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Revision Of The Sentencing Guidelines And Eligibility For Reduced Sentences

Freeman v United States

Plea agreements and subsequent eligibility for reduced sentences: defendants may be eligible to a reduced sentence following retroactive revision of the Sentencing Guidelines – despite the existence of a plea agreement

Freeman v. United States 131 S. Ct. 2685 (2011).

Decided June 23, 2011 Supreme Court of the United States

Issue: Whether a defendant is eligible to a sentence reduction under 18 U.S.C. s3582 (c) (2) (which generally permits a defendant to move for a sentence reduction following a lowering of the sentencing range for the offense in question where the reduction has been specified to apply retroactively); despite the fact that the defendant had, at the time of his original trial, entered into a Federal Rule of Criminal Procedure 11 (c) (1) (C) agreement (in which the parties agree that a specific sentence or sentencing range is appropriate and which subsequently binds the court once accepted by the judge).

Holding: The majority held that the defendant’s original sentence was based on the Sentencing Guidelines. Defendants who enter into plea agreements recommending a particular sentence as a condition of the guilty plea may be eligible to apply for a reduced sentence in the event of a subsequent modification to the sentencing range.

Facts: Petitioner Freeman was indicted in 2005 for various crimes – including possessing with intent to supply cocaine base – 21 U.S.C. ss 841 (a)(1); (b)(1)(C). Under a Category C plea agreement he agreed to plead guilty to all charges. Crucially the agreement stated that “both parties have independently reviewed the Sentencing Guidelines applicable in this case” and that “a sentence of 106 months’ incarceration is the appropriate disposition of this case”. Furthermore the agreement stipulated that the defendant “agrees to have his sentence determined pursuant to the Sentencing Guidelines”. This was a 106 month sentence which reflected the parties’ expectation that the appropriate range for the cocaine base-related offense would be 46 to 57 months (in addition to a 60 month mandatory minimum for possessing a firearm in furtherance of a drug-trafficking crime). The sentence was therefore at the bottom of the applicable range.

Three years later, the Sentencing Commission issued a retroactive amendment to reduce the sentencing range for cocaine base offenses. The applicable range for Freeman’s cocaine base offense was therefore 37 to 46 months (on top of the 60 months mandatory minimum for the drug and firearm offense). Freeman’s subsequent application for a reduction was refused. The Court of Appeals affirmed on the basis that a sentence agreed on the basis of a plea agreement was binding except in cases of miscarriage of justice or mutual mistake. The US Supreme Court reversed this.

Legal analysis: Between the five Justices who agreed that the petitioner ought to be entitled to relief, there was a split as to the reasons why.

18 USC s3582 c 2 permits a sentence to be reduced following a retrospective amendment of the Sentencing Guidelines if the original sentence was “based on” the earlier guidelines. When considering whether to accept the recommended sentence within a plea agreement, the trial judge must nevertheless be satisfied that the sentence is appropriate. The Sentencing Guidelines specifically state that when doing this, he must give due consideration to the appropriate sentencing range. For this reason, Justice Kennedy giving the majority opinion, took the view that the original sentence was indeed “based on” the earlier Guidelines and that therefore the petitioner was eligible to have his sentence reviewed.

Justice Sotomayer’s approach was different. She took the view that where a plea agreement is entered into, the sentence ought properly be regarded as being “based on” the agreement rather than the Guidelines. However, because (as in Freeman’s situation) the prison term has been agreed with express reference to the range in the Guidelines, the sentence can be quite properly  regarded as being based upon those Guidelines and the defendant ought still be entitled to a review.