FREEMAN v. UNITED STATES

Opinion of KENNEDY, J.

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SUPREME COURT OF THE UNITED STATES
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No. 09–10245

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WILLIAM FREEMAN, PETITIONER v.
UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2011]

JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN join.

The Sentencing Reform Act of 1984, 18 U. S. C. §3551 et seq., calls for the creation of Sentencing Guidelines to inform judicial discretion in order to reduce unwarranted disparities in federal sentencing. The Act allows retroactive amendments to the Guidelines for cases where the Guidelines become a cause of inequality, not a bulwark against it. When a retroactive Guideline amendment is adopted, §3582(c)(2) permits defendants sentenced based on a sentencing range that has been modified to move for a reduced sentence.

The question here is whether defendants who enter into plea agreements that recommend a particular sentence as a condition of the guilty plea may be eligible for relief under §3582(c)(2). See Fed. R. Crim. Proc. 11(c)(1)(C) (authorizing such plea agreements). The Court of Appeals for the Sixth Circuit held that, barring a miscarriage of justice or mutual mistake, defendants who enter into 11(c)(1)(C) agreements cannot benefit from retroactive Guideline amendments.

Five Members of the Court agree that this judgment must be reversed. The Justices who join this plurality opinion conclude that the categorical bar enacted by the Court of Appeals finds no support in §3582(c)(2), Rule 11(c)(1)(C), or the relevant Guidelines policy statements. In every case the judge must exercise discretion to impose an appropriate sentence. This discretion, in turn, is framed by the Guidelines. And the Guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea, including a plea pursuant to an agreement that recommends a particular sentence. The district judge’s decision to impose a sentence may therefore be based on the Guidelines even if the defendant agrees to plead guilty under Rule 11(c)(1)(C). Where the decision to impose a sentence is based on a range later subject to retroactive amendment, §3582(c)(2) permits a sentence reduction.

Section 3582(c)(2) empowers district judges to correct sentences that depend on frameworks that later prove unjustified. There is no reason to deny §3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.

JUSTICE SOTOMAYOR would reverse the judgment on a different ground set out in the opinion concurring in the judgment. That opinion, like the dissent, would hold that sentences following 11(c)(1)(C) agreement are based on the agreement rather than the Guidelines, and therefore that §3582(c)(2) relief is not available in the typical case. But unlike the dissent she would permit the petitioner here to seek a sentence reduction because his plea agreement in express terms ties the recommended sentence to the Guidelines sentencing range.

The reasons that lead those Members of the Court who join this plurality opinion may be set forth as follows.

I

A Federal courts are forbidden, as a general matter, to “modify a term of imprisonment once it has been imposed,” 18 U. S. C. §3582(c); but the rule of finality is subject to a few narrow exceptions. Here, the exception is contained in a statutory provision enacted to permit defendants whose Guidelines sentencing range has been lowered by retroactive amendment to move for a sentence reduction if the terms of the statute are met. The statute provides: “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 pursuant to 28 U. S. C. 994(o) . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” §3582(c)(2).

This case concerns the application of the statute to cases in which defendants enter into plea agreements under Rule 11(c)(1)(C). That Rule permits the parties to “agree that a specific sentence or sentencing range is the appropriate disposition of the case, . . . [a request which] binds the court once the court accepts the plea agreement.” The question is whether defendants who enter into 11(c)(1)(C) agreements that specify a particular sentence may be said to have been sentenced “based on” a Guidelines sentencing range, making them eligible for relief under §3582(c)(2).

B

Petitioner William Freeman was indicted in 2005 for various crimes, including possessing with intent to distribute cocaine base. 21 U. S. C. §§841(a)(1); (b)(1)(C). He entered into an agreement under Rule 11(c)(1)(C) in which he agreed to plead guilty to all charges. In return the Government “agree[d] that a sentence of 106 months’ incarceration is the appropriate disposition of this case.” App. 26a. The agreement states that “[b]oth parties have independently reviewed the Sentencing Guidelines applicable in this case,” and that “[Freeman] agrees to have his sentence determined pursuant to the Sentencing Guidelines.” The agreement reflects the parties’ expectation that Freeman would face a Guidelines range of 46 to 57 months, id., at 27a–28a (Offense Level 19, Criminal History Category IV), along with a consecutive mandatory minimum of 60 months for possessing a firearm in furtherance of a drug-trafficking crime under 18 U. S. C. §924(c)(1)(A). The recommended sentence of 106 months thus corresponded with the minimum sentence suggested by the Guidelines, in addition to the 60-month §924(c) (1)(A) sentence.

The District Court accepted the plea agreement. At the sentencing hearing, the court “adopt[ed] the findings of the probation officer disclosed in the probation report and application of the guidelines as set out therein.” App. 47a. “[H]aving considered the advisory guidelines and 18 USC 3553(a),” the court imposed the recommended 106-month sentence, which was “within the guideline ranges”—the 46- to 57-month range the parties had anticipated plus the mandatory 60 months under §924(c)(1)(A)—and “sufficient to meet the objectives of the law.” Id. at 48a–49a.

Three years later, the Commission issued a retroactive amendment to the Guidelines to remedy the significant disparity between the penalties for cocaine base and powder cocaine offenses. See United States Sentencing Commission, Guidelines Manual Supp. App. C, Amdt. 706 (Nov. 2010) (USSG) (effective Nov. 1, 2007) (adjusting Guidelines); id., Amdt. 713 (effective Mar. 3, 2008) (making Amendment 706 retroactive). Its effect was to reduce Freeman’s applicable sentencing range to 37 to 46 months, again with the consecutive 60-month mandatory minimum. App. 142a–144a (Sealed).

Freeman moved for a sentence reduction under §3582(c)(2). The District Court, however, denied the motion, and the Court of Appeals for the Sixth Circuit affirmed. United States v. Goins, 355 Fed. Appx. 1 (2009). Adhering to its decision in United States v. Peveler, 359 F. 3d 369 (2004), the Court of Appeals held that defendants sentenced following 11(c)(1)(C) agreements that specify a particular sentence are ineligible for §3582(c)(2) relief, barring a miscarriage of justice or mutual mistake.

This Court granted certiorari. 561 U. S. __ (2010).

II

Federal sentencing law requires the district judge in every case to impose “a sentence sufficient, but not greater than necessary, to comply with” the purposes of federal sentencing, in light of the Guidelines and other §3553(a) factors. 18 U. S. C. §3553(a). The Guidelines provide a framework or starting point—a basis, in the commonsense meaning of the term—for the judge’s exercise of discretion. E.g., 1 Oxford English Dictionary 977 (2d ed. 1989). Rule 11(c)(1)(C) permits the defendant and the prosecutor to agree that a specific sentence is appropriate, but that agreement does not discharge the district court’s independent obligation to exercise its discretion. In the usual sentencing, whether following trial or plea, the judge’s reliance on the Guidelines will be apparent, for the judge will use the Guidelines range as the starting point in the analysis and impose a sentence within the range. Gall v. United States, 552 U. S. 38, 49 (2007). Even where the judge varies from the recommended range, id., at 50, if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense a basis for the sentence.

Rule 11(c)(1)(C) makes the parties’ recommended sentence binding on the court “once the court accepts the plea agreement,” but the governing policy statement confirms that the court’s acceptance is itself based on the Guidelines. See USSG §6B1.2. That policy statement forbids the district judge to accept an 11(c)(1)(C) agreement without first evaluating the recommended sentence in light of the defendant’s applicable sentencing range. The commentary to §6B1.2 advises that a court may accept an 11(c)(1)(C) agreement “only if the court is satisfied either that such sentence is an appropriate sentence within the applicable guideline range or, if not, that the sentence departs from the applicable guideline range for justifiable reasons.” Cf. Stinson v. United States, 508 U. S. 36 (1993) (Guidelines commentary is authoritative). Any bargain between the parties is contingent until the court accepts the agreement. The Guidelines require the district judge to give due consideration to the relevant sentencing range, even if the defendant and prosecutor recommend a specific sentence as a condition of the guilty plea.

This approach finds further support in the policy statement that applies to §3582(c)(2) motions. See USSG §1B1.10. It instructs the district court in modifying a sentence to substitute only the retroactive amendment and then leave all original Guidelines determinations in place. §1B1.10(b)(1). In other words, the policy statement seeks to isolate whatever marginal effect the sincerejected Guideline had on the defendant’s sentence. Working backwards from this purpose, §3582(c)(2) modification proceedings should be available to permit the district court 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. This is the only rule consistent with the governing policy statement, a statement that rests on the premise that a Guideline range may be one of many factors that determine the sentence imposed.

Thus, the text and purpose of the three relevant sources—the statute, the Rule, and the governing policy statements—require the conclusion that the district court has authority to entertain §3582(c)(2) motions when sentences are imposed in light of the Guidelines, even if the defendant enters into an 11(c)(1)(C) agreement.

III

The transcript of petitioner’s sentencing hearing reveals that his original sentence was based on the Guidelines. The District Court first calculated the sentencing range, as both §3553(a)(4) and §6B1.2(c) require. App. 47a, 49a. It explained that it “considered the advisory guidelines and 18 USC 3553(a),” and that “the sentence imposed . . . fall[s] within the guideline rang[e] and [is] sufficient to meet the objectives of the law.” Id., at 48a–49a. Apart from the defense attorney’s initial statement that the case involved a “(C) plea,” id., at 47a, the hearing proceeded as if the agreement did not exist. The court expressed its independent judgment that the sentence was appropriate in light of the applicable Guidelines range, and its decision was therefore “based on” that range.

IV

The Government asks this Court to hold that sentences like petitioner’s, which follow an 11(c)(1)(C) agreement, are based only on the agreement and not the Guidelines, and therefore that defendants so sentenced are ineligible for §3582(c)(2) relief. The Government’s position rests in part on the concern that the conclusion reached here will upset the bargain struck between prosecutor and defendant. See Brief for United States 42–43. That, however, has nothing to do with whether a sentence is “based on” the Guidelines under §3582(c)(2). And in any event, the concern is overstated. Retroactive reductions to sentencing ranges are infrequent, so the problem will not arise often. Thompson, DOJ’s Attack on Federal Judicial “Leniency,” the Supreme Court’s Response, and the Future of Criminal Sentencing, 44 Tulsa L. Rev. 519, 535 (2009). More important, the district court’s authority under §3582(c)(2) is subject to significant constraints, constraints that can be enforced by appellate review.

The binding policy statement governing §3582(c)(2) motions places considerable limits on district court discretion. All Guidelines decisions from the original sentencing remain in place, save the sentencing range that was altered by retroactive amendment. USSG §1B1.10(b)(1). In an initial sentencing hearing, a district court can vary below the Guidelines; but, by contrast, below-Guidelines modifications in §3582(c)(2) proceedings are forbidden, USSG §1B1.10(b)(2)(A), except where the original sentence was itself a downward departure. §1B1.10(b)(2)(B). And the court must always “consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment.” §1B1.10, comment., n. 1(B)(ii). The district court’s authority is limited; and the Courts of Appeals, and ultimately this Court, can ensure that district courts do not overhaul plea agreements, thereby abusing their authority under §3582(c)(2). See Dillon v. United States, 560 U. S. ___ (2010) (reviewing and affirming a §3582(c)(2) sentence reduction); Gall, 552 U. S., at 49 (all sentences are reviewable for abuse of discretion).

The Government would enact a categorical bar on §3582(c)(2) relief. But such a bar would prevent district courts from making an inquiry that is within their own special knowledge and expertise. What is at stake in this case is a defendant’s eligibility for relief, not the extent of that relief. Indeed, even where a defendant is permitted to seek a reduction, the district judge may conclude that a reduction would be inappropriate. District judges have a continuing professional commitment, based on scholarship and accumulated experience, to a consistent sentencing policy. They can rely on the frameworks they have devised to determine whether and to what extent a sentence reduction is warranted in any particular case. They may, when considering a §3582(c)(2) motion, take into account a defendant’s decision to enter into an 11(c)(1)(C) agreement. If the district court, based on its experience and informed judgment, concludes the agreement led to a more lenient sentence than would otherwise have been imposed, it can deny the motion, for the statute permits but does not require the court to reduce a sentence. This discretion ensures that §3582(c)(2) does not produce a windfall.

As noted, the opinion concurring in the judgment suggests an intermediate position. That opinion argues that in general defendants sentenced following 11(c)(1)(C) agreements are ineligible for §3582(c)(2) relief, but relief may be sought where the plea agreement itself contemplates sentence reduction. The statute, however, calls for an inquiry into the reasons for a judge’s sentence, not the reasons that motivated or informed the parties. If, as the Government suggests, the judge’s decision to impose a sentence is based on the agreement, then §3582(c)(2) does not apply. The parties cannot by contract upset an otherwise-final sentence. And the consequences of this erroneous rule would be significant. By allowing modification only when the terms of the agreement contemplate it, the proposed rule would permit the very disparities the Sentencing Reform Act seeks to eliminate.

The Act aims to create a comprehensive sentencing scheme in which those who commit crimes of similar severity under similar conditions receive similar sentences. See 18 U. S. C. §3553(a)(6); K. Stith & J. Cabranes, Fear of Judging 104–105 (1998). Section 3582(c)(2) contributes to that goal by ensuring that district courts may adjust sentences imposed pursuant to a range that the Commission concludes are too severe, out of step with the seriousness of the crime and the sentencing ranges of analogous offenses, and inconsistent with the Act’s purposes.

The crack-cocaine range here is a prime example of an unwarranted disparity that §3582(c)(2) is designed to cure. The Commission amended the crack-cocaine Guidelines to effect a “partial remedy” for the “urgent and compelling” problem of crack-cocaine sentences, which, the Commission concluded, “significantly undermines the various congressional objectives set forth in the Sentencing Reform Act.” United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy, pp. 8–10 (May 2007); see also USSG Supp. App. C, Amdt. 706; Kimbrough v. United States, 552 U. S. 85, 99–100 (2007). The Commission determined that those Guidelines were flawed, and therefore that sentences that relied on them ought to be reexamined. There is no good reason to extend the benefit of the Commission’s judgment only to an arbitrary subset of defendants whose agreed sentences were accepted in light of a since-rejected Guidelines range based on whether their plea agreements refer to the Guidelines. Congress enacted §3582(c)(2) to remedy systemic injustice, and the approach outlined in the opinion concurring in the judgment would undercut a systemic solution.

Even when a defendant enters into an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek §3582(c)(2) relief. This straightforward analysis would avoid making arbitrary distinctions between similar defendants based on the terms of their plea agreements. And it would also reduce unwarranted disparities in federal sentencing, consistent with the purposes of the Sentencing Reform Act.

* * * The judgment of the Court of Appeals is reversed and this case is remanded for further proceedings. It is so ordered.

SOTOMAYOR, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

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No. 09–10245

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WILLIAM FREEMAN, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2011]

JUSTICE SOTOMAYOR, concurring in the judgment.

I agree with the plurality that petitioner William Freeman is eligible for sentence reduction under 18 U. S. C. §3582(c)(2), but I differ as to the reason why. In my view, the term of imprisonment imposed by a district court pursuant to an agreement authorized by Federal Rule of Criminal Procedure 11(c)(1)(C) ((C) agreement) is “based on” the agreement itself, not on the judge’s calculation of the Sentencing Guidelines. However, I believe that if a (C) agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission, the term of imprisonment is “based on” the range employed and the defendant is eligible for sentence reduction under §3582(c)(2). I

To ask whether a particular term of imprisonment is “based on” a Guidelines sentencing range is to ask whether that range serves as the basis or foundation for the term of imprisonment. No term of imprisonment— whether derived from a (C) agreement or otherwise—has legal effect until the court enters judgment imposing it. As a result, in applying §3582(c)(2) a court must discern the foundation for the term of imprisonment imposed by the sentencing judge. As the plurality explains, in the normal course the district judge’s calculation of the Guidelines range applicable to the charged offenses will serve as the basis for the term of imprisonment imposed. See ante, at 5; see also Gall v. United States, 552 U. S. 38, 49 (2007).

Sentencing under (C) agreements, however, is different. At the time of sentencing, the term of imprisonment imposed pursuant to a (C) agreement does not involve the court’s independent calculation of the Guidelines or consideration of the other 18 U. S. C. §3553(a) factors. The court may only accept or reject the agreement, and if it chooses to accept it, at sentencing the court may only impose the term of imprisonment the agreement calls for; the court may not change its terms. See Fed. Rule Crim. Proc. 11(c)(3)(A) (“To the extent the plea agreement is of the type specified in [Rule 11(c)(1)(C)], the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report”); Advisory Committee’s Notes on 1979 Amendments to Fed. Rule Crim. Proc. 11, 18 U. S. C. App., pp. 583–584 (1982 ed.) (“[C]ritical to a . . . (C) agreement is that the defendant receive the . . . agreed-to sentence”); accord, United States v. Rivera-Martínez, 607 F. 3d 283, 286 (CA1 2010); United States v. Green, 595 F. 3d 432, 438 (CA2 2010).

In the (C) agreement context, therefore, it is the binding plea agreement that is the foundation for the term of imprisonment to which the defendant is sentenced. At the moment of sentencing, the court simply implements the terms of the agreement it has already accepted. Contrary to the plurality’s view, see ante, at 5–6, the fact that USSG §6B1.2(c) (Nov. 2010) instructs a district court to use the Guidelines as a yardstick in deciding whether to accept a (C) agreement does not mean that the term of imprisonment imposed by the court is “based on” a particular Guidelines sentencing range. The term of imprisonment imposed by the sentencing judge is dictated by the terms of the agreement entered into by the parties, not the judge’s Guidelines calculation. In short, the term of imprisonment imposed pursuant to a (C) agreement is, for purposes of §3582(c)(2), “based on” the agreement itself.

To hold otherwise would be to contravene the very purpose of (C) agreements—to bind the district court and allow the Government and the defendant to determine what sentence he will receive. Although district courts ordinarily have significant discretion in determining the appropriate sentence to be imposed on a particular defendant, see Gall, 552 U. S., at 46, under Rule 11(c)(1)(C) it is the parties’ agreement that determines the sentence to be imposed, see Advisory Committee’s Notes on 1999 Amendments to Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 1570 (2000 ed.) (noting that, under a (C) agreement, “the government and defense have actually agreed on what amounts to an appropriate sentence . . . . [T]his agreement is binding on the court once the court accepts it”). To be sure, the court “retains absolute discretion whether to accept a plea agreement,” ibid., but once it does it is bound at sentencing to give effect to the parties’ agreement as to the appropriate term of imprisonment.

Allowing district courts later to reduce a term of imprisonment simply because the court itself considered the Guidelines in deciding whether to accept the agreement would transform §3582(c)(2) into a mechanism by which courts could rewrite the terms of (C) agreements in ways not contemplated by the parties. At the time that §3582(c)(2) was enacted in 1984, it was already well understood that, under Rule 11, the term of imprisonment stipulated in a (C) agreement bound the district court once it accepted the agreement. See Fed. Rule Crim. Proc. 11(e)(1) (1982) (specifying that the parties to a (C) agreement may “agree that a specific sentence is the appropriate disposition of the case”); United States v. French, 719 F. 2d 387, 389, n. 2 (CA11 1983) (per curiam) (noting that a Rule 11(e)(1)(C) plea agreement was a “ ‘binding’ plea bargain”).1

In the absence of any indication from the statutory text or legislative history that §3582(c)(2) was meant to fundamentally alter the way in which Rule 11(c)(1)(C) operates, I cannot endorse the plurality’s suggestion that §3582(c)(2) should be understood “to permit the district court 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.” Ante, at 6; cf. Dillon v. United States, 560 U. S. ___, ___ (2010) (slip op., at 8) (“Congress intended [§3582(c)(2)] to authorize only a limited adjustment to an otherwise final sentence”).

By the same token, 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, as Freeman argues. Undoubtedly, he is correct that in most cases the Government and the defendant will negotiate the term of imprisonment in a (C) agreement by reference to the applicable Guidelines provisions. See Brief for Petitioner 30–31 (“[T]he Guidelines are . . . the starting point and initial benchmark for plea negotiations”); Brief for United States 33 (noting the “concededly strong likelihood that the parties will . . . calculat[e] and conside[r] potential Guidelines ranges in the course of negotiating a plea agreement and selecting a specific sentence”). This only makes sense; plea bargaining necessarily occurs in the shadow of the sentencing scheme to which the defendant would otherwise be subject. See United States v. Booker, 543 U. S. 220, 255 (2005) (“[P]lea bargaining takes place in the shadow of . . . a potential trial” (emphasis deleted)).

The term of imprisonment imposed by the district court, however, is not “based on” those background negotiations; instead, as explained above, it is based on the binding agreement produced by those negotiations. I therefore cannot agree with Freeman that §3582(c)(2) calls upon district courts to engage in a free-ranging search through the parties’ negotiating history in search of a Guidelines sentencing range that might have been relevant to the agreement or the court’s acceptance of it. Nor can I agree with the plurality that the district judge’s calculation of the Guidelines provides the basis for the term of imprisonment imposed pursuant to a (C) agreement.

II

These conclusions, however, do not mean that a term of imprisonment imposed pursuant to a (C) agreement can never be reduced under §3582(c)(2), as the Government contends. For example, Rule 11(c)(1)(C) allows the parties to “agree that a specific . . . sentencing range is the appropriate disposition of the case.” In delineating the agreedupon term of imprisonment, some (C) agreements may call for the defendant to be sentenced within a particular Guidelines sentencing range. In such cases, the district court’s acceptance of the agreement obligates the court to sentence the defendant accordingly, and 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). If that Guidelines range is subsequently lowered by the Sentencing Commission, the defendant is eligible for sentence reduction.

Similarly, 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. Therefore, when a (C) agreement expressly uses a Guidelines sentencing range to establish the term of imprisonment, and that range is subsequently lowered by the Commission, the defendant is eligible for sentence reduction under §3582(c)(2).2

In so holding, I necessarily reject the categorical rule advanced by the Government and endorsed by the dissent, which artificially divorces a (C) agreement from its express terms.3 Because the very purpose of a (C) agreement is to allow the parties to determine the defendant’s sentence, when the agreement itself employs the particular Guidelines sentencing range applicable to the charged offenses in establishing the term of imprisonment, the defendant is eligible to have his sentence reduced under §3582(c)(2).4 In such cases, the district court’s reduction of the sentence does not rewrite the plea agreement; instead, it enforces the agreement’s terms.

Like the plurality, I am not persuaded by the Government’s argument that allowing a term of imprisonment imposed pursuant to a (C) agreement to be reduced under §3582(c)(2) deprives the Government of the benefit of the bargain it struck with the defendant. When a (C) agreement explicitly employs a particular Guidelines sentencing range to establish the term of imprisonment, the agreement itself demonstrates the parties’ intent that the imposed term of imprisonment will be based on that range, as required for sentence reduction under the statute.5 The Government’s concern that application of §3582(c)(2) to (C) agreements will result in certain defendants receiving an “unjustified windfall” is therefore misplaced. See Brief for United States 40, 43.

Furthermore, in cases where the Government believes that even the limited sentence reduction authorized by §3582(c)(2) and USSG §1B1.10 improperly benefits the defendant, it can argue to the district court that the court should not exercise its discretion under the statute to reduce the sentence.6 See Dillon, 560 U. S., at ___ (slip op., at 9) (noting that, in applying §3582(c)(2), the court must “consider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in [18 U. S. C.] §3553(a)”).

Finally, if the Government wants to ensure ex ante that a particular defendant’s term of imprisonment will not be reduced later, the solution is simple enough: Nothing prevents the Government from negotiating with a defendant to secure a waiver of his statutory right to seek sentence reduction under §3582(c)(2), just as it often does with respect to a defendant’s rights to appeal and collaterally attack the conviction and sentence.7 See 18 U. S. C. §3742; 28 U. S. C. §2255 (2006 ed., Supp. III); see also App. 28a–29a (provision in Freeman’s agreement expressly waiving both rights). In short, application of §3582(c)(2) to an eligible defendant does not—and will not—deprive the Government of the benefit of its bargain.

III

In order to conclude that Freeman is eligible for sentence reduction under §3582(c)(2), the plea agreement between Freeman and the Government must use a Guidelines sentencing range that has subsequently been lowered by the Sentencing Commission to establish the term of imprisonment imposed by the District Court. Freeman’s agreement does.

The agreement states that Freeman “agrees to have his sentence determined pursuant to the Sentencing Guidelines,” App. 28a, and that 106 months is the total term of imprisonment to be imposed, id., at 26a. The agreement also makes clear that the §924(c)(1)(A) count to which Freeman agrees to plead guilty carries a minimum sentence of 60 months, “which must be served consecutively to” any other sentence imposed. Id., at 27a. This leaves 46 months unaccounted for. The agreement sets Freeman’s offense level at 19, as determined by the quantity of drugs and his acceptance of responsibility, and states that the parties anticipate a criminal history category of IV. Id., at 27a–28a. Looking to the Sentencing Guidelines, an offense level of 19 and a criminal history category of IV produce a sentencing range of 46 to 57 months.8 See USSG ch. 5, pt. A (sentencing table). Therefore, contrary to the dissent’s curious suggestion that “there is no way of knowing what th[e] sentence was ‘based on,’ ” post, at 6, it is evident that Freeman’s agreement employed the 46-month figure at the bottom end of this sentencing range, in combination with the 60-month mandatory minimum sentence under §924(c)(1)(A), to establish his 106-month sentence.9 Thus the first of §3582(c)(2)’s conditions is satisfied—Freeman’s term of imprisonment is “based on” a Guidelines sentencing range.

In 2007 the Commission amended the Guidelines provisions applicable to cocaine base offenses, such that the offense level applicable to the quantity of drugs for which Freeman was charged was lowered from 22 to 20. See App. 142a–143a (Sealed); USSG Supp. App. C, Amdt. 706. Taking into account the three-level reduction for acceptance of responsibility, Freeman’s recalculated offense level is 17, resulting in an amended sentencing range of 37 to 46 months. Thus there can be no doubt that the Guidelines sentencing range originally used to establish Freeman’s term of imprisonment “has subsequently been lowered by the Sentencing Commission,” §3582(c)(2), such that the amendment “ha[s] the effect of lowering [Freeman’s] applicable guideline range,” §1B1.10(a)(2)(B). As a result, Freeman’s term of imprisonment satisfies the second of §3582(c)(2)’s conditions. I therefore concur in the plurality’s judgment that he is eligible for sentence reduction.

1 Prior to 2002, Rule 11’s provisions governing binding plea agreements were located in Rule 11(e)(1)(C). In substance they were largely identical to the current rules in 11(c)(1)(C). See Fed. Rule Crim. Proc. 11(e)(1)(C) (2000).

2 The dissent suggests that this rule results from a “mistaken shift in analysis” in this opinion from the actions of the judge to the intent of the parties. See post, at 4 (opinion of ROBERTS, C. J.). The purpose of a (C) agreement, however, is to bind the sentencing court to the terms agreed upon by the parties. See supra, at 3–4. Therefore, to determine whether a sentence imposed pursuant to a (C) agreement was “based on” a Guidelines sentencing range, the reviewing court must necessarily look to the agreement itself.

3 The majority of the Courts of Appeals to have addressed this question have taken approaches consistent with the one I take today. See United States v. Rivera-Martínez, 607 F. 3d 283, 286–287 (CA1 2010); United States v. Ray, 598 F. 3d 407, 409–410 (CA7 2010); United States v. Main, 579 F. 3d 200, 203 (CA2 2009); United States v. Scurlark, 560 F. 3d 839, 842–843 (CA8 2009). It appears that only the Third Circuit has applied the absolute rule advanced by the Government. See United States v. Sanchez, 562 F. 3d 275, 282, and n. 8 (2009). As noted by the plurality, see ante, at 1, even the Sixth Circuit allows for sentence reduction “to avoid a miscarriage of justice or to correct a mutual mistake,” United States v. Peveler, 359 F. 3d 369, 378, n. 4 (2004) (internal quotation marks omitted). And only two Courts of Appeals have adopted a wide-ranging approach similar to the one suggested by Freeman. See United States v. Garcia, 606 F. 3d 209, 214 (CA5 2010) (per curiam); United States v. Cobb, 584 F. 3d 979, 985 (CA10 2009).

4 The dissent contends that, even when a (C) agreement expressly uses a Guidelines sentencing range to establish the term of imprisonment, the district court imposing a sentence pursuant to that agreement does not “appl[y]” that range within the meaning of the applicable Guidelines policy statement. See post, at 4–5 (citing USSG §1B1.10(b)(1) (Nov. 2010)). But in so arguing, the dissent—like the Government—would have courts ignore the agreement’s express terms, which the court “applie[s]” when imposing the term of imprisonment.

5 The plurality asserts that “[t]here is no good reason to extend the benefit [of sentence reduction] only to an arbitrary subset of defendants . . . based on whether their plea agreements refer to the Guidelines.” Ante, at 10. But the “good reason” is evident: Rule 11(c)(1)(C)’s entire purpose is to allow the parties’ intent to determine sentencing outcomes. See supra, at 3–4. 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.

6 For example, the district court might decline to reduce the term of imprisonment of an eligible defendant in light of the Government’s argument that it made significant concessions in the agreement—such as dropping a charge or forgoing a future charge—and therefore it would not have agreed to a lower sentence at the time the agreement was made.

7 The opposite would not necessarily be true, however, under the reading of §3582(c)(2) proposed by the Government and the dissent. If a district court has no statutory authority to reduce a term of imprisonment imposed pursuant to a (C) agreement—because such a term is never “based on” a Guidelines sentencing range within the meaning of §3582(c)(2)—it is not clear how the parties could effectively confer that authority upon the court by the terms of their agreement.

8 Because it is the parties’ agreement that controls in the (C) agreement context, see supra, at 3–4, even if the District Court had calculated the range differently than the parties, see post, at 8 (ROBERTS, C. J., dissenting), Freeman would still be eligible for resentencing, as long as the parties’ chosen range was one that was “subsequently . . . lowered by the Sentencing Commission,” §3582(c)(2).

9 The dissent asks whether Freeman would be eligible for sentence reduction if the agreement had called for a 53-month term of imprisonment. See post, at 7. Though that question is not presented by the facts of this case, the answer is evident from the foregoing discussion: If the agreement itself made clear that the parties arrived at the 53month term of imprisonment by determining the sentencing range applicable to Freeman’s offenses and then halving the 106-month figure at its low end, he would have been eligible under §3582(c)(2). See United States v. Franklin, 600 F. 3d 893, 897 (CA7 2010) (noting that a (C) agreement would not foreclose relief under §3582(c)(2) if it provided that the term of imprisonment was to be 40 percent below the low end of the applicable sentencing range). Of course, if a (C) agreement “does not contain any references to the Guidelines,” post, at 8 (ROBERTS, C. J., dissenting), there is no way of knowing whether the agreement “use[d] a Guidelines sentencing range to establish the term of imprisonment,” supra, at 6, and a prisoner sentenced under such an agreement would not be eligible. It is therefore unclear why the dissent believes that the straightforward inquiry called for by the rule I apply today will “foster confusion” among the lower courts. Post, at 7. This approach is consistent with the one already taken by most Courts of Appeals, see n. 3, supra, and there is no indication that they have found it unpalatable, cf. post, at 9.

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–10245

_________________

WILLIAM FREEMAN, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2011]

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA, JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.

The plurality and the opinion concurring in the judg ­ ment agree on very little except the judgment. I on the other hand agree with much of each opinion, but disagree on the judgment. I agree with the concurrence that the sentence imposed under a Rule 11(c)(1)(C) plea agreement is based on the agreement, not the Sentencing Guidelines. I would, however, adhere to that logic regardless whether the agreement could be said to “use” or “employ” a Guide ­ lines range in arriving at the particular sentence specified in the agreement. Ante, at 1 (opinion of SOTOMAYOR, J.). In that respect I agree with the plurality that the ap ­ proach of the concurrence to determining when a Rule 11(c)(1)(C) sentence may be reduced is arbitrary and unworkable. Ante, at 9–10.

Section 3582(c)(2) provides that “in the case of a defen ­ dant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission,” a district court “may reduce the term of imprisonment . . . if such a reduc ­ tion is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U. S. C. §3582(c)(2). The lone issue here is whether petitioner William Free ­ man meets the initial prerequisite of having been sen­ tenced to a term of imprisonment “based on” a subse ­ quently reduced sentencing range.

I agree with JUSTICE SOTOMAYOR that “the term of im ­ prisonment imposed pursuant to a (C) agreement is, for purposes of §3582(c)(2), ‘based on’ the agreement itself.” Ante, at 3. In this case, Freeman executed a written plea agreement in which the parties “agree[d] that a sentence of 106 months’ incarceration [was] the appropriate disposi ­ tion.” App. 26a. Because the plea agreement was entered pursuant to Rule 11(c)(1)(C), that proposed sentence be ­ came binding on the District Court once it accepted the agreement. See Fed. Rule Crim. Proc. 11(c)(1)(C) (the parties’ “request” for “a specific sentence” “binds the court once the court accepts the plea agreement”). As a result, when determining the sentence to impose on Freeman, the District Court needed to consult one thing and one thing only—the plea agreement. See ante, at 2 (opinion of SOTOMAYOR, J.) (“At the moment of sentencing, the court simply implements the terms of the agreement it has al ­ ready accepted”).

I also agree with JUSTICE SOTOMAYOR that the “term of imprisonment imposed by the sentencing judge is dictated by the terms of the agreement entered into by the par ­ ties, not the judge’s Guidelines calculation,” and that “[a]l-lowing district courts later to reduce a term of impris ­ onment simply because the court itself considered the Guidelines in deciding whether to accept the agreement would transform §3582(c)(2) into a mechanism by which courts could rewrite the terms of (C) agreements in ways not contemplated by the parties.” Ante, at 3.

But then comes the O. Henry twist: After cogently ex ­ plaining why a Rule 11(c)(1)(C) sentence is based on the plea agreement, JUSTICE SOTOMAYOR diverges from that straightforward conclusion and holds that Freeman never ­ theless satisfies the threshold requirement in §3582(c)(2). According to her opinion, if a Rule 11(c)(1)(C) “agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprison ­ ment”—or if such use is “evident from the agreement”— then the defendant’s “term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sen­ tence reduction under §3582(c)(2).” Ante, at 1, 6. This exception is in my view as mistaken as the position of the plurality—and basically for the same reasons.

JUSTICE SOTOMAYOR begins the departure from her own rule innocently enough. As she explains, “some (C) agreements may call for the defendant to be sentenced within a particular Guidelines sentencing range.” Ante, at 5. In such a case, according to JUSTICE SOTOMAYOR, there can be “no doubt” that the prison term the court imposes is “based on” the agreed-upon sentencing range, and there ­ fore the defendant is eligible for sentence reduction. Ibid.

Whether or not that is true, it provides no support for the next step:

“Similarly, 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 appli ­ cable to the offense to which the defendant pleaded guilty. As long as that sentencing range is evident from the agreement itself . . . the term of imprison ­ ment imposed by the court in accordance with that agreement is ‘based on’ that range.” Ante, at 6.

This category of cases is not “similar” to the first at all. It is one thing to say that a sentence imposed pursuant to an agreement expressly providing that the court will sentence the defendant within an applicable Guidelines range is “based on” that range. It is quite another to conclude that an agreement providing for a specific term is “similarly” based on a Guidelines range, simply because the specified term can be said to reflect that range. According to the concurrence, if the parties simply “con ­ sider[ ] the Guidelines” or “negotiate . . . by reference” to them, the defendant is not eligible for a sentence reduc ­ tion. Ante, at 4. If, however, the agreement sets forth a specific term but it is somehow “clear that the basis for the specified term is a Guidelines sentencing range,” then the defendant is eligible for a sentence reduction. Ante, at 6. This head-scratching distinction between negotiating by reference to the Guidelines and using them as a basis for the specified term makes for an unworkable test that can yield only arbitrary results.

The confusion is compounded by the varying standards in the concurrence. Sometimes the test is whether an agreement “expressly uses” a Guidelines sentencing range, ante, at 1, 6; see ante, at 7 (“explicitly employs”). Other times the test is whether such use is “evident,” ante, at 6, 9; see ante, at 10, n. 9 (“clear”). A third option is whether the agreement “indicate[s] the parties’ intent to base the term of imprisonment on a particular Guideline range.” Ante, at 7, n. 5 (emphasis added).

The error in the concurring opinion is largely attribut ­ able to a mistaken shift in analysis. In the first half of the opinion, the inquiry properly looks to what the judge does: He is, after all, the one who imposes the sentence. After approving the agreement, the judge considers only the fixed term in the agreement, so the sentence he actually imposes is not “based on” the Guidelines.

In the second half of the opinion, however, the analysis suddenly shifts, and focuses on the parties: Did they “use” or “employ” the Guidelines in arriving at the term in their agreement? But §3582(c)(2) is concerned only with whether a defendant “has been sentenced to a term of imprisonment based on a sentencing range.” Only a court can sentence a defendant, so there is no basis for examin ­ ing why the parties settled on a particular prison term.

This conclusion dovetails with USSG §1B1.10(b)(1)— the Sentencing Commission’s policy statement governing whether a defendant is eligible for a reduction under §3582(c)(2). As we explained last Term, §3582(c)(2) re ­ quires a district court “to follow the Commission’s instruc ­ tions in §1B1.10 to determine the prisoner’s eligibility for a sentence modification.” Dillon v. United States, 560 U. S. ___, ___ (2010) (slip op., at 9). According to §1B1.10(b)(1), the court must first determine “the amended guideline range that would have been applicable to the defendant” if the retroactively amended provision had been in effect at the time of his sentencing. “In mak ­ ing such determination, the court shall substitute only the amendments . . . for the corresponding guideline pro ­ visions that were applied when the defendant was sentenced.” USSG §1B1.10(b)(1), p. s. (emphasis added).

As noted, the District Court sentenced Freeman pursu ­ ant to the term specified by his plea agreement; it never “applied” a Guidelines provision in imposing his term of imprisonment. The fact that the court may have “use[d] the Guidelines as a yardstick in deciding whether to ac ­ cept a (C) agreement does not mean that the term of im ­ prisonment imposed by the court is ‘based on’ a particular Guidelines sentencing range.” Ante, at 2–3 (opinion of SOTOMAYOR, J.). Even if the Guidelines were “used” or “employed” by the parties in arriving at the Rule 11(c)(1)(C) sentencing term, they were not “applied when the defendant was sentenced.” Once the District Court accepted the agreement, all that was later “applied” was the sentence set forth in that agreement.

JUSTICE SOTOMAYOR is wrong to assert that her stan ­ dard “does not rewrite the plea agreement” but rather “enforces the agreement’s terms.” Ante, at 7. According to the concurrence, “[w]hen a (C) agreement explicitly em ­ ploys a particular Guidelines sentencing range to establish the term of imprisonment, the agreement itself demon ­ strates the parties’ intent that the imposed term of im ­ prisonment will be based on that range,” and therefore subject to reduction if the Commission subsequently low ­ ers that range. Ibid. In this case, JUSTICE SOTOMAYOR concludes that Freeman’s agreement contemplated such a reduction, even though the parties had “agree[d] that a sentence of 106 months’ incarceration is the appropriate disposition of this case.” App. 26a.

There is, however, no indication whatever that the par ­ ties to the agreement contemplated the prospect of low ­ ered sentencing ranges. And it is fanciful to suppose that the parties would have said “106 months” if what they really meant was “a sentence at the lowest end of the applicable Guidelines range.” Cf. App. 25a (parties in this case recommending “a fine at the lowest end of the appli ­ cable Guideline Range”). In concluding otherwise, the concurrence “ignore[s] the agreement’s express terms.” Ante, at 7, n. 4.

The reality is that whenever the parties choose a fixed term, there is no way of knowing what that sentence was “based on.” The prosecutor and the defendant could well have had quite different reasons for concluding that 106 months was a good deal. Perhaps the prosecutor wanted to devote the limited resources of his office to a different area of criminal activity, rather than try this case. Per ­ haps the defendant had reason to question the credibility of one of his key witnesses, and feared a longer sentence if the case went to trial.

Indeed, the fact that there may be uncertainty about how to calculate the appropriate Guidelines range could be the basis for agreement on a fixed term in a plea under Rule 11(c)(1)(C). Here the agreement made clear that there was some doubt about the Guidelines calculations. See App. 28a (“Both parties reserve the right to object to the USSG §4A1.1 calculation of defendant’s criminal history”); ibid. (the parties acknowledge that their Guide ­ lines calculations “are not binding upon the Court” and that the “defendant understands the Court will independ ­ ently calculate the Guidelines at sentencing and defendant may not withdraw the plea of guilty solely because the Court does not agree with . . . [the] Sentencing Guideline application”).

In addition, parties frequently enter plea agreements that reflect prosecutorial decisions not to pursue particu ­ lar counts. If a defendant faces three counts, and agrees to plead to one if the prosecutor does not pursue the other two, is the sentence reflected in the Rule 11(c)(1)(C) agreement in any sense “based on” the Guidelines sentenc­ ing range for the one count to which the defendant pleaded? Surely not. The concurrence tacitly concedes as much when it suggests that an agreement to “drop[ ] a charge or forgo[ ] a future charge” could ultimately be grounds for not reducing the defendant’s sentence. Ante, at 8, n. 6. But what this really shows is a basic flaw in the “based on” test adopted by that opinion.

Finally, JUSTICE SOTOMAYOR’s approach will foster con ­ fusion in an area in need of clarity. As noted, courts will be hard pressed to apply the distinction between referring to and relying on a Guidelines range. Other questions abound:

What if the agreement contains a particular Guidelines calculation but the agreement’s stipulated sentence is out­ side the parties’ predicted Guidelines range? The test in the concurring opinion is whether the agreement “uses” or “employs” a Guidelines sentencing range to establish the term of imprisonment, ante, at 1, not whether that term falls within the range. In this case, what if the term was 53 months—exactly half the low end of the sentencing range anticipated by the parties? Is it “evident” in that case that the Guidelines were used or employed to estab ­ lish the agreed-upon sentence?* What if the plea agreement does not contain any refer ­ ences to the Guidelines—not even the partial and tenta ­ tive Guidelines calculations in Freeman’s agreement—but the binding sentence selected by the parties corresponds exactly to the low end of the applicable Guidelines range? Is it “evident” in that case that the agreement is based on a sentencing range?

What if the District Court calculates the applicable Guidelines range differently than the parties? This is no academic hypothetical. See, e.g., United States v. Franklin, 600 F. 3d 893, 896–897 (CA7 2010) (noting that “the district court settled on a higher guidelines range than that contemplated in the [Rule 11(c)(1)(C)] plea agree ­ ment”). Is a Rule 11(c)(1)(C) sentence still subject to reduction if the parties relied on the wrong sentencing range? JUSTICE SOTOMAYOR’s surprising answer is “yes,” see ante, at 9, n. 8, even though the governing Guide ­ lines provision specifies that a defendant is only eligible for sentence reduction if the amended Guideline has “the effect of lowering the defendant’s applicable guideline range”—presumably the correct applicable guideline range. See USSG §1B1.10(a)(2), p. s. Relying on error is just one unforeseen consequence of looking not to the specified term in a Rule 11(c)(1)(C) agreement, but instead trying to reconstruct what led the parties to agree to that term in the first place.

This confusion will invite the very thing JUSTICE SOTOMAYOR claims to disavow: a “free-ranging search” by district courts “through the parties’ negotiating history in search of a Guidelines sentencing range that might have been relevant to the agreement.” Ante, at 5. This is par ­ ticularly unfortunate given that the whole point of Rule 11(c)(1)(C) agreements is to provide the parties with cer ­ tainty about sentencing.

* * *

As with any negotiation, parties entering a Rule 11(c) (1)(C) plea agreement must take the bitter with the sweet. Because of today’s decision, however, Freeman gets more sweet and the Government more bitter than either side bargained for. But those who will really be left with a sour taste after today’s decision are the lower courts charged with making sense of it going forward.

I respectfully dissent. * JUSTICE SOTOMAYOR responds that “[i]f the agreement itself made clear” that the parties arrived at the 53-month figure by determining the sentencing range and then halving the range’s low end—106 months—then the sentence could be reduced. Ante, at 10, n. 9. Does the 53-month figure itself make that clear? What if the figure is 26½ months?

Print this transcript Transcript: 

ORAL ARGUMENT OF FRANK W. HEFT, JR., ON BEHALF OF PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 09-10245, Freeman v. United States.

Mr. Heft.

Mr. Heft: Mr. Chief Justice, and may it please the Court:

William Freeman's plea agreement, his presentence report, and the sentencing record all show that his term of imprisonment was based on a crack cocaine guideline that was retroactively lowered by the United States Sentencing Commission.

This case asked the Court to decide whether the fact that a sentencing court accepted a plea agreement under Criminal Rule 11(c)(1)(C) precludes eligibility for a sentence reduction under section 3582(c)(2).

We submit that Mr. Freeman is not barred from eligibility for a (c)(2) sentence reduction for several reasons.

First, under the ordinary definition of Mr. Freeman's term of imprisonment, that term of imprisonment was based on the subsequently lowered guideline.

Second, the categorical ban on eligibility adopted by the Sixth Circuit and advanced by the Government frustrates the purpose underlying section (c)(2) and finds no support in the plain language of the statute, of the rule, and under the terms of Mr. Freeman's plea agreement.

Third, a record-based analysis that reviews the plea agreement, the presentence report, and the sentencing record to determine the basis of the sentence is -- is best suited to correctly implement section (c)(2), and it's -- that record-based analysis supports the conclusion that Mr. Freeman's sentence was indeed based on a retroactively lowered guideline.

The -- the Sixth Circuit--

Chief Justice John G. Roberts: If -- if we issue an opinion and we analyze the statute's language, the statute's purpose, and the statute's legislative history, would the opinion, the judgment be based on each of those or -- or not?

In other words, does everything that goes into the final determination, would you say that determination is based on each of those factors individually?

Mr. Heft: --Yes.

Certainly, it is based -- the determination certainly would be based on the statute, Your Honor, but, as we've -- we've argued in our brief, we've asked the Court to take what we believe to be a record-based analysis and look at -- look at the record in this case, look at the terms of the plea agreement, look at the--

Chief Justice John G. Roberts: No.

My--

Mr. Heft: --I'm sorry.

Chief Justice John G. Roberts: --I think my question goes in a different direction.

This plea agreement, I think, could be said to be based on the sentencing guidelines, but it is also based on the agreement.

In other words, the combination of the two of them is what gives you the -- the sentence.

So how can you say it's based on only the sentencing guidelines when it may not have been imposed in the absence of the plea agreement?

Probably wouldn't have been.

Mr. Heft: Mr. Chief Justice, we don't believe that that's mutually exclusive.

A sentence can be a guideline -- a sentence based on the guidelines, and it can be a sentence based on a C plea agreement.

Justice Samuel Alito: You quote one definition of -- the noun "base" in your brief uses a point from which something can develop, but you omit another standard definition of the term, the principal element or -- or ingredient of anything, considered as its fundamental part.

Why do you do that?

Mr. Heft: Well, Your Honor, I -- I think the dictionary definition that we've given encompasses the definition that Your Honor has just -- just described.

The -- and our position--

Justice Samuel Alito: Well, there's two -- there are two different definitions.

One is something that provides a starting point for analysis.

The other is the fundamental thing on which something is -- it rests.

Mr. Heft: --Well -- well, our contention is--

Justice Samuel Alito: Now, if you use the latter definition, you have to decide which is more fundamental here, the agreement between the parties or the sentencing guidelines, which certainly provided the starting point for the analysis of the sentence by the -- by the district court.

Mr. Heft: --Justice Alito, that's correct.

The guidelines certainly were the starting point, but they were also the principal foundation of this agreement because what the agreement is--

Justice Ruth Bader Ginsburg: Isn't it enough for you to say -- or based not in whole, but in part -- based on, something could be based on several things, and one of them is the guidelines that then existed?

Mr. Heft: --Certainly.

Certainly.

And this -- this plea agreement reflects that it was based on the guidelines.

If you--

Chief Justice John G. Roberts: Well, then are you saying the plea agreement was based on the fact that he was caught with -- with two guns rather than four guns?

Would you be willing to say that?

In other words, everything -- your position, it seems to me, could be criticized for saying everything that contributes to the final 106 months, that that sentence is based on every one of those things--

Mr. Heft: --Well--

Chief Justice John G. Roberts: --which makes the -- which makes the statutory language largely mute on this.

Mr. Heft: --Well, Your Honor, the -- the sentence is based on a number of guidelines.

Each -- no sentence is based on just one guideline, as this plea agreement reflects.

It's based on a compilation of guidelines.

It's -- it's based on the crack guideline, and as prior--

Chief Justice John G. Roberts: Well, it's also based on things that are not reflected in the guidelines.

You've got a particular U.S. attorney who is more lenient in prosecuting these types of crimes than another one.

The fact that you got the minimum under the guidelines might be based on that.

It's based on the fact that this person felt he could handle 106 months in prison, and he wasn't willing to risk whatever the top -- what was the top sentence under the guideline calculation?

Mr. Heft: --It would have been 117 months.

Chief Justice John G. Roberts: So he figures it's better for me to get -- it's based on his decision that I -- 106 months is better than the risk of 117.

Mr. Heft: Well, certainly there are a number of factors that go into plea bargaining and negotiation, but what -- I think what the court has to look at is what is said in that plea agreement.

And I think, as Justice Ginsburg pointed out a minute ago, the definition of "based on" -- if a guideline sentence is -- if a sentence is based in part on the guidelines, that would be adequate under the -- under section--

Chief Justice John G. Roberts: What sentence would he have gotten if he were just sentenced under the guidelines, no plea agreement?

Mr. Heft: --He would have got the -- he would have received the same sentence, Your Honor.

Chief Justice John G. Roberts: Well -- well, how do we know that?

Mr. Heft: Well--

Chief Justice John G. Roberts: The guidelines give you a range.

The judge might have given him 117 months.

Mr. Heft: --But -- but the plea agreement here was for the bottom of the guidelines.

The parties calculated--

Chief Justice John G. Roberts: No, I know.

I'm putting aside the plea agreement.

What would he have gotten under the sentencing guidelines?

We -- we don't know, right?

Mr. Heft: --It would have been left -- left -- well, assume it depends upon the nature of the plea, Your Honor.

You're talking--

Chief Justice John G. Roberts: There's no plea.

He is convicted at trial.

Mr. Heft: --It would be somewhere within that guideline range.

That's correct.

Chief Justice John G. Roberts: So how can you say that this is based on the guideline range when the guideline range would not have been determinative?

Mr. Heft: Well -- well, we're looking -- we're looking at the content of the plea agreement, Your Honor.

The -- the plea agreement says--

Chief Justice John G. Roberts: Yes, I know, but my hypothetical is in a different context.

Mr. Heft: --But even -- even at that, Your Honor, if -- that sentence ultimately is going to be based on a guideline range, and if that guideline range is subsequently lowered by the Sentencing Commission, then the--

Justice Sonia Sotomayor: Counsel, could you -- maybe it would be easier if you would describe to us the situations you don't think would be based on the guidelines.

The Solicitor General claims that since every plea negotiation has to start with the guideline calculation as a starting point for departure and/or consideration by the judge under 6B1, that every C plea agreement would be considered based on.

Are you taking that position?

Mr. Heft: --No, Your Honor.

Absolutely not.

Justice Sonia Sotomayor: All right.

So I'll give you a couple of examples, but you give me more.

Would a plea agreement that doesn't mention the guidelines at all but picks a sentence within the actual guideline -- is that based on the guideline?

Mr. Heft: Possibly, Your Honor.

Justice Sonia Sotomayor: All right.

And how about one that departs or varies from the guideline, the range, whichever word you want to use?

Mr. Heft: Your Honor, the -- the Sentencing Commission, in 1B1.10 note 3, says that a below-guideline sentence can be based on the guidelines.

Justice Sonia Sotomayor: So there -- the Solicitor General is right; there really isn't any situation that you're claiming is not based on?

Mr. Heft: Oh -- oh, no, Your Honor.

There are -- there are C pleas.

Justice Sonia Sotomayor: Give me the examples.

Mr. Heft: All right.

Well, first of all, we've cited cases in our brief where circuit courts have determined that a C plea was not based on the guidelines.

But let me give you another example.

Let's just assume the guideline range is something like 151 to 188 months, and then -- but the parties agree to a sentence of 60 months, and they do that for several reasons.

First of all, maybe the defendant is elderly.

Maybe the defendant has serious medical conditions.

Maybe the defendant has -- was sexually abused as a child.

If those are the factors, if that's the reason why the defendant got that -- received that 60-month sentence, that sentence is not based on the guideline range.

Justice Samuel Alito: Well, wouldn't the guidelines, even in that situation, provide the starting point for analysis?

Isn't the district court obligated, and isn't the -- doesn't the presentence report have to go through the guidelines calculation before the sentence is imposed?

So you start out with the -- the guideline sentence of whatever the figure was that you mentioned, and then you go from there, and maybe you depart downward.

Mr. Heft: That -- that's true.

The -- the guidelines would be the starting point of any negotiation, but--

Justice Samuel Alito: So why wouldn't that be based on the guidelines?

Just because there's such a big downward departure?

Mr. Heft: --It -- Your Honor, it would not be based on the guidelines if those other factors were the motivating reason for the imposition of the sentence.

Justice Stephen G. Breyer: Sorry, I don't understand that.

Don't the guidelines provide for departures?

Mr. Heft: They do, Your Honor.

Justice Stephen G. Breyer: Well -- and aren't you giving a guideline sentence, if you give your reasons as is required by the Sentencing Commission in 6B1.2 and you say -- the judge says, I think this is a special case and, therefore, I am giving a lower sentence?

Just as he's required to do under the guidelines in order to accept a C type agreement.

Mr. Heft: If the parties can show that the sentence is tied to the guidelines.

Justice Stephen G. Breyer: Well, how could it not be?

Wouldn't the judge have to say it's not tied to the guidelines, because I am varying and I no longer wish to apply the guideline?

If he doesn't say that, isn't he applying the guideline?

Mr. Heft: In that instance, he would be -- he would be applying it.

Justice Stephen G. Breyer: Whether he gives the specific robbery 3-point whatever it is, 17 months, or whether he says, I have a special case and I depart under section 5 of the guidelines.

Both of those are guideline sentences, aren't they?

Mr. Heft: If the -- if the judge were to take -- were to actually apply those guidelines and say, based on that guideline, I am going to depart, that sentence is based on the guidelines.

Justice Sonia Sotomayor: So from what base does a judge depart downward?

From the crack cocaine range or from the downward departure range?

Mr. Heft: I think it would depend on the nature of the agreement, Your Honor.

It may very well depend on -- the judge may depart from the crack cocaine.

Justice Sonia Sotomayor: So aren't you just asking us to permit district court judges to make up their own C agreement, to decide what the parties would have done in the absence of a higher range?

And don't we fall prey to sort of just asking district court judges to create their own agreements?

Mr. Heft: No -- no, Your Honor.

I don't believe that's -- that's not what we are asking the Court to do at all.

Justice Ruth Bader Ginsburg: Mr. Heft, are you relying on -- this was -- this is a plea agreement that said, specifically, defendant agrees to have his sentence determined pursuant to the guidelines, and then the judge says that he was adopting the probation report and the application of the guidelines as set out therein, so both the -- the defendant says, I agreed to a determination pursuant to the guidelines, and the judge says, I'm going to apply the guidelines in giving you your sentence.

So the hypotheticals we're talking about are quite far afield from where you have a specific statement by the defendant and the sentencing judge that the guidelines are being applied.

Mr. Heft: That is correct, Your Honor, and that's why we've asked the Court not to take a categorical approach to this issue, but to take either a case-by-case approach or a record-based analysis, to allow the district judge to determine, as Justice Ginsburg pointed out, what our -- you know, what is the--

Justice Elena Kagan: Mr. Heft, would you require those kinds of statements in the agreement or in the colloquy in order to satisfy the standard?

Suppose those statements just didn't exist.

Mr. Heft: --That's certainly problematic, Justice Kagan.

If those -- if there was nothing in that plea agreement to tie the sentence to the -- the sentence -- the agreed sentence to the guidelines, that certainly would be problematic.

But that doesn't resolve the issue one way or the other, because the judge would have to consider the presentence report to see if there's a connection or correlation between the agreed sentence and the guidelines, and also the judge could look at the guilty plea colloquy and sentencing transcript to see if the attorneys actually expressed their intent about where this sentence came from.

Justice Elena Kagan: Mr. Heft, that seems very complicated.

You have to look at everything and you're not giving us a lot of guidance as to what you do when you -- when you see these things.

I mean, this sort of case-by-case, all-things-considered approach just seems as though you're going to get a lot of inconsistent decisions.

Mr. Heft: Respectfully, Your Honor, I disagree.

I think this is what district judges do all the time, not just in the context of a C plea, but a B plea as well.

They have to look at the nature of the plea agreement.

They have to look at the PSR.

They have to look at the sentencing transcript to -- to determine whether or not the defendant is -- is eligible for that sentence reduction.

So judges are doing this routinely.

They're doing this--

Justice Samuel Alito: Well, in every case, they have to go through the guidelines calculation, and the parties have the opportunity to object to the calculation, right?

Mr. Heft: --Yes, Your Honor.

Justice Samuel Alito: So what does paragraph 12 of the plea agreement contribute here, other than with respect to the fine and things besides the sentence that we're talking about?

It doesn't seem to me to add anything substantively.

Mr. Heft: I -- well, Your Honor, I think it does, Justice Alito.

I think it does add -- it adds substance, and it adds meaning to that plea agreement because in paragraph 11 where the parties very meticulously go through the offense level, tie that to the guidelines, and then -- then they state in paragraph 12, the -- the defendant agrees to be sentenced pursuant to the -- to the guidelines.

That's very clear that the review in the guideline calculation is what the sentence is based on.

And--

Justice Antonin Scalia: Can a -- can a sentencing judge be found to have abused his or her discretion in approving a plea -- a C plea agreement which provides for less than the minimum guideline sentence and gives no -- no particular reason for that?

Would that be appealed as an invalid sentence?

Mr. Heft: --Well, Your Honor, under -- under section 3742, the government could -- could appeal an incorrect application of the guidelines if that's what Your Honor is referring to.

Justice Antonin Scalia: Well--

Justice Ruth Bader Ginsburg: But now you're talking about a plea agreement, which the government has consented to whatever this agreement is and whether -- whether -- sometimes a plea agreement will say okay, if you take a plea, we'll drop certain charges or we'll charge a small amount -- value of the drug.

Was there any of that in -- in this plea?

Mr. Heft: No, Your Honor.

Mr. Freeman pleaded guilty to all charges in the indictment.

The parties stipulated the amount of -- of drugs that were found on his person when he was arrested.

So there were no dismissed charges, no amended charges in this plea agreement.

Justice Antonin Scalia: --Let -- let me ask my question a different way.

In deciding whether to approve the plea agreement, doesn't the judge have to consider whether it is an application of the guidelines, whether it is wildly inconsistent with the guidelines, whether it does not take into account valid reasons for departure from the guidelines?

Mr. Heft: Yes.

The judge would have to consider the guidelines.

Right.

Justice Antonin Scalia: Then, if that's the case, then every plea agreement is based on the guidelines, every single one, because the judge always has to consider how do the guidelines apply to this plea agreement.

Mr. Heft: Well, Justice Scalia, consideration of the guidelines alone is not enough to determine whether or not that sentence is actually based on them.

Justice Stephen G. Breyer: I don't understand why you resist that.

I mean, that's precisely what the guidelines say.

The only ones that aren't guideline sentences are -- are dismissal charges, where it's an agreement to dismiss.

But a type B, type C -- the guidelines themselves say that the judge, here's what you do.

Judge, you look and see if the guidelines sentence is there.

Is it a guideline sentence?

If it is, you can approve it.

If it isn't, you can't.

I mean, that's my reading of what it says.

So -- so why do you resist that conclusion?

Mr. Heft: Well, Your Honor--

Justice Stephen G. Breyer: And, of course, the judge now could depart from the guidelines -- I mean, "vary", whatever that word -- technical word, is -- "vary".

He can say, I'm not going to apply the guidelines at all.

But if he is going to apply the guidelines, isn't that what they tell him to do?

I've always thought that.

You may tell me I'm mistaken.

Mr. Heft: --They -- they do; obviously they do consider the guidelines, but then the other question is whether or not the sentence is based on those guidelines--

Justice Stephen G. Breyer: Well, how could it not be, since the judge has no power if he is to apply the guideline--

Mr. Heft: --Well--

Justice Stephen G. Breyer: --to accept any agreement other than agreement that corresponds with the guideline?

That's what it says.

It says the court should accept a recommended sentence or a C -- the specific sentence -- only if the court is satisfied either that it is within the applicable guideline range or if it's based on a departure under the guidelines.

That seems to me what it says.

Isn't that what it says?

Mr. Heft: --That is what it says, Your Honor, but--

Justice Stephen G. Breyer: Okay.

Then if that's so, every sentence is -- you're going to say no?

Mr. Heft: --No.

Justice Stephen G. Breyer: I mean, I thought that was helping you, but if you want to say no, go say no and explain why that is.

[Laughter]

Mr. Heft: Your Honor, to go back to the point that Justice Sotomayor made--

Justice Stephen G. Breyer: Yes.

Mr. Heft: --with the hypotheticals, there still can be C pleas that are not based on the guidelines.

Justice Stephen G. Breyer: How?

Mr. Heft: Well, the example--

Justice Stephen G. Breyer: Give me an example.

Mr. Heft: --Well, the example that I gave -- I gave previously.

Justice Stephen G. Breyer: What?

Mr. Heft: There's a guideline range.

Justice Stephen G. Breyer: Yes.

Mr. Heft: But the judge bases his decision, his or her decision, solely on other -- factors other than the guidelines.

As I mentioned earlier--

Justice Stephen G. Breyer: Are we supposed to psychoanalyze the judge?

The judge says on his writing, checks the box: This is a guideline sentence.

It is robbery.

It is precisely within the robbery range.

But I -- I am going to give it the low end of the range because I believe that the -- he has a lovely mother and family and so forth.

Okay?

You're saying that isn't based on the guideline.

No?

Okay.

Is that the point?

Mr. Heft: --Well, it depends what the judge does at sentencing, Your Honor.

Justice Stephen G. Breyer: What he does is he applies the guideline sentence.

He has to do that.

Now, within that range, he has applied the guideline sentence, he got the information.

He says, I am satisfied it applies -- done.

Now are we supposed to look further and say what his true reason is?

Is that what you're saying?

Mr. Heft: It would -- Your Honor, I would submit it would depend on the nature of the -- the plea agreement, whether or not that sentence is -- is actually based -- going to be based on the guidelines.

Justice Elena Kagan: Well, I suppose--

Justice Antonin Scalia: Incidentally, and it sort of bears upon this discussion, are the guidelines mandatory when they are applied in approving a plea agreement?

In other words, does Booker/Fanfan not apply to the application of the guidelines when a judge is -- is approving a plea agreement?

Do you think the guidelines are mandatory in that situation?

Mr. Heft: No, Your Honor.

They're--

Justice Stephen G. Breyer: You were -- you were just at the very point when we decided Booker, is that right?

It was -- your -- your sentencing took place in July 2005 and we came out with Booker in--

Mr. Heft: --I believe it was March of 2005.

Justice Stephen G. Breyer: --All right.

So it's quite possible the judge wasn't totally -- but I mean -- I agree; it's much more complicated after Booker.

I don't know how to treat yours.

Mr. Heft: That's true.

Justice Stephen G. Breyer: It's on the cusp.

Justice Samuel Alito: What if there had been evidence here of that?

What if the government in connection with this plea agreement had dropped counts or had decided not to seek a superseding indictment adding counts?

Would -- would the situation be the same?

Mr. Heft: Yes.

Your Honor, I think it would; it would be the same.

Because the court would have to look at, again, what the terms of the plea -- plea agreement was and what the parties determined.

Now, the -- I think what I should emphasize is that we're only talking about eligibility here; and if -- if those -- if those concessions that the government has made would -- would perhaps result or at least in the government's view, result in an unjustified windfall, that -- that's -- that is not a critical factor in determining eligibility.

That's not factor at all in determining eligibility.

That could come into play after eligibility is determined and the judge -- district judge determines whether or how much.

Justice Samuel Alito: How would that possibly work?

Let's say the government drops count -- agrees to a plea on count 1 with a guideline range of 60 to 65 months; drops count 2, which would have increased the guideline range to, let's say, 100 to 105 months; and says this is our deal, you know, you agree to -- to 65 months and we're going to drop count 2.

All right?

Mr. Heft: Yes.

Justice Samuel Alito: And then the guideline for that is lowered, and you say in determining whether the defendant is eligible, what -- the government would then have to have a mini-trial and prove that the -- prove count 2?

Mr. Heft: No.

No.

No.

No.

It would--

Justice Samuel Alito: How would it work?

Mr. Heft: --It would work -- assuming that the defendant is eligible, the case is remanded to district court.

Justice Samuel Alito: Right.

Mr. Heft: As in this case, there would be a recalculation of the guidelines to determine if the--

Justice Samuel Alito: Right.

MR. HEFT -- guideline range would be reduced, and then, as the district judge in this case said, if you have objections, let me know; file your objections.

That's where the government could file--

--Yes.

The government files its objections and says, well, we dropped count 2.

And the defendant says, well, I wasn't guilty of count 2.

Mr. Heft: --That's -- that's up to the district judge's discretion, whether or not to -- to reduce that -- that amended guideline sentence.

Justice Samuel Alito: How is the judge going to decide that?

Mr. Heft: Well, the -- I think that's something that district judges decide every day, whether or not -- because the judge presumably has -- has been -- is familiar with the case, with the presentence report, with the terms of the original plea agreement, with the facts of the case; and the -- and the judge can make an assessment based on those factors whether or not the sentence reduction should be granted and, if so, how much of a reduction should be granted.

Justice Antonin Scalia: But Justice Alito's hypothetical points out -- points up the fact that even though the agreement may mention the guidelines, it may do that just for the purpose of enabling the -- the judge more readily to approve the agreement, but there's no reason to believe that the government is interested in the guidelines, as opposed to being interested in putting this person away for a certain amount of time, especially when another count is dropped and the government says, well, I'll -- you know, I'll drop it if -- if this guy goes to prison for 2 years.

But if the government had known he's not going for 2 years, he is only going for a year and a half or a year, the agreement might not have been concluded.

So it really -- I mean, it doesn't further the intent of both parties, at least, to say when the guideline is changed, the agreement changes.

Mr. Heft: Well -- well, the agreement certainly has been -- was modified by the amended guideline, and that's where the district judge has to exercise his or her discretion whether or not to grant that reduction.

Justice Ruth Bader Ginsburg: But in that event, the sweet part would be open to reconsideration too.

I mean, you can't say, I want the good part, the lowered guideline, but I also want to keep that certain counts are dropped and that a certain quantity of drugs was agreed upon.

You would have to reopen the whole thing.

Mr. Heft: No, Your -- no, Justice Ginsburg.

I don't think you'd have to reopen the case.

Again, I think the judge could look at the presentence report, the government could make its objections saying here's why we gave that particular sentence, and the judge could exercise his or her discretion to say whether or not the defendant is going to get that sentence reduction.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Heft: Thank you, Your Honor.

Chief Justice John G. Roberts: Mr. Gannon.

ORAL ARGUMENT OF CURTIS E. GANNON ON BEHALF OF RESPONDENT

Mr. Gannon: Mr. Chief Justice, and may it please the Court:

When a criminal defendant and the government agree to a specific sentence and that agreement is binding on the sentencing judge by virtue of Rule 11(c)(1)(C), the resulting sentence is based on the parties' agreement.

It is not based on the advisory guideline range that would otherwise have been used at sentencing, even if the sentence corresponds to that range.

Justice Sonia Sotomayor: Counsel--

Justice Anthony Kennedy: Well, here the agreement at various points says that the parties agree on the calculation of the guideline.

I think it's paragraph 11 and 12.

They say that the sentence is according to the guidelines.

So there's reference to the guidelines throughout, and the court made the guidelines calculation.

Mr. Gannon: The court certainly made the--

Justice Anthony Kennedy: So it seems to me fair under the statute to say that it is based on the guidelines.

Mr. Gannon: --Well, the question--

Justice Anthony Kennedy: And there are other provisions in the agreement you might argue about.

Mr. Gannon: --Well, I think the statutory question here isn't just whether the sentence is based on the guidelines.

The language under 3582(c)(2) is whether the defendant was sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Commission.

So it's not just whether the guidelines played a role; it's whether this particular sentencing range was what was driving the sentence.

And, Justice Kennedy, you point out pages 25, 26 of the plea agreement in the Joint Appendix.

And I think it's instructive that the agreement deals differently with the fine component, as Justice Alito referred to earlier, than it does with the term of imprisonment.

At the bottom of page 25, the agreement says that a fine will be at the lowest end of the applicable guideline range.

And then if you go over to pages 27 and 28 in paragraph 11, that's where the guideline calculation occurs.

And notice it is an incomplete calculation.

The parties don't actually come up with a final calculation because they don't come up with a criminal history.

They don't--

Justice Anthony Kennedy: Well, they do come up with a recommendation, which is three levels below the otherwise applicable guideline.

Mr. Gannon: --They -- they come up with a recommendation for purposes of determining the offense level, the base offense level of 22 and then reduced to 19.

Justice Anthony Kennedy: Yes, but that's all based on the guidelines.

Mr. Gannon: Well, that aspect is based on the guidelines, but then the guideline application computation is incomplete because the next paragraph, paragraph B, says we aren't agreed on what the criminal history is going to be.

And to the next paragraph, paragraph C specifically says that the foregoing statements of applicability of sections of the sentencing guidelines are not binding upon the court.

The defendant understands the court will independently calculate the guidelines at sentencing; that is--

Justice Anthony Kennedy: But that doesn't mean that the court can't base its conclusion on his independent -- on its independent judgment on the guideline.

Mr. Gannon: --Well, I think what I'm trying to say, Justice Kennedy, is the agreement expressly contemplates that the judge needs to determine the applicable guideline range for purposes of determining what the fine will be.

And that's different from the way the plea agreement deals with the term of imprisonment because if we go back to page 26, it does not tie the -- the term of imprisonment to a guideline range.

That's completely different from the way it deals with a fine.

It specifically says there's an agreement that the sentence of 106 months of incarceration is the appropriate amount.

And so that happens to have been at the bottom end of the guideline range that would have been applicable if the parties' agreement -- if the parties' prediction about the likely criminal history calculation turned out to be the right one.

Justice Anthony Kennedy: Well, you're talking about what "based on" means, and that's an important part of your argument.

If I could just, while I've got you, jump to this question of what happens on remand if you lose the case.

On remand, I take it, you're not bound by the agreement because of the last--

Mr. Gannon: Well, I--

Justice Anthony Kennedy: --the last of section 24 says the defendant argues for any sentence other than the one to which he has agreed to and breached the agreement.

Mr. Gannon: --Well, at that point the remedy for the breach would be that the United States is relieved of its obligations under the agreement.

Justice Anthony Kennedy: Would you -- what would that mean?

Mr. Gannon: Well, I think that's -- that's part of the problem in a case like this where there was a specific sentence agreement, that it's impossible for government to get back the things that it gave up at the time, that were agreed to under--

Justice Anthony Kennedy: Well, it's got guilty pleas on all of the counts.

We know that.

Mr. Gannon: --Well, but it also--

Justice Anthony Kennedy: In your position, in your view, would the government be able to take the position that the guilty pleas stay in place, but it now wants maximum?

Mr. Gannon: --Well, I think that -- that would--

Justice Anthony Kennedy: Maximum guidelines.

Mr. Gannon: --I don't think that the 3582(c)(2) contemplates that the sentence will be increased.

The only thing, as the court--

Justice Anthony Kennedy: Yes, except that the agreement does.

The agreement relieves you.

Mr. Gannon: --Well, I think that's if--

Justice Anthony Kennedy: Of any obligation.

I see what you mean.

Mr. Gannon: --Now that the sentence has become final, I think 3582(c)(2) has opened a narrow window for ways in which the otherwise final sentence could be modified.

It only contemplates that the judge will have the discretion to reduce the sentence if it is, first, a sentence that was based on the relevant guideline range that's subsequently been amended and made retroactively applicable.

But also, second, then the judge would need to comply with a policy statement that appears in 1B1.10 of the--

Justice Anthony Kennedy: So you say the judgment's final, so the fact that the plea -- that there's a breach of the plea agreement is irrelevant at this point?

Mr. Gannon: --Well, I think that the remedy that the agreement contemplates of the government being released from its other obligations in the plea doesn't really leave us much of an option at this point.

We're not going to be able to go back and argue that he should have been sentenced at the upper end of the range that we're talking about.

We're not going to be arguing that the criminal history should have been a higher or that the criminal history substantially underrepresented the seriousness of his history where he had 10 years of offenses preceding this one.

There may have even been a potential career adjustment that -- that went by the boards.

That's mentioned on page 162 of the Joint Appendix.

Justice Antonin Scalia: Mr. Gannon, you assert that the -- within the language of the statutory provision, the sentence here is not based on the guidelines, but it's based on the agreement, and the agreement arguably is based on the guidelines.

Mr. Gannon: I think the agreement is arguably -- I mean, I don't think the face of this agreement proves that it's based on the guidelines, but I -- it is obvious that the parties negotiated in the shadow of the guidelines.

Justice Antonin Scalia: If -- if you take that position, that "based on" means determined by absolutely, then I don't think any sentence would ever be based on the guidelines after Booker/Fanfan.

Mr. Gannon: Well--

Justice Antonin Scalia: The guidelines form part of the consideration of the judge, but the judge's decision is not based on the guidelines.

Just as here, the -- the agreement -- the guidelines form part of what produces the agreement, so also they form part of what produces the judge's decision.

And it seems to me, if that's going to be enough for the judge's determination, it ought to be the same for the agreement.

Mr. Gannon: --Well, I think it's not clear that the judge needed to be considering the guidelines in the course of deciding whether to accept the plea agreement.

And Justice Breyer earlier had a colloquy with Mr. Heft about guideline 6B1.2, which, even before Booker, was a nonbinding policy statement.

And so, to be sure, when 3582 was enacted, the guidelines were binding, and, therefore, it -- they would have been expected to have played a larger role in most sentences.

Justice Antonin Scalia: No, but let's -- let's assume there is no plea agreement.

Mr. Gannon: Yes.

And--

Justice Antonin Scalia: You -- you have a judge who sentences post-Booker/Fanfan.

Now, his sentence is not based on the guidelines any more--

Mr. Gannon: --I think--

Justice Antonin Scalia: --any more than this agreement is based on the guidelines.

The guidelines are one of the things that he must take into account and does take into account in determining the sentence.

Now, if that is enough for purposes of determining whether this statute -- statutory provision applies to a sentence imposed directly by a judge, it seems to me the same analysis ought to apply to a sentence imposed through a plea agreement.

Mr. Gannon: --Well, I think that there's a different purpose that's being served by asking the 3582(c)(2) inquiry, which is asking the judge to -- to go back and redo the aspects of his analysis that would have been different had the -- the relevant guideline range been changed at the time he engaged in his analysis, and--

Justice Antonin Scalia: So you -- you acknowledge that "based on" covers post-Booker/Fanfan sentences by the judge?

Mr. Gannon: --Outside of the context of a specific C--

Justice Antonin Scalia: Yes.

Yes.

Yes.

MR. GANNON -- a specific sentence rendered under type C that -- on page 28 of our brief, we acknowledge that in most contexts, it's -- it's open to -- to contend that the sentence was based on the relevant guidelines--

--Even though -- even though the guidelines are just one of the things that have to be taken into account?

Mr. Gannon: --It is -- the test that we state in the subheading of that section of our brief is whether they're of legal consequence in the determination.

Justice Elena Kagan: Defining Mr. Gannon--

Mr. Gannon: Well, our -- the.

Justice Elena Kagan: --It's not a binding legal consequence post-Booker.

Mr. Gannon: The test that we have for -- the overarching test is whether it is of legal consequence, and the phrase that you're talking about on page 27 of our brief, Justice Kagan, is when we know that there is something that was of binding legal consequence and was controlling, we know that that is the thing that the sentence was based on.

Justice Elena Kagan: So that's not your test.

What is your test instead?

Mr. Gannon: Well, that is -- in -- when something literally is controlling the analysis -- the parties' agreement here binds the district judge -- we know that that is what the sentence is based on.

There isn't any -- any--

Justice Elena Kagan: Yes, but is -- is there some other instances in which you would say that something is based on, even though it's not of binding legal consequence?

Mr. Gannon: --Well, it would be of legal consequence even if it weren't controlling.

This Court has -- has made clear even after Booker that under 3553(a), courts still need to go through the relevant guidelines analysis.

They apply the guidelines.

It may turn out that the sentence turns out not to be based on the relevant guideline range because the judge--

Justice Elena Kagan: Well, then I'm back with Justice Scalia, because if it's only of legal consequence, not of binding legal consequence, if it's something that somebody considers rather than something that is determinative, it seems to me the same in the non-plea context and in the plea context.

Mr. Gannon: --Well, I don't think that's true in the context of a specific sentence agreement under a type C plea because of -- and this is reinforced by the language in the policy statement, 1B1.10, which the Court last term in Dillon held is binding and controls what needs to be done during the sentence reduction proceeding.

And it specifically refers to the guideline provisions that were applied when the defendant was sentenced.

And that's something that happens in the process of the 3553(a) factors applicability.

Justice Samuel Alito: Why doesn't this line of questioning lead logically to the conclusion that no sentence after Booker and Fanfan is based on the guidelines?

Because, today, a sentencing judge can engage in the same analysis that the Sentencing Commission may engage in when it decides that a guideline range should be lowered and that that should be retroactive.

The judge can do that at the time when the sentence is imposed.

We roll the clock back on the crack -- on the crack cocaine guidelines.

Under the authority that judges now have under Booker and Fanfan, a judge could say, well, I see that this is the crack cocaine guideline right now, but I think it is too harsh for all the reasons that were later persuasive in lowering the range, and therefore, I am sentencing below the range.

So it seems to lead logically to the conclusion that 3582 is yet another provision of the Sentencing Reform Act that was tied to the old pre-Booker mandatory sentencing regime, and now that that is out the window with Booker and Fanfan, the whole -- the whole mechanism is -- is superfluous.

Mr. Gannon: Well, I -- I understand the point that the analysis has certainly changed since Booker, but it is still the case that the defendant can appeal an error in application of the guidelines after Booker.

If the judge were to -- to misapply the guidelines before he engages in the analysis that you're talking about, Justice Alito, that would be grounds for an appeal.

In retrospect, if the judge is asked whether the sentence was based on the guidelines, he -- he may say that particular sentence wasn't, because I ended up disregarding the guidelines under 3553(a).

I did the analysis.

I was exercising my sentencing discretion the first time around under 3553(a), and the guidelines ended up not being the basis of the sentence.

And that is not something that is an option in a type C plea agreement, because there, the defendant cannot appeal when the judge agrees to the sentences in the agreement.

Justice Samuel Alito: Well, I find it hard to -- I find it hard to understand the analysis that would require courts to decide whether some (c)(1)(C) plea agreements are based on the guidelines and some are not based on the guidelines.

Maybe they are all based on the guidelines, and then the obligation would be on the government to put a provision in a standard plea agreement requiring the defendant to give up the opportunity to move for a sentence reduction if the guideline range is subsequently lowered.

Or maybe none of them are based on the guidelines because -- for the reasons I just mentioned: This whole mechanism is now needed no longer as a result of Booker and Fanfan.

Mr. Gannon: Well, I think in the context of an actual specific sentence plea agreement, that is the one that we think is off the table, because that is what is going to control the sentence.

And some type C plea agreements affirmatively contemplate application of the guidelines, as this one does with respect to the fine.

And so when you have a plea agreement that tells the district judge, you are bound to apply a guideline provision once you've accepted this agreement, we haven't taken the position that the resulting sentence there is not based on the relevant guideline range, but that is not what is going on here.

Justice Stephen G. Breyer: All right.

You want us to decide this case.

I completely agree with what Justice Alito is saying, Justice Scalia, that maybe the world after Booker is different.

And I have not thought that one through.

I am thinking this case is a pre-Booker case.

It is not real.

I am thinking it is on the cusp, so how am I to treat this case?

If it is a case where the guidelines apply, if it is such a case -- and I think maybe everyone here has assumed throughout that it was.

Am I right about that?

Were you saying this is a case where the guidelines do not apply, where they are not binding?

I mean, where pre-Booker doesn't count?

Mr. Gannon: Well, I -- I--

Justice Stephen G. Breyer: How do you want us to take this, pre-Booker or post-Booker?

Mr. Gannon: --Well, I think that the answer is, it's different.

But this is a -- this is a post-Booker case.

Justice Stephen G. Breyer: I know, you think the -- I think it is completely different regardless.

So let's avoid that controversy at the moment, and you tell me whether you want me to take it pre-Booker or post-Booker.

Mr. Gannon: The sentencing proceeding occurred six months--

Justice Stephen G. Breyer: I want you--

Mr. Gannon: --after the Booker opinion came out.

Justice Stephen G. Breyer: --All right.

So you want to -- you want to set aside this post-Booker?

Mr. Gannon: Yes, but.

Justice Stephen G. Breyer: Then perhaps we should have the pre-argument.

If we are taking this pre-Booker, I would have thought it is QED.

Mr. Gannon: I disagree, Justice Breyer.

Justice Stephen G. Breyer: I mean, imagine that the that the Sentencing Commission -- imagine.

It is not true, but imagine that the Sentencing Commission had written the following words:

"Plea bargaining over sentences is above. "

as many argued they should.

They write those words.

Then they write the next word, "exception".

There is an exception, however; you are permitted to plea bargain about a sentence insofar as you argue about the range, where, within the range, it applies.

And of course when you apply the guidelines, as when you always apply the guidelines, here or elsewhere, departure is an unusual case.

Now, suppose those were the words that the Commission had written.

Could -- how -- is it possible under those circumstances you would still be arguing this sentence under the -- plea bargaining abolished except over where within the range -- is it possible you would be arguing that this is not based on the guidelines?

Mr. Gannon: Well, I think that had the Sentencing Commission adopted such a position, and if it were binding on the sentencing judge--

Justice Stephen G. Breyer: Oh, it is, because of (a)(4).

It used to be--

Mr. Gannon: --Which is -- well, because--

Justice Stephen G. Breyer: --because it says in the sentencing guidelines, Judge, you will apply the guideline, unless you find a circumstance the Commission did not adequately take into account and in respect to that, you may and must consult policy statements, but guidelines and other materials.

That is what it says.

Okay?

So take I am right on that.

Assume I am right.

You can disagree with me, and I will look into it.

Mr. Gannon: --Before Booker was decided, it -- several of the circuits had already concluded that a judge could accept a type C plea agreement that had a sentence outside the range, and that that wasn't a guidelines-based sentence.

Justice Stephen G. Breyer: I want an answer to my hypothetical, because I am trying to figure out how to think about it, and you will help me if you answer my hypothetical.

Mr. Gannon: I think in those circumstances, the Commission effectively would have repealed type C plea agreements, because--

Justice Stephen G. Breyer: Yes, that's right.

That's what they wanted to do.

Okay?

Now, that is correct.

But you can still have them.

Mr. Gannon: --In your hypothetical, that is what they wanted to do.

Justice Stephen G. Breyer: You could still have them, but they allow them only for the purpose of where within the range the sentence will lie.

Okay?

Mr. Gannon: In those circumstances I think that it would be fair to say that the sentence was based on the guideline range--

Justice Stephen G. Breyer: Fine.

Mr. Gannon: --because the agreement hadn't given any reason for the judge to -- to leave the guidelines.

Justice Stephen G. Breyer: Correct.

Now I would like -- because if they wrote those words, C agreements are abolished, but for where within the range -- okay?

You agree it would be based on the guidelines.

Now what I'd like you to do is to look at section 6B, whatever that is.

Mr. Gannon: 6B1.2--

Justice Stephen G. Breyer: Exactly.

Mr. Gannon: --is on the last page of the--

Justice Stephen G. Breyer: You tell me how this differs from what I just said.

Mr. Gannon: --Well, I think it differs in two key ways.

First of all--

Justice Antonin Scalia: You were about to tell us where it is?

Mr. Gannon: --It is on the last page of the government's appendix which is the 16A of our brief.

And I think that it differs in two regards.

First of all, it -- it was a policy statement that even before Booker was not binding on the sentencing judge.

The Commission determined that -- that this particular guideline was not binding on judges the same way other provisions in the guidelines where.

Justice Elena Kagan: But I thought you just told me that -- binding -- was not a part of the test anymore.

Mr. Gannon: Well, I -- but the question is whether the judge even had to apply it at all, and the judge did not need to.

And -- the second point that I was going to get to is that, unlike the colloquy that Justice Breyer had with Mr. Heft earlier on, it doesn't say the court may accept the agreement only if the court is satisfied that it is within the guideline range.

It gives the court permission to accept the agreement.

This is a policy statement that gives the court permission to accept the agreement when it is within the guideline range or when there is a justifiable departure, but it does not then say that everything else is prohibited.

Justice Stephen G. Breyer: It's only if.

The words there are "only if".

It said should accept the recommended sentence or a plea agreement requiring imposition of a specific sentence only if the court is satisfied either that such sentence is appropriate within the guidelines, or departure.

Justice Antonin Scalia: You're reading a different--

Justice Stephen G. Breyer: I am?

I'm reading 6B1.3, I am reading commentary on the policy statement.

Mr. Gannon: This is for 6B1.3?

Justice Stephen G. Breyer: Yes.

I am reading the commentary on the--

Justice Antonin Scalia: --He is reading the commentary.

Justice Stephen G. Breyer: --Yes.

Mr. Gannon: I've been looking at a text of 6B1.2 itself, which leaves out the word only.

But I think that here, even if you go back to the pre-Booker practice, I think it was clear that judges were able to depart from the guidelines to accept type C plea agreements that imposed the sentence that was outside the guideline range, and they -- and it wasn't considered an abuse of discretion.

Justice Stephen G. Breyer: I think you're right.

You see that is why I am having such a hard time.

I am having a hard time because first I put myself back in the Commission days, and there the Commission did want to abolish C.

Mr. Gannon: Well--

Justice Stephen G. Breyer: And then that is what it intended to do and that is what it said it did, but for what we are talking about.

Now, you first raised the question of did they have the authority to do that and I agree with you that that is a legitimate question.

I made you assume it away, but I think it is a legitimate question.

Now we have the additional question of how Booker/Fanfan changes that and for what and when.

Do you see why I am puzzled and why I was asking you rather harshly to start with my hypothetical?

Mr. Gannon: --I -- I do think that -- that this gets puzzling as -- as you get further down, but I think that this is the simplest case.

It is a narrow category of cases.

We are dealing with a subset of one particular type of plea agreement.

It is distinct from every other aspect of Federal sentencing.

It's unlike what happens when somebody goes to trial; in those circumstances the judge clearly has the discretion to apply the sentencing guidelines at the time of sentencing.

It is different from regular type B plea agreements where the parties have come up with an agreement and the judge notwithstanding the agreement is still free to determine the sentence that he or she wants to determine.

This is a unique -- this uniquely gives a high level of certainty to the parties about the specific sentence that they negotiated.

Justice Sonia Sotomayor: --I don't -- I am not in disagreement with the point you're making, but I think that going back to what had bothered Justice Alito and Justice Scalia on now that the guidelines are not mandatory, is any sentence even under C really based on the agreement?

Because even a C agreement has to be approved by the judge.

The legal consequence is not the agreement.

That doesn't sentence the defendant.

It is the judge's decision as to what the sentence should be which he denotes in accepting the agreement that binds.

And I think -- I may be making Justice Breyer's argument -- that if under the policy statement and it's clear what the judge did here, if the judge feels bound by the agreement or otherwise to calculate a sentence in the guidelines and impose one in the guidelines, how can you say that the legal effect is not the guideline sentence?

Mr. Gannon: Well, because I think that the relevant question for purposes of both 3582(c)(2) and the policy statements that the court said in Dillon controls the -- the process of implementing 3582(c)(2), is what did the judge do at the time of imposing the sentence?

And so although it is true that the judge generally will consider how the type C specific sentence that the parties have agreed upon corresponds to a guidelines analysis at the time of deciding whether to accept the plea agreement, the relevant phrase in 1B1.10(b)1 which is -- which is on page 8A of the government's appendix is that the judge is supposed to go back and look at what -- to only make substitutions for the corresponding guideline provisions that were applied when the defendant was sentenced.

And so when you have a type C plea agreement that has a specific sentence even under the terms of this agreement, the only thing that the judge considered when he decided the sentence was going to be 106 months with respect to the term of imprisonment was the binding plea agreement.

That is what rule 11(c)(1)(C) required.

Justice Sonia Sotomayor: --no.

Because you're assuming that the agreement was automatically binding on the judge.

Mr. Gannon: It was--

Justice Sonia Sotomayor: The judge was always capable of saying at the time of sentence I won't accept the 106.

If he had calculated the guidelines and if it turned out that the guidelines called for 240 to 360, he could have said easily no, that is so far outside of the guideline range with no justification that I am not going to accept -- impose the sentence.

You could withdraw your agreement and do whatever you're going to do.

Mr. Gannon: --And had he done that the sentencing proceeding would have proceeded differently and it may not even have right occurred then, and -- and I think because under Rule 11 if he was rejecting the plea agreement and -- and the 106 months that the parties had agreed to, he would have to give the defendant the right to withdraw the plea at that point.

So the government would have been released from its obligations; the parties -- the defendant could have gone to trial.

He could have -- he could have continued to plead guilty.

The parties could have come up with a type plea -- B plea agreement.

The parties may have asked for time to renegotiate a different type C agreement.

We do not know what would have happened in those circumstances.

And as you pointed out before, Justice Sotomayor, this is not about asking the judge to step into the shoes of the parties and renegotiate what the agreement would have been had the judge decided to reject it the first time around.

Instead 3582(c)(2) contemplates a limited process by which the judge will reapply those provisions of the guidelines that he applied the first time around and -- and make the substitution that is now called for by the retroactively applicable change.

But here because the judge didn't actually make that application at the time of sentencing, the judge did not actually have to apply the drug quantity table.

Justice Ruth Bader Ginsburg: I am not following that argument for this reason.

It seems to me if you ask what did the judge apply at the time he imposed the original sentence, well, it has got to be the guidelines, because first the agreement provides for it; then he says I am going to wait for the probation report so I can see what the calculation is, whether I agree with it; and then he gives him a sentence that is precisely within the guidelines.

So if you asked me to describe what that sentence was -- of what was it, 46 to 106 days -- I say that was a guideline sentence.

It was right there within the brackets that -- the guidelines.

So why wasn't it a guideline sentence?

Mr. Gannon: Because for purposes of the term of imprisonment the judge was not actually applying the guidelines at that point.

He did so for purposes of the fine.

He ended up actually waiving the relevant fine, but those type C plea agreement here called for the judge to apply the guidelines with respect to the fine and did not call for the judge to apply the guidelines with respect to the term of imprisonment.

He knew that it was within what the PSR had calculated as the guideline range and he concluded that that was the applicable guideline range which he needed to do for purposes of calculating the fine and other things, but it wasn't actually the basis for the sentence.

The basis for the sentence was the plea agreement that he accepted, and there it was the parties' agreement.

And there are all sorts of things that went into the parties' agreement that the judge does not have the wherewithal to reconsider in retrospect.

Justice Ruth Bader Ginsburg: I thought one of the things in the plea agreement was that the -- that the judge would have the right to himself calculate the guideline range.

Mr. Gannon: Yes.

And that specifically contemplated in Rule 11(c) and in the guidelines, that the judge may postpone acceptance of the plea agreement until after the presentence report is prepared.

And the judge did do that here.

So he was aware of what the PSR recommended, but once, and had he decided that he did not like the 106 month sentence and he wanted to preserve his sentencing discretion, the option at that point was to have rejected the plea agreement, at which point the parties would have been free to do different things.

And among other things, the Government could then have then argued for a higher sentence within the range.

Could have argued that the criminal history failed to represent the seriousness of the defendant's criminal past.

Could have argued for an upward departure even, but the Defendant got the benefit of the 106 month agreement of not having the Government raise any of those other arguments at that time.

And now he is asking for essentially another bite of the apple and we think that because the basis for the sentence was indeed the negotiation and the agreement between the parties, that the court of appeals decision was correct.

If there are no further questions.

Chief Justice John G. Roberts: Thank you, Mr. Gannon.

Mr. Heft, you have three minutes remaining.

REBUTTAL ARGUMENT OF FRANK W. HEFT, JR., ON BEHALF OF PETITIONER

Mr. Heft: Thank you, Your Honor.

Just a couple of points.

First of all, the record here leaves no doubt that the judge based his sentence on the guidelines.

The sentencing transcript specifically states that the judge and I'd like to quote this, this is at page 47 of the joint appendix and I quote,

"the court will adopt the findings of the probation officer disclosed in the probation report and application of the guidelines as set out therein. "

On page 48 of the joint appendix the judge says, having considered the advisory guidelines, he went on to impose that sentence.

So it is quite clear that the judge and even in his statements of reasons on page 95 of the joint appendix, again reaffirmed that this sentence was based on the guidelines.

Now, the other point that I'd like to make is that the Government acknowledges that it has carved out a very small exception to its argument that C pleas regarding specific sentences and sentencing ranges are not eligible for (c)(2) relief.

But it seems to me that reading, taking the Government position into account, if this plea agreement had not stated 106 months, then Mr. Freeman's under the terms of this plea agreement in the Government's view and under the Government's argument of what exception exists under the C pleas for purposes of 3582, Mr. Freeman would be eligible for the relief that was granted.

And we would simply urge the Court in this case to adopt a rule that does not exclude specific sentences and C pleas for eligibility in 3582.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Kennedy: The first case is William Freeman versus United States.

The Sentencing Reform Act of 1984 calls for sentencing guidelines to inform judicial discretion in federal sentencing, and that at issue in this case is the meaning of one statutory provision in that Act in its 18 U.S.C. Section 3582 (c) (2).

The statute permits defendants who were sentenced based on a sentencing range that has since been amended to seek a reduced to sentence.

The question is whether a defendant who enters into a plea agreement that recommends a particular sentence may be said to be sentenced based on the guidelines.

If so, that would make him eligible to seek 3582 relief.

The petitioner in this case, William Freeman, entered into a plea agreement with the Government, and the agreement recommended a sentence of 106 months, a sentence which corresponded with the bottom of -- then applicable, crack cocaine guideline range.

The District Court accepted the plea and entered the sentence.

The sentencing commission later amended the crack cocaine guidelines and it made that Amendment retroactive.

Freeman sought a sentence reduction, but the Court of Appeals for the Sixth Circuit held that Freeman was sentenced based on the plea agreement rather than the guidelines so it held he is ineligible for relief.

Five members of the Court agreed that this judgment must be reversed.

Now, I've written the plurality opinion joined by Justices Ginsburg, Breyer and Kagan.

Now, the opinion concludes that the Sixth Circuit's categorical bar finds no support in the statute or the rule governing plea agreements or in the guideline policies issued by the Commission.

In the plurality -- plurality's view in every case, the judge must exercise discretion, framed by the guidelines to impose an appropriate sentence regardless of whether the conviction is obtained by trial or by plea.

Justice Sotomayor has filed an opinion concurring in the judgment but outlining a different approach.

She concludes that sentence is following plea agreements that bind the District Court to impose a particular sentence, are based on the agreement rather than the guidelines but whereas here, the agreement itself ties the recommended sentence to the guideline's range that a defendant may seek 3582 relief.

In this case, the petitioner is thus entitled to seek a sentence reduction under the statute, and the contrary judgment of the Court of Appeals has reversed, the Chief Justice has filed a dissenting opinion in which Justices Scalia, Thomas and Alito joined.