The opinion of the court was delivered by: Judge Munley
Before the court is Petitioner Robert Carrigan's "Motion to Modify Sentence Pursuant to 18 U.S.C. Section 3582(c)(2)" on remand from the Third Circuit Court of Appeals. (Docs. 315, 351). We directed the parties to brief the motion in light of the Third Circuit vacating the previously imposed judgment denying Carrigan's motion. Having been fully briefed, the motion is ripe for disposition. After consideration of the Supreme Court's decision in Freeman v. United States, -- U.S. --, 131 S. Ct. 2685 (2011), we will again deny Carrigan's motion to reduce his sentence.
On November 17, 2005, Petitioner Robert Carrigan ("Carrigan") pleaded guilty to Count I of the indictment, charging him with conspiracy to distribute more than 50 grams of cocaine base ("crack cocaine") and more than 500 grams of cocaine in violation of 21 U.S.C. § 846. (Doc. 233). Carrigan and the Government entered into a plea agreement made pursuant to Federal Rule Criminal Procedure 11(c)(1)(C), which states, "[f]or the reasons and under the authority set forth in paragraph 12 of this agreement, the defendant and the government agree that the appropriate sentence for the offense is imprisonment for a period of 110 months." (Plea Agreem. ¶ 4 (Doc. 228)). Paragraph 12 of the agreement provides that Carrigan agreed to cooperate with the Government and provide substantial assistance. (Id. ¶ 12). The Court accepted the plea, ordered a pre-sentence investigation and scheduled a sentencing hearing. (Pre-sentence Investigation Report ("PSR") ¶ 4).
The completed Pre-Sentence Investigation Report provided that Carrigan's total offense level was a 34, based on his status as a career offender, drug quantity and a three-level reduction for acceptance of responsibility.*fn1 (PSR ¶ 63). Due to Carrigan's status as a career offender he also had a criminal history category of VI.*fn2 (Id. ¶¶ 64, 92). His offense level and criminal history category resulted in a guideline range of 262 to 327 months imprisonment. (Id. ¶ 120).
On February 16, 2006, this court sentenced Carrigan to 110 months imprisonment as provided by the plea agreement. (Sent. Trans. at 1, 9 (Doc. 354)). We noted that had the plea agreement not existed, Carrigan would be facing a sentence anywhere from twenty-two (22) to twenty-seven (27) years imprisonment, which was the sentencing range derived from the Pre-Sentence Report. (Id. at 6; PSR ¶ 120). The government explained that the reason for the recommended sentence in the plea agreement was Carrigan's cooperation. (Sent. Trans. at 3 (Doc. 354)). The court found that the sentence in the plea agreement satisfied all the purposes set forth in 18 U.S.C. § 3553(a) and was reasonable in light of the circumstances in the case. (Id. at 5).
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." See U.S.S.G. App. C, Amdt. 706. 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.
Pursuant to the amended guidelines, Carrigan filed a "Motion to Modify Sentence Pursuant to 18 U.S.C. Section 3582(c)(2)" on January 28, 2009. (Doc. 315). Carrigan argued that he was entitled to reduce his offense levels by two levels as allowed by the amendment. Id. On April 22, 2009, this court denied the motion. (Doc. 323). We concluded that there was no change between the previous and amended guideline ranges because Carrigan was classified as a career offender. As Carrigan was sentenced to a 110 months imprisonment, we noted that his sentence "was less than the guideline range applicable to the defendant at the time of sentencing as a result of a departure or Rule 35 reduction, and the reduced sentence is comparably less than the amended guideline range." (Id.) Carrigan's guideline range was not lowered by Amendments 706, 711 and 715. Id. We also explained that Carrigan was sentenced pursuant to a Rule 11(c)(1)(C) plea agreement and, therefore, he was ineligible for a sentence reduction under Section 3582(c)(2).*fn3 (Id.)
Carrigan appealed our decision to the Third Circuit Court of Appeals. (Doc. 324). On June 2, 2010, the Third Circuit granted the Government's motion for summary action. (Doc. 345). Carrigan subsequently appealed that order to the United States Supreme Court. On June 23, 2011, the Supreme Court issued its opinion in Freeman v. United States, which allowed defendants who entered into plea agreements a sentencing reduction under Section 3582(c)(2). 131 S. Ct. at 2693 (plurality opinion). The Supreme Court granted certiorari to Carrigan's case and vacated the Third Circuit order. It remanded the case back to the Third Circuit for further consideration in light of the Freeman decision. Carrigan v. United States, 131 S. Ct. 3089 (2011). On December 7, 2011, the Third Circuit found that Carrigan's case would more appropriately be addressed by the district court and remanded the case to this court. United States v. Carrigan, No. 09-2391, 2011 WL 4582583, at *2 (3d Cir. Oct. 5, 2011).
On February 2, 2012, this court directed the parties to brief the issue presented by the Third Circuit's opinion vacating the previously imposed judgment. (Doc. 351). The parties submitted their briefs, bringing the case to its present posture.
Under Section 3582(c)(2), a district court may modify a defendant's term of imprisonment, if that term was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . after considering the factors set forth in section 3553(a) to the extent that they are applicable, if a reduction is consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). Thus, there are two requirements that must be satisfied for a district court to reduce a sentence: (1) the defendant must have been sentenced to a term of imprisonment based on a sentencing range that was subsequently lowered; and (2) the sentence reduction must be consistent with applicable policy statements issued by the Sentencing Commission. United States v. Doe, 564 F.3d 305, 309 (3d Cir. 2009).
A sentence reduction based on a retroactive amendment is not consistent with the policy statement if the amendment "does not have the effect of lowering the defendant's applicable guideline range because of the operation of another guideline or statutory provision . . . ." U.S.S.G. § 1B1.10 cmt. n. 1(A) (2011).If the court finds that a reduction is warranted, it may exercise its discretion, "'after considering the factors set forth in section 3553(a) to the extent that they are applicable,' . . . as well as the factors contained in the commentary to the Commission's policy statements . . . ." United States v. Flemming, 617 F.3d 252, 257 (3d Cir. 2010) (citations omitted).
Prior the Supreme Court's ruling in Freeman, the Third Circuit held that where a sentence is based on a Rule 11(c)(1)(C) plea agreement ("C agreement") the defendant is ineligible for a reduction under Section 3582(c)(2). United States v. Sanchez, 562 F.3d 275, 279-82 (3d Cir. 2009). In Freeman, a plurality of the Supreme Court rejected this categorical approach and found that a district court has the authority to entertain a motion to reduce sentence even when the defendant enters into a C agreement. Freeman, 131 S. Ct. at 2693 (plurality opinion). The plurality found that the district court's decision to accept the agreement and impose the 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, provided for a small category of defendants that are eligible for a reduction. She found that sentences following C agreements are based on the agreement 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 ...