    15-1814
    United States of America v. McCall (McCall)


                            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 ASUMMARY ORDER@). A PARTY CITING TO 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 May, two thousand sixteen.

    PRESENT:
                JOHN M. WALKER, JR.,
                GUIDO CALABRESI,
                PETER W. HALL,
                      Circuit Judges.
    _____________________________________

    United States of America,

                                Appellee,

                      v.                                                     15-1814


    Michael McCall,

                                Defendant-Appellant.

    _____________________________________
    FOR PLAINTIFF-APPELLANT:                           Michael McCall, pro se, Lewisburg, PA.

    FOR DEFENDANT-APPELLEE:                            Monica J. Richards, Assistant United States
                                                       Attorney, for William J. Hochul, Jr., United
                                                       States Attorney for the Western District of
                                                       New York, Buffalo, NY.
       Appeal from a judgment of the United States District Court for the Western District of New

York (Skretny, J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the May 14, 2015 Order of the district court is VACATED and the case is

REMANDED.

       Pursuant to a plea agreement entered into under Federal Rule of Criminal Procedure

11(c)(1)(C), Defendant-Appellant Michael McCall is serving a 108-month sentence for conspiring

to distribute oxycodone. He now appeals, pro se, from the district court’s denial of his motion to

reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the U.S.

Sentencing Guidelines (the “Guidelines”), which lowered the base offense levels applicable to

drug quantity calculations under U.S.S.G. § 2D1.1. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues presented on appeal.

       Before granting a sentence reduction pursuant to a guidelines amendment, the court must

engage in a two-step inquiry, determining (1) the scope of reduction authorized by § 3582(c)(2)

and § 1B1.10, and (2) whether a reduction is warranted in light of the factors listed in § 3553(a).

Dillon v. United States, 560 U.S. 817, 824-25 (2010). Under 18 U.S.C. § 3582(c)(2), a court may

grant a motion for a sentence reduction for a defendant who (1) “has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing

Commission,” if (2) such reduction is “consistent with applicable policy statements issued by the

Sentencing Commission.” Id. We review de novo a district court’s determination as to whether

the defendant’s sentence was “based on” an applicable guidelines range that was subsequently



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amended by the Commission. See United States v. Williams, 551 F.3d 182, 185 (2d Cir. 2009).

       The parties agree, and we accept for purposes of this decision, that Justice Sotomayor’s

concurring opinion in Freeman v. United States, 564 U.S. 522 (2010), governs this case. In

Freeman, Justice Sotomayor identified two scenarios in which a Rule 11(c)(1)(C) agreement is

“based on” a Guidelines range: (1) when the agreement “call[s] for the defendant to be sentenced

within a particular Guideline[s] sentencing range,” id. at 538, or (2) when the agreement

“expressly uses a Guidelines sentencing range applicable to the charged offense to establish the

term of imprisonment,” id. at 534.

       Here, the plea agreement sets forth the parties’ Guidelines calculations, which yield a

sentencing range of 108 to 135 months’ imprisonment.           The agreement then settles on a

108-month term of imprisonment as the “appropriate sentence in th[e] case.” At first blush,

McCall’s agreement might fit easily within the second category of § 3582(c)(2)—eligible Rule

11(c)(1)(C) agreements. At sentencing, however, the parties agreed that, due to a calculation

error, the Guidelines range contemplated in the plea agreement was not the Guidelines range

applicable in the defendant’s case, and the applicable Guidelines yielded a sentencing range of 121

to 151 months. McCall’s attorney informed the district court that the parties “discovered that

there was an issue regarding the plea agreement versus [the probation officer’s] understanding of

Guideline Section 3B1.1. And as it turned out, the two attorneys were wrong and the probation

officer was correct on how that applies.” (See Sentencing Tr. 4, ECF No. 398.) As a result of the

miscalculation, McCall’s attorney stated, “we end up with a three-level increase for . . . enhanced

conduct rather than a two-level increase, and therefore to get to the nine-year sentence that’s

agreed upon [in the plea agreement], the Court I think is going to have to impose a non-guideline

                                                3
sentence.” (Id. at 5.) The district court agreed, stating that although the proper guidelines

calculation “would have been a[n offense level of] 32 and a [criminal history category of] one, and

121 to 151 guideline range,”       a 108 month sentence was “reasonable.”          (Id.)   The court

explained it had “no difficulty, taking into account . . . the mitigating circumstances that in

combination make that sentence a reasonable sentence, even though it’s not a guideline sentence.”

(Id.) Not surprisingly, the government had no objection to the imposition of a 108-month

sentence. In short, although prior to the sentencing proceedings the parties believed that the 108

months’ term of imprisonment was based on a contemplated Guidelines range, when they

discovered they were in error, the parties agreed at sentencing to maintain the agreed-upon term of

incarceration. The parties’ agreement thus required the district court, who agreed that the term of

incarceration was fair, to drop below what everyone then agreed was the actual applicable

Guidelines range and to impose a non-Guidelines sentence.

       Notwithstanding the court’s decision to sentence McCall based on an erroneous Guidelines

calculation, Justice Sotomayor’s reasoning in Freeman requires him to be resentenced. In her

concurrence, she explained, “Because it is the parties’ agreement that controls in the [11(c)(1)(C)]

context, even if the District Court had calculated the range differently from the parties, [the

defendant] would still be eligible for resentencing, as long as the parties’ chosen range was one

that was subsequently lowered by the Sentencing Commission.” Freeman, 564 U.S. at 542 n.8

(internal quotation marks, citations, and alteration omitted). Here, the district judge did not

calculate the range differently from the parties; instead, the judge and the parties all accepted that

the calculation in the plea agreement was incorrect. The fact that the district judge agreed with

the parties does not alter our analysis under Freeman. By having accepted the parties’ plea

                                                  4
agreement, the district court was bound by its terms, including the Guidelines range contained

within the agreement, and the court did not have the power to modify the terms of the agreement

during the sentencing proceeding. Because the sentence in the plea agreement (though calculated

incorrectly) was based on the Guidelines range chosen by the parties and because the district judge

was bound by this calculation when he accepted the agreement, McCall is eligible for

resentencing.

       In resentencing proceedings pursuant to § 3582(c)(2), “the court shall substitute only the

amendments listed in subsection (d) for the corresponding guideline provisions that were applied

when the defendant was sentenced and shall leave all other guideline application decisions

unaffected.” U.S.S.G. § 1B1.10(b)(1). Leaving in place the enhancement that was applied to

reach the plea agreement, McCall’s amended Guideline range is 87 to 108 months. On remand,

therefore, the district court may in its discretion reduce McCall’s sentence to the minimum of the

amended Guidelines range if it determines that such a reduction is warranted in light of the factors

listed in 18 U.S.C. § 3553(a) and U.S.S.G. § 1B1.10. See Dillon, 560 U.S. at 826.

       The May 14, 2015 Order of the district court is VACATED, and the case is REMANDED

for further proceedings consistent with this order.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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