IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50458

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

MARCO A GARCIA, also known as Marco Garcia, 

 Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before JONES, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit

Judges.

PER CURIAM:

Through an agreement with the government, Marco A. Garcia pleaded

guilty to conspiracy to distribute 500 or more grams of cocaine and 50 or more

grams of crack, in violation of 21 U.S.C. §§ 841(a)(1) & 846. The district court

accepted the plea agreement – which provided for a minimum prison term of 240

months – and, after calculating Garcia’s guidelines range, sentenced him to 262

months. After retroactive implementation of the crack sentencing amendments,

Garcia moved to reduce his sentence under 18 U.S.C. § 3582(c)(2). The district

court granted the motion and changed Garcia’s sentence to 240 months, the

minimum stipulated to in the plea agreement. Garcia appeals, urging that the

district court erred in holding that the plea agreement prevented further

United States Court of Appeals

Fifth Circuit

F I L E D

May 7, 2010

Lyle W. Cayce

Clerk

Case: 08-50458 Document: 00511103804 Page: 1 Date Filed: 05/07/2010
No. 08-50458

 This rule was previously codified at Federal Rule of Criminal Procedure 11(e)(1)(C), 1

see United States v. Sanchez, 562 F.3d 275, 276 & n.2 (3d Cir. 2009), and provides that the

prosecutor can “agree that a specific sentence or sentencing range is the appropriate

disposition of the case.”

 Because Rule 11 does not countenance minimum sentences – but rather specific 2

sentences or ranges – we can impute that the partially bounded range, in a sense, was 240

months to the statutory maximum, in this case life.

2

reduction. After confirming the district court had jurisdiction to modify Garcia’s

sentence, we affirm.

I.

In January 2006, a federal grand jury returned an indictment charging

Garcia on seven counts of selling large quantities of crack and cocaine. Garcia

bargained to plead guilty to count one – conspiracy to distribute at least 500

grams of cocaine and 1,500 grams of crack – in exchange for the government

dropping the other six charges. The parties reduced the agreement to writing,

with a sentence stipulation pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C). Paragraph 19 of the plea agreement stated that “the Defendant and 1

Government agree that the sentence in this case will be at least 240 months.”2

The plea agreement also contemplated the sentencing guidelines, albeit

with the 240 month minimum overlay. Paragraph 8 provided: “The parties agree

to request the Court to consult with and take into account the United States

Sentencing Guidelines and accompanying policy statements (‘the U.S.S.G.’) for

the calculation of the Defendant’s sentence pursuant to 18 U.S.C. § 3553.”

Paragraphs 10 and 15 discussed the possibility that the government would move

for a downward departure from the sentencing guidelines. The government in

paragraph 17, citing to U.S.S.G. § 3E1.1(b), promised to move for an additional

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United States v. Doublin, 572 F.3d 235, 236 (5th Cir. 2009). 3

3

point deduction from Garcia’s offense level as a “reward” for his timely plea.

Finally, paragraph 19 declared that, besides the 240 month minimum, “[a]ll . . .

sentencing issues . . . will be determined by the Court after the completion of a

Presentence Investigation Report.”

At the sentencing hearing on June 8, 2006, the district court adopted the

report and found Garcia’s total offense level to be 37 and his criminal history

category to be one, yielding a sentencing range of 210 to 262 months. The

district court “adopt[ed] . . . the application of the U.S. Sentencing Guidelines.”

However, because it accepted the plea agreement, along with its 240 month

minimum, the court ultimately determined the sentencing range to be 240 to 262

months and sentenced Garcia at the highest end, 262 months. In short, the

range was bounded on the bottom by the plea agreement and on the top by the

guidelines.

“In 2007, the United States Sentencing Commission amended the

guidelines. Generally, it reduced the base offense levels for crack cocaine

offenses by two, in order to reduce the sentencing disparity between crack and

powder cocaine offenses; and it made these guidelines apply retroactively.”3

Garcia moved for a reduction under 18 U.S.C. § 3582(c)(2), which provides that

the district court may reduce a prison term “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

U.S.S.G. § 1B1.10(b)(1), the district court “determine[d] the amended guideline

range that would have been applicable to [Garcia] if the amendment[] to the

guidelines . . . had been in effect at the time [he] was sentenced.” That amended

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 A single number is hardly a “range,” but the sentencing guidelines create this 4

inelegance. See, e.g., U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum sentence

is greater than the maximum of the applicable guideline range, the statutorily required

minimum sentence shall be the guideline sentence.”).

 “[E]very federal appellate court has a special obligation to satisfy itself not only of its 5

own jurisdiction, but also that of the lower courts in a cause under review . . . .” Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quotation marks omitted). The district

court’s jurisdiction to correct or modify a defendant’s sentence is limited to those specific

circumstances enumerated by Congress in 18 U.S.C. § 3582. United States v. Bridges, 116

F.3d 1110, 1112 (5th Cir. 1997); see also United States v. Early, 27 F.3d 140, 141–42 (5th Cir.

1994). “We review de novo whether the district court had jurisdiction to resentence.” Bridges,

116 F.3d at 1112.

 18 U.S.C. § 3582(c)(2) (emphasis supplied). 6

United States v. Brown, 71 F. App’x 383, 384 (5th Cir. 2003) (unpublished). 7

4

range came out to 168 to 210 months. But, in a continuing effort to honor the

plea bargain, the district court determined the actual amended range to be 240

to 240 months, the agreed-to minimum sentenced. The district court granted 4

Garcia’s motion and reduced his sentence to 240 months. Garcia appealed,

urging that the district court could have gone lower.

II.

a.

The first question is whether the district court had jurisdiction to reduce

Garcia’s sentence at all. Congress authorized reductions of this kind only where 5

the court originally set the term of imprisonment “based on a sentencing range

that has subsequently been lowered by the Sentencing Commission.” We have 6

held in an unpublished opinion that when a defendant receives a Rule

11(e)(1)(C) stipulated sentence, a reduction under § 3582(c)(2) “does not apply.”7

Most of the courts of appeals to consider the “based on” issue have come

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See United States v. Scurlark, 560 F.3d 839, 840–43 (8th Cir. 2009). 8

See United States v. Sanchez, 562 F.3d 275, 276–82 (3d Cir. 2009); id. at 282–83

9

(Rendell, J., concurring).

See id. at 283–84 (Roth, J., dissenting) (“No good deed goes unpunished. . . . For the

10

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. . . . 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.”).

United States v. Ray, 598 F.3d 407, 411 (7th Cir. 2010). 11

United States v. Cieslowski, 410 F.3d 353, 364 (7th Cir. 2005). 12

5

out the same way. When in a plea agreement a defendant and the government

look to the sentencing guidelines and stipulate to one of their ranges, the Eighth

Circuit has held that § 3582(c)(2) does not apply – because the sentence was

based on Rule 11(c)(1)(C) and not “strictly in accordance” with the guidelines.8

The Third Circuit has held similarly, that a specific sentence stipulation under

Rule 11(c)(1)(C) forecloses a § 3582(c)(2) resentencing, this over a pointed 9

dissent. The Seventh Circuit has the same general rule, but allows for some 10

flexibility: “In the absence of explicit language in the agreement to the contrary,

a sentence imposed pursuant to a FED. R. CRIM. P. 11(c)(1)(C) plea agreement

cannot be said to be ‘based on’ the Sentencing Guidelines. An agreement must

clearly reflect an intent that the sentence be modified when the Guidelines

shift.” Outside of the § 3582(c)(2) context, the same court has been rigid, 11

opining that “[a] sentence imposed under a Rule 11(c)(1)(C) 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 12

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See United States v. Main, 579 F.3d 200, 201–04 (2d Cir. 2009). 13

United States v. Peveler, 359 F.3d 369, 370–79 (6th Cir. 2004). 14

Id. at 379. 15

United States v. Dews, 551 F.3d 204, 209 (4th Cir. 2008), reh’g en banc granted (4th

16

Cir. 2009), appeal dismissed as moot (4th Cir. 2009).

6

Second Circuit has held that a defendant who entered into a Rule 11(c)(1)(C)

agreement to serve no more than 96 months, and whose guidelines range turned

out to be 120 to 150 months, could not qualify for a § 3582(c)(2) reduction,

because his 84 month sentence was based not on the guidelines, but on the plea

agreement. The Sixth Circuit takes the hardest line: in a case in which the 13

defendant stipulated to a total offense level of 30, but not to a criminal history

category, and the government promised to ask for a sentence on the low end of

the applicable guidelines range, the district court’s acceptance of the plea

foreclosed later application of § 3582(c)(2). The court held that Rule 11(c)(1)(C) 14

“precludes the district court from altering the parties’ agreed sentence under 18

U.S.C. § 3582(c). This conclusion applies despite the retroactivity of a

subsequent amendment to a relevant guideline utilized to determine the

defendant’s sentence.”15

Other circuits have come out differently. The Fourth Circuit, hewing

closely to statutory text, held over strong dissent that a Rule 11(c)(1)(C) sentence

stipulation did not disqualify defendants from § 3582(c)(2) resentencing,

explaining, “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.” (The court vacated its opinion by granting rehearing en banc and 16

ultimately dismissed the appeal as moot.) And the Tenth Circuit lately has

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See generally United States v. Cobb, 584 F.3d 979 (10th Cir. 2009). 17

Id. at 985. 18

See id. at 988 (Hartz, J., dissenting) (citing United States v. Trujeque, 100 F.3d 869

19

(10th Cir. 1996)).

 The Ninth Circuit was the first to adopt this necessary, if unsatisfying, case-specific

20

approach. United States v. Bride, 581 F.3d 888, 891 (9th Cir. 2009) (“It is not enough that the

parties to a plea agreement considered the Guidelines in recommending a sentence. Rather,

the terms of the plea agreement are key to determining whether the defendant’s sentence was,

in fact, based on a sentencing range that was later reduced by the Sentencing Commission.”).

7

taken a position at the opposite end of the spectrum from the Sixth: in a case in

which the Rule 11(c)(1)(C) stipulation specified that the defendant would receive

a sentence on the low end of his guidelines range of 168 to 210 months, the

circuit court held that the district court could reduce the sentence under

§ 3582(c)(2). The court explained that § 3582(c)(2) “allows for reductions of 17

sentences which are based in any way on a qualifying range,” and proclaimed to

“hold truer to the [statutory] language” than the circuit courts to come out

differently. A dissenting judge wanted to follow previous Tenth Circuit law 18

holding that Rule 11 sentence stipulations do not fall under the guidelines.19

Ultimately, none of these circuits dealt with a stipulated minimum

sentence, so Garcia’s case is the wrong vehicle with which to enter this

demolition derby. Here, we have no reason to pass on a plea with a specific

sentence, or a maximum, or a range bounded on both ends by the guidelines.

However, the caselaw – rife with inter- and intra-circuit disagreement – does

teach that wooden rules will not do. The jurisdictional question is whether the

sentence was “based on” the subsequently amended crack-offense guidelines, and

answering that question requires that we examine the nuances of both the plea

agreement and the sentencing transcript in each particular case.20

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The Seventh Circuit has recently eased off a categorical approach to adopt the case-by-case

method, listing possible exceptions to its general rule and explaining: “We make clear,

however, that our decisions today and in Ray do not mean that all Rule 11(c)(1)(C) plea

agreements foreclose relief under section 3582(c)(2).” United States v. Franklin, ___ F.3d ____,

____, 2010 WL 1427536, at *3, 2010 U.S. App. LEXIS 7417, at *9 (7th Cir. Apr. 12, 2010)

(referencing United States v. Ray, 598 F.3d 407 (7th Cir. 2010)).

 The parties did not stipulate to an offense level or a criminal history category. 21

Although they likely estimated Garcia’s guidelines range, “[i]t is difficult to conceive of any

criminal case in which the parties and their counsel” do not. See Dews, 551 F.3d at 213 (Agee,

J., dissenting). Given the amount of crack involved, Garcia’s base offense level was 38. With

all the deductions sought by Garcia, the total offense level could have been as low as 35, or

with various enhancements it could have been as high as 40. This would have produced

guidelines ranges of 168 to 210 months and 292 to 365 months, respectively. (After a jury

conviction on count one, Garcia could have faced 360 months to life.) In any event, the parties

never stated that the 240 month minimum was anchored to a guidelines range, and none of

the guidelines ranges terminate at, or have as their midpoint, 240 months.

See United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009). 22

8

Doing so, we conclude the district court sentenced Garcia based on the

sentencing guidelines – just as the plea agreement provided. The parties

stipulated to a minimum sentencing range irrespective of the guidelines. But 21

the agreement allowed that the maximum point on Garcia’s range could derive

from the guidelines if the high end of the guidelines range exceeded 240 months.

It did, and the district court sentenced Garcia to 262 months based on its

guidelines calculation. The able district judge expressly said as much: “I adopt

. . . the application of the U.S. Sentencing Guidelines . . . .” Garcia qualified to

move for a reduction.

b.

A § 3582(c)(2) proceeding is not a full resentencing, so Booker and its 22

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Id. at 672 (referencing United States v. Booker, 543 U.S. 220 (2005)).

23

United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). 24

Evans, 587 F.3d at 672. 25

Hentz v. Hargett, 71 F.3d 1169, 1173 (5th Cir. 1996) (quotation marks omitted). 26

United States v. Self, 596 F.3d 245, 248 (5th Cir. 2010) (citing FED. R. CRIM. P. 27

11(c)(1)(C)).

9

bifurcated reasonableness review do not apply. Guidelines amendments do not 23

entitle defendants to a resentencing; instead, § 3582(c)(2) “merely gives the

district court discretion to reduce a sentence under limited circumstances.”24

We, therefore, review the district court’s reduction decision for an abuse of

discretion.25

“Plea bargain agreements are contractual in nature, and are to be

construed accordingly.” They bind the parties, and, more importantly, the 26

court, too, is bound “once [it] accepts the plea agreement.” Garcia’s agreement 27

stipulated to a minimum sentence of 240 months, unmoored from any guidelines

calculation. When the sentencing guidelines for crack offenses changed,

bringing down the high end of Garcia’s range, his negotiated minimum stayed

put. By modifying the sentence to 240 months, the district court gave Garcia the

biggest reduction for which he was eligible.

III.

Garcia’s plea agreement left the district court to use the guidelines, with

the exception that the term of imprisonment could not fall below 240 months.

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10

The court based Garcia’s sentence on the guidelines’ upper limit, a limit that

tumbled after the crack amendments, allowing Garcia to move for a reduction.

By reducing Garcia’s sentence to 240 months, the district court continued to

execute the plea agreement as originally written, and the government and

Garcia got exactly what they had bargained for.

AFFIRMED.

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