     16-176
     United States v. Areizaga-Rosa


                                           UNITED STATES COURT OF APPEALS
                                              FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

 1   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 2   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
 3   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
 4   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
 5   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
 6   NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
 7   COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 8          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 9   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
10   on the 15th day of February, two thousand seventeen.
11
12   PRESENT:
13              GUIDO CALABRESI,
14              SUSAN L. CARNEY,
15                          Circuit Judges,
16              JOHN G. KOELTL,
17                          District Judge.
18   _________________________________________
19
20   UNITED STATES OF AMERICA,
21
22                       Appellee,
23
24                                    v.                                  No. 16-176
25
26   VICTOR ANGUIERA, AKA PITO, VICTOR MONGE, AKA
27   PEE WEE, BORIS AGUAYO-MATOS, AKA BORI, AKA
28   MIKEY, AKA BORIS, JOSE ALTRECHE, JESUS TRINIDAD-
29   RIVERA, JONATHAN CRUZ-HERNANDEZ, AKA JAYSON
30   RODRIGUEZ-IRIZARRY, RICARDO ORTIZ-ROSA,
31
32                       Defendants,
33

     
             Judge John G. Koeltl, of the United States District Court for the Southern District of New
     York, sitting by designation.
 1   NELSON AREIZAGA-ROSA,
 2
 3                 Defendant-Appellant.
 4
 5   _________________________________________
 6
 7   FOR APPELLANT:                                     MARIANNE MARIANO, Federal Public
 8                                                      Defender’s Office for the Western District
 9                                                      of New York, Buffalo, NY.
10
11   FOR APPELLEE:                                      JOSEPH J. KARASZEWSKI, Assistant United
12                                                      States Attorney, for William J. Hochul, Jr.,
13                                                      United States Attorney for the Western
14                                                      District of New York, Buffalo NY.
15
16          Appeal from an order of the United States District Court for the Western District of
17   New York (Skretny, J.).

18          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
19   ADJUDGED, AND DECREED that the District Court’s orders of October 28, 2015, and
20   January 12, 2016, are VACATED and the case is REMANDED for reconsideration.

21          In 2013, Defendant-Appellant Nelson Areizaga-Rosa pleaded guilty pursuant to
22   Federal Rule of Criminal Procedure 11(c)(1)(C) to conspiring to possess with intent to
23   distribute 500 grams or more of cocaine. He was sentenced to 180 months’ imprisonment.
24   Rule 11(c)(1)(C) permits the government and a defendant to “agree that a specific sentence
25   or sentencing range is the appropriate disposition of the case.” Fed. R. Crim. P. 11(c)(1)(C).
26   The rule “binds the court [to the agreed-upon sentence] once [it] accepts the plea
27   agreement.” Id.

28          In 2014, Areizaga-Rosa moved pursuant to 18 U.S.C. § 3582(c)(2) for a sentence
29   reduction with respect to his 2013 sentence in light of Amendment 782 to the United States
30   Sentencing Guidelines (the “Guidelines”), which lowered the Guidelines range applicable to
31   his offense. In October 2015, the District Court denied his motion, and in January 2016, the
32   court denied his further motion for reconsideration. The court found that Areizaga-Rosa
33   was ineligible for a sentence reduction, reasoning that his Rule 11(c)(1)(C) sentence did not
34   satisfy the requirement of § 3582(c)(2) that his sentence have been “based on” the
                                                    2
 1   Guidelines. App. 239 (citing 18 U.S.C. § 3582(c)(2)). Areizaga-Rosa now appeals these
 2   rulings. We assume the parties’ familiarity with the underlying facts and the procedural
 3   history of this case, to which we refer only as necessary to explain our decision.

 4          Section 3582(c)(2) of title 18 allows a district court to reduce the sentence “of a
 5   defendant who has been sentenced to a term of imprisonment based on a sentencing range
 6   that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
 7   In Freeman v. United States, 564 U.S. 522 (2011), the Supreme Court, determined in a split
 8   decision, that at least some sentences imposed under Rule 11(c)(1)(C) agreements are
 9   properly viewed as “based on” the Guidelines and thus are eligible for § 3582(c)(2) sentence
10   reductions. As we recently discussed in United States v. Leonard, 844 F.3d 102 (2d Cir. 2016),
11   however, no single rationale for the holding was adopted by a majority of the Justices. Id. at
12   107–09. In Leonard, we found no need to decide whether the reasoning of either the plurality
13   opinion (written by Justice Kennedy) or concurrence (by Justice Sotomayor) dictated the
14   proper analysis: because the defendant’s sentence in Leonard could be viewed as “‘based on’
15   the Sentencing Guidelines under the reasoning of either the plurality or the concurrence,”
16   his sentence was eligible for a reduction. Id. at 109 (quoting 18 U.S.C. § 3582(c)(2)).

17          We think Areizaga-Rosa’s sentence similarly satisfies the standards set out in both the
18   plurality and concurrence. The Freeman plurality concluded that sentences imposed pursuant
19   to Rule 11(c)(1)(C) are “based on” the Guidelines whenever “the judge uses the sentencing
20   range as the beginning point to explain the [sentence].” 564 U.S. at 529 (plurality opinion).
21   This is surely true here, where the sentencing colloquy reflected that the District Court
22   calculated the Guidelines range and then sentenced Areizaga-Rosa to a term of
23   imprisonment within that range—a term that coincided with the sentence proposed in the
24   plea agreement. The concurrence, in contrast, reasoned that a sentence imposed under Rule
25   11(c)(1)(C) is “based on” the Guidelines so long as the parties’ plea agreement “make[s] clear
26   that the basis for [its] specified term [of imprisonment] is a Guidelines sentencing range
27   applicable to the offense to which the defendant pleaded guilty.” Id. at 539 (Sotomayor, J.,
28   concurring). The District Court here, looking to the concurrence as the controlling, narrower
29   approach, held that Areizaga-Rosa’s plea agreement was insufficiently clear in this regard.
                                                     3
 1   We disagree. Areizaga-Rosa’s plea agreement contained a detailed Guidelines calculation and
 2   proposed a sentence within one of the Guidelines ranges set out in the agreement. The
 3   District Court imposed a sentence within one of those ranges and at the level proposed by
 4   the parties. We think this sentence is also sufficiently “based on” the Guidelines to satisfy
 5   the concurrence’s standard.

 6          The government argues primarily that the plea agreement’s identification of two
 7   different sentencing ranges and its use of the phrase “notwithstanding the above
 8   calculations” before reciting the parties’ agreed upon sentence establishes that the basis for
 9   the agreement’s proposed sentence was not the Guidelines. App. 75–76. We are not
10   persuaded, however, that these features of the agreement are dispositive when weighed
11   against the agreement’s extensive attention to the potentially applicable Guidelines ranges, its
12   careful calculation of those ranges, and its selection of a term of imprisonment within one
13   such range—elements that we find more compelling. In our view, therefore, the sentence is
14   fairly read as “based on” the Guidelines under the concurrence’s analysis as well as the
15   plurality’s. See Freeman, 564 U.S. at 529 (plurality opinion); id. at 539 (Sotomayor, J.,
16   concurring).

17          Because the District Court erred in concluding that Areizaga-Rosa’s Rule 11(c)(1)(C)
18   sentence was ineligible for a reduction under § 3582(c)(2), we vacate the District Court’s
19   orders and remand for reconsideration of Areizaga-Rosa’s motion for such a reduction.

20                                                 * * *

21          For these reasons, the orders of the District Court are VACATED and the case is
22   REMANDED for further proceedings consistent with this order.

23                                                         FOR THE COURT:
24                                                         Catherine O’Hagan Wolfe, Clerk of Court




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