United States v. Dews

Rehearing en banc granted, February 20, 2009
Dismissed as moot, May 4, 2009

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 08-6458
DARRELL DEWS,
Defendant-Appellant.


UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 08-6476
BRIAN ALLEN,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(8:97-cr-00432-DKC-1; 8:97-cr-00432-DKC-3)

Argued: September 24, 2008

Decided: December 30, 2008

Before GREGORY and AGEE, Circuit Judges,
and T. S. ELLIS, III, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
2 UNITED STATES v. DEWS
Reversed and remanded by published opinion. Senior Judge
Ellis wrote the opinion, in which Judge Gregory joined. Judge
Agee wrote a dissenting opinion.

COUNSEL

ARGUED: Sapna Mirchandani, OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellants. Barbara Slaymaker Sale, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public
Defender, Baltimore, Maryland; Sherri Keene, Staff Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Green-
belt, Maryland, for Appellants. Rod J. Rosenstein, United
States Attorney, Mythili Raman, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.

OPINION

ELLIS, Senior District Judge:

Appellants, Darrell Dews and Brian Allen, pled guilty to
one count of conspiracy to distribute and possess with intent
to distribute cocaine base and one count of money laundering
pursuant to plea agreements entered into under Rule
11(e)(1)(C), Fed. R. Crim. P.1 Both plea agreements included
1
Rule 11(e)(1)(C) was amended in 1999 and subsequently renumbered
as Rule 11(c)(1)(C), Fed. R. Crim. P. The version of Rule 11(e)(1)(C) in
effect at the time appellants were sentenced allowed the government and
the defendant to "agree that a specific sentence is the appropriate disposi-
tion of the case." Rule 11(e)(1)(C), Fed. R. Crim. P. (1998). In addition,
Rule 11(e)(3)—the equivalent of which is now located at Rule
11(c)(4)—stated that "[i]f the court accepts the plea agreement, the court
shall inform the defendant that it will embody in the judgment and sen-
tence the disposition provided for in the plea agreement." Rule 11(e)(3),
Fed. R. Crim. P. (1998).
 UNITED STATES v. DEWS 3
an agreement that a custody sentence of 168 months would be
the appropriate disposition of the case. Thereafter, a probation
officer prepared presentence reports calculating the appropri-
ate guidelines sentencing range. At each sentencing, the dis-
trict judge considered the presentence investigation report,
carefully ascertained the appropriate sentencing guidelines
range, and then elected to impose a sentence of 168 months,
the bottom of the applicable sentencing guidelines range and
the sentence agreed upon in the Rule 11(e)(1)(C) plea agree-
ments. Almost ten years later, the Sentencing Commission
retroactively amended the guideline that applies to crack
cocaine offenses. Based on the amendment, appellants moved
for a reduction in sentence, which motions the district court
denied on the ground that sentences imposed following a plea
under Rule 11(e)(1)(C) are not eligible for reduction under 18
U.S.C. § 3582(c)(2). For the reasons that follow, we disagree
and accordingly reverse and remand.

I.

A.

On April 14, 1998, Dews entered into a plea agreement
with the government in which he agreed to plead guilty to one
count of conspiracy to distribute and possess with intent to
distribute cocaine base and one count of money laundering. In
the plea agreement, Dews and the government agreed pursu-
ant to Rule 11(e)(1)(C), Fed. R. Crim. P., that the appropriate
disposition of the case was a term of imprisonment of 168
months followed by five years of supervised release. The plea
agreement explicitly stated, however, that "[i]n the federal
system, sentence is imposed by the Court, and the Court is
under no obligation to accept this plea agreement." (J.A. 38.)
Both sides agreed that "[i]n the event that the Court rejects
this plea agreement, either party may elect to declare the
agreement null and void." (J.A. 37.)
4 UNITED STATES v. DEWS
Both sides also accepted that "a sentencing guideline range
for this case will be determined by the Court pursuant to the
Sentencing Reform Act of 1984" and that "the Court will
impose a sentence within that guideline range" unless it found
a basis for departure. (J.A. 35.)2 Because of the importance of
the sentencing guidelines range,3 the parties stipulated to a
number of guidelines factors, agreeing, for example, "that at
least 1½ kilograms of cocaine base were reasonably foresee-
able to Mr. Dews and within the scope of his agreement and
involvement, resulting in a base offense level of 38 pursuant
to Sentencing Guideline [sic] §§ 2D1.1 (Cocaine distribution
and conspiracy) and 1B1.3 (Relevant Conduct)." (J.A.
35–36.) The parties also agreed that the drug trafficking and
money laundering offenses should be treated as closely
related counts pursuant to U.S.S.G. § 3D1.1 and that a three-
level downward adjustment would be appropriate to reflect
Dews’s timely plea and his acceptance of responsibility pur-
suant to U.S.S.G. § 3E1.1. There was no agreement with
respect to Dews’s criminal history category.4

Although the parties stipulated to several sentencing fac-
tors, they understood that the district judge would not rely
2
The plea agreement also stated that the court would find a basis for
departure if "there exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration by the Sen-
tencing Commission in formulating the guidelines, which should result in
a sentence different from the guideline range." (J.A. 35.)
3
Although prior to United States v. Booker, 543 U.S. 220 (2005), adher-
ence to the sentencing guidelines was generally mandatory, there was a
circuit split "as to whether a district court ha[d] the authority to accept a
Rule 11(c)(1)(C) [formerly Rule 11(e)(1)(C)] plea agreement that disre-
garded the applicable Sentencing Guidelines range." United States v.
Bundy, 359 F. Supp. 2d 535, 538 (W.D. Va. 2005). Although no published
Fourth Circuit decision addressed the issue, the district court and the par-
ties apparently proceeded on the basis that the sentencing guidelines were
controlling.
4
Although there was no agreement as to Dews’s criminal history cate-
gory, the parties expected that his criminal history category would be I, in
which case 168 months would be the bottom of the guidelines range.
 UNITED STATES v. DEWS 5
exclusively on the parties’ stipulation as to the sentencing fac-
tors and the sentence, but would also consider the results of
the probation officer’s presentence report and independently
calculate the sentencing guidelines range. The plea agreement
stated that Dews could not withdraw his plea simply because
the district judge might ultimately determine sentencing fac-
tors different from those anticipated by the parties. Rather, the
plea agreement made clear that Dews could withdraw his plea
only in the event that the district judge imposed a sentence
other than 168 months. Alternatively, if the district judge
imposed a greater sentence, Dews could choose not to with-
draw his plea, but instead to appeal the district judge’s guide-
lines range calculation.

On April 14, 1998, the district judge reviewed the terms of
the plea agreement with the parties and accepted Dews’s plea
of guilty. Yet, the district judge deferred a decision on
whether to accept the plea agreement, indicating that it would
be necessary first to review the presentence report to deter-
mine whether the stipulated sentence was appropriate under
the guidelines. During the plea hearing, the district judge
noted the maximum penalty to which Dews could be sen-
tenced, but stressed that "the actual sentence will be deter-
mined by reference to the sentencing guidelines." (J.A. 87.)
Dews, the government, and the district judge clearly antici-
pated that the district judge would calculate the applicable
guidelines range, determine whether the proposed term of
imprisonment was within the range, and only then decide
whether that sentence was appropriate.

A probation officer subsequently prepared a presentence
report. Like the plea agreement, the presentence report stated
that, under U.S.S.G. § 2D1.1, the base offense level for
Dews’s crack offense was 38. With a three-point deduction
for acceptance of responsibility, the probation officer calcu-
lated an adjusted total offense level of 35.5 The probation offi-
5
Because the drug trafficking offense and the money laundering offense
were grouped pursuant to U.S.S.G. § 3D1.2(b) and because the offense
6 UNITED STATES v. DEWS
cer also confirmed that Dews’s criminal history category was
I. Based on a total offense level of 35 and a criminal history
category of I, the probation officer determined the guidelines
imprisonment range was 168 to 210 months. The probation
officer therefore concluded that the stipulated sentence was
within the applicable guidelines range. At the sentencing
hearing on May 29, 1998, neither Dews nor the government
challenged any findings in the presentence report. Thereafter,
the district judge sentenced Dews to 168 months of imprison-
ment, stating that "I will accept the recommendation in the
plea agreement. It’s within the guidelines. It is the lowest sen-
tence available under those guidelines." (J.A. 118.)

B.

The facts relating to Allen’s plea and sentencing are essen-
tially similar to those in Dews’s case. On April 10, 1998,
Allen entered into a plea agreement pursuant to Rule
11(e)(1)(C) in which he agreed to plead guilty to one count
of conspiracy to distribute and possess with intent to distrib-
ute cocaine base and one count of money laundering. His plea
agreement explicitly acknowledged that the district judge
would determine the sentencing guidelines range and then
impose a sentence within that range unless she found a basis
for departure. The parties then stipulated to certain sentencing
guidelines factors, including specifically that "at least 500
grams but not more than 1½ kilograms of cocaine base were
reasonably foreseeable to Mr. Allen and within the scope of
his agreement and involvement, resulting in a base offense
level of 36 pursuant to Sentencing Guideline [sic] §§ 2D1.1
(Cocaine distribution and conspiracy) and 1B1.3 (Relevant
Conduct)." (J.A. 28–29.) The parties also agreed that the drug
trafficking and money laundering offenses were closely

level for the crack offense was the higher of the two, the probation officer
correctly used the crack offense level as the base offense level for the
group.
 UNITED STATES v. DEWS 7
related counts under U.S.S.G. § 3D1.1 and that Allen should
receive a three-level downward adjustment under U.S.S.G.
§ 3E1.1 to reflect his acceptance of responsibility and the
timeliness of his plea. There was no agreement with respect
to Allen’s criminal history category, but the parties stated in
the plea agreement that they believed it was III.

Based on these factors, Allen and the government agreed,
pursuant to Rule 11(e)(1)(C), that the appropriate disposition
of the case was for Allen to receive a term of imprisonment
of 168 months in the event his criminal history category
proved to be III or 188 months if his criminal history category
turned out to be IV, with either term to be followed by five
years of supervised release.6 The agreement stressed, how-
ever, that "[i]n the federal system, sentence is imposed by the
Court, [and] the Court is under no obligation to accept this
plea agreement." (J.A. 30.) The agreement made clear that if
the Court imposed a different sentence, "either party may
elect to declare the agreement null and void." (J.A. 30.)

On April 10, 1998, the district judge conducted a plea hear-
ing in Allen’s case in which she reviewed the terms of the
plea agreement with the parties. Although the district judge
found a factual basis for the plea, she made clear that she
would not accept the Rule 11(e)(1)(C) plea agreement until
she had reviewed the presentence report, independently calcu-
lated the guidelines range, and then determined whether one
of the agreed-upon sentences was appropriate "depending on
what the guideline factors are." (J.A. 72.)

A probation officer subsequently prepared a presentence
report that identified the facts relevant to the sentencing
guidelines and determined, consistent with the plea agree-
ment, that the adjusted combined offense level was 33. The
6
As the government made clear at the plea hearing, "[i]n essence we’ve
agreed that the low end of a category III, or the low end of a category IV
is appropriate." (J.A. 60.)
8 UNITED STATES v. DEWS
probation officer further reported that Allen had a criminal
history category of III and that the resulting guidelines range
of imprisonment was 168 to 210 months.7 At sentencing on
June 10, 1998, the district judge adopted the proposed find-
ings of the presentence report and sentenced Allen to 168
months of imprisonment. In doing so, the district judge stated
that she had determined it was appropriate "to accept the plea
agreement in this case and to agree to impose a sentence at the
very lowest end of the applicable guideline range." (J.A. 134.)

Nearly ten years later, on February 21, 2008, Dews and
Allen moved for a reduction of sentence pursuant to 18
U.S.C. § 3582(c)(2) in light of the Sentencing Commission’s
recent amendment to the crack cocaine guideline. On March
10, 2008, the district court denied their motions, concluding
that it lacked authority to reduce their sentences under 18
U.S.C. § 3582(c)(2) because, in sentencing Dews and Allen,
the district judge had accepted their Rule 11(e)(1)(C) plea
agreements. Dews and Allen timely appealed, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.8

II.

The sole issue on appeal is whether the district court prop-
erly held that it lacked authority under 18 U.S.C. § 3582(c)(2)
to consider appellants’ motions for reduction of sentence on
the ground that it had accepted their Rule 11(e)(1)(C) plea
agreements when it imposed their sentences of imprisonment.
7
The probation officer further indicated that in the event the district
judge were to accept the plea agreement and impose 168 months of incar-
ceration, Allen would be "held accountable for the total offense conduct"
because that sentence was within the guidelines range. (J.A. 194.)
8
Dews and Allen moved to have their appeals consolidated, and an
Order was entered granting this motion on April 28, 2008. In addition, on
May 1, 2008, an Order was entered granting Dews and Allen’s motion to
expedite briefing in this appeal. It is worth noting in this regard that
Dews’s current projected release date is January 31, 2009, and Allen’s is
January 25, 2010.
 UNITED STATES v. DEWS 9
This is a legal question, and our review is accordingly de
novo. See United States v. Smith, 115 F.3d 241, 244 (4th Cir.
1997).

Analysis of the question presented properly begins with a
consideration of the pertinent terms of 18 U.S.C.
§ 3582(c)(2), which provides that a court may reduce the term
of imprisonment "in 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 pursuant to 28 U.S.C. § 994(o)." Thus, to be eli-
gible for relief under § 3582(c)(2), appellants must meet two
requirements: First, appellants’ terms of imprisonment must
have been based on a guidelines sentencing range; and sec-
ond, that sentencing range must have been subsequently low-
ered. Both requirements are met here.

The first requirement is plainly met as the record is replete
with evidence that the sentencing guidelines played a central
role in the district judge’s sentencing of both appellants. Thus,
the record reflects that the parties in their plea agreements
contemplated that the stipulated sentence would be a guide-
lines sentence, and the parties also expected that the district
judge would independently calculate and determine the appli-
cable guidelines range. It is noteworthy that the plea agree-
ments correctly stated that "[i]n the federal system, sentence
is imposed by the Court." (J.A. 30, 38) Hence, the parties rec-
ognized that the question whether the sentences imposed were
based on the guidelines must be answered from the perspec-
tive of the sentencing district judge. In this respect, there is no
doubt that from the perspective of the district judge Dews and
Allen were "sentenced to a term of imprisonment based on a
sentencing range." 18 U.S.C. § 3582(c)(2). Notably, the dis-
trict judge accepted the recommended term of imprisonment
only after carefully calculating the applicable guidelines range
for each appellant and determining that the agreed-on sen-
tence fell within the guidelines range. Indeed, in both cases
the entire plea and sentencing process was predicated on the
10 UNITED STATES v. DEWS
understanding that the district judge would impose the recom-
mended term of imprisonment only if she concluded that it
was within the applicable guidelines range. In sum, then,
appellants clearly meet the first requirement of § 3582(c)(2)
in that they were both "sentenced to a term of imprisonment
based on a sentencing range." Id.

With respect to § 3582(c)(2)’s second requirement, there is
little doubt and no dispute that the relevant sentencing range
was lowered subsequent to appellants’ sentencings. Effective
March 3, 2008, the Sentencing Commission retroactively
amended U.S.S.G. § 2D1.1, reducing by two levels the base
offense level for most crack cocaine offenses, including the
offenses for which appellants were convicted. Thus, appel-
lants fit squarely within § 3582(c)(2) as they were "sentenced
to a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing Commis-
sion pursuant to 28 U.S.C. § 994(o)." Id. Accordingly, under
the terms of § 3582(c)(2), appellants are eligible for a reduc-
tion in sentence reflecting the Sentencing Commission’s
guideline amendment.

Nor is this conclusion altered by the fact that appellants
pled guilty pursuant to Rule 11(e)(1)(C). Nothing in that rule
precludes a defendant pleading guilty under that rule from
receiving the benefit of a later favorable retroactive amend-
ment to the guidelines, provided, of course, that the require-
ments of § 3582(c)(2) are met. Neither the language nor the
purpose of the rule addresses or precludes the later application
of § 3582(c)(2) in appropriate circumstances. Put differently,
a sentence may be both a guidelines-based sentence eligible
for treatment under § 3582(c)(2) and a sentence stipulated to
by the parties in a plea agreement pursuant to Rule
11(e)(1)(C). The parties in this case stipulated to a guidelines-
based sentence in light of the circumstances that then existed;
they did not agree that the stipulated sentence would be
immutable for all time, regardless of what might happen in
the future. Just as a stipulated sentence under Rule
 UNITED STATES v. DEWS 11
11(e)(1)(C) might be later altered by way of a Rule 35
motion, a pardon, or a commutation, so, too, can a guidelines-
based stipulated sentence be altered in the future pursuant to
§ 3582(c)(2), provided the requirements of that statute are
met. In sum, then, we conclude that the district judge erred in
concluding that she lacked authority to grant appellants’
motions for reduction in sentence pursuant to § 3582(c)(2).

In reaching this result, we are cognizant that other circuits
have reached a different result.9 These cases fall into three
categories. First, a number of these cases are distinguishable
in that they did not involve guidelines-based sentences and
hence did not meet the first requirement of § 3582(c)(2). For
example, in United States v. Trujeque, 100 F.3d 869, 871
(10th Cir. 1996), the district court found that the applicable
guidelines imprisonment range for the defendant was 27 to 33
months, but nonetheless sentenced him to 84 months, the sen-
tence stipulated to in his Rule 11(e)(1)(C) plea agreement.
The Tenth Circuit correctly concluded that "[t]hese facts
establish that Mr. Trujeque’s sentence was not ‘based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission’" and therefore held that the defen-
dant was not eligible for § 3582(c)(2) relief. Id. (quoting 18
U.S.C. § 3582(c)(2)). Similarly, the defendant in United
States v. McKenna, No. 97-30173, 1998 WL 30793, at *1 (9th
Cir. Jan. 12, 1998), was subject to a ten-year mandatory mini-
mum, but was sentenced to 84 months after the parties agreed
on that sentence because of his substantial assistance. The
9
In addition to relying on the decisions discussed below, the dissent also
identifies United States v. Heard, 359 F.3d 544 (D.C. Cir. 2004) as pre-
cisely stating the controlling principle, even though that case did not
involve the application of § 3582(c)(2). Although the dissent correctly
quotes the Heard opinion as stating that "[a] sentence arising from a Rule
11(e)(1)(C) plea . . . does not result from the determination of an appropri-
ate guidelines offense level," this statement is qualified a few sentences
later when the court acknowledges that "there may be at least some Rule
11(e)(1)(C) sentences that do rest on a determination of offense levels."
Heard, 359 F.3d at 196–97.
12 UNITED STATES v. DEWS
Ninth Circuit accordingly found, correctly, that "[h]ere,
McKenna’s sentence was not predicated on a sentencing
guideline range, but rather on the agreed upon sentence in the
11(e)(1)(C) agreement." Id. The holdings of Trujeque and
McKenna are consistent with our ruling today because we are
not adopting a per se rule that every defendant whose sen-
tence was imposed consistent with a Rule 11(e)(1)(C) plea
agreement can seek a reduction in his sentence via
§ 3582(c)(2). Rather, in each case, the district court must
determine whether the defendant meets the requirements of
§ 3582(c)(2).

The second category of decisions reaching a contrary result
includes those in which the recitation of facts or reasoning is
too cursory to permit a confident judgment as to the basis of
the decision. For example, in United States v. Brown, 71 F.
App’x 383, 384 (5th Cir. 2003), the Fifth Circuit held in a
one-paragraph opinion that § 3582(c)(2) did not apply to a
defendant who had been sentenced pursuant to a Rule
11(e)(1)(C) plea agreement without specifying whether the
defendant’s sentence was based on the guidelines. Similarly,
United States v. Hemminger, No. 96-2081, 1997 WL 235838
(7th Cir. May 2, 1997), did not indicate whether the defendant
received a guidelines-based sentence but nonetheless held that
the defendant was not eligible for a reduction under
§ 3582(c)(2).10
10
In Hemminger, the defendant’s plea agreement "acknowledged that an
agreement for a specific sentence ‘is not contingent upon the probation
officer’s or the court’s concurrence with . . . calculations’ under the Sen-
tencing Guidelines." 1997 WL 235838, at *1. Although this provision
arguably indicates that the case belongs in the first category, this language
can also be read as indicating that the defendant could not withdraw his
plea solely because the district court might ultimately determine sentenc-
ing factors different from those anticipated by the parties. Thus, the
unpublished Hemminger opinion discloses too little information to deter-
mine whether the sentence there in issue was a guidelines-based sentence.
Moreover, the conclusory language in Hemminger cited in the dissent does
not acknowledge or address the proposition advanced here that nothing
precludes a sentence from being based on the guidelines and also agreed
to under Rule 11(e)(1)(C).
 UNITED STATES v. DEWS 13
The contrary decisions in the third category appear to
announce a per se rule that the district court may not consider
a § 3582(c)(2) motion if sentence was imposed pursuant to a
Rule 11(e)(1)(C) plea agreement. In United States v. Peveler,
359 F.3d 369 (6th Cir. 2004), the defendant and the govern-
ment stipulated to a term of imprisonment at the low end of
the applicable guidelines range in a Rule 11(e)(1)(C) plea
agreement that the district court accepted. When, years later,
the defendant moved for a reduction of sentence under
§ 3582(c)(2), the Sixth Circuit held that the district court
could not grant the motion. Although the court recognized
that the Sentencing Commission had retroactively amended "a
relevant guideline utilized to determine the defendant’s sen-
tence," it nonetheless concluded that Rule 11(e)(1)(C) pre-
cluded the district court from modifying the defendant’s
sentence under § 3582(c)(2). Id. at 379. In reaching that con-
clusion, the court stressed that under Rule 11(e)(1)(C), "once
the court unqualifiedly accepts the agreement it too is bound
by the bargain." Id. at 375 (citation and internal quotation
marks omitted). The Sixth Circuit reasoned that the district
court therefore lacked the "authority to alter or modify any
sentence imposed under" a Rule 11(e)(1)(C) agreement. Id. at
376.

We decline to follow the Sixth Circuit’s approach on this
issue. We agree that, under former Rule 11(e)(1)(C) and its
successor, a sentencing court is bound to impose a sentence
consistent with the plea agreement once the court accepts the
agreement, and if it does not do so, the parties may withdraw
the agreement. Yet, it does not follow from this that the dis-
trict court lacks authority to alter that sentence under
§ 3582(c)(2), provided the requirements of that provision are
met. To be sure, a district court is bound by the parties’ bar-
gain, but here the parties’ bargains might have, but did not,
address the future application of § 3582(c)(2). In this circum-
stance, there is no reason in principle or in the language of
Rule 11(e)(1)(C) that precludes a future application of
§ 3582(c)(2) in an appropriate case. Put another way, appel-
14 UNITED STATES v. DEWS
lants here agreed to plead guilty if the district court would
sentence them to a guidelines term of imprisonment of 168
months, and the district court did so. They did not agree that
they would not seek relief under § 3582(c)(2) in the event the
Sentencing Commission retroactively amended a relevant
guideline. The district court is accordingly free to consider
their motions and to grant them if the district court finds it
appropriate to do so in light of the relevant guideline amend-
ment and the factors set forth in 18 U.S.C. § 3553(a).

Finally, we offer a brief comment concerning the well-
written dissent, the essential crux of which is that a sentence
imposed after the district court’s acceptance of a Rule
11(e)(1)(C) plea agreement is never a sentence "based on a
sentencing range" and is therefore ineligible for reduction
under § 3582(c)(2) as a matter of law. According to the dis-
sent, appellants’ sentences—and the sentence of every defen-
dant who pled guilty under Rule 11(e)(1)(C)—were "based
on" their plea agreements and hence cannot be "based on a
sentencing range." The flaw with this approach is that it lacks
grounding in the text of either § 3582(c)(2) or Rule
11(e)(1)(C). The language of § 3582(c)(2) is plain: a court
may reduce the term of imprisonment "in the case of a defen-
dant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered."
The statute does not state that a sentence imposed consistent
with a plea agreement cannot be "based on a sentencing
range," nor does it state that the sentencing range must be the
sole basis of the sentence. To conclude otherwise would
require adding words to the statute, a task in the province of
the legislature and not the judiciary. Similarly, nothing in
Rule 11(e) compels the per se rule advocated by the dissent.
Under the terms of the rule, a district judge who accepts a
Rule 11(e)(1)(C) plea agreement must "embody in the judg-
ment and sentence the disposition provided for in the plea
agreement." Rule 11(e)(3), Fed. R. Civ. P. (1998). It does not
follow, however, that such a sentence cannot also be based on
a sentencing range, which these sentences clearly were.
 UNITED STATES v. DEWS 15
Where, as here, the district judge clearly accepted the plea
agreements only after determining that the stipulated sen-
tences were within the applicable guidelines range, the sen-
tences imposed were both guidelines-based—and hence
eligible for § 3582(c)(2) treatment—and agreed to under Rule
11(e)(1)(C).

III.

For the foregoing reasons, we reverse the district court’s
denial of Dews’s and Allen’s motions for reduction of sen-
tence pursuant to 18 U.S.C. § 3582(c)(2). The case is
remanded for further proceedings consistent with this opinion.11

REVERSED AND REMANDED

AGEE, Circuit Judge, dissenting:

The majority opinion correctly identifies the issue on
appeal in this case, that is, whether the district court had juris-
diction to grant the motions by Darrell Dews and Brian Allen
(collectively "the Defendants") under 18 U.S.C. § 3582(c)(2)
for a reduction of sentence. The majority also correctly notes
that a defendant seeking relief under that statute must satisfy
two requirements in order to establish the district court’s
authority to consider such a motion. First, the defendant’s
sentence must be one that was "based on a sentencing range"
and, second, that sentence range "has subsequently been low-
ered by the Sentencing Commission . . . ." In this case, the
Defendants cannot meet the threshold jurisdictional require-
ment because their respective sentences arose from a Rule
11(e)(1)(C) plea and were based on the explicit, agreed sen-
tence under their plea agreements and not "based on a sen-
tencing range." I therefore would affirm the district court’s
11
Because Dews’s projected release date is January 31, 2009, we urge
the district court on remand to consider the merits of his motion expedi-
tiously.
16 UNITED STATES v. DEWS
judgment that it lacked "authority to modify a sentence under
18 U.S.C. § 3582(c) when a sentence is imposed under Rule
11(e)(1)(C)." United States v. Allen, No. 8:97-cr-0432-DKC,
slip op. at 2 (D. Md. Mar. 10, 2008).

I. RULE 11(e)

The Defendants each entered into plea agreements with
unequivocal and identical terms: "the parties stipulate and
agree pursuant to Federal Rule Criminal Procedure
11(e)(1)(C) that the following sentence is the appropriate dis-
position in this case: A term of imprisonment of 168 months
. . . ."1 (JA 30, 37.) It is equally plain from the record that the
district court unequivocally accepted both plea agreements
and upon acceptance of the plea agreements, dutifully
imposed the precise sentence specified in the agreements: 168
months of incarceration.

The plea agreements, their acceptance by the district court,
and the imposition of the agreed sentences all took place in
1998. At that time, the applicable rules were Rules
11(e)(1)(C) and 11(e)(3) which provided in pertinent part as
follows:2

(e) Plea Agreement Procedure.

(1) In General. The attorney for the government
and the attorney for the defendant or the defendant
when acting pro se may engage in discussions with
1
The majority notes that Allen’s plea agreement stipulated that his sen-
tence would be 188 months if his criminal history was assessed in cate-
gory IV. Supra at 7. That the Government conditioned its agreement to the
168-month sentence on the assessment of criminal history category III
does not alter the fact that the sentence the sentencing court imposed was
based on the agreement, not a sentencing range.
2
In 1999, Rule 11(e) was revised and now is renumbered as Rule 11(c).
It is uncontested that the former Rule 11(e) is the applicable Rule in the
case at bar.
 UNITED STATES v. DEWS 17
a view toward reaching an agreement that, upon the
entering of a plea of guilty or nolo contendere to a
charged offense or to a lesser or related offense, the
attorney for the government will do any of the fol-
lowing:

....

(C) agree that a specific sentence is the appropri-
ate disposition of the case.

....

(3) Acceptance of a Plea Agreement. If the court
accepts the plea agreement, the court shall inform
the defendant that it will embody in the judgment
and sentence the disposition provided for in the plea
agreement.

Fed. R. Crim. P. 11(e).

Guided by the foregoing provisions of Rule 11, the parties
attempted to reach a disposition of their respective cases. In
doing so, they obviously reviewed the Sentencing Guidelines
in order to determine whether entering into a plea agreement
was in the best interest of each party and, if so, upon what
terms a mutually acceptable agreement could be reached. It is
difficult to conceive of any criminal case in which the parties
and their counsel would not do exactly as was done in this
case, both in order to evaluate an agreement and to fulfill
counsel’s duty to effectively represent their clients. Moreover,
it would be common and prudent practice to set out for the
sentencing court in the plea agreement the basis for the agreed
sentence so as to assist the court in evaluating whether to
accept the plea agreement. This is particularly so in a Rule
11(e) context because once adopted by the court, the plea
agreement was binding. Rule 11(e)(3).
18 UNITED STATES v. DEWS
The sentencing court in this case properly undertook its
responsibility to examine the proposed terms of the plea
agreements in the context of the Sentencing Guidelines.
Before the United States Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), a sentencing court was
under a duty to evaluate a plea agreement’s proposed sentence
in relation to the guidelines.

Thus, where the parties have agreed to a particular
sentence pursuant to Rule 11(e)(1)(C), for example,
the court has the power—and under the Sentencing
Guidelines, the explicit obligation—to consider
whether that sentence is adequate and to reject the
plea agreement if the court finds it not to be. [U.S.
Sentencing Guidelines Manual] § 6B1.2(c).

United States v. Kraus, 137 F.3d 447, 453 (7th Cir. 1998); see
also United States v. Corozza, 4 F.3d 70, 87 (1st Cir. 1993).

A sentencing judge who ignored consideration of the Sen-
tencing Guidelines in evaluating whether to accept a plea
agreement and its agreed sentence, would have been derelict
in his or her judicial duties and would have acted in error. See
U.S. Sentencing Guidelines Manual § 6B1.2 (1997). Thus, in
the case at bar, the parties and the sentencing court examined
the Sentencing Guidelines as a means of determining whether
the terms of the plea agreement complied with the applicable
law and thus could be validly accepted by the court. However,
the ultimate determination of the sentence actually imposed
on the Defendants was the precise term under the plea agree-
ments as required by Rule 11(e)(3): a sentence of 168 months.

The majority opinion, erroneously in my view, takes this
ordinary due diligence in a criminal case involving a plea
agreement and transforms that review activity into a means to
rewrite the plea agreements contrary to the terms agreed upon
by the parties and adopted by the sentencing court. Although
the majority opinion correctly recognizes that "a sentencing
 UNITED STATES v. DEWS 19
court is bound to impose a sentence consistent with the plea
agreement once the court accepts the agreement," it then
incorrectly looks beyond the explicit and fixed sentencing
term of the plea agreement to the deliberations of the parties
and the court’s review as the basis for the sentence imposed.
The majority concludes "that the sentencing guidelines played
a central role in the district judge’s sentencing of both appel-
lants." Supra at 9. This "central role" apparently functions, for
the majority, as the means to meet the § 3582(c)(2) require-
ment of "a term of imprisonment based on a sentencing
range." I disagree with the majority’s conclusion for two rea-
sons.

First, the plea agreements, binding on all once accepted by
the court, were explicit in a fixed term of 168 months, not a
term "based on a sentencing range" or any other factor. Sec-
ond, a sentence derived from a Rule 11(e)(1)(C) plea agree-
ment is "based on" that agreement and is not a sentence
"based on a sentencing range" as a matter of law.

A plea agreement is a contract between the parties and is
binding on them according to its terms. "Under contract prin-
ciples, a plea agreement necessarily ‘works both ways. Not
only must the government comply with its terms and condi-
tions, but so must [the defendant].’" United States v. Williams,
510 F.3d 416, 422 (3d Cir. 2007) (quoting United States v.
Carrara, 49 F.3d 105, 107 (3d Cir. 1995)). The plea agree-
ment, once accepted by the court, cannot be altered without
the consent of the parties.

If [a plea agreement] is unambiguous as a matter of
law, and there is no suggestion of government over-
reaching of any kind, the agreement should be inter-
preted and enforced accordingly. Neither side should
be able, any more than would be private contracting
parties, unilaterally to renege or seek modification
simply because of uninduced mistake or change of
mind.
20 UNITED STATES v. DEWS
United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986).
Nor may the court modify a plea agreement on its own.
United States v. Wood, 378 F.3d 342, 350 (4th Cir. 2004); see
also United States v. Holman, 728 F.2d 809, 813 (6th Cir.
1984) ("Once the court unqualifiedly accepts the agreement it
too is bound by the bargain.").

The sentencing court unequivocally accepted the plea
agreement and thus became bound by its terms, specifically
the 168 month sentence. That sentence was not defined
merely by some indefinite calculus under the Sentencing
Guidelines to be determined by the court, but was an explicit
term certain of 168 months. The Defendants have claimed no
ambiguity in their contract, that there was any matter of
mutual mistake, or that any grounds exist that would make the
plea agreement invalid. Neither do the Defendants ask to
withdraw their plea agreement. Instead they desire to keep all
the benefits of the plea agreement, like the low fixed sentence,
while recasting its terms to claim a benefit which they failed
to include in their contract with the Government and the sen-
tencing court (a sentence not based on the Rule 11(e) plea but
on a "sentencing range"). The Defendants negotiated away
this option in 1998 by not so providing in the plea agree-
ments. I submit an ex post contract addition cannot be
awarded to them now by this Court as the majority in effect
proposes to do. The Defendants are bound by the explicit term
of the plea agreements which did not include a sentence
"based on a sentencing range" but a fixed term certain.

Accordingly, I would conclude on that basis alone that the
district court correctly determined that it did not have jurisdic-
tion to consider the Defendant’s § 3582(c)(2) motion for
reduction of sentence. However, an at least equally compel-
ling basis to affirm the judgment of the district court comes
from the unanimous conclusion of the circuit courts of appeal
that have considered this issue. All have concluded that a sen-
tence imposed under a Rule 11(e)(1)(C) plea agreement is
 UNITED STATES v. DEWS 21
based on that agreement and not a "sentencing range" as a
matter of law.

II. CIRCUIT COURT OF APPEALS DECISIONS

In United States v. Heard, 359 F.3d 544 (D.C. Cir. 2004),
the Court of Appeals for the District of Columbia Circuit pre-
cisely stated the controlling principle: "A sentence arising
from a Rule 11(e)(1)(C) plea, however, does not result from
the determination of an appropriate guidelines offense level,
but rather from the agreement of the parties: an agreement
that is binding on the court once it is accepted by the court."
Id. at 548 (internal quotation marks omitted). Although the
Heard decision was not in a § 3582(c)(2) context, its language
is applicable here and the foregoing rule is aptly confirmed by
the following cases which specifically dealt with a Rule 11(e)
plea and a § 3582(c)(2) motion.

In United States v. Trujeque, 100 F.3d 869 (10th Cir.
1996), the Tenth Circuit held the district court was without
authority to consider a § 3582(c)(2) motion where the sen-
tence imposed was pursuant to a Rule 11(e)(1) plea agree-
ment. In that case, the defendant entered into a plea agreement
specifying a stipulated sentence of 84 months despite a guide-
line range of 27 to 33 months. In accepting the plea agree-
ment, the sentencing court specifically found that the
defendant’s "offense level is 18 and the criminal history cate-
gory is 1, establishing a guideline imprisonment range of 27
to 33 months. However, pursuant to the Federal Rules of
Criminal Procedure, Section 11(e)(1)(C), the stipulated sen-
tence is 84 months." Id. at 871. The defendant was then sen-
tenced to the stipulated 84 month term. Id. After an
amendment by the Sentencing Commission to the guidelines
that would have been retroactively applicable to the defen-
dant’s crimes, he filed a § 3582(c)(2) motion for reduction of
sentence. The district court denied that motion. Id. at 870.

On appeal, the Tenth Circuit noted that the district court
should have dismissed the motion because it lacked authority
22 UNITED STATES v. DEWS
to consider it. While the district court, and the court of
appeals, had jurisdiction to determine whether § 3582(c)(2)
could apply, since the sentence at issue was imposed under a
Rule 11(e)(1)(C) plea agreement, it could not be "based on a
sentencing range" and thus the district court lacked statutory
authority to grant the motion. Despite the fact that the sen-
tencing court had clearly considered the sentencing guidelines
in reaching its decision to accept the plea agreement, that due
diligence activity did not change the determination that the
sentence was derived from a Rule 11(e)(1)(C) plea because
"Mr. Trujeque’s sentence was not ‘based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission,’ see 18 U.S.C. § 3582(c)(2). Instead, his sen-
tence was based on a valid Rule 11(e)(1)(C) plea agreement."
Id. at 871.

In view of that clear holding, I cannot agree with the major-
ity’s statement that its holding in this case is consistent with
Trujeque. To the contrary, the majority’s opinion contradicts
the basis of the Tenth Circuit’s decision: that a plea entered
pursuant to Rule 11(e)(1)(C) is not cognizable by a
§ 3582(c)(2) motion.

The Seventh Circuit Court of Appeals reached a similar
conclusion in an unpublished opinion, United States v. Hem-
minger, 114 F.3d 1192 (7th Cir. 1997) (unpublished table
decision). In that case, the district court accepted the plea
agreement under Rule 11(e)(1)(C) and then imposed the spe-
cific sentence it required: 126 months. Id. at *1-2.

After Hemminger’s direct appeals and collateral challenges
failed, he filed a § 3582(c)(2) motion to reduce his sentence
because subsequent retroactive Sentencing Guidelines amend-
ments arguably could reduce his sentence. The district court
denied the § 3582 motion and the Seventh Circuit affirmed

for a simple but compelling reason: a sentence
imposed following a plea under Rule 11(e)(1)(C)
 UNITED STATES v. DEWS 23
cannot be altered even if the Sentencing Commission
designates certain changes to the Guidelines as retro-
active.

After accepting the agreement, the court "is not
free to visit the plea agreement simply because, for
whatever reason, the defendant later comes back to
the court for resentencing." United States v. Ritsema,
89 F.3d 392, 399 (7th Cir. 1996). See also United
States v. Barnes, 83 F.3d 934, 938 (7th Cir. 1996).
The sentence under a Rule 11(e)(1)(C) plea rests on
the parties’ agreement, not on a calculation under the
Sentencing Guidelines.

Id. at *2-3.

In United States v. Peveler, 359 F.3d 369 (6th Cir. 2004),
the Sixth Circuit Court of Appeals confirmed that a sentence
imposed under a Rule 11(e)(1)(C) plea agreement is not a sen-
tence for which a § 3582(c)(2) motion may be entertained.
The plea agreement in Peveler, as in the case at bar, recited
the parties’ agreement upon various provisions of the Sen-
tencing Guidelines including the base offense level, adjust-
ments and criminal history category, with citations to the
appropriate Sentencing Guidelines sections. With an agreed
guideline range determined, the plea agreement then stipu-
lated "a sentence of imprisonment at the low end of the appli-
cable Guideline Range . . . ." Id. at 372-73. The sentencing
court accepted the plea agreement and imposed a 181 month
sentence which was within the plea agreement’s applicable
guideline range. Id. at 373.

When the Sentencing Commission subsequently adopted an
amendment with retroactive effect that could be applicable to
Peveler’s existing sentence, he sought a reduction by a
§ 3582(c)(2) motion. The district court denied the motion. Id.
at 371.
24 UNITED STATES v. DEWS
Citing Trujeque and Hemminger, the Sixth Circuit affirmed
the district court. Even though Peveler’s plea agreement did
not provide a fixed term certain of incarceration, but a range
from which the court could select, the Sixth Circuit plainly
held that a sentencing court had no authority to act under a
§ 3582(c)(2) motion where the sentence at issue was imposed
under a Rule 11(e)(1)(C) plea.

[A]bsent an agreement of the parties, the plain lan-
guage of the current version of Rule 11(e)(1)(C),
now Rule 11(c)(1)(C), generally precludes the dis-
trict court from altering the parties’ agreed-upon sen-
tence under 18 U.S.C. § 3582(c). This conclusion
applies despite the retroactivity of a subsequent
amendment to a relevant guideline utilized to deter-
mine the defendant’s sentence.

Id. at 379.

The Fifth and Ninth Circuits have similarly addressed the
impact of a sentence under a plea agreement governed by
Rule 11(e)(1)(C) in unpublished opinions. In United States v.
Brown, 71 Fed. App’x. 383 (5th Cir. 2003) (unpublished) (per
curiam), the Fifth Circuit affirmed the denial of a § 3582(c)
motion for reduction of sentence because the defendant’s
"sentence was imposed in accordance with Rule 11(e)(1)(C),
18 U.S.C. § 3582(c)(2) does not apply." Id. at 384.

The Ninth Circuit, in United States v. McKenna, No. 97-
30173, 1998 U.S. App. LEXIS 808 (9th Cir. Jan. 16, 1998)
(mem.), affirmed the district court’s denial of a defendant’s
§ 3582(c)(2) motion to modify his sentence based on later
retroactive guideline amendments. In McKenna, the sentenc-
ing court adopted the plea agreement under Rule 11(e)(1)(C)
and sentenced the defendant to the agreed upon term of 84
months imprisonment. Id. at *3. In affirming the district
court’s subsequent dismissal of McKenna’s § 3582(c) motion,
the Ninth Circuit opined that:
 UNITED STATES v. DEWS 25
McKenna’s sentence was not predicated on a sen-
tencing guideline range, but rather on the agreed
upon sentence in the 11(e)(1)(C) plea agreement. . . .

These facts established that McKenna’s sentence
was not predicated on a sentencing guideline range
that has been subsequently lowered, but rather on a
valid Rule 11(e)(1)(C) plea agreement.

Id.3

Notwithstanding the authoritative reasoning of the forego-
ing opinions from our sister circuits, the majority nevertheless
concludes that the district court had the requisite authority to
act upon the Defendants’ § 3582(c)(2) motions. That decision
is based, in part, on the supposition that since the plea agree-
ments did not specifically address the possible future impact
of § 3582(c)(2), a Rule 11(e)(1)(C) sentence would not be a
determinative jurisdictional factor: "[H]ere the parties’ bar-
gains might have, but did not, address the future application
of Section 3582(c)(2)." Supra at 13.

The explanation for this omission is straightforward. There
was simply no reason for the plea agreements, much less the
sentencing court, to address any impact of § 3582(c)(2)
because it could have none under the plain terms of the plea
agreement and because a parties’ agreed sentence imposed
under a Rule 11(e)(1)(C) plea agreement cannot, as a matter
of law, be a § 3582(c)(2) "term of imprisonment based on a
sentencing range." There was no rational or legal reason to
3
Although the Fourth Circuit has not directly addressed the Section
3582(c)(2) issue before us in a Rule 11(e)(1)(C) context, we have implied
a similar result in accord with the recited decisions of the circuit courts of
appeal. In United States v. Bethea, 154 Fed. App’x. 329 (4th Cir. 2005)
(unpublished) (per curiam) we referred to United States v. Cieslowski 410
F.3d 353, 364 (7th Cir. 2005) for the proposition that "a sentence imposed
under a Rule 11(c)(1)(C) plea arises directly from the agreement itself and
not from the guidelines . . . ." 154 Fed. App’x. at 331.
26 UNITED STATES v. DEWS
include in the plea agreements a provision which was unnec-
essary. As noted earlier, the Defendants could have made con-
tractual provisions allowing their sentences to be modified
upon the occurrence of future events but failed to do so. A
favorable change in the law which comes to pass after the
plea is one such circumstance, but which we have held is
waived because it was not raised when the contract was
formed.

A plea agreement, like any contract, allocates risk.
See United States v. Ringling, 988 F.2d 504, 506 (4th
Cir. 1993). "And the possibility of a favorable
change in the law occurring after a plea is one of the
normal risks that accompanies a guilty plea."
[United States v.] Sahlin, 399 F.3d [27,] 31 [(1st Cir.
2005)]; United States v. Khattak, 273 F.3d 557, 561
(3d Cir. 2001) ("Waivers of the legal consequences
of unknown future events are commonplace.").

United States v. Johnson, 410 F.3d 137, 153 (4th Cir. 2005).

The Defendants received the exact sentence for which they
bargained, 168 months, under Rule 11(e). As that sentence
was not "based on a sentencing range," the district court had
no authority to grant the Defendants’ § 3582(c)(2) motions
and did not err in dismissing those motions. Therefore, for all
the foregoing reasons, I respectfully dissent from the majority
opinion and would affirm the judgment of the district court.