United States District Court, District of Columbia
REGGIE B. WALTON, District Judge.
This criminal matter is currently before the Court on the defendant's motion for a sentence reduction. See Motion to Reduce ("Def.'s Mot.") at 1 (moving the Court "to reduce his current sentence of 180 months imprisonment to a term of 144 months imprisonment"). The government opposes any reduction to his sentence. See Government's Opposition to Motion for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c) and Amendments 782 [and] 788 ("Govt.'s Opp'n") at 1. Upon careful consideration of the parties' submissions, as well as their oral arguments at a March 14, 2016 hearing on the motion, the Court concludes for the following reasons that although the defendant is eligible for a sentence reduction, no reduction is warranted.
The defendant pleaded guilty to one count of conspiring to distribute five or more kilograms of cocaine, with the intent that the cocaine be distributed within the United States in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) (2000) and 21 U.S.C. § 846 (2000). See Plea Agreement ("Plea Agmt.") ¶ 1, ECF No. 271; see also Judgment in a Criminal Case ("J.") at 1, ECF No. 349. As part of the plea agreement, made pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, the defendant and the government "agree[d] that a sentence of 180 months [was] the appropriate sentence for the offense to which [the defendant] [pleaded] guilty." Plea Agmt. ¶ 3. Of course, notwithstanding their agreement, the parties understood that the Court was not bound to accept the sentencing component of the agreement. See id. ¶ 2 (recognizing that the defendant would be "sentenced upon consideration of the United States Sentencing Guidelines" in the event that "the Court [did] not agree that the sentence agreed upon by the parties [was] appropriate"); id. ¶ 3 ("The [g]overnment agrees... to present this plea agreement between the parties to the Court for its approval.... The parties understand, however, that in light of other factors[, ] the Court may not agree that such a sentence is an appropriate one...."); id. ¶ 7 ("[The defendant] understands should the Court not accept the recommended sentence of 180 months, and... [there is a continued insistence to plead guilty], [the] sentence in this case will be imposed... upon consideration of the... Sentencing... Guidelines Manual. [The defendant] further understands that in that case, the sentence to be imposed is a matter solely within the discretion of the Court. [The defendant] acknowledges that the Court is not obligated to follow any recommendation of the [g]overnment at the time of sentencing."). During the Court's plea colloquy with the defendant, the Court advised the defendant that "there [were] a number of factors [that the Court had] to take into account in deciding what the appropriate sentence should be." October 19, 2005 Plea Hearing Transcript ("Plea Tr.") at 21:21-23. One of those factors was "the United States Sentencing Guidelines." Id. at 22:8-9. The Court explained to the defendant that although "[t]hose [Sentencing] [G]uidelines [were] no longer mandatory, ... [it] still [had] to consider them and decide whether or not a sentence within those guidelines [was] appropriate." Id. at 22:9-12.
At the defendant's sentencing, the Court "reluctantly [went] along with the recommendation made by the government... [for a] [180-month] sentence...." January 20, 2006 Sentencing Hearing Transcript ("Sentencing Tr.") at 8:11-15; see also id. at 10:8-9 ("So [the Court] will sentence you to 180 months in prison. That is within the [Sentencing] [G]uidelines."). Since his sentencing, the defendant has twice - unsuccessfully - sought to reduce his sentence. See January 22, 2009 Order ("Jan. 2009 Order"), ECF No. 489; March 20, 2006 Order ("Mar. 2006 Order"), ECF No. 390. He now seeks a sentence reduction of his sentence for a third time because of recent amendments to the Sentencing Guidelines that allow the Court to lower his base offense levels by two points retroactively. Def.'s Mot. at 3 (citing Amendment 782 to the Sentencing Guidelines).
"The [C]ourt may not modify a term of imprisonment once it has been imposed, " unless certain situations come to bear. 18 U.S.C. § 3582(c) (2012). One such situation includes:
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), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, 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.
Id. § 3582(c)(2). To grant a motion for a sentence reduction under § 3582(c)(2), two conditions must be met: (1) the prisoner must be eligible for the requested reduction; and (2) an early release must be warranted. See Dillon v. United States, 560 U.S. 817, 827 (2010).
A. Whether The Defendant Is Eligible For A Sentence Reduction
The defendant's eligibility for a sentence reduction hinges on an understanding of both Freeman v. United States, ___ U.S. ___, 131 S.Ct. 2685 (2011), and United States v. Epps, 707 F.3d 337 (D.C. Cir. 2013). In Freeman, a majority of the Supreme Court held that a defendant, who enters into a Rule 11(c)(1)(C) plea agreement that is subsequently accepted by the Court, is not categorically barred "from seeking a reduction of his sentence pursuant to § 3582(c)(2) based on a retroactive amendment to the [S]entencing [G]uidelines." ___ U.S. at ___, 131 S.Ct. at 2690. But that majority arrived at the holding in different manners. A four-Justice plurality reasoned that § 3582(c)(2) relief was available to the defendant whenever the district court sentences the defendant "based on" the Sentencing Guidelines. Id. at ___, 2695 ("Even when a defendant enters into [a] [Rule] 11(c)(1)(C) [plea] agreement, the [district court's] decision to accept the plea and impose the recommended sentence is likely to be based on the [Sentencing] Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief."). The plurality explained that
[i]n every case the [district court] must exercise discretion to impose an appropriate sentence. This discretion, in turn, is framed by the [Sentencing] Guidelines. And the [Sentencing] 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 [court]'s decision to impose a sentence may therefore be based on the [Sentencing] 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 [courts] 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.
Id. at ___, 2690 (emphasis added). Justice Sotomayor disagreed with this four-justice plurality and more narrowly reasoned that § 3582(c)(2) relief was available to the defendant if the Rule 11(c)(1)(C) plea agreement "expressly uses a [Sentencing] Guidelines... range to establish the term of imprisonment, and that range is subsequently lowered by the [Sentencing] Commission...." Id. at ___, 2698.
The District of Columbia Circuit, in a two to one decision, has endorsed and adopted the plurality's reasoning in Epps. 707 F.3d at 351 ("Freeman interpreted § 3582(c)(2) to mean that the focus [on whether to reduce a sentence], even when there is a... plea agreement, ought to be on the reasons given by the district court for accepting the sentence that it ultimately imposed, not on the parties' agreement. A contrary focus on the parties' intentions would contribute to the unwarranted disparity that the [Sentencing Reform] Act was designed to reduce. The [Freeman] plurality thus reasonably viewed § 3582(c)(2) as a mechanism for helping to reduce unwarranted sentencing disparities, such as the crack-cocaine range." (Citing ___ U.S. at ___, 131 S.Ct. at 2694, 2695)); see also In re Sealed Case, 722 F.3d 361, 365-66 (D.C. Cir. 2013) ("[W]e... announced in Epps that we would follow the plurality's view.... Under Epps, it is clear that the appellant's sentence was based on' a subsequently-lowered range.... The record leaves no doubt that the appellant's guideline range was a relevant part of the analytic framework' used in the district court's sentencing calculus, and that his sentence was therefore based on' his guideline range." (footnote omitted)). Although Epps places the Circuit "out of step with every other court of appeals that has considered Freeman, " United States v. Duvall, 740 F.3d 604, 609 (D.C. Cir. 2013) (Kavanaugh, J.) (concurring in denial of rehearing en banc); see also id. at 608 ("Justice Sotomayor's [concurring] opinion resolved the case on the narrowest grounds and is therefore the binding opinion in Freeman. Adhering to her opinion would produce results with which a majority of the Freeman Court would agree. Not surprisingly, every other court of appeals to consider the question has therefore determined that Justice Sotomayor's opinion is the binding opinion." (citations omitted)); United States v. Gross, No. 10-cr-36 (PLF), 2016 WL 410985, at *4 n.3 (D.D.C. Feb. 2, 2016) ...