Is a defendant who pleads guilty under Federal Rule of Criminal Procedure 11(c)(1)(C) eligible for sentence reduction when the pertinent Sentencing Guideline range is later modified by an amendment?
In this case, the Supreme Court will determine whether Erik Hughes is eligible for a sentence reduction even though he pled guilty with a binding sentence agreement. Hughes pled guilty to drug and firearm charges and received a 180-month sentence, which, at the time, was just below the range recommended by the Sentencing Guidelines of between 188 and 235 months. Since his sentencing, the Sentencing Commission amended the Guidelines, reducing the sentencing range for Hughes’s crime to between 151 and 188 months. Hughes sought to modify his sentence under 15 U.S.C. § 3582(c)(2), which requires a sentence to be based on the Guidelines. The Eleventh Circuit denied modification based on Freeman v. United States, in which the Supreme Court held that sentences from plea deals are not based on the Guidelines, but Hughes contends that the circuit court incorrectly applied the 4-1-4 decision. Hughes also argues that he is eligible for a modification because his sentence is based on the Guidelines under a tort theory of proximate cause. The United States responds that the connection between the Guidelines, the plea agreement, and the sentencing is too tenuous. At stake are an important question of what portions of a plurality decision should bind lower courts, potential inequities regarding parties who may and may not have their sentences reduced, and a shift in power in plea negotiations.
Questions as Framed for the Court by the Parties
Whether, as a four-justice plurality in Freeman v. United States concluded, a defendant who enters into a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.
In 2013, the federal government charged Erik Hughes with four counts of drug and firearm offenses. Subsequently, Hughes and the government reached a plea agreement whereby Hughes plead guilty to two counts, conspiracy with intent to distribute and possession of a firearm as a felon, in exchange for a sentence of 180 months in prison.
The district court then conducted a sentencing hearing to evaluate the plea agreement and determine whether Hughes’s plea conformed with the United States Sentencing Guidelines. The district court calculated Hughes’s sentencing range to be between 188 and 235 months and upheld the plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). Rule 11(c)(1)(C) permits a court to accept a plea agreement that lists a sentencing recommendation outside of the Sentencing Guidelines, but the court becomes bound by the recommendation once the court accepts the agreement. Thus, applying the plea agreement, the district court imposed a 180-month sentence on Hughes.
Less than two months after Hughes’s sentencing, the Sentencing Commission modified the Sentencing Guidelines via Amendment 782. Amendment 782 reduces the offense levels of some drug offenses and applies to cases previously decided under that portion of the Guidelines. Offense levels are a factor in the sentencing range calculation; a reduction in offense level decreases the sentencing range produced by the Sentencing Guidelines. Hughes submitted a motion to reduce his sentence based on this amendment and the statute guiding the determination of terms of imprisonment. The statute, 18 U.S.C. § 3582(c)(2) states that a court may modify an individual’s imprisonment term when that individual was sentenced “based on a sentencing range that has subsequently been lowered.” The combination of § 3582(c)(2) and Amendment 782, Hughes argued, entitled Hughes to a sentence reduction resulting in a sentence of between 151 and 188 months.
Applying the Supreme Court’s decision in Freeman v. United States, the district court rejected Hughes’s motion. The Court in Freeman split 4-1-4 on whether sentences pursuant to plea agreements were “based on” the Sentencing Guidelines and therefore amendable under § 3582(c)(2). Marks v. United States suggests that the holding of a split decision is the position on the “narrowest grounds.” Circuit courts have split on the interpretation of Marks. A minority of courts apply a “logical subset” rule, requiring the holding to be the rule which fits into the broader opinion. The majority hold the “narrowest” position to mean the least far-reaching position which still, when applied to other cases, produces results that are agreeable to a majority of justices. In Freeman, Justice Sotomayor, concurring, and the plurality agreed that plea agreements could be within § 3582(c)(2); although, Justice Sotomayor stated that only those plea agreements which use the Guidelines’ sentencing range or cite the Guidelines as part of the rationale for the sentencing recommendation qualify. Therefore, the district court applied Justice Sotomayor’s concurring opinion and held that Hughes could not be resentenced because his Rule 11(c)(1)(C) plea did not refer to the Sentencing Guidelines. The court of appeals upheld the district court’s ruling, holding that (1) Justice Sotomayor’s concurring opinion was the determinative rule, and (2) Hughes was ineligible for resentencing under Amendment 782 because his plea agreement was not “based on” the Sentencing Guidelines.
HOW DOES A COURT DETERMINE THE BINDING PRECEDENT IN A SUPREME COURT CASE WITHOUT A CLEAR MAJORITY?
Hughes asserts that the Eleventh Circuit’s denial of his sentence modification incorrectly applied the Supreme Court’s decision in Marks v. United States when it held that the single-justice concurrence in Freeman v. United States was binding precedent even though no single rationale achieves a majority. According to Hughes, the rule since Marks is that, when no single opinion captures a majority, the holding is the narrowest common rationale of a majority of Justices. Hughes contrasts this approach with the alternative used by the Eleventh Circuit, in which the court asked whether the concurring opinion would produce the same result as the plurality opinion, an approach that Hughes asserts incorrectly ignores whether there was agreement in the rationale. Hughes argues that a majority of the Court must agree upon the principle of law, not the outcome, or else the reasoning of a single Justice could have controlling effect even though eight Justices disagreed. The Eleventh Circuit’s approach to Marks, Hughes claims, creates indeterminacy because it is more difficult to predict the outcome that each opinion would yield.
Hughes then contends that, even under the Eleventh Circuit’s approach, the Justice Sotomayor’s concurrence in Freeman is not binding law. Hughes asserts that the Freeman plurality held that the sentencing decision was based only on the judge’s decision whereas the concurrence held that the sentencing decision was based on the plea agreement. According to Hughes, the Eleventh Circuit should not have found a constructive majority under Marks because there are situations in which the concurrence would allow a sentence modification, reaching a different outcome from the plurality.
The United States, on the other hand, asserts that it correctly interprets the Freeman decision in a situation where no single opinion had majority support. The United States contends that the correct approach under Marks is to find a majority by “asking which litigant would have prevailed under the rationales of at least five Justices by running the facts at hand through multiple opinions.” According to the United States, the Marks approach “reflects sound principles of judicial administration” because it ensures that Court decisions have greater precedential staying power. The United States contends that the Eleventh Circuit’s approach to Marks is superior because it allows for greater predictability and consistency in the application of decisions.
The United States argues that Hughes’s approach requiring “common reasoning” rather than common results, between opinions is inconsistent with the Marks holding. The United States claims that, in Marks, the Supreme Court constructed a majority holding in a case where five Justices reached the same conclusion using two inconsistent rationales, and that a similar approach was used in subsequent cases. The United States further argues that the “common reasoning” approach is “unsound” and inefficient because it could create situations in which a Supreme Court opinion is only binding on a single case. The United States also disagrees that the outcome-based approach would improperly give the opinion of a single Justice binding authority, even though eight other Justices disagree, because a majority of Justices would necessarily agree with the outcome of the case. The United States argues that courts are better at applying cases to facts to determine a majority based on outcomes rather than on rationales. According to the United States, when the Marks rule is correctly applied to Freeman, the one-Justice concurrence agrees with the four-Justice plurality to the extent that some cases cannot be given reduced sentences under § 3582(c)(2).
IS A DEFENDANT WHO ENTERED A PLEA AGREEMENT ELIGIBLE FOR A SENTENCE MODIFICATION UNDER 15 U.S.C. § 3582(c)(2)?
Even if the Court decided that Justice Sotomayor’s concurrence in Freeman was binding, Hughes contends that he is still eligible to apply for a sentence modification under 15 U.S.C. § 3582(c)(2), which provides that a court may modify a prison sentence if the defendant was “sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered.” Hughes claims that his sentence was “based on” the Sentencing Guidelines because the Guidelines informed the negotiation of his plea agreement as well as the sentencing decision of the judge.
Hughes contends that the phrase “based on” requires a connection similar to proximate cause in tort law. Even if a sentence is based on multiple causes, Hughes argues that, applying tort law, multiple causes may be equally and completely charged with a single result as long as each is a proximate cause. Hughes asserts that the basis for his sentence lies, not only in the judge’s rationale for imposing the sentence, but also in the parties’ rationale for entering the plea agreement. Hughes argues that C-type plea agreements are based on the Guidelines because the defendant and the prosecutor negotiate a range using the Guidelines. Thus, Hughes maintains, the Guidelines are a proximate cause of the plea agreement, which is in turn a proximate cause of the judge’s sentence. Hughes claims that this chain of proximate causation explains that the sentence resulting from a C-type plea agreement often resembles the sentence under the Guidelines, whether the sentence follows or deviates from the Guidelines range.
Hughes also contends that Congress intended to allow C-type plea recipients to modify sentencing arrangements under § 3582(c)(2) because doing so furthers the Sentencing Reform Act’s goal of ensuring that defendants who commit similar crimes receive similar sentences. Hughes asserts that he is, therefore, eligible for a sentence modification under § 3582(c)(2), since “every indication is that the applicable Guidelines range was closely connected” to his sentence. Both the text of the plea agreement and the judge’s statements in court indicate consideration of the Guidelines, according to Hughes.
The United States counters that defendants who enter C-type plea agreements are not eligible for sentence modification under § 3582(c)(2). The United States argues that the criminal justice system favors finality, which is why § 3582(c) does not generally allow for the modification of prison sentences, and that the modification allowed by this subsection is only a narrow exception to that general rule. Defendants with C-type plea agreements are excluded, according to the United States, because “such defendants are sentenced ‘based on’ their plea agreements, not based on any Sentencing Guidelines range.”
The United States contends that, to base one thing upon another, the second must be a fundamental or foundational part of the first, which precludes use of a tort theory of proximate cause in this scenario. The United States asserts that Federal Rule of Criminal Procedure 11(c)(1)(C) prevents the judge from modifying the bargained-for sentence once she accepts the plea agreement, so the sentence is based only upon the binding agreement, regardless of the factors that influenced that agreement. Even if the tort theory was correct, argues the United States, the proximate cause argument fails because there is no direct causation between the Guidelines and Hughes’s sentence.
The United States also argues that, under the Sentencing Commission’s own instructions for using the Guidelines, revisions to the Guidelines should only be used to reduce a sentence where the same Guideline provisions were applied at the initial sentencing, which is not the case for a C-type plea agreement. The United States also contends that it is unfair that a defendant should receive a reduced sentence after the plea bargain is made, because the prosecutor may not have agreed to that shorter sentence and defendants knowingly bear the risk that the law may change in the future. Finally, the United States maintains that it is unfair to allow modifications to sentences based on plea agreements because plea agreements are like a contract between prosecutor and defendant, and sentence modifications would be like the defendant breaching a term of the contract.
RESOLVING THE CIRCUIT SPLIT CREATED BY MARKS
The National Association of Criminal Defense Lawyers and National Association of Federal Defenders (“NACDL”) argue that differences in interpretation of Freeman’s requirements for resentencing eligibility cause inequitable results. The NACDL highlights the difference between the Sixth Circuit’s requirement that the plea agreement explicitly refer to the Sentencing Guidelines and the Third Circuit’s requirement that the plea agreement contain the components necessary to calculate the defendant’s Guideline sentencing range.These differences, the NACDL argues, show that eligibility for resentencing is now dependent on geographic location rather than legal merit. Chantell and Michael Sackett and Duarte Nursery, Inc. (“Sackett”) suggest that the Supreme Court can resolve these discrepancies by clarifying the meaning of Marks’s “narrowest grounds” rule. Sackett asks that the Supreme Court hold that lower courts may only treat one opinion as binding and caution lower courts against interpreting single-Justice opinions as the holdings of fractured decisions.
The United States contends that the Supreme Court need not resolve the split in lower courts’ interpretation of Marks to produce more equitable results. Rather, the United States argues that lower courts can utilize the test the Supreme Court has already used in applying split-court decisions: determining the winning party based on which party would prevail under the majority of the justices’ views. Several law professors caution that the Supreme Court should not materially modify the Marks principle because doing so would open up litigation over the Supreme Court cases which were decided under the Marks rule and disrupt the decision-making process of the Court. The law professors explain that, under the current interpretation of Marks, justices have an incentive to join with other justices with whose narrower rationales they disagree in order to create a majority for a rule they support and would like the Court itself to be bound by. This incentive exists, the law professors note, because the justices know that the narrowest holding will be given precedential effect whether it is a majority holding or not. In contrast, the law professors contend that under Hughes’s suggested interpretation of Marks—allowing circuits to adopt whichever rationale, consistent with the plurality holding, they find most persuasive—justices would lose the incentive to create majorities because the narrowest holding would no longer necessarily have precedential effect. This would not only result in confusion among the circuits regarding Supreme Court precedent but also undercut incentives for consensus among Supreme Court justices.
RESHAPING PLEA BARGAINING
Hughes argues that allowing sentencing reductions for defendants who agreed to Rule 11(c)(1)(C) pleas makes plea bargaining more equitable, not less valuable to the government. Hughes asserts that the government suffers no meaningful loss of bargaining power because Congress, by amending the Sentencing Guidelines, determined that the higher sentencing range provided the government with an impermissible advantage over defendants. The NACDL, in support of Hughes, affirms the comparatively weaker position of the defendant in a criminal trial by emphasizing that the vast majority of cases will end in a plea, rather than a trial, where about 91% of charged defendants will be convicted. Furthermore, the NACDL posits that prosecutors can pressure defendants into taking pleas by threatening to significantly increase sentencing recommendations if the case goes to trial.
The United States argues that holding § 3582(c)(2) to allow the modification of Rule 11(c)(1)(C) plea agreements will disrupt the plea bargaining process by giving defendants a significant advantage over the government. The United States points out that pleas are essential to the criminal justice system and mutually beneficial because defendants often receive lesser penalties in bargains than they would have received after a guilty verdict at trial and the government conserves resources that it would have spent at trial. The United States contends that Hughes’s interpretation will upset the mutual advantage necessary to bring the defendant and government to the table because Hughes’s reading of § 3582(c)(2) allows defendants to retain the primary benefit conferred by pleas, such as a reduction in sentence and the potential elimination of charges, while withdrawing the benefit to the government, such as the assurance of a particular sentence or sentencing range.
- David R. Fine & Daisy M. Sexton, Hughes v. United States: After 40 Years, Will the Supreme Court Hit the Marks?, K&L Gates (Feb. 13, 2018).
- Richard M. Re, The Marks Rule and Hughes v. United States, PrawfsBlawg (Dec. 20, 2017).
- Amanda Reilly, Sentencing Case May Set Course for Clean Water Act Battles, E&E News (Feb. 6, 2018).