all § 3553(e) cooperators eligible for sentence

reductions under § 3582(c)(2). That approach aligns

with § 3553(e) and § 3582(c)(2)’s plain text,

§ 1B1.10(c)’s express terms, and the authority

20

delegated by Congress to the Commission in 28 U.S.C.

§§ 994 (n), (o), and (u). A contrary categorical rule,

excluding all § 3553(e) cooperators from § 3582(c)(2)

sentence reductions, would exclude even those

§ 3553(e) cooperators who were sentenced exclusively

with reference to their § 2D1.1 guideline ranges, see In

re Sealed Case, 722 F.3d at 366-368, an implausible

result under the applicable statutes and provisions.

And a case-by-case approach, permitting § 3582(c)(2)

sentence reductions for some § 3553(e) cooperators but

not others, would create unwarranted disparities and

produce an arbitrary and unworkable standard for the

lower courts. Section 3553(e) cooperators (like

petitioners) are eligible for § 3582(c)(2) sentence

reductions. The Eighth Circuit erred in holding

otherwise.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

JEFFREY T. GREEN

DANIEL T. HANSMEIER*

500 State Avenue

CO-CHAIR AMICUS

COMMITTEE

Suite 201

NATIONAL ASSOCIATION

Kansas City, KS 66101

OF CRIMINAL DEFENSE

(913) 551-6901

LAWYERS

daniel_hansmeier@fd.org

1660 L Street, N.W.

Washington, D.C. 20036

(202) 872-8600

Counsel Amicus Curiae

January 29, 2018

* Counsel of Record