         10-2631-cr
         USA v. Terrance B. White

                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18th day of July, two thousand eleven.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                DEBRA ANN LIVINGSTON,
 8                GERARD E. LYNCH,
 9                         Circuit Judges.
10
11
12
13       UNITED STATES OF AMERICA,
14
15                                     Appellee,
16
17                      -v.-                                                10-2631-cr
18
19       TERRANCE B. WHITE,
20
21                                     Defendant-Appellant.
22
23
24       FOR APPELLEE:                 MONICA J. RICHARDS, Assistant United
25                                     States Attorney, for William J. Hochul,
26                                     Jr., United States Attorney for the
27                                     Western District of New York, Buffalo,
28                                     NY.
29
30       FOR APPELLANT:                MARYBETH COVERT, Federal Public
31                                     Defender’s Office for the Western
32                                     District of New York, Buffalo, NY.
33
1         Appeal from the United States District Court for the
2    Western District of New York (Larimer, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the district court be

6    VACATED AND REMANDED.

7        Appellant Terrance B. White appeals from a judgment of

8    the United States District Court for the Western District of

9    New York (Larimer, J.), which denied his motion for

10   reduction of sentence under 18 U.S.C. § 3582(c)(2) on the

11   ground that White’s sentence was not “based on” the United

12   States Sentencing Guidelines within the meaning of that

13   provision, but rather was an exercise of the district

14   court’s equitable discretion to remedy the violation of

15   White’s Sixth Amendment rights.   We assume the parties’

16   familiarity with the underlying facts and procedural

17   history, which we briefly recount.

18       White was charged in July 2003 on five counts,

19   including several narcotics violations and one count under

20   18 U.S.C. § 924(c) (use or possession of a firearm during a

21   crime of violence or drug trafficking), which carried a

22   mandatory, consecutive five-year sentence.   After White




                                  2
1    rejected an initial plea offer,1 the government filed a

2    superseding indictment containing seven counts, including an

3    additional charge under § 924(c).     Together, the two

4    § 924(c) charges exposed White to a mandatory, consecutive

5    thirty-year sentence (five for the first charge and twenty-

6    five for the second charge) in addition to the exposure from

7    the other charges.   See 18 U.S.C. § 924(c)(1)(C)(i).

8    However, neither White’s counsel nor the government ever

9    informed him of the additional exposure from the second

10   charge.

11        In April 2004, the government extended a final plea

12   offer, under which White would plead guilty to one of the

13   two § 924(c) counts and one narcotics count.      The offer

14   stated that the sentence would be determined pursuant to the

15   Sentencing Guidelines.    It anticipated a guideline range of

16   147 to 168 months, including the mandatory, consecutive 60

17   months for the one § 924(c) count.     Neither White’s counsel

18   nor the government informed him that he risked an additional

19   twenty-five years if convicted on both § 924(c) counts.

20        White rejected this final offer.     At trial, he was


          1
           Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C),
     this initial offer specified an agreed-upon proposed sentence of
     138 months, with a guidelines range of 138 to 157 months.

                                     3
1    convicted on all seven counts in May 2004.   Subsequently, a

2    presentence report was prepared which calculated the

3    aggregate guideline range, including the mandatory, thirty-

4    year consecutive sentence for the two § 924(c) counts, at

5    570 to 622 months.

6        At a status conference in September 2004, Judge Larimer

7    found “serious issues relating to ineffective assistance of

8    counsel.”   He relieved White’s counsel and adjourned

9    sentencing without date.   White subsequently moved for a new

10   trial under Federal Rule of Criminal Procedure 33.      Judge

11   Larimer construed this motion as a habeas corpus petition

12   pursuant to 28 U.S.C. § 2241(c)(3).   In an order of May

13   2005, Judge Larimer found that White’s Sixth Amendment

14   rights had been violated because his attorney had not

15   advised him of the drastic sentencing consequences of

16   conviction on all counts of the superseding indictment.

17   Relying on United States v. Carmichael, 216 F.3d 224, 227

18   (2d Cir. 2000), he determined to fashion an equitable remedy

19   that would as much as possible restore White to the position

20   he would have held had there been no constitutional error.

21       The government proposed that the second § 924(c) count

22   be dismissed, and that the district court sentence White for


                                   4
1    his convictions under the remaining § 924(c) count and the

2    five other charges (in essence correcting the mistake

3    White’s trial counsel made with regard to the second §924

4    count while recognizing the full extent of White’s drug

5    crimes).   White’s new counsel proposed that White be allowed

6    to accept the initial plea offer extended prior to the

7    superseding indictment (in essence going back to the last

8    point at which White’s counsel gave him effective

9    assistance).

10       The district court rejected both suggestions as

11   respectively too harsh and too lenient.     It credited White’s

12   testimony that, had his counsel accurately conveyed the

13   sentencing exposure from the superseding indictment, he

14   would have accepted the final plea offer.     Accordingly, the

15   district court found that the appropriate equitable remedy

16   for the constitutional violation was to sentence White under

17   the terms envisioned by that final offer.     It then did so,

18   dismissing all charges except one narcotics count and one

19   § 924(c) count.   On these two counts, the district court

20   issued a sentence of 168 months (60 months for the

21   mandatory, five-year consecutive sentence under the § 924(c)

22   count and 108 months for the narcotics count envisioned in



                                   5
1    the final offer).     This term of months represents the upper

2    end of the guideline range contemplated in the final offer.

3        On cross-appeals from that judgment, this Court held

4    that White had received ineffective assistance of counsel,

5    and we saw “no abuse of discretion in the district court’s

6    selection of a remedy that is congruent with our precedent.”

7    United States v. White, 257 F. App’x 382, 385 (2d Cir. 2007)

8    (summary order).

9        In November 2007 the United States Sentencing

10   Commission amended the drug quantity table in United States

11   Sentencing Guideline § 2D1.1(c), lowering the offense level

12   for certain crack cocaine offenses.     U.S.S.G. Supp. 2 App.

13   C, Amend. 706.     In December 2007 the Commission voted to

14   make the amendment retroactive, effective March 2008.

15   U.S.S.G. Supp. 2 App. C, Amend. 713.     In June 2008 White

16   moved for resentencing under the revised guidelines pursuant

17   to 18 U.S.C. § 3582(c)(2).     In June 2010 the district court

18   denied White’s motion to reduce his sentence on the ground

19   that he was not eligible under the statute.     White timely

20   appealed the denial.

21       For the following reasons, we reverse the ruling of the

22   district judge, since White’s sentence was indeed “based on”


                                     6
1    the guidelines within the meaning of § 3582(c)(2).    He was

2    therefore eligible for reduction in the district court’s

3    discretion, and the district court erred in holding that he

4    was ineligible.

5        We review de novo as a matter of statutory construction

6    a district court’s determination of whether a sentence was

7    “based on” a sentencing range that has been subsequently

8    lowered by the Sentencing Commission within the meaning of

9    § 3582(c)(2).     United States v. Main, 579 F.3d 200, 202-03

10   (2d Cir. 2009).

11       As in any exercise of statutory construction, we begin

12   with the text of the provision in question.     See, e.g.,

13   Premium Mortg. Corp. v. Equifax, Inc., 583 F.3d 103, 106 (2d

14   Cir. 2009) (per curiam).    Section 3582(c)(2) provides:

15       [I]n the case of a defendant who has been sentenced
16       to a term of imprisonment based on a sentencing
17       range that has subsequently been lowered by the
18       Sentencing Commission . . . upon motion of the
19       defendant . . . the court may reduce the term of
20       imprisonment, after considering the factors set
21       forth in section 3553(a) to the extent that they are
22       applicable, if such a reduction is consistent with
23       applicable   policy   statements   issued   by   the
24       Sentencing Commission.
25
26   18 U.S.C. § 3582(c) (emphasis added).

27       When sentencing White, the district court explicitly

28   looked to the guidelines:

                                     7
 1       [T]o fashion a remedy, the Court is proceeding to
 2       sentence as if Mr. White had taken advantage of the
 3       plea agreement. With that understanding, it seems
 4       appropriate and necessary to consider the guidelines
 5       for   those   two  offenses   and   convictions   as
 6       anticipated by the parties in the plea agreement.
 7         The Court recognizes that it had the ability even
 8       before Booker and Fanfan to depart under the
 9       guidelines, and now the Court post Booker could
10       impose a non-guideline sentence.
11         But I decline to do so. I think the guidelines
12       here under the principles that I’ve attempted to set
13       forth provide a reasonable sentence.
14
15   Sentencing Tr. at 30-31 (emphases added).   However, when

16   White moved for a sentence reduction, the district court

17   rejected the motion, stating:

18       The Court’s original sentence was NOT based on the
19       United States Sentencing Guidelines calculations,
20       and, therefore, defendant is not entitled to a
21       reduction under 18 U.S.C. § 3582(c)(2).        The
22       sentence was imposed as an equitable remedy to
23       rectify   defendant’s   receipt   of   ineffective
24       assistance of counsel concerning the several
25       pretrial plea offers. The sentence was affirmed by
26       the Second Circuit by decision filed December 11,
27       2007. The sentence was many years less than that
28       called for by the United States Sentencing
29       Guidelines after trial.
30

31   Order of June 22, 2010 (emphasis added).

32       The district judge carefully protected White’s right to

33   the effective assistance of counsel by declining to impose

34   the sentence to which he had been exposed by his lawyer’s

35   errors.   Rather than vacating White’s conviction and


                                     8
1    permitting him to plead guilty as contemplated in the

2    government’s plea offer, however, the court undertook to

3    achieve the same result more expeditiously by dismissing

4    some of the counts on which White had been convicted at

5    trial, for the express purpose of placing him in the

6    position he would have been in had he received effective

7    assistance of counsel and accepted the final plea offer.

8        The district court erred in its conclusion that White’s

9    sentence was not “based on” the guidelines.   The equitable

10   remedy fashioned by the court was confined to its dismissal

11   of certain counts against White.   After dismissing these

12   counts, the district court then proceeded to sentence him

13   “based on” the guidelines within the meaning of

14   § 3582(c)(2).   It explicitly found that the guideline range

15   anticipated in the final plea offer was reasonable under a

16   § 3553(a) analysis, and sentenced White to a term of months

17   at the upper end of, but not beyond, that range.   Thus,

18   although the sentence imposed was not within the guideline

19   range for the counts on which White was convicted after

20   trial, the sentence was designed to replicate the sentence

21   that White would have received had he accepted the plea

22   offer, and was derived directly from a calculation of what



                                   9
1    the guideline range would have been in that situation.

2    Under the plain meaning of “based on,” the sentence is

3    eligible for reduction in the judge’s discretion.

4         The recent Supreme Court decision in Freeman v. United

5    States, ___ U.S. ___, 2011 WL 2472797 (June 23, 2011),

6    confirms this conclusion.    Because the holding in Freeman

7    was the product of a split majority, its precise force and

8    scope will require elucidation by future panels.      It is

9    clear from the result, however, that defendants who are

10   sentenced in accordance with recommendations in plea

11   agreements – including even agreements, like the one in

12   Freeman but unlike that proposed in this case,2 that are

13   “binding” agreements under Federal Rule of Criminal

14   Procedure 11(c)(1)(C) – may in some cases be eligible for

15   relief under § 3582(c)(2).    It is further clear from Justice

16   Sotomayor’s controlling concurrence that even a sentence

17   entered pursuant to a binding plea agreement is eligible for

18   such relief where the agreement “expressly uses a Guidelines

19   sentencing range to establish the term of imprisonment.”

20   Id. at *11 (Sotomayor, J., concurring in the judgment).       It


          2
           While the initial plea offer based on the original
     indictment was a “binding” agreement, the final plea offer was
     not.

                                    10
1    follows a fortiori that where a judge imposes a within-

2    guidelines sentence recommended in a non-binding plea

3    agreement such as the one proposed here, that similarly

4    bases its recommendation on a guideline range, the sentence

5    is “based on” the guidelines.        Since the sentence imposed by

6    the district was intended to be the equivalent of the

7    sentence White would have received had he accepted that plea

8    offer, we see no reason to treat this case differently.3

9        In imposing his original sentence, Judge Larimer did an

10   admirable job of protecting White’s Sixth Amendment rights

11   by not allowing his sentence to be aggravated by the defense

12   lawyer’s ineffectiveness and by imposing a sentence in

13   accordance with what may well have been a favorable plea

14   agreement.   It is understandable that the judge, who may

15   well have believed that the sentence imposed was entirely

16   fair to White even after the unfairness of the former crack

17   guidelines had been discounted, may have considered that the

18   sentence was not unduly influenced by those guidelines.        In


         3
           Our decision in United States v. Main does not require a
     different result. Whether or not Main remains good law after
     Freeman – a question we need not and do not address – it is
     distinguishable. In that case, we found the defendant ineligible
     for relief under § 3582(c)(2) where the sentence was imposed
     under a Rule 11(c)(1)(C) agreement and the agreement resulted in
     a sentence below the applicable guideline range. Main, 579 F.3d
     at 204. Neither of these conditions is present here.

                                     11
1    concluding that White was eligible for a sentence reduction

2    under § 3582(c)(2), moreover, we express no view on whether

3    such a reduction ought to be granted.   That question is

4    confided to the sound discretion of the district court.    We

5    hold only that because the sentence imposed was based on the

6    guidelines that would have been applicable, giving White the

7    benefit of the plea that he would have accepted with the

8    advice of an effective lawyer, the sentence was “based on”

9    the guidelines and White was therefore eligible to be

10   considered for such a reduction.richa

11       For the foregoing reasons, the judgment of the district

12   court is hereby VACATED and the matter is REMANDED for

13   further proceedings consistent with this order.

14
15                              FOR THE COURT:
16                              Catherine O’Hagan Wolfe, Clerk
17
18




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