United States v. Berry

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 18, 2010 Decided September 3, 2010

No. 09-3084

UNITED STATES OF AMERICA,
APPELLEE

v.

STEVEN BERRY, ALSO KNOWN AS RICARDO PUNCH,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cr-00150-HHK-1)

Mary Manning Petras, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender.

Sarah Chasson, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Ronald C. Machen
Jr., U.S. Attorney, and Roy W. McLeese III, Mary B. McCord,
and Rachel C. Lieber, Assistant U.S. Attorneys.

Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
 2
Opinion concurring in the judgment filed by Circuit Judge
ROGERS.

GRIFFITH, Circuit Judge: Steven Berry is serving a
168-month prison term for possession with intent to distribute
crack cocaine. He appeals the district court’s denial of his
motion for a sentence reduction under 18 U.S.C. § 3582(c)(2)
(2006). For the reasons set forth below, we affirm.

I.

A.

The United States Sentencing Commission is charged
with promulgating guidelines to assist district courts in
imposing sentences. See 28 U.S.C. § 994(a)(1). To that end,
the Commission publishes the United States Sentencing
Commission Guidelines Manual (“Guidelines”), which
establishes sentencing ranges based on the characteristics of
the offense and offender. See id. § 994(b)(1); U.S. SENTENCING
GUIDELINES MANUAL Ch. 1, Pt. A (2009) [hereinafter
U.S.S.G.]. Although the Guidelines are only advisory, the
sentencing court must “consult” them and “take them into
account.” United States v. Booker, 543 U.S. 220, 264 (2005).
Indeed, the court must “begin all sentencing proceedings by
correctly calculating the applicable Guidelines range.” Gall v.
United States, 552 U.S. 38, 49 (2007); see United States v.
Motley, 587 F.3d 1153, 1158 (D.C. Cir. 2009).

Broadly speaking, a defendant’s sentencing range is based
on two variables: the offense level (which largely reflects the
nature and circumstances of the defendant’s crime) and the
criminal history category (based on the defendant’s past
criminal conduct). The Guidelines calculation begins with a
determination of a base offense level for the offense of
conviction. U.S.S.G. § 1B1.1(a), (b). When the offense, such
 3
as Berry’s, is a drug-trafficking crime, the type and weight of
the drugs involved usually determine the base offense level.
See id. § 2D1.1(a)(5), (c). The base offense level is then
adjusted for various mitigating and aggravating factors to
better reflect the nature of the offender’s conduct and his
acceptance of responsibility. Id. § 1B1.1(b)–(e). When the
adjusted offense level is set, the court then establishes the
defendant’s criminal history category. Id. § 1B1.1(f). The
Guidelines’ Sentencing Table assigns a sentencing range for
the resulting combination of offense level and criminal history
category. Id. Ch. 5, Pt. A.

The Guidelines calculation deviates from this formula in
the case of “career offenders.”

A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance
offense.

Id. § 4B1.1(a); see 28 U.S.C. § 994(h). To determine the
offense level for a career offender, the Guidelines require the
court to first calculate an offense level without reference to the
career-offender provisions. See U.S.S.G. § 4B1.1(b). Then the
court determines a career-offender offense level, which is
based solely on the statutory maximum prison term for the
offense of conviction. Id. The career-offender offense level
governs if it is greater than the offense level calculated without
reference to the career-offender provision. Id. This system
implements Congress’s directive that, for career offenders,
“the guidelines specify a sentence to a term of imprisonment at
 4
or near the maximum term authorized.” 28 U.S.C. § 994(h);
see U.S.S.G. § 4B1.1 cmt. background.

As part of the Congressionally mandated periodic revision
of the Guidelines, see 28 U.S.C. § 994(o), in 2007 the
Commission adopted Amendment 706, which reduced the
disparity between sentences for cocaine offenses and
crack-cocaine offenses by lowering the offense levels
associated with given quantities of crack cocaine by two
points. See U.S.S.G. supp. app. C, amend. 706 (Nov. 1, 2007).
For example, before the amendment, a defendant responsible
for between 150 and 500 grams of crack cocaine received a
base offense level of 34. See U.S.S.G. § 2D1.1(c)(3) (2006).
After the amendment, a defendant responsible for the same
amount of crack cocaine receives a base offense level of 32.
U.S.S.G. § 2D1.1(c)(4). These lower base offense levels can
translate into lower sentencing ranges.

The Commission made Amendment 706 retroactive,
U.S.S.G. supp. app. C, amend. 713 (Mar. 3, 2008), which in
turn made some defendants convicted of crack-cocaine
offenses eligible for sentence reductions under 18 U.S.C.
§ 3582(c)(2). See Dillon v. United States, 130 S. Ct. 2683
(2010). Section 3582(c)(2) authorizes the district court to
reduce the sentence 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” “if
such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.”

Because Amendment 706 only reduced offense levels
based on drug quantities, it had no impact on sentencing ranges
determined by the career-offender guideline, which are a
function of the statutory maximum penalty for the offense of
conviction. See United States v. Tepper, No. 08-3115, slip op.
 5
at 4–5 (D.C. Cir. Aug. 6, 2010). Accordingly, crack-cocaine
offenders sentenced to a term of imprisonment within a
career-offender range cannot rely on Amendment 706 to obtain
a sentence reduction under § 3582(c)(2). Id. at 4–8.

B.

In July 2006, Berry pled guilty to one count of possession
with intent to distribute more than 50 grams of crack cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii).
The Probation Office determined that Berry was a career
offender subject to an advisory Guidelines range of 262 to 327
months’ imprisonment. Presentence Investigation Report
(PSR) ¶¶ 21, 53. At sentencing, defense counsel conceded that
Berry was subject to this career-offender range. See Def.’s
Mem. in Aid of Sentencing at 1–2. The district court also
concluded that this was Berry’s sentencing range. See
Statement of Reasons Accompanying the Judgment of
Conviction.

In Berry’s plea agreement, the government assented to a
prison term of 168 months, well below the career-offender
range. The plea was entered pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C), which allows the prosecutor
and the defendant to agree to a sentence that the district court
must impose if it accepts the plea. FED. R. CRIM. P. 11(c)(1)(C)
(explaining that the parties’ sentencing request “binds the court
once the court accepts the plea agreement”); see United States
v. Goodall, 236 F.3d 700, 703, 705 (D.C. Cir. 2001) (holding
that district courts have “broad discretion” in considering
whether to accept a Rule 11(c)(1)(C) plea agreement but that
“failure to abide by the terms of that agreement” once accepted
“constitutes reversible error”). The district court accepted the
Rule 11(c)(1)(C) plea and, in accordance with its terms,
sentenced Berry to 168 months’ imprisonment in 2007.
 6
The record before us does not explain how the parties
arrived at the term of 168 months. According to Berry, had he
not been a career offender, his sentencing range would have
been 168 to 210 months. Appellant’s Br. at 7–8; see PSR ¶¶ 20,
22, 32; U.S.S.G. Ch. 5, Pt. A. He derives this alternative range
using the base offense level corresponding to the quantity of
drugs involved in his offense. See Appellant’s Br. at 7. He
avers that the proposed prison term of 168 months reflected the
parties’ agreement that his sentence be at the low end of this
alternative range, see id., which we refer to as the “non-career
range.” The government does not concede the accuracy of
Berry’s account but provides no explanation of its own.

In 2008, Berry sought to take advantage of the retroactive
application of Amendment 706 and moved in the district court
for a sentence reduction under 18 U.S.C. § 3582(c)(2). The
district court summarily denied the motion. United States v.
Berry, No. 05-00150 (D.D.C. Aug. 11, 2009). Berry appeals.
We have jurisdiction under 28 U.S.C. § 1291. United States v.
Cook, 594 F.3d 883, 885 (D.C. Cir. 2010). Because the issues
involved present questions of law, our review is de novo. See
id. at 886.

II.

A defendant must meet two requirements to be eligible for
a sentence reduction under § 3582(c)(2). First, the defendant
must have been sentenced “based on a sentencing range that
has subsequently been lowered.” 18 U.S.C. § 3582(c)(2).
Second, a reduction in the defendant’s sentence must be
“consistent with applicable policy statements issued by the
Sentencing Commission.” Id.

The parties in this case focused their arguments on the first
requirement. They dispute when, if ever, a defendant who
enters a Rule 11(c)(1)(C) plea agreement is sentenced “based
 7
on a sentencing range.” Courts are divided on this issue. See
United States v. Williams, 609 F.3d 368, 371–72 (5th Cir.
2010) (describing the conflicting conclusions of different
courts of appeals). The government would have us hold that a
sentence entered in accordance with a Rule 11(c)(1)(C) plea
agreement is “based on” only that agreement. See, e.g., United
States v. Scurlark, 560 F.3d 839, 842 (8th Cir. 2009). Berry
urges a broader view, arguing that when the sentence the
parties specify in a Rule 11(c)(1)(C) plea is determined in
accordance with a sentencing range, the sentence is “based on
a sentencing range.” See, e.g., United States v. Cobb, 584 F.3d
979, 985 (10th Cir. 2009). We need not resolve this debate
here.

Instead, we focus on the statute’s second requirement: that
any sentence reduction must be “consistent with applicable
policy statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c)(2). We conclude that one such policy
statement, found in § 1B1.10 of the Guidelines, prohibits a
sentence reduction in Berry’s case. Accordingly, we affirm the
denial of his motion for a reduced sentence on this ground. In
so doing, we do not address what Berry’s sentence was “based
on” or in what circumstances, if any, a defendant who enters a
Rule 11(c)(1)(C) plea agreement is sentenced “based on” a
particular sentencing range. 18 U.S.C. § 3582(c)(2).*

Neither party raised arguments addressing § 1B1.10,
perhaps because when they briefed and argued this case there
was some question as to whether that section, which applies
only in § 3582(c)(2) proceedings, was binding or advisory. A

* Our concurring colleague would hold that a defendant
sentenced under a Rule 11(c)(1)(C) plea can show he was sentenced
“based on a sentencing range” if, at a minimum, the judgment of
conviction or the plea agreement specifically so states. See
Concurring Op. at 1. We express no view on this point.
 8
panel of the Ninth Circuit had held that at least certain aspects
of § 1B1.10 were advisory. United States v. Hicks, 472 F.3d
1167, 1173 (9th Cir. 2007). After oral argument in this appeal,
the Supreme Court unequivocally rejected that position. See
Dillon, 130 S. Ct. at 2692. It is now clear that “[a] court must
first determine that a reduction is consistent with § 1B1.10”
before granting a sentence reduction under § 3582(c)(2). Id. at
2691; see United States v. Flemming, No. 09-2726, slip op. at
18 & n.11 (3d Cir. July 27, 2010).

Though we are wary of resolving a question not fully
briefed and argued, we exercise our discretion to do so here.
“When an issue or claim is properly before the court, the court
is not limited to the particular legal theories advanced by the
parties, but rather retains the independent power to identify and
apply the proper construction of governing law.” Kamen v.
Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); see United
States v. Harrison, 204 F.3d 236, 240 (D.C. Cir. 2000). This
appeal concerns Berry’s eligibility for a sentence reduction
under § 3582(c)(2), and we think it fit to address the clear
instruction of the statute and of Dillon that such eligibility
turns on whether a reduction is consistent with the Guidelines
policy statement.

Section 1B1.10(a)(2)(B) of the Guidelines prohibits
sentence modifications under § 3582(c)(2) if a retroactive
Guidelines amendment “does not have the effect of lowering
the defendant’s applicable guideline range.” U.S.S.G.
§ 1B1.10(a)(2)(B). Thus, the issue we must address is whether
Amendment 706 has “the effect of lowering” Berry’s
“applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B). If it
does not, a sentence reduction “is not consistent with this
policy statement and therefore is not authorized under 18
U.S.C. § 3582(c)(2).” Id. § 1B1.10(a)(2).
 9
In this case, we have two candidates for Berry’s
“applicable guideline range.” One is the career-offender range
of 262 to 327 months. That is the guideline range the district
court determined applied to Berry’s case, a determination
Berry conceded was correct. Because Amendment 706 does
not lower the career-offender range, Berry is ineligible for a
sentence reduction if this is his “applicable guideline range.”
See, e.g., United States v. Corber, 596 F.3d 763, 768 (10th Cir.
2010). The alternative is the non-career range of 168 to 210
months. That is the range, determined in accordance with the
Guidelines applicable to defendants who are not career
offenders, that Berry alleges the parties used in selecting the
168-month sentence in their Rule 11(c)(1)(C) plea agreement.
As explained above, Amendment 706 does lower this range. If
the non-career range is Berry’s “applicable guideline range,”
he might be eligible for a sentence reduction.

Berry does not contend that the non-career range results
from the correct application of the Guidelines to his case. To
the contrary, he admits this range results only if one ignores the
career-offender provisions of the Guidelines. See Appellant’s
Br. at 7–8 (“Mr. Berry’s guideline sentencing range was 168 to
210 months . . . without application of the career offender
guideline provisions.” (emphasis added)). To hold Berry
eligible for a sentence reduction would require the conclusion
that his “applicable guidelines range” could be determined by
the parties’ negotiation, and not by the Guidelines. This is not a
sound result.

In this case, we conclude that the “applicable guideline
range” referenced in § 1B1.10 is that produced from the
correct application of the Guidelines, see Corber, 596 F.3d at
768, which, for Berry, is the career-offender range. Although
the phrase “applicable guideline range” is not defined in
§ 1B1.10, we may glean its meaning from its uses elsewhere in
 10
the Guidelines, as courts generally presume a term to have the
same meaning everywhere it appears in the same legislation,
see, e.g., Goldstein v. SEC, 451 F.3d 873, 882 (D.C. Cir. 2006),
a presumption that extends to the Guidelines, see, e.g., United
States v. Perez, 366 F.3d 1178, 1182 (11th Cir. 2004); United
States v. Honken, 184 F.3d 961, 969 (8th Cir. 1999); United
States v. Poff, 926 F.2d 588, 591 (7th Cir. 1991) (en banc).
Most useful is the term’s appearance in § 5C1.1(a), which
provides that “[a] sentence conforms with the guidelines for
imprisonment if it is within the minimum and maximum terms
of the applicable guideline range.” If a guideline-conforming
sentence is defined as one within “the applicable guideline
range,” it must be the case that “the applicable guideline
range” is the product of conforming to the Guidelines’
instructions. A contrary conclusion would be nonsensical: how
could a guideline-conforming sentence result from not
conforming to the Guidelines’ instructions? Similarly, Chapter
5 of the Guidelines repeatedly uses “applicable guideline
range” to describe the guideline range resulting from
application of steps (a) through (g) of the Guidelines’
Application Instructions in § 1B1.1. U.S.S.G. § 5B1.1(a)(1),
(2); id. § 5C1.1(b), (c), (d), (f); id. § 5G1.1(a), (b), (c); see
Cook, 594 F.3d at 887 & nn.1–2; see also United States v.
Munn, 595 F.3d 183, 192 (4th Cir. 2010) (explaining that a
court arrives at the defendant’s “applicable guideline range”
after proceeding through steps (a) through (g) of the
Application Instructions). Once again we see that the
“applicable guideline range” is the product of, not surprisingly,
applying the Guidelines as they are meant to be applied. In this
case, such application yielded the career-offender range.

In sum, for Berry, the “applicable guideline range” for the
purposes of § 1B1.10 is the career-offender range, and not the
non-career range. Because Amendment 706 does not lower his
applicable guideline range, Berry is ineligible for a sentence
 11
reduction under § 3582(c)(2). See § 1B1.10(a)(2)(B); Dillon,
130 S. Ct. at 2691.

III.

The order of the district court denying Berry’s motion for
a reduced sentence is

Affirmed.
 ROGERS, Circuit Judge, concurring in judgment: Although
I concur in the judgment affirming the district court’s denial of
Berry’s motion to modify his term of imprisonment pursuant to
18 U.S.C. § 3582(c)(2), I do so on different grounds. The record
indicates that the district court did not impose a sentence based
on the sentencing range under the United States Sentencing
Guidelines for either a non-career offender or a career offender.
Rather, the district court calculated the career offender
sentencing range under the Guidelines and then expressly stated
that it was departing from that range and imposing the 168
month term of imprisonment set forth in the plea agreement,
which the district court had accepted. See Judgment Statement
of Reasons; FED. R. CRIM. P. 11(c)(1)(C)(4). Nor did the plea
agreement state that the term of imprisonment was based on a
guideline sentencing range.

In these circumstances, where the district court has
calculated a guideline sentencing range and then departed from
it and imposed a sentence based on the term of imprisonment set
forth in the plea agreement, the defendant is ineligible for relief
pursuant to 18 U.S.C. § 3582(c)(2) “based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission.” See United States v. Bride, 581 F.3d 888, 891
(9th Cir. 2009); United States v. Main, 579 F.3d 200, 203 (2d
Cir. 2009); see also United States v. Garcia, 606 F.3d 209, 214
(5th Cir. 2010). Because neither the Judgment nor the plea
agreement indicate that Berry’s sentence of 168 months’
imprisonment was based on a guideline sentencing range, the
court has no occasion to decide under what circumstances a
defendant sentenced pursuant to a Rule 11(c)(1)(C) plea
agreement may be eligible for relief under section 3582(c)(2).
See Op. at 11.