15-3097-cr
United States v. Gonzalez


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

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

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 23rd day of February, two thousand seventeen.

PRESENT: REENA RAGGI,
                 RAYMOND J. LOHIER, JR.
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                            v.                                             No. 15-3097-cr

FRANCISCO GONZALEZ,
                                 Defendant-Appellant.
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FOR APPELLANT:                                    Francisco Gonzalez,    pro   se,   Lewisburg,
                                                  Pennsylvania.

FOR APPELLEE:                                    Monica J. Richards, Assistant United States
                                                 Attorney, for James P. Kennedy, Jr., Acting
                                                 United States Attorney for the Western District
                                                 of New York, Buffalo, New York.

          Appeal from a final order of the United States District Court for the Western

District of New York (Charles J. Siragusa, Judge).



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      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the final order entered on September 14, 2015, is VACATED, and

the case is REMANDED for further proceedings.

      Defendant Francisco Gonzalez is presently serving a 101-month prison sentence

imposed after he pleaded guilty to cocaine and firearms crimes pursuant to Fed. R. Crim.

P. 11(c)(1)(C). See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1). He here appeals,

pro se, from the denial of a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and

U.S.S.G. Amendment 782 on the ground that he was ineligible. We review de novo a

defendant’s ineligibility for a § 3582(c)(2) sentence reduction. See United States v.

Leonard, 844 F.3d 102, 106–07 (2d Cir. 2016). In so doing, we assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to vacate and remand.

      A convicted defendant is eligible for a sentence reduction if (1) he “has been

sentenced to a term of imprisonment based on a sentencing range that has subsequently

been lowered,” and (2) “such a reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The pertinent policy

statement conditions reduction eligibility on “the guideline range applicable to that

defendant ha[ving] subsequently been lowered as a result of an amendment to the

Guidelines Manual listed in subsection (d).” U.S.S.G. § 1B1.10(a)(1). Thus, to be

eligible for a sentence reduction, “(1) the original sentence must have been ‘based on’ the

Sentencing Guidelines, and (2) the amendment must have lowered the Guidelines range



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‘applicable to’ the defendant at the time of the original sentencing.” United States v.

Leonard, 844 F.3d at 107.

1.     “Based On”

       Although Gonzalez was sentenced above the 78-to-97-month Guidelines range

calculated by the district court (and the 63-to-78-month range referenced in his

11(c)(1)(C) agreement), we conclude for the reasons stated in United States v. Leonard,

844 F.3d at 107–12, that his 101-month sentence was “based on” the Guidelines as that

requirement was construed by justices in the majority in Freeman v. United States, 564

U.S. 522 (2011).

       The Freeman plurality held that, where a district court accepts an 11(c)(1)(C)

agreement, “§ 3582(c)(2) modification proceedings should be available to permit the

district court to revisit a prior sentence to whatever extent the sentencing range in

question was a relevant part of the analytic framework the judge used to . . . approve the

agreement.”    Freeman v. United States, 564 U.S. at 530.         “[I]f the judge uses the

[calculated] sentencing range as the beginning point to explain the decision to deviate

from it, then the Guidelines are in a real sense a basis for the sentence.” Id. at 529.

       Here, the district court independently calculated Gonzalez’s applicable Guidelines

range before agreeing to the parties’ stipulated sentence of 101 months, explaining that

such an upward departure was “reasonable and understandable” to reflect criminal

“conduct for which [Gonzalez was] not going to be prosecuted.” App’x Sched. D. at 11;

see United States v. Leonard, 844 F.3d at 109–10 (stating that Freeman plurality

“appear[ed] to recognize the possibility that a sentence can be ‘based on’ the Guidelines

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even if departing or varying from the applicable Guidelines range”). In sum, it was only

after explicitly considering the applicable Guidelines range in conjunction with the 18

U.S.C. § 3553(a) factors that the district court imposed the agreed-upon 11(c)(1)(C)

sentence. On this record, we conclude that, under the Freeman plurality’s rationale for

decision, Gonzalez’s sentence was “based on” the Guidelines. See Freeman v. United

States, 564 U.S. at 534 (stating that “judge’s decision to accept the [11(c)(1)(C)] plea and

impose the recommended sentence is likely to be based on the Guidelines”).

       The district court’s statement that the difference between its own Guidelines

calculation and that in the plea agreement was “not going to make any difference

whatsoever” warrants no different conclusion. App’x Sched. D. at 10. This statement

can be read simply as an observation that “based on” its Guidelines calculation, it deemed

the agreed-upon sentence an appropriate departure in light of other § 3553(a) factors.

       The Freeman concurrence identifies the parties’ 11(c)(1)(C) agreement, rather

than the district court’s Guidelines calculation, as critical to the “based on” analysis.

See Freeman v. United States, 564 U.S. at 539 (Sotomayor, J., concurring in the

judgment) (stating that defendant is eligible for relief where plea agreement “make[s]

clear that the basis for the specified term is a Guidelines sentencing range applicable to

the offense to which the defendant pleaded guilty”). The concurrence stated that its

reasoning was not limited to sentences within a specified Guidelines range, but also

applied to departures that were determined by reference to the Guidelines. See id. at

543 n.9; United States v. Leonard, 844 F.3d at 110. In Gonzalez’s plea agreement, the

parties detailed a Guidelines calculation for both counts of the information before

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agreeing that “an upward departure and non-Guidelines sentence [of 101 months’

imprisonment] pursuant to Guidelines § 5K2.21 (dismissed and uncharged conduct) is

appropriate.” App’x Sched. C. at 9. This language makes clear that the basis for the

agreed-upon sentence was the identified Guidelines range, with an upward departure

specifically authorized by the Guidelines.

      In urging otherwise, the government suggests that the stipulated above-Guidelines

sentence is based at least in part on its agreement not to file a prior-felony information

pursuant to 21 U.S.C. § 851. While the agreement represents that no such information

will be filed, it makes no mention of that forbearance as a sentencing factor. Only

U.S.S.G. § 5K2.21 is cited to support the departure. We do not understand the Freeman

concurrence to support looking beyond this ground. See Freeman v. United States, 564

U.S. at 538 (Sotomayor, J., concurring in the judgment) (rejecting idea that “§ 3582(c)(2)

calls upon district courts to engage in a free-ranging search through the parties’

negotiating history”).   The government’s separate contention that the agreed-upon

sentence represented a reduction from potential mandatory minimums fails for the same

reason.

      Accordingly, we conclude that Gonzalez’s sentence was “based on” a Guidelines

sentencing range as that requirement has been construed in the Freeman plurality and

concurring opinions.

2.    “Applicable To”

      Where a defendant pleads guilty pursuant to an 11(c)(1)(C) agreement, his

applicable Guidelines range for purposes of determining § 3582(c)(2) eligibility is “that

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determined by the court as set forth in the Guidelines, without regard to the parties’

agreement to a different calculation, and before the exercise of any departure or variance

discretion.”   United States v. Leonard, 844 F.3d at 113.          The district court here

determined that Gonzalez’s applicable Guidelines range was 78 to 97 months’

imprisonment. Amendment 782 lowered that range to 63 to 78 months. See U.S.S.G.,

Supp. to App. C., Amend. 782 (Nov. 2014).

       Because Gonzalez was sentenced to a term of imprisonment based on a

subsequently lowered sentencing range and because the subsequent amendment lowered

his applicable Guidelines range, he is eligible for a sentence reduction under

§ 3582(c)(2). We are, therefore, obliged to vacate the challenged order of denial and to

remand the case. In doing so, however, we note that even if a defendant is eligible for a

sentence reduction, it remains within the discretion of the district court to determine

whether such a reduction is warranted under the circumstances of the case. See Dillon

v. United States, 560 U.S. 817, 826–27 (2010). We take no position as to whether such

a reduction is warranted in this particular case, or, if warranted, the appropriate extent of

a reduction. See id.; United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009).

3.     Conclusion

       We have considered the parties’ remaining arguments and conclude that they are

without merit. Accordingly, the order of the district court is VACATED, and the case is

REMANDED for further proceedings.

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


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