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No. 09-98

 

In the Supreme Court of the United States

WILMER LEE SCURLARK, AKA BONAY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
LANNY A. BREUER
Assistant Attorney General
RICHARD A. FRIEDMAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether a district court, pursuant to 18 U.S.C. 3582(c)(2), may reduce a sentence based on a binding agreement between the government and the defendant under Fed. R. Crim. P. 11(c)(1)(C) that a specific sen tence or range constitutes the appropriate disposition, when the Sentencing Commission has subsequently re duced the Guidelines range specified in the agreement.

In the Supreme Court of the United States

No. 09-98

WILMER LEE SCURLARK, AKA BONAY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-7a) is reported at 560 F.3d 839. The order of the district court (Pet. App. 8a-10a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on March 26, 2009. On June 11, 2009, Justice Alito ex tended the time within which to file a petition for a writ of certiorari to and including July 24, 2009, and the peti tion was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a guilty plea in the United States District Court for the District of Minnesota, petitioner was con victed of possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C). The district court sentenced him, pursuant to a sentenc ing agreement under Fed. R. Crim. P. 11(c)(1)(C), to 100 months of imprisonment. The district court denied peti tioner's subsequent motion to reduce the sentence pur suant to 18 U.S.C. 3582(c)(2). The court of appeals af firmed. Pet. App. 1a-7a.

1. In 1994, petitioner was arrested and charged with possession with intent to distribute 218 grams of crack cocaine. He absconded and was a fugitive until 2006. Pet. App. 6a. In 2006, after petitioner was apprehended, he was charged by superseding indictment with at tempted distribution of crack cocaine (21 U.S.C. 841(a)(1)), possession with intent to distribute crack co caine (ibid.), and failure to appear (18 U.S.C. 3146(a)(1)). Pet. App. 1a.

Petitioner and the government entered into a plea agreement. Petitioner agreed to plead guilty to posses sion with intent to distribute crack cocaine, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C). In exchange, the government agreed to dismiss the other counts of the indictment, forgo seeking sentencing enhancements, and recommend a 40% downward variance. Pet. App. 1a-2a. The parties also agreed that the ten-year mandatory minimum sentence prescribed by 21 U.S.C. 841(b)(1) would not apply. Pet. App. 12a. Pursuant to Fed. R. Crim. P. 11(c)(1)(C),1 the parties agreed to a sentencing range (before application of the downward variance) of 151 to 188 months of imprisonment, agreeing that peti tioner's offense level (after adjustments) was 33 and that he had a Category II criminal history. Pet. App. 2a.

The district court accepted petitioner's guilty plea and the plea agreement. The court then applied the gov ernment's recommended 40% downward variance to the agreed-upon sentencing range, which yielded a sentenc ing range of 91 to 113 months of imprisonment. The court sentenced petitioner within that range to 100 months of imprisonment. Pet. App. 2a.

2. a. In 2008, petitioner moved for a sentence reduc tion pursuant to 18 U.S.C. 3582(c)(2). That statute pro vides that a district court

may not modify a term of imprisonment once it has been imposed except that * * * (2) in the case of a defendant who has been sentenced to a term of im prisonment based on a sentencing range that has subsequently been lowered by the Sentencing Com mission * * * the court may reduce the term of im prisonment, after considering the factors set forth in [18 U.S.C.] 3553(a) to the extent that they are appli cable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commis sion.

18 U.S.C. 3582(c)(2). Petitioner argued that he was enti tled to the benefit of the crack-cocaine amendments to the Sentencing Guidelines, which retroactively reduced the base offense level for crack-cocaine offenses by two levels. See Pet. App. 2a; Sentencing Guidelines App. C, Amend. 706, _ 1B1.10(c).

The district court denied petitioner's motion. The court ruled that it lacked authority to make a sentencing reduction under Section 3582(c)(2) because petition er had been sentenced pursuant to a binding Rule 11(c)(1)(C) plea agreement. Pet. App. 8a-10a.

b. The court of appeals affirmed. Pet. App. 1a-7a.

The court explained that the parties had stipulated to a sentencing range in their plea agreement and had agreed to be bound by the terms of Rule 11(c)(1)(C). Once the district court accepted that agreement, the court of appeals reasoned, Rule 11(c)(1)(C) required the court to sentence petitioner pursuant to the terms of the parties' agreement, and "§ 3582(c)(2) became inap plicable because [petitioner's] sentence was based on the agreement and not 'a sentencing range that ha[d] subsequently been lowered by the Sentencing Commis sion.'" Pet. App. 5a (quoting 18 U.S.C. 3582(c)(2)).

The court of appeals further noted that the "circum stances surrounding this Rule 11(c)(1)(C) plea agree ment demonstrate the contractual nature of the agree ment and the fact that the sentence was not based on a sentencing range that was subsequently lowered." Pet. App. 6a. The court pointed to the various ways in which the parties arranged to reach a lower sentencing range than otherwise would have applied under the Guidelines, including dismissal of the count that carried a manda tory ten-year minimum sentence, the 40% downward variance, the acceptance of responsibility credit (despite an obstruction-of-justice enhancement), and other favor able Guidelines computations. Ibid.

The court of appeals also rejected petitioner's argu ment that his sentence must have been based on the Guidelines on the ground that the plea agreement speci fied a sentencing range rather than a particular sen tence, because "Rule 11(c)(1)(C) itself provides that par ties may agree to 'a specific sentence or sentencing range' and states that courts are bound by those agree ments regardless." Pet. App. 6a (quoting Fed. R. Crim. P. 11(c)(1)(C)).

ARGUMENT

Petitioner contends (Pet. 10-25) that the court of ap peals erred in holding that 18 U.S.C. 3582(c)(2) did not permit the district court in this case to reduce a sen tence imposed pursuant to a Rule 11(c)(1)(C) plea agree ment. The decision below is correct, and does not con flict with any decision of this Court or another court of appeals. Further review is therefore unwarranted.

1. The court of appeals correctly determined that 18 U.S.C. 3582(c)(2) does not apply when a defendant has been sentenced pursuant to a plea agreement under Fed. R. Crim. P. 11(c)(1)(C). Section 3582(c) sets forth the basic rule that a district "court may not modify a term of imprisonment once it has been imposed" and then specifies limited exceptions, including "in the case of a defendant who has been sentenced to a term of im prisonment based on a sentencing range that has subse quently been lowered by the Sentencing Commission * * * if such a reduction is consistent with applicable policy statements issued by the Sentencing Commis sion." 18 U.S.C. 3582(c)(2).

Under Rule 11(c)(1)(C), a defendant and the govern ment may agree in a plea agreement "that a specific sen tence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentenc ing Guidelines, or policy statement, or sentencing fac tor does or does not apply." The provision further pro vides that "such a recommendation or request binds the court once the court accepts the plea agreement." Fed. R. Crim. P. 11(c)(1)(C). Rule 11(c)(4) provides that, "[i]f the court accepts the plea agreement * * * the agreed disposition will be included in the judgment." Fed. R. Crim. P. 11(c)(4). The district court thus has no authority to modify the sentencing agreement of the parties once it accepts the plea agreement. See Fed. R. Crim. P. 11(c)(1)(C), (c)(3)(A), and (c)(4); see, e.g., United States v. Pacheco-Navarette, 432 F.3d 967, 971 (9th Cir. 2005) ("[T]he district court is not permitted to deviate from * * * sentences stipulated in [Rule 11(c)(1)(C)] agreements."), cert. denied, 549 U.S. 892 (2006).

Accordingly, in the Rule 11(c)(1)(C) context, the dis trict court imposes a sentence "based on" the agreement of the parties, regardless whether that sentence corre lates to the Sentencing Guidelines range. Although the court might consider the applicable Guidelines range in determining whether to accept the plea agreement, see Sentencing Guidelines _ 6B1.2(c), that does not mean that the defendant is sentenced "based on" the Guide lines range. See, e.g., United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005) ("A sentence imposed un der a Rule 11(c)(1)(C) plea arises directly from the agreement itself, not from the Guidelines, even though the court can and should consult the Guidelines in decid ing whether to accept the plea."), cert. denied, 546 U.S. 1097 (2006). The court may choose to accept a sentence or range specified by the parties' agreement and thereby become bound under the terms of the agree ment and Rule 11(c)(1)(C), even if the sentence or range diverges from the Guidelines range. Even where the parties refer to a Guidelines range, as in this case (Pet. App. 6a), they often will negotiate factors relevant to determining that range in order to effectuate a particu lar sentence length. The parties' agreement as to that sentence or range, once accepted, becomes the control ling basis for the court's sentencing decision. The court of appeals therefore was correct to determine that the condition precedent to a Section 3582(c)(2) adjust ment-that the sentence be "based on" a Guidelines range (18 U.S.C. 3582(c)(2))-was not satisfied in this case, where the sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement.

That conclusion is supported by the purpose of Sec tion 3582(c)(2) and Guidelines _ 1B1.10 (the pertinent policy statement). Under those provisions, a court is given discretion to lower a sentence to take into account that a range used in formulating the original sentence was reduced. But the exercise of that discretion would be inconsistent with the effect of Rule 11(c)(1)(C), which eliminates the court's sentencing discretion (except to the extent expressly conferred by the parties) once it accepts a plea agreement. The government will often give up the right to seek a higher sentence in exchange for the certainty of obtaining a specific sentence. The contractual bargain, which became binding on the court after acceptance of the Rule 11(c)(1)(C) agreement, would be negated if Section 3582(c) were interpreted to grant the court discretion to lower the agreed-upon sen tence in light of developments not reflected in the par ties' agreement.

2. Petitioner argues (Pet. 15-16) that the decision of the court of appeals conflicts with Gall v. United States, 128 S. Ct. 586 (2007). Specifically, petitioner contends that, "[u]nder Gall, all sentences must be 'based on' the Guidelines." Pet. 16. That contention lacks merit. In Gall, this Court held generally that, "while the extent of the difference between a particular sentence and the recommended Guidelines range is surely relevant, courts of appeals must review all sentences-whether inside, just outside, or significantly outside the Guide lines range-under a deferential abuse-of-discretion standard." 128 S. Ct. at 591. Gall did not involve a Rule 11(c)(1)(C) plea agreement (see 128 S. Ct. at 592-593) or 18 U.S.C. 3582(c). Accordingly, the Court had no occa sion to address (even tangentially) the issue in this case.

3. Petitioner alleges (Pet. 11-15) a conflict among the courts of appeals on the question presented. There is no conflict.

All the courts of appeals to have considered the issue have agreed that Section 3582(c)(2) does not permit a district court to reduce a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement. See United States v. Main, 579 F.3d 200, 203-204 (2d. Cir. 2009); United States v. Sanchez, 562 F.3d 275, 279-282 (3d Cir. 2009), petition for cert. pending, No. 09-6659 (filed Sept. 23, 2009); United States v. Peveler, 359 F.3d 369, 378-379 (6th Cir.), cert. denied, 542 U.S. 911 (2004); United States v. Brown, 71 Fed. Appx. 383, 384 (5th Cir. 2003) (unpublished); United States v. McKenna, No. 97-30173, 1998 WL 30793, at *1 (9th Cir. Jan. 16, 1998) (unpub lished); United States v. Hemminger, No. 96-2081, 1997 WL 235838, at *1 (7th Cir. May 2, 1997) (unpublished); United States v. Trujeque, 100 F.3d 869, 870-871 (10th Cir. 1996).2

Petitioner erroneously asserts (Pet. 12-14) that the decision in this case conflicts with the Third Circuit's decision in Sanchez, supra. In Sanchez, the defendant was sentenced to 120 months of imprisonment for con spiracy to distribute crack cocaine pursuant to a Rule 11(e)(1)(C) (now Rule 11(c)(1)(C)) plea agreement. 562 F.3d at 277. (The Presentencing Report (PSR) had cal culated a Guidelines range of 121 to 151 months of im prisonment. Ibid.) Notwithstanding a subsequent two- level reduction in offense level in light of the same Guidelines amendment at issue in this case, the court of appeals affirmed the district court's denial of a motion to reduce the sentence. The court of appeals reasoned that the defendant's "sentence was the result of a bind ing plea agreement and is therefore not subject to re duction under 18 U.S.C. _ 3582(c)(2). * * * If 'binding' is to have meaning, it cannot be undone by the discre tionary possibility of a different sentence under § 3582(c)(2)." Sanchez, 562 F.3d at 279, 282. That hold ing is completely consistent with the decision of the court of appeals in the instant case.

Petitioner argues that the Third Circuit in Sanchez adopted "a case-by-case approach" such that a district court's authority under Section 3582(c)(2) turns on whe ther it "considered the Guidelines in accepting the plea." Pet. 12-13 (citing Sanchez, 562 F.3d at 282 & n.8). But, as the text of the decision makes clear, the Third Cir cuit's approach is decidedly categorical when a Rule 11(c)(1)(C) plea is involved:

While it is true that all plea agreements are binding on the parties, only those entered pursuant to what is now Rule 11(c)(1)(C) are binding on the sentencing court. That distinction is significant in the _ 3582(c) context, which obliges us to ask what the sentence is 'based on.' Where, as here, the District Court ac cepted a so-called "C" plea, the answer is simple: the sentence is based on the terms expressly agreed on by the defendant and the government. That is what the Rule itself demands.

Sanchez, 562 F.3d at 282 n.8. In any event, petitioner does not and cannot dispute that Sanchez, like the deci sion below and every other court of appeals' decision to have addressed the issue, denied a sentence reduction under Section 3582(c).

Petitioner also erroneously asserts (Pet. 14-15) that the decision in this case conflicts with the Sixth Circuit's decision in Peveler, supra. In Peveler, the defendant and the government entered into a Rule 11(e)(1)(C) (now Rule 11(c)(1)(C)) agreement that specified the applicable offense level (like in this case) and required the govern ment to recommend a sentence at the low end of the Guidelines range. 359 F.3d at 372-373. The district court accepted that agreement and sentenced the defen dant accordingly. Id. at 373. Based on a subsequent amendment to the Guidelines that reduced the relevant range, the defendant invoked Section 3582(c)(2) and asked the district court to reduce the sentence. The court of appeals held that the district court lacked the authority to do so, agreeing with the reasoning of the Tenth Circuit in Trujeque, supra, and the Seventh Cir cuit in Hemminger, supra-substantially similar to the Eighth Circuit's reasoning below. Peveler, 359 F.3d at 377-379. Notably, the Sixth Circuit added that "[t]he fact that the parties in this case specified an offense level under the sentencing guidelines rather than a fixed period of imprisonment * * * is a distinction without a difference in terms of the court lacking power to amend the plea agreement." Id. at 378.

Petitioner nevertheless relies (Pet. 14) on a summary sentence in Peveler in which the Sixth Circuit stated that "absent an agreement of the parties, the plain lan guage of * * * Rule 11(c)(1)(C), generally precludes the district court from altering the parties' agreed sen tence under 18 U.S.C. _ 3582([c])." 359 F.3d at 379. The court did not indicate what kind of "agreement of the parties" might circumvent the binding nature of a Rule 11(c)(1)(C) sentence or provide any other elaboration. In any event, no such agreement existed in Peveler nor exists in this case, and petitioner does not suggest other wise. Accordingly, that dictum is not implicated here.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
LANNY A. BREUER
Assistant Attorney General
RICHARD A. FRIEDMAN
Attorney

 

OCTOBER 2009

1 Rule 11(c)(1)(C) (slightly modified from former Rule 11(e)(1)(C) (2001)) permits the government in a plea agreement to "agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement)." Fed. R. Crim. P. 11(c)(1)(C).

2 A panel of the Fourth Circuit had reached a different conclusion, but the panel opinion was vacated when the Fourth Circuit granted re hearing en banc, and the case subsequently was dismissed for moot ness. United States v. Dews, 551 F.3d 204 (4th Cir. 2008), vacated on grant of reh'g en banc, No. 08-6458 (4th Cir. Feb. 20, 2009), dismissed as moot (4th Cir. May 4, 2009).