Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:99-cr-00545--John W. Darrah, Judge.
The opinion of the court was delivered by: Hamilton, Circuit Judge.
Before MANION, SYKES, and HAMILTON, Circuit Judges.
Ricky Dixon is serving a sentence for conspiracy to distribute crack cocaine. The district court denied his motion for a reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) based on retro- active changes to the crack cocaine sentencing guide- lines. The district court held that it lacked the authority to grant Dixon the relief he sought because his sen- tence was based not on a sentencing range that was subsequently lowered retroactively, but was instead based on his binding plea agreement. In light of the Supreme Court's several opinions in Freeman v. United States, 564 U.S. ___, 131 S. Ct. 2685 (2011), we must affirm.
Dixon pled guilty to conspiracy to possess crack cocaine with the intent to distribute it. He was sentenced in November 2001 pursuant to a binding plea agreement. (It was governed by the provision that was then codified as Federal Rule of Criminal Procedure 11(e)(1)(C) but was later moved without substantive change to Rule 11 (c)(1)(C).) Dixon and the government agreed "that the sentence imposed by the Court shall include a term of imprisonment in the custody of the Bureau of Prisons for at least fifteen but no more than twenty years." Ac- cepting the parties' agreement, the district court sentenced Dixon to fifteen years and ten months in prison.*fn1
Ten years later, in November 2011, Dixon filed a motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2), Amendment 750 to the Sentencing Guide- lines, and U.S.S.G. § 1B1.10. The district court denied his motion, concluding that Dixon's sentence was based on his binding plea agreement rather than on a Guideline sentencing range that had been lowered. As a result, Dixon was not legally eligible for a sentence reduction. Dixon appeals. We review de novo a district court's determination of whether a sentence is legally eligible for a discretionary reduction under § 3582(c)(2). See United States v. Johnson, 571 F.3d 716, 717 (7th Cir. 2009); accord, United States v. Rivera, 662 F.3d 166, 170 (2d Cir. 2011) (even though a ruling granting or denying an eligible offender's request for a reduction under § 3582(c)(2) is reviewed for abuse of discretion, an order declaring an offender legally ineligible for a reduction is reviewed de novo); United States v. Fanfan, 558 F.3d 105, 106-07 (1st Cir. 2009) (same); United States v. Melvin, 556 F.3d 1190, 1191 (11th Cir. 2009) (applying de novo review to scope of authority).
The Sentencing Commission issued a policy state- ment, effective November 1, 2011, that made retroactive the terms of Amendment 748, which had lowered the offense levels for most crack cocaine offenses. U.S.S.G. § 1B1.10(c); U.S.S.G. Appx. C., Amend. 750 (Part A). The Commission's exercise of this authority triggered an exception to the general rule that sentencing courts are not authorized to modify sentences after they are im- posed. The precise phrasing of the statutory exception is critical for the issue presented here: a district court may exercise this authority "in the case of a defendant who has been 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) (emphasis added). The question is whether Dixon's sentence, which was imposed pursuant to a binding plea agreement, was "based on" a subsequently reduced sentencing range or whether it was instead based on the agreement itself, distinct from the guide- line range.
In Freeman v. United States, 564 U.S. ___, 131 S. Ct. 2685 (2011), the Supreme Court faced this question and split four to one to four. Four Justices concluded: "Even when a defendant enters into an 11 (c)(1)(C) agreement, the judge's decision to accept the plea and impose the recom- mended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief." Id. at 2695 (Kennedy, J.). For those
Justices, in other words, a binding plea agreement will nearly always be based on the applicable Guidelines, so that the resulting sentence will essentially always be based on the applicable Guidelines and eligible for relief under § 3582(c)(2). Four dissenting Justices took the opposite view, concluding that a district court never has authority to grant § 3582 (c)(2) relief to defendants sentenced under a binding plea agreement. Those Justices reasoned that such a defendant's sentence is based not on a Guide- line sentencing range but on the plea agreement. 131 S. Ct. at 2700-01 (Roberts, C.J., dissenting). In a separate opinion concurring in the judgment authorizing relief to petitioner Freeman, Justice Sotomayor concluded that district courts sometimes have authority to grant § 3582(c)(2) relief to a defendant who enters a binding plea agreement, and sometimes do not, depending on the specific language of the written plea agreement. 131 S. Ct. at 2695 (Sotomayor, J., concurring in the judgment).
Justice Sotomayor agreed with the dissent that a sen- tence imposed pursuant to a binding plea agreement is based on the agreement so that relief under § 3582(c)(2) is usually not available. The binding plea agreement is the foundation of the term of imprisonment, and "at the moment of sentencing, the court simply implements the terms of the agreement it has already accepted." Id. at 2696. In this view, the fact that a judge may consult the Sentencing Guidelines when deciding whether to accept a binding plea agreement is irrelevant. "[P]lea bargaining necessarily occurs in the shadow of the sen- tencing scheme to which the defendant would otherwise be subject. . . . The term of imprisonment imposed by the district court, however, is not 'based on' those background negotiations; instead . it is based on the binding agreement produced by those negotiations." Id. at 2697 (internal citations omitted).
Justice Sotomayor concluded, however, that there should be two limited exceptions to this general rule. One applied to Freeman, so she voted to grant relief in that specific case. The first exception is when a binding plea agreement itself "call[s] for the defendant to be sentenced within a particular Guidelines sentencing range," which the court then accepts. Id. at 2697. In such a case, "there can be no doubt that the term of imprisonment the court imposes is 'based on' the agreed-upon sentencing range within the meaning of § 3582(c)(2)." Id. Under the second exception: a plea agreement might provide for a specific term of imprisonment -- such as a number of months -- but also make clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty. As long as that sentencing range is evident from the agreement itself, for purposes of § 3582(c)(2) the term of imprisonment imposed by the court in accordance with that agreement is "based on" that range.
Id. at 2697-98. In Freeman, this second exception applied. Freeman's binding plea agreement expressly used the Guidelines to establish the term of imprisonment, so Justice Sotomayor concurred in the plurality's judgment that the district court had authority to reduce his sentence. See id. at 2699-2700.
When a majority of the justices do not agree on a single rationale for deciding a case, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the nar- rowest grounds." Marks v. United States, 430 U.S. 188, 193 (1977); quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Marks is easy to apply here. Even though eight Justices disagreed with Justice Sotomayor's approach and believed it would produce arbitrary and unworkable results, see 131 S. Ct. at 2694-95 (plurality), 2703-04 (dis- sent), her reasoning provided the narrowest, most case- specific basis for deciding Freeman. Her approach there- fore states the controlling law. See United States v. Austin, 676 F.3d 924, 927-28 (9th Cir. 2012) (applying Marks to treat Justice Sotomayor's concurring opinion in Freeman as controlling authority); United States v. Rivera- Martinez, 665 F.3d 344, 348 (1st Cir. 2011) (same), petition for cert. filed (March 19, 2012) (No. 11-10759); United States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011) (same); United States v. Brown, 653 F.3d 337, 340 n.1 (4th Cir. 2011) (same). Thus, the operative question in determining whether Dixon is eligible for a sentence reduction is whether his plea agreement expressly uses a Guidelines sentencing range to establish his term of imprisonment. It does not, and under Justice Sotomayor's controlling rationale, he is not eligible.
Under Justice Sotomayor's approach, a prisoner sen- tenced under a binding plea agreement is eligible for § 3582(c)(2) relief only if the binding plea agreement itself expressly refers to and relies on a guideline sen- tencing range. Dixon's written plea agreement provided that "the parties have agreed that the sentence imposed by the Court shall include a term of imprisonment in the custody of the Bureau of Prisons for at least fifteen but no more than twenty years." Because there was no specific reference to a Guideline range, Dixon's agree- ment does not qualify for Justice Sotomayor's first exception. To qualify under her second exception, his agree- ment either would have had to "expressly use" a Guide- line range or a Guidelines sentencing range would have to be "evident from the agreement itself." No Guideline range appears in the written terms of the plea agree- ment that could have formed the basis for the fifteen to twenty year sentencing range. Nevertheless, the agree- ment sets forth information about Dixon's offense level (37) and criminal history category (VI). The Guideline range for offense level 37 and criminal history category VI is 360 months to life in prison. That much is evident from the agreement itself. Unlike the plea agreement in Freeman, though, Dixon's plea agreement did not ...