Petition for Writ of Certiorari — Hughes v. United States, 138 S. Ct. 940 (2018) (No. 17-155)

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FILED

FICE OF THE CLERK

SGPREME GOURT, US.

— <r

17-155 | sw27 200

IN THE

Supreme Court of the Gnited States

ERIK LINDSEY HUGHES,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI T'O

THE UNITED STATES COURT OF APPEALS

For THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Stephanie A. Kearns E. Joshua Rosenkranz

Brian Mendelsohn Counsel of Record

FEDERAL DEFENDER Eric A. Shumsky

PROGRAM, INC. Thomas M. Bondy

101 Marietta St.,N.W. Katherine M. Kopp

Suite 1500 Alison M. Kilmartin

Atlanta, GA 30303 ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

jrosenkranz@orrick.com

Counsel for Petitioner

NE ner oe» eoreenanrene nena A RT

QUESTIONS PRESENTED

This Court explained in Marks v. United States,

430 U.S. 188, 193 (1977), that “[w]hen a fragmented

Court decides a case and no single rationale explain-

ing 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 judg-

ments on the narrowest grounds.” In Freeman v.

United States, 564 U.S. 522 (2011), the Court issued

a fractured 4-1-4 decision concluding that a defendant

who enters into a plea agreement under Fed. R. Crim.

P. 11(c)(1)(C) may be eligible for a reduction in his

sentence if the Sentencing Commission subsequently

issues a retroactive amendment to the Sentencing

Guidelines. But the four-Justice plurality and Justice

Sotomayor’s concurrence shared no common rationale

and the courts of appeals have divided over how to ap-

ply Freeman's result.

The questions presented are:

1. Whether this Court’s decision in Marks means

that the concurring opinion in a 4-1-4 decision repre-

sents the holding of the Court where neither the plu-

rality’s reasoning nor the concurrence’s reasoning is a

logical subset of the other.

2. Whether, under Marks, the lower courts are

bound by the four-Justice plurality opinion in Free-

man, or, instead, by Justice Sotomayor’s separate con-

curring opinion with which all eight other Justices

disagreed.

3. Whether, as the four-Justice plurality in Free-

man concluded, a defendant who enters into a Fed. R.

Crim. P. 11(c)(1)(C) plea agreement is generally eligi-

ble for a sentence reduction if there is a later, retroac-

tive amendment to the relevant Sentencing

Guidelines range.

TABLE OF CONTENTS

QUESTIONS PRESENTED ....00............ccccssseeseereeeeeees i

_ "ty. Seemann ili

ey Oe SID eeccicrcicescccesecddnsassdnsssensnece Vv

RENESAS RE IER a EN ea Re ee 1

OPINIONS AND ORDERS BELOW. ........................ 2

FEET TR STE SIREN EE IOs BR NOLO amr 2

STATUTORY PROVISIONS AND RULES

a eames 2

STATEMENT OF THE CASE ...............cccccseeceeeeeseeees 4

This Court Issues A 4-1-4 Decision In

IPP ic: bindineneedendsceniaadiicnsesanntbendienandeees 4

Mr. Hughes Enters Into A Plea Agreement

Under Fed. R. Crim. P. 11(c)(1)(C) And Is

Sentenced To 180 Months In Prison. ........... 5

The Sentencing Guidelines Are Amended To

Lower The Applicable Sentencing Range,

And The District Court Denies Mr. Hughes’s

Motion To Reduce His Sentence. .................. 7

The Court Of Appeals Affirms, Expressly Noting

The Existence Of A Deep And Entrenched

LR TES RE CTE AAS 9

REASONS FOR GRANTING THE WRIT.............. 10

I. One Circuit Split Over Marks Has Led To

Another Circuit Split Over Freeman. .............. 10

A. The circuits are split over how to apply

Marks to this Court’s fragmented

Se RE ep ak an eS A oe ee 11

B. The 10-2 Freeman split sharply underscores

the courts of appeals’ disagreement over

MEISE EELS Se SL ANIC AEN 16

Il. The Questions Presented Are Important

po ESAS ER CPSC ee eo 19

A. The questions presented are important..... 19

B. The questions presented are recurring. ..... 23

Ill. This Case Is An Ideal Vehicle For

Answering The Questions Presented And

Resolving The Underlying Circuit

IR BTS He ART an 26

IV. The Eleventh Circuit Decision Is Wrong

And Should Be Reversed. .......................cc0000e08 31

TE CES aT NE ew RE rr ee 34

APPENDIX A Opinion of the Eleventh

Circuit (Feb. 27, 2017)............ la

APPENDIX B Order of the Northern

District of Georgia (Nov.

Be iieiadcddncemaianttenicansisene 16a

APPENDIX C Sentencing Hearing

Transcript in the

Northern District of

Georgia (Mar. 3, 2014).......... 8la

APPENDIX D Guilty Plea and Plea

Agreement (Dec. 19,

SEF See 50a

APPENDIX E Motion for Reduction of

Sentence (June 15, 2015)...... 7la

TABLE OF AUTHORITIES

Cases

Baldasar v. Illinois,

Baze v. Rees,

I a tesasenentnaaiele 20

Blaine v. United States,

TG chaetieseaeins

Chapman v. United States,

EE Sen 24

City of Burlington v. Dague,

EE a 23

City of Richmond v. J.A. Croson Co.,

I nos entinauliioe 20

Crawford v. Marion Cty. Election Bd.,

RR ER A Se 20

Dorsey v. United States,

Ee ee en ae ee 25

Eastern Enterprises v. Apfel,

A enn oa SN 14

Franklin Cty. Convention Facilities Auth. v. Am.

Premier Underwriters, Inc.,

240 F.3d 534 (Gth Cir. 2001) .............c0000ccccceeeee-e. 14

Freeman v. United States,

564 U.S. 522 (2011) ...1, 4, 5, 8, 9, 17, 21, 23, 25, 33

Fuentes v. United States,

I 24

Gilmore v. United States,

No. 16-7953, 2017 WL 661819 (U.S. June

le Os chusdbabiuhasanaon 24

Gregg v. Georgia,

a caciatisanomennnialinl 11, 20

Grutter v. Bollinger,

I a Saarecalls 23

Hodgson v. Minnesota,

a eeeeenlisaiidseanel 13

J. McIntyre Machinery, Ltd. v. Nicastro,

Ic cusiaienioine 20

King v. Palmer,

960 F.2d 771 (D.C. Cir. 1991)....................0005 12, 33

Marks v. United States,

i BE ED vciciccccsncckescetcccenencsins 1, 11, 12, 31

McCray v. New York,

i a eeiiahibsininlomeiien 19

McDonald v. City of Chicago,

AS ai a ea me 20

McNeese v. United States,

I nn 24, 29

Medtronic, Inc. v. Lohr,

SE ne Re oO TS 21

Memoirs v. Massachusetts,

Is aennaiona 12

Nat'l Fed’n of Indep. Bus. v. Sebelius,

Ee RII EE: 20

Negron v. United States,

No. 16-999, 2017 WL 636003 (U.S. June

Bee Bee tadiiicnecienscnqucciceusscccesinesenvecnbanisensecicnesesevseyts 24

Nichols v. United States,

ee I SII oo ics cinnicsinendecnncocisidens 1, 16, 23, 25

Parella v., Ret. Bd. of the Rhode Island Emps.’ Ret.

Sys.,

ee ee Ce I I cs dicsctcsnnnseddctcvessoncascentiia 15

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air,

I cee bishdaiomeiesnenentel 23

Peugh v. United States,

a I os send nntnptinsncndéeecowniensteite 25

Planned Parenthood of Se. Pennsylvania v. Casey,

947 F.2d G82 (Sd Cir. 1991).............cccccersccereseseeees 13

Planned Parenthood of Se. Pennsylvania v. Casey,

aR SAN I a ee se ee dla ee 20

Rapanos v. United States,

I al 15

Vill

Regents of Univ. of Cal. v. Bakke,

ee ly SEE ETE viintaniatiespdvessnceceunccccsnass 20, 23, 24

Shady Grove Orthopedic Assocs. v. Allstate Ins. Co.,

ns TIE sccckcsenacseniesves sx00s2caseneamnasesentnnnts 21

Sullivan v. United States,

No. 16-7182, 2017 WL 2621326 (U.S. June 19,

Tyler v. Bethlehem Steel Corp.,

ee Oe Ge Is BD trcecacecccccnssnsscccsccce sss 13

United States v. Alcan Aluminum Corp.,

a ee ee eG ac setiniscccdecsseeccstssccasceses 14

United States v. Austin,

Fe re re ee Ge BED osc 00s cece seccsesessnenesscsee 24

United States v. Benitez,

— § fe 6 fe Le): Rp 18

United States v. Brown,

— gf f g Vs S .) 5 | 18, 19

United States v. Browne,

698 F.3d 1042 (8th Cir. 2012) ............ 00... 18

United States v. Davis,

825 F.3d 1014 (9th Cir. 2016) ............ 10, 12, 13, 17,

18, 31, 32, 33

United States v. Dixon,

fx 9 fy fo a) . RERUN p een 18

United States v. Duvall,

FE ee Pe ee Ss Be iccrcnceccevsecsonscvecececsess 24

United States v. Duvall,

740 F.3a GO4 G).C. Cir. BO18)........<ccccccccccsccccsccssce OF

United States v. Epps,

707 F.3d 337 (D.C. Cir. 2013)..............10, 12, 17, 18

United States v. Graham,

Pe ee Bt Ce GE, BED cence cbdnesccncccecoccccuces 18

United States v. Howell,

541 F. App’x 13 (2d Cir. 2013)................cc.cssccccess. 18

United States v. Hughes,

Ge ee Be Cee Ce, BET) onc cvccccccccdcccccccccccccce 2

United States v. Johnson,

467 F.3d 56 (ist Cir. 2006)...................0..ccc00. 13, 15

United States v. Mitchell,

500 F. App’x 802 (11th Cir. 2012) ........00.0....ccccce. 24

United States v. Rivera-Martinez,

ir ae Ce Ce IE, TE BD cevcecccsccsanénccsceccessccnccss 18

United States v. Robison,

505 F.3d 1208 (11th Cir. 2007) .....0... cca 16

United States v. Smith,

658 F.3d GOS (Gth Cir. 2011) .......................cc-cceee- 18

United States v. Thompson,

Se ee ee I CNS BOD oneness snes ccccccccccicseccocees 18

Webster v. Reproductive Health Services,

EE es IED onictacncctancesisnesteneascansonnen pS

Williams v. Illinois,

I ie caeeibihebibinl 20

Statutes

18 U.S.C. § BEBBES)....0....00scc0ce0000 arrest 2, 4, 7, 8, 34

a 2

Rules

MM | oe 3, 4, 7, 34

U.S.S.G. § 1B1.10 (U.S. Sentencing Comm’n Nov.

eS i pS Si CERT et RSS ese OE 7, 30

U.S.S.G. § 1B1.10(b)(2)(A) (U.S. Sentencing Comm’n

a RI a SE LR ener yeah 8

U.S.S.G. § 1B1.10(b)(2)(B) (U.S. Sentencing Comm’n

NE PIII hh aca dsustusiactuninncebnhigoeanssanhiinedctimniiieeaiinion 8

U.S.S.G. § 1B1.10(d) (U.S. Sentencing Comm’n Nov.

tE icinaniaiisinstasiclociscdmumeinesicoiakicduigntninenns aeiaabendnade 21

U.S.S.G. § 1B1.10 cmt. note 3 (U.S. Sentencing

a aces itnaunbiaiiens ecaaial 29

Other Authorities

Brief in Opposition, Blaine v. United States,

No. 16-6574 (U.S. Feb. 6, 2017) .............ccceeeseeeeees 27

Brief in Opposition, Chapman v. United States,

No. 16-5969 (U.S. Nov. 16, 2016)......................0.. 27

Brief in Opposition, Fuentes v. United States,

No. 16-6132 (U.S. Nov. 23, 2016)..........000..00...00... 27

Brief in Opposition, Gilmore v. United States,

No. 16-7953 (U.S. May 19, 2017) ..........000.00... 27, 30

Brief in Opposition, McNeese v. United States,

No. 16-66, 2016 WL 6082343

(if Be 3” |= 24, 25, 27, 29, 31, 32

Brief in Opposition, Negrén v. United States,

No. 16-999 (U.S. May 19, 2017) ...............00......00- 27

Brief in Opposition, Sullivan v. United States,

No. 16-7182 (U.S. May 15, 2017) .....00.0000000.... 27, 30

Eugene Wambaugh, The Study of Cases § 48 (2d ed.

SII avslicnialicieesdashiciiianilde Inc seeppsidiasenalcnittbesbdadddacinceiededeisasite 33

Initial Brief of Appellant, United States v. Hughes,

No. 15-15246-C, 2016 WL 1376175 (11th Cir. Mar.

Be ed cdierechtctnatbncideretetnaterscphctecmmberabctcnatecocn 28

James F. Spriggs, II & David R. Stras, Explaining

Plurality Decisions,

eS ad, TP PRED ce csccccosrcconeseccecccoscewsnes 14, 24

Ryan C. Williams, Questioning Marks: Plurality

Decisions and Precedential Constraint,

69 STAN. L. REV. 796 (2017)....................ccc0000- 10, 21

U.S. Sentencing Comm’n, 2014 Drug Guidelines

Amendment Retroactivity Data Report (Oct. 2016),

available at http://tinyurl.com/USSC2014 (last

tae 22

x11

U.S. Sentencing Comm’n, Proposed Amendments to

the Sentencing Guidelines (Dec. 19, 2016).......... 22

INTRODUCTION

Every regional circuit has weighed in on a ques-

tion that has them irreconcilably split, 10-2. And the

only reason they are split is that this Court has never

resolved a foundational question about a situation

where this Court resolves a case without a majority

opinion. In Marks v. United States, 430 U.S. 188

(1977), this Court directed lower courts to follow the

opinion representing the “narrowest grounds.” But

this Court has never explained what to do when the

opinions are not narrower or broader, but just differ-

ent.

As this Court has observed, in the 40 years since

Marks was decided, its rule has been “more easily

stated than applied.” Nichols v. United States, 511

U.S. 738, 745 (1994). The lower courts are hopelessly

confused over how to apply Marks, which has led to

several different circuit splits. Among them is the

split implicated here over what to make of the frag-

mented decision in Freeman v. United States, 564 U.S.

522 (2011). In Freeman, this Court splintered on the

circumstances under which a defendant can seek a

sentence reduction when the Sentencing Commission

reduces the Guidelines range.

This Court should address the Marks question

now: It matters for Mr. Hughes and for other criminal

defendants, and it matters more generally for courts

attempting to determine which rule of law to follow in

several areas in which this Court has issued a frag-

mented decision. Indeed, this Court has granted cer-

tiorari on at least three prior occasions to resolve a

specific question for a second time because the lower

courts could not derive the precedential rule from the

original fragmented decision.

The Circuits are expressly and irrevocably split

on the application of Marks to Freeman. And unlike

previous petitions that raised the Freeman issue and

were denied, this case presents a clean vehicle. This

Court should grant this petition, so that Mr. Hughes

and other similarly situated criminal defendants can

have their eligibility for a sentence reduction properly

determined under Freeman, and so that the applica-

tion of Marks can be clarified more generally.

OPINIONS AND ORDERS BELOW

The decision of the Court of Appeals is reported at

849 F.3d 1008. Pet. App. la-15a. The district court’s

ruling on the sentence modification motion is unre-

ported. Pet. App. 16a-30a.

JURISDICTION

The Court of Appeals entered judgment on

February 27, 2017. Pet. App. la. On May 22, 2017,

Justice Thomas extended the time for filing this peti-

tion for certiorari to and including July 27, 2017. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AND

RULES INVOLVED

18 U.S.C. § 3582(c)(2) provides as follows:

The court may not modify a term of imprison-

ment once it has been imposed except that ...

in the case of a defendant who has been sen-

tenced to a term of imprisonment based on a

sentencing range that has subsequently been

lowered by the Sentencing Commission pur-

suant to 28 U.S.C. § 994(0), 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 con-

sidering the factors set forth in section

3553(a) to the extent that they are applicable,

if such a reduction is consistent with applica-

ble policy statements issued by the Sentenc-

ing Commission.

Federal Rule of Criminal Procedure 11(c)(1)(C)

provides as follows:

(1) In General. An attorney for the govern-

ment and the defendant’s attorney, or the de-

fendant when proceeding pro se, may discuss

and reach a plea agreement. The court must

not participate in these discussions. If the de-

fendant pleads guilty or nolo contendere to ei-

ther a charged offense or a lesser or related

offense, the plea agreement may specify that

an attorney for the government will:

ing range is the appropriate disposition of the

case, or that a particular provision of the Sen-

tencing 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).

STATEMENT OF THE CASE

This Court Issues A 4-1-4 Decision In Freeman.

This case arises out of the interplay between a

statutory provision about sentence reductions and a

criminal procedure rule. The statute is 18 U.S.C.

§ 3582(c)(2), which provides that if the defendant’s

sentence is “based on” the Sentencing Guidelines, the

defendant is eligible for a sentence reduction when

the Sentencing Commission later retroactively lowers

the Guidelines range applicable to the defendant’s of-

fense. The rule is Fed. R. Crim. P. 11(c)(1)(C), which

provides that a defendant may enter into a plea agree-

ment providing that a specific sentence is the appro-

priate disposition of his case. If the court accepts such

a plea agreement, known as a “C-type agreement,” the

agreed-upon sentence binds the court. This Court

tried—and failed—to authoritatively resolve the

question whether, and under what circumstances, a

plea agreement under Fed. R. Crim. P. 11(c)(1)(C) is

eligible for a sentence reduction when the applicable

sentencing range under the Sentencing Guidelines is

subsequently lowered—i.e., when is the plea agree-

ment “based on” the Sentencing Guidelines?

This Court ruled that the defendant in that case

was eligible for a sentence reduction, but the Court

did so in a divided 4-1-4 decision. Freeman v. United

States, 564 U.S. 522 (2011). The four-Justice plurality

explained that a district court generally has authority

to reconsider the sentence of a defendant who entered

into a C-type plea agreement where later amend-

ments to the Sentencing Guidelines reduce the appli-

cable sentencing range for his crime of conviction, if

the sentencing judge’s decision to accept the plea

agreement was based on the relevant Guidelines.

Freeman, 564 U.S. at 534. The plurality’s focus was

on the judge’s acceptance of the plea agreement.

Justice Sotomayor concurred in the judgment but

“differ[ed] as to the reason why.” Jd. (Sotomayor, J.,

concurring). She held that the proper focus is on what

the parties agreed to: In Justice Sotomayor’s view, a

court may reconsider a sentence in this context only if

the plea agreement “expressly uses a Guidelines sen-

tencing range applicable to the charged offense to es-

tablish the [agreed-upon] term of imprisonment, and

that range is subsequently lowered by the United

States Sentencing Commission.” Jd. Although Justice

Sotomayor broke the tie in favor of the defendant, her

reasoning was not endorsed by any other Justice. See

id. at 544 (Roberts, C.J., dissenting) (“The plurality

and the opinion concurring in the judgment agree on

very little except the judgment.”).

Mr. Hughes Enters Into A Plea Agreement Under

Fed. R. Crim. P. 11(c)(1)(C) And Is Sentenced To

180 Months In Prison.

In 2013, a federal grand jury returned an indict-

ment charging Erik Hughes with four counts of drug

and firearm offenses. Pet. App. 3a; Pet. App. 16a-17a.

After “negotiations between the parties and in ex-

change for the government dismissing otherwise

provable counts against the Defendant,” Mr. Hughes

entered into a plea agreement pursuant to Fed. R.

Crim. P. 11(c)(1)(C). Pet. App. 54a. Under the agree-

ment, Mr. Hughes pled guilty to Counts One and

Three: conspiracy to possess with intent to distribute

at least 500 grams of methamphetamine, and being a

felon in possession of a firearm. Pet. App. 3a.

The plea agreement provided “that the Court

should impose a sentence of 180 months of imprison-

ment as the appropriate custodial sentence in this

case.” Pet. App. 54a. During “plea discussions, it was

discussed that [Mr. Hughes’s Sentencing] Guideline

range was 188-235 months.” Pet. App. 74a. The plea

agreement contains numerous references to the

Guidelines. See, e.g., Pet. App. 54a (“The Defendant

understands that ... the Court will be required to con-

sider ... the provisions of the United States Sentenc-

ing Guidelines ...”); Pet. App. 55a (“[T]he Court may

still consider the conduct underlying such dismissed

counts in determining relevant conduct under the

Sentencing Guidelines ....”); id. (“Sentencing Guide-

line Recommendations”); Pet. App. 56a (“[T]he gov-

ernment also reserves the right to make

recommendations regarding application of the Sen-

tencing Guidelines.”); id. (“[I]f ... additional evidence

is sufficient to support a finding of a different appli-

cation of the Guidelines ....”); Pet. App. 58a (“Pursu-

ant to § 1B1.8 of the Sentencing Guidelines, the

Government agrees that any self-incriminating infor-

mation that was previously unknown to the Govern-

ment ... will not be used in determining the applicable

sentencing guideline range ....”).

At the sentencing hearing, the district court de-

termined Mr. Hughes’s total offense level and his

criminal history category, and used those numbers to

compute his recommended sentencing range under

the Sentencing Guidelines—188 to 235 months. Pet.

App. 36a. The court then explained that it “considered

... the sentencing guidelines,” Pet. App. 32a-33a, and

found that the agreed-upon sentence “complies ...

with thefir] spirit,” Pet. App. 33a. The court accepted

the plea agreement, and sentenced Mr. Hughes to 180

months in prison. Pet. App. 44a; see Fed. R. Crim. P.

11(c)(1)X(C) (binding district court to recommended

sentence if plea agreement is accepted).

The Sentencing Guidelines Are Amended To

Lower The Applicable Sentencing Range, And

The District Court Denies Mr. Hughes’s Motion

To Reduce His Sentence.

On July 18, 2014, the U.S. Sentencing Commis-

sion announced that Amendment 782 to the Sentenc-

ing Guidelines, which reduced the offense level for

specified drug offenses by two levels, would go into ef-

fect on November 1, 2015, and would apply retroac-

tively. Pet. App. 3a-4a; see also U.S. Sentencing

Guidelines Manual § 1B1.10 (U.S. Sentencing

Comm'n Nov. 2015). Under the amended guidelines,

the recommended sentencing range for the offenses to

which Mr. Hughes pled guilty would be 151 to 188

months. Pet. App. 4a; Pet. App. 75a.

After learning of the amendment to the Sentenc-

ing Guidelines, Mr. Hughes filed a motion to reduce

his sentence pursuant to 18 U.S.C. § 3582(c)(2), which

allows a court to reduce the term of imprisonment of

“a defendant who has been sentenced ... based on a

sentencing range that has subsequently been lowered

by the Sentencing Commission.”! Pet. App. 71la-76a.

The district court denied Mr. Hughes’s motion,

Pet. App. 30a, holding that he was ineligible for a re-

duced sentence under Amendment 782 because the

sentence in his binding plea agreement was not

“based on” a sentencing guidelines range as required

by § 3582(c)(2), Pet. App. 17a-18a. In so holding, the

district court relied on Justice Sotomayor’s concurring

opinion in Freeman, which states that, in general,

“the term of imprisonment imposed pursuant to a (C)

agreement is, for purposes of § 3582(c)(2), ‘based on’

the agreement itself’ rather than the Sentencing

Guidelines. Pet. App. 2la (quoting 564 U.S. at 536).

Under Justice Sotomayor’s concurrence, where “a

plea agreement ... provide[s] for a specific term of im-

| According to the Sentencing Guidelines Manual, “the court

shall not reduce the defendant's term of imprisonment ... to a

term that is less than the minimum of the amended guideline

range.” U.S. Sentencing Guidelines Manual § 1B1.10(b)(2)(A).

The only exception to this rule is when the defendant’s sentence

was initially reduced due to “substantial assistance to authori-

ties.” Id. at § 1B1.10(b)(2)(B). Here, Mr. Hughes requested that

his sentence be reduced to 150 months (one month below the

minimum of the amended guideline range), in accordance with a

policy statement accompanying Amendment 782. Pet. App. 76a.

Mr. Hughes argued that where a defendant has been sentenced

to a term below the lower limit of the Sentencing Guidelines, “a

reduction comparably less than the amended guidelines range ...

may be appropriate.” Pet. App. 75a (citing U.S. Sentencing

Guidelines Manual § 1B1.10(6)(2)(B) (U.S. Sentencing Comm'n

Nov. 2015)). But because Mr. Hughes did not qualify for the lim-

ited exception to the general rule, his sentence could be reduced

to no less than 151 months.

prisonment,” for the defendant to be eligible for a sen-

tence reduction the agreement must “make clear that

the basis for the specified term is a Guidelines sen-

tencing range applicable to the offense to which the

defendant pleaded guilty.” Id. at 539. The district

court held that, in this case, Mr. Hughes’s “sentence

was not linked or tied to the Sentencing Guidelines”

because the plea agreement “does not mention an oth-

erwise applicable Sentencing Guidelines range or De-

fendant’s criminal history, and Defendant’s criminal

history category is not evident from the Agreement it-

self.” Pet. App. 28a.

The Court Of Appeals Affirms, Expressly Noting

The Existence Of A Deep And Entrenched Circuit

Conflict.

The Court of Appeals affirmed, expressly noting

the conflict among the circuits over which opinion in

Freeman controls. Pet. App. 12a-15a. Rejecting the

approach of the D.C. and Ninth Circuits, the court

sided with “eight sister circuits,” and held that “[a]s

we see it, Justice Sotomayor’s opinion provides a legal

standard that produces results with which a majority

of the Court in Freeman would agree because when-

ever Justice Sotomayor’s opinion would permit a sen-

tence reduction, the plurality opinion would as well.”

Pet. App. 9a, 12a-13a. As such, “Justice Sotomayor’s

opinion in Freeman provides the narrowest ground of

agreement because her concurring opinion estab-

lishes the ‘le[ast] far-reaching’ rule.” Pet. App. 8a.

In so holding, the court characterized as “mis-

placed” the contrary rulings of the D.C. and Ninth

Circuits that “Justice Sotomayor’s concurring opin-

ion does not provide the narrowest ground of agree-

ment in Freeman” because it does not constitute a

“logical subset’ of another, broader opinion.” Pet. App.

9a-10a (citing United States v. Davis, 825 F.3d 1014,

1021-22 (9th Cir. 2016) (en banc); United States v.

Epps, 707 F.3d 337, 350 (D.C. Cir. 2013)).

The Court of Appeals on this basis agreed with

the district court that Mr. Hughes “is not eligible for

a sentence reduction,” because the plea agreement

“does not make any recommendation about a specific

application of the Sentencing Guidelines, [it] does not

calculate [Mr.] Hughes’s range or discuss factors that

must be used to determine that range, such as [Mr.]

Hughes's criminal history|, nlor does it set the agreed-

upon sentence within the applicable guideline range.”

Pet. App. 14a-15a.

REASONS FOR GRANTING THE WRIT

I. One Circuit Split Over Marks Has Led To

Another Circuit Split Over Freeman.

The courts of appeals are hopelessly divided over

how to analyze fragmented decisions of this Court in

light of the Marks “narrowest grounds” of agreement

rule. See, e.g., Ryan C. Williams, Questioning Marks:

Plurality Decisions and Precedential Constraint, 69

STAN. L. REV. 795, 799 (2017) (“The conceptual confu-

sion surrounding Marks presents an important prac-

tical challenge for lower courts.”). Disagreement over

Marks has, in turn, caused an irreconcilable division

in the courts of appeals over the Freeman question.

All twelve regional circuits? have now interpreted

Freeman in light of Marks to determine whether Jus-

tice Sotomayor’s concurrence is controlling as the

“narrowest grounds” of agreement. The Eleventh Cir-

cuit here joined nine sister circuits to hold that it is.

The D.C. and Ninth Circuits, on the other hand, hold

that there is no controlling opinion but apply the plu-

rality opinion on the ground that it provides the most

persuasive analysis. This Court should resolve the

Freeman question to ensure that federal prisoners are

not forced to endure overly long sentences based on

the happenstance of where their crimes were commit-

ted and where they were prosecuted and sentenced.

This Court should also clarify its holding in Marks

more generally and provide guidance to lower courts

struggling to interpret fragmented Supreme Court

decisions.

A. The circuits are split over how to apply

Marks to this Court's fragmented

decisions.

In Marks, this Court held that, “[w]hen a frag-

mented Court decides a case and no single rationale

explaining the result enjoys the assent of five Jus-

tices, ‘the holding of the Court may be viewed as that

position taken by those Members who concurred in

the judgments on the narrowest grounds ....” 430

U.S. at 193 (quoting Gregg v. Georgia, 428 U.S. 153,

169 n.15 (1976) (opinion of Stewart, Powell, and Ste-

vens, JJ)). In applying that rule to the case before it,

the Court explained that the plurality opinion in

2 The Federal Circuit is the only court of appeals that has

not reached the Freeman issue and, of course, it never will.

Memoirs v. Massachusetts, 383 U.S. 413 (1966), con-

trolled the specific issue in Marks because the concur-

rences rested “on broader grounds in reversing the

judgment below.” Marks, 430 U.S at 193. The plural-

ity opinion in Memoirs was therefore fully subsumed

within the concurring analysis, and a majority of the

Court agreed upon a rationale that led to the result.

But the Marks Court did not address what hap-

pens when the plurality and concurrence agree on the

judgment but not on any aspect of the underlying ra-

tionale. In the years that have followed, the courts of

appeals have taken sharply divergent approaches to

this question.

The D.C. Circuit, for example, has explained that

“Marks is workable ... only when one opinion is a log-

ical subset of other, broader opinions.” King uv.

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

When there is “no practical middle ground between”

the plurality and the concurrence, United States v.

Epps, 707 F.3d 337, 348-49 (D.C. Cir. 2013), no deci-

sion “can be meaningfully regarded as ‘narrower,”

King, 950 F.2d at 781, and it is appropriate to “con-

sider ... which, if any, of the rationales” in those opin-

ions “is persuasive,” Epps, 707 F.3d at 351.

The Ninth Circuit agrees. “A fractured Supreme

Court decision should only bind the federal courts of

appeal{s] when a majority of the Justices agree upon

a single underlying rationale and one opinion can rea-

sonably be described as a logical subset of the other.”

Davis, 825 F.3d at 1021-22. Accordingly, “[w]hen no

single rationale commands a majority of the Court,

only the specific result is binding on lower federal

courts.” Id. at 1022. In the Ninth Circuit’s view, the

focus is on “whether the reasoning of a narrower opin-

ion fit[s] entirely into the circle drawn by a broader

opinion in order to derive a rule.” Jd. at 1021.

Other courts of appeals, however, including the

Eleventh Circuit here, have adopted an approach fo-

cused on the results yielded by each opinion. These

courts hold that the controlling opinion is the one that

“will necessarily produce results with which a major-

ity of the Court from that case would agree.” Pet. App.

12a (internal quotation marks omitted) (emphasis in

original). See also, e.g., Planned Parenthood of Se.

Pennsylvania v. Casey, 947 F.2d 682, 694 (3d Cir.

1991) (finding Justice O’Connor’s concurring opinions

in Webster v. Reproductive Health Services, 492 U.S.

490, 530 (1989) and Hodgson v. Minnesota, 497 U.S.

417, 458-60 (1990), controlling because a majority of

Justices would have agreed with the result under her

concurrences), affd in part, rev'd in part on other

grounds, 505 U.S. 833 (1992); Tyler v. Bethlehem Steel

Corp., 958 F.2d 1176, 1182 (2d Cir. 1992) (“In essence,

what we must do is find common ground shared by

five or more justices.”); United States v. Johnson, 467

F.3d 56, 64 (1st Cir. 2006) (applying the results-ori-

ented test where there are no identifiable “narrowest

grounds” under the logical subset test).

Unless and until this Court clarifies Marks, the

lower courts will be forced to continue to divine with

no guidance which opinion is controlling whenever

this Court issues a fragmented decision with a plural-

ity and concurring opinions, a not uncommon occur-

rence that can implicate highly consequential cases.

Infra § U1.A. Indeed, “during the 54 terms from 1953

to 2006, th[is] Court issued 195 plurality opinions.”

James F. Spriggs, II & David R. Stras, Explaining

Plurality Decisions, 99 GEO. L.J. 515, 519 (2011).

The divergence in the circuits’ approaches has led

to explicit disagreements over the holdings of specific

decisions of this Court. For example, in Eastern En-

terprises v. Apfel, 524 U.S. 498 (1998), the Court held

that retroactive application of the Coa! Industry Re-

tiree Health Benefit Act of 1992 to Eastern Enter-

prises was unconstitutional. Justice O’Connor

authored the plurality opinion, holding that the Act

was unconstitutional under the Fifth Amendment’s

Takings Clause. See id. at 503-04 (plurality op.). Jus-

tice Kennedy concurred in the result—that the Act

was unconstitutional—but rejected the plurality’s ra-

tionale, instead relying on the Due Process Clause. Id.

at 539 (Kennedy, J., concurring in the judgment and

dissenting in part).

Because there is no clear majority rule, the courts

of appeals are split as to what constitutes a taking un-

der Eastern Enterprises. The Second and Sixth Cir-

cuits—like the D.C. and Ninth Circuits applying

Freeman—find no controlling opinion in Eastern En-

terprises because the concurrence is not a “logical sub-

set” of the plurality opinion. See United States v.

Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir.

2003); Franklin Cty. Convention Facilities Auth. v.

Am. Premier Underwriters, Inc., 240 F.3d 534, 552

(6th Cir. 2001). Therefore, “[t]he only binding aspect

of such a splintered decision is its specific result, and

so the authority of Eastern Enterprises is confined to

its holding that the Coal Act is unconstitutional as ap-

plied to Eastern Enterprises.” Alcan, 315 F.3d at 189.

In contrast, the First Circuit has determined that

Eastern Enterprises has a much broader stare decisis

effect. Parella v. Ret. Bd. of the Rhode Island Emps.’

Ret. Sys., 173 F.3d 46, 58 (1st Cir. 1999). According to

the Parella court, Eastern Enterprises stands for the

proposition that the Takings Clause applies only if

the plaintiff identifies an established property right

because that was the common ground for the “major-

ity of [J}ustices”—Justice Kennedy and the four dis-

senting Justices. Jd.

Rapanos v. United States, 547 U.S. 715 (2006) is

similar. Rapanos is a 4-1-4 plurality decision address-

ing the scope of the EPA’s authority to regulate wet-

lands. Justice Scalia’s plurality opinion articulated a

test under which federal regulatory jurisdiction would

apply only to certain wetlands. Jd. at 742. Justice

Kennedy concurred in the judgment, but would apply

a “significant nexus” test to determine federal regula-

tory jurisdiction. Jd. at 779-83 (Kennedy, J., concur-

ring in the judgment). Chief Justice Roberts’

concurrence invited the EPA to engage in notice-and-

comment rulemaking about the scope of federal power

over wetlands, to which he would then give generous

leeway. Id. at 757-58 (Roberts, C.J., concurring). Fi-

nally, Justice Stevens wrote a dissent, advocating

that federal regulatory jurisdiction could be asserted

either by applying the “significant nexus” test or by

meeting the plurality’s standard. Jd. at 810 (Stevens,

J., dissenting).

Not surprisingly, the circuits are split over how to

apply Rapanos. Compare Johnson, 467 F.3d at 66

(First Circuit holding that the Government has juris-

diction if it satisfies the plurality or concurring test);

with United States v. Robison, 505 F.3d 1208, 1221-22

(11th Cir. 2007) (Eleventh Circuit accepting only the

concurrence’s test because it was the least “far-reach-

ing” among the rationales that supported the judg-

ment).

Freeman is yet another example of a 4-1-4 frag-

mented decision that has hopelessly divided the

courts of appeals on how to apply Marks. Infra § 1.B.

As these examples illustrate, this Court’s review

is urgently needed to address the courts of appeals’

confusion over the meaning of Marks—which set forth

a “test ... more easily stated than applied.” Nichols v.

United States, 511 U.S. 738, 745 (1994).

B. The 10-2 Freeman _ split sharply

underscores the courts of appeals’

disagreement over Marks.

Nowhere is the court of appeals’ disagreement

over Marks more evident than in their division over

Freeman, where the circuits are split 10-2 over

whether Justice Sotomayor’s concurrence or the plu-

rality’s approach controls. As such, whether a pris-

oner is eligible for a reduced sentence in light of

changes to the Sentencing Guidelines is determined

in large part by the happenstance of geography. A rul-

ing on the Freeman issue would not only provide

much-needed clarity to criminal sentencing law but,

more broadly, guidance on the correct approach to an-

alyzing fragmented decisions of this Court.

The D.C. Circuit and the Ninth Circuit have ap-

plied the “logical subset” test to conclude that no sin-

gle rationale in Freeman controls. Davis, 825 F.3d at

1021-22; Epps, 707 F.3d at 350-51. According to the

D.C. Circuit, under Marks the “narrowest opinion

must represent a common denominator of the Court's

reasoning; it must embody a position implicitly ap-

proved by at least five Justices who support the judg-

ment.” Epps, 707 F.3d at 348 (citations omitted)

(emphasis in original). But “there is no controlling

opinion in Freeman because the plurality and concur-

ring opinions do not share common reasoning

whereby one analysis is a ‘logical subset’ of the other.”

Id. at 350 (citation omitted). The D.C. Circuit also

elaborated that, under the Freeman concurrence,

courts “examine the intent of the parties ... to deter-

mine whether a [C-type plea] sentence” is “based on”

the Guidelines. Jd. And, according to the Freeman

plurality, this parties-focused approach “is fundamen-

tally incorrect because § 3582(c)(2) ‘calls for an in-

quiry into the reasons for a judge’s sentence, not the

reasons that motivated or informed the parties.” Jd.

(quoting Freeman, 564 U.S. at 533 (plurality op.)).

Against this backdrop, the D.C. Circuit reasoned that

because “tl.° 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,” Justice Sotomayor’s opinion cannot

control. Jd. at 351.

The en banc Ninth Circuit has reached the same

conclusion, explicitly rejecting the notion that Justice

Sotomayor’s concurrence was the lowest common de-

nominator in Freeman, because “there are some cir-

cumstances where defendants would be eligible for

relief under Justice Sotomayor’s approach but not un-

der the plurality’s.” Davis, 825 F.3d at 1024. With no

controlling opinion in Freeman, the Ninth Circuit was

“restricted only by the ultimate result in Freeman:

that defendants sentenced under Rule 11{c)(1)(C)

agreements are not categorically barred from seeking

a sentence reduction under § 3582(c)(2).” Id. at 1026.

These two circuits—the D.C. and Ninth Cir-

cuits—have thus found the Freeman plurality opinion

more persuasive and on that basis have allowed dis-

trict court reconsideration of defendants’ sentences.

Id.; Epps, 707 F.3d at 351-53.

In contrast, ten other circuits, including the Elev-

enth Circuit in this case, have concluded that Justice

Sotomayor’s concurring opinion in Freeman controls

because it reflects the narrowest result. See Pet. App.

10a-13a; United States v. Rivera-Martine=, 665 F.3d

344, 348 (1st Cir. 2011); United States v. Howell, 541

F. App’x 13, 14 (2d Cir. 2013); United States v. Thomp-

gon, 682 F.3d 285, 290 (3d Cir. 2012); United States v.

Brown, 653 F.3d 337, 340 n.1 (4th Cir. 2011); United

States v. Benitez, 822 F.3d 807, 811 (Sth Cir. 2016);

United States v. Smith, 658 F.3d 608, 611 (6th Cir.

2011); United States v. Dixon, 687 F.3d 356, 359 (7th

Cir. 2012); United States v. Browne, 698 F.3d 1042,

1045 (8th Cir. 2012); United States v. Graham, 704

F.3d 1275, 1277-78 (10th Cir. 2013).

These courts hold that Justice Sotomayor’s opin-

ion reflects the “narrowest grounds” under Marks be-

cause, in their view, every Justice in the Freeman

plurality would agree that the defendant is eligible for

a sentence reduction when a C-type plea agreement

expressly uses a Guidelines sentencing range to es-

tablish the length of the sentence imposed. See, e.g.,

Brown, 653 F.3d at 340 n.1.

In light of the above-cited case law, there is no

need at this point for additional percolation in the

lower courts. The regional courts of appeals have all

addressed the Freeman question and they are sharply

and irrevocably divided. At this point, “further consid-

eration of the substantive and procedural ramifica-

tions of the problem by other courts will [not] enable

[this Court] to deal with the issue more wisely at a

later date.” McCray v. New York, 461 U.S. 961, 962

(1983) (Stevens, J., opinion respecting denial of certi-

orari).

Il. The Questions Presented Are Important

And Recurring.

A. The questions presented are important.

As explained above, supra § 1.A, the Marks ques-

tion arises not just in the context of Freeman sentenc-

ing cases, but also potentially in every area of law

where this Court may issue a fragmented decision.

Some of this Court’s most significant cases—involving

such issues as abortion,’ gun control,‘ voting rights,®

affirmative action,® capital punishment,’ and the

scope of congressional authority under the Commerce

Clause*—have been decided by a plurality decision.

The proper interpretation of a plurality decision may

also implicate any number of other issues in areas

such as criminal procedure,’ personal jurisdiction, '®

8 Planned Parenthood, 505 U.S. 833 (Pennsylvania in-

formed consent law); Webster, 492 U.S. 490 (Missouri abortion

restrictions).

4 McDonald v. City of Chicago, 561 U.S. 742 (2010)

(incorporation of Second Amendment against state

governments).

5 Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)

(Indiana voter identification law).

8 City of Richmond v. J.A. Croson Co., 488 US. 469 (1989)

(racial preferences in public contracting); Regenis of Unix. of Cal.

uv. Bakke, 438 U.S. 265 (1978) (racia] preferences in higher

education).

’ Baze v. Rees, 553 U.S. 35 (2008) (permissible methods of

capital punishment); Gregg, 428 U.S. 153 (capital punishment’s

constitutiona lity).

8 Nat'l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)

(Congress's authority to require individuals to acquire hea)th

insurance).

8 Williams v. Illinois, 567 U.S. 50 (2012) (whether

statements prepared in the course of an investigation were

“testimonial” for purposes of the Sixth Amendment's

Confrontation Clause).

0 J. McIntyre Machinery, Lid. «. Nicasiro, 564 U.S. 873

(2011) (whether a defendant may be subject to the jurisdiction of

the courts of the United States but not of any particular State).

class certification,'! and federal preemption of state

law.!2 See Williams, 69 STAN. L. REV. at 800-01.

Resolving the holding in Freeman would control

the outcome of this case, but resolving the broader

question would also assist the lower courts in grap-

pling with Marks in other important settings. The

Court should clarify the Marks rule, for the benefit of

Mr. Hughes and similarly situated criminal defend-

ants, and also for the benefit of other parties litigating

a diverse range of issues under fragmented Supreme

Court authority.

Regarding the specific context of this case—-where

Justice Sotomayor’s Freeman concurrence affects a

large number of inmates both now and into the fu-

ture—retroactive Sentencing Guidelines amend-

ments are not uncommon. See _ U-S.S.G.

§ 1B1.10(d) (listing 29 retroactive amendments to

date).!* For example, the amendment analyzed in

Freeman was different than the one at issue here. See

564 U.S. at 528 (plurality op.) (Ciscussing amendment

1! Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559

U.S. 393 (2010) (whether a state legislature can prohibit federal

courts from using a federal class action rule for a state law

claim).

12 Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (whether the

Medical Device Amendments of 1976 preempt state common-law

negligence action).

18 See U.S.S.G. § 1B1.10(d) (‘Amendments covered by this

policy statement are listed in Appendix C as follows: 126, 130,

156, 176, 269, 329, 341, 371, 379, 380, 433, 454, 461, 484, 488,

490, 499, 505, 506, 516, 591, 599, 606, 657, 702, 706 as amended

by 711, 715, 750 (parts A and C only), and 782 (subject to sub-

section (e)(1)).”).

706, which remedied disparities between penalties for

cocaine base and powder cocaine offenses). Not only

has the Sentencing Commission freely amended the

Guidelines in the past, but it continues to do so, and

the Commission not infrequently gives its amend-

ments retroactive effect. See, e.g., U.S. Sentencing

Comm’n, Proposed Amendments to the Sentencing

Guidelines at ii (Dec. 19, 2016) (requesting “public

comment” regarding whether “any proposed amend-

ment published in this document should ... be applied

retroactively to previously sentenced defendants”).

Incarcerated prisoners routinely file motions

seeking a reduction in sentence because the Sentenc-

ing Guidelines were amended. According to an Octo-

ber 2016 Sentencing Commission report, 567 motions

for sentence reductions based on Amendment 782

alone were denied in light of a “binding plea” in a pe-

riod of just 700 days (Nov. 1, 2014 to Sept. 30, 2016).

U.S. Sentencing Comm'n, 2014 Drug Guidelines

Amendment Retroactivity Data Report Table 1 (Oct.

2016), available at http://tinyurl.com/USSC2014 (last

visited July 23, 2017). The issue is ubiquitous, and

will continue to arise as long as defendants sign C-

type plea agreements and the Commission regularly

amends the Sentencing Guidelines with retroactive

effect.

Finally, there can be no doubt about the

importance of the underlying merits question that

Freeman failed to resolve authoritatively. This Court

has already granted certiorari on that question. And

it is no less important now than it was then. While the

Court may well reach the same impasse as it did

before, it is also possible that with the passage of time

and the further experience of 12 circuits, this Court

could reach a resolution that was once elusive. That

has certainly happened before. See, e.g., Grutter v.

Bollinger, 539 U.S. 306, 325 (2003); Nichols, 511 U.S.

738; Bakke, 438 U.S. 265. So we thought it prudent to

give this Court the option of trying again. Should this

Court grant the third question presented, it should be

no surprise that our merits brief will press the

position of the four-Justice plurality in Freeman: that

“[w]here the decision to impose a sentence is based on

a range later subject to retroactive amendment,

§ 3582(c)(2) permits a sentence reduction” and there

is “no support in § 3582(c)(2), Rule 11(c)(1)(C), or the

relevant Guidelines policy statements” for the

“categorical bar enacted by the Court of Appeals”

there with respect to C-type plea agreements. 564

U.S. at 525-26.

B. The questions presented are recurring.

To date, Marks has led this Court, on at least

three occasions, to address an issue twice because

lower courts inconsistently applied the Court’s

original, fractured decision. In City of Burlington v.

Dague, 505 U.S. 557, 559 (1992), for example, the

Court examined a “question [] essentially identical to

the one [the Court] addressed” previously in

Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 483 U.S. 711 (1987). In Nichols, this Court

recognized that confusion arising from the

fragmented decision in Baldasar v. Illinois, 446 U.S.

222 (1980) was, again, requiring it to “reexamin|e]

that decision.” Nichols, 511 U.S. at 746. And in

Grutter, 539 U.S. at 325, this Court recognized that

the courts of appeals were split over the question of

which opinion, if any, controlled with respect to the

divided decision in Bakke, 438 U.S. 265, thereby

compelling the Court to take up the issue again and

revisit the question presented. And because of the

frequency of plurality decisions issued by the Court,

lower courts will continue to face Marks-related

questions unti] this Court clarifies its meaning.

Spriggs, 99 GEO. L. J. at 519; id. at 517-18 nn. 3-12.

The specific question of articulating the proper

holding of Freeman has been the subject of recent

certiorari petitions that this Court has denied.'* In

opposing those petitions, the government has

suggested that the issue is not cert-worthy because it

is “short-lived.” See, e.g., Brief in Opposition, McNeese

v. United States, No. 16-66, 2016 WL 6082343, at *18

(U.S. Oct. 14, 2016). But one must look no further

than the entrenched 10-2 circuit split to grasp the far-

reaching and recurring nature of this issue. Although

Freeman was decided only six years ago, every

regional circuit has spoken to the question of what its

holding is, most more than once. See supra § I.B.2; see

also, e.g., United States v. Duvall, 705 F.3d 479, 483

(D.C. Cir. 2013); United States v. Austin, 676 F.3d

924, 927 (9th Cir. 2012) overruled by Davis, 825 F.3d

1014; United States v. Mitchell, 500 F. App’x 802, 805

4 See Negron v. United States, No. 16-999, 2017 WL 636003

(U.S. June 26, 2017); Gilmore v. United States, No. 16-7953, 2017

WL 661819 (U.S. June 19, 2017); Sullivan v. United States, No.

16-7182, 2017 WL 2621326 (U.S. June 19, 2017); Blaine v.

United States, 137 S. Ct. 1329 (2017); Fuentes v. United States,

137 S. Ct. 627 (2017); Chapman v. United States, 137 S. Ct. 625

(2017); McNeese v. United States, 137 S. Ct. 474 (2016).

(11th Cir. 2012) (per curiam). This issue is not going

away.

If this Court does not intervene, the current con-

fusion regarding Freeman’s holding will continue to

persist. This kind of discord is in direct conflict with

the main purpose of the Sentencing Guidelines, which

is to “reduce unwarranted disparities in federal sen-

tencing.” Freeman, 564 U.S. at 525; Dorsey v. United

States, 567 U.S. 260, 264 (2012) (“uniformity” is a

“basic Federal Sentencing Guidelines objective”). In

fact, the circuit split here “permit([s] the very dispari-

ties the Sentencing Reform Act seeks to eliminate.”

Freeman, 564 U.S. at 533. Without this Court’s inter-

vention, appellate review will serve only to solidify

sentencing differences, not “promote uniformity by

tending to iron out sentencing differences.” Peugh v.

United States, 133 S. Ct. 2072, 2083 (2013) (internal

quotations omitted). Moreover, as we have noted,

clarifying the correct approach to analyzing Freeman

would resolve not only an important area of sentenc-

ing law, but would also help to clarify more generally

how to apply Marks’ “narrowest grounds” rule, which

has “baffled and divided the lower courts ....” Nichols,

511 U.S. at 746.

In opposing certiorari, the government has also

argued that “because plea agreements can ... be

drafted to avoid any controversies about whether the

sentence set forth in such an agreement is ‘based

upon’ the Guidelines,” which “Freeman opinion[] con-

trols” is not an issue that needs to be resolved. See,

e.g., Brief in Opposition, McNeese, 2016 WL 6082343,

at *18. But that assertion is counter-factual. The gov-

ernment’s plea agreements in the Northern District of

Georgia are not materially different today than they

were when Freeman was decided over six years ago.

The agreement in this case was drafted post-Freeman

and included no such language. Moreover, cases will

continue to arise where the defendant signed a C-type

agreement and was sentenced pre-Freeman, but the

controlling Guidelines range is later reduced.

As a practical matter, it is also not clear how, or

if, the government’s suggested drafting process would

work, much less how it would operate on a uniform,

nationwide basis. Notably, the government has only

said that it “can” draft such plea agreements, id., not

that it actually does so or that it intends to do so. It

cannot say that this process will work, because it has

no control. A plea agreement, like any other sort of

agreement, requires collaboration on both sides. The

defendant would thus have to agree to waive any eli-

gibility for a sentence reduction in the event of future

amendments to the Sentencing Guidelines. It is un-

clear why the government expects that defendants

would generally agree to such a waiver. For all of

these reasons, there is no reason to anticipate that the

government can somehow avoid the need for this

Court’s resolution of the issue through an altered ap-

proach to the drafting of Rule 11(c)(1)(C) plea agree-

ments.

Ill. This Case Is An Ideal Vehicle For Answering

The Questions Presented And Resolving The

Underlying Circuit Conflicts.

This case presents the perfect opportunity for this

Court to clarify Marks and determine whether Justice

Sotomayor’s concurrence in Freeman controls.

As the government has explained in opposing cer-

tiorari, the recent petitions that this Court has denied

have featured substantial vehicle issues. Most nota-

bly, the prior cases have generally (1) waived any

challenge to Justice Sotomayor’s concurrence as the

controlling opinion in Freeman; and/or (2) presented

circumstances where the petitioner’s sentence was al-

ready below the amended sentencing range, was

based on a range that was not in fact amended, or was

otherwise not eligible for a reduced sentence under ei-

ther Justice Sotomayor’s or the plurality’s approach

in Freeman, thus making any decision by this Court

immaterial to the outcome.!¢

This case stands in stark contrast. Here, Mr.

Hughes has not waived his Freeman challenge, and

15 See Brief in Opposition, Negrdn v. United States, No. 16-

999, at **11-13 (U.S. May 19, 2017), cert. denied, 2017 WL

636003 (U.S. June 26, 2017); Brief in Opposition, Gilmore uv.

United States, No. 16-7953, at *12-13 (U.S. May 19, 2017), cert.

denied, 2017 WL €61819 (U.S. June 19, 2017); Brief in Opposi-

tion, Blaine v. United States, No. 16-6574, at *15 (US. Feb. 6,

2017), cert. denied, 137 S. Ct. 1329 (2017); Brief in Opposition,

Fuentes v. United States, No. 16-6132, at **10-12 (U.S. Nov. 23,

2016), cert. denied, 137 S. Ct. 627 (2017); Brief in Opposition,

Chapman v. United States, No. 16-5969, at **12-14 (U.S. Nov.

16, 2016), cert. denied, 137 S. Ct. 625 (2017).

16 See Brief in Opposition, Gilmore v. United States, No. 16-

7953, at **22-23 (U.S. May 19, 2017) cert. denied, 2017 WL

661819 (U.S. June 19, 2017); Brief in Opposition, Sullivan v.

United States, No. 16-7182, at *15 (U.S. May 15, 2017), cert. de-

nied, 2017 WL 2621326 (U.S. June 19, 2017); Brief in Opposition,

Blaine v. United States, No. 16-6574, at **23-24 (U.S. Feb. 6,

2017), cert. denied, 137 S. Ct. 1329 (2017); Brief in Opposition,

McNeese v. United States, No. 16-66, 2016 WL 6082343, at *12

(U.S. Oct. 14, 2016), cert. denied, 137 S. Ct. 474 (2016).

his sentence could be lowered within the amended

range.

1. In his briefing below, Mr. Hughes expressly

challenged the district court’s reliance on Justice So-

tomayor’s concurrence. See, e.g., Initial Brief of Appel-

lant, United States v. Hughes, No. 15-15246-C, 2016

WL 1376175, at **10-12 (11th Cir. Mar. 14, 2016).

The Eleventh Circuit plainly did not consider the is-

sue waived; to the contrary, its opinion is based en-

tirely on the Freeman split. Pet. App. 4a-5a, 9a-10a.

Further, this case squarely raises the question of

how to apply Marks to determine the Court’s holding,

both under Freeman specifically and more generally

under other fragmented Supreme Court decisions. If

the D.C. and Ninth Circuits are correct that an opin-

ion must be a “logical subset” of another in order to be

considered controlling under Marks, then neither the

plurality nor the concurrence in Freeman is control-

ling, as neither is a logical subset of the other (see

infra § IV), and the Eleventh Circuit’s analysis was

incorrect. If, however, it is enough to share in the “re-

sult,” then the Eleventh Circuit properly relied on

Justice Sotomayor’s concurrence as controlling be-

cause it was the narrowest opinion supporting the

majority result. Thus, identifying the controlling

opinion in Freeman is not an abstract issue in this

case; the outcome of the case turns on it.

2. Likewise, if Mr. Hughes were determined to be

eligible for a sentence reduction under § 3582, he is

not otherwise categorically barred from relief. Be-

cause his current sentence (180 months) is not al-

ready below the amended Sentencing Guidelines

range (151 to 188 months), there is room for a reduc-

tion. And because his sentence is actually below the

lower limit of the original Guidelines range (188 to

235 months), a comparable sentence under the

amended Guidelines would suggest that his amended

sentence should be at the lower end of the amended

range. See, e.g., U.S. Sentencing Guidelines Manual,

Commentary § 1B1.10 cmt. note 3 (U.S. Sentencing

Comm’n Nov. 2015) (calculating “comparable adjust-

ments”); id. (“If the term of imprisonment imposed

was outside the guideline range applicable to the de-

fendant ... the court ... may reduce the defendant’s

term of imprisonment, but shall not reduce it to a

term less than” the lower threshold of the amended

Guideline range) (emphasis added).

Accordingly, if a reduction were permitted, the

district court could reduce Mr. Hughes’s sentence to a

term of imprisonment as low as 151 months. Compare

McNeese, 137 S. Ct. 474 (where his sentence was al-

ready “less than the minimum of the amended guide-

line range,” defendant was ineligible for a sentence

reduction). See generally Brief in Opposition,

McNeese, 2016 WL 6082343, at *11; U.S.S.G.

§ 1B1.10(b)(2)(A) (providing that a district court

“shall not reduce the defendant's term of imprison-

ment under 18 U.S.C. § 3582(c)(2) to a term that is

less than the minimum of the amended guideline

range’).

This Court has denied several recent certiorari

petitions about how to treat C-type agreements. But

none of them separately raised the Marks question or

presented such a clean vehicle. As noted above, the

petitioner had plainly waived his Freeman challenge

in several of the petitions. Supra 26, n.15. And in oth-

ers, the Court’s intervention would have resulted in

no relief for the Petitioner. Supra 26, n. 16. See, e.g.,

Brief in Opposition, Gilmore v. United States, No. 16-

7953, at *23 (U.S. May 19, 2017) (explaining that de-

fendant was ineligible for a: sentence reduction be-

cause the amended range is “well above the 168-

month sentence that petitioner already received”);

Brief in Opposition, Sullivan v. United States, No. 16-

7182, at *15 (U.S. May 15, 2017) (explaining that de-

fendant was ineligible for sentence reduction because

the amended range, “at the low end, is 31 months

longer than the 204-month term of imprisonment that

the district court already imposed”).

3. Mr. Hughes also satisfies all six factors that

the government has characterized as unique to the

“subset” of cases impacted by the Freeman circuit

split: (1) the district court accepted an agreement that

contained a binding sentence, Pet. App. 44a; (2) the

agreement did not specifically mention the Guidelines

as a basis for the sentence but the district court none-

theless expressly relied on the Guidelines as part of

its analytical framework, Pet. App. 32a-33a; (3) the

Sentencing Commission subsequently lowered the

relevant sentencing range retroactively while Mr.

Hughes was still serving his sentence, Pet. App. 3a-

4a; see also U.S. Sentencing Guidelines Manual §

1B1.10 (U.S. Sentencing Comm’n Nov. 2015); (4) Mr.

Hughes made a motion for § 3582(c) relief, Pet. App.

71a-76a; (5) the Commission’s binding policy state-

ments do not bar Mr. Hughes from obtaining the relief

sought, U.S. Sentencing Guidelines Manual § 1B1.10

(U.S. Sentencing Comm’n Nov. 2015); and (6) there is

no reason to believe the district court would not exer-

cise its discretion to permit relief (taking into account

applicable factors set forth in 18 U.S.C. § 3553(a) and

the advantages already gained by Mr. Hughes’s con-

nection with the agreement, such as dismissal of

other charges). See, e.g., Brief in Opposition, McNeese,

2016 WL 6082343, at *18. Mr. Hughes also expressly

raises the Marks question, not just the specific Free-

man question.

In sum, the Marks and Freeman issues are well-

developed, the splits are clear and deep, and the vehi-

cle is clean. Granting the petition would not only give

this Court a much-needed opportunity to address

Marks by clarifying Freeman, but it would also signif-

icantly impact Mr. Hughes and many other incarcer-

ated prisoners who are currently ineligible for a

sentence reduction in circuits where Justice So-

tomayor’s separate concurrence wrongly controls.

IV. The Eleventh Circuit Decision Is Wrong And

Should Be Reversed.

The Eleventh Circuit's ruling is wrong because it

rejects the “logical subset” test—the only workable

application of Marks, under which an opinion from a

fragmented decision controls only to the extent that it

reflects the “narrowest grounds” for the judgment.

430 U.S. at 193. Here, as the Ninth Circuit has ex-

plained, “Justice Sotomayor focused on the role the

parties’ Guidelines calculations play .... By contrast,

the plurality focuses on the role of the judge's Guide-

lines calculations in deciding whether to accept or re-

ject the agreement.” Davis, 825 F.3d at 1022

(emphasis in original). The plurality and concurring

opinions thus lack a common rationale. The concur-

rence is not narrower—just different.

Under the “logical subset” test—properly applied

by the D.C. and Ninth Circuits—an opinion cannot be

the “narrowest grounds” for the Court’s decision if

there is a factual scenario in which one opinion would

grant relief but the other would not, and vice versa.

The government’s opposition to the D.C. and Ninth

Circuits’ application of Marks to Freeman has posited

that “no scenario exists under which a defendant

could prevail under Justice Sotomayor’s approach but

the plurality would disagree.” See, e.g., Brief in Oppo-

sition, McNeese, 2016 WL 6082343, at **16-17. But

that is incorrect. “Cases producing an outcome in fa-

vor of the defendant under Justice Sotomayor's opin-

ion would not invariably yield an outcome in his favor

under the plurality.” United States v. Duvall, 740 F.3d

604, 619 (D.C. Cir. 2013) (Williams, J., concurring in

denial of rehearing en banc) (emphasis in original).

Imagine a scenario where the parties expressly

include the text of a particular Sentencing Guideline

in the pertinent provision of the plea agreement, but

the district court disagrees with the parties’ assess-

ment regarding the applicable sentencing range. Da-

vis, 825 F.3d at 1023. If the court nonetheless accepts

the plea agreement, the defendant would be eligible

for a later sentence reduction under Justice So-

tomayor’s concurrence because the parties expressly

included language from the Guidelines in the relevant

terms of the agreement. But the defendant would not

be eligible for a reduction under the plurality’s ap-

proach, because the court disagreed with the articu-

lated Guidelines range and thus based the sentence

on other considerations. Jd. Indeed, the Freeman plu-

rality notes that it is only “likely,” not guaranteed,

that a sentencing court would base its decision on the

Guidelines. 564 U.S. at 534. And there are certainly

factual scenarios where a defendant would be eligible

for a sentence reduction under the plurality opinion

but not the concurrence. Because both scenarios exist,

neither Justice Sotomayor’s concurrence nor the plu-

rality’s opinion can be said to be “narrow[er]” than the

other. Davis, 825 F.3d at 1023-24.

The “results” test that the Eleventh Circuit and

other circuits have employed should be rejected. It

cannot be that an opinion rejected by every Justice

except its author is nonetheless binding precedent.

See Freeman, 564 U.S. at 532-33 (plurality op.) (re-

jecting Justice Sotomayor’s reliance on the terms of

the plea agreement because the “statute ... calls for

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

the reasons that motivated or informed the parties.”);

id. at 544 (Roberts, C.J., dissenting) (“I agree with the

plurality that the approach of the concurrence to de-

termining when a Rule 11(c)(1)(C) sentence may be

reduced is arbitrary and unworkable.”). The Eleventh

Circuit, by giving binding effect to Justice So-

tomayor’s separate concurrence, has “turn[ed] a sin-

gle opinion that lacks majority support into national

law.” King, 950 F.2d at 782; see id. (“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 ....”). Eugene

Wambaugh, The Study of Cases § 48, at 50 & n.1 (2d

ed. 1894) (“If ... less than a majority concur in a rule,

no one will claim that it has the force of the authority

of the court.”).

Neither Justice Sotomayor’s concurrence nor the

plurality’s opinion ultimately controls in Freeman be-

yond the basic rule that § 3582(c)(2) relief is available

to at least some defendants who have signed plea

agreements under Fed. R. Crim. P. 11(c)(1)(C). The

Eleventh Circuit erred in holding that it was bound

by Justice Sotomayor’s concurrence.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Stephanie A. Kearns E. Joshua Rosenkranz

Brian Mendelsohn Counsel of Record

FEDERAL DEFENDER Eric A. Shumsky

PROGRAM, INC. Thomas M. Bondy

101 Marietta St..N.W. Katherine M. Kopp

Suite 1500 Alison M. Kilmartin

Atlanta, GA 30303 ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

jrosenkranz@orrick.com

July 27, 2017

APPENDIX A

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 15-15246

D.C. Docket No. 4:13-cr-00043-HLM-WEJ-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERIK LINDSEY HUGHES,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Georgia

(February 27, 2017)

Before WILLIAM PRYOR, JORDAN, = and

BALDOCK,* Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

This appeal requires us to apply the rule of

Marks. v. United States, 430 U.S. 188 (1977), to the

splintered opinion in Freeman v. United States, 564

U.S. 522 (2011), to determine whether a defendant

who entered into a plea agreement that recommended

a particular sentence as a condition of his guilty plea

is eligible for a reduced sentence,

18 U.S.C. § 3582(c)(2). Erik Hughes pleaded guilty to

drug and firearm offenses and entered into a binding

plea agreement with the government, Fed. R. Crim.

P. 11(c)(1)(C). The district court accepted the

agreement and sentenced Hughes according to the

agreement. Hughes then sought a sentence reduction

permitted for defendants who have been “sentenced

to a term of imprisonment based on a sentencing

range that has subsequently been lowered by the

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

(emphasis added). In Freeman, the justices divided

over the question whether a defendant sentenced

under a binding plea agreement was sentenced “based

on a sentencing range.” 564 U.S. at 525, 534. The

district court determined that Justice Sotomayor’s

concurring opinion stated the holding in Freeman

because she concurred in the judgment on the

narrowest grounds, Marks, 430 U.S. at 193, and it

denied Hughes’s motion based on the reasoning of

_——————

* Honorable Bobby R. Baldock, United States Circuit Judge for

the Tenth Circuit, sitting by designation.

that concurring opinion. We agree on both counts.

Hughes is ineligible for a sentence reduction because

he was not sentenced “based on a sentencing range,”

18 U.S.C. § 3582(c)(2), that has since been lowered.

We affirm.

I. BACKGROUND

In 2013, a federal grand jury returned an

indictment that charged Erik Hughes in four counts

for drug and firearm offenses. Hughes pleaded guilty

to two counts: conspiracy to possess with intent to

distribute at least 500 grams of methamphetamine,

21 U.S.C. §§ 841(b)(1)(A) (viii), 846, and being a felon

in possession of a firearm, 18 U.S.C. § 922(g)(1). In

the plea agreement, Hughes and the government

agreed to a sentence of 180 months of imprisonment.

At the sentencing hearing, the district court

calculated Hughes’s guidelines range and determined

that his sentencing range under the United States

Sentencing Guidelines was 188 to 235 months. The

district court then accepted the plea agreement,

which bound the court to impose the below-guidelines

sentence recommended by the parties. See Fed. R.

Crim. P. 11(c)(1)(C). So the district court sentenced

Hughes to 180 months of imprisonment.

Just over a year later, Hughes filed a motion to

reduce his sentence, 18 U.S.C. § 3582(c)(2).

Section 3582(c)(2) allows a court to reduce the term of

imprisonment of “a defendant who has been

sentenced ... based on a sentencing range that has

subsequently been lowered by the Sentencing

Commission.” Hughes sought a reduction based on

Amendment 782 to the Sentencing Guidelines, which

reduced the offense levels for certain drug offenses by

two levels and applies retroactively. See United

States Sentencing Guidelines Manual § 1B1.10 (Nov.

2015). According to Hughes, applying the amendment

would reduce his guidelines range to 151 to 188

months.

The district court denied Hughes’s motion. It

determined that Hughes was ineligible for a reduced

sentence. It reasoned, based on Justice Sotomayor’s

concurring opinion in Freeman, that the sentence in

Hughes’s binding plea agreement was not “based on”

a sentencing guidelines range as required by

section 3582(c)(2).

II. STANDARDS OF REVIEW

“We review a district court’s decision whether

to reduce a sentence pursuant to [section] 3582(c)(2),

based on a subsequent change in the sentencing

guidelines, for abuse of discretion.” United States v.

Brown, 332 F.3d 1341, 1343 (11th Cir. 2003). Like all

questions of statutory interpretation, we review the

conclusions of the district court about the scope of its

legal authority under section 3582(c)(2) de novo.

United States v. Moore, 541 F.3d 1323, 1326 (11th Cir.

2008).

Ill. DISCUSSION

We divide our discussion in two parts. First, we

explain that Justice Sotomayor’s concurring opinion

in Freeman constitutes the holding of that decision

because it is the “position taken by th[e] [Justice] who

concurred in the judgment[{] on the narrowest

grounds.” Marks, 430 U.S. at 193 (quoting Gregg uv.

Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of

Stewart, Powell, and Stevens, JJ.)). Second, we

explain that the district court correctly denied

Hughes’s motion for a sentence reduction because

applying the holding of Freeman, Hughes was not

sentenced based on a sentencing guidelines range,

Freeman, 564 U.S. at 538-39 (Sotomayor, J.,

concurring in the judgment).

A. Justice Sotomayor’s Concurring Opinion Stated

the Holding in Freeman.

Federal courts ordinarily may not “modify a

term of imprisonment once it has been imposed,” 18

U.S.C. § 3582(c), but “Congress has provided an

exception to that rule ‘in the case of a defendant who

has been sentenced to a term of imprisonment based

on a sentencing range that has subsequently been

lowered by the Sentencing Commission.” Dillon v.

United States, 560 U.S. 817,819 (2010) (quoting 18

U.S.C. § 3582(c)(2)). Such a defendant may have his

sentence reduced after the court “consider[s] the

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

reduction is consistent with applicable policy

statements issued by the Sentencing Commission.”

Id. § 3582(c)(2).

In Freeman, the Supreme Court split over the

question whether defendants like Hughes who enter

into plea agreements that recommend a particular

sentence as a condition of their guilty plea were

sentenced “based on a sentencing range.” 564 U.S. at

525 (plurality opinion). William Freeman entered into

a plea agreement with the government under

Rule 11(c)(1)(C), and the district court accepted the

agreement and imposed the recommended sentence.

Id. at 527-28. The Sentencing Commission later

issued a retroactive amendment that lowered the

guidelines range applicable to Freeman’s conduct,

and he moved for a_ sentence reduction, 18

U.S.C. § 3582(c)(2). Id. at 528. The district court

denied Freeman’s motion, and the Sixth Circuit

affirmed. Jd. But the Supreme Court, in a five to four

decision, reversed. Jd. at 525-526

Five justices agreed that the district court

could reduce Freeman’s sentence, but those justices

differed in their reasoning. The plurality opinion,

joined by four justices, determined that the “[t]he

district judge’s decision to impose a sentence may ...

be based on the Guidelines even if the defendant

agrees to plead guilty under Rule 11(c)(1)(C).” Id. at

526. “In every case the judge must exercise discretion

to impose an appropriate sentence” and “[t]his

discretion, in turn, is framed by the Guidelines.” Jd.

at 525. But Justice Sotomayor concurred only in the

judgment. Id. at 534.

Justice Sotomayor’s concurring’ opinion

determined that “the term of imprisonment imposed

by a district court pursuant to an agreement

authorized by Federal Rule of Criminal Procedure

1(c)(1)(C) ... is ‘based on’ the agreement itself, not on

the judge’s calculation of the Sentencing Guidelines.”

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

Under this view, if a plea agreement “call[s] for the

defendant to be sentenced within a particular

Guidelines sentencing range,” the acceptance of the

agreement by the district court “obligates the court to

sentence the defendant accordingly, and there can be

no doubt that the term of imprisonment the court

imposes is ‘based on’ the agreed-upon sentencing

range.” Jd. at 538. And if a plea agreement “provide[s]

for a specific term of imprisonment... but also

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,” then “[a]s long

as that sentencing range is evident from the

agreement itself,” the term of imprisonment imposed

is “based on” that range. Id. at 539.

“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.” Marks, 430 U.S. at 193 (quoting Gregg, 428

U.S. at 169 n.15). “The Marks Court did not elaborate

on how to identify the narrowest grounds.” Bryan A.

Garner, et al., The Law of Judicial Precedent 199-200

(2016). “But the prevailing view is that the narrowest

grounds are those that, when applied to other cases,

would consistently produce results that a majority of

the Justices supporting the result in the governing

precedent would have reached.” Id. at 200. We have

explained that the “narrowest grounds’ is understood

as the ‘less far-reaching’ common ground.” United

States v. Robison, 505 F.3d 1208, 1221 (11th Cir.

2007) (quoting Johnson v. Bd. of Regents, 263 F.3d

1234, 1247 (11th Cir. 2001)). When determining

which opinion controls, we do not “consider the

positions of those who dissented.” Jd.

Justice Sotomayor’s opinion in Freeman

provides the narrowest ground of agreement because

her concurring opinion establishes the “le[ast] far-

reaching” rule. District courts are required to consult

the guidelines before sentencing a defendant, see

Freeman, 564 U.S. at 525-26 (plurality opinion), and

district courts may not accept an agreement under

Rule 11(c)(1)((C) “without first evaluating the

recommended sentence in [the] light of the

defendant’s applicable sentencing range.” Id. at 529;

see also U.S.S.G.§ 6B1.2. Under the logic of the

plurality opinion, the guidelines range always

“provide[s] a framework or starting point—a basis, in

the commonsense meaning of the term—for the

judge’s exercise of discretion” in deciding to accept a

plea agreement under Rule 11(c)(1)(C). Jd. Justice

Sotomayor’s opinion, by contrast, provides two

examples in which a sentence is based on a sentencing

range.

Both opinions agree on the broader principle

that defendants sentenced based on a binding plea

agreement can later have their sentences reduced

under section 3582(c)(2), but the concurring opinion

uses narrower reasoning than the plurality opinion.

Whenever the concurring opinion would grant relief

to a defendant sentenced according to a binding plea

agreement, the plurality opinion would agree with the

result because, under the logic of the plurality

opinion, a defendant should always receive relief.

Justice Sotomayor’s opinion is the less far-reaching

common ground. We already reached this conclusion

in dicta when we evaluated the impact of Freeman on

our precedent and stated that “Justice Sotomayor’s

concurring opinion can be viewed as the holding in

Freeman.” United States v. Lawson, 686 F.3d 1317,

1321 n.2 (11th Cir. 2012).

The decisions of eight sister circuits also

support our conclusion that Justice Sotomayor’s

concurring opinion is the holding of Freeman. See

Garner, et al., supra, at 204 (“Almost every federal

circuit court to consider the Marks issue in Freeman

has held that [Justice Sotomayor’s] opinion is

controlling.”). The First, Third, and Fourth Circuits

reached that conclusion because “the plurality would

surely agree that in every case in which a defendant's

[Rule 11(c)(1)(C)] plea agreement satisfies the criteria

for Justice Sotomayor’s exception ... the sentencing

judge’s decision to accept that sentence is based on the

guidelines.” United States v. Rivera-Martinez, 665

F.3d 344, 348 (1st Cir. 2011); see also United States v.

Thompson, 682 F.3d 285, 289 (3d Cir. 2012); United

States v. Brown, 653 F.3d 337, 340 n.1 (4th Cir. 2011).

The Tenth Circuit explained that Justice Sotomayor’s

concurring opinion is the holding in Freeman because

it is a “middle ground.” United States v. Graham, 704

F.3d 1275, 1277-78 (10th Cir. 2013). And the Fifth,

Sixth, Seventh, Eighth Circuits adopted Justice

Sotomayor’s concurring opinion after stating the

Marks rule and then stating that Justice Sotomayor’s

concurring opinion provides the narrowest ground of

agreement. See United States v. Benitez, 822 F.3d 807,

811 (5th Cir. 2016); United States v. Smith, 658 F.3d

608, 611 (6th Cir. 2011); United States v. Dixon, 687

F.3d 356, 359 (7th Cir. 2012); United States v.

Browne, 698 F.3d 1042, 1045 (8th Cir. 2012).

The decisions of two circuits deviate from this

majority view and hold that Justice Sotomayor’s

10a

concurring opinion does not provide the narrowest

ground of agreement in Freeman, but we find their

reasoning unpersuasive. The Ninth and D.C. Circuits

explained that the rule in Marks applies when one

opinion is a “logical subset” of another, broader

opinion. See United States v. Davis, 825 F.3d 1014,

1021-22 (9th Cir. 2016) (en banc); United States v.

Epps, 707 F.3d 337, 350 (D.C. Cir. 2013). Both courts

then determined that Justice Sotomayor’s concurring

opinion is not a logical subset of the plurality opinion

but instead offers a different rationale because the

concurring opinion focuses on the parties’ agreement

and the plurality opinion focuses on “the role of the

judge’s Guidelines calculations in deciding whether to

accept or reject the agreement.” Davis, 825 F.3d at

1022; see also Epps, 707 F.3d at 350. But this narrow

focus on the rationale of the opinions in Freeman is

misplaced.

The Supreme Court has not stated that an

opinion can qualify as the “narrowest grounds” of

decision only when it “represent[s}] a common

denominator of the Court’s reasoning.” Davis, 825

F.3d at 1020 (quoting King v. Palmer, 950 F.2d 771,

781 (D.C. Cir. 1991) (en banc)); see also id. at 1031

(Bea, J., dissenting) (“The ... ‘logical subset’

requirement is an invention of the D.C. Circuit that

finds no support in Marks or any other Supreme

Court precedent.”). Indeed, the Supreme Court has

determined that an opinion is controlling, under

Marks, even when that opinion does not share

common reasoning with the other opinions necessary

to support the judgment. See O’Dell v. Netherland,

521 U.S. 151, 162 (1997) (adopting Justice White’s

concurring opinion in Gardner v. Florida, 430 U.S 349

lla

(1977), as the “narrowest grounds of decision among

the justices whose votes were necessary to the

judgment” even though the concurring opinion relied

on a different constitutional amendment than the

plurality opinion). “After all, in splintered cases, there

are multiple opinions precisely because the Justices

did not agree on a common rationale.” United States

v. Duvall, 740 F.3d 604, 613 (D.C. Cir. 2013)

(Kavanaugh, J., concurring in the denial of rehearing

en banc).

Marks itself determined that a plurality

opinion governed as the narrowest grounds of decision

notwithstanding that none of the justices that

concurred in the judgment “agreed with the rule

enumerated by the ... plurality.” Davis, 825 F.3d at

1034 (Bea, J., dissenting). Marks evaluated which

opinion provided the holding of the Supreme Court in

A Book Named “John Cleland’s Memoirs of a Woman

of Pleasure” v. Attorney General of the Commonwealth

of Massachusetts, 383 U.S. 413 (1966). The plurality

opinion in Memoirs determined that literature was

protected by the First Amendment unless it satisfied

the test of obscenity established by Roth v. United

States, 354 U.S. 476 (1957). See Memoirs, 383 U.S. at

418. Justice Black’s and Justice Douglas’s concurring

opinions in Memoirs, in contrast, stated a rule that

“the First Amendment provides an absolute shield

against governmental action aimed at suppressing

obscenity.” Marks, 430 U.S. at 193. And Justice

Stewart's concurring opinion, different _ still,

explained that only hardcore pornography could be

suppressed. Jd. Although six justices agreed that the

literature at issue was protected by the First

Amendment, only the plurality opinion, joined by

12a

three justices, relied on the test in Roth to reach that

result. Yet the Supreme Court determined that the

plurality opinion governed as the “position taken by

those Members who concurred in the judgments on

the narrowest grounds,” Jd. (quoting Gregg, 428 U.S.

at 169 n.15).

The decision in Marks that the plurality

opinion in Memoirs stated the holding makes clear

that when no opinion garners a majority of the votes,

the opinion that relies on the narrowest grounds

necessary to reach the judgment controls. See also

United States v. Santos, 553 U.S. 507, 523 (2008)

(opinion of Scalia, Souter, and Ginsburg, JJ.)

(explaining that the holding of the Court was limited

by Justice Stevens’s concurrence because his vote was

necessary to the judgment and his opinion rested

upon the narrower ground). As Judge Bea has

explained, “Marks’ emphasis on the Court's

‘judgment’ demonstrates that it is the ultimate ‘vote’

of five Justices that is important in determining the

binding effect of a splintered Supreme Court opinion.”

Davis, 825 F.3d at 1035 (Bea, J., dissenting). “That is,

Marks requires us to find a ‘legal standard which,

when applied, will necessarily produce results with

which a majority of the Court from that case would

agree.” Id. (quoting United States v. Williams, 435

F.3d 1148, 1157 n.9 (9th Cir. 2006)); see also Duvall,

740 F.3d at 608 (Kavanaugh, J., concurring in the

denial of rehearing en banc).

As we see it, Justice Sotomayor’s opinion

provides a legal standard that produces results with

which a majority of the Court in Freeman would agree

because whenever Justice Sotomayor’s opinion would

13a

permit a sentence reduction, the plurality opinion

would as well. The plurality opinion stated that

because a judge must “evaluatie] the recommended

sentence in [the] light of the defendant's applicable

sentencing range” and determine “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” before the judge accepts the

agreement, “the court’s acceptance is itself based on

the Guidelines.” Freeman, 564 U.S. at 529 (plurality

opinion) (internal quotation marks omitted). Justice

Sotomayor’s opinion, in contrast, provided two

examples in which a sentence imposed according to a

plea agreement is “based on a sentencing range.”

Because the district judge must evaluate the

sentencing range before accepting the plea

agreement, the plurality opinion would reach the

same result as Justice Sotomayor’s concurring

opinion and determine that, in those two

circumstances, the defendant was sentenced “based

on a sentencing range” and qualifies for a sentence

reduction. As a result, Justice Sotomayor’s opinion is

the narrower opinion.

When applying the rule of Marks to a

splintered Supreme Court opinion, we must

determine which opinion that supports the judgment

relied on the narrowest grounds. Applying this rule to

Freeman, it is clear that Justice Sotomayor’s opinion

controls because “sometimes’ is a middle ground

between ‘always’ and ‘never.” Duvall, 740 F.3d at 612

(Kavanaugh, J., concurring in the denial of rehearing

en banc). As a result, we must apply Justice

Sotomayor’s concurring opinion to determine whether

l4a

Hughes qualifies for a sentence reduction under

section 3582(c)(2).

B. Hughes Is Not Eligible for a Sentence Reduction.

The district court did not abuse its discretion

when it determined that Hughes is not eligible for a

sentence reduction because Hughes’s sentence was

not based on a sentencing guidelines range. Justice

Sotomayor’s opinion explained that a trial judge's

acceptance of a binding plea agreement is “based on”

a sentencing range when the Rule 11(c)(1)(C)

agreement calls for a “de:endant to be sentenced

within a particular Guidelines sentencing range,” or

the agreement “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.” Freeman, 564 U.S. at 538-39

(Sotomayor, J., concurring in the judgment). Hughes’s

agreement does neither. His plea agreement does not

call for him to be sentenced within a particular

sentencing range but instead states that he “should

be sentenced to 180 months.” And his plea agreement

does not “make clear” that the basis for the 180 month

recommendation is a guidelines sentencing range.

The plea agreement does not “make clear” that

a sentencing range formed the basis for Hughes's

sentence. The agreement states that the district court

and the probation office will calculate the applicable

guidelines range. And the government reserved the

right to modify its recommendations about the

guidelines. But the agreement does not make any

recommendation about a specific application of the

Sentencing Guidelines, and the agreement does not

15a

calculate Hughes’s range or discuss factors that must

be used to determine that range, such as Hughes’s

criminal history. Nor does it set the agreed-upon

sentence within the applicable guideline range.

Hughes was not sentenced “based on” a guidelines

range, and he is not eligible for a sentence

modification under section 3582.

IV. CONCLUSION

We AFFIRM the judgment of the district court.

16a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

UNITED STATES OF AMERICA,

v. CRIMINAL ACTION FILE NO.

4:13-CR-043-01-HLM-WEJ

ERIK HUGHES.

ORDER

This case is before the Court on Defendant's

Motion to Reduce Sentence—U.S.S.C. Amendment

(“Motion to Reduce Sentence”) [87].

I. Background

On August 5, 2013, a federal grand jury sitting

in the Northern District of Georgia returned an

indictment against Defendant and two co-defendants.

(Docket Entry No. 6.) Count one of the indictment

charged Defendant and his co-defendants with

conspiring to possess with intent to distribute at least

500 grams of a mixture and substance containing a

detectable amount of methamphetamine, in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846.

(Id. at 1.) Count two of the indictment charged that,

on or about March 24, 2009, Defendant and a co-

defendant possessed with intent to distribute at least

50 grams of methamphetamine, in violation of

21 U.S.C §§ 841(a)(1) and 841(b)(1)(B)(vili) and

18U.S.C.§2. (Ud. at 1-2.) Count three of the

17a

indictment charged Defendant with being a felon in

possession of a firearm, in_ violation of

18 U.S.C. §§ 922(g)(1) and 924(a)(2). Ud. at 2.) Count

four of the indictment charged Defendant with

knowingly possessing a firearm that had the

manufacturer's serial number obliterated, in violation

of 18 U.S.C. § 922(k). Ud. at 3.) The indictment also

contained a forfeiture provision. (/d. at 4-5.)

On December 19, 2013, Defendant pleaded

guilty to counts one and three of the indictment under

a binding plea agreement. (Docket Entry No. 54.) On

March 3, 2014, the Court sentenced Defendant to 180

months of imprisonment on count one, as provided in

the binding plea agreement, to be followed by five

years of supervised release, and to 120 months on

count three, to run concurrently with the sentence

imposed on count one and to be followed by three

years of supervised release. (Docket Entry No. 68.) On

March 4, 2014, the Court entered its Judgment and

Commitment Order. (Docket Entry No. 69.)

On June 15, 2015, the Court received

Defendant's Motion to Reduce Sentence. (Docket

Entry No. 87.) Defendant argues that a recent

amendment to the Sentencing Guidelines,

Amendment 782, warrants a reduction in Defendant’s

base offense level and his sentence. (See generally id.)

The Government has responded to the Motion

to Reduce Sentence, arguing that the Court may not

use Amendment 782 to decrease Defendant’s term of

imprisonment. (See generally Resp. Mot. Reduce

Sentence (Docket Entry No. 94).) The time period in

which Defendant could file a reply in support of his

18a

Motion to Reduce Sentence has expired, and the

Court therefore finds that the Motion is ripe for

resolution.

II. Discussion

The Court agrees with the Government that

Defendant is not entitled to a sentence reduction

under Amendment 782. Federal Rule of Criminal

Procedure 11(c)(1) provides, in relevant part:

An attorney for the government and

the defendant’s attorney, or the

defendant when proceeding pro se, may

discuss and reach a plea agreement.

The court must not participate in these

discussions. If the defendant pleads

guilty or nolo contendere to either a

charged offense or a lesser or related

offense, the plea agreement may

specify that an attorney for the

government will:

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).

19a

Fed. R. Crim. P. 11(c)(1).

In Freeman v. United States, 131 S. Ct. 2685

(2011), the Supreme Court considered “whether

defendants who enter into plea agreements that

recommend a particular sentence as a condition of the

guilty plea may be eligible for relief under

§ 3582(c)(2).” 131 S. Ct. at 2689. The United States

Court of Appeals for the Sixth Circuit “held that,

barring a miscarriage of justice or mutual mistake,

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

cannot benefit from _ retroactive Guideline

amendments.” Jd. Five members of the Supreme

Court agreed that the Sixth Circuit’s judgment was

due to be reversed. Jd. Four justices noted that:

The district court’s decision to impose a

sentence may... be based on the

Guidelines even if the defendant agrees

to plead guilty under Rule 11(c)(1)(C).

Where the decision to impose a

sentence is. based on a range later

subject to retroactive amendment,

§ 3582(c)(2) permits a sentence

reduction.

Id. Those justices concluded:

Even when a defendant enters into an

11(c)(1)(C) agreement, the judge's

decision to accept the plea and impose

the recommended sentence is likely to

be based on the Guidelines; and when

it is, the defendant should be eligible to

seek § 3582(c)(2) relief. This

20a

straightforward analysis would avoid

making arbitrary distinctions between

similar defendants based on the terms

of their plea agreements. And it would

also reduce unwarranted disparities in

federal sentencing, consistent with the

purposes of the Sentence Reform Act.

Id. at 26985.

Justice Sotomayor, in a concurring opinion,

agreed that Freeman was eligible for a sentence

reduction, but for a different reason. Freeman, 131 S.

Ct. at 2695. Justice Sotomayor noted:

In my view, the term of imprisonment

imposed by a district court pursuant to

an agreement authorized by Federal

Rule of Criminal Procedure

11(c)(1)(C)((C) agreement) is “based on”

the agreement itself, not on the judge’s

calculation oof the Sentencing

Guidelines. However, I believe that if

a(C) agreement expressly uses a

Guidelines sentencing range applicable

to the charged offense to establish the

term of imprisonment, and that range

is subsequently lowered by the United

States Sentencing Commission, the

term of imprisonment is “based on” the

range employed and the defendant is

eligible for sentence reduction under

§ 3582(c)(2).

Zla

Id. Justice Sotomayor observed that, in the context of

an agreement under Rule 11(c)(1)(C), “[t]he term of

imprisonment imposed by the sentencing judge is

dictated by the terms of the agreement entered into

by the parties, not the judge’s Guidelines calculation.”

Id. at 2696. Thus, in her view, “the term of

imprisonment imposed pursuant to a (C) agreement

is, for purposes of § 3582(c)(2), ‘based on’ the

agreement itself.” Jd. Justice Sotomoyor observed:

To hold otherwise would be _ to

contravene the very purpose of (C)

agreements—to bind the district court

and allow the Government and the

defendant to determine what sentence

he will receive. Although district courts

ordinarily have significant discretion

in determining the appropriate

sentence to be imposed on a particular

defendant, under Rule 11(c)(1)(C) it is

the parties’ agreement that determines

the sentence to be imposed. To be sure,

the court retains absolute discretion

whether to accept a plea agreement,

but once it does it is bound at

sentencing to give effect to the parties’

agreement as to the appropriate term

of imprisonment.

Allowing district courts later to reduce

a term of imprisonment simply because

the court itself considered the

Guidelines in deciding whether to

accept the agreement would transform

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

22a

courts could rewrite the terms of (C)

agreements in ways not contemplated

by the parties. At the time that

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

already well understood that, under

Rule 11, the term of imprisonment

stipulated in a (C) agreement bound

the district court once it accepted the

agreement.

Id. (internal quotation marks, citations, and footnote

omitted).

Justice Sotomayor, however, noted that a term

of imprisonment imposed under a Rule 11(c)(1)(C)

agreement still could be reduced under § 3582(c)(2)

under certain circumstances. Freeman, 131 S. Ct. at

2697-98. She observed:

For example, Rule 11(c)(1)(C) allows

the parties to agree that a specific ...

sentencing range is the appropriate

disposition of the case. In delineating

the agreed-upon term of imprisonment,

some (C) agreements may call for the

defendant to be sentenced within a

particular Guidelines’ sentencing

range. In such cases, the district court’s

acceptance of the agreement obligates

the court to sentence the defendant

accordingly, and there can be no doubt

that the term of imprisonment the

court imposes is “based on” the agreed-

upon sentencing range within the

meaning of § 3582(c)(2). If that

23a

Guidelines range is subsequently

lowered by the Sentencing

Commission, the defendant is eligible

for sentence reduction.

Similarly, a plea agreement might

provide for a_ specific term of

imprisonment—such as a number of

months—but also make clear that the

basis for the specified term is a

Guidelines sentencing range applicable

to the offense to which the defendant

pleaded guilty. As long as_ that

sentencing range is evident from the

agreement itself, for purposes of

§ 3582(c)(2) the term of imprisonment

imposed by the court in accordance

with that agreement is “based on” that

range. Therefore, when a _ (C)

agreement expressly uses a Guidelines

sentencing range to establish the term

of imprisonment, and that range is

subsequently lowered by _ the

Commission, the defendant is eligible

for sentence reduction under

§ 3582(c)(2).

Id. (alteration in original) (footnote omitted).

Most of the appellate courts that have

considered this issue have concluded that Justice

Sotomayor’s standard is the applicable one. See

United States v. Graham, 704 F.3d 1275, 1278 (10th

Cir. 2013) (“Fivery federal appellate court to consider

the matter has reached the same conclusion, and we

24a

agree: Justice Sotomayor’s concurrence is_ the

narrowest grounds of decision and represents the

Court’s holding.”); United States v. Browne, 698 F.3d

1042, 1045 (8th Cir. 2012) (“It is Justice Sotomayor’s

concurring opinion in Freeman that is controlling and

represents the holding of the Court.”); United States

v. Dixon, 687 F.3d 356, 359 (7th Cir. 2012) (“Even

though eight Justices disagreed with Justice

Sotomayor’s approach and believed it would produce

arbitrary and unworkable results, her reasoning

provided the narrowest, most case-specific basis for

deciding Freeman. Her approach therefore states the

controlling law.” (citations omitted)); United States v.

Thompson, 682 F.3d 285, 290 (3d Cir. 2012)

(“[Blecause Justice Sotomayor’s opinion is narrower

than Justice Kennedy’s, it expresses the holding of

the Court.”); United States v. Austin, 676 F.3d 924,

927 (9th Cir. 2012) (“Justice Sotomayor’s concurrence

is the controlling opinion because it reached this

conclusion on the narrowest grounds.” (internal

quotation marks and citation omitted)); United States

v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir. 2011)

(“Justice Sotomayor’s concurrence delineates the

narrowest grounds on which at least five Justices

agree. It is, therefore, the controlling opinion.”);

United States v. Brown, 653 F.3d 337, 340 (4th Cir.

2011) (“Under the fragmented opinion, Justice

Sotomayor’s rationale becomes the Court’s holding.”

(footnote omitted)); but see United States v. Epps, 707

F.3d 337, 350 (D.C. Cir. 2013) (“[W]Je 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 of the other.” (internal quotation marks and

25a

citation omitted)). In an unpublished opinion, the

United States Court of Appeals for the Eleventh

Circuit noted that “Justice Sotomayor’s concurrence

‘can be viewed as the holding in Freeman.” United

States v. Hudson, 550 F. App’x 793, 795 (11th Cir.

2013) (per curiam) (quoting United States v. Lawson,

686 F.3d 1317, 1321 n.2 (11th Cir. 2012)). The Court

follows the majority’s approach, and concludes that

Justice Sotomayor’s concurrence is the holding in

Freeman.

The United States Court of Appeals for the

First Circuit has observed that “Justice Sotomayor

allows for eligibility [for reduction under § 3582(c)(2)]

when the agreement itself expressly indicates that

the term of imprisonment is based on a guideline

sentencing range that has subsequently been reduced

by the Sentencing Commission.” Rivera-Martinez,

665 F.3d at 348. According to the First Circuit, this

event will occur in “two scenarios.” Jd. Under the first

scenario, “a C-type plea agreement calls for a sentence

within an identified sentencing range.” Jd. Under the

second scenario, the terms contained within the four

corners of the plea agreement will warrant a finding

that the basis for a specified term of imprisonment is

a Guidelines sentencing range. /d. at 34849;! see also

‘In Rivera-Martinez, the defendant argued that he was entitled

to relief under the second scenario. 665 F.3d at 349. The

defendant noted “that the Agreement mentions some guideline

components (including a total offense level) as well as a specified

drug quantity,” and contended that those references “ma[d]e it

hard to believe that the guidelines did not figure into the agreed

sentence.” Jd. The First Circuit rejected that argument, noting:

26a

The defendant's reasoning is plausible, but he

is answering the wrong question. Justice

Sotomayor’s concurrence expressly rejects an

inferential approach. She acknowledges that a

term of imprisonment in a C-type plea

agreement will most often be negotiated by

reference to the relevant guideline provisions.

Yet under the rationale ‘of the concurrence,

this linkage is not enough to warrant a finding

that the ensuing sentence is based on the

guidelines. Justice Sotomayor makes it

pellucid that the proper focus is neither the

guideline calculations that the judge may

perform before deciding whether to accept the

agreement, nor the mere fact that the

parties ... may have considered the Guidelines

in the course of their negotiations. Rather, it is

the terms contained within the four corners of

the plea agreement that matter.

Silhouetted against this backdrop, the concern

that we voiced [in an earlier decision in the

case] echoes still. The Agreement does not

identify any guideline sentencing range.

Moreover, the Agreement does not contain any

information about the defendant's criminal

history category. This silence about a criminal

history category makes it impossible to

conclude from the Agreement alone that the

proposed sentence is based on a_ specific

sentencing range. The integers needed to

trigger the exception carved out by Justice

Sotomayor are not present here.

A comparison of the Agreement with the plea

agreement in Freeman is telling. The latter

agreement contained an explicit stipulation to

both an offense level and a criminal history

category. When Justice Sotomayor turned to

the sentencing table with these coordinates in

27a

United States v. Scott, 711 F.3d 784, 787 (7th Cir.

2013) (“A defendant who agrees to a specific sentence

in a plea agreement under Rule 11(c)(1)(C) generally

is not eligible to receive a reduced sentence under

§ 3582(c)(2) because that statute does not grant relief

for sentences based not on a guidelines range, but on

an agreed term. The only exceptions occur when the

plea agreement specifies that the sentence must be

within an identified guidelines range or states that

the basis for an agreed term is a particular sentencing

range.” (citations omitted)).

Applying Justice Sotomayor’s concurrence,

Defendant is not entitled to relief under § 3582(c)(2)

because his original sentence was not tied to the

Sentencing Guidelines calculations. Under the plea

hand, she could identify with certainty a

particular sentencing range. In this case, the

Agreement does not permit such certitude. As

we have explained, one of the two essential

coordinates is missing.

The short of it is that we cannot identify a

referenced sentencing range from the

Agreement alone. We would have to

supplement the Agreement with either the

parties’ background negotiations or the facts

that informed the sentencing judge’s decision

to accept the plea. Justice Sotomayor’s

concurrence forbids us from making such an

archeological dig. We therefore conclude that

the defendant is not eligible for a sentencing

reduction under section 3582(c)(2).

Id. at 349-50 (emphasis and first alteration in original) (internal

quotation marks, citations, and footnotes omitted).

28a

agreement, the Government and Defendant agreed

that “Defendant and the Government expressly

recommend that the Court should impose a sentence

of 180 months of imprisonment as the appropriate

custodial sentence in this case.” (Plea Agreement

(Docket Entry No. 54) at 4-5.) The plea agreement

further provided: “Under the provisiors of Fed. R. Cr.

P. 11(c)Q1)(C), this recommendation would bind the

Court to impose this particular custodial sentence if

the Court accepts this plea agreement.” (/d. at 5.) The

plea agreement also stated: It is abundantly clear

that Defendant’s sentence was not linked or tied to

the Sentencing Guidelines. Indeed, the plea

agreement does not mention an otherwise applicable

Sentencing Guidelines range or Defendant’s criminal

history, and Defendant’s criminal history category is

not evident from the Agreement itself. Under those

circumstances, the Court cannot determine that

Defendant's plea agreement identified a Sentencing

Guidelines range. See Scott, 711 F.3d at 787

(concluding that the defendant was not entitled to a

reduction under § 3582(c)(2) where the defendant's

Rule 11(c)(1)(C) “plea agreement did not identify a

guidelines range or suggest that the agreed-upon

sentence was based on the guidelines”); United States

v. Weatherspoon, 696 F.3d 416, 424 (3d Cir. 2012)

(“Because his agreement does not explicitly state his

Guidelines range, or his offense level and criminal

history category, and because Weatherspoon cannot

otherwise demonstrate that his criminal history

category is evident from the agreement itself, we

cannot conclude that the agreement identifies a

Guidelines range. Thus, his claim falls under

Freeman and his motion was properly denied.”

29a

(internal quotation marks and citation omitted);?

United States v. Austin, 676 F.3d 924, 930 (9th Cir.

2012) (concluding that the defendant was not entitled

to a reduction under § 3582(c)(2) where his Rule

11(c)(1)(C) plea agreement “simply provide[d] for a

specific term of seventeen years,” “[njo sentencing

range appear[ed] on the face of the plea agreement

that could have formed the basis for the specific term

2In Weatherspoon, the United States Court of Appeals for the

Third Circuit noted:

In this case, the parties agreed in the (C) plea

agreement that Weatherspoon should receive a

fixed sentence of 120 months’ imprisonment.

Thus, Weatherspoon falls into Justice

Sotomayor’s second category—-where the

defendant's agreement calls for a specific term

of imprisonment. Confining our analysis solely

to the four corners of the plea agreement, we

conclude that the agreement does not “make

clear” that the foundation of his sentence was

the Guidelines, because the agreement does

not in any way identify or rely on

Weatherspoon’s Guidelines range. In fact, the

agreement is silent as to his range. Nowhere in

the agreement does it explicitly state the range

the parties relied upon in determining his

sentence. Nor does the agreement provide the

necessary ingredients to calculate it. The

Guidelines range can only be derived from a

determination of a defendant’s criminal history

category and his offense level. Here, we are

missing at least one-half of the equation. There

are simply no statements or assertions of fact

in the agreement that allow us to determine

Weatherspoon’s criminal history category.

696 F.3d at 424.

30a

of seventeen years,” and “{t]he terms of the agreement

[did] not make clear[] that any particular Guidelines

range was employed” (internal quotation marks and

citation omitted)); Brown, 653 F.3d at 340 (finding

Rule 11(c)(1)(C) plea agreement “does not expressly

use a Guidelines sentencing range to establish his

term of imprisonment” where the “plea agreement

simply states that the appropriate sentence in this

case is incarceration for not less than 180 months and

not more than 240 months” (internal quotation

marks, citation, and footnote omitted)). Defendant

therefore is not entitled to relief under § 3582(c)(2)

based on Amendment 782.

III. Conclusion

ACCORDINGLY, the Court DENIES

Defendant's Motion to Reduce Sentence [87].

IT IS SO ORDERED, this the 6th day of

November, 2015.

/s/ Harold L. Murphy

UNITED STATES DISTRICT JUDGE

3la

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

UNITED STATES OF ) DOCKET NUMBER

AMERICA ) 4:13-CR-43-HLM

ROME, GEORGIA

MARCH 3, 2014

ERIK LINDSEY

HUGHES

TRANSCRIPT OF SENTENCING HEARING

BEFORE THE

HONORABLE HAROLD L. MURPHY

UNITED STATES DISTRICT JUDGE

APPEARANCES OF COUNSEL:

FOR THE GOVERNMENT: MS. ANGELA

GARLAND

FOR THE DEFENDANT: MR. BRIAN

MENDELSOHN

OFFICIAL COURT REPORTER: ALICIA B.

BAGLEY, RMR, CRR

32a

PROCEEDINGS RECORDED BY MECHANICAL

STENOGRAPHY, TRANSCRIPT PRODUCED BY

COMPUTER

PROCEEDINGS

[In Rome, Floyd County, Georgia; March 3, 2014; in

open court; defendant present. ]

THE CLERK: Please come to order and be

seated. I'll sound the case of United States of America

vs. Erik Hughes.

MS. GARLAND: Good afternoon, Your Honor.

I’m Angela Garland. I represent the United States.

THE COURT: Good afternoon.

MR. MENDELSOHN: Good afternoon, Judge.

Brian Mendelsohn on behalf of Mr. Hughes.

THE COURT: Good afternoon.

Mr. Hughes, have you read this presentence

report and been over it with your lawyer?

THE DEFENDANT: Yes, sir.

THE COURT: Do you understand it fairly well?

THE DEFENDANT: Yes, sir.

THE COURT: The Court has reviewed the plea

agreement in this case and notes that it is a binding

plea agreement. I’ve considered the allegations of the

presentence report, all undisputed. I’ve considered

33a

the plea agreement, the sentencing guidelines,

particularly the provisions of Title 18 of the United

States Code, Section 3553(a), and the Court will

accept and approve the binding plea agreement.

Having considered all of these items that I’ve

spoken with you about and commented about, the

Court finds that it will result in a reasonable sentence

that’s in the best interest of the Government, the best

interest of socicty, and the best interest of the

defendant. It complies not only with the spirit of the

advisory United States Sentencing Guidelines, but it

complies with the principles of fairness and justness

and specific provisions of Section 3553(a) and is a

reasonable sentence without any unreasonable

disparity between the sentence imposed in this case,

pursuant to the binding plea agreement, and

sentences imposed upon other defendants with

similar backgrounds and similar offenses.

The Court, as I’ve said, has reviewed the plea

agreement itself; I've reviewed the indictment; the

comments and objections to the presentence report;

the addendum to the presentence report; the findings

of facts and conclusions contained in the presentence

report, and the Court adopts all of the findings of fact

and conclusions contained in the presentence report

as prepared by the United States Probation Officer

and makes all of those findings of fact and conclusions

those of the Court in all respects except as to

unresolved guideline issues that [ll speak to in a

moment.

The amount of drugs for which the defendant is

responsible in this case are set out in Paragraph 31

34a

and the drugs for which he’s responsible results in a

total Offense Level of 34. The probation officer

initially added 2 points pursuant to Section 32 and

noted an objection.

Does the Government disagree with the

objection that Mr. Mendelsohn has to that 2 points?

MS. GARLAND: The role in the offense, Your

Honor; is that correct?

THE COURT: It’s possession of a gun in

connection with a drug offense and the issue is

whether or not that is applicable in view of the fact

that he’s charged in Count Three with the same gun.

MS. GARLAND: I think it would be applicable

had he not pled guilty to the firearm offense, but

because he’s pled to a firearm offense the Government

doesn’t have an objection to the Court not applying

that enhancement.

THE COURT: All right. You stand by the

objection, I assume, Mr. Mendelsohn?

MR. MENDELSOHN: I would, Judge. I would

also object to the factual paragraph in Paragraph 24

which is the statement by the codefendant that brings

this issue into play. It’s basically his word against

hers about that particular issue. I have concerns that

that paragraph may cause issues with the Bureau of

Prisons. For example, getting into drug programs or

security levels. So I ask the Court to remove that

paragraph going forward.

35a

THE COURT: All mght. [ll sustain your

objection and I'll ask the probation officer to redact

that particular paragraph, as alleged, from the

presentence report that will go to the Bureau of

Prisons.

That will change your guideline range without

objection. The guideline range will be 32 based on the

amount of drugs and there is an issue of acceptance of

responsibility. The Government recommends a third

point?

MS. GARLAND: Yes, Your Honor.

THE COURT: That would take it to 29, then.

Level 29 is a Criminal History Category of 36—

Criminal History Category of VI, 151 to 188; am I not

correct?

THE PROBATION OFFICER: Your Honor, the

drugs were a Level 34.

THE COURT: Well, we gave 3 points credit for

acceptance of responsibility.

THE PROBATION OFFICER: Yes, Your

Honor.

THE COURT: And we took off the 2 points. Oh,

I see what you're talking about. 34 to begin with and

2 points would be 31 then?

MS. GARLAND: That’s the one I show, 31,

Criminal History Category VI.

THE COURT: 31?

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MR. MENDELSOHN: Yes, sir.

THE COURT: All right. 168 to 210. Thank you

for finally getting it right.

MS. GARLAND: Judge, not to be picky since

it’s a binding plea, but my notes show 188 to 235

because what Offense Level 31, Criminal History

Category VI would be.

THE COURT: Yes, I agree with you about that.

We're back to what I had originally put down before I

came in here.

So the Court’s sentencing options without

regard to the binding plea agreement is on Count One

a minimum mandatory 10 years up to life and a $10

million fine. On Count Three not more than 10 years

and a $250,000 fine. The total Offense Level is 31. The

Criminal History Category is VI. Custody guideline

range on Count One is 188 to 235 months. The fine

guideline range—of course, then we’ve got Count

Three. The fine guideline range is $17,500 to

$10,250,000. There’s no _ restitution. A $200

mandatory special assessment is required as part of

the sentence. Cost of confinement is estimated at

$28,948 a year. The cost of supervision is estimated at

$3,347.41 a year. Probation is not an option the Court

may consider. There is a forfeiture provision.

Supervised release of at least 5 years is required as a

part of the sentence on Count One and not more than

3 years supervised release on Count Three.

I'll be glad to hear from counsel on sentencing

and the defendant. And I understood that one of the

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defendant’s relatives is here and may want to address

the Court. Defense counsel can let me know about

whether or not that is requested.

MR. MENDELSOHN: Yes, Judge. His 14-year-

old daughter, Shayla Hughes, is here and would like

to address the Court.

THE COURT: I'll be happy to hear from her.

MR. MENDELSOHN: And his mother also is

here.

THE COURT: All right. I'll be glad to hear from

both of them.

MR. MENDELSOHN: Great. Thank you,

Judge.

MS. HUGHES: Good afternoon. They say your

dad is the only person you really trust, but I lost mine.

It’s been over 10 years this time. Everyone tells me |

should be—I should be getting over it by now, but it

seems like it’s only getting worse. This is anything but

new. I remember the first time he got caught. He told

me he was going to change. Why am I here speaking

today? Because of the power methamphetamines

have in his life, leaving him to make foolish choices

and decisions.

You don’t really know my dad, but doing your

job in this federal system, you caught my dad doing

wrong. That couldn’t change the fact my dad is a good

man. He’s loving, caring, helpful and a strong man

when he’s completely sober. You see him covered with

38a

tattoos, he seems like he’s a tough guy, but he’s a big

guy with an addiction, not able to be on his own.

If you start at the age I currently am now, being

14 years old, methamphetamine had him before he

turned 16. Before in 2007 my dad promised me he was

going to change, but it always slipped through his

fingers. He stayed clean 16 months without any

problem with family support. I tried to help. I begged

him to stop and I'd do anything to have my dad back,

but not the old dad, the one that loved me and took

care of me.

It’s been hard growing up for me. My dad was

here unless he was in jail or prison. Usually my

unsupportive mom, she threw me off one hand when

I was a baby, yet has my brother weekly unless she

needs something. I know in my heart they loved me,

but it’s hard to get past that.

My grandparents, as | grow up, I| see their

health deteriorate. I'll not be able to call my parents

when I need advice. My dad calls me. I had two visits

with him for 2013. I'll be the first person to tell you

that a 30-minute visitation goes by fast.

I wish my dad would be here to see me walk

down the aisle and hear me say those famous words

“I do,” be here with my kids. He’s not going to see me

walk across the stage on graduation, come to senior

prom. My dad’s helped me to be brave. I try not to cry.

I love my dad. Nobody knows but myself. My dad isn’t

the only person I’ve lost. In 2007 I lost my grandpa

due to a meth overdose. My mom has been a meth

addict before, too.

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The only bit of peace with my dad is being the

fact he’s supposed to be safe. Now there’s some hope

your system will be able to overcome his addiction. |

have to live off memories my dad and I made together.

They say I'm strong. Obviously that means I have no

feelings and I can be ignored. Am I strong? My dad

asked myself daily why can’t he stop. I hate saying

meth ruined my world when I wasn’t even the person

using it. I guess that’s really powerful of a drug.

I want you to know that my dad isn’t just

65026-019. He has friends, family, and a daughter at

home. None of this is my dad. There’s nothing I can

say or do that is—there’s nothing I can say or do

anymore to help besides support my dad through all

the years he’s facing. The only thing I can ask for is

some sort of mercy on him.

This is for anyone with a drug addiction.

Teardrops fall. My life falls. A pain in my body, pain

in my heart. So many broken people, so many broken

souls. They've been through so much pain. Not the

smartest person knows life is a battle, life is a fight,

every day drags, every night. [Unintelligible.]

Everyone is special I see in this room, they're all

making changes not the way they assumed. They take

it step by step. They done wrong, they know they

made mistakes. Teardrops fall means always shine in

cloudy weather.

THE COURT: Thank you.

MR. MENDELSOHN: Judge, this is Cathy

Duckworth, his mother.

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THE COURT: Good afternoon.

MS. DUCKWORTH: Your Honor, I know this

is a bad day for you, a terrible day for you.

THE COURT: IU be glad to hear from you.

MS. DUCKWORTH: You know, now, sitting

right there thinking what I wanted to say to you, Your

Honor, I decided I'd like to tell you a little bit about

my son growing up and some things are bad. I had to

work. I don’t have a high school education. I worked

making $4 an hour. I did have a deadbeat husband

that beat on my children, but I had to provide a roof

over their head. I struggled. There were times that I

had my power cut off and everything else, but I kept

pushing through for my children. And then I got in

charge and the Lord saved me one day and | thank

God for that, and then my husband got in church with

me. My kids were little and he was in a singing group

then. He run off with a woman and got married to her

which y'all don’t know me, but the Lord knows me,

and I’ve struggled trying to raise my kids. I’ve always

had to work until about three years ago. [ve got

COPD, I’ve got emphysema. They went down with a

light and told me my lungs was black. I’ve been

struggling with this disease now. If you'd seen me six

months ago you would have said I was healthy as a

horse, but I’ve dropped 40 pounds. I’ve been going

back and forth to the doctor. I’ve got to go March the

12th. They wanting to send me to a cancer doctor to

see if they can find something because of the weight.

I’m a mom. | love my children, God knows I do. | stay

on my knees and | thank God my son is safe, I really

do. I want to thank you. But the time he is missing

4la

with his daughter, he’s not—I think he more or less

got caught up into this about the money. I know he

was set up and it was all about the money. But my

son’s an addict and he needs help with his drug

addiction—addiction, I can’t talk right.

But I would ask you—beg you for mercy. If

there’s any way possible you could reduce his

sentence just by a little bit, just by a little bit so he

can have that time with his daughter. We’re trying to

raise Shayla right now. Erik’s really a good person

when he’s straight and he’s working. I mean, he has

really helped us with her. I don’t know what else to

say. I love my son, I really do. I love him and I want

what's best for him and I want what’s best for his

daughter. I know that the 15 years that he’s looking

at, I’m not going to be here, I do know that.

THE COURT: Well, I'm going to put some

provisions in this sentence that will do part of what

you're asking. ['m going to give him some provisions

that will help him while he’s in prison and help him

when he gets out.

MR. MENDELSOHN: Well, Judge—

THE COURT: And I know you love your son

dearly and this is not a pleasant day for me and not a

pleasant day for you or anybody in the courtroom.

MR. MENDELSOHN: Judge, | don’t know that

| can say anything much better than what Shayla and

Ms. Duckworth have said, but I think you see from

them that this is about somebody who has an

addiction and that addiction has controlled him for a

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large part of his adult life. But the fact that he’s got a

daughter who's as special and fabulous as she is at

age 14 and says the kind of things she said to you

today I think shows that he has been a good influence

on her and he has done well by her and hopefully will

continue to do that in the future.

So with that, we would, of course, ask the Court

to accept the binding plea and understand who Mr.

Hughes is and where he will end up once he gets out

from this. I also would like the Court—to thank the

Court for hearing from these two people, especially

Shayla, because I think it was very important for her

to say those words, both to the Court and to her

father.

THE COURT: Thank you, Mr. Mendelsohn.

If you’d come around, Mr. Hughes.

Ms. Garland, anything you want to say?

MS. GARLAND: Judge, ! would just stand by

the Government's recommendation that this be a

binding plea binding on the Court and on the

defendant for 180 months.

THE COURT: All right.

MS. GARLAND: We make this

recommendation in light of the fact that he was facing

life without parole with his prior convictions and the

kind of drug quantities that were involved here and

so although it seems like a very harsh sentence, being

15 years, it's much better than what he would have

faced, up to 20.

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THE COURT: Thank you.

Anything you want to say, Mr. Hughes?

THE DEFENDANT: Yes, sir.

First, I'd like to apologize to my family for being

here. I’ve let methamphetamines ruin my lue and I’m

1 sorry. I’m sorry for you having to hear this case

today. I would just ask for some leniency, if you could.

I know I’ve got to pay for the crime I coritted. I don’t

want to say the wrong thing and try to break my

binding plea so | would just ask you to be as lenient

as you could, if you could. I was selling drugs to

support my habit. I’m not a sex offender, I’m not a

violent person, I don’t have any of those kind of

crimes. I’m just a full-fledged junky, that’s it, with a

habit. ve never prospered anything from it except for

my ways of being able to support my addiction, that’s

it. | worked here and there at times, but I’ve always

been able to support my addiction through drugs and

that’s the wrong way to go about it, that’s the wrong

style of life and I just—like I said, I was working for

my codefendant to pay for my addiction and what's

crazy about it is the man I worked for never even used

drugs in his life and could allow me to be in the

situation I’m in to support my habit and I just—like I

said, I ask for any leniency, if you could. I know

there’s a minimum of 10 years, but the prosecutor's

right, I could be facing life or getting life, but I just—

I don’t really know what else to say. I’m scared of

breaking this plea agreement.

THE COURT: Well, you're not breaking it.

Wait a minute. I need to pronounce the sentence. |

44a

had a very thorough plea, a very thorough

presentence report in this case, and I know that your

mother’s had a tough time and been very supportive

of you, and this habit you’ve got is hell for you and

your family.

Pursuant to the Sentencing Reform Act of

1984, it’s the judgment of the Court that the

defendant, Erik Hughes, be and is hereby committed

to the custody of the Bureau of Prisons to be

imprisoned for a term of 180 months as to Count One

and 120 months as to Count Three to be served

concurrently with Count One for a total sentence of

180 months.

It's further ordered that the defendant shall

pay to the United States a mandatory special

assessment of $200 which shall be due immediately.

The Court finds that the defendant does not have the

ability to pay a fine and the cost of incarceration and

the Court will waive a fine and the cost of

incarceration in this case.

Upon release from imprisonment’ the

defendant shall be placed on supervised release for a

period of 5 years as to Count One and 3 years as to

Count Three with Count Three to run concurrent with

Count One.

Within 72 hours of release from the custody of

the Bureau of Prisons the defendant shall report in

person to the United States Probation Office in the

district to which the defendant is released. While on

supervised release the defendant shall not commit

another federal, state or local crime, shall comply

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with the standard conditions that have been adopted

by this Court, and shall comply with the following

additional conditions:

The defendant shall refrain from any unlawful

use or possession of a controlled substance and submit

to one drug urinalysis within 15 days after being

placed on supervision and at least two periodic tests

thereafter.

The defendant shall not own, possess or have

under his control any firearm, dangerous weapon or

other destructive device. The defendant shall submit

to a search of his person, property, both real, personal

or rental, residence, office, and vehicle at reasonable

times in a reasonable manner based upon reasonable

suspicion of contraband or evidence of a violation of a

condition of release. Failure to submit to a search may

be grounds for revocation. The defendant shall warn

any other residents of the premises that same are

subject to searches pursuant to this condition of

supervised release. The defendant shall participate in

a drug and alcohol treatment program as directed by

the United States Probation Officer and, if able,

contribute to the cost of such services.

The defendant shall participate in a mental

health evaluation and counseling, if deemed

necessary or appropriate by the United States

Probation Officer, and, if able, the defendant shall be

required to contribute to the cost of services for such

treatment. The defendant shall perform 100 hours of

community service as directed by the United States

Probation Officer in lieu of a payment of a fine or the

cost of incarceration in this case.

A6a

Pursuant to 42 USC, Section 14135a(d)(1) and

10 USC, Section 1565(d), which requires mandatory

DNA testing for federal offenders involving a felony

offense, the defendant shall cooperate in the collection

of a DNA sample as required by the United States

Probation Officer.

The Court enters a forfeiture order upon the

following items. $14,124 in United States currency

seized from Erik Hughes on April the 19th, 2013; a

Smith & Wesson 357-caliber pistol with an

obliterated serial number seized from Erik Hughes

referenced in Count Three of the indictment;

$36,670—$970 in United States currency seized from

Joshua Andrews on April the 19th, 2013, same hereby

being forfeited.

The Court recommends that the defendant be

allowed to participate in the 500-hour intensive drug

and alcohol treatment program while incarcerated.

Do you have any requests as to where the Court

should recommend that this gentleman be allowed to

serve his sentence, Mr. Mendelsohn?

MR. MENDELSOHN: Judge, as close to Dalton

as possible.

THE COURT: The Court recommends that this

defendant be allowed to serve his sentence at the

federal facility at Talladega, Alabama, or some other

place in the general area of north Georgia.

You have a right to appeal to a higher court

from what the Court’s done in this case, to the extent

47va

you've not given up your right to appeal to a higher

court. If you do want to appeal to a higher court, you

have to do so within 14 days from today or you forever

lose your right to appeal to a higher court.

If you want to appeal to a higher court and you

don’t have the money to hire a lawyer to handle your

case on appeal, the Court will appoint a lawyer to

represent you on appeal and you can appeal to a

higher court without any cost whatsoever to yourself.

In imposing this sentence the Court has

accepted the binding plea agreement between the

parties. I explained at the time of approving the

binding plea agreement the reasons I’ve done so and

for the reasons that I’ve stated at that time, the Court

concludes and finds that it has imposed a reasonable

sentence in this case compatible with the advisory

United States Sentencing Guidelines but in

accordance with the mandatory matters the Court is

required to consider in ultimately determining a

sentence.

The Court would state for the record that in the

opinion of the Court the Government has acted very

reasonably in connection with their recommendation

in this case and defense counsel has acted very

reasonably with his recommendation in this case as

to what each lawyer believes to be a fair and

reasonable sentence under the circumstances.

The Court is convinced it has imposed a reasonable

sentence and the judgment of the defendant himself

accepting this plea is the judgment of an individual

who has the ability to overcome his addiction and be

48a

a productive citizen, and I hope you'll maintain that

sense of logic, Mr. Hughes.

If there’s nothing further, then, that completes

the sentencing in the case.

Do you want to put an exception in the record,

Mr. Mendelsohn?

MR. MENDELSOHN: No, Judge. Thank you.

THE COURT: Ms. Garland?

MS. GARLAND: Nothing from _ the

Government, Your Honor.

THE COURT: All right. We’ll be in recess.

THE CLERK: All rise, please. This Honorable

Court’s in recess until further order.

[proceedings concluded at 2:25 p.m.]

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

CERTIFICATE OF REPOR

I do hereby certify that the foregoing pages are

a true and correct transcript of the proceedings taken

down by me in the case aforesaid.

This the 2nd day of February, 2016.

/S/ Alicia B. Bagley

ALICIA B. BAGLEY, RMR, CRR

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OFFICIAL COURT REPORTER

(706) 378-4017

50a

APPENDIX D

GUILTY PLEA and PLEA AGREEMENT

United States Attorney

Northern District of Georgia

ORIGINAL

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

CRIMINAL NO. 4:13-CR-43-HLM-WEJ

The United States Attorney for the Northern

District of Georgia (“the Government”) and Defendant

ERIK HUGHES, enter into this plea agreement as set

forth below in Part IV pursuant to Rule 11 (c)(1)(C) of

the Federal Rules of Criminal Procedure. ERIK

HUGHES, Defendant, having received a copy of the

above-numbered Indictment and having been

arraigned, hereby pleads GUILTY to Counts One and

Three.

I. ADMISSION OF GUILT

1. The Defendant admits that he is pleading

guilty because he is in fact guilty of the crimes

charged in Counts One and Three.

II EDG R OF

RIGHTS

2. The Defendant understands that by pleading

guilty, he is giving up the right to plead not guilty and

the right to be tried by a jury. At a trial, the Defendant

5la

would have the right to an attorney, and if the

Defendant could not afford an attorney, the Court

would appoint one to represent the Defendant at trial

and at every stage of the proceedings. During the

trial, the Defendant would be presumed innocent and

the Government would have the burden of proving

him guilty beyond a reasonable doubt. The Defendant

would have the right to confront and cross-examine

the witnesses against him. If the Defendant wished,

he could testify on his own behalf and present

evidence in his defense, and he could subpoena

witnesses to testify on his behalf. If, however, the

Defendant did not wish to testify, that fact could not

be used against him, and the Government could not

compel him to incriminate himself. If the Defendant

were found guilty after a trial, he would have the

right to appeal the conviction.

3. The Defendant understands that by pleading

guilty, he is giving up all of these rights and there will

not be a trial of any kind.

4. By pleading guilty, Defendant also gives up

any and all rights to pursue any affirmative defenses,

Fourth Amendment or Fifth Amendment claims, and

other pretrial motions that have been filed or could

have been filed.

5. The Defendant also understands that he

ordinarily would have the right to appeal his sentence

and, under some circumstances, to attack the

conviction and sentence in_ post-conviction

proceedings. By entering this Plea Agreement, the

Defendant may be waiving some or all of those rights

52a

to appeal and to collaterally attack his conviction and

sentence, as specified below.

6. Finally, the Defendant understands that, to

plead guilty, he may have to answer, under oath,

questions posed to him by the Court concerning the

rights that he is giving up and the facts of this case,

and the Defendant’s answers, if untruthful, may later

be used against him a prosecution for perjury or false

statements.

Ill EDGM TIES

7. The Defendant understands that, based on

his plea of guilty, he will be subject to the following

maximum and mandatory minimum penalties:

As to Count One:

a. Maximum term of imprisonment:

Life.

b. Mandatory minimum term of

imprisonment: 10 years.

c. Term of supervised release: 5 year(s)

to Life.

d. Maximum fine: $10,000,000.00, due

and payable immediately.

e. Full restitution, due and payable

immediately, to all victims of the

offense(s) and relevant conduct.

53a

f. Mandatory special assessment:

$100.00, due and payable immediately.

g. Forfeiture of any and all proceeds

from the commission of the offense, any

and all property used or intended to be

used to facilitate the offense, and any

property involved in the offense.

As to Count Three:

h. Maximum term of imprisonment: 10

years.

i. Mandatory minimum term of

imprisonment: None.

j. Term of supervised release: 3 year(s)

to 5 years.

k. Maximum fine: $250,000.00, due and

payable immediately.

l. Full restitution, due and payable

immediately, to all victims of the

offense(s) and relevant conduct.

m. Mandatory special assessment:

$100.00, due and payable immediately.

n. Forfeiture of any and all proceeds

from the commission of the offense, any

and all property used or intended to be

used to facilitate the offense, and any

property involved in the offense.

54a

8. The Defendant understands that, before

imposing sentence in this case, the Court will be

required to consider, among other factors, the

provisions of the United States Sentencing Guidelines

and that, under certain circumstances, the Court has

the discretion to depart from those Guidelines. The

Defendant further understands that the Court may

impose a sentence up to and including the statutory

maximum as set forth in this paragraph and that no

one can predict his exact sentence at this time.

IV, PLEA AGREEMENT

9. The Defendant, his counsel, and the

Government, subject to approval by the Court, have

agreed upon a negotiated plea in this case, the terms

of which are as follows:

Binding Sentencing Recommendation to the

Court

10. This plea is entered under the specific

provisions of Rule 11(c)(1)(C) of the Federal Rules of

Criminal Procedure (Fed. R. Cr. P.). As a product of

negotiations between the parties and in exchange for

the government dismissing otherwise provable counts

against the Defendant, the Defendant and the

Government expressly recommend that the Court

should impose a sentence of 180 months of

imprisonment as the appropriate custodial sentence

in this case. Under the provisions of Fed. R. Cr. P.

11(c)(1)(C), this recommendation would bind the

Court to impose this particular custodial sentence if

the Court accepts this plea agreement.

55a

11. The Government agrees that, upon the

entry of the Judgment and Commitment Order, any

and all remaining counts in the above-styled case still

pending against Defendant shall be dismissed

pursuant to Standing Order No. 07-04 of this Court

and to Rule 48a) of the Federal Rules of Criminal

Procedure. The Defendant understands that the

Probation Office and the Court may still consider the

conduct underlying such dismissed counts in

determining relevant conduct under the Sentencing

Guidelines and a reasonable sentence under Title 18,

United States Code, Section 3553(a).

Section 85] Dismissal

12. The Government agrees that it will not

pursue the applicable Title 21, Section 851 sentencing

enhancements.

Sentencing Guidelines Recommendations

13. Based upon the evidence currently known

to the Government, the Government agrees to make

the following recommendations and/or to enter into

the following stipulations.

Right to Answer Questions, Correct

Misstatements, and Make Recommendations

14. The Government reserves the right to

inform the Court and the Probation Office of all facts

and circumstances regarding the Defendant and this

case, and to respond to any questions from the Court

and the Probation Office and to any misstatements of

56a

fact or law. Except as expressly stated elsewhere in

this Plea Agreement, the Government also reserves

the right to make recommendations regarding

application of the Sentencing Guidelines.

Right to Modify Recommendations

15. With regard to the Government's

recommendation as to any specific application of the

Sentencing Guidelines as set forth elsewhere in this

Plea Agreement, the Defendant understands and

agrees that, should the Government obtain or receive

additional evidence concerning the facts underlying

any such recommendation, the Government will bring

that evidence to the attention of the Court and the

Probation Office. In addition, if the additional

evidence is sufficient to support a finding of a

different application of the Guidelines, the

Government will not be bound to make the

recommendation set forth elsewhere in this Plea

Agreement, and the failure to do so will not constitute

a violation of this Plea Agreement.

Cooperation

General Requirements

16. The Defendant agrees to cooperate

truthfully and completely with the Government,

including being debriefed and providing truthful

testimony at any proceeding resulting from or related

to Defendant's cooperation. Defendant agrees to so

cooperate in any investigation or proceeding as

requested by the Government. Defendant agrees that

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Defendant's cooperation shall include, but not be

limited to:

a. producing all records, whether

written, recorded, electronic, or

machine readable, in his actual or

constructive possession, custody, or

control, of evidentiary value or

requested by attorneys and agents of

the Government;

b. making himself available for

interviews, not at the expense of the

Government if he is on bond, upon the

request of attorneys and agents of the

Government;

c. responding fully and truthfully to all

inquiries of the Government in

connection with any investigation or

proceeding, without falsely implicating

any person or intentionally

withholding any information, subject to

the penalties of making false

statements (18 US.C. §1001),

obstruction of justice (18 U.S.C. § 1503)

and related offenses;

d. when called upon to do so by the

Government in connection with any

investigation or proceeding, testifying

in grand jury, trial, and other judicial

proceedings, fully, truthfully, and

under oath, subject to the penalties of

perjury (18 U.S.C. § 1621), making

58a

false statements or declarations in

grand jury or court proceedings (18

U.S.C. § 1623), contempt (18 U.S.C.

§§ 401 - 402), obstruction of justice (18

U.S.C. § 1503), and related offenses.

The Defendant understands that the Government

alone will determine what forms of cooperation to

request from the Defendant, and the Defendant

agrees that Defendant will not engage in any

investigation that is not specifically authorized by the

Government.

Section 1B1.8 Protection

17. Pursuant to Section 1B1.8 of the

Sentencing Guidelines, the Government agrees that

any self-incriminating information that was

previously unknown to the Government and is

provided to the Government by the Defendant in

connection with Defendant's cooperation and as a

result of this Plea Agreement will not be used in

determining the applicable sentencing guideline

range, although such information may be disclosed to

the Probation Office and the Court. The Government

also agrees not to bring additional charges against the

Defendant, with the exception of charges resulting

from or related to violent criminal activity, based on

any information provided by the Defendant in

connection with cooperation that was not known to

the Government prior to the cooperation. However, if

the Government determines that the Defendant has

not been completely truthful and candid in his

cooperation with the Government, he may be subject

to prosecution for perjury, false statements,

59a

obstruction of justice, and any other appropriate

charge, and all information Defendant has provided

may be used against Defendant in such a prosecution.

Furthermore, should the Defendant withdraw his

guilty plea in this case and proceed to trial, the

Government is free to use any statements and/or

other information provided by the Defendant,

pursuant to the Defendant’s cooperation, as well as

any information derived therefrom, during any trial

or other proceeding related to the Government's

prosecution of the Defendant for the offense(s)

charged in the above-numbered Counts One and

Three.

Sentencing Recommendations

Specific Sentence Recommendation

18. The parties agree that the Defendant

should be sentenced to 180 months.

Defendant Unable to Pay Fine

19. Based on the information currently

available to it, the Government agrees to recommend

that the Defendant does not have the financial

resources to pay a fine.

Forfeiture

20. The Defendant acknowledges that each

asset listed below is subject to forfeiture and agrees

that he shall immediately forfeit to the United States

any proceeds from, property used or intended to be

used to facilitate, and property involved in the

60a

commission of the offenses in Counts One and Three,

including, but not limited to, the following:

a. $14,124.00 in United States currency

seized on or about April 19, 2013;

b. The Smith and Wesson .357 caliber

pistol with obliterated serial number

referenced in Count Three of the

Indictment; and

c. $36,970.00 in United States currency

seized on or about April 17, 2013, from

Joshua Wayne Andrews;

21. The Defendant waives and abandons all

right, title, and interest in the all of the property

listed above (referred to hereafter, collectively, as the

Subject Property) and agrees to the administrative or

judicial forfeiture of the Subject Property. In addition,

the Defendant waives and abandons his interest in

any other property that may have been seized in

connection with this case. The Defendant agrees to

the administrative or judicial forfeiture or the

abandonment of any seized property.

22. The Defendant states that he is the sole and

rightful owner of the $14,124.00 in United States

currency and the Smith and Wesson .357 caliber

pistol, that to the best of his knowledge no other

person or entity has any interest in those two items,

and that he has not transferred, conveyed, or

encumbered his interest in them. The Defendant

agrees to take all steps requested by the United

States to facilitate transfer of title of the Subject

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Property, including providing and endorsing title

certificates, or causing others to do the same where

third parties hold nominal title on the Defendant’s

behaif, to a person designated by the United States.

The Defendant agrees to take all steps necessary to

ensure that the Subject Property is not hidden, sold,

wasted, destroyed, or otherwise made unavailable for

forfeiture. The Defendant agrees not to file any claim,

answer, or petition for remission or restitution in any

administrative or judicial proceeding pertaining to

the Subject Property, and if such a document has

already been filed, the Defendant hereby withdraws

that filing.

23. The Defendant agrees to hold the United

States and its agents and employees harmless from

any claims made in connection with the seizure,

forfeiture, or disposal of property connected to this

case. The Defendant acknowledges that the United

States will dispose of any seized property, and that

such disposal may include, but is not limited to, the

sale, release, or destruction of any seized property,

including the Subject Property. The Defendant agrees

to waive any and all constitutional, statutory, and

equitable challenges in any manner (including direct

appeal, a Section 2255 petition, habeas corpus, or any

other means) to the seizure, forfeiture, and disposal of

any property seized in this case, including the Subject

Property, on any grounds.

24. The Defendant consents to the Court's

entry of a preliminary order of forfeiture against the

Subject Property, which will be final as to him, a part

of his sentence, and incorporated into the judgment

against him.

62a

Financial operation Provisions

Special Assessment

25. The Defendant understands that the Court

will order him to pay a special assessment in the

amount of $200.

Fine/Restitution—Terms of Payment

26. The Defendant agrees to pay any fine

and/or restitution imposed by the Court to the Clerk

of Court for eventual disbursement to the appropriate

account and/or victim(s). The Defendant also agrees

that the full fine and/or restitution amount shall be

considered due and payable immediately. If the

Defendant cannot pay the full amount immediately

and is placed in custody or under the supervision of

the Probation Office at any time, he agrees that the

custodial agency and the Probation Office will have

the authority to establish payment schedules to

ensure payment of the fine and/or restitution. The

Defendant understands that this payment schedule

represents a minimum obligation and that, should

Defendant's financial situation establish that he is

able to pay more toward the fine and/or restitution,

the Government is entitled to pursue other sources of

recovery of the fine and/or restitution. The Defendant

further agrees to cooperate fully in efforts to collect

the fine and/or restitution obligation by any legal

means the Government deems appropriate. Finally,

the Defendant and his counsel agree that the

Government may contact the Defendant regarding

the collection of any fine and/or restitution without

notifying and outside the presence of his counsel.

63a

Financial Disclosure

27. The Defendant agrees that Defendant will

not sell, hide, waste, encumber, destroy, or otherwise

devalue any such asset worth more than $500 before

sentencing, without the prior approval of the

Government. The Defendant understands and agrees

that Defendant’s failure to comply with this provision

of the Plea Agreement should result in Defendant

receiving no credit for acceptance of responsibility.

28. The Defendant agrees to cooperate fully in

the investigation of the amount of restitution and

fine; the identification of funds and assets in which he

has any legal or equitable interest to be applied

toward restitution and/or fine; and the prompt

payment of restitution or a fine.

Limited Waiver of Appeal

29. LIMITED WAIVER OF APPEAL: To the

maximum extent permitted by federal law, the

Defendant voluntarily and expressly waives the right

to appeal his conviction and sentence and the right to

collaterally attack his conviction and sentence in any

post-conviction proceeding (including, but not limited

to, motions filed pursuant to 28 U.S.C. § 2255) on any

ground, except that the Defendant may file a direct

appeal of an upward departure or variance above the

sentencing guideline range as calculated by the

district court. The Defendant understands that this

Plea Agreement does not limit the Government’s right

to appeal, but if the Government initiates a direct

appeal of the sentence imposed, the Defendant may

file a cross-appeal of that same sentence.

64a

privacy protections to permit the Government to

access his credit report and tax information held by

the Internal Revenue Service.

30. So long as the Defendant is completely

truthful, the Government agrees that anything

related by the Defendant during his financial

interview or deposition or in the financial forms

described above cannot and will not be used against

him in the Government’s criminal prosecution.

However, the Government may use the Defendant's

statements to identify and to execute upon assets to

be applied to the fine and/or restitution in this case.

Further, the Government is completely free to pursue

any and all investigative leads derived in any way

from the interview(s)/deposition(s)/financial forms,

which could result in the acquisition of evidence

admissible against the Defendant in subsequent

proceedings. If the Defendant subsequently takes a

position in any legal proceeding that is inconsistent

with the interview(s)/deposition(s)/financial forms-

whether in pleadings, oral argument, witness

testimony, documentary evidence, questioning of

witnesses, or any other manner—the Government

may use the Defendant’s interview(s)/deposition(s)/

financial forms, and all evidence obtained directly or

indirectly therefrom, in any responsive pleading and

argument and for cross-examination, impeachment,

or rebuttal evidence. Further, the Government may

also use the Defendant’s interview(s)/deposition(s)/

financial forms to respond to arguments made or

issues raised sua sponte by the Magistrate or District

Court.

65a

Limited Waiv f eal

31. LIMITED WAIVER OF APPEAL: To the

maximum extent permitted by federal law, the

Defendant voluntarily and expressly waives the right

to appeal his conviction and sentence and the right to

collaterally attack his conviction and sentence in any

post-conviction proceeding (including, but not limited

to, motions filed pursuant to 28 U.S.C. § 2255) on any

ground, except that the Defendant may file a direct

appeal of an upward departure or variance above the

sentencing guideline range as calculated by the

district court. The Defendant understands that this

Plea Agreement does not limit the Government’s right

to appeal, but if the Government initiates a direct

appeal of the sentence imposed, the Defendant may

file a cross-appeal of that same sentence.

Miscellaneous Waivers

FOIA/Privacy Act Waiver

32. The Defendant hereby waives all rights,

whether asserted directly or by a representative, to

request or receive from any department or agency of

the United States any records pertaining to the

investigation or prosecution of this case, including,

without limitation, any records that may be sought

under the Freedom of Information Act, Title 5, United

States Code, Section 552, or the Privacy Act of 1974,

Title 5, United States Code, Section 552a.

Section 851 Dismissal & Waiver of Right to

Challenge Prior Convictions

66a

33. In consideration of the benefits received by

Defendant under the terms of this Plea Agreement,

including, but not limited to, the dismissal of the

Section 851 sentencing enhancement Information,

Defendant agrees that he will not challenge, either

directly or collaterally, in any manner, any prior

sentence and/or conviction in any court. Defendant

further agrees that, in the event that a prior sentence

or conviction is vacated, this event will not serve as

the basis for a reduced sentence in any collateral

attack on the sentence in this case.

No Other Agreements

34. There are no other agreements, promises,

representations, or understandings between the

Defendant and the Government.

In Open Court this 19th day of December, 2013.

/s/ Brian Mendelsohn /s/ Erik Hughes

SIGNATURE SIGNATURE

(Attorney for (Defendant)

Defendant)

Brian Mendelsohn ERIK HUGHES

/s/ Angela Marie

Garland

SIGNATURE

(Assistant U.S.

Attorney)

Angela Marie

Garland

67a

/s/ Katherine M.

Hoffer |

SIGNATURE

(Approving Official)

| have read the Indictment against me and

have discussed it with my attorney. I understand the

charges and the elements of each charge that the

Government would have to prove to convict me at a

trial. I have read the foregoing Plea Agreement and

have carefully reviewed every part of it with my

attorney. I understand the terms and conditions

contained in the Plea Agreement, and | voluntarily

agree to them. | also have discussed with my attorney

the rights I may have to appeal or challenge my

conviction and sentence, and I understand that the

appeal waiver contained in the Plea Agreement will

prevent me, with the narrow exceptions stated, from

appealing my conviction and sentence or challenging

my conviction and sentence in any post-conviction

proceeding. No one has threatened or forced me to

plead guilty, and no promises or inducements have

been made to me other than those discussed in the

Plea Agreement. The discussions between my

attorney and the Government toward reaching a

negotiated plea in this case took place with my

permission. I am _ fully satisfied with the

representation provided to me by my attorney in this

case.

SIGNATURE DATE

(Defendant)

ERIK HUGHES

68a

Iam ERIK HUGHES’s lawyer. I have carefully

reviewed the charges and the Plea Agreement with

my client. To my knowledge, my client is making an

informed and voluntary decision to plead guilty and

to enter into the Plea Agreement.

/s/ Brian Mendelsohn 12/19/13

SIGNATURE (Defense Attorney) DATE

Brian Mendelsohn

Brian Mendelsohn ERIK HUGHES

Federal Defender USMS

Program

Centennial Tower

101 Marietta Street,

N.W..,

Suite 1500

Atlanta, GA 30303

(404)688-7530

State Bar of Georgia Number

Filed in Open Court FILED IN OPEN COURT

James N. Hatten, Clerk

This _ day of _, 20 __

By:

ae Deputy Clerk

69a

U. S. DEPARTMENT OF JUSTICE

Statement of Special Assessment Account

This statement reflects your special assessment only.

There may be other penalties imposed at sentencing.

ACCOUNT INFORMATION

CRIMINAL ACTION | 4:13-CR-43-HLM.-

NO.: WEJ

DEFENDANT’S NAME: | ERIK HUGHES

PAY THIS AMOUNT:

Instructions:

1. Payment must be made by certified check

or money order payable to:

Clerk of court, U.S. District Court

*personal checks will not be accepted*

2. Payment must reach the clerk’s office

within 30 days of the entry of your guilty plea

3. Payment should be sent or hand delivered

to:

Clerk, U.S. District Court

600 East First Street

Rome, Georgia 30161

(Do Not Send Cash)

4. Include defendant’s name on certified

check or money order.

70a

5. Enclose this coupon to insure proper and

prompt application of payment.

6. Provide proof of payment to the above-

signed AUSA within 30 days of the guilty

plea.

J7la

APPENDIX E

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

UNITED STATES OF CASE NO. 4:13-CR-43-

AMERICA, 01-HLM

Plaintiff,

vs. FILED IN CLERK’S

OFFICE

ERIK HUGHES #65026- U.S.D.C. Rome

019, JUN 15 2015

Defendant. JAMES N. HATTEN,

Clerk

By: Deputy Clerk

DE NT’ D N

SENTENCE

Pursuant to 18 U.S.C. § 3582(c)(2)

TO THE HONORABLE COURT:

COMES NOW, the Defendant, Erik Hughes,

appearing this day pro se and without the aid of

counsel, who respectfully moves this Honorable Court

for a reduction of his current sentence of 180 months,

pursuant to 18 U.S.C. § 3582(c)(2), following

Amendment 782 to the United States Sentencing

Guidelines, and states:

72a

BACKGROUND

On or about December 19, 2013, Defendant

pled guilty to Counts One and Three of a four count

indictment, charging, conspiracy to possess with

intent to distribute 500 grams or more of

methamphetamine, in violation of 21 U.S.C.

§ 841(b)(1)(A)(viii) & § 846(Count One); possessing

with intent to distribute 50 grams or more of

methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1), § 841(b)(1)(B)(viii) and § 846 (Count Two);

possessing a firearm after having been convicted of a

felony, in violation of 18 U.S.C. § 922(g)(1) (Count

Three); and possessing a firearm having an

obliterated serial number, in violation of 18 U.S.C.

§ 922(k) (Count Four). See Plea Agreement at (Doc.

54).

Defendant appeared before this Honorable

Court for sentencing, on or about March 3, 2014, at

which time this Honorable Court sentenced

Defendant to a term of 180 months imprisonment, to

be followed by a term of 5 years supervised release.

See Judgment at (Doc. 69).

Defendant did not file a Notice of Appeal, nor

pursue a direct appeal from his judgment of

conviction, however, brings the instant motion for a

reduction of his sentence, pursuant to 18 U.S.C.

§ 3582(c)(2), following Amendment 782 to the U.S.

Sentencing Guidelines.

73a

REASONS FOR REDUCING SENTENCE UNDER

AMENDMENT 782

Defendant maintains, as an initial matter, that

he is entitled to a reduction of h

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