UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

UNITED STAT ES O F AMERICA, P laintif

f, v. Crim inal Action No. 01-0266 (JDB) DERRICK

J. HEARD, Defendan t.

MEMORAN DUM OP INION AND ORDER Def endant De rrick H ear d had moved f or a r eduction of his sente nce unde r 18 U.S.C. § 3582(c) (2), ba sed on ame ndments to the United States SentencingGuidelines (" Guidelines" ) which lower ed the ba se off ense le vels for of

fense s involving coc aine ba se (" cra ck coc aine" ). F or the followingrea sons, Hear d' s motion for a sentenc e re duction is DENIED

. DISCUSSIO N In April 2003, Hea

rd pled g uilty to one count of posse ssion with int ent to distribute

coca ine base , in violation of 21 U.S.C. § 841(a)(1) a nd (b)( 1)(C). The g overnme nt and Hea rd enter ed into a plea

agree ment pursuant to Fe d. R. Crim. P . 11(c) (1)( C). Such an agree ment 1 allows the par

ties to stipul ate that " a spec ific sentenc e or se ntencingrang e is the appr opriate dispositi on of the c ase, or that a par ticular provision of the Sente ncingGuidelines, or policy statement, or se ntencingfac tor does or doe s not apply ." F ed. R. Crim. P. 11(c)(1) (C). The Presentenc e Investig ation Report (" PSR ") indicated that, notwithstandingthe plea a g ree ment, the

Hear d' s pl ea agree m ent was bas ed upon the pr iorversi on o f Ru le 11( c) (1) (C) , whi ch wa s 1 cod if ie d as Rul e 11 (e )( 1)( C). T he Co urt re fe rs to th e r eco dif ie d Rul e 11 (c )( 1)( C). -1-applicable sentenc ing r ang e under the Guidelines wa s 188-235 months' imprisonment, base d on an off ense le vel of 31 a

nd a cr iminal hist ory

cate g ory of VI , takinginto consideration § 4B 1.1(a) , the ca ree r off ender provisions of the Guidelines. See United States v. Hea rd, 359 F .3d 544, 547 (D.C. Cir. 2004) (c iting PSR ¶¶ 20, 21, 57). No par ty disputed that the sentenc ing r ang e under the Guidelines applica

ble to Hea

rd wa s 188-235 months. Acc ording ly , the PSRwas a cce pted by this Court, without objection by the par ties, "a s findings of

fac t on the issues that are not in disput e." Tr. of Sent. Hr ' g2:20-3:5 (Apr. 18, 2003) (" Tr." ). Under the plea a g ree ment, the par ties stipulated to a sentenc e of 48 months imprisonment, which wa s a sig nificant re duction from the 188- 235 sentenc ing r ang e applica ble to Hea

rd. He ard

was a lrea dy

servinga sente nce of

approximately

133 months for a prior

offe nse, but the par

ties "a g ree d to disag ree " on whether the two sentenc es should run conc urre ntly or conse cutively , leavingthe matter f

or re solution by

the Court. After

the Court conclude d that the sentenc es should run consec utively , Hea rd lodg ed an unsuc cessf

ul appea l with the D.C. Circuit, which upheld Hea

rd' s sentence in all respec ts. See United States v. Hea rd, 359 F .3d 544, 545 (D.C. Cir. 2004). In the interve ning time a fter H ear d' s sentencing , the United States Sentenc ing Commission (" Commi ssion") issued a

retroa ctive ame ndment to the Guidelines to addre ss the disparity betwee n the pena lties for cr ack c ocaine and powde r coc aine of fense s. See U.S. Sentencing Guidelines Manua l (" U.S.S.G.") Supp. App. C, amend. 706 ( 2010) (e ffe ctive Nov. 1, 2007) ; amend. 713 ( Mar. 3, 2008) (makingAmendment 706 re troac tive); U.S.S.G. Supp. App. C, amend. 750 (2011) ( eff

ective N ov. 1, 2011) (a lteringthe offe nse leve ls in S ection 2D1.1 f or cr ack c ocaine offe nses). He ard a

rgues that these r etroa ctive ame ndments apply to him and that his sentence should be reduc ed. -2-Under 18 U.S.C. § 3582(c)(2) , in the case of a def endant who ha s been se ntence d to a term of imprisonment base d on a sentenc ing r ang e that has subse quently been lowe red by

the Sentencing Commi ssion . . . , upon motion of the defe ndant or the D irec tor of the B urea u of Prisons, or on its own mot ion, the court may reduc e the ter

m of imprisonment, afte r consider ing the fac tors set forth in section 3553(a ) to the extent that they are applicable , if such a r eduction is consistent with applicable policy statements issued by the Sentencing

Commi ssion. Henc e, in orde r to be e ligible f or a se ntence reduc tion under that provision, Hea rd must show that his sentence was " based on a sentenc ing r ang e that has subse quently been lowe red by

the SentencingCommi ssion." 18 U.S.C. § 3582(c) (2). Esse ntially , Hea rd ar gues that bec ause the parties e ntere d into a plea a g ree ment to avoid the impositi on of the sente ncingrang e for car eer offe nders, He ard' s sentence must have bee n based on the cra ck coc aine se ntencingrang e for the offe nse itself. Relying on F ree man v. United States, -- - U.S. --- -, 131 S. Ct. 2685 (2011), the g overnme nt contends that He ard is inelig ible for a sentenc e re duction under § 3582( c)( 2) bec ause he was sentenc ed pursua

nt to a Rule 11(c) (1)( C) plea a g ree ment. The g overnme nt also argues that as a

car eer offe nder, H ear d is not entitl ed to a se ntence reduc tion because the applica ble Guidelines rang e of 188 to 235 months imprisonment for ca ree r off ender s -- c onsiderably

longe r than the 48 months imprisonment Hea rd ac tually

rec eived - - leaves the leng th of his sentence unchang ed. See Gov' t Opp' n at 1; see a lso U.S. P robation Memora ndum, ECF No. 57 (Ma

y 9, 2012) (" Prob. Mem." ) The pa rties spend much time foc using on the ir respe ctive interpr etations of F ree man. The g overnme nt claims that Fre eman ba rs sentenc e re ductions where a Rule 11(c )(1) (C) plea agree ment is at issue. Hea rd urg es the Court to follow the plura lity opinion in Free man to find that the ca se " stands only for the pr oposition t hat def endants sente nced pur suant to Rule -3-11(c) (1)( C) agree ments may be elig ible for § 3582( c)( 2) sentenc e re ductions." Reply at 3. B oth the g overnme nt and Hea

rd misconstrue F ree man. In Fr eema

n, the def endant wa s char g ed, in re levant par t, with possession with i ntent to distribute cra ck coc aine. The parties e ntere d into a Rule 11(c) (1)( C) plea a g ree ment, which provided for

an agree d-upon sentenc e of 106 months imprisonment. The district court a cce pted the plea a nd imposed a sentenc e of 106 months imprisonment. After the Guidelines we re amende d to allow for r etroa ctive adjustments to penalties for cra ck coc aine- related offe nses, the defe ndant moved to re duce his sente nce, which the district cour t denied. The Six th Circuit aff irmed, re asoningthat courts we re not pe rmitted to reduce the sentenc e of a defe ndant who had enter ed into a Rule 11(c )(1) (C) plea agree ment. Fr eema

n, 131 S. Ct . 2691. The Supreme Court

reve rsed, with Just ice Ke nnedy , in a plurality opinion, reasoningthat sentenc ing r eductions

rema ined ava ilable eve n in the context of Rule 11(c)( 1)(C) plea agree ments beca

use " [i ]n every

case the judg e must exercise discr etion to impose an appropr iate sente nce" and " this discretion, in turn, is frame d by

the Guidelines." I d. at 2690. J ustice Sotomayor' s concur renc e took a na

rrowe r appr oach. A lthough Justi ce Sotomayor agree d with the plurality

that the spec ific def

endant in that ca se wa s elig ible for a reduc tion in sentenc e, she de parte d from the plura lity opinion's viewthat all Rule 11(c) (1)( C) plea a g ree ments

are "ba sed on" the Guidelines. Instead, the star ting point for Justice Sotomay or wa s the plea agree ment itself. She rea soned that a se ntence imposed pursuant to a Rule 11(c )(1) (C) plea agree ment is "ba sed on" that agree ment, not on the Guidelines, eve n if the Guidelines we re rele vant to the par

ties' plea ne g otiations and even if the sentenc ing c ourt ref err ed to the Guidelines in decidingwhether

to acc ept the plea . I d. at 2696. B ut J ustice Sotomayor' s concur renc e lef t room for situations wher e the pa rties -- pur suant to a Rule 11(c )(1) (C) plea agree ment -- c ould

-4-agree that a sente nce " based on" the Guidelines would a pply . I d. at 2697-98. Acc ording ly , "[a]s 2 long a s that sentencingrang e is evident fr om the agree ment itself, for pur poses of § 3582(c )(2) the term of imprisonment imposed by the cour t in accor dance with that ag ree ment is 'ba sed on' that rang e." I d. at 2697-98. J ustice Sotomayor' s opinion constitut es the holdingin Fre eman. Unde r Mar ks v. United States, "[w]hen a fr agmented Court dec ides a c ase a nd no single rationale explaining the re sult enjoy s the assent of f

ive J ustices, the holdingof the Court may be viewe d as that position taken by those Member s who conc urre d in the judgme nts on the narr owest g rounds." 430 U.S. 188, 193 (1977). He ard a

rgues that Mar

ks is inapplicable her e bec ause Justi ce Sotomayor' s concur renc e is "diametrica lly

opposed to the re asoningemploy ed by the other f

our Jus tices." Reply

at 4. Hea

rd instead urg es the Court to follow the plura lity opinion. I d. at 3. B ut other cour ts analy zing Fr eema n -- includingthe Fir st, Fourth, and Sixth circ uits -- have conclude d that J ustice Sotomay or' s concur

renc e, which c ontained the na rrowe st gr ounds for the Court' s decision, constitutes the holding in F ree man. See, e .g . United States v. Rivera- Martinez, 665 F.3d 344, 348 (1st Cir. 2011); United States v. Br own, 653 F.3d 337, 340 ( 4th Cir. 2011); United States v. Smit h, 658 F. 3d 608, 611 ( 6th Cir. 2011). Although the D.C. Circuit has not y et had oc casion to decide the issue, cour

ts in thi s jurisdiction have similarly held that J ustice Sotomayor' s opinion is controlling . See, e.g ., United States v. Turne r, 825 F . Supp. 2d 240, 244-45 (D.D.C. 2011) (re jectingargument simil ar to He ard' s that J ustice Sotomay or' s concur renc e is not binding a

nd

Forexa m

ple , J ust ic e So tomayor st at ed t hat "s om e [ Rule 11( c) (1) (C) ] a greements m ay cal l f or 2 the def end antto be sen te nce d wi thi n a par ti cul arGui del ine s s ent enc ing ra nge. I n su ch c ase s . . . t her e c an be n o do ubtth atth e t er m of impri son m ent is ' bas ed o n' th e a greed-upon s ent enc ing ra nge wit hin th e m ean ing of

§ 3 582( c) ." I d. a t 2 697. " Simila rl y, a ple a a greement might pr ovide f or a s pec if

ic te rm of impris onment - - suc h as a n um berof m ont hs -- but al so make cle ar th atth e ba si s f

or the spe ci fi ed t er m

is a Guid el ine s s ent enc ing ra nge app li cab le to th e of fe nse to whi ch t he d ef

end antpl ead ed guil ty." Id. Neit her of the se si tua ti ons is pr ese nt her e. -5-findinginstead that " her opinion provides the Court's holding ") ; United States v. Watson, 03-Cr311, 2012 WL252252, at *1 n.2 (D.D .C. J an. 26, 2012) ( same a nd citing T urner). Contrary to Hea rd' s contention, there is no inconsistency betwee n the plurality ' s view and Justi ce Sotomayor' s assessment that Rule 11(c )(1) (C) plea agree ments can be "ba sed on" a Guidelines r ang e within the meaningof § 3582(c ) provided that the plea a g ree ment itself ref lects that intent. See Tur

ner, 825 F. Supp. 2d at 245 (c alling Justice Sotomay or' s opinion a "log ical subset of the plurality ' s broade r statement" ). Her e, He ard' s plea a g ree ment does not indicate tha t the parties intende d for his sentenc e to be " based on" a sente ncingrang e that subseque ntly was re duced. T he agree ment simply states: "[T]he parties a gree that the appr opriate disposition of this case is for Mr. Hea rd to be sente nced to a per iod of incar cer ation of 48 months, plus a term of super vised rele ase of

five year s, no fine, and a $100 spe cial asse ssment." Plea A g ree ment at 2. Ther e is no ref ere nce at all in the plea agree ment to the Guidelines, or to an a ppropriate Guidelines ra

ng e. Althoug h various Guidelines rang es we re discusse d at Hea rd' s sentencinghear ing, it does not follow that He ard' s sentence was "ba sed on" the guidelines rang e for cra ck coc aine of

fense s. See Tr. 36:4-8 ( "[T]he sentence that will be imposed is the sentence agree d to under [Rule 11(c)( 1)(C)].") ; see a lso Fre eman, 131 S. Ct. at 2697 ("[P] lea ba

rg ainingnece ssarily

occur s in the shadow of the sentenc ing sc heme to which the de fenda

nt would otherwise be subject. The te rm of imprisonment imposed by the district court, howe ver, is not ' based on' those bac kg round neg otiations; i nstead . . . it is based on the binding a g ree ment produce d by those neg otiations.") ( Sotomay or, J. concurring ) (inter nal citations omitt ed); United States v. Knox, 04-Cr-253, 2012 WL992092, at *2 (N.D . I ll. Mar. 20, 2012) (c iting same languag e fr om Fre eman)

. Although the D.C. Circuit has not weig hed in on this issue, courts in this jurisdi ction

-6-considering§ 3582(c) motions post -F ree man have looked to whether the Rule 11(c) (1)( C) plea agree ment itself clea

rly demonstrated that the sentenc e wa s "ba sed on" a sente ncingrang e that was subseque ntly

reduc ed. See, e .g ., United States v. Walker, 818 F . Supp. 2d 151, 153 (D.D.C. 2011) (" At prese nt, and in the abse nce of additional guidance from the D.C. Circuit, the text of the plea a g ree ment is the focus of the analy sis. W alker ' s plea a g ree ment does not demonstrate the parties' intent to base the ter m of imprisonment on a subsequently lowere d SentencingGuidelines rang e." ); Knox, 2012 W L992092, at *1 (" Be cause the binding 11( c)( 1)(C) [plea a g ree ment] does not indicate the pa

rties' intent to base the a g ree d upon sentenc e on a pa rticular Guideline ra

ng e that has bee n subsequently lowere d . . . but rather

prese nts a specif

ic stipulated sentenc e, Knox's sentenc e re duction is preclude d.") . Her e, in the abse nce of such intent (and inde ed, g iven all the evidenc e indicatingotherwise) the Court is unwilli ngto infer that He ard' s sentence was " based on" a sentenc ing r ang e that wa s subsequently reduc ed, whe n the plea a g ree ment is silent on the matter. Moreove r, He ard is also inelig ible for a sentenc ing r eduction bec ause the Guidelines ra ng e applicable to him is unaff ecte d by the amendme nts reg ardingpenalties for cra ck coc aine of

fense s. The c are er of

fende r Guidelines c lear ly wer e the a

ppropriate measure for de terminingthe sentenc ing r ang e applica

ble to Hea

rd, as indicated both in the PSRand the Probation Memorandum. See PSR

¶¶ 57, 59; Prob. Mem. at 2. I n that vein, Hea

rd' s motion for reduc tion also fails bec ause he was not sentenc ed pursua nt to a Guidelines ra

ng e that has be en subseque ntly lowere d by

the Commiss ion. The Court does not ac cept, howe ver, the g overnme nt's br oad

asser tion that in all circumstance s the potential applica bility of the c are er of

fende r provisions in the Guidelines c ateg orica lly bar a defe ndant from se ekinga sente nce r eduction under § 3582(c)

. The D.C. Circuit has not dec ided the issue, although other c ircuits have ta ken diffe rent

-7-approa ches. See , e.g ., United States v. Rivera, 662 F .3d 166, 172 n. 5 (2d Cir. 2011) (obse rving

that the Fir st, Second, Third, and F ourth Circuits have he ld that modification under § 3582( c) is available on cra ck coc aine of fense s if a sente ncingjudge depar ts from the ca

ree r off ender rang e to the ra ng e esta blished by

the offe nse guideline, but noting that the Sixt h, Eighth, and Tenth Circuits have he ld otherwise) . Fr eema n and the post-F ree man ca ses sug g est that in instances wher e the c are er of

fende r Guidelines pr ovisions would ordinarily apply , but a Rule 11(c) (1)( C) plea a g ree ment makes c lear that a sente nce is instead ba sed on an of fense level ra

ng e that is later reduc ed, then ther e may

be an a rgument that modification is available unde r § 3582(c ). Howeve r, those fa cts are not present he re. U ltimately , the plea a g ree ment rema ins the foca l-point of the Court' s analy sis, and that agree ment simply states that the par

ties stipulate to a term of 48 months incar cer ation. Be cause Hea rd' s sentence was not " based on a sentenc ing r ang e that has subseque ntly

been lowe red by

the SentencingCommi ssion," He ard is inelig ible for a sentenc e re duction under 18 U .S.C. § 3582(c). Ac cording ly , upon consideration of [53] the motion for retroa ctive application of sentencingguidelines, it is hereby ORDERED that the motion is DENI ED. 3 SO ORDERED. /s J OHN D. B ATES United States District J udg e Dated: Ma

y 11, 2012

I t appe ar s t hatHear d ha s f il ed t wo m oti ons re que st ing th e s ame rel ie f. Forth e s ame rea son s, 3 tha t moti on [ 52] is al so d eni ed. -8-