The Honorable J. Clifford Wallace of the United States * Court of Appeals for the Ninth Circuit, sitting by designation.

The Honorable Sonia Sotomayor, originally a member of ** the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); Local Rule 0.14(2); United States v. Desimone, 140 F.3d 457 (2d Cir. 1998). 1 08-4088-cr United States v. Harrington (Main)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

_______________ August Term 2008 (Argued: May 11, 2009 Decided: August 27, 2009)

Docket No. 08-4088-cr -----------------------------------------------------x UNITED STATES OF AMERICA,

Appellee,

-- v. -- CHRISTOPHER MAIN,

Defendant-Appellant.

-----------------------------------------------------x B e f o r e : WALKER and WALLACE, Circuit Judges. * ** 1 Defendant-Appellant Christopher Main appeals from an order 2 of the United States District Court for the District of Vermont 3 (Murtha, J.) denying his motion for a reduction of sentence 4 pursuant to 18 U.S.C. § 3582(c)(2) and United States Sentencing 5 Guidelines § 1B1.10, pursuant to which the sentencing ranges 6 applicable to crack cocaine offenses were retroactively reduced.2 1 Main had pled guilty under a plea agreement pursuant to Federal 2 Rule of Criminal Procedure 11(c)(1)(C). 3 We AFFIRM the district court’s judgment. 4 5 PAUL VAN DE GRAAF, Acting United 6 States Attorney (William B. Darrow 7 & Gregory L. Waples, Assistant 8 United States Attorneys, on the 9 brief), District of Vermont, 10 Burlington, VT, for Appellee. 11 12 ELIZABETH D. MANN, Assistant 13 Federal Public Defender, for 14 Michael L. DeSautels, Federal 15 Public Defender, Burlington, VT, 16 for Defendant-Appellant. 17 18 JOHN M. WALKER, JR., Circuit Judge: 19 Defendant-Appellant Christopher Main appeals from a July 9, 20 2008 order of the United States District Court for the District 21 of Vermont (Murtha, J.) denying his motion for a reduction of 22 sentence pursuant to 18 U.S.C. § 3582(c)(2) and United States 23 Sentencing Guidelines (“U.S.S.G.”) § 1B1.10, pursuant to which 24 the sentencing ranges applicable to crack cocaine offenses were 25 retroactively reduced. We hold that the district court was 26 without authority to reduce Main’s sentence under section 3582(c) 27 because the sentence was dictated by his plea agreement pursuant 28 to Federal Rule of Criminal Procedure 11(c)(1)(C), and not the 29 Guidelines related to crack cocaine. Accordingly, we affirm the 30 district court’s denial of Main’s motion. 31 BACKGROUND 32 The facts of Main’s crime are set forth fully in our priorRule 11(c)(1) provides: 1 An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. . . . If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will . . . (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement). Fed. R. Crim. P. 11(c)(1). 3 1 published decision vacating Main’s first judgment of conviction 2 and sentence because the district court had inaccurately 3 described the range of penalties to which Main could be subjected 4 as a result of his guilty plea. See United States v. Harrington, 5 354 F.3d 178, 180–86 (2d Cir. 2004). 6 On remand, Main again pled guilty, pursuant to a plea 7 agreement, to distributing and conspiring to distribute five or 8 more grams of crack cocaine in violation of 21 U.S.C. §§ 9 841(a)(1) and 846. The agreement specified that Main and the 10 government had agreed, “pursuant to Federal Rule of Criminal 11 Procedure 11(c)(1)(C),”that “the appropriate sentence to be 1 12 imposed, with regard to imprisonment, is a term of not more than 13 eight (8) years.” (Plea Agreement ¶ 3.) The agreement further 14 stated that Main “reserve[d] the right to argue for a downward 15 departure.” (Plea Agreement ¶ 3.) The district court accepted4 1 Main’s guilty plea. 2 At the subsequent sentencing hearing in February 2005, the 3 district court determined that Main’s total offense level was 26, 4 that his Criminal History Category was VI, and that the 5 applicable Guideline range therefore was 120 to 150 months, and 6 found that “the parties have agreed in accordance with [Rule 7 11(c)(1)(C)] that the appropriate sentence to be imposed is a 8 term of imprisonment of not more than eight years[,] which is 96 9 months.” (Sentencing Tr. 28:24-29:2, Feb. 23, 2005.) The 10 district court then granted Main’s request for downward 11 departures, reducing Main’s sentence by seven months for 12 “extraordinary rehabilitation . . . while in prison” and by five 13 months for certain time Main served. (Sentencing Tr. 30:24- 14 31:10.) The district court sentenced Main to 84 months’ 15 imprisonment. 16 On May 14, 2008, Main moved to reduce his sentence pursuant 17 to section 3582(c)(2), which allows such motions by any 18 “defendant who has been sentenced to a term of imprisonment based 19 on a sentencing range that has subsequently been lowered by the 20 Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Main argued 21 that he was eligible for a reduced sentence under U.S.S.G. § 22 1B1.10, effective March 3, 2008, which retroactively reduced by 23 two levels the base offense level for crack cocaine offenses 24 covered by U.S.S.G. § 2D1.1. See U.S.S.G. supp. to app. C, 25 amend. 706 (2007) (amending the drug quantity table for U.S.S.G.5 1 § 2D1.1); U.S.S.G. supp. to app. C, amend. 713 (2007) 2 (retroactively applying § 2D1.1). The district court denied 3 Main’s motion on the basis that the court lacked authority to 4 modify the sentence under section 3582(c)(2), because Main had 5 been sentenced pursuant to a Rule 11(c)(1)(C) plea agreement and 6 not pursuant to U.S.S.G. § 2D1.1. After granting Main’s motion 7 to reconsider the denial of resentencing, the district court 8 affirmed its decision. This appeal followed. 9 DISCUSSION 10 The only issue on appeal is whether Main is eligible for a 11 reduction in sentence under the crack cocaine amendments, 12 pursuant to section 3582(c)(2). We review de novo the 13 determination of whether his sentence was “based on a sentencing 14 range that was subsequently lowered by the Sentencing 15 Commission,” because this determination is a matter of statutory 16 interpretation. United States v. Williams, 551 F.3d 182, 185 (2d 17 Cir. 2009). 18 Section 3582(c) limits a district court’s resentencing 19 authority by providing that it “may not modify a term of 20 imprisonment once it has been imposed,” except in limited 21 circumstances, such as when the defendant was sentenced “based on 22 a sentencing range that has subsequently been lowered by the 23 Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Although Main 24 contends that he was sentenced pursuant to the Guidelines sectionFederal Rule of Criminal Procedure 11(e)(1)(C) is Rule 2 11(c)(1)(C)’s predecessor, and was revised and renumbered in 2002 with only stylistic changes. Fed. R. Crim. P. 11 advisory committee’s notes. 6 1 applicable to crack cocaine offenses, U.S.S.G. § 2D1.1, for which 2 the Sentencing Commission lowered the base offense level, see id. 3 at supp. to app. C, amends. 706, 713 (2007), we agree with the 4 district court that Main in fact was sentenced “based on” his 5 Rule 11(c)(1)(C) plea agreement. 6 Not only did the district court expressly “accept[] the plea 7 agreement, including the factors to be considered in imposing the 8 sentence,” (Sentencing Tr. 29:3-5), but also, despite calculating 9 the then-applicable Guidelines range to be 120 to 150 months’ 10 imprisonment, the district court did not adhere to that range 11 because it was higher than the maximum sentence of 96 months 12 specified in Main’s plea agreement. Under Rule 11(c)(1)(C), a 13 district court may not deviate from the “specific sentence or 14 sentencing range,” Fed. R. Crim. P. 11(c)(1)(C), recommended or 15 requested by the accepted plea agreement. See, e.g., United 16 States v. Williams, 260 F.3d 160, 165 (2d Cir. 2001) (“[A] 17 district court may accept or reject a Rule 11(e)(1)(C) sentence 2 18 bargain, but may in no event modify it.”). Instead of using the 19 sentencing range specified by the Guidelines, the district court 20 adhered to the maximum sentence permitted by the plea agreement 21 and, after granting two reductions totaling twelve months, 22 sentenced Main to 84 months’ imprisonment. We therefore hold7 1 that Main’s sentence was “based on” his Rule 11(c)(1)(C) 2 agreement with the government, and not a sentencing range that 3 the Sentencing Commission subsequently lowered, and conclude that 4 the district court was without authority to reduce the sentence 5 pursuant to 18 U.S.C. § 3582(c)(2). 6 Other circuits that have considered this question generally 7 have reached similar conclusions, reasoning that a sentence 8 imposed pursuant to a Rule 11(c)(1)(C) agreement “arises directly 9 from the agreement itself, not from the Guidelines, even though 10 the court can and should consult the Guidelines in deciding 11 whether to accept the plea.” United States v. Cieslowski, 410 12 F.3d 353, 364 (7th Cir. 2005); see also, e.g., United States v. 13 Sanchez, 562 F.3d 275, 277-79 (3d Cir. 2009) (holding that a 14 defendant sentenced pursuant to a Rule 11(c)(1)(C) plea agreement 15 is ineligible for section 3582(c)(2) relief); United States v. 16 Scurlark, 560 F.3d 839, 841 (8th Cir. 2009) (same); United States 17 v. Peveler, 359 F.3d 369, 377-79 (6th Cir. 2004) (same); United 18 States v. Trujeque, 100 F.3d 869, 870-71 (10th Cir. 1996) (same). 19 In contrast, the Fourth Circuit held in United States v. 20 Dews, 551 F.3d 204, 208-12 (4th Cir. 2008), reh’g en banc granted 21 (4th Cir. 2009), appeal dismissed as moot (4th Cir. 2009), that 22 section 3582(c)(2) authorized district courts to resentence 23 defendants who pled guilty pursuant to Rule 11(c)(1)(C) plea 24 agreements. The Fourth Circuit, however, subsequently vacated 25 its decision in Dews by granting a rehearing en banc, see 4th8 1 Cir. Local Rule 35(c), and has since dismissed the appeal as 2 moot. Because Dews is no longer good law, we have no need to 3 address Main’s argument that, for the reasons provided in Dews, 4 he is eligible for a sentencing reduction under section 5 3582(c)(2). 6 Main points out that his case may be distinguished from 7 cases such as Peveler, see 359 F.3d at 372-73, in which the plea 8 agreements stipulated a specific offense level or Guidelines 9 range to be applied: Because Main’s plea agreement merely 10 specified the upper limit of the sentencing range to which he 11 could be exposed (96 months), and did not limit the court’s 12 discretion to sentence Main to any term below that limit, Main 13 argues that a sentencing reduction pursuant to section 3582(c)(2) 14 would not have violated Rule 11(c)(1)(C). But our decision that 15 Main is ineligible for resentencing depends upon the text of 16 section 3582(c)(2), which states that a reduction must be a 17 sentence “based on a sentencing range that has not been 18 subsequently lowered by the Sentencing Commission,” and not upon 19 Rule 11(c)(1)(C), and we need not address whether the latter 20 should be construed in other cases to bar resentencing pursuant 21 to section 3582(c)(2). Main also argues that his express 22 reservation in the plea agreement of his right to argue for a 23 downward departure indicates that the Sentencing Guidelines 24 continued to play a role in determining his sentence. Again, 25 however, section 3582(c)(2) only applies when the defendant “has9 1 been sentenced . . . based on a sentencing range that has 2 subsequently been lowered by the Sentencing Commission,” 18 3 U.S.C. § 3582(c)(2), and the Sentencing Commission did not 4 subsequently modify the downward departure provisions upon which 5 Main relies. Main remains ineligible for section 3582(c)(2) 6 relief because, as we have already explained, U.S.S.G. § 2D1.1, 7 the provision that the Sentencing Commission subsequently 8 modified, played no role in the sentence that Main received. 9 We have considered Main’s remaining arguments and find them 10 to be without merit. 11 CONCLUSION 12 For the reasons stated above, the judgment of the district 13 court is AFFIRMED.