    08-4088-cr
    United States v. Harrington (Main)



                           UNITED STATES COURT OF APPEALS

                                 FOR THE SECOND CIRCUIT
                                    _______________

                                    August Term 2008

          (Argued: May 11, 2009                    Decided: August 27, 2009)

                          Docket No. 08-4088-cr
    -----------------------------------------------------x
    UNITED STATES OF AMERICA,

                 Appellee,

                              -- v. --

    CHRISTOPHER MAIN,

                 Defendant-Appellant.
    -----------------------------------------------------x

    B e f o r e :      WALKER and WALLACE,* Circuit Judges.**

1         Defendant-Appellant Christopher Main appeals from an order

2   of the United States District Court for the District of Vermont

3   (Murtha, J.) denying his motion for a reduction of sentence

4   pursuant to 18 U.S.C. § 3582(c)(2) and United States Sentencing

5   Guidelines § 1B1.10, pursuant to which the sentencing ranges

6   applicable to crack cocaine offenses were retroactively reduced.

          *
              The Honorable J. Clifford Wallace of the United States
    Court of Appeals for the Ninth Circuit, sitting by designation.
          **
              The Honorable Sonia Sotomayor, originally a member of
    the panel, was elevated to the Supreme Court on August 8, 2009.
    The two remaining members of the panel, who are in agreement,
    have determined the matter. See 28 U.S.C. § 46(d); Local Rule
    0.14(2); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
                                    1
1    Main had pled guilty under a plea agreement pursuant to Federal

2    Rule of Criminal Procedure 11(c)(1)(C).

3         We AFFIRM the district court’s judgment.

 4
 5                                  PAUL VAN DE GRAAF, Acting United
 6                                  States Attorney (William B. Darrow
 7                                  & Gregory L. Waples, Assistant
 8                                  United States Attorneys, on the
 9                                  brief), District of Vermont,
10                                  Burlington, VT, for Appellee.
11
12                                  ELIZABETH D. MANN, Assistant
13                                  Federal Public Defender, for
14                                  Michael L. DeSautels, Federal
15                                  Public Defender, Burlington, VT,
16                                  for Defendant-Appellant.
17
18   JOHN M. WALKER, JR., Circuit Judge:

19        Defendant-Appellant Christopher Main appeals from a July 9,

20   2008 order of the United States District Court for the District

21   of Vermont (Murtha, J.) denying his motion for a reduction of

22   sentence pursuant to 18 U.S.C. § 3582(c)(2) and United States

23   Sentencing Guidelines (“U.S.S.G.”) § 1B1.10, pursuant to which

24   the sentencing ranges applicable to crack cocaine offenses were

25   retroactively reduced.   We hold that the district court was

26   without authority to reduce Main’s sentence under section 3582(c)

27   because the sentence was dictated by his plea agreement pursuant

28   to Federal Rule of Criminal Procedure 11(c)(1)(C), and not the

29   Guidelines related to crack cocaine.     Accordingly, we affirm the

30   district court’s denial of Main’s motion.

31                               BACKGROUND

32        The facts of Main’s crime are set forth fully in our prior
                                     2
1    published decision vacating Main’s first judgment of conviction

2    and sentence because the district court had inaccurately

3    described the range of penalties to which Main could be subjected

4    as a result of his guilty plea.    See United States v. Harrington,

5    354 F.3d 178, 180–86 (2d Cir. 2004).

6         On remand, Main again pled guilty, pursuant to a plea

7    agreement, to distributing and conspiring to distribute five or

8    more grams of crack cocaine in violation of 21 U.S.C. §§

9    841(a)(1) and 846.    The agreement specified that Main and the

10   government had agreed, “pursuant to Federal Rule of Criminal

11   Procedure 11(c)(1)(C),”1 that “the appropriate sentence to be

12   imposed, with regard to imprisonment, is a term of not more than

13   eight (8) years.”    (Plea Agreement ¶ 3.)   The agreement further

14   stated that Main “reserve[d] the right to argue for a downward

15   departure.”   (Plea Agreement ¶ 3.)    The district court accepted


          1
              Rule 11(c)(1) provides:

          An attorney for the government and the defendant’s
          attorney, or the defendant when proceeding pro se,
          may discuss and reach a plea agreement. . . . If
          the defendant pleads guilty or nolo contendere to
          either a charged offense or a lesser or related
          offense, the plea agreement may specify that an
          attorney for the government will . . . (C) agree
          that a specific sentence or sentencing range is
          the appropriate disposition of the case, or that a
          particular provision of the Sentencing Guidelines,
          or policy statement, or sentencing factor does or
          does not apply (such a recommendation or request
          binds the court once the court accepts the plea
          agreement).

     Fed. R. Crim. P. 11(c)(1).
                                        3
1    Main’s guilty plea.

2         At the subsequent sentencing hearing in February 2005, the

3    district court determined that Main’s total offense level was 26,

4    that his Criminal History Category was VI, and that the

5    applicable Guideline range therefore was 120 to 150 months, and

6    found that “the parties have agreed in accordance with [Rule

7    11(c)(1)(C)] that the appropriate sentence to be imposed is a

8    term of imprisonment of not more than eight years[,] which is 96

9    months.”    (Sentencing Tr. 28:24-29:2, Feb. 23, 2005.)   The

10   district court then granted Main’s request for downward

11   departures, reducing Main’s sentence by seven months for

12   “extraordinary rehabilitation . . . while in prison” and by five

13   months for certain time Main served.    (Sentencing Tr. 30:24-

14   31:10.)    The district court sentenced Main to 84 months’

15   imprisonment.

16        On May 14, 2008, Main moved to reduce his sentence pursuant

17   to section 3582(c)(2), which allows such motions by any

18   “defendant who has been sentenced to a term of imprisonment based

19   on a sentencing range that has subsequently been lowered by the

20   Sentencing Commission.”    18 U.S.C. § 3582(c)(2).   Main argued

21   that he was eligible for a reduced sentence under U.S.S.G. §

22   1B1.10, effective March 3, 2008, which retroactively reduced by

23   two levels the base offense level for crack cocaine offenses

24   covered by U.S.S.G. § 2D1.1.    See U.S.S.G. supp. to app. C,

25   amend. 706 (2007) (amending the drug quantity table for U.S.S.G.
                                     4
1    § 2D1.1); U.S.S.G. supp. to app. C, amend. 713 (2007)

2    (retroactively applying § 2D1.1).     The district court denied

3    Main’s motion on the basis that the court lacked authority to

4    modify the sentence under section 3582(c)(2), because Main had

5    been sentenced pursuant to a Rule 11(c)(1)(C) plea agreement and

6    not pursuant to U.S.S.G. § 2D1.1.     After granting Main’s motion

7    to reconsider the denial of resentencing, the district court

8    affirmed its decision.    This appeal followed.

9                                 DISCUSSION

10        The only issue on appeal is whether Main is eligible for a

11   reduction in sentence under the crack cocaine amendments,

12   pursuant to section 3582(c)(2).    We review de novo the

13   determination of whether his sentence was “based on a sentencing

14   range that was subsequently lowered by the Sentencing

15   Commission,” because this determination is a matter of statutory

16   interpretation.   United States v. Williams, 551 F.3d 182, 185 (2d

17   Cir. 2009).

18        Section 3582(c) limits a district court’s resentencing

19   authority by providing that it “may not modify a term of

20   imprisonment once it has been imposed,” except in limited

21   circumstances, such as when the defendant was sentenced “based on

22   a sentencing range that has subsequently been lowered by the

23   Sentencing Commission.”    18 U.S.C. § 3582(c)(2).   Although Main

24   contends that he was sentenced pursuant to the Guidelines section


                                       5
1    applicable to crack cocaine offenses, U.S.S.G. § 2D1.1, for which

2    the Sentencing Commission lowered the base offense level, see id.

3    at supp. to app. C, amends. 706, 713 (2007), we agree with the

4    district court that Main in fact was sentenced “based on” his

5    Rule 11(c)(1)(C) plea agreement.

6         Not only did the district court expressly “accept[] the plea

7    agreement, including the factors to be considered in imposing the

8    sentence,” (Sentencing Tr. 29:3-5), but also, despite calculating

9    the then-applicable Guidelines range to be 120 to 150 months’

10   imprisonment, the district court did not adhere to that range

11   because it was higher than the maximum sentence of 96 months

12   specified in Main’s plea agreement.   Under Rule 11(c)(1)(C), a

13   district court may not deviate from the “specific sentence or

14   sentencing range,” Fed. R. Crim. P. 11(c)(1)(C), recommended or

15   requested by the accepted plea agreement.    See, e.g., United

16   States v. Williams, 260 F.3d 160, 165 (2d Cir. 2001) (“[A]

17   district court may accept or reject a Rule 11(e)(1)(C)2 sentence

18   bargain, but may in no event modify it.”).    Instead of using the

19   sentencing range specified by the Guidelines, the district court

20   adhered to the maximum sentence permitted by the plea agreement

21   and, after granting two reductions totaling twelve months,

22   sentenced Main to 84 months’ imprisonment.    We therefore hold


          2
           Federal Rule of Criminal Procedure 11(e)(1)(C) is Rule
     11(c)(1)(C)’s predecessor, and was revised and renumbered in 2002
     with only stylistic changes. Fed. R. Crim. P. 11 advisory
     committee’s notes.
                                     6
1    that Main’s sentence was “based on” his Rule 11(c)(1)(C)

2    agreement with the government, and not a sentencing range that

3    the Sentencing Commission subsequently lowered, and conclude that

4    the district court was without authority to reduce the sentence

5    pursuant to 18 U.S.C. § 3582(c)(2).

6         Other circuits that have considered this question generally

7    have reached similar conclusions, reasoning that a sentence

8    imposed pursuant to a Rule 11(c)(1)(C) agreement “arises directly

9    from the agreement itself, not from the Guidelines, even though

10   the court can and should consult the Guidelines in deciding

11   whether to accept the plea.”   United States v. Cieslowski, 410

12   F.3d 353, 364 (7th Cir. 2005); see also, e.g., United States v.

13   Sanchez, 562 F.3d 275, 277-79 (3d Cir. 2009) (holding that a

14   defendant sentenced pursuant to a Rule 11(c)(1)(C) plea agreement

15   is ineligible for section 3582(c)(2) relief); United States v.

16   Scurlark, 560 F.3d 839, 841 (8th Cir. 2009) (same); United States

17   v. Peveler, 359 F.3d 369, 377-79 (6th Cir. 2004) (same); United

18   States v. Trujeque, 100 F.3d 869, 870-71 (10th Cir. 1996) (same).

19        In contrast, the Fourth Circuit held in United States v.

20   Dews, 551 F.3d 204, 208-12 (4th Cir. 2008), reh’g en banc granted

21   (4th Cir. 2009), appeal dismissed as moot (4th Cir. 2009), that

22   section 3582(c)(2) authorized district courts to resentence

23   defendants who pled guilty pursuant to Rule 11(c)(1)(C) plea

24   agreements.   The Fourth Circuit, however, subsequently vacated

25   its decision in Dews by granting a rehearing en banc, see 4th
                                      7
1    Cir. Local Rule 35(c), and has since dismissed the appeal as

2    moot.   Because Dews is no longer good law, we have no need to

3    address Main’s argument that, for the reasons provided in Dews,

4    he is eligible for a sentencing reduction under section

5    3582(c)(2).

6         Main points out that his case may be distinguished from

7    cases such as Peveler, see 359 F.3d at 372-73, in which the plea

8    agreements stipulated a specific offense level or Guidelines

9    range to be applied:   Because Main’s plea agreement merely

10   specified the upper limit of the sentencing range to which he

11   could be exposed (96 months), and did not limit the court’s

12   discretion to sentence Main to any term below that limit, Main

13   argues that a sentencing reduction pursuant to section 3582(c)(2)

14   would not have violated Rule 11(c)(1)(C).   But our decision that

15   Main is ineligible for resentencing depends upon the text of

16   section 3582(c)(2), which states that a reduction must be a

17   sentence “based on a sentencing range that has not been

18   subsequently lowered by the Sentencing Commission,” and not upon

19   Rule 11(c)(1)(C), and we need not address whether the latter

20   should be construed in other cases to bar resentencing pursuant

21   to section 3582(c)(2).    Main also argues that his express

22   reservation in the plea agreement of his right to argue for a

23   downward departure indicates that the Sentencing Guidelines

24   continued to play a role in determining his sentence.     Again,

25   however, section 3582(c)(2) only applies when the defendant “has
                                     8
1    been sentenced . . . based on a sentencing range that has

2    subsequently been lowered by the Sentencing Commission,” 18

3    U.S.C. § 3582(c)(2), and the Sentencing Commission did not

4    subsequently modify the downward departure provisions upon which

5    Main relies.   Main remains ineligible for section 3582(c)(2)

6    relief because, as we have already explained, U.S.S.G. § 2D1.1,

7    the provision that the Sentencing Commission subsequently

8    modified, played no role in the sentence that Main received.

9         We have considered Main’s remaining arguments and find them

10   to be without merit.

11                               CONCLUSION

12        For the reasons stated above, the judgment of the district

13   court is AFFIRMED.




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