In United States v. Leonard, No. 15-22-32-cr (December 14, 2016) (Raggi, Chin, Droney), the Second Circuit vacated and remanded an order finding a defendant ineligible for a sentence reduction based on a retroactive amendment to the Sentencing Guidelines under 18 U.S.C. § 3852(c)(2).
The defendant had been sentenced to 114 months’ imprisonment for his role in distributing marijuana and laundering the proceeds from that distribution. The district court had originally identified a Guidelines range of 121-to-151 months, but then accepted the 97-to-121 month range agreed to by the defendant and the government in a plea agreement under Fed. R. Crim. P. 11(c)(1)(C). In finding the defendant ineligible for a sentencing reduction under § 3852(c)(2), the district court reasoned that while the amendment in question lowered the defendant’s Guidelines range from 121-to-151 months to 97-to-121 months, the newly applicable range matched the range in which the defendant had in fact been sentence by virtue of the parties’ plea deal. Accordingly, the district court concluded that the defendant was ineligible for a reduced sentence because the Guidelines amendment did not subsequently lower the pertinent Guidelines range.
In a thoughtful and detailed opinion, Judge Raggi vacated and remanded the district court’s decision. The panel opinion focused on the “two requirements [which] must be satisfied for a defendant to be eligible for a sentence reduction: (1) the original sentence must have been ‘based on’ the Sentencing Guidelines, and (2) the amendment must have lowered the Guidelines range ‘applicable to’ the defendant at the time of the original sentencing. Following a close examination of the plurality, concurring, and dissenting opinions in the Supreme Court’s ruling in Freeman v. United States, 564 U.S. 522 (2011), the Court held that the defendant’s 114-month sentence was “based on” the Sentencing Guidelines even though it was the product of a sentencing range proposed by the parties in an Rule 11(c)(1)(C) plea agreement. In support of this conclusion, the Second Circuit noted that the district court used the Guidelines as the “beginning point to explain the decision to deviate from it,” “began its consideration of [the defendant's] sentence by independently calculating his applicable Guidelines range,” and discussed the § 3553(a) factors.
However, the Court ruled against the defendant on the question of which Guidelines range was “applicable to” the defendant at the time of sentencing. While the defendant had argued that his initial applicable range was the 97-to-121 month range proposed by the plea agreement and accepted by the district court, the Court agreed with the government that the range “applicable to” the defendant was the 121-to-151 month range which the district court calculated prior to accepting the parties’ proffered range. The Court invoked a provision of the U.S. Sentencing Guidelines Manual which states that “the court shall determine the kinds of sentence and the guideline range as set forth in the guidelines” and that the “‘applicable guideline range’ is identified ‘before consideration of any departure . . . or variance.’” The first statement militated against using a range that had been chosen by the parties, as opposed to the court. The second, in combination with the principle that the adoption of a lower sentence range submitted to the court in a Rule 11(c)(1)(C) setting is akin to a departure or variance, reinforced the conclusion that the Guidelines range “applicable to” the defendant was the initial range calculated by the district court.
As the 121-to-151 month range had been subsequently lowered by a Guidelines amendment to 97-to-121 months, and as the defendant’s 114-month sentence fell within that lowered range, the government pressed the Court to hold that the defendant was ineligible for a sentencing reduction. However, the Second Circuit disagreed. The Court noted that the district court still retained the discretion to reduce the defendant’s sentence to between 97 and 113 months, and vacated and remanded to allow the district court to determine whether to so exercise its discretion.
The main thrust of Leonard is the Court’s thoughtful parsing of the conceptual distinction between the “based on” and “applicable to” requirements of the § 3852(c)(2) analysis. Yet there is also a deeper lesson for practitioners appearing before the Second Circuit to keep in mind. Towards the end of the opinion, Judge Raggi noted that a panel of the Second Circuit had earlier this year essentially come out the other way on similar facts. See United States v. McCall, 649 F. App’x 114 (2d Cir. 2016). Judge Raggi distinguished the circumstances and reasoning of that prior opinion, but she also noted that “McCall is a summary order and, therefore, does not preclude this panel from further considering the issues there addressed.” This statement should remind advocates of the limited precedential value of summary orders and the ease with which they can be distinguished or even disregarded in subsequent opinions. This fact also reinforces the institutional importance of a given panel’s decision to issue a decision in the form of either a precedential opinion or a summary order. Had the McCall panel decided to write a short per curiam instead of a summary order, the outcome of this appeal would likely have been different than it turned out to be.