10-2631-cr
USA v. Terrance B. White
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 18th day of July, two thousand eleven.
5
6 PRESENT: RICHARD C. WESLEY,
7 DEBRA ANN LIVINGSTON,
8 GERARD E. LYNCH,
9 Circuit Judges.
10
11
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 -v.- 10-2631-cr
18
19 TERRANCE B. WHITE,
20
21 Defendant-Appellant.
22
23
24 FOR APPELLEE: MONICA J. RICHARDS, Assistant United
25 States Attorney, for William J. Hochul,
26 Jr., United States Attorney for the
27 Western District of New York, Buffalo,
28 NY.
29
30 FOR APPELLANT: MARYBETH COVERT, Federal Public
31 Defender’s Office for the Western
32 District of New York, Buffalo, NY.
33
1 Appeal from the United States District Court for the
2 Western District of New York (Larimer, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 VACATED AND REMANDED.
7 Appellant Terrance B. White appeals from a judgment of
8 the United States District Court for the Western District of
9 New York (Larimer, J.), which denied his motion for
10 reduction of sentence under 18 U.S.C. § 3582(c)(2) on the
11 ground that White’s sentence was not “based on” the United
12 States Sentencing Guidelines within the meaning of that
13 provision, but rather was an exercise of the district
14 court’s equitable discretion to remedy the violation of
15 White’s Sixth Amendment rights. We assume the parties’
16 familiarity with the underlying facts and procedural
17 history, which we briefly recount.
18 White was charged in July 2003 on five counts,
19 including several narcotics violations and one count under
20 18 U.S.C. § 924(c) (use or possession of a firearm during a
21 crime of violence or drug trafficking), which carried a
22 mandatory, consecutive five-year sentence. After White
2
1 rejected an initial plea offer,1 the government filed a
2 superseding indictment containing seven counts, including an
3 additional charge under § 924(c). Together, the two
4 § 924(c) charges exposed White to a mandatory, consecutive
5 thirty-year sentence (five for the first charge and twenty-
6 five for the second charge) in addition to the exposure from
7 the other charges. See 18 U.S.C. § 924(c)(1)(C)(i).
8 However, neither White’s counsel nor the government ever
9 informed him of the additional exposure from the second
10 charge.
11 In April 2004, the government extended a final plea
12 offer, under which White would plead guilty to one of the
13 two § 924(c) counts and one narcotics count. The offer
14 stated that the sentence would be determined pursuant to the
15 Sentencing Guidelines. It anticipated a guideline range of
16 147 to 168 months, including the mandatory, consecutive 60
17 months for the one § 924(c) count. Neither White’s counsel
18 nor the government informed him that he risked an additional
19 twenty-five years if convicted on both § 924(c) counts.
20 White rejected this final offer. At trial, he was
1
Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C),
this initial offer specified an agreed-upon proposed sentence of
138 months, with a guidelines range of 138 to 157 months.
3
1 convicted on all seven counts in May 2004. Subsequently, a
2 presentence report was prepared which calculated the
3 aggregate guideline range, including the mandatory, thirty-
4 year consecutive sentence for the two § 924(c) counts, at
5 570 to 622 months.
6 At a status conference in September 2004, Judge Larimer
7 found “serious issues relating to ineffective assistance of
8 counsel.” He relieved White’s counsel and adjourned
9 sentencing without date. White subsequently moved for a new
10 trial under Federal Rule of Criminal Procedure 33. Judge
11 Larimer construed this motion as a habeas corpus petition
12 pursuant to 28 U.S.C. § 2241(c)(3). In an order of May
13 2005, Judge Larimer found that White’s Sixth Amendment
14 rights had been violated because his attorney had not
15 advised him of the drastic sentencing consequences of
16 conviction on all counts of the superseding indictment.
17 Relying on United States v. Carmichael, 216 F.3d 224, 227
18 (2d Cir. 2000), he determined to fashion an equitable remedy
19 that would as much as possible restore White to the position
20 he would have held had there been no constitutional error.
21 The government proposed that the second § 924(c) count
22 be dismissed, and that the district court sentence White for
4
1 his convictions under the remaining § 924(c) count and the
2 five other charges (in essence correcting the mistake
3 White’s trial counsel made with regard to the second §924
4 count while recognizing the full extent of White’s drug
5 crimes). White’s new counsel proposed that White be allowed
6 to accept the initial plea offer extended prior to the
7 superseding indictment (in essence going back to the last
8 point at which White’s counsel gave him effective
9 assistance).
10 The district court rejected both suggestions as
11 respectively too harsh and too lenient. It credited White’s
12 testimony that, had his counsel accurately conveyed the
13 sentencing exposure from the superseding indictment, he
14 would have accepted the final plea offer. Accordingly, the
15 district court found that the appropriate equitable remedy
16 for the constitutional violation was to sentence White under
17 the terms envisioned by that final offer. It then did so,
18 dismissing all charges except one narcotics count and one
19 § 924(c) count. On these two counts, the district court
20 issued a sentence of 168 months (60 months for the
21 mandatory, five-year consecutive sentence under the § 924(c)
22 count and 108 months for the narcotics count envisioned in
5
1 the final offer). This term of months represents the upper
2 end of the guideline range contemplated in the final offer.
3 On cross-appeals from that judgment, this Court held
4 that White had received ineffective assistance of counsel,
5 and we saw “no abuse of discretion in the district court’s
6 selection of a remedy that is congruent with our precedent.”
7 United States v. White, 257 F. App’x 382, 385 (2d Cir. 2007)
8 (summary order).
9 In November 2007 the United States Sentencing
10 Commission amended the drug quantity table in United States
11 Sentencing Guideline § 2D1.1(c), lowering the offense level
12 for certain crack cocaine offenses. U.S.S.G. Supp. 2 App.
13 C, Amend. 706. In December 2007 the Commission voted to
14 make the amendment retroactive, effective March 2008.
15 U.S.S.G. Supp. 2 App. C, Amend. 713. In June 2008 White
16 moved for resentencing under the revised guidelines pursuant
17 to 18 U.S.C. § 3582(c)(2). In June 2010 the district court
18 denied White’s motion to reduce his sentence on the ground
19 that he was not eligible under the statute. White timely
20 appealed the denial.
21 For the following reasons, we reverse the ruling of the
22 district judge, since White’s sentence was indeed “based on”
6
1 the guidelines within the meaning of § 3582(c)(2). He was
2 therefore eligible for reduction in the district court’s
3 discretion, and the district court erred in holding that he
4 was ineligible.
5 We review de novo as a matter of statutory construction
6 a district court’s determination of whether a sentence was
7 “based on” a sentencing range that has been subsequently
8 lowered by the Sentencing Commission within the meaning of
9 § 3582(c)(2). United States v. Main, 579 F.3d 200, 202-03
10 (2d Cir. 2009).
11 As in any exercise of statutory construction, we begin
12 with the text of the provision in question. See, e.g.,
13 Premium Mortg. Corp. v. Equifax, Inc., 583 F.3d 103, 106 (2d
14 Cir. 2009) (per curiam). Section 3582(c)(2) provides:
15 [I]n the case of a defendant who has been sentenced
16 to a term of imprisonment based on a sentencing
17 range that has subsequently been lowered by the
18 Sentencing Commission . . . upon motion of the
19 defendant . . . the court may reduce the term of
20 imprisonment, after considering the factors set
21 forth in section 3553(a) to the extent that they are
22 applicable, if such a reduction is consistent with
23 applicable policy statements issued by the
24 Sentencing Commission.
25
26 18 U.S.C. § 3582(c) (emphasis added).
27 When sentencing White, the district court explicitly
28 looked to the guidelines:
7
1 [T]o fashion a remedy, the Court is proceeding to
2 sentence as if Mr. White had taken advantage of the
3 plea agreement. With that understanding, it seems
4 appropriate and necessary to consider the guidelines
5 for those two offenses and convictions as
6 anticipated by the parties in the plea agreement.
7 The Court recognizes that it had the ability even
8 before Booker and Fanfan to depart under the
9 guidelines, and now the Court post Booker could
10 impose a non-guideline sentence.
11 But I decline to do so. I think the guidelines
12 here under the principles that I’ve attempted to set
13 forth provide a reasonable sentence.
14
15 Sentencing Tr. at 30-31 (emphases added). However, when
16 White moved for a sentence reduction, the district court
17 rejected the motion, stating:
18 The Court’s original sentence was NOT based on the
19 United States Sentencing Guidelines calculations,
20 and, therefore, defendant is not entitled to a
21 reduction under 18 U.S.C. § 3582(c)(2). The
22 sentence was imposed as an equitable remedy to
23 rectify defendant’s receipt of ineffective
24 assistance of counsel concerning the several
25 pretrial plea offers. The sentence was affirmed by
26 the Second Circuit by decision filed December 11,
27 2007. The sentence was many years less than that
28 called for by the United States Sentencing
29 Guidelines after trial.
30
31 Order of June 22, 2010 (emphasis added).
32 The district judge carefully protected White’s right to
33 the effective assistance of counsel by declining to impose
34 the sentence to which he had been exposed by his lawyer’s
35 errors. Rather than vacating White’s conviction and
8
1 permitting him to plead guilty as contemplated in the
2 government’s plea offer, however, the court undertook to
3 achieve the same result more expeditiously by dismissing
4 some of the counts on which White had been convicted at
5 trial, for the express purpose of placing him in the
6 position he would have been in had he received effective
7 assistance of counsel and accepted the final plea offer.
8 The district court erred in its conclusion that White’s
9 sentence was not “based on” the guidelines. The equitable
10 remedy fashioned by the court was confined to its dismissal
11 of certain counts against White. After dismissing these
12 counts, the district court then proceeded to sentence him
13 “based on” the guidelines within the meaning of
14 § 3582(c)(2). It explicitly found that the guideline range
15 anticipated in the final plea offer was reasonable under a
16 § 3553(a) analysis, and sentenced White to a term of months
17 at the upper end of, but not beyond, that range. Thus,
18 although the sentence imposed was not within the guideline
19 range for the counts on which White was convicted after
20 trial, the sentence was designed to replicate the sentence
21 that White would have received had he accepted the plea
22 offer, and was derived directly from a calculation of what
9
1 the guideline range would have been in that situation.
2 Under the plain meaning of “based on,” the sentence is
3 eligible for reduction in the judge’s discretion.
4 The recent Supreme Court decision in Freeman v. United
5 States, ___ U.S. ___, 2011 WL 2472797 (June 23, 2011),
6 confirms this conclusion. Because the holding in Freeman
7 was the product of a split majority, its precise force and
8 scope will require elucidation by future panels. It is
9 clear from the result, however, that defendants who are
10 sentenced in accordance with recommendations in plea
11 agreements – including even agreements, like the one in
12 Freeman but unlike that proposed in this case,2 that are
13 “binding” agreements under Federal Rule of Criminal
14 Procedure 11(c)(1)(C) – may in some cases be eligible for
15 relief under § 3582(c)(2). It is further clear from Justice
16 Sotomayor’s controlling concurrence that even a sentence
17 entered pursuant to a binding plea agreement is eligible for
18 such relief where the agreement “expressly uses a Guidelines
19 sentencing range to establish the term of imprisonment.”
20 Id. at *11 (Sotomayor, J., concurring in the judgment). It
2
While the initial plea offer based on the original
indictment was a “binding” agreement, the final plea offer was
not.
10
1 follows a fortiori that where a judge imposes a within-
2 guidelines sentence recommended in a non-binding plea
3 agreement such as the one proposed here, that similarly
4 bases its recommendation on a guideline range, the sentence
5 is “based on” the guidelines. Since the sentence imposed by
6 the district was intended to be the equivalent of the
7 sentence White would have received had he accepted that plea
8 offer, we see no reason to treat this case differently.3
9 In imposing his original sentence, Judge Larimer did an
10 admirable job of protecting White’s Sixth Amendment rights
11 by not allowing his sentence to be aggravated by the defense
12 lawyer’s ineffectiveness and by imposing a sentence in
13 accordance with what may well have been a favorable plea
14 agreement. It is understandable that the judge, who may
15 well have believed that the sentence imposed was entirely
16 fair to White even after the unfairness of the former crack
17 guidelines had been discounted, may have considered that the
18 sentence was not unduly influenced by those guidelines. In
3
Our decision in United States v. Main does not require a
different result. Whether or not Main remains good law after
Freeman – a question we need not and do not address – it is
distinguishable. In that case, we found the defendant ineligible
for relief under § 3582(c)(2) where the sentence was imposed
under a Rule 11(c)(1)(C) agreement and the agreement resulted in
a sentence below the applicable guideline range. Main, 579 F.3d
at 204. Neither of these conditions is present here.
11
1 concluding that White was eligible for a sentence reduction
2 under § 3582(c)(2), moreover, we express no view on whether
3 such a reduction ought to be granted. That question is
4 confided to the sound discretion of the district court. We
5 hold only that because the sentence imposed was based on the
6 guidelines that would have been applicable, giving White the
7 benefit of the plea that he would have accepted with the
8 advice of an effective lawyer, the sentence was “based on”
9 the guidelines and White was therefore eligible to be
10 considered for such a reduction.richa
11 For the foregoing reasons, the judgment of the district
12 court is hereby VACATED and the matter is REMANDED for
13 further proceedings consistent with this order.
14
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
12