Earl Warren: Mr. Hudson, you may proceed.
Thomas K. Hudson: I believe that I have about five minutes left and I'd like to hold that for rebuttal if I may.
Earl Warren: Yes. Oh, yes -- yes you may.
Thomas K. Hudson: Thank you, Your Honor.
Earl Warren: Certainly. Mr. Davis.
John F . Davis: Mr. Chief Justice, the Court please. In the original wire-tapping cases, Olmstead and Nardone, this Court was dealing with wire-tapping in the sense of an actual interference with the electrical circuit, either by means of attaching wires to that circuit or by means of induction. The question, here, is whether the same rules apply when an extension telephone is used. Here, the petitioner made a call from New York City to a certain station in Pueblo, Colorado. The call was completed just as was intended. It was received in Pueblo on the regularly installed instruments at the station which was called. And it was at that station that at the request of one of the parties to the conversation, the two police officers listened to the conversation. I think one thing is clear in this field of interception and that is, that the contents of a telephone message do not acquire a confidential status merely because the message is transmitted over the telephone. Either party to the conversation, for example, may disclose the contents of that conversation to a third party. And the holding of the Goldman case was that a third party could eavesdrop at the commencement of the conversation and as long as he didn't interfere with the actual means of transmission, he could disclose what he heard. It seems to me that it makes no sense to draw a distinction between the situation where, Mr. Sparks, in Colorado, can hold the telephone a few inches away from his ear so that someone can overhear what has been said and where he requests the officers to step into the next room and listen in on the regularly installed telephone instrument. But that is the question -- that is really the question which is before this Court. We urge that Congress was intending to protect the integrity of this particular means of communication. There is little or no legislative history relative to 605 which aids us in determining, specifically, what Congress intended. But we do know that they legislated with the Olmstead case in the background. We know that there had been before they legislated the extensive use of wire-tapping in the sense of surreptitious attaching of wiretaps in connection with the enforcement of the Prohibition Act. The Congress had outlawed the use of funds for enforcing prohibition. So it's in this climate that Congress passed this Act which forbids the interception and divulgence of telephone messages. And the specific question is, of course, is this an interception. This Court has never passed on it. The nearest the Court has come to passing on this particular question is the Goldman case which it -- its reasoning be applied here. We think it shows that there was no interception here. The lower -- the – the Courts of Appeals have had it before them on several occasions and they are split. The Second Circuit, and not quite so clearly, but probably the Court of Appeals of the District Court of Columbia Circuit, have both held that this is an interception when a person listens on an extension phone with the consent of one of the parties. The Sixth and the Seventh Circuit and some of the -- and some of the District Courts have held to the contrary and their view --
William J. Brennan, Jr.: And the rationale, would be, Mr. Davis --
John F . Davis: Pardon?
William J. Brennan, Jr.: What's the rationale in the Second and the District Circuit?
John F . Davis: They say that an interception is -- is in effect the eavesdropping on the -- on the conversation and that this is eavesdropping on the conversation. The Sixth Circuit, I think the reasoning and the plan of this case is -- is pretty clear which holds against the interception and they say that it is not an interception because the message begins at the place it was intended to begin perhaps and continues uninterruptedly to the place where it was supposed to be received and there someone listens and they say, "this is not an interception." The -- the communication is completed as intended. Our rational which -- rationale which we propose for the Court is that an interception was intended by Congress to be an interference with this method of communication and that there – there is in this case, no interference with the method of communication but rather the use of it as it was intended to be used.
Speaker: (Inaudible)
John F . Davis: That is right. The -- the message itself as we say is -- doesn't get a confidential status.
William J. Brennan, Jr.: Well, what -- what would be the case if listening in on the extension was not known to either of the parties for this telephone call?
John F . Davis: Well, on -- on the theory which I have proposed, if it were done on a regularly installed extension phone or on a party line, there would be no interference with the means of communication and this would, again, not be an interception. I think we have a stronger case here where there is consent by one of the parties. It has a -- it has a-- a better appearance but I do not think that we can argue that there was consent to -- to this listening.
Hugo L. Black: Suppose the extension here has not been put on by the telephone company but they're just put on by the detectives.
John F . Davis: Then I would say there was an interception.
Hugo L. Black: The same --
John F . Davis: Oh, yes, there would then be an interference with the telephone circuit.
Hugo L. Black: So that the difference you draw here this was a regular part of the installation put on by the company and you say they put this same wire, and set the same wire but it's not in (Inaudible)
John F . Davis: That is right. If they had put it on, it would have been –-
Hugo L. Black: Would have been --
John F . Davis: -- against the fact.
Hugo L. Black: (Voice Overlap)
John F . Davis: That's right. That would be what -- in the sense of Olmstead and Nardone -- is wire-tapping and you would need consent of both parties in order to -- in order to do it.
Felix Frankfurter: As I understand it, this is a telephone from one room and to what we call an extension.
John F . Davis: That's right.
Felix Frankfurter: Now, what do you call that if it's put on by someone else and is interference with the -- with the transmission system, why is that an interference if you installed a mechanical thing for future use, why is that an interference?
John F . Davis: If it is not put on in the -- in the regular cost of the telephone business --
Felix Frankfurter: Yes.
John F . Davis: -- if it was put on for the purpose of -- of hearing messages which comes -- which come over them -- over the system, then the -- in fact I may call as the integrity of the circuit.
Felix Frankfurter: Well, that's the -- I know. I understand, what that means, the integrity of the circuit but that is --
John F . Davis: It's broken.
Felix Frankfurter: -- not to solved whether this is an interference with integrity. Is this some -- I'm saying here is about electronics, is this – is -- is this -- was what was done here – what I suggest, if somebody else put this in for future availability, is that an interference, although it isn't used until the time comes, hardly an interference?
John F . Davis: Well, it isn't -- if it's not installed under authority of the -- of the telephone company of the -- of the utility that's involved, then it is the same as I -- I would think it would be the same as though one runs a wire into an electrical --
Felix Frankfurter: What I'm saying is, until it's used, it doesn't come within 605 --
John F . Davis: No, that is true. It doesn't -- that's right. There is no interception until -- until there is some agency which -- which --
Felix Frankfurter: I'm not --
John F . Davis: -- records in some way what goes over.
Felix Frankfurter: And at that time, the -- they enter -- and that time, if it comes within 605, it's because of the unauthorization of the hearing at that time.
John F . Davis: That is true. That is --
Felix Frankfurter: Now, what is the difference between the unauthorization of that hearing and the unauthorization of this hearing?
John F . Davis: I think it must relate back to -- to the method which is used to -- to accomplish --
Felix Frankfurter: That is not --
John F . Davis: -- the same.
Felix Frankfurter: -- what the Section says. Relating back is something I'm very suspicious of with the law usually.
John F . Davis: No, the Section says interception as such. And the question is, is there an -- I read interception as interference. And the question is, has there been in that -- that case any interference. And as -- as Mr. Hudson points out, we can't have interference from the sense of stopping -- stopping the message from going at -- entirely because the whole history of this -- they don't stop it. They -- they just tap off. They -- they take a little part of it which they hear.
William J. Brennan, Jr.: Well, suppose Mr. Davis, we use one of these devices that Mr. Hudson described for us that you may lay alongside as I understand with the telephone line without any attachment and in that way get the message that's going over the line. Would that be an interference?
John F . Davis: That would be the -- that would be the same -- that actually was what was done in Olmstead. It's -- it's by induction. It is taking the electrical energy out of the line rather than through a direct connection that is taken out by -- by induction. And that is the type of wire-tapping which was involved, I believe, in -- in the Olmstead cases found.
Felix Frankfurter: But that doesn't help us on 605. I mean, just – but the opposite case doesn't shed any light for our problem that would accept the use that you made it, that namely --
John F . Davis: That's right.
Felix Frankfurter: -- what light does it shed as to the evil they wanted to stop.
John F . Davis: As to what Congress was trying to do. The -- the situation of someone listening in on an -- an extension phone is so common today that the results of holding this to be an interception so that the divulgence would make for their own legality, would have far reaching effects, probably, much further than -- than Congress could have intended at the time they passed the statute. It's usual -- it's customary for businessmen, for government officials, not with any ulterior motive but merely in order to have two minds on a -- or maybe a stenographic transcript have a -- a record made of what has been said, to have a secretary listen on an extension telephone. And it isn't considered or -- or frequently at any rate it isn't ever mentioned. The parties don't feel that there should be any concern with it and it's never mentioned that the secretary is listening.
William J. Brennan, Jr.: How about listening in on a party line?
John F . Davis: You mean, is that why -- is that an interception?
William J. Brennan, Jr.: Yes.
John F . Davis: It's never been – I -- I don't know if there's any law. My -- I -- I suggest to Your Honor, that on the rationale which -- which I present, it is not interception.
William J. Brennan, Jr.: A lot of people go to jail and whoever.
John F . Davis: [Laughs] It is -- it's been done in rural areas, Your Honor.
Felix Frankfurter: Do you think that -- do you think it would make no difference if A calls or B between free businessmen, if you please, two lawyers. And A says to B, (inaudible) very confidential in communicating to you. I know your secretary has an extension and listening in, I ask you not to allow the listening on this particular communication. Do you think that would present the same case as the accepted cause of conduct between the – between principals and secretaries is now being --
John F . Davis: As far as the question of whether there is an interception within the meaning of Section 605, it would make no difference.
Felix Frankfurter: I'm just asking.
John F . Davis: Unless --
Felix Frankfurter: You mean you couldn't -- you couldn't --
John F . Davis: Unless a theory is adopted that there is a consent because of the wide use of -- extension telephones that when one makes a call from station A to station B, one impliedly consents --
Felix Frankfurter: So, is that an extravagant assumption in the custom of our day --
John F . Davis: Well, in --
Felix Frankfurter: -- in the practices of our day?
John F . Davis: I think it's not an official one. It's like relating back. I don't think that I actually --
Felix Frankfurter: Meaning --
John F . Davis: -- do consent to it. I mean I just don't think of it, that's all.
Felix Frankfurter: Well, lets it's taken for granted. I don't need to say it but it's something that's the common practice -- it -- it doesn't need for me to be called artificially an acceptance --
John F . Davis: (Voice Overlap)
Felix Frankfurter: -- between. And from acceptance to consent isn't a far stretch.
John F . Davis: Well, that -- that's possible but all I can say is that in my own mind, I don't think about it. I don't -- I don't think --
Felix Frankfurter: (Inaudible)
John F . Davis: -- it's all right. I just don't think about it. But if that were the basis for saying that that was not an interception, I mean an interception but it consented to interception, then, of course, there'd be no consent in your case where you'd said no and in that case, it would make a difference. But that is not the theory which I -- which I urged to Your Honors. I do not urge -- although there is in this case a -- an issue of consent. I said a minute ago that -- that we didn't rely on consent in this particular case. I should call to your attention the -- the testimony that the petitioner here said, “I do not care whether you're recording it” -- well it's his particular language was, "I'm going to kill you and I don't care if you're making a recording of this conversation.
Hugo L. Black: But today with your argument insofar, this meaning was in effect, I'm not sure that if -- I'm right. That you construe the act as wholly for the protection of the company and not for the protection of the person we're talking.
John F . Davis: No. Well, that isn't my intention.
Hugo L. Black: I had gathered that.
John F . Davis: No, no. It is not my intention that it's for the protection of the company. The old malicious mischief in interference with telephone conversation cases did have that basis, but here, the -- the object is to protect the privacy, if you please, of the parties to a telephone conversation insofar as the telephone system, as such, is involved in their relationships between each other but not to give them any additional protection because of the fact that they used the telephone. Let me be clear. If, A talks to B and someone overhears them lying under the couch or something like that surreptitiously, that is not protected in the ordinary case. Now, if A talks to B over a telephone and someone overhears in a similar way the fact that a telephone has been used, this is my argument, does not give any added protection, any added confidential nature to that conversation.
Hugo L. Black: Even though it goes over a wire.
John F . Davis: Even though it goes over a wire. There's no reason why one should get more protection because he talks over the telephone than he would if he talked face to face.
Earl Warren: Mr. Davis, in recent years, doesn't -- doesn't the law require when there's a recording on one end of the phone to -- to ring a little bell every few seconds?
John F . Davis: That's -- that's correct.
Earl Warren: And if that is true, isn't that a -- the recognition on the part of Congress that it didn't intend this Act to forbid such things?
John F . Davis: There is a provision in order of the Federal Communications Commission which we referred to at pages 16 and 17 of our brief, requiring what they call a -- they call it a beep -- they call a -- and anyway, there's a -- there is a beep. There is -- [Laughs] there is a sound signal which is required by the Federal -- order of Federal Communications Commission to be made when a recording device is connected to one end of a telephone system. And we refer in our brief to the Commission report in which they adopted this and the Federal Communications Commission in making this requirement, made no suggestion that this was based upon a question of -- of wire-tapping or that this was -- had anything to -- with Section 605. Instead, the question was the -- whether or not this was a -- a reasonable way to use the system, how to protect the system so that these devices could be properly used so the parties would know that they were being used and -- and that nature of thing. But no -- no suggestion that there's -- was any wire-tapping involved.
Earl Warren: So that in -- on the contrary, wouldn't it -- wouldn't it be a recognition at least on -- on the part of the Commission that -- that what we're talking about here is not considered wire-tapping under the statute?
John F . Davis: Oh. Well, I -- they -- they expressed no view one way or another. It might well -- I think that they would say that listening in -- if the listener in -- gave a -- a beep, it was certainly not wire-tapping because they authorized it with respect to a machine and so they would authorize it with respect to individuals if their presence were as disclosed. Whether you can draw any conclusion if their presence is not disclosed, I'm not sure. I -- I've cited that material and -- and its interesting reading but I feel that the Communications Commission just stayed away entirely from any -- from any judgment as to whether or not wire-tapping was involved when at one end of the -- of the line, some -- some monitoring of some kind was done.
Hugo L. Black: What do you say -- what kind of warning, just give us as to detail?
John F . Davis: [Laughs] A B-E-E-P. A beep that makes a little --
Hugo L. Black: How can you hear it?
John F . Davis: It goes -- it goes, buzz, buzz, buzz and the Communications Commission's artist require that the so-called beep, beeps or what you get where there's two-fifths per second in duration and be repeated eight times a minute or something like this so that when there is a listening device on the phone and you called somebody and sometimes one hears this on the radio where there's a recorded -- a -- something recorded over telephone lines, you'll hear periodically. It doesn't interfere with the -- with the conversations that you hear --
Hugo L. Black: (Inaudible)
John F . Davis: You'll hear – well -- it's quite distinctive. It sounds like a little --
Speaker: Well let's practice here.
John F . Davis: [Laughter] Something like -- it just someone (Inaudible)
Earl Warren: And that came into being after the statute.
John F . Davis: Oh yes, yes.
Earl Warren: (Inaudible)
Felix Frankfurter: Mr. Davis, may I ask whether this case satisfies the characterization of Judge Hand in Reitmeister, the Reitmeister that don't mean to accept that. I just want to know whether -- but it must be the -- the -- and if there must be the interjection of an independent receiving device between the lips of the sender and the ear of the receiver, to that is -- would this be interjection of an independent receiving device?
John F . Davis: I think in the sense that Judge Hand used it that it is.
Felix Frankfurter: I agree.
John F . Davis: I think he was dealing in that case with a situation like this.
Felix Frankfurter: Yes, I -- I just want to know.
John F . Davis: I think that's right.
Felix Frankfurter: (Inaudible)
John F . Davis: Now, there is dormant in this case and I think I will leave it to a discussion in the next case since there was a limited grant of certiorari in here but there is dormant in this case the problem of the interception if there was -- were an interception being performed by -- by state officers without any participation by federal officers. And in the event that it should be held that an interception was involved, then the judgment of the court below should still not be reversed if this question -- on this question of the state officers against federal officers, the Court accepts our view that the evidence may be received in evidence when only interception by state officers is involved.
Felix Frankfurter: Would the grant have to be modified or could we take it up within the grant.
John F . Davis: You can -- you can take it up in spite of the grant. It's interesting --
Felix Frankfurter: -- (Voice Overlap) can but --
John F . Davis: -- interestingly enough in the Olmstead case itself, there was a limited grant of certiorari. In that case, limited to the application of the Fourth Amendment and the Court decided in that case not only the Fourth Amendment question but also the questions raised by the dissenters as to whether it was a proper thing to do and this Court is certainly free to -- to decide in this case what it -- anything that if feels is -- is necessary to a -- to a conclusion to a determination of the case.
Speaker: Can I ask you one question before you sit down. I know you argue it but do you really place any reliance on your -- on its opposition that there was a consent by Rathbun. But I know it's --
John F . Davis: Well --
Speaker: -- atmospheric and so forth but do you think it's sound?
John F . Davis: Yes. I think that it sound, Your Honor. Maybe the reason that we don't put any more emphasis on it is because it's not an -- not a tremendously important question from the point of view of -- of maybe you'll feel that you have to decide it on that Your Honor. What are these things we feel we must bring before you and we think it's -- we think our position is right.
Speaker: In case of that ground, you don't want to miss it but you'd rather have a decision here that was in favor of.
John F . Davis: [Laughs]
Felix Frankfurter: Well, I was troubled about that. I'm troubled but seriously about that Mr. Davis, if the record and can we say that the record persuasively spells consent and then the Court will go beyond that.
John F . Davis: Well, that's a matter of choice, Your Honor. I mean --
Felix Frankfurter: Well, if this is here -- suppose that -- suppose if that -- if that's so, maybe desirable to resolve conflict among number of jurisdiction, maybe it isn't. That's all I want to know whether he's -- whether we can or should what we can do or should do. I want to know what is your -- what is your (inaudible) interpretation of what the record permits one to find on this subject of consent.
John F . Davis: Well --
Felix Frankfurter: Is it -- is has the lower court ruled against it so --
John F . Davis: No. The lower court didn't deal with it.
Felix Frankfurter: Didn't deal with it.
John F . Davis: I -- I think it's -- it's the simplest thing in the world that one -- that this Court will read these words which I have quoted at page 5 there's -- there's nothing more to it and if -- if it seems to this Court that this settles the question that this is consent, it's clear, and if it's --
Felix Frankfurter: Why didn't the lower court deal with it because they're like lawyers and judges like broader questions?
John F . Davis: Well, I -- I don't really know Your Honor. I don't -- I don't recollect how well it was -- how much it was pressed or whether it was pressed at all. It's in the record and it was before the Court but whether anyone pressed it, I don't know.
Earl Warren: To decide it on that ground wouldn't resolve any conflict, would it?
John F . Davis: No, it wouldn't – it -- it wouldn't -- well, it wouldn't really do much good to just decide -- it's cited that in this sort of a situation one consents and -- but it wouldn't -- it wouldn't decide really anything except this particular case.
Earl Warren: Exactly. Mr. Hudson.
Thomas K. Hudson: The Court -- Chief Justice --
Earl Warren: -- proceed.
Thomas K. Hudson: -- if the Court please. You know it's my conception that telephone conversations do have a confidential status as between the two individuals talking. We assume that A is talking to B, period. And A is not talking to B, C, D and E and if he is talking to C, D and E in addition to B, he's entitled to be advised. That doesn't make any particular difference what vehicle is used to connect the ears up. Now, we can use a play on words and we can have extension to wiretaps or what have you. They're all the same net result. Congress never passed an act that should be made a nullity by a play on words. They never passed an act that was supposed to become a nullity on one-billionth of a second. We have a principle involved here that the privacy of communication and we're entitled to have protected. If I cannot call anyone in these good United States and talk to them with freedom, then the complete foundation of communication is broken down.
Hugo L. Black: You better not call up any governmental (Inaudible)
Thomas K. Hudson: Well, I don't believe I'd be too disturbed about calling one but I think that the government office would violate 605.
Felix Frankfurter: I'd hope you'd say that it would do no harm to restrict some of the offices of some of the government officers.
Thomas K. Hudson: If Your Honor please, I couldn't say that they -- if there was a listening of that government office and I was not advised of it, and they attempt to divulge it, it would be a violation to Section 605 in my opinion.
Earl Warren: Well, Mr. Hudson, I have sat in offices almost as far as I am from you and couldn't avoid hearing the telephone conversation, not only one on this end of it but -- but the -- the instrument was so attuned that you just couldn't help hearing it in -- in much of the room.
Thomas K. Hudson: I've done the same thing Judge.
Earl Warren: Is that a --
Thomas K. Hudson: No, I don't think so. I don't think --
Earl Warren: If I should -- if I should be human enough to disclose that conversation, would I be in violation of the law?
Thomas K. Hudson: No, not at all, because you didn't do anything to intercept the call, Judge.
Earl Warren: No, I didn't, too.
Thomas K. Hudson: It's a -- I have -- had the same experience. You hear that one –- both voices all over the room.
Earl Warren: Yes.
Thomas K. Hudson: But that's one of those unavoidable things. But it is not an interception as is thought of in Section 605. As I have said, the word interception is an unfortunate thing. There might have been better words to be used but there has never been a case decided in these good United States that interpret interception following a dictionary and we've got a rule of law that is very, very long that says words should be given their normal meaning.
William J. Brennan, Jr.: I gather then that that's in your position would be, one make use of the telephone system itself to listen in on a conversation such as was done here.
Thomas K. Hudson: It very --
William J. Brennan, Jr.: That's what constitutes the interception.
Thomas K. Hudson: Yes, sir. It very well could be.
William J. Brennan, Jr.: It doesn't make any difference then whether it's one of these fancy mechanical devices or listening in on an extension or hopping in or anything else.
Thomas K. Hudson: Not at all. Just as long as you do not advice me that A, B and C are listening in also. I'm entitled to carry on my discussion between myself and you with perfect freedom and not have that privacy interfered with.
William J. Brennan, Jr.: And you've distinguished Goldman and on the ground that that was a detectaphone (Voice Overlap) --
Thomas K. Hudson: That was detectaphone hanging on the wall and is -- is entirely different. The Tenth Circuit judge wrote that and I forget who it was, it might have been Hogsman. He said that it would depend on the position of the extension, how it was installed. Well, it can't make any difference because you've got a billionth of a second in there and we never thought about that. My time is up. Thank you very much.


John G. Roberts, Jr.: We'll hear argument first this morning in Case 09-10245, Freeman v. United States. Mr. Heft.
Frank W. Heft, Jr.: Mr. Chief Justice, and may it please the Court: William Freeman's plea agreement, his presentence report, and the sentencing record all show that his term of imprisonment was based on a crack cocaine guideline that was retroactively lowered by the United States Sentencing Commission. This case asked the Court to decide whether the fact that a sentencing court accepted a plea agreement under Criminal Rule 11(c)(1)(C) precludes eligibility for a sentence reduction under section 3582(c)(2). We submit that Mr. Freeman is not barred from eligibility for a (c)(2) sentence reduction for several reasons. First, under the ordinary definition of Mr. Freeman's term of imprisonment, that term of imprisonment was based on the subsequently lowered guideline. Second, the categorical ban on eligibility adopted by the Sixth Circuit and advanced by the Government frustrates the purpose underlying section (c)(2) and finds no support in the plain language of the statute, of the rule, and under the terms of Mr. Freeman's plea agreement. Third, a record-based analysis that reviews the plea agreement, the presentence report, and the sentencing record to determine the basis of the sentence is -- is best suited to correctly implement section (c)(2), and it's -- that record-based analysis supports the conclusion that Mr. Freeman's sentence was indeed based on a retroactively lowered guideline. The -- the Sixth Circuit--
John G. Roberts, Jr.: If -- if we issue an opinion and we analyze the statute's language, the statute's purpose, and the statute's legislative history, would the opinion, the judgment be based on each of those or -- or not? In other words, does everything that goes into the final determination, would you say that determination is based on each of those factors individually?
Frank W. Heft, Jr.: --Yes. Certainly, it is based -- the determination certainly would be based on the statute, Your Honor, but, as we've -- we've argued in our brief, we've asked the Court to take what we believe to be a record-based analysis and look at -- look at the record in this case, look at the terms of the plea agreement, look at the--
John G. Roberts, Jr.: No. My--
Frank W. Heft, Jr.: --I'm sorry.
John G. Roberts, Jr.: --I think my question goes in a different direction. This plea agreement, I think, could be said to be based on the sentencing guidelines, but it is also based on the agreement. In other words, the combination of the two of them is what gives you the -- the sentence. So how can you say it's based on only the sentencing guidelines when it may not have been imposed in the absence of the plea agreement? Probably wouldn't have been.
Frank W. Heft, Jr.: Mr. Chief Justice, we don't believe that that's mutually exclusive. A sentence can be a guideline -- a sentence based on the guidelines, and it can be a sentence based on a C plea agreement.
Samuel A. Alito, Jr.: You quote one definition of -- the noun "base" in your brief uses a point from which something can develop, but you omit another standard definition of the term, the principal element or -- or ingredient of anything, considered as its fundamental part. Why do you do that?
Frank W. Heft, Jr.: Well, Your Honor, I -- I think the dictionary definition that we've given encompasses the definition that Your Honor has just -- just described. The -- and our position--
Samuel A. Alito, Jr.: Well, there's two -- there are two different definitions. One is something that provides a starting point for analysis. The other is the fundamental thing on which something is -- it rests.
Frank W. Heft, Jr.: --Well -- well, our contention is--
Samuel A. Alito, Jr.: Now, if you use the latter definition, you have to decide which is more fundamental here, the agreement between the parties or the sentencing guidelines, which certainly provided the starting point for the analysis of the sentence by the -- by the district court.
Frank W. Heft, Jr.: --Justice Alito, that's correct. The guidelines certainly were the starting point, but they were also the principal foundation of this agreement because what the agreement is--
Ruth Bader Ginsburg: Isn't it enough for you to say -- or based not in whole, but in part -- based on, something could be based on several things, and one of them is the guidelines that then existed?
Frank W. Heft, Jr.: --Certainly. Certainly. And this -- this plea agreement reflects that it was based on the guidelines. If you--
John G. Roberts, Jr.: Well, then are you saying the plea agreement was based on the fact that he was caught with -- with two guns rather than four guns? Would you be willing to say that? In other words, everything -- your position, it seems to me, could be criticized for saying everything that contributes to the final 106 months, that that sentence is based on every one of those things--
Frank W. Heft, Jr.: --Well--
John G. Roberts, Jr.: --which makes the -- which makes the statutory language largely mute on this.
Frank W. Heft, Jr.: --Well, Your Honor, the -- the sentence is based on a number of guidelines. Each -- no sentence is based on just one guideline, as this plea agreement reflects. It's based on a compilation of guidelines. It's -- it's based on the crack guideline, and as prior--
John G. Roberts, Jr.: Well, it's also based on things that are not reflected in the guidelines. You've got a particular U.S. attorney who is more lenient in prosecuting these types of crimes than another one. The fact that you got the minimum under the guidelines might be based on that. It's based on the fact that this person felt he could handle 106 months in prison, and he wasn't willing to risk whatever the top -- what was the top sentence under the guideline calculation?
Frank W. Heft, Jr.: --It would have been 117 months.
John G. Roberts, Jr.: So he figures it's better for me to get -- it's based on his decision that I -- 106 months is better than the risk of 117.
Frank W. Heft, Jr.: Well, certainly there are a number of factors that go into plea bargaining and negotiation, but what -- I think what the court has to look at is what is said in that plea agreement. And I think, as Justice Ginsburg pointed out a minute ago, the definition of "based on" -- if a guideline sentence is -- if a sentence is based in part on the guidelines, that would be adequate under the -- under section--
John G. Roberts, Jr.: What sentence would he have gotten if he were just sentenced under the guidelines, no plea agreement?
Frank W. Heft, Jr.: --He would have got the -- he would have received the same sentence, Your Honor.
John G. Roberts, Jr.: Well -- well, how do we know that?
Frank W. Heft, Jr.: Well--
John G. Roberts, Jr.: The guidelines give you a range. The judge might have given him 117 months.
Frank W. Heft, Jr.: --But -- but the plea agreement here was for the bottom of the guidelines. The parties calculated--
John G. Roberts, Jr.: No, I know. I'm putting aside the plea agreement. What would he have gotten under the sentencing guidelines? We -- we don't know, right?
Frank W. Heft, Jr.: --It would have been left -- left -- well, assume it depends upon the nature of the plea, Your Honor. You're talking--
John G. Roberts, Jr.: There's no plea. He is convicted at trial.
Frank W. Heft, Jr.: --It would be somewhere within that guideline range. That's correct.
John G. Roberts, Jr.: So how can you say that this is based on the guideline range when the guideline range would not have been determinative?
Frank W. Heft, Jr.: Well -- well, we're looking -- we're looking at the content of the plea agreement, Your Honor. The -- the plea agreement says--
John G. Roberts, Jr.: Yes, I know, but my hypothetical is in a different context.
Frank W. Heft, Jr.: --But even -- even at that, Your Honor, if -- that sentence ultimately is going to be based on a guideline range, and if that guideline range is subsequently lowered by the Sentencing Commission, then the--
Sonia Sotomayor: Counsel, could you -- maybe it would be easier if you would describe to us the situations you don't think would be based on the guidelines. The Solicitor General claims that since every plea negotiation has to start with the guideline calculation as a starting point for departure and/or consideration by the judge under 6B1, that every C plea agreement would be considered based on. Are you taking that position?
Frank W. Heft, Jr.: --No, Your Honor. Absolutely not.
Sonia Sotomayor: All right. So I'll give you a couple of examples, but you give me more. Would a plea agreement that doesn't mention the guidelines at all but picks a sentence within the actual guideline -- is that based on the guideline?
Frank W. Heft, Jr.: Possibly, Your Honor.
Sonia Sotomayor: All right. And how about one that departs or varies from the guideline, the range, whichever word you want to use?
Frank W. Heft, Jr.: Your Honor, the -- the Sentencing Commission, in 1B1.10 note 3, says that a below-guideline sentence can be based on the guidelines.
Sonia Sotomayor: So there -- the Solicitor General is right; there really isn't any situation that you're claiming is not based on?
Frank W. Heft, Jr.: Oh -- oh, no, Your Honor. There are -- there are C pleas.
Sonia Sotomayor: Give me the examples.
Frank W. Heft, Jr.: All right. Well, first of all, we've cited cases in our brief where circuit courts have determined that a C plea was not based on the guidelines. But let me give you another example. Let's just assume the guideline range is something like 151 to 188 months, and then -- but the parties agree to a sentence of 60 months, and they do that for several reasons. First of all, maybe the defendant is elderly. Maybe the defendant has serious medical conditions. Maybe the defendant has -- was sexually abused as a child. If those are the factors, if that's the reason why the defendant got that -- received that 60-month sentence, that sentence is not based on the guideline range.
Samuel A. Alito, Jr.: Well, wouldn't the guidelines, even in that situation, provide the starting point for analysis? Isn't the district court obligated, and isn't the -- doesn't the presentence report have to go through the guidelines calculation before the sentence is imposed? So you start out with the -- the guideline sentence of whatever the figure was that you mentioned, and then you go from there, and maybe you depart downward.
Frank W. Heft, Jr.: That -- that's true. The -- the guidelines would be the starting point of any negotiation, but--
Samuel A. Alito, Jr.: So why wouldn't that be based on the guidelines? Just because there's such a big downward departure?
Frank W. Heft, Jr.: --It -- Your Honor, it would not be based on the guidelines if those other factors were the motivating reason for the imposition of the sentence.
Stephen G. Breyer: Sorry, I don't understand that. Don't the guidelines provide for departures?
Frank W. Heft, Jr.: They do, Your Honor.
Stephen G. Breyer: Well -- and aren't you giving a guideline sentence, if you give your reasons as is required by the Sentencing Commission in 6B1.2 and you say -- the judge says, I think this is a special case and, therefore, I am giving a lower sentence? Just as he's required to do under the guidelines in order to accept a C type agreement.
Frank W. Heft, Jr.: If the parties can show that the sentence is tied to the guidelines.
Stephen G. Breyer: Well, how could it not be? Wouldn't the judge have to say it's not tied to the guidelines, because I am varying and I no longer wish to apply the guideline? If he doesn't say that, isn't he applying the guideline?
Frank W. Heft, Jr.: In that instance, he would be -- he would be applying it.
Stephen G. Breyer: Whether he gives the specific robbery 3-point whatever it is, 17 months, or whether he says, I have a special case and I depart under section 5 of the guidelines. Both of those are guideline sentences, aren't they?
Frank W. Heft, Jr.: If the -- if the judge were to take -- were to actually apply those guidelines and say, based on that guideline, I am going to depart, that sentence is based on the guidelines.
Sonia Sotomayor: So from what base does a judge depart downward? From the crack cocaine range or from the downward departure range?
Frank W. Heft, Jr.: I think it would depend on the nature of the agreement, Your Honor. It may very well depend on -- the judge may depart from the crack cocaine.
Sonia Sotomayor: So aren't you just asking us to permit district court judges to make up their own C agreement, to decide what the parties would have done in the absence of a higher range? And don't we fall prey to sort of just asking district court judges to create their own agreements?
Frank W. Heft, Jr.: No -- no, Your Honor. I don't believe that's -- that's not what we are asking the Court to do at all.
Ruth Bader Ginsburg: Mr. Heft, are you relying on -- this was -- this is a plea agreement that said, specifically, defendant agrees to have his sentence determined pursuant to the guidelines, and then the judge says that he was adopting the probation report and the application of the guidelines as set out therein, so both the -- the defendant says, I agreed to a determination pursuant to the guidelines, and the judge says, I'm going to apply the guidelines in giving you your sentence. So the hypotheticals we're talking about are quite far afield from where you have a specific statement by the defendant and the sentencing judge that the guidelines are being applied.
Frank W. Heft, Jr.: That is correct, Your Honor, and that's why we've asked the Court not to take a categorical approach to this issue, but to take either a case-by-case approach or a record-based analysis, to allow the district judge to determine, as Justice Ginsburg pointed out, what our -- you know, what is the--
Elena Kagan: Mr. Heft, would you require those kinds of statements in the agreement or in the colloquy in order to satisfy the standard? Suppose those statements just didn't exist.
Frank W. Heft, Jr.: --That's certainly problematic, Justice Kagan. If those -- if there was nothing in that plea agreement to tie the sentence to the -- the sentence -- the agreed sentence to the guidelines, that certainly would be problematic. But that doesn't resolve the issue one way or the other, because the judge would have to consider the presentence report to see if there's a connection or correlation between the agreed sentence and the guidelines, and also the judge could look at the guilty plea colloquy and sentencing transcript to see if the attorneys actually expressed their intent about where this sentence came from.
Elena Kagan: Mr. Heft, that seems very complicated. You have to look at everything and you're not giving us a lot of guidance as to what you do when you -- when you see these things. I mean, this sort of case-by-case, all-things-considered approach just seems as though you're going to get a lot of inconsistent decisions.
Frank W. Heft, Jr.: Respectfully, Your Honor, I disagree. I think this is what district judges do all the time, not just in the context of a C plea, but a B plea as well. They have to look at the nature of the plea agreement. They have to look at the PSR. They have to look at the sentencing transcript to -- to determine whether or not the defendant is -- is eligible for that sentence reduction. So judges are doing this routinely. They're doing this--
Samuel A. Alito, Jr.: Well, in every case, they have to go through the guidelines calculation, and the parties have the opportunity to object to the calculation, right?
Frank W. Heft, Jr.: --Yes, Your Honor.
Samuel A. Alito, Jr.: So what does paragraph 12 of the plea agreement contribute here, other than with respect to the fine and things besides the sentence that we're talking about? It doesn't seem to me to add anything substantively.
Frank W. Heft, Jr.: I -- well, Your Honor, I think it does, Justice Alito. I think it does add -- it adds substance, and it adds meaning to that plea agreement because in paragraph 11 where the parties very meticulously go through the offense level, tie that to the guidelines, and then -- then they state in paragraph 12, the -- the defendant agrees to be sentenced pursuant to the -- to the guidelines. That's very clear that the review in the guideline calculation is what the sentence is based on. And--
Antonin Scalia: Can a -- can a sentencing judge be found to have abused his or her discretion in approving a plea -- a C plea agreement which provides for less than the minimum guideline sentence and gives no -- no particular reason for that? Would that be appealed as an invalid sentence?
Frank W. Heft, Jr.: --Well, Your Honor, under -- under section 3742, the government could -- could appeal an incorrect application of the guidelines if that's what Your Honor is referring to.
Antonin Scalia: Well--
Ruth Bader Ginsburg: But now you're talking about a plea agreement, which the government has consented to whatever this agreement is and whether -- whether -- sometimes a plea agreement will say okay, if you take a plea, we'll drop certain charges or we'll charge a small amount -- value of the drug. Was there any of that in -- in this plea?
Frank W. Heft, Jr.: No, Your Honor. Mr. Freeman pleaded guilty to all charges in the indictment. The parties stipulated the amount of -- of drugs that were found on his person when he was arrested. So there were no dismissed charges, no amended charges in this plea agreement.
Antonin Scalia: --Let -- let me ask my question a different way. In deciding whether to approve the plea agreement, doesn't the judge have to consider whether it is an application of the guidelines, whether it is wildly inconsistent with the guidelines, whether it does not take into account valid reasons for departure from the guidelines?
Frank W. Heft, Jr.: Yes. The judge would have to consider the guidelines. Right.
Antonin Scalia: Then, if that's the case, then every plea agreement is based on the guidelines, every single one, because the judge always has to consider how do the guidelines apply to this plea agreement.
Frank W. Heft, Jr.: Well, Justice Scalia, consideration of the guidelines alone is not enough to determine whether or not that sentence is actually based on them.
Stephen G. Breyer: I don't understand why you resist that. I mean, that's precisely what the guidelines say. The only ones that aren't guideline sentences are -- are dismissal charges, where it's an agreement to dismiss. But a type B, type C -- the guidelines themselves say that the judge, here's what you do. Judge, you look and see if the guidelines sentence is there. Is it a guideline sentence? If it is, you can approve it. If it isn't, you can't. I mean, that's my reading of what it says. So -- so why do you resist that conclusion?
Frank W. Heft, Jr.: Well, Your Honor--
Stephen G. Breyer: And, of course, the judge now could depart from the guidelines -- I mean, "vary", whatever that word -- technical word, is -- "vary". He can say, I'm not going to apply the guidelines at all. But if he is going to apply the guidelines, isn't that what they tell him to do? I've always thought that. You may tell me I'm mistaken.
Frank W. Heft, Jr.: --They -- they do; obviously they do consider the guidelines, but then the other question is whether or not the sentence is based on those guidelines--
Stephen G. Breyer: Well, how could it not be, since the judge has no power if he is to apply the guideline--
Frank W. Heft, Jr.: --Well--
Stephen G. Breyer: --to accept any agreement other than agreement that corresponds with the guideline? That's what it says. It says the court should accept a recommended sentence or a C -- the specific sentence -- only if the court is satisfied either that it is within the applicable guideline range or if it's based on a departure under the guidelines. That seems to me what it says. Isn't that what it says?
Frank W. Heft, Jr.: --That is what it says, Your Honor, but--
Stephen G. Breyer: Okay. Then if that's so, every sentence is -- you're going to say no?
Frank W. Heft, Jr.: --No.
Stephen G. Breyer: I mean, I thought that was helping you, but if you want to say no, go say no and explain why that is. [Laughter]
Frank W. Heft, Jr.: Your Honor, to go back to the point that Justice Sotomayor made--
Stephen G. Breyer: Yes.
Frank W. Heft, Jr.: --with the hypotheticals, there still can be C pleas that are not based on the guidelines.
Stephen G. Breyer: How?
Frank W. Heft, Jr.: Well, the example--
Stephen G. Breyer: Give me an example.
Frank W. Heft, Jr.: --Well, the example that I gave -- I gave previously.
Stephen G. Breyer: What?
Frank W. Heft, Jr.: There's a guideline range.
Stephen G. Breyer: Yes.
Frank W. Heft, Jr.: But the judge bases his decision, his or her decision, solely on other -- factors other than the guidelines. As I mentioned earlier--
Stephen G. Breyer: Are we supposed to psychoanalyze the judge? The judge says on his writing, checks the box: This is a guideline sentence. It is robbery. It is precisely within the robbery range. But I -- I am going to give it the low end of the range because I believe that the -- he has a lovely mother and family and so forth. Okay? You're saying that isn't based on the guideline. No? Okay. Is that the point?
Frank W. Heft, Jr.: --Well, it depends what the judge does at sentencing, Your Honor.
Stephen G. Breyer: What he does is he applies the guideline sentence. He has to do that. Now, within that range, he has applied the guideline sentence, he got the information. He says, I am satisfied it applies -- done. Now are we supposed to look further and say what his true reason is? Is that what you're saying?
Frank W. Heft, Jr.: It would -- Your Honor, I would submit it would depend on the nature of the -- the plea agreement, whether or not that sentence is -- is actually based -- going to be based on the guidelines.
Elena Kagan: Well, I suppose--
Antonin Scalia: Incidentally, and it sort of bears upon this discussion, are the guidelines mandatory when they are applied in approving a plea agreement? In other words, does Booker/Fanfan not apply to the application of the guidelines when a judge is -- is approving a plea agreement? Do you think the guidelines are mandatory in that situation?
Frank W. Heft, Jr.: No, Your Honor. They're--
Stephen G. Breyer: You were -- you were just at the very point when we decided Booker, is that right? It was -- your -- your sentencing took place in July 2005 and we came out with Booker in--
Frank W. Heft, Jr.: --I believe it was March of 2005.
Stephen G. Breyer: --All right. So it's quite possible the judge wasn't totally -- but I mean -- I agree; it's much more complicated after Booker. I don't know how to treat yours.
Frank W. Heft, Jr.: That's true.
Stephen G. Breyer: It's on the cusp.
Samuel A. Alito, Jr.: What if there had been evidence here of that? What if the government in connection with this plea agreement had dropped counts or had decided not to seek a superseding indictment adding counts? Would -- would the situation be the same?
Frank W. Heft, Jr.: Yes. Your Honor, I think it would; it would be the same. Because the court would have to look at, again, what the terms of the plea -- plea agreement was and what the parties determined. Now, the -- I think what I should emphasize is that we're only talking about eligibility here; and if -- if those -- if those concessions that the government has made would -- would perhaps result or at least in the government's view, result in an unjustified windfall, that -- that's -- that is not a critical factor in determining eligibility. That's not factor at all in determining eligibility. That could come into play after eligibility is determined and the judge -- district judge determines whether or how much.
Samuel A. Alito, Jr.: How would that possibly work? Let's say the government drops count -- agrees to a plea on count 1 with a guideline range of 60 to 65 months; drops count 2, which would have increased the guideline range to, let's say, 100 to 105 months; and says this is our deal, you know, you agree to -- to 65 months and we're going to drop count 2. All right?
Frank W. Heft, Jr.: Yes.
Samuel A. Alito, Jr.: And then the guideline for that is lowered, and you say in determining whether the defendant is eligible, what -- the government would then have to have a mini-trial and prove that the -- prove count 2?
Frank W. Heft, Jr.: No. It would--
Samuel A. Alito, Jr.: How would it work?
Frank W. Heft, Jr.: --It would work -- assuming that the defendant is eligible, the case is remanded to district court.
Samuel A. Alito, Jr.: Right.
Frank W. Heft, Jr.: As in this case, there would be a recalculation of the guidelines to determine if the--
Samuel A. Alito, Jr.: Right. MR. HEFT -- guideline range would be reduced, and then, as the district judge in this case said, if you have objections, let me know; file your objections. That's where the government could file-- --Yes. The government files its objections and says, well, we dropped count 2. And the defendant says, well, I wasn't guilty of count 2.
Frank W. Heft, Jr.: --That's -- that's up to the district judge's discretion, whether or not to -- to reduce that -- that amended guideline sentence.
Samuel A. Alito, Jr.: How is the judge going to decide that?
Frank W. Heft, Jr.: Well, the -- I think that's something that district judges decide every day, whether or not -- because the judge presumably has -- has been -- is familiar with the case, with the presentence report, with the terms of the original plea agreement, with the facts of the case; and the -- and the judge can make an assessment based on those factors whether or not the sentence reduction should be granted and, if so, how much of a reduction should be granted.
Antonin Scalia: But Justice Alito's hypothetical points out -- points up the fact that even though the agreement may mention the guidelines, it may do that just for the purpose of enabling the -- the judge more readily to approve the agreement, but there's no reason to believe that the government is interested in the guidelines, as opposed to being interested in putting this person away for a certain amount of time, especially when another count is dropped and the government says, well, I'll -- you know, I'll drop it if -- if this guy goes to prison for 2 years. But if the government had known he's not going for 2 years, he is only going for a year and a half or a year, the agreement might not have been concluded. So it really -- I mean, it doesn't further the intent of both parties, at least, to say when the guideline is changed, the agreement changes.
Frank W. Heft, Jr.: Well -- well, the agreement certainly has been -- was modified by the amended guideline, and that's where the district judge has to exercise his or her discretion whether or not to grant that reduction.
Ruth Bader Ginsburg: But in that event, the sweet part would be open to reconsideration too. I mean, you can't say, I want the good part, the lowered guideline, but I also want to keep that certain counts are dropped and that a certain quantity of drugs was agreed upon. You would have to reopen the whole thing.
Frank W. Heft, Jr.: No, Your -- no, Justice Ginsburg. I don't think you'd have to reopen the case. Again, I think the judge could look at the presentence report, the government could make its objections saying here's why we gave that particular sentence, and the judge could exercise his or her discretion to say whether or not the defendant is going to get that sentence reduction.
John G. Roberts, Jr.: Thank you, counsel.
Frank W. Heft, Jr.: Thank you, Your Honor.
John G. Roberts, Jr.: Mr. Gannon.
Curtis E. Gannon: Mr. Chief Justice, and may it please the Court: When a criminal defendant and the government agree to a specific sentence and that agreement is binding on the sentencing judge by virtue of Rule 11(c)(1)(C), the resulting sentence is based on the parties' agreement. It is not based on the advisory guideline range that would otherwise have been used at sentencing, even if the sentence corresponds to that range.
Sonia Sotomayor: Counsel--
Anthony M. Kennedy: Well, here the agreement at various points says that the parties agree on the calculation of the guideline. I think it's paragraph 11 and 12. They say that the sentence is according to the guidelines. So there's reference to the guidelines throughout, and the court made the guidelines calculation.
Curtis E. Gannon: The court certainly made the--
Anthony M. Kennedy: So it seems to me fair under the statute to say that it is based on the guidelines.
Curtis E. Gannon: --Well, the question--
Anthony M. Kennedy: And there are other provisions in the agreement you might argue about.
Curtis E. Gannon: --Well, I think the statutory question here isn't just whether the sentence is based on the guidelines. The language under 3582(c)(2) is whether the defendant was sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Commission. So it's not just whether the guidelines played a role; it's whether this particular sentencing range was what was driving the sentence. And, Justice Kennedy, you point out pages 25, 26 of the plea agreement in the Joint Appendix. And I think it's instructive that the agreement deals differently with the fine component, as Justice Alito referred to earlier, than it does with the term of imprisonment. At the bottom of page 25, the agreement says that a fine will be at the lowest end of the applicable guideline range. And then if you go over to pages 27 and 28 in paragraph 11, that's where the guideline calculation occurs. And notice it is an incomplete calculation. The parties don't actually come up with a final calculation because they don't come up with a criminal history. They don't--
Anthony M. Kennedy: Well, they do come up with a recommendation, which is three levels below the otherwise applicable guideline.
Curtis E. Gannon: --They -- they come up with a recommendation for purposes of determining the offense level, the base offense level of 22 and then reduced to 19.
Anthony M. Kennedy: Yes, but that's all based on the guidelines.
Curtis E. Gannon: Well, that aspect is based on the guidelines, but then the guideline application computation is incomplete because the next paragraph, paragraph B, says we aren't agreed on what the criminal history is going to be. And to the next paragraph, paragraph C specifically says that the foregoing statements of applicability of sections of the sentencing guidelines are not binding upon the court. The defendant understands the court will independently calculate the guidelines at sentencing; that is--
Anthony M. Kennedy: But that doesn't mean that the court can't base its conclusion on his independent -- on its independent judgment on the guideline.
Curtis E. Gannon: --Well, I think what I'm trying to say, Justice Kennedy, is the agreement expressly contemplates that the judge needs to determine the applicable guideline range for purposes of determining what the fine will be. And that's different from the way the plea agreement deals with the term of imprisonment because if we go back to page 26, it does not tie the -- the term of imprisonment to a guideline range. That's completely different from the way it deals with a fine. It specifically says there's an agreement that the sentence of 106 months of incarceration is the appropriate amount. And so that happens to have been at the bottom end of the guideline range that would have been applicable if the parties' agreement -- if the parties' prediction about the likely criminal history calculation turned out to be the right one.
Anthony M. Kennedy: Well, you're talking about what "based on" means, and that's an important part of your argument. If I could just, while I've got you, jump to this question of what happens on remand if you lose the case. On remand, I take it, you're not bound by the agreement because of the last--
Curtis E. Gannon: Well, I--
Anthony M. Kennedy: --the last of section 24 says the defendant argues for any sentence other than the one to which he has agreed to and breached the agreement.
Curtis E. Gannon: --Well, at that point the remedy for the breach would be that the United States is relieved of its obligations under the agreement.
Anthony M. Kennedy: Would you -- what would that mean?
Curtis E. Gannon: Well, I think that's -- that's part of the problem in a case like this where there was a specific sentence agreement, that it's impossible for government to get back the things that it gave up at the time, that were agreed to under--
Anthony M. Kennedy: Well, it's got guilty pleas on all of the counts. We know that.
Curtis E. Gannon: --Well, but it also--
Anthony M. Kennedy: In your position, in your view, would the government be able to take the position that the guilty pleas stay in place, but it now wants maximum?
Curtis E. Gannon: --Well, I think that -- that would--
Anthony M. Kennedy: Maximum guidelines.
Curtis E. Gannon: --I don't think that the 3582(c)(2) contemplates that the sentence will be increased. The only thing, as the court--
Anthony M. Kennedy: Yes, except that the agreement does. The agreement relieves you.
Curtis E. Gannon: --Well, I think that's if--
Anthony M. Kennedy: Of any obligation. I see what you mean.
Curtis E. Gannon: --Now that the sentence has become final, I think 3582(c)(2) has opened a narrow window for ways in which the otherwise final sentence could be modified. It only contemplates that the judge will have the discretion to reduce the sentence if it is, first, a sentence that was based on the relevant guideline range that's subsequently been amended and made retroactively applicable. But also, second, then the judge would need to comply with a policy statement that appears in 1B1.10 of the--
Anthony M. Kennedy: So you say the judgment's final, so the fact that the plea -- that there's a breach of the plea agreement is irrelevant at this point?
Curtis E. Gannon: --Well, I think that the remedy that the agreement contemplates of the government being released from its other obligations in the plea doesn't really leave us much of an option at this point. We're not going to be able to go back and argue that he should have been sentenced at the upper end of the range that we're talking about. We're not going to be arguing that the criminal history should have been a higher or that the criminal history substantially underrepresented the seriousness of his history where he had 10 years of offenses preceding this one. There may have even been a potential career adjustment that -- that went by the boards. That's mentioned on page 162 of the Joint Appendix.
Antonin Scalia: Mr. Gannon, you assert that the -- within the language of the statutory provision, the sentence here is not based on the guidelines, but it's based on the agreement, and the agreement arguably is based on the guidelines.
Curtis E. Gannon: I think the agreement is arguably -- I mean, I don't think the face of this agreement proves that it's based on the guidelines, but I -- it is obvious that the parties negotiated in the shadow of the guidelines.
Antonin Scalia: If -- if you take that position, that "based on" means determined by absolutely, then I don't think any sentence would ever be based on the guidelines after Booker/Fanfan.
Curtis E. Gannon: Well--
Antonin Scalia: The guidelines form part of the consideration of the judge, but the judge's decision is not based on the guidelines. Just as here, the -- the agreement -- the guidelines form part of what produces the agreement, so also they form part of what produces the judge's decision. And it seems to me, if that's going to be enough for the judge's determination, it ought to be the same for the agreement.
Curtis E. Gannon: --Well, I think it's not clear that the judge needed to be considering the guidelines in the course of deciding whether to accept the plea agreement. And Justice Breyer earlier had a colloquy with Mr. Heft about guideline 6B1.2, which, even before Booker, was a nonbinding policy statement. And so, to be sure, when 3582 was enacted, the guidelines were binding, and, therefore, it -- they would have been expected to have played a larger role in most sentences.
Antonin Scalia: No, but let's -- let's assume there is no plea agreement.
Curtis E. Gannon: Yes. And--
Antonin Scalia: You -- you have a judge who sentences post-Booker/Fanfan. Now, his sentence is not based on the guidelines any more--
Curtis E. Gannon: --I think--
Antonin Scalia: --any more than this agreement is based on the guidelines. The guidelines are one of the things that he must take into account and does take into account in determining the sentence. Now, if that is enough for purposes of determining whether this statute -- statutory provision applies to a sentence imposed directly by a judge, it seems to me the same analysis ought to apply to a sentence imposed through a plea agreement.
Curtis E. Gannon: --Well, I think that there's a different purpose that's being served by asking the 3582(c)(2) inquiry, which is asking the judge to -- to go back and redo the aspects of his analysis that would have been different had the -- the relevant guideline range been changed at the time he engaged in his analysis, and--
Antonin Scalia: So you -- you acknowledge that "based on" covers post-Booker/Fanfan sentences by the judge?
Curtis E. Gannon: --Outside of the context of a specific C--
Antonin Scalia: Yes. MR. GANNON -- a specific sentence rendered under type C that -- on page 28 of our brief, we acknowledge that in most contexts, it's -- it's open to -- to contend that the sentence was based on the relevant guidelines-- --Even though -- even though the guidelines are just one of the things that have to be taken into account?
Curtis E. Gannon: --It is -- the test that we state in the subheading of that section of our brief is whether they're of legal consequence in the determination.
Elena Kagan: Defining Mr. Gannon--
Curtis E. Gannon: Well, our -- the.
Elena Kagan: --It's not a binding legal consequence post-Booker.
Curtis E. Gannon: The test that we have for -- the overarching test is whether it is of legal consequence, and the phrase that you're talking about on page 27 of our brief, Justice Kagan, is when we know that there is something that was of binding legal consequence and was controlling, we know that that is the thing that the sentence was based on.
Elena Kagan: So that's not your test. What is your test instead?
Curtis E. Gannon: Well, that is -- in -- when something literally is controlling the analysis -- the parties' agreement here binds the district judge -- we know that that is what the sentence is based on. There isn't any -- any--
Elena Kagan: Yes, but is -- is there some other instances in which you would say that something is based on, even though it's not of binding legal consequence?
Curtis E. Gannon: --Well, it would be of legal consequence even if it weren't controlling. This Court has -- has made clear even after Booker that under 3553(a), courts still need to go through the relevant guidelines analysis. They apply the guidelines. It may turn out that the sentence turns out not to be based on the relevant guideline range because the judge--
Elena Kagan: Well, then I'm back with Justice Scalia, because if it's only of legal consequence, not of binding legal consequence, if it's something that somebody considers rather than something that is determinative, it seems to me the same in the non-plea context and in the plea context.
Curtis E. Gannon: --Well, I don't think that's true in the context of a specific sentence agreement under a type C plea because of -- and this is reinforced by the language in the policy statement, 1B1.10, which the Court last term in Dillon held is binding and controls what needs to be done during the sentence reduction proceeding. And it specifically refers to the guideline provisions that were applied when the defendant was sentenced. And that's something that happens in the process of the 3553(a) factors applicability.
Samuel A. Alito, Jr.: Why doesn't this line of questioning lead logically to the conclusion that no sentence after Booker and Fanfan is based on the guidelines? Because, today, a sentencing judge can engage in the same analysis that the Sentencing Commission may engage in when it decides that a guideline range should be lowered and that that should be retroactive. The judge can do that at the time when the sentence is imposed. We roll the clock back on the crack -- on the crack cocaine guidelines. Under the authority that judges now have under Booker and Fanfan, a judge could say, well, I see that this is the crack cocaine guideline right now, but I think it is too harsh for all the reasons that were later persuasive in lowering the range, and therefore, I am sentencing below the range. So it seems to lead logically to the conclusion that 3582 is yet another provision of the Sentencing Reform Act that was tied to the old pre-Booker mandatory sentencing regime, and now that that is out the window with Booker and Fanfan, the whole -- the whole mechanism is -- is superfluous.
Curtis E. Gannon: Well, I -- I understand the point that the analysis has certainly changed since Booker, but it is still the case that the defendant can appeal an error in application of the guidelines after Booker. If the judge were to -- to misapply the guidelines before he engages in the analysis that you're talking about, Justice Alito, that would be grounds for an appeal. In retrospect, if the judge is asked whether the sentence was based on the guidelines, he -- he may say that particular sentence wasn't, because I ended up disregarding the guidelines under 3553(a). I did the analysis. I was exercising my sentencing discretion the first time around under 3553(a), and the guidelines ended up not being the basis of the sentence. And that is not something that is an option in a type C plea agreement, because there, the defendant cannot appeal when the judge agrees to the sentences in the agreement.
Samuel A. Alito, Jr.: Well, I find it hard to -- I find it hard to understand the analysis that would require courts to decide whether some (c)(1)(C) plea agreements are based on the guidelines and some are not based on the guidelines. Maybe they are all based on the guidelines, and then the obligation would be on the government to put a provision in a standard plea agreement requiring the defendant to give up the opportunity to move for a sentence reduction if the guideline range is subsequently lowered. Or maybe none of them are based on the guidelines because -- for the reasons I just mentioned: This whole mechanism is now needed no longer as a result of Booker and Fanfan.
Curtis E. Gannon: Well, I think in the context of an actual specific sentence plea agreement, that is the one that we think is off the table, because that is what is going to control the sentence. And some type C plea agreements affirmatively contemplate application of the guidelines, as this one does with respect to the fine. And so when you have a plea agreement that tells the district judge, you are bound to apply a guideline provision once you've accepted this agreement, we haven't taken the position that the resulting sentence there is not based on the relevant guideline range, but that is not what is going on here.
Stephen G. Breyer: All right. You want us to decide this case. I completely agree with what Justice Alito is saying, Justice Scalia, that maybe the world after Booker is different. And I have not thought that one through. I am thinking this case is a pre-Booker case. It is not real. I am thinking it is on the cusp, so how am I to treat this case? If it is a case where the guidelines apply, if it is such a case -- and I think maybe everyone here has assumed throughout that it was. Am I right about that? Were you saying this is a case where the guidelines do not apply, where they are not binding? I mean, where pre-Booker doesn't count?
Curtis E. Gannon: Well, I -- I--
Stephen G. Breyer: How do you want us to take this, pre-Booker or post-Booker?
Curtis E. Gannon: --Well, I think that the answer is, it's different. But this is a -- this is a post-Booker case.
Stephen G. Breyer: I know, you think the -- I think it is completely different regardless. So let's avoid that controversy at the moment, and you tell me whether you want me to take it pre-Booker or post-Booker.
Curtis E. Gannon: The sentencing proceeding occurred six months--
Stephen G. Breyer: I want you--
Curtis E. Gannon: --after the Booker opinion came out.
Stephen G. Breyer: --All right. So you want to -- you want to set aside this post-Booker?
Curtis E. Gannon: Yes, but.
Stephen G. Breyer: Then perhaps we should have the pre-argument. If we are taking this pre-Booker, I would have thought it is QED.
Curtis E. Gannon: I disagree, Justice Breyer.
Stephen G. Breyer: I mean, imagine that the that the Sentencing Commission -- imagine. It is not true, but imagine that the Sentencing Commission had written the following words: "Plea bargaining over sentences is above. " as many argued they should. They write those words. Then they write the next word, "exception". There is an exception, however; you are permitted to plea bargain about a sentence insofar as you argue about the range, where, within the range, it applies. And of course when you apply the guidelines, as when you always apply the guidelines, here or elsewhere, departure is an unusual case. Now, suppose those were the words that the Commission had written. Could -- how -- is it possible under those circumstances you would still be arguing this sentence under the -- plea bargaining abolished except over where within the range -- is it possible you would be arguing that this is not based on the guidelines?
Curtis E. Gannon: Well, I think that had the Sentencing Commission adopted such a position, and if it were binding on the sentencing judge--
Stephen G. Breyer: Oh, it is, because of (a)(4). It used to be--
Curtis E. Gannon: --Which is -- well, because--
Stephen G. Breyer: --because it says in the sentencing guidelines, Judge, you will apply the guideline, unless you find a circumstance the Commission did not adequately take into account and in respect to that, you may and must consult policy statements, but guidelines and other materials. That is what it says. Okay? So take I am right on that. Assume I am right. You can disagree with me, and I will look into it.
Curtis E. Gannon: --Before Booker was decided, it -- several of the circuits had already concluded that a judge could accept a type C plea agreement that had a sentence outside the range, and that that wasn't a guidelines-based sentence.
Stephen G. Breyer: I want an answer to my hypothetical, because I am trying to figure out how to think about it, and you will help me if you answer my hypothetical.
Curtis E. Gannon: I think in those circumstances, the Commission effectively would have repealed type C plea agreements, because--
Stephen G. Breyer: Yes, that's right. That's what they wanted to do. Okay? Now, that is correct. But you can still have them.
Curtis E. Gannon: --In your hypothetical, that is what they wanted to do.
Stephen G. Breyer: You could still have them, but they allow them only for the purpose of where within the range the sentence will lie. Okay?
Curtis E. Gannon: In those circumstances I think that it would be fair to say that the sentence was based on the guideline range--
Stephen G. Breyer: Fine.
Curtis E. Gannon: --because the agreement hadn't given any reason for the judge to -- to leave the guidelines.
Stephen G. Breyer: Correct. Now I would like -- because if they wrote those words, C agreements are abolished, but for where within the range -- okay? You agree it would be based on the guidelines. Now what I'd like you to do is to look at section 6B, whatever that is.
Curtis E. Gannon: 6B1.2--
Stephen G. Breyer: Exactly.
Curtis E. Gannon: --is on the last page of the--
Stephen G. Breyer: You tell me how this differs from what I just said.
Curtis E. Gannon: --Well, I think it differs in two key ways. First of all--
Antonin Scalia: You were about to tell us where it is?
Curtis E. Gannon: --It is on the last page of the government's appendix which is the 16A of our brief. And I think that it differs in two regards. First of all, it -- it was a policy statement that even before Booker was not binding on the sentencing judge. The Commission determined that -- that this particular guideline was not binding on judges the same way other provisions in the guidelines where.
Elena Kagan: But I thought you just told me that -- binding -- was not a part of the test anymore.
Curtis E. Gannon: Well, I -- but the question is whether the judge even had to apply it at all, and the judge did not need to. And -- the second point that I was going to get to is that, unlike the colloquy that Justice Breyer had with Mr. Heft earlier on, it doesn't say the court may accept the agreement only if the court is satisfied that it is within the guideline range. It gives the court permission to accept the agreement. This is a policy statement that gives the court permission to accept the agreement when it is within the guideline range or when there is a justifiable departure, but it does not then say that everything else is prohibited.
Stephen G. Breyer: It's only if. The words there are "only if". It said should accept the recommended sentence or a plea agreement requiring imposition of a specific sentence only if the court is satisfied either that such sentence is appropriate within the guidelines, or departure.
Antonin Scalia: You're reading a different--
Stephen G. Breyer: I am? I'm reading 6B1.3, I am reading commentary on the policy statement.
Curtis E. Gannon: This is for 6B1.3?
Stephen G. Breyer: Yes. I am reading the commentary on the--
Antonin Scalia: --He is reading the commentary.
Stephen G. Breyer: --Yes.
Curtis E. Gannon: I've been looking at a text of 6B1.2 itself, which leaves out the word only. But I think that here, even if you go back to the pre-Booker practice, I think it was clear that judges were able to depart from the guidelines to accept type C plea agreements that imposed the sentence that was outside the guideline range, and they -- and it wasn't considered an abuse of discretion.
Stephen G. Breyer: I think you're right. You see that is why I am having such a hard time. I am having a hard time because first I put myself back in the Commission days, and there the Commission did want to abolish C.
Curtis E. Gannon: Well--
Stephen G. Breyer: And then that is what it intended to do and that is what it said it did, but for what we are talking about. Now, you first raised the question of did they have the authority to do that and I agree with you that that is a legitimate question. I made you assume it away, but I think it is a legitimate question. Now we have the additional question of how Booker/Fanfan changes that and for what and when. Do you see why I am puzzled and why I was asking you rather harshly to start with my hypothetical?
Curtis E. Gannon: --I -- I do think that -- that this gets puzzling as -- as you get further down, but I think that this is the simplest case. It is a narrow category of cases. We are dealing with a subset of one particular type of plea agreement. It is distinct from every other aspect of Federal sentencing. It's unlike what happens when somebody goes to trial; in those circumstances the judge clearly has the discretion to apply the sentencing guidelines at the time of sentencing. It is different from regular type B plea agreements where the parties have come up with an agreement and the judge notwithstanding the agreement is still free to determine the sentence that he or she wants to determine. This is a unique -- this uniquely gives a high level of certainty to the parties about the specific sentence that they negotiated.
Sonia Sotomayor: --I don't -- I am not in disagreement with the point you're making, but I think that going back to what had bothered Justice Alito and Justice Scalia on now that the guidelines are not mandatory, is any sentence even under C really based on the agreement? Because even a C agreement has to be approved by the judge. The legal consequence is not the agreement. That doesn't sentence the defendant. It is the judge's decision as to what the sentence should be which he denotes in accepting the agreement that binds. And I think -- I may be making Justice Breyer's argument -- that if under the policy statement and it's clear what the judge did here, if the judge feels bound by the agreement or otherwise to calculate a sentence in the guidelines and impose one in the guidelines, how can you say that the legal effect is not the guideline sentence?
Curtis E. Gannon: Well, because I think that the relevant question for purposes of both 3582(c)(2) and the policy statements that the court said in Dillon controls the -- the process of implementing 3582(c)(2), is what did the judge do at the time of imposing the sentence? And so although it is true that the judge generally will consider how the type C specific sentence that the parties have agreed upon corresponds to a guidelines analysis at the time of deciding whether to accept the plea agreement, the relevant phrase in 1B1.10(b)1 which is -- which is on page 8A of the government's appendix is that the judge is supposed to go back and look at what -- to only make substitutions for the corresponding guideline provisions that were applied when the defendant was sentenced. And so when you have a type C plea agreement that has a specific sentence even under the terms of this agreement, the only thing that the judge considered when he decided the sentence was going to be 106 months with respect to the term of imprisonment was the binding plea agreement. That is what rule 11(c)(1)(C) required.
Sonia Sotomayor: --no. Because you're assuming that the agreement was automatically binding on the judge.
Curtis E. Gannon: It was--
Sonia Sotomayor: The judge was always capable of saying at the time of sentence I won't accept the 106. If he had calculated the guidelines and if it turned out that the guidelines called for 240 to 360, he could have said easily no, that is so far outside of the guideline range with no justification that I am not going to accept -- impose the sentence. You could withdraw your agreement and do whatever you're going to do.
Curtis E. Gannon: --And had he done that the sentencing proceeding would have proceeded differently and it may not even have right occurred then, and -- and I think because under Rule 11 if he was rejecting the plea agreement and -- and the 106 months that the parties had agreed to, he would have to give the defendant the right to withdraw the plea at that point. So the government would have been released from its obligations; the parties -- the defendant could have gone to trial. He could have -- he could have continued to plead guilty. The parties could have come up with a type plea -- B plea agreement. The parties may have asked for time to renegotiate a different type C agreement. We do not know what would have happened in those circumstances. And as you pointed out before, Justice Sotomayor, this is not about asking the judge to step into the shoes of the parties and renegotiate what the agreement would have been had the judge decided to reject it the first time around. Instead 3582(c)(2) contemplates a limited process by which the judge will reapply those provisions of the guidelines that he applied the first time around and -- and make the substitution that is now called for by the retroactively applicable change. But here because the judge didn't actually make that application at the time of sentencing, the judge did not actually have to apply the drug quantity table.
Ruth Bader Ginsburg: I am not following that argument for this reason. It seems to me if you ask what did the judge apply at the time he imposed the original sentence, well, it has got to be the guidelines, because first the agreement provides for it; then he says I am going to wait for the probation report so I can see what the calculation is, whether I agree with it; and then he gives him a sentence that is precisely within the guidelines. So if you asked me to describe what that sentence was -- of what was it, 46 to 106 days -- I say that was a guideline sentence. It was right there within the brackets that -- the guidelines. So why wasn't it a guideline sentence?
Curtis E. Gannon: Because for purposes of the term of imprisonment the judge was not actually applying the guidelines at that point. He did so for purposes of the fine. He ended up actually waiving the relevant fine, but those type C plea agreement here called for the judge to apply the guidelines with respect to the fine and did not call for the judge to apply the guidelines with respect to the term of imprisonment. He knew that it was within what the PSR had calculated as the guideline range and he concluded that that was the applicable guideline range which he needed to do for purposes of calculating the fine and other things, but it wasn't actually the basis for the sentence. The basis for the sentence was the plea agreement that he accepted, and there it was the parties' agreement. And there are all sorts of things that went into the parties' agreement that the judge does not have the wherewithal to reconsider in retrospect.
Ruth Bader Ginsburg: I thought one of the things in the plea agreement was that the -- that the judge would have the right to himself calculate the guideline range.
Curtis E. Gannon: Yes. And that specifically contemplated in Rule 11(c) and in the guidelines, that the judge may postpone acceptance of the plea agreement until after the presentence report is prepared. And the judge did do that here. So he was aware of what the PSR recommended, but once, and had he decided that he did not like the 106 month sentence and he wanted to preserve his sentencing discretion, the option at that point was to have rejected the plea agreement, at which point the parties would have been free to do different things. And among other things, the Government could then have then argued for a higher sentence within the range. Could have argued that the criminal history failed to represent the seriousness of the defendant's criminal past. Could have argued for an upward departure even, but the Defendant got the benefit of the 106 month agreement of not having the Government raise any of those other arguments at that time. And now he is asking for essentially another bite of the apple and we think that because the basis for the sentence was indeed the negotiation and the agreement between the parties, that the court of appeals decision was correct. If there are no further questions.
John G. Roberts, Jr.: Thank you, Mr. Gannon. Mr. Heft, you have three minutes remaining.
Frank W. Heft, Jr.: Thank you, Your Honor. Just a couple of points. First of all, the record here leaves no doubt that the judge based his sentence on the guidelines. The sentencing transcript specifically states that the judge and I'd like to quote this, this is at page 47 of the joint appendix and I quote, "the court will adopt the findings of the probation officer disclosed in the probation report and application of the guidelines as set out therein. " On page 48 of the joint appendix the judge says, having considered the advisory guidelines, he went on to impose that sentence. So it is quite clear that the judge and even in his statements of reasons on page 95 of the joint appendix, again reaffirmed that this sentence was based on the guidelines. Now, the other point that I'd like to make is that the Government acknowledges that it has carved out a very small exception to its argument that C pleas regarding specific sentences and sentencing ranges are not eligible for (c)(2) relief. But it seems to me that reading, taking the Government position into account, if this plea agreement had not stated 106 months, then Mr. Freeman's under the terms of this plea agreement in the Government's view and under the Government's argument of what exception exists under the C pleas for purposes of 3582, Mr. Freeman would be eligible for the relief that was granted. And we would simply urge the Court in this case to adopt a rule that does not exclude specific sentences and C pleas for eligibility in 3582. Thank you.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.