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Sentence reduction not barred by agreement

When the U.S. Supreme Court accepted review in Freeman v. U.S., it seemed that the Court would answer a straightforward question with a straightforward answer.

Can defendants charged with crack cocaine offenses, who entered plea agreements pursuant to Rule 11(c)(1)(C), take advantage of 18 U.S.C. 3582(c)(2), which permits sentence reduction when a sentence guideline range is subsequently lowered and made retroactive?

Under Rule 11(c)(1)(C), the defendant and the government agree as to the appropriate sentence. The court is not bound to accept the plea agreement, but if it does, it is bound to impose the sentence the parties agreed to.

The defendant’s position was categorical — any plea agreement in federal court is necessarily based on a guideline sentencing range, a requisite for application of sec. 3582, and thus the sentence can be reduced.

The government’s position was just as categorical – the sentence the court imposes in such cases is based not on the guidelines, but on the parties’ agreement, and thus, cannot be reduced.

Four of the justices agreed with each position. But Justice Sonia Sotomayor concluded that the answer depends on the language in the plea agreement.

Rejecting either approach, Sotomayor concluded that the defendant in Freeman could seek sentence reduction, but only because of two factors: his plea agreement stated that he “agrees to have his sentence determined pursuant to the sentencing guidelines”; and the basis for the agreed-upon sentence was readily discernible through reference to the guidelines.

William Freeman was indicted in federal court in 2005 for various crimes, including possession of cocaine base with intent to distribute. He entered into a 106-month plea agreement under Rule 11(c)(1)(C), containing the above language. His guideline range on the cocaine offense was 46 to 57 months, and a gun charge he also pleaded guilty to carried a consecutive mandatory minimum sentence of 60 months.

Three years later, the Sentencing Commission issued a retroactive amendment to the Guidelines to reduce the disparity between the penalties for cocaine base and cocaine powder.

Freeman moved for sentence reduction, but the district court and the 6th Circuit both agreed with the government held that he was ineligible.

The Supreme Court reversed, in a four-justice plurality opinion authored by Justice Anthony Kennedy.

The plurality opinion concluded that the sentence is necessarily based on the Guidelines, because the court can accept the plea agreement, only if it confirms that the recommended sentence is either within the applicable Guideline range, or that a departure is justified.

Kennedy wrote, “There is no reason to deny sec. 3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.”

Four justices dissented in an opinion by Chief Justice John Roberts, concluding, “The reality is that whenever the parties chose a fixed term, there is no way of knowing what that sentence was ‘based on.’”

Justice Sotomayor took a middle position, largely agreeing with the dissent that a court’s sentence in Rule 11(C) cases is based on the agreement, rather than the guidelines.

But because she concluded that the basis for the agreement in Freeman’s could be tied to the guidelines, Sotomayor concurred instead.

The plurality opinion rejected Justice Sotomayor’s approach for both statutory and policy reasons.

The opinion concluded, “The statute … calls for an inquiry into the reasons for a judge’s sentence, not the reasons that motivate or informed the parties. … By allowing modification only when the terms of the agreement contemplate it, the proposed rule would permit the very disparities the Sentencing Reform Act seeks to eliminate.”


In her concurrence, Sotomayor states that her approach is consistent with 7th Circuit precedent.

Footnote 3 of the concurrence says, “The majority of the Courts of Appeals to have addressed this question have taken approaches consistent with the one I take today. See … United States v. Ray, 598 F.3d 407, 409-410(CA7 2010).”

Nevertheless, the opinion could make it easier for defendants to obtain sentence reduction.

The facts in Ray differed from Freeman in one respect: “The agreement did not state that the specified sentence was based upon the guidelines.” Ray, 598 F.3d at 408.

But they were similar in one respect: “nor did it elucidate how the parties arrived at the 263-month figure.” Id.

In Ray, the 7th Circuit held that a sentence could be reduced only if “the plea agreement clearly reflects an intent to tie the sentence to the Guidelines so that, if the Guidelines are subjected adjusted, the sentence should be similarly adjusted (emphasis added by court).” Id., at 409.

Under the standard in Ray, Freeman might likely not have qualified for a reduction.

In contrast to Ray, Freeman’s plea agreement did contain a boilerplate statement that the agreed-upon sentence was based on the guidelines.

However, while the basis for Freeman’s sentence would be obvious to anyone familiar with the guidelines, as Sotomayor found, the plea agreement did “elucidate” how it was set.

Thus, if Freeman’s case were to have been decided under the 7th Circuit’s precedent in Ray, he likely would have failed for failure to show a clear intent that, if the Guidelines are later adjusted, the sentence should be adjusted, too.

As a result, while the Sotomayor concurrence purports to be consistent with 7th Circuit precedent, in practice, it should make it easier for defendants here to obtain reductions.

Fortunately for defendants in Wisconsin, plea agreements in Rule 11(c)(1)(C) cases are much more similar to Freeman’s than to Ray’s.

According to U.S. Attorney James Santelle, plea agreements here do contain language that they are based on the guidelines, and do explain how the agreed-upon term was reached, with references to specific guideline provisions.

What the Court Held

Case: Freeman v. U.S., No. 09-10245

Issue: Can a defendant who enters a plea agreement pursuant to Rule 11(c)(1)(C) obtain a sentence reduction if the sentencing guidelines are later reduced?

Holding: Yes. But only if it can be determined that the prison term was “based on” a guidelines sentencing range.

David Ziemer can be reached at

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