UNITED STATES DISTRICT COURT
F()R THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

vi Criminal No. 09-236-02 (RCL)
SEAN V. ALLEN,
Defendant. F I  E D

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FEB / i 2013

MEMoRANDUM oPINIoN "'iiea@ir’»§.i£r§dr§ii$<iii§i§"d

Before the Court is defendant Sean V. Allen’s unopposed pro se Motion to Reduce
Sentence [185] pursuant to 18 U.S.C. § 3582(0)(2). Also before the Court is correspondence
from Mr. Allen construed to be an exhibit to the underlying Motion. The Clerk of the Court is
hereby instructed to post the attached correspondence to the docket along with this Memorandum
Opinion and accompanying Order. Upon consideration of defendant’s motion, the entire record
herein, the applicable law, and for the reasons set forth below, the Court will deny the motion.
I. BACKGROUND

On July l, 2010, the government filed a one-count Superseding Information charging the
defendant with conspiracy to distribute and possess with intent to distribute 500 grams or more
of cocaine, in violation of 21 U.S.C. §§ 84l(a)(l), (b)(l)(B)(ii), and 846 (2006). Presentence
investigation Report 11 8, Revised Oct. 14, 2010 ("PSR"). The defendant pled guilty pursuant to
Rule ll(c)(l)(C) of the Federal Rules of Criminal Procedure which allows the parties to "agree
that a specific sentence or sentencing range is the appropriate disposition of the case . . . ." Fed.
R. Crim. P. ll. If the court accepts the agreement, "[the] recommendation or request binds the

court . . . ." Id. The government and defendant agreed that the specific term of 72 months was

the appropriate sentence for the offense. Plea Agreement as to Sean V. Allen 11 3, July 12, 2010,

ECF No. 120 ("Plea Agreement"). The undersigned judge accepted the plea agreement and
sentenced the defendant to the agreed upon term. See Tr. 5, June 19, 2012, ECF No. 184; J. &
Commitment l-2, Oct. 27, 2010, ECF No. 144. Mr. Allen now seeks a reduction in his sentence
pursuant to 18 U.S.C. § 3582(€)(2). Mot. Reduce 1, June 26, 2012, ECF No. 186.
ll. DISCUSSION

"A federal court generally ‘rnay not modify a term of imprisonment once it has been
imposed."’ Dillon v. United Slates, 130 S. Ct. 2683, 2687 (2010) (quoting 18 U.S.C. § 3582)).
However, 18 U.S.C. § 3582(0)(2) allows the Court to modify a sentence when a defendant was
sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing
Commission . . . if such a reduction is consistent with the applicable policy statements issued by
the Commission." Application of this narrow exception requires a court to "discern the
foundation for the term of imprisonment imposed . . . ." Freeman v. United Slates, 131 S. Ct.
2685, 2695 (2011) (Sotomayor, J., concurring).

Mr. Allen believes he is entitled to a reduced sentence pursuant to § 3582(c)(2) in light of
Amendment 750 of the United States Sentencing Guidelines ("U.S.S.G."). ]a'.,' see U.S.
Sentencing Guidelines Manual app. C (Vol. I1I). The Court finds this argument without merit for
two reasons: (1) Mr. Allen was not sentenced based on the Guidelines, and (2) even if he was,
the United States Sentencing Commission (U.S.S.C.) has not subsequently lowered his
applicable sentencing range. The Court addresses these findings in turn.

Normally, the appropriate Guidelines sentencing range serves as the basis for the
sentence a district court judge imposes; however, sentencing pursuant to a Rule ll(c)(l)(C) plea
agreement is different. See Freeman, 131 S. Ct. at 2695 (Sotomayor, J., concurring). Freeman

addressed whether a defendant sentenced pursuant to a Rule ll(c)(l)(C) agreement is eligible for

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relief under § 3582(c)(2). Id. at 2695-2700. Despite the Court’s fragmented 4-1-4 opinion,
ample support from our sister circuits and the practice of this Court provide that Justice
Sotomayor’s concurrence is the controlling opinion See, e.g_ United States v_ Graham, No. 12-
8031, 2013 WL 150253, at *2 (10th Cir. Jan. 15, 2013) ("Every federal appellate court to
consider the matter has reached the same conclusion, and we agree: Justice Sotomayor’s
concurrence is the narrowest grounds of decision and represents the Court’s holding.") (citing
opinions from the First, Third, Fourth, Sixth, Seventh, Eighth, and Ninth Circuits).‘

Under Freeman, "the term of imprisonment imposed pursuant to a [Rule ll(c)(l)](C)
agreement is, for purposes of § 3582(0)(2), ‘based on’ the agreement itself." 131 S. Ct. at 2696
(Sotomayor, J., concurring). However, if the agreement "expressly uses a Guidelines sentencing
range . . . and that range is subsequently lowered . . . the term of imprisonment is ‘based on’ the
range employed and the defendant is eligible for sentence reduction under § 3582(0)(2)." Id. at
2695 (emphasis added). A Rule ll(c)(l)(C) agreement meets this test if it "provides for a
specific term of imprisonment . . . but also 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." Id.
at 2697-98.

Mr. Allen’s Rule ll(c)(l)(C) agreement included a specified term of imprisonment,
therefore the question before this Court is whether the agreement "expressly uses a Guidelines

sentencing range" that is "evident from the agreement itself" See ia’. at 2697-98. In Freeman,

' In United States v. Duvall, the D.C. Circuit applied Justice Sotomayor’s concurrence in Freeman but only for
purposes of the instant appeal. Nos. 10-3091, 11-3114, 2013 WL 276016, at *3 (D.C. Cir. Jan. 25, 2013). See ia’.
("For purposes of this appeal, both parties agree that Justice Sotomayor’s opinion controls our analysis . . . .
Accordingly, we do not further address that question."). This Court and other members of this District Court,
relying on Marks v. United Szates, 430 U.S. 188, 193 (l997), have consistently held that Justice Sotomayor’s
concurrence is controlling See, e.g., United States v. [ngmm, Crim_ No. 06-21-02 (RBW), 2012 WL 6086916, at *8
(D.D.C. Dec. 4, 2012); United States v. Tumer, 825 F. Supp. 2d 240, 244~45 (D.D.C. 2011).

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the defendant agreed "to have his sentence determined pursuant to the Sentencing Guidelines,
and that 106 months [was] the total term of imprisonment to be imposed." Ia'. at 2699 (internal
quotation marks and citations omitted). l\/Ioreover, the agreement set the defendant’s offense
level and noted the anticipated criminal history category_two variables needed to produce the
applicable Guidelines sentencing range. Id. In light of the calculated sentencing range, the
Court determined it was "evident" that Freeman’s 106-month sentence employed the figure at
the bottom of the Guidelines range to establish his sentence. la'. at 2700.

Mr. Allen’s plea agreement is clearly distinguishable. Unlike the agreement examined in
Freeman, the Mr. Allen’s agreement made no mention of the defendant’s criminal history
category. Mr. Allen agreed that he was accountable for at least 500 grams but less than 2
kilograms grams of cocaine, but there is no express mention of a Guidelines range, offense level,
or any other explanation of how the parties reached the specified term of 72 months See Plea
Agreement ll 2~3. l\/Ioreover, whereas the bottom end of the applicable Guidelines range in
Freeman matched the agreed upon sentence, Mr. Allen’s Guidelines range was calculated to be
262 to 327 months-well over three times the length of the specified term. See PSR 11 93.

Restricting the scope of inquiry to the defendant’s agreement itself, as Freeman requires,
this Court finds the agreement does not expressly use a Guidelines sentencing range. Thus,
defendant is ineligible for a reduced sentence under § 3582(0)(2). See also United States v.
Duvall, Nos. 10-3091, 11-3114, 2013 WL 276016, at *4 (D.C. Cir. Jan. 25, 2013) (iinding the
defendant ineligible for a reduced sentence because his Rule ll(c)(l)(C) agreement "neither
expressly specified the Guidelines sentencing range nor expressly specified the offense level or

criminal history category.").

Even if Mr. Allen’s sentence was based on the Guidelines, he still fails to qualify for a
reduced sentence under 18 U.S.C. § 3582(0)(2) because the U.S.S.C. has not lowered the
sentencing range for his offense. The defendant confuses the amendments to the U.S.S.G.
promulgated in response to the Fair Sentencing Act of 2010 ("FSA"), Pub. L. No. 111-220, 124
Stat. 2372. The FSA reduced the statutory penalties for crack cocaine offenses, and granted
authority to the U.S.S.C. to make conforming changes to the Guidelines as necessary to achieve
consistency with the new law. See U.S. Sentencing Guidelines Manual app. C (Vol. III); see
also 21 U.S.C. § 841(b)(1) (amended by FSA § 2(a)). The U.S.S.C. promulgated Emergency
Amendment 748, which became effective on November 1, 2010, and lowered the Guidelines
ranges for offenses involving crack cocaine to reflect the reduced penalties provided for in the
FSA. U.S. Sentencing Guidelines Manual app. C (Vol. lll). Amendment 750, which made the
lower sentencing ranges established by Amendment 748 permanent, and Amendment 759, which
made the changes retroactive, took effect on November 1, 2011. ]d.

Mr. Allen pled guilty to the charge of conspiracy to distribute and possess with intent to
distribute 500 grams or more of cocaine~not cocaine base. See Plea Agreement 11 l. The
U.S.S.G. Amendments promulgated subsequent to Mr. Allen’s sentencing made no changes to
the sentencing ranges for powder cocaine offenses. Accora' U.S. Probation Office Mem., Sept.
11, 2012, ECF No. 191 ("l\/Ir. Allen’s applicable guideline range is not reduced as a result of the
retroactive amendment as the case involved a quantity of cocaine powder rather than cocaine
base."). Compare U.S. Sentencing Guidelines Manual § 2Dl.1(c)(7) (2009) (providing a base
offense level of 26 for an offense involving at least 500 grams but less than 2 kilograms of
cocaine), with z`d. § 2D1.1(c)(7) (2012) (same). Thus, even assuming arguendo that Mr. Allen

was sentenced based on a Guidelines sentencing range, that range has not been subsequently

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lowered by the U.S.S.C. Mr. Allen is therefore ineligible for a reduced sentence pursuant to 18

U.S.C. § 3582(0)(2).
III. CONCLUSION
For the foregoing reasons, the Court holds that the defendant’s Motion to Reduce

Sentence [185] must be denied. A separate Order consistent with these findings shall issue this

date .

E f /
Rov<a§h C. LAMBERTH

Chief Judge

United States District Court

