Dissenting:
No good deed goes unpunished. The majority provides for resentencing under § 3582(c) for criminal defendants who go to trial — but not for those who enter into binding plea agreements.10 For the majority, the binding nature of such agreements justifies a difference in the treatment between the offenders who choose to go to trial and those who choose to plead guilty thus saving judicial and governmental resources.11 I find this distinction false because a jury verdict is also binding on the parties. Accordingly, I believe that the binding effect of the factors leading up to the judgment should not preclude the application of § 3582(c). For these reasons, I respectfully dissent from the majority opinion and suggest that defendants sentenced under binding plea agreements should be permitted to move for resentencing based on a change in the Guidelines that would affect the basic elements that led up to the final plea agreed upon.
Although I appreciate the majority’s sincere interest in holding defendants, prosecutors, and courts to the bargain that is created once a district court accepts a plea agreement under Rule 11(c)(1)(C), I do not see how permitting a defendant to later seek resentencing under § 3582(c)(2) destroys this bargain. I agree with the reasoning of the Fourth Circuit Court of Appeals in United States v. Dews, 551 F.3d 204 (4th Cir.2008): a plea agreement specifying a particular sentence does not necessarily include the waiver of a defendant’s right to seek resentencing under § 3582(c)(2). Id. at 211. A defendant, like Sanchez, who agrees to accept a certain sentence, does not agree that he will not seek resentencing if at some point in the future the Guideline on which his sentence is based changes. Such a waiver must be specifically bargained for, just like the waiver of a defendant’s right of appeal or other possible terms of a plea agreement.
*284In addition, I take issue with my colleagues’ refusal to address whether or not Sanchez’s sentence was “based on” a Sentencing Guideline that was subsequently changed. Because I believe defendants, who enter into binding plea agreements, should be permitted to file motions for resentencing under § 3582(c)(2), I will touch briefly on this issue.
The majority suggests not enough information exists in the record to divine whether the 120-month sentence, stipulated to in the plea agreement, was based on the Guidelines. From my perspective, it strains credulity to imagine that the plea agreement was not based on the Guidelines. When offenders are considering a plea, the sentencing consequences, including the impact of the Sentencing Guidelines, are a crucial element in reaching the bargain. Of course, mandatory minimum terms of imprisonment will also be an element. All these factors are considered in a plea negotiation.
Sanchez pled to conspiracy to distribute between 35 and 50 grams of crack cocaine.12 Under the Guidelines in effect at the time of his sentencing, this amount of drugs resulted in a base offense level of 30 and a sentence range of 97-121 months. It requires only the smallest inference to determine this Guidelines sentence range provided the boundaries of what would be acceptable to both the Government and Sanchez, resulting in their selection of 120 months in their plea agreement.13
For the foregoing reasons, I respectfully dissent and suggest that we should reverse the denial of the motion for resentencing under § 3582(c)(2) and remand this case for a redetermination of Sanchez’s motion.
. I am not aware of plea agreements that are not binding, except as specifically made conditional.
. Sanchez of course pled guilty part way through his trial, thus only saving part of the trial expense.
. The majority points to some confusion over whether Sanchez actually pled to 50 grams and more or between 35 and 50 grams. This confusion is more imagined than real. It is clear from the transcript of the plea hearing that the parties intended the amount to be between 35 and 50 grams.
. The majority and the concurrence both couch their arguments that plea agreements must be strictly adhered to in contract terms. One contract principle they have neglected to mention is that even where a contract has been fully integrated, a plaintiff may demonstrate the existence of a "fundamental assumption” that is a basic condition of the contract. As Corbin observes:
It very often happens that when two parties are trying to integrate their agreement in a writing, they omit to state some fundamental assumption on the basis of which, as both of them well know, the agreement is being made. The mere existence of the writing should never be held to exclude testimony of such an unstated fundamental assumption. The truth of this assumption — the existence of the fact that is assumed — is a condition of the obligation of the written promise....
6 Arthur Linton Corbin, Corbin on Contracts § 590, at 240 (rev. ed.2002). Where a plea agreement is the contract involved, it is commonsense that the relevant Sentencing Guidelines for a defendant’s offense would constitute a "fundamental assumption” that the parties both held unless proven otherwise.