The opinion of the court was delivered by: Judge Munley
AND NOW, to wit, this 10th day of February 2012, before the court for disposition is Petitioner Carl Tyndale's "Emergency Motion to Reduce Sentence re Amendment 750 Crack Cocaine Offense - 18:3582." (Doc. 93). Petitioner Carl Tyndale ("Tyndale") argues that he was sentenced to a term of imprisonment based on a sentencing range that was subsequently lowered by the Sentencing Commission and moves for a sentence reduction under 18 U.S.C. § 3582 ("Section 3582").
On April 16, 2009, Tyndale pled guilty to Count II of an indictment, charging him with possession with the intent to distribute crack cocaine in violation of 21 U.S.C. § 841(1). (Doc. 35). This was a binding plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), stating that "[t]he defendant and the government agree that the appropriate sentence for the offense is sixty-three (63) month term of imprisonment to be followed by a three year term of supervised release." (Plea Agreem. ¶ 9 (Doc. 33)).
This court deferred ruling on the plea agreement until a PreSentence Investigation Report was conducted. (Change of Plea Tr. at 18, L. 8 (Doc. 99)). The completed Report indicated that Tyndale faced a Sentencing Guideline range of 57 to 71 months, based on his total offense level of 23 and a category 3 criminal history. (Sent. Tr. at 2, L. 21-25 (Doc. 85)). Thus, the parties' stipulated sentence of 63 months was in the middle of the then applicable Sentencing Guideline range.
On August 4, 2009, this court accepted Tyndale's plea agreement and imposed a sentence of 63 months after considering the Pre-Sentence Investigation Report, the seriousness of the charges, Tyndale and his attorney's statements and the binding plea agreement. (Id. at 5 L. 19; 6, L. 8).
On November 1, 2007, the United States Sentencing Commission amended the Federal Sentencing Guidelines to lower the applicable guideline range for offenses involving "crack cocaine." In December 2007, the United States Sentencing Commission promulgated an amendment, which authorizes a court to reduce a previously imposed term of imprisonment pursuant to Section 3582(c)(2) in cases involving crack cocaine offenses where the applicable guideline range has been lowered.
On October 5, 2011, Tyndale filed the instant motion to reduce his sentence pursuant to the amended crack cocaine guidelines. (Doc. 93). On October 19, 2011, the Government filed a brief in opposition to the motion. (Doc. 95). It asserts that the amended guidelines are inapplicable to Tyndale's sentence because he was sentenced pursuant to a plea agreement entered under Federal Rule of Criminal Procedure 11(c)(1)(C) and the agreement was not based on a particular Guideline range. The government also contends that the Pre-Sentence Investigation Report, providing a calculation of the applicable Guideline range, was created after the parties entered into the plea agreement.
Under Section 3582(c)(2), a district court may modify a term of imprisonment under a limited number of circumstances:
[I]n 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. 18 U.S.C. § 3582(c)(2).
In Freeman v. United States, the Supreme Court addressed the issue of whether defendants who enter into a plea agreement that recommends a particular sentence as a condition of the guilty plea may be eligible for relief under Section 3582(c)(2). 131 S. Ct. 2685, 2690 (2011). A four-justice plurality found, "[e]ven when a defendant enters into a [Rule] 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." Id. at 2695 (plurality opinion).
Justice Sotomayor, concurring in judgment, set forth a different reasoning. She found that sentences following Rule 11(c)(1)(C) agreements ("C agreements") are based on the agreements rather than a Guideline range. Id. at 2696 (Sotomayor, J., concurring). The fact that the district court uses "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." Id. She also added that the mere fact that the parties may consider or reference the applicable Guidelines during the negotiation of a plea agreement does not mean that the Guidelines were used to establish a term of imprisonment. Id. at 2698.
Justice Sotomayor found that a limited number of defendants, those who had C agreements expressly "based on" a Guideline range, are eligible for a reduction under Section 3582(c)(2). Id. at 2695. The district court must determine whether the range serves as "the basis or foundation for the term of imprisonment." Id. Justice Sotomayor's concurrence is the narrowest grounds for the decision and is therefore the controlling holding.*fn1
Justice Sotomayor provided two instances where a defendant's sentence imposed pursuant to a C agreement would be eligible for a reduction under Section 3582(c)(2). First, when the parties agree that a specific Guideline range is the appropriate disposition of the case and the court sentences the defendant according to that range. Id. at 2697. Second, when the plea agreement provides a specific term of imprisonment, such as a number of months, and makes clear that the term is based on the Sentencing Guideline range applicable to the offense to which the defendant pleaded. Id. Therefore, under Justice Sotomayor's reasoning, if it is evident from the plea agreement that the parties intended to base the term of imprisonment on the Guidelines, then the defendant's term is eligible for a reduction. Id. at 2697-98.
In the instant case, Tyndale argues that his term of imprisonment, 63 months, was based on the applicable Sentencing Guideline range of 57 to 71 months, as it falls directly in the middle of the range. He highlighted all of the references to the Sentencing Guidelines contained in the plea agreement and made during the sentencing hearing. ...