United States Court of Appeals
For the First Circuit
No. 09-1766
UNITED STATES OF AMERICA,
Appellee,
v.
ROBIN EDDIE RIVERA-MARTÍNEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Selya and Howard, Circuit Judges.
Jean C. LaRocque, by appointment of the court, for appellant.
Vijay Shanker, Attorney, Appellate Section, Criminal Division,
United States Department of Justice, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa,
Assistant United States Attorney (Appellate Chief), and Julia M.
Meconiates, Assistant United States Attorney, were on brief, for
appellee.
June 9, 2010
SELYA, Circuit Judge. This appeal raises an issue, new
to this court, that has fomented a circuit split: Is a defendant
who was sentenced pursuant to a binding C-type plea agreement, Fed.
R. Crim. P. 11(c)(1)(C), for conspiring to distribute crack cocaine
entitled to a sentence reduction by reason of retroactive
amendments to the sentencing guidelines designed to lower sentences
for crack cocaine offenses? We conclude that, in the absence of
explicit countervailing language in the plea agreement, 18 U.S.C.
§ 3582(c)(2) does not apply and, therefore, such a defendant is
ineligible for the sentence reduction.
I. BACKGROUND
On March 6, 2000, defendant-appellant Robin Eddie Rivera-
Martínez pleaded guilty to a charge of conspiring to possess with
intent to distribute, inter alia, more than five kilograms of
cocaine base (crack cocaine). See 21 U.S.C. §§ 841(a)(1), 846.
The defendant entered his plea after having made an agreement with
the government pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C).1 That rule allows the parties to agree to a specific
disposition, which will bind the district court if, as, and when
1
More precisely, the plea agreement was made pursuant to
former Rule 11(e)(1)(C), which was revised and renumbered in 2002.
It is now Rule 11(c)(1)(C). The revisions are wholly stylistic.
See Fed. R. Crim. P. 11 advisory committee's note (2002
amendments); see also United States v. Main, 579 F.3d 200, 203 n.2
(2d Cir. 2009); United States v. Scurlark, 560 F.3d 839, 841 n.3
(8th Cir. 2009). For ease in exposition, we use the new number
throughout.
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the court accepts the agreement. A plea of this kind is commonly
termed a "C-type" plea, and we will employ that nomenclature.
The defendant's plea agreement spells out the parties'
agreement that the defendant will receive a 240-month sentence.
Although the pact contains no forecast of a guideline sentencing
range (GSR), paragraph seven includes a stipulation to a total
offense level (thirty-seven) and a covenant against further
adjustments to that level.
At the change-of-plea hearing, the district court
provisionally accepted the proffered plea and ordered the
preparation of a presentence investigation report (PSI Report).
When delivered, the PSI Report suggested a GSR, the calculation of
which was premised upon the stipulated total offense level and a
criminal history category of II.
The district court convened the disposition hearing on
September 12, 2000. After rehearsing the PSI Report's guideline
calculations (which yielded a GSR of 235-293 months), the court
stated that it would "accept the [C-type] plea agreement stipulated
by the parties and . . . sentence the Defendant accordingly." It
then imposed the agreed-upon sentence: 240 months in prison.
We fast-forward to 2007, when the United States
Sentencing Commission announced an across-the-board reduction of
base offense levels for crack cocaine offenses. See USSG App. C,
Amend. 706 (Supp. 2007) (modifying USSG §2D1.1); see also USSG App.
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C, Amend. 711 (Supp. 2007). These amendments, originally effective
November 1, 2007, were later made retroactive. See USSG App. C,
Amend. 713 (Supp. 2008). Their purpose was to ameliorate the
sentencing disparity between offenses involving powdered cocaine
and offenses involving crack cocaine. See United States v.
Caraballo, 552 F.3d 6, 8 (1st Cir. 2008).
Seizing upon these developments, the defendant moved for
a sentence reduction. See 18 U.S.C. § 3582(c)(2). The district
court denied the motion. United States v. Rivera-Martínez, No. 99-
255-003 (D.P.R. Apr. 7, 2009) (unpublished order). The court
reasoned that because the defendant was "sentenced under a binding
plea agreement, which contemplated a stipulation on the . . . term
of confinement to be imposed . . . , a further reduction of
imprisonment pursuant to Amendments #706 and 711 . . . is not
considered applicable." Id. This timely appeal ensued.
II. ANALYSIS
We normally review a district court's denial of a motion
for sentence reduction for abuse of discretion. See, e.g., United
States v. Rodríguez-Peña, 470 F.3d 431, 432 (1st Cir. 2006) (per
curiam). Here, however, the threshold question is whether the
district court had authority to revise the sentence. That is a
question of law, which engenders de novo review. Caraballo, 552
F.3d at 9.
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For the most part, once a pronounced sentence in a
criminal case becomes final and unappealable, the sentencing court
may not revise it. 18 U.S.C. § 3582(c). Like virtually every
general rule, however, this rule is subject to exceptions. One such
exception provides:
[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 . . . the
court may reduce the term of imprisonment,
after considering the factors set forth in [18
U.S.C. §] 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). This subsection authorizes a district court to
reduce a sentence if — and only if — the Sentencing Commission
subsequently amends a guideline on which the sentence was based.
Caraballo, 552 F.3d at 9.
In this instance, the defendant pleaded guilty by means
of a C-type plea agreement. The applicable rule permits the parties
to agree that, upon the entry of a plea of guilty or nolo
contendere, the government will "agree that a specific sentence or
sentencing range is the appropriate disposition of the case, or that
a particular provision of the Sentencing Guidelines, or policy
statement, or sentencing factor does or does not apply." Fed. R.
Crim. P. 11(c)(1)(C). Where the parties employ this device (as they
did in this case), the resultant "recommendation or request binds
the court once the court accepts the plea agreement." Id. This
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sets up a unique dynamic: although garden-variety plea agreements
generally are treated as binding on the defendant and the
government, see United States v. Teeter, 257 F.3d 14, 28 (1st Cir.
2001), only C-type plea agreements bind the sentencing court as
well. See United States v. Scurlark, 560 F.3d 839, 842 (8th Cir.
2009).
The salient question in this case reduces to whether a
district court has authority, under section 3582(c)(2), to modify
a sentence imposed pursuant to a C-type plea agreement when that
agreement was negotiated against the backdrop of guidelines that
were subsequently amended. Although this question is one of novel
impression in this circuit, other courts of appeals have grappled
with it. The majority of them have held, albeit with varying
rationales, that the district court lacks such authority under
section 3582(c)(2). See, e.g., United States v. Green, 595 F.3d
432, 436 (2d Cir. 2010); United States v. Sanchez, 562 F.3d 275, 279
(3d Cir. 2009); Scurlark, 560 F.3d at 842; United States v. Peveler,
359 F.3d 369, 378-79 (6th Cir. 2004). Other courts have strayed
from this categorical approach in favor of a case-by-case appraisal
aimed at determining whether a particular sentence, when rendered,
could fairly be said to have been based on the guidelines. See,
e.g., United States v. Garcia, ___ F.3d ___, ___ [2010 WL 1816619,
at *3] (5th Cir. 2010) (per curiam); United States v. Franklin, ___
F.3d ___, ___ [2010 WL 1427536, at *3] (7th Cir. 2010). One court
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of appeals, reading the language of section 3582(c)(2) broadly, has
held that a district court has authority to reduce a sentence
imposed pursuant to a C-type plea agreement.2 See United States v.
Cobb, 584 F.3d 979, 985 (10th Cir. 2009).
We begin our analysis with the elementary proposition
that a court, within wide limits, should interpret a plea agreement
according to principles of contract law. United States v. Ortiz-
Santiago, 211 F.3d 146, 151 (1st Cir. 2000); cf. Teeter, 257 F.3d
at 28 (recognizing certain limits to this analogy). Once a
defendant knowingly and voluntarily enters into a plea agreement,
both the defendant and the government become bound by its terms.
Ortiz-Santiago, 211 F.3d at 151. If the pact is a C-type plea
agreement and the district court accepts it, the court too is bound
by its terms. See Fed. R. Crim. P. 11(c)(1)(C). While a district
court is free to accept or reject a C-type plea agreement, see Fed.
R. Crim. P. 11(c)(3)(A), it may not, after acceptance, disregard the
terms of such an agreement. See Green, 595 F.3d at 438; Scurlark,
560 F.3d at 842; Peveler, 359 F.3d at 377.
The defendant's claim that the guideline amendments bring
him within the compass of section 3582(c)(2) and entitle him to a
2
A panel of the Fourth Circuit held similarly, but the court
granted rehearing en banc, simultaneously vacating the panel
opinion. See United States v. Dews, 551 F.3d 204 (4th Cir. 2008),
reh'g en banc granted, No. 08-6458 (4th Cir. Feb. 20, 2009). The
en banc court later dismissed the appeal as moot, and the panel
opinion is no longer good law. See United States v. Cook, 594 F.3d
883, 888 n.3 (D.C. Cir. 2010).
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sentence reduction is undermined by the way in which C-type plea
agreements operate. Once the district court accepts a C-type plea
agreement, the court is obliged to sentence the defendant in strict
conformity with the terms of the agreement. The sentence is,
therefore, "based on" the plea agreement. See Green, 595 F.3d at
440-41; Sanchez, 562 F.3d at 282 & n.8; Scurlark, 560 F.3d at 842.
That is antithetic to the requirements of section 3582(c)(2), under
which a district court lacks authority to modify a sentence unless
that sentence is "based on a sentencing range that has subsequently
been lowered by the Sentencing Commission."
This does not mean that there is no connection between C-
type plea agreements and the sentencing guidelines. It is common
practice that, in determining whether to accept or reject the
sentence proposed in a C-type plea agreement, a district court will
use the guidelines as a point of comparison. But taking such a
precautionary step does not transmogrify an agreement-based sentence
into one based on the guidelines.3 See United States v. Cieslowski,
3
To some extent, this conclusion was adumbrated by our
earlier decision in Caraballo. There, we wrote that "if an amended
guideline does not have the effect of lowering the sentencing range
actually used at sentencing, the defendant's sentence was not based
on that range within the intendment of [section 3582(c)(2)]." 552
F.3d at 10; see also United States v. Cardosa, ___ F.3d ___, ___
[2010 WL 2136664, at *4] (1st Cir. 2010) (holding that "where the
defendant's existing sentence was ultimately determined by the old
crack cocaine guidelines . . . resentencing is within the
discretion of the district court") (emphasis in original). Even
though these statements were not made in cases involving C-type
plea agreements, they are in harmony with our holding today. After
all, when a defendant enters into a C-type plea agreement, the
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410 F.3d 353, 364 (7th Cir. 2005) ("A sentence imposed under a [C-
type] plea arises directly from the agreement itself, not from the
Guidelines, even though the court can and should consult the
Guidelines in deciding whether to accept the plea.").
The fact that the guidelines may have played a role in
the parties' negotiation of a particular sentence does not alter
this analysis. When a C-type plea is at issue, it is the terms of
the agreement, not the process of arriving at those terms or the
external considerations bearing upon them, that dictate the sentence
to be imposed. See United States v. Ray, 598 F.3d 407, 409 (7th
Cir. 2010); United States v. Bride, 581 F.3d 888, 891 (9th Cir.
2009); see also Ortiz-Santiago, 211 F.3d at 151 (explaining that the
court should not look beyond the four corners of a plea agreement
in construing its terms). Absent an express statement in the plea
agreement making the sentence dependent upon a guideline
calculation, a sentence imposed pursuant to a C-type plea agreement
is based on the agreement itself, not on the guidelines. See Green,
595 F.3d at 440-41; Sanchez, 562 F.3d at 282 & n.8; Scurlark, 560
F.3d at 842.
In the case at hand, the terms of the plea agreement do
not expressly provide (or even hint) that the stipulated 240-month
court does not sentence the defendant according to a guideline
calculation but, rather, according to the sentence stipulated in
the plea agreement. Thus, there is no "sentencing range actually
used at sentencing." Caraballo, 552 F.3d at 10.
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sentence depends on the guidelines. The fact that the agreement
includes a stipulation as to the defendant's total offense level
does not suffice. Merely mentioning one integer in a possible
guidelines calculation is not enough to evince a mutual intention
that the agreed-upon sentence will be adjusted should the relevant
guidelines change.4
We add a coda. Even apart from the plain meaning of
"based on" in section 3582(c)(2), Rule 11(c)(1)(C) itself precludes
a district court from unilaterally altering a sentence lawfully
imposed under a C-type plea agreement. Once the court accepts such
a plea agreement, it is bound by the terms thereof. See United
States v. Mukai, 26 F.3d 953, 955 (9th Cir. 1994) (noting that
"[t]he rules contain no provision for the district court to modify
a [C-type] plea agreement"). Consequently, the court cannot vary
the agreed-upon sentence unless the terms of the plea agreement
explicitly authorize it to do so. See Peveler, 359 F.3d at 378-79.
In the absence of such a provision, the court is bound to impose
(and leave undisturbed) the agreed-upon sentence. See Sanchez, 562
F.3d at 281 n.7; id. at 282-83 (Rendell, J., concurring); Peveler,
359 F.3d at 378-79.
4
Indeed, the instant plea agreement does not even contain the
ingredients from which a GSR could be calculated. It is not only
silent as to the defendant's criminal history category but also
states explicitly that the parties have not reached a consensus on
that subject. Thus, it is impossible, within the four corners of
the plea agreement, even to calculate the GSR.
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This result is consistent with the established view that
plea agreements are for the most part governed by principles of
contract law. In this case, no principle of contract law would have
justified the lower court, once it accepted the agreement, in
revising the specified sentence.
In an effort to contradict this conclusion, the defendant
asserts that this is a case that involves a mutual mistake of fact;
that is, a mutual mistake about a fundamental assumption — the
immutability of the guidelines that formed the backdrop against
which the parties negotiated the agreed-upon sentence. The doctrine
of mutual mistake is recognized in the law of contracts, see 27
Samuel Williston, Williston on Contracts § 70:74 (4th ed. 2003),
but the attempt to weave it into the fabric of this case is an
exercise in futility.
Whether a party to a plea agreement may be entitled to
relief on the ground of mutual mistake is in dispute. Compare,
e.g., United States v. Olesen, 920 F.2d 538, 542 (8th Cir. 1990)
(holding that principle of mutual mistake does not apply to permit
modification of plea agreement), with, e.g., United States v.
Bradley, 381 F.3d 641, 648 (7th Cir. 2004) (holding that mutual
mistake as to essential element of plea agreement can invalidate
entire agreement). This court has indicated that, in rare
instances, mutual mistake might afford a valid ground for relief
from a plea agreement. See Teeter, 257 F.3d at 28 n.12 (dictum).
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We need not resolve this question definitively because
there is no evidence here of a mutual mistake. In other words,
there is nothing that suffices to show an assumption, held by both
the defendant and the prosecution, that the relevant guidelines
would not be amended in the future. The raw materials needed to
apply the doctrine of mutual mistake are, therefore, lacking. See
Sanchez, 562 F.3d at 281 n.7; Peveler, 359 F.3d at 378 n.4.
III. CONCLUSION
We need go no further. The plea agreement at issue here
reflects the parties' agreement to a specific sentence, and the
district court, once it accepted that C-type agreement, was duty
bound to adhere to that sentence. It follows inexorably that the
imposed sentence is based on the plea agreement itself, not on "a
sentencing range that has subsequently been lowered." 18 U.S.C.
§ 3582(c)(2). The upshot is that, notwithstanding the guideline
amendments lowering the offense levels for crack cocaine offenses,
section 3582(c)(2) does not authorize a reduction of the defendant's
sentence.
Affirmed.
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