08-4925-cr
USA v. Kornegay

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders
filed after January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and
Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a
summary order, in each paragraph in which a citation appears, at least one citation must either
be to the Federal Appendix or be accompanied by the notation: “(summary order).” A party
citing a summary order must serve a copy of that summary order together with the paper in
which the summary order is cited on any party not represented by counsel unless the summary
order is available in an electronic database which is publicly accessible without payment of fee
(such as the database available at http://www.ca2.uscourts.gov/). If no copy is served by
reason of the availability of the order on such a database, the citation must include reference
to that database and the docket number of the case in which the order was entered.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the twenty-first day of December, two thousand and nine.

PRESENT:

          GUIDO CALABRESI,
          JOSÉ A. CABRANES,
          BARRINGTON D. PARKER,
                 Circuit Judges.

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UNITED STATES OF AMERICA ,

                               Appellee,

          v.                                                                               No. 08-4925-cr

COREY KORNEGAY ,

                               Defendant-Appellant.

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FOR APPELLANT:                                       Michael L. Desautels, Office of the Federal Public Defender,
                                                     District of Vermont, Burlington, VT.

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FOR APPELLEE:                            Paul J. Van de Graaf, Acting United States Attorney, and
                                         Gregory L. Waples and William B. Darrow, Assistant United
                                         States Attorneys, United States Attorney’s Office, District of
                                         Vermont, Burlington, VT.

      Appeal from a September 25, 2008 order of the United States District Court for the District of
Vermont (J. Garvan Murtha, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.

        Appellant Corey Kornegay entered into a so-called “binding” plea agreement with the United
States under Federal Rule of Criminal Procedure 11(c)(1)(C) and, in accordance with that agreement,
pleaded guilty in the District Court to crimes relating to the distribution of crack cocaine. The District
Court accepted the Rule 11(c)(1)(C) agreement and adhered to the terms of the agreement when
calculating appellant’s Guidelines sentencing range. See generally United States v. Cunavelis, 969 F.2d 1419,
1422-23 (2d Cir. 1992). The District Court calculated a Guidelines range of 78-97 months and
imposed, principally, two concurrent 84-month sentences. Appellant did not appeal his sentence.

         Following appellant’s conviction, the United States Sentencing Commission instituted a two-
level, retroactive reduction to the Guidelines offense level for crimes relating to crack cocaine. See
United States v. Main, 579 F.3d 200, 202 (2009). Appellant then moved in the District Court for a
reduction of his sentence under 18 U.S.C. § 3582(c)(2), which provides that a court may modify a term
of imprisonment “in the case of 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.” The
District Court denied appellant’s motion.

       On appeal, appellant claims that the District Court erred by declining to reduce his sentence
under 18 U.S.C. § 3582(c)(2). We disagree and affirm the District Court’s order.

        The transcript of appellant’s sentencing hearing shows that the District Court calculated
appellant’s Guidelines range not by undertaking an independent analysis under the Guidelines but by
adhering strictly to the terms of the Rule 11(c)(1)(C) plea agreement. For example, the District Court
accepted the plea agreement’s stipulation that appellant had trafficked 50-150 grams of crack cocaine,
even though the Presentence Report indicated that appellant’s crimes likely involved at least double
that amount. The District Court also applied a substantial assistance reduction and a role reduction
exactly as provided in the plea agreement. Appellant’s sentence, therefore, was “‘based on’ his Rule
11(c)(1)(C) agreement with the government, and not a sentencing range that the Sentencing
Commission subsequently lowered.” Main, 579 F.3d at 203. As a result, “the district court was without
authority to reduce the sentence pursuant to 18 U.S.C. § 3582(c)(2).” Id.


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         That conclusion results naturally from our recent decision in Main, and it is also consistent with
the precedent of the overwhelming majority of our sister circuits. See United States v. Sanchez, 562 F.3d
275, 279-82 (3d Cir. 2009) (holding that a defendant sentenced pursuant to a Rule 11(c)(1)(C) plea
agreement was “ineligible” for § 3582(c)(2) relief); United States v. Scurlark, 560 F.3d 839, 842 (8th Cir.
2009) (holding that where a Rule 11(c)(1)(C) plea agreement “stipulated to a sentencing range,”
§ 3582(c)(2) was “inapplicable” because the sentence was “based on the agreement and not a
sentencing range that ha[d] subsequently been lowered by the Sentencing Commission” (internal
quotation marks omitted) (alteration in original); United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir.
2005) (“A sentence imposed under a Rule 11(c)(1)(C) arises directly from the agreement itself, not from
the Guidelines . . . .”); United States v. Peveler, 359 F.3d 369, 379 (6th Cir. 2004) (“[A]bsent an agreement
of the parties, the plain language of . . . Rule 11(c)(1)(C) generally precludes the district court from
altering the parties’ agreed sentence under § 3582(c).”); United States v. Trujeque, 100 F.3d 869, 871 (10th
Cir. 1996) (denying a motion under § 3582(c)(2) where a sentence was “based on a valid Rule
11(e)(1)(C) plea agreement” and thus “not based on a sentencing range that has subsequently been
lowered by the Sentencing Commission” (internal quotation marks omitted)); see also Main, 579 F.3d at
203-04 (noting that a panel of the Fourth Circuit in United States v. Dews, 551 F.3d 204, 208-12 (4th Cir.
2008), reached a contrary result but the panel’s opinion was vacated when the Fourth Circuit granted
rehearing en banc and subsequently dismissed the appeal as moot). But see United States v. Cobb, 584 F.3d
979 (10th Cir. 2009) (distinguishing the Tenth Circuit’s prior opinion in Trujeque—as well as five non-
precedential Tenth Circuit opinions that relied on it—and holding, over a dissent, that “nothing in the
language of § 3582(c)(2) or in the language of Rule 11 precludes a defendant who pleads guilty under
Rule 11 from later benefitting from a favorable retroactive guideline amendment”).

                                             CONCLUSION

     For the foregoing reasons, the September 25, 2008 judgment of the District Court is
AFFIRMED.


                                                FOR THE COURT,

                                                Catherine O’Hagan Wolfe, Clerk of Court



                                                By _______________________________




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