United States Court of Appeals

For the First Circuit

No. 09-1766

UNITED STATES OF AMERICA,

Appellee,

v.

ROBIN EDDIE RIVERA-MARTÍNEZ,

Defendant, Appellant.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before

 Torruella, Selya and Howard, Circuit Judges.

Jean C. LaRocque, by appointment of the court, on supplemental

brief for appellant.

Lanny A. Breuer, Assistant Attorney General, Greg D. Andres,

Acting Deputy Assistant Attorney General, Vijay Shanker, Attorney,

Appellate Section, Criminal Division, United States Department of

Justice, Rosa Emilia Rodríguez-Vélez, United States Attorney,

Nelson Pérez-Sosa, Assistant United States Attorney (Appellate

Chief), and Julia M. Meconiates, Assistant United States Attorney,

on supplemental brief for appellee.

December 20, 2011
SELYA, Circuit Judge. In United States v. RiveraMartínez (Rivera-Martínez I), 607 F.3d 283 (1st Cir. 2010), we

affirmed a district court decision finding the defendant ineligible

for a sentence reduction under certain retroactive amendments to

the federal sentencing guidelines. Id. at 286-88. The defendant

petitioned for a writ of certiorari. While that petition was

pending, the Supreme Court decided Freeman v. United States, 131 S.

Ct. 2685 (2011). The Court then granted the petition in RiveraMartínez I, vacated the judgment, and remanded for reconsideration

in light of Freeman. Rivera-Martínez v. United States, 131 S. Ct.

3088 (2011) (mem.).

The task committed to us requires a careful parsing of

the three opinions filed in Freeman, an identification of Freeman's

holding, and a fresh determination of the defendant's eligibility

for the sought-after sentence reduction. We conclude that Justice

Sotomayor's concurring opinion embodies the Freeman Court's holding

and that under its strictures the defendant remains ineligible for

a reduced sentence.

I. BACKGROUND

On March 6, 2000, defendant-appellant Robin Eddie RiveraMartínez pleaded guilty to conspiring to possess with intent to

distribute more than five kilograms of crack cocaine. See 21

U.S.C. §§ 841(a)(1), 846. His plea was entered pursuant to a plea

agreement (the Agreement) forged under Federal Rule of Criminal

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Procedure 11(c)(1)(C). Such a vehicle — a so-called C-type plea

agreement — allows the parties to bind the district court to a preagreed sentence if the court accepts the plea. See, e.g., RiveraMartínez I, 607 F.3d at 284; United States v. Teeter, 257 F.3d 14,

28 (1st Cir. 2001).

Here, the Agreement stipulated that the defendant was 

accountable for over 1.5 kilograms of cocaine base. On the date 1

of the plea, this drug quantity corresponded to a base offense

level of 38. After walking through various guideline adjustments,

the Agreement arrived at a total offense level of 37. Although the

parties agreed to a 240-month sentence, the Agreement said nothing

about either the defendant's criminal history category or his

guideline sentencing range.

Sentencing took place on September 12, 2000. The

district judge rehearsed the guideline calculations limned in the

presentence investigation report, accepted the Agreement, and

sentenced the defendant to 240 months in prison.

We fast-forward to 2007, when the Sentencing Commission

modified the quantities of crack cocaine that suffice to trigger

certain base offense levels. See USSG App. C, Amend. 706 (Supp.

2007) (modifying USSG §2D1.1); see also USSG App. C, Amend. 711

1 For present purposes, cocaine base is crack cocaine, and we

use the terms interchangeably.

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(Supp. 2007). The Commission soon made these amendments

retroactive. See USSG App. C, Amend. 713 (Supp. 2008).

Seizing upon these developments, the defendant moved for

a sentence reduction under 18 U.S.C. § 3582(c)(2). The district 2

court denied the motion. We affirmed. See Rivera-Martínez I, 607

F.3d at 288. We determined that "[a]bsent an express statement in

the plea agreement making the sentence dependent upon a guideline

calculation, a sentence imposed pursuant to a C-type plea agreement

is based on the agreement itself, not on the guidelines." Id. at

287.3

The defendant petitioned for a writ of certiorari. On

June 23, 2011, the Supreme Court decided Freeman. A few days

later, it granted the defendant's certiorari petition, vacated this

court's judgment, and remanded for reconsideration in light of

Freeman.

II. ANALYSIS

To comply with the Supreme Court's mandate, we must

identify Freeman's holding, chart its contours, and apply the

2 A further amendment, which post-dates the filing of the

defendant's sentence reduction motion, has increased the quantities

of crack cocaine needed to trigger certain base offense levels. 

See USSG App. C, Amend. 750, Pt.A & comment. (backg'd.) (Supp.

2011).

3 We also stated that Rule 11(c)(1)(C) prohibits a district

court from altering a sentence "unless the terms of the plea

agreement explicitly authorize it to do so." Rivera-Martínez I,

607 F.3d at 287. Freeman forecloses this rationale. See 131 S.

Ct. at 2690.

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insights gleaned from those inquiries to the defendant's

circumstances. This undertaking requires us to step back for a

moment.

As a general rule, a sentencing court cannot revisit a

final sentence. 18 U.S.C. § 3582(c). Section 3582(c)(2) provides

an exception to this general rule:

[I]n 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 . . . the

court may reduce the term of imprisonment,

after considering the factors set forth in

section 3553(a) to the extent that they are

applicable, if such a reduction is consistent

with applicable policy statements issued by

the Sentencing Commission.

Id. § 3582(c)(2) (emphasis supplied). The question before the

Freeman Court was whether a defendant who was sentenced pursuant to

a C-type plea agreement can be eligible for section 3582(c)(2)

relief.

The court of appeals had held that, in the absence of a

miscarriage of justice, entering into a C-type plea agreement

presented a categorical bar to section 3582(c)(2) relief. United

States v. Goins, 355 F. App'x 1, 2-3 (6th Cir. 2009), rev'd in part

sub nom. Freeman v. United States, 131 S. Ct. 2685 (2011). Five

Justices concluded that no such bar existed. But those five

Justices reached this conclusion in different ways — and therein

lies the rub.

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A four-member plurality found determinative the analytic

framework that undergirds the decisionmaking process employed by

sentencing judges in federal criminal cases. Freeman, 131 S. Ct.

at 2692-94 (Kennedy, J., with whom Ginsburg, Breyer, and Kagan,

JJ., joined). The sentencing guidelines are integral to that

process. Even in cases in which sentencing follows the execution

of a C-type plea agreement, the sentencing judge is required to

take the guidelines into account when deciding whether to accept

the agreement and impose the agreed sentence. Id. at 2692-93. 

Viewed through this prism, a judge's decision to accept a C-type

plea agreement will almost always be based on the guidelines,

thereby rendering the defendant eligible for section 3582(c)(2)

relief when those guidelines are amended and made retroactive. Id.

at 2695.

Four votes, however, do not make a majority on a ninejudge court. To achieve the magic number, the plurality depended

upon Justice Sotomayor, who also found the defendant eligible for

section 3582(c)(2) relief. But Justice Sotomayor's approach

differed sharply from that of the plurality. She concluded that a

term of imprisonment imposed by a court pursuant to a C-type plea

agreement is based on the agreement, not on the sentencing judge's

assessment of the guidelines. Id. at 2695 (Sotomayor, J.,

concurring).

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Withal, Justice Sotomayor carved out an exception for

cases in which a C-type plea agreement "expressly uses a Guidelines

sentencing range applicable to the charged offense to establish the

term of imprisonment, and that range is subsequently lowered." Id. 

In that event, "the term of imprisonment is 'based on' the range

employed and the defendant is eligible for sentence reduction under

§ 3582(c)(2)." Id. The sentence imposed in Freeman came within

this exception.

The four dissenting Justices, like Justice Sotomayor,

concluded that sentences imposed pursuant to C-type plea agreements

are based on the agreement, not on the guidelines. See id. at 2700

(Roberts, C.J., with whom Scalia, Thomas, and Alito, JJ., joined,

dissenting). But unlike Justice Sotomayor, the dissenters argued

that the imposition of a sentence pursuant to a C-type plea

agreement always precluded section 3582(c)(2) relief. Id. at 2700-

05.

These opinions leave some doubt as to the controlling

rule. To allay this doubt, our first recourse is to Marks v.

United States, 430 U.S. 188 (1977). There, the Supreme Court

explained that "[w]hen a fragmented Court decides a case and no

single rationale explaining the result enjoys the assent of five

Justices, the holding of the Court may be viewed as that position

taken by those Members who concurred in the judgments on the

narrowest grounds." Id. at 193 (internal quotation marks omitted).

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This "narrowest grounds" approach is useful when it can be applied

straightforwardly, but it is sometimes unworkable. See, e.g.,

United States v. Johnson, 467 F.3d 56, 63-64 (1st Cir. 2006).

The defendant asserts that Freeman is not amenable to the

Marks "narrowest grounds" approach. As a default measure, he

invites us to apply the plurality's reasoning. In support, he

relies on our decision in Johnson.

Johnson cannot bear the weight that the defendant loads

upon it. The language upon which the defendant relies — that

"Marks is workable . . . only when one opinion is a logical subset

of other, broader opinions," id. at 63 (quoting King v. Palmer, 950

F.2d 771, 781 (D.C. Cir. 1991) (en banc)) — signifies only that

"the narrowest opinion must represent a common denominator of the

Court's reasoning; it must embody a position implicitly approved by

at least five Justices who support the judgment." King, 950 F.2d

at 781. Adhering to this standard, Freeman is fertile soil for a

Marks analysis.

To be sure, Freeman's plurality and concurrence agree on

very little. The plurality looks to the analytic framework

underlying a district judge's decision to accept a C-type plea

agreement, see 131 S. Ct. at 2692-95 (plurality op.), whereas

Justice Sotomayor's concurrence looks to the plea agreement to

determine whether a particular sentence is based on an identifiable

guideline sentencing range, see id. at 2695-98 (Sotomayor, J.,

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concurring). The disconnect between these views is accentuated by

the plurality's observation that the Sentencing Commission's policy

statements and commentary require the district judge in every case

to consult the guidelines and determine whether a sentence set

forth in a C-type plea agreement is appropriate before accepting

the agreement. Id. at 2692 (plurality op.). In the plurality's

view, therefore, "the court's acceptance [of a C-type plea

agreement] is itself based on the Guidelines." Id.

The gap between the plurality and the concurrence is

wide, but it is still possible to tease out a common denominator. 

In light of its perceived "consult the guidelines" requirement, the

plurality would surely agree that in every case in which a

defendant's C-type plea agreement satisfies the criteria for

Justice Sotomayor's exception by "expressly us[ing] a Guidelines

sentencing range applicable to the charged offense to establish the

term of imprisonment," id. at 2695 (Sotomayor, J., concurring), the

sentencing judge's decision to accept that sentence is based on the

guidelines. Thus, Justice Sotomayor's concurrence delineates the

narrowest grounds on which at least five Justices agree. It is,

therefore, the controlling opinion. See Marks, 430 U.S. at 193-94.

In reaching this conclusion, we do not write on a

pristine page. In the uncertain wake of Freeman, two other courts

of appeals have published opinions addressing this question. Both

agree with our conclusion. See United States v. Smith, 658 F.3d

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608, 611 (6th Cir. 2011); United States v. Brown, 653 F.3d 337, 340

& n.1 (4th Cir. 2011), petition for cert. filed, (U.S. Sept. 14,

2011) (No. 11-6385).

It remains for us to decide whether the defendant is

eligible for a sentence reduction under the rationale of the

concurrence. Justice Sotomayor allows for eligibility when the

agreement itself expressly indicates that the term of imprisonment

is based on a guideline sentencing range that has subsequently been

reduced by the Sentencing Commission. See Freeman, 131 S. Ct. at

2695 (Sotomayor, J., concurring). She has identified two scenarios

in which this phenomenon will occur. The first — a scenario in

which a C-type plea agreement calls for a sentence within an

identified sentencing range, id. at 2697 — does not exist here.

The second scenario requires more elaboration. Justice

Sotomayor wrote:

[A] plea agreement might . . . make clear that

the basis for [a] specified term [of

imprisonment] is a Guidelines sentencing range

applicable to the offense to which the

defendant pleaded guilty. As long as that

sentencing range is evident from the agreement

itself, for purposes of § 3582(c)(2) the term

of imprisonment imposed by the court in

accordance with that agreement is "based on"

that range.

Id. at 2697-98. The defendant's fallback argument is that he is

eligible for section 3582(c)(2) relief under this scenario.

This argument assumes that the second scenario requires

"an analysis of the reasons that motivated or informed the parties'

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decision" to enter into the plea agreement. Appellant's Supp. Br.

at 9. Starting from this premise, he notes that the Agreement

mentions some guideline components (including a total offense

level) as well as a specified drug quantity. These references, the

defendant says, make it hard to believe that the guidelines did not

figure into the agreed sentence.

The defendant's reasoning is plausible, but he is

answering the wrong question. Justice Sotomayor's concurrence

expressly rejects an inferential approach. She acknowledges that

a term of imprisonment in a C-type plea agreement will most often

be negotiated by reference to the relevant guideline provisions. 

Freeman, 131 S. Ct. at 2697 (Sotomayor, J., concurring). Yet under

the rationale of the concurrence, this linkage is not enough to

warrant a finding that the ensuing sentence is "based on" the

guidelines. Justice Sotomayor makes it pellucid that the proper

focus is neither the guideline calculations that the judge may

perform before deciding whether to accept the agreement, id. at

2695-97, nor the "mere fact that the parties . . . may have

considered the Guidelines in the course of their negotiations," id.

at 2697. Rather, it is the terms contained within the four corners

of the plea agreement that matter. See id. at 2697-98; see also

Smith, 658 F.3d at 612-13.

Silhouetted against this backdrop, the concern that we

voiced in Rivera-Martínez I echoes still. The Agreement does not

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identify any guideline sentencing range. Moreover, the Agreement

does not contain any information about the defendant's criminal

history category. See Rivera-Martínez I, 607 F.3d at 287 & n.4. 

This silence about a criminal history category makes it impossible

to conclude from the Agreement alone that the proposed sentence is

based on a specific sentencing range. See id. at 287 n.4. The

integers needed to trigger the exception carved out by Justice

Sotomayor are not present here.

A comparison of the Agreement with the plea agreement in

Freeman is telling. The latter agreement contained an explicit

stipulation to both an offense level and a criminal history

category. See Freeman, 131 S. Ct. at 2699-2700 (Sotomayor, J.,

concurring). When Justice Sotomayor turned to the sentencing table

with these coordinates in hand, she could identify with certainty

a particular sentencing range. See id. In this case, the

Agreement does not permit such certitude. As we have explained,

one of the two essential coordinates is missing.4

The short of it is that we cannot identify a referenced

sentencing range from the Agreement alone. We would have to

supplement the Agreement with either the parties' background

negotiations or the facts that informed the sentencing judge's

4 Even if we were free to work backward, that effort would

prove fruitless. When we look to the sentencing table armed with

a 240-month sentence and an offense level of 37, the defendant's

sentence places him in two distinct guideline sentencing ranges. 

See USSG Ch.5, Pt.A (sentencing table).

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decision to accept the plea. Justice Sotomayor's concurrence

forbids us from making such an archeological dig. See id. at 2696-

98. We therefore conclude that the defendant is not eligible for

a sentencing reduction under section 3582(c)(2).5

There is one loose end. The parties have agreed that the

district court made a clerical error when it entered the amended

judgment. The judgment describes the offense of conviction as

"[p]ossess[ion] with intent to distribute in excess of 5 kg of

cocaine, and in excess of 5 kg of cocaine base Schedule II Narcotic

Drug Controlled Substances." This is not the crime to which the

defendant admitted his guilt. The judgment therefore should be

amended to reflect that the defendant pleaded guilty only to

conspiracy, not to the underlying substantive offense.

Accordingly, we remand for the limited purpose of correcting this

clerical error. See Fed. R. Crim. P. 36; see also United States v.

Arboleda, 929 F.2d 858, 871 (1st Cir. 1991).

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we again conclude that the defendant is ineligible for a sentence

5 Justice Sotomayor herself foreshadowed this result. In

explaining why she rejected absolutist approaches to the

eligibility of individuals sentenced pursuant to C-type plea

agreements for sentence reductions under retroactive guideline

amendments, she cited our decision in Rivera-Martínez I with

apparent approval. See Freeman, 131 S. Ct. at 2698 & n.3

(Sotomayor, J., concurring). In that decision, we had advocated a

flexible approach similar to that subsequently delineated by

Justice Sotomayor. See Rivera-Martínez I, 607 F.3d at 287.

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reduction under 18 U.S.C. § 3582(c)(2). We therefore reinstate our

judgment affirming the denial of the defendant's motion while at

the same time remanding for the limited purpose of correcting the

district court's judgment.

So Ordered.

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