Monday, May 17, 2010

Sentence Resulting from (c)(1)(C) Agreement May or May Not be "Based On" a Retroactively Reduced Guidelines Range for § 3582(c)(2) Purposes

United States v. Garcia, No. 08-50458 (5th Cir. May 7, 2010) (per curiam) (Jones, Higginbotham, Elrod)

Garcia was charged with seven counts of distributing lots of cocaine and crack. He entered a (c)(1)(C) agreements providing that 1) he would plead guilty to two counts in exchange for dismissal of the remaining counts, and 2) the sentence would be at least 240 months.

The plea agreement also contemplated the sentencing guidelines, albeit with the 240 month minimum overlay. Paragraph 8 provided: “The parties agree to request the Court to consult with and take into account the United States Sentencing Guidelines and accompanying policy statements (‘the U.S.S.G.’) for the calculation of the Defendant’s sentence pursuant to 18 U.S.C. § 3553.” Paragraphs 10 and 15 discussed the possibility that the government would move for a downward departure from the sentencing guidelines. The government in paragraph 17, citing to U.S.S.G. § 3E1.1(b), promised to move for an additional point deduction from Garcia’s offense level as a “reward” for his timely plea. Finally, paragraph 19 declared that, besides the 240 month minimum, “[a]ll . . . sentencing issues . . . will be determined by the Court after the completion of a Presentence Investigation Report.”

The Guidelines range worked out to 210 to 262 months, which became 240 to 262 months under the terms of the plea agreement. "In short," the court puts it, "range was bounded on the bottom by the plea agreement and on the top by the guidelines." Garcia got 262 months.

Enter the 2007 retroactive reduction of the crack guidelines, which lowered Garcia's range to 168 to 210 months. "[I]n a continuing effort to honor the plea bargain, the district court determined the actual amended range to be 240 to 240 months, the agreed-to minimum sentenced. The district court granted Garcia’s motion and reduced his sentence to 240 months. Garcia appealed, urging that the district court could have gone lower."

A threshold issue: did the district court have jurisdiction to lower the sentence under § 3582(c)(2)? More specifically, is a sentence resulting from a (c)(1)(C) agreement "based on a sentencing range that has been subsequently lowered by the Sentencing Commission"? As you might imagine, that question has produced a split. Setser canvasses the authority from other circuits, which involves a bewildering array of slight factual differences.

Ultimately, none of these circuits dealt with a stipulated minimum sentence, so Garcia’s case is the wrong vehicle with which to enter this demolition derby. Here, we have no reason to pass on a plea with a specific sentence, or a maximum, or a range bounded on both ends by the guidelines. However, the caselaw—rife with inter- and intra-circuit disagreement—does teach that wooden rules will not do. The jurisdictional question is whether the sentence was “based on” the subsequently amended crack-offense guidelines, and answering that question requires that we examine the nuances of both the plea agreement and the sentencing transcript in each particular case[, following a path charted by the Seventh and Ninth Circuits].

Doing so, we conclude the district court sentenced Garcia based on the sentencing guidelines – just as the plea agreement provided. The parties stipulated to a minimum sentencing range irrespective of the guidelines. But the agreement allowed that the maximum point on Garcia’s range could derive from the guidelines if the high end of the guidelines range exceeded 240 months. It did, and the district court sentenced Garcia to 262 months based on its guidelines calculation. The able district judge expressly said as much: “I adopt . . . the application of the U.S. Sentencing Guidelines . . . .” Garcia qualified to move for a reduction.

Okay, so did the district court abuse its discretion by only reducing Garcia's sentence to 240 months? No:

Garcia’s agreement stipulated to a minimum sentence of 240 months, unmoored from any guidelines calculation. When the sentencing guidelines for crack offenses changed, bringing down the high end of Garcia’s range, his negotiated minimum stayed put. By modifying the sentence to 240 months, the district court gave Garcia the biggest reduction for which he was eligible.

Note that the court's holding renders irrelevant the Fifth Circuit's position that "[a] § 3582(c)(2) proceeding is not a full resentencing, so Booker and its bifurcated reasonableness review do not apply[,]" a proposition with which the Supreme Court may or may not agree.

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Friday, May 14, 2010

Split Remains Over Whether Court May Order Federal Sentence to Run Consecutively to Not Yet Imposed State Sentence

United States v. Setser, No. 08-10835 (5th Cir. May 11, 2010) (Benavides, Stewart, Southwick)

May a district court order that the federal sentence it imposes run consecutively to an anticipated, but not yet imposed, state sentence? The answer is found in 18 U.S.C. § 3584(a). And that answer, per the Fifth Circuit's 1991 decision in United States v. Brown, is yes. Other circuits disagree. So does the Government. Yet Brown remains good law. But for how long? Here's what Setser has to say on the subject:
[T]here are only two ways in which Brown’s posture as binding precedent in this Court could change: 1) an intervening decision by the Supreme Court or 2) a superseding decision by this Court sitting en banc. The Supreme Court, to date, has issued no intervening decision. Further, this Court has recently declined the opportunity to reconsider Brown en banc.**

Footnote ** relates the backstory:
In United States v. Garcia-Espinoza, No. 08-10775, 2009 WL 1362199 at *1 (5th Cir. May 15, 2009) (unpublished), this Court rejected a defendant’s challenge to his consecutive sentence, holding that his “challenge is foreclosed by our prior precedent.” However, in light of the circuit split concerning a district court’s discretion to order a federal sentence to run consecutively to an undischarged state sentence, Judge Owen and Judge Dennis, in their joint concurrence, recommended that the Court revisit the Brown holding en banc. Id. at *2. Yet when Garcia-Espinoza filed a motion for rehearing en banc, “[n]o member of the panel nor judge in regular active service on the court . . . requested that the court be polled” on a rehearing en banc. As a result, the Court denied the defendant-appellant’s motion on April 13, 2009. Thus, given this Court’s recent refusal to reconsider Brown en banc, any future reversal of the Court’s decision in Brown is best left to the discretion of our Supreme Court.

Note that the Supreme Court recently denied two cert petitions presenting this issue.

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