FAMM summary of the decision
In Freeman v. United States, No. 09-10245 (June 23, 2011), the Supreme Court ruled that a defendant who enters a “binding” plea agreement may petition the court for early release should the sentencing guideline range be reduced and the reduction made retroactive. At issue was whether a sentence imposed in a crack cocaine case under a binding plea agreement could be reduced under the 2007 crack minus two amendment.
Generally courts may not reduce a sentence, once that sentence is final. There are a few exceptions. The statute giving courts authority to reduce an already imposed guideline sentence is 18 U.S.C. § 3583(c)(2). It states that the court may reduce a prisoner’s sentence if
• that sentence was “based on” a guideline
• that guideline was later reduced and
• that guideline reduction was made “retroactive.”
Federal Rule of Criminal Procedure 11(c)(1)(C) direct sentencing courts to impose the sentence agreed on by the prosecutor and the defendant if the court accepts the plea agreement. The key issue in Freeman was whether such a sentence is “based on” the guidelines or “based on” the plea agreement. If the former, it may be revisited when the guideline is reduced and made retroactive.
Four Justices, led by Justice Anthony Kennedy, formed a “plurality” to hold that a sentence based on a binding plea agreement, even if it was not within the guideline range, is likely to be “based on” the guidelines so that judges may consider retroactivity. A judge may reopen the sentence “to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or approve the agreement.” In Freeman’s case, before the judge accepted the binding plea agreement, he calculated the guideline range and considered it when determining whether to accept the plea agreement before imposing the sentence.
As it turned out, that agreed on sentence was within the guideline range and the agreement said that Freeman “agrees to have his sentence determined pursuant to the Sentencing Guidelines.” Justice Sotomayor joined the judgment. She disagreed though with the plurality’s reasoning. She wrote that a sentence imposed under a binding plea agreement is one not based on the guidelines, but rather based on the agreement. She concurred because the ultimate sentence “expressly use[d] a Guidelines sentencing range . . . to establish the term of imprisonment.” The ultimate sentence, according to Sotomayor, does not need to fall within the guideline but the agreement must make it clear that the parties arrived at the sentence by calculating the guideline range and explicitly connecting the agreed upon sentence to that range (for example, by saying “50% of the range”).
It is unsettled which opinion controls. The Supreme Court has said that in such instances, the position taken by the concurring members who concurred on the narrowest grounds rules. But, because Justice Sotomayor’s opinion starts from a different analysis, it is unclear if it prevails. If you think that you might benefit from this outcome or have questions, we encourage you to contact your lawyer.