United States District Court, D. Maryland
Banks, pro se, has filed a Motion to Reduce Sentence
(ECF No. 473) pursuant to 18 U.S.C. § 3582(c)(2),
relying on Amendment 782 to U.S. Sentencing Guideline, which
the Government opposes. For the reasons that follow, the
Court will DENY the Motion.
August 15, 2013, Banks entered into a Plea Agreement pursuant
to Federal Rule of Criminal Procedure 11(c)(1)(C), pleading
guilty to conspiracy to possess with the intent to distribute
500 grams or more of a mixture or substance containing a
detectable amount of cocaine, in violation of 21 U.S.C.
§ 846. Plea Agreement ¶ 1, ECF No. 363. In the Plea
Agreement, Banks and the Government "'stipulate[d]
and agree[d] pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C) that a sentence of 96 months is the appropriate
disposition of this case." Id. ¶ 10. The
Plea Agreement did not include the advisory guideline range
for Banks. Id. ¶¶ 6-9. Banks'
presentence investigative report states, "[t]here is a
written Plea Agreement in this case, pursuant to Federal Rule
of Criminal Procedures Rulel 1(c)(1)(C)" and "[t]he
parties have agreed that a sentence of 96 months is the
appropriate disposition in this case." ECF No. 380,
October 17, 2013, Banks appeared before Judge Alexander
Williams Jr. for sentencing. ECF No. 382. At the hearing.
Judge Williams accepted Banks' Rule 11(c)(1)(C) Plea
Agreement stating, "I will now give you the 96 months
that you bargained for . . . under the (1 l)(c) plea."
Id. Accordingly, the Court sentenced Banks to 96
months imprisonment (i.e., as it was bound to do after
accepting the Rule 11(c)(1)(C) Plea Agreement). Id.;
Judgment and Commitment Order 2, ECF No. 383. The Court also
imposed a four year term of supervised release and a $100
special assessment. Judgment and Commitment Order 3. 5. The
Court further clarified that Banks was sentenced to a term
outside (below) the advisory guideline range as a result of
the binding Plea Agreement. See Statement of Reasons
2-3, ECF No. 384.
October 10, 2015, Banks filed apro se Motion to
Reduce Sentence under 18 U.S.C. § 3582(c) pursuant to
Amendment 782 of the Sentencing Guidelines. ECF No. 473. The
Government opposes the Motion, asserting that Banks is not
eligible for a sentence reduction because his Rule
11(c)(1)(C) plea was not based upon a specified drug quantity
Guidelines range. ECF No. 513.
18 U.S.C. § 3582(c), "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'' may file a motion asking the Court to
reduce his or her sentence. The Court may reduce the
defendant's term of imprisonment "after considering
the factors set forth in [18 U.S.C. § 3582(a)] to the
extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the
Sentencing Commission." 18 U.S.C. § 3582(c)(2).
Amendment 782 of the United States Sentencing Guidelines,
which became effective November 1, 2014, reduced the base
offense levels in the Advisory Guidelines under § 2D1.1
for cocaine base offenses by 2 levels. The Sentencing
Commission provided that Amendment 782 would apply
retroactively. U.S.S.G. §§ IB 1.10(d), (e)(1).
criminal defendant convicted of a cocaine-related offense is
not always eligible for retroactive reduction of his sentence
under 18 U.S.C. § 3582(c) and U.S.S.G. Amendment 782. In
Freeman v. United States, 564 U.S. 522 (2011), the
Supreme Court addressed whether a defendant convicted of
cocaine-related offense and sentenced pursuant to a Federal
Rule of Criminal Procedure 11(c)(1)(C) plea
agreement is eligible for § 3582(c) relief.
According to Justice Sotomayor's concurring opinion in
Freeman - the Supreme Court's holding in the
fragmented, plurality decision, see United States v.
Brown, 653 F.3d 337. 340 (4th Cir. 2011) -when a
defendant pleads guilty pursuant to a Rule 11(c)(1)(C) plea
agreement, his or her eligibility for § 3582(c) relief
is contingent upon the role of the defendant's advisory
Guidelines range in the agreement. Freeman, 564 U.S.
537-41 (Sotomayor, J., concurring). As Justice Sotomayor
reasoned, a sentenced imposed pursuant to a Rule 11(c)(1)(C)
plea is based on the agreement itself, not the sentencing
judge's independent calculation of the Sentencing
Guidelines range. Id. at 535-36. For that reason,
the stipulated sentence in a Rule 11(c)(1)(C) agreement would
not ordinarily be eligible for reduction pursuant to 18
U.S.C. § 3582(c). See Id. at 534-38; see
also Brown, 653 F.3d at 339 ("Justice Sotomayor
agreed with the dissent that a sentenced imposed pursuant to
a Rule 11(c)(1)(C) plea is based on the agreement and,
therefore, § 3582(c) relief is usually not
a defendant sentenced under a Rule 11(c)(1)(C) agreement is
not categorically barred from § 3582(c) relief. Rather,
as Justice Sotomayor explained, that defendant can
demonstrate that his or her sentence was "based on"
a Guidelines range - and thus that he or she is eligible for
§ 3582(c) relief- if either of the following exceptions
applies: (1) the plea agreement "call[s] for the
defendant to be sentenced within a particular Guidelines
sentencing range, " or (2) the 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 sentence range applicable to the offense" of
conviction, provided that "the sentencing range is
evident from the agreement itself." Freeman,
564 U.S. at 538-39 (Sotomayor, J., concurring); see also
United States v. Frazier, 531 Fed.App'x 308, 309-10
(4th Cir. 2013) (delineating the two exceptions to
Sotomayor's general rule that an 11(c)(1)(C) plea is not
eligible for § 3582(c)(2) reduction).
inquiry into whether one of these two exceptions applies must
look to the language of the plea agreement itself.
Accordingly, the analysis should not be based on the
sentencing judge's decision about whether to adopt the
agreement in reference to the Guidelines range. See
Freeman, 564 U.S. at 536. (Sotomayor, J., concurring)
(noting that the "term of imprisonment imposed by the
sentencing judge [in a Rule 11(c)(1)(C) plea] is dictated by
the terms of the agreement entered into by the parties, not
the judge's Guideline calculation"); see also
Brown, 653 F.3d at 340 ("The fact that the district
court consulted the Guidelines in establishing [the
defendant's] sentence is irrelevant."). Nor should
it be based on the "background negotiations" that
may or may not have used a defendant's advisory
Guidelines as a point of reference. Freeman, 564
U.S. at 537-38 (Sotomayor, J., concurring) ("[T]he mere
fact that the parties to a [Rule ] 1(c)(1)(C)] agreement may
have considered the Guidelines in the course of their
negotiations does not empower the court under §
3582(c)(2) to reduce the term of imprisonment they ultimately
asserts that he is eligible for § 3582(c) relief because
the '"drugs minus two' provision of the
[U.S.S.G.] . . . was recently made retroactive and now
applies to [his] sentence." Def.'s Mot. Reduce
Sentence, ECF No. 473. The Government, however, argues that
Banks is not eligible for any sentence reduction. According
to the Government, Banks' Rule 11(c)(1)(C) Plea Agreement
stipulated a specific term of confinement of 96 months which
was not based on a specified drug quantity range. Gov't
Resp. Opp'n 2-3, ECF No. 513.
Court agrees with the Government.
Freeman, as explained above, a defendant who pleads
guilty under a Rule 11(c)(1)(C) plea agreement, like Banks,
is not ordinarily eligible for § 3582(c) relief unless
the stipulated sentence falls within one of two narrowly
defined exceptions: (1) the plea agreement itself calls for
the defendant to be sentenced within a particular Guidelines
range, or (2) the plea agreement makes clear that the basis
for the specified term is a Guidelines range. See
Freeman, 564 U.S. at 538-39 (Sotomayor, J., concurring).