                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

____________________________
                             )
UNITED STATES OF AMERICA,    )
                             )
          v.                 )        Criminal Action No. 06-78 (RWR)
                             )
ALPHONSO WALKER,             )
                             )
          Defendant.         )
____________________________ )

                    MEMORANDUM OPINION AND ORDER

     Defendant Alphonso Walker pled guilty under a Federal Rule of

Criminal Procedure 11(c)(1)(C) plea agreement to possessing with

intent to distribute crack cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(C), and unlawfully using, carrying, and

possessing a firearm during a drug trafficking offense, in

violation of 18 U.S.C. § 924(c)(1).    Walker moved for a sentence

reduction under 18 U.S.C. § 3582(c)(2) in light of amendments to

the United States Sentencing Guidelines that lowered the base

offense levels for offenses involving crack cocaine.      See U.S.

SENTENCING GUIDELINES MANUAL supp. app. C, amend. 706 (2010) (effective

Nov. 1, 2007); id. § 1B1.10 (listing 706 among those amendments

with retroactive effect).    Because the plea agreement does not

indicate the parties’ intent to base the agreed-upon sentence on a

particular Guidelines range subsequently lowered by the Sentencing

Commission, sentence reduction is precluded here and Walker’s

motion will be denied.
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                              BACKGROUND

     Walker’s plea agreement under Rule 11(c)(1)(C) proposed a

stipulated term of 78 months incarceration.   The agreement refers

to the Guidelines in stating Walker’s “understand[ing] that if the

Court rejects the parties’ recommendation for an appropriate

sentence . . . and [Walker] does not withdraw his plea, [Walker]

will be sentenced according to Title 18, United States Code,

Sections 3553(a) and 3553(c) through (f), upon consideration of

the United States Sentencing Guidelines Manual (“Sentencing

Guidelines”), which will apply to determine [Walker’s] guideline

range.”    (Plea agreement ¶ 1.)

     I expressly considered the Guidelines range, among other

factors, in determining whether to accept the parties’ proposed

sentence.   Sentencing Tr. 8:2-14, Sep. 5, 2006.   I accepted the

plea agreement and sentenced Walker to a term of 60 months for

unlawfully using, carrying, and possessing a firearm during a drug

trafficking offense, which represents the statutory minimum for

that offense, 18 U.S.C. § 924(c)(1)(A)(i), and 18 months to run

consecutively for possessing with intent to distribute crack

cocaine.

     A defendant is eligible for sentence reduction where he is

“sentenced to a term of imprisonment based on a sentencing range

that has subsequently been lowered by the Sentencing Commission.”

18 U.S.C. § 3582(c)(2).   Walker argues that he is eligible because
                                  - 3 -
his sentence was at least partially based on a subsequently

lowered sentencing range.     The government argues the lowered range

does not apply to Walker because he was sentenced to a stipulated

term as provided in the plea agreement, not to a term based on the

Guidelines.

                                DISCUSSION

     The Supreme Court recently considered whether a defendant who

entered and was sentenced under a Rule 11(c)(1)(C) plea may be

eligible for sentence reduction under § 3582(c)(2) based on a

retroactive guideline amendment.     See Freeman v. United States,

131 S. Ct. 2685 (2011).      Justice Kennedy, in announcing the

judgment of the Court in a plurality opinion, said that the

Sentencing Guidelines “provide a framework or starting point – a

basis, in the commonsense meaning of the term – for the judge’s

exercise of discretion” in accepting or rejecting a plea

agreement.    Id. at 2692.    The plurality concluded that a sentence

under a Rule 11(c)(1)(C) plea can be “based on” the Sentencing

Guidelines, and thus subject to potential reduction under

§ 3582(c)(2), when the district judge’s decision to accept the

plea and impose the sentence is informed, as it often is, by those

guidelines.   See id. at 2695.

     Justice Sotomayor concurred with the plurality that relief

under § 3582(c)(2) may be available to defendants sentenced under

Rule 11(c)(1)(C), but only for that particular subset of
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defendants who entered and were sentenced under a plea agreement

that indicates the parties’ intent to base the agreed-upon

sentence on a particular Guidelines range subsequently lowered by

the Sentencing Commission.   See id. at 2698 & n.5.   The concurring

Justice would therefore require more than mere demonstration of

the district judge’s own consideration of the Sentencing

Guidelines in the course of imposing a sentence.   See id. at 2696.

Her higher threshold, then, is the controlling standard that

Walker must meet in order to be eligible for a § 3582(c)(2)

sentence reduction.

     Walker’s Rule 11(c)(1)(C) plea agreement does not indicate an

intent to base the agreed-upon term of imprisonment on a

particular Sentencing Guidelines range.   The plea agreement states

that “[Walker] and the Government agree that a sentence of

seventy-eight months is the appropriate sentence for the offenses

to which [Walker] is pleading guilty.”    (Plea agreement ¶ 2.)

However, it does not explain how that term was determined or

indicate any reliance on the Guidelines for the determination.

See Freeman, 131 S. Ct. at 2698 n.5 (“If a (C) agreement does not

indicate the parties’ intent to base the term of imprisonment on a

particular Guidelines range subsequently lowered by the

Commission, then § 3582(c)(2) simply does not apply.”) (Sotomayor,

J., concurring).   Nor does the acknowledgment in the plea

agreement that the Guidelines will be considered in fashioning a
                               - 5 -
sentence if the recommended sentence is rejected suffice to make

Walker eligible for relief under § 3582(c)(2).    See Freeman, 131

S. Ct. at 2697 (remarking that “the mere fact that the parties to

a (C) agreement may have considered the Guidelines in the course

of their negotiations does not empower the court under

§ 3582(c)(2) to reduce the term of imprisonment they ultimately

agreed upon”) (Sotomayor, J., concurring).     Finally, under Justice

Sotomayor’s controlling concurrence, the fact that I considered

the Guidelines range in deciding whether to accept the plea

agreement carries no weight in the analysis.    See Freeman, 131 S.

Ct. at 2696-97 (declining to conclude that district judge is

empowered “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 determine the sentence or to approve

the agreement”) (Sotomayor, J., concurring) (internal quotations

omitted).   Walker is therefore ineligible for relief.

                        CONCLUSION AND ORDER

     Because the Freeman decision resulted in a divided majority,

the guiding principles to be applied to motions under 18 U.S.C.

§ 3582(c)(2) regarding Rule 11(c)(1)(C) pleas may be subject to

further elucidation.   At present, and in the absence of additional

guidance from the D.C. Circuit, the text of the plea agreement is

the focus of the analysis.   Walker’s plea agreement does not

demonstrate the parties’ intent to base the term of imprisonment
                               - 6 -
on a subsequently lowered Sentencing Guidelines range.   Therefore,

it is hereby

     ORDERED that Walker’s motion to reduce sentence be, and

hereby is, DENIED.

     SIGNED this 14th day of October, 2011.



                                __________/s/_______________
                                RICHARD W. ROBERTS
                                United States District Judge
