PAEZ, Circuit Judge:
In this case, we must consider how to interpret the Supreme Court's fractured opinion in Freeman v. United States, which addressed whether a defendant sentenced pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). 564 U.S. 522, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). Although a majority of the Court held that in such cases defendants remain eligible for relief under § 3582(c)(2), the plurality and concurring opinions did not agree on a single rationale. Citing Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), which provides guidance on interpreting fractured Supreme Court opinions, we held in United States v. Austin that Justice Sotomayor's concurring opinion was controlling, as it represented the narrowest grounds on which a majority of the justices agreed. See 676 F.3d 924 (9th Cir. 2012). Applying Justice Sotomayor's approach, the district court denied Appellant Tyrone Davis's ("Davis") motion for a sentence reduction, ruling that his sentence was based on a Rule 11(c)(1)(C) plea agreement and not a "sentencing range that has subsequently been lowered by the Sentencing Commission" as required by § 3582(c)(2).
Revisiting Freeman and our application of Marks to fractured Supreme Court opinions, we hold that where we can identify no rationale common to a majority of the Justices, we are bound only by the result. In so holding, we join the D.C. Circuit, which concluded that Freeman lacks a controlling opinion "because the plurality and concurring opinions do not share common reasoning whereby one analysis is a logical subset of the other." United States v. Epps, 707 F.3d 337, 350 (D.C. Cir. 2013) (internal quotation marks and citation omitted). Bound only by Freeman's
In 2005, pursuant to a plea agreement entered into under Rule 11(c)(1)(C), Davis pled guilty to a series of counts related to distribution of cocaine base, or "crack cocaine."
At sentencing in 2006, the district court calculated Davis's total offense level as 37 with a Criminal History Category II, resulting in a Guidelines range of 235 to 293 months. The court accepted the Rule 11(c)(1)(C) plea agreement and imposed the recommended eighteen-year (216-month) sentence. We reversed and remanded, holding that the district court had erred in its determination of Davis's criminal history category and in its imposition of an "organizer or leader" enhancement. United States v. Davis, 312 Fed.Appx. 909, 911-14 (9th Cir. 2009). At Davis's resentencing in 2009, the district court calculated his total offense level as 36 with a Criminal History Category I, resulting in a Guidelines range of 188 to 235 months. The court reimposed the plea agreement's recommended eighteen-year (216-month) sentence, finding it "fair and reasonable" under the Guidelines. We affirmed. United States v. Davis, 389 Fed.Appx. 616 (9th Cir. 2010).
When Davis pled guilty, the Guidelines punished defendants far more harshly for crack cocaine offenses than for powder cocaine offenses. A defendant responsible for one gram of crack cocaine faced the same Guidelines sentence as a defendant responsible for one hundred grams of powder cocaine. This 100:1 ratio was roundly criticized for its racially disparate effects. See, e.g., Kimbrough v. United States, 552 U.S. 85,
In 2010, Congress responded by passing the Fair Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010), which dramatically reduced the sentencing ratio to 18:1. The Fair Sentencing Act also gave the Sentencing Commission "emergency authority" to "make such conforming amendments to the Federal sentencing guidelines." Id. § 8. The Sentencing Commission responded by issuing amended Guidelines reflecting the new 18:1 ratio
In 2012, Davis filed a pro se motion under § 3582(c)(2) seeking a retroactive reduction of his sentence in light of the amended Guidelines.
The district court denied the motion, holding that it lacked jurisdiction to modify Davis's sentence because it was "based on" the Rule 11(c)(1)(C) plea agreement, not the Guidelines. In so ruling, the district court concluded that it was bound by Justice Sotomayor's concurring opinion in Freeman. Davis appealed for a third time. A three-judge panel affirmed, relying on Austin. United States v. Davis, 776 F.3d 1088 (9th Cir. 2015). We granted rehearing en banc. United States v. Davis, 795 F.3d 1188 (9th Cir. 2015).
In Freeman v. United States, the Supreme Court considered whether a defendant sentenced under a Rule 11(c)(1)(C) agreement may be eligible for a sentence reduction under § 3582(c)(2). 564 U.S. 522, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). Five justices ultimately agreed that Freeman was eligible for a reduction, but no rationale commanded a majority of the Court.
A four-justice plurality held that "[e]ven when a defendant enters into an 11(c)(1)(C) agreement, the judge's decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief." Id. at 534, 131 S.Ct. 2685 (plurality opinion). Writing for the plurality, Justice Kennedy explained that this approach was consistent with the "text and purpose" of the Sentencing Reform Act, Rule 11(c)(1)(C), and the binding Guidelines policy statements in sections 6B1.2 and 1B1.10 relating to Rule 11(c)(1)(C) and § 3582(c)(2). Id. at 530, 131 S.Ct. 2685.
In a dissenting opinion by Chief Justice Roberts, four Justices took the contrary position that a sentence imposed under a Rule 11(c)(1)(C) agreement is never "based on" the Guidelines because the agreement itself serves as the foundation for the sentence imposed. Id. at 544, 131 S.Ct. 2685 (Roberts, C.J., dissenting).
Concurring only in the judgment, Justice Sotomayor staked out yet a third position. Justice Sotomayor argued that a sentence imposed under a Rule 11(c)(1)(C)
To say that Freeman divided the Court would be an understatement. Not only did the plurality and dissenting opinions take opposite positions, but both also strongly criticized Justice Sotomayor's concurrence. The plurality warned that the "consequences of [the concurrence's] erroneous rule would be significant," id. at 533, 131 S.Ct. 2685 (plurality opinion), while the dissent complained that Justice Sotomayor's approach would "foster confusion in an area in need of clarity," id. at 550, 131 S.Ct. 2685 (Roberts, C.J., dissenting). The dissenting opinion accurately stated that the plurality and concurrence "agree on very little except the judgment." Id. at 544, 131 S.Ct. 2685 (Roberts, C.J., dissenting). Thus, the 4-1-4 Freeman Court did not articulate a clear path forward for analysis of sentence-reduction requests by defendants sentenced under Rule 11(c)(1)(C) agreements.
In Marks v. United States, the Supreme Court explained that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotation marks and citation omitted). In the nearly forty years since Marks, lower courts have struggled to divine what the Supreme Court meant by "the narrowest grounds." Indeed, the Court has acknowledged that the Marks inquiry at times has "baffled and divided the lower courts that have considered it," Nichols v. United States, 511 U.S. 738, 746, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), and that the "test is more easily stated than applied." Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (quoting Nichols, 511 U.S. at 745-46, 114 S.Ct. 1921). In the face of this confusion, two main approaches have emerged: one focusing on the reasoning of the various opinions and the other on the ultimate results.
The D.C. Circuit has offered a clear example of the first approach. In King v. Palmer, the court explained:
950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). The D.C. Circuit reaffirmed this approach in Epps, describing Marks as applicable only when "the concurrence posits a narrow test to which the plurality must necessarily agree as a logical consequence of its own, broader position." 707 F.3d at 348 (emphasis omitted) (quoting King, 950 F.2d at 782).
Our cases interpreting Marks have not been a model of clarity. On one occasion, we cited the "results" language described above. See United States v. Williams, 435 F.3d 1148, 1157 n. 9 (9th Cir. 2006) (explaining that a concurrence is controlling under Marks if it "would affect a narrower range of cases than that of the plurality"). Nonetheless, in Williams and other decisions applying Marks to a fractured Supreme Court decision, we analyzed whether the reasoning of a narrower opinion fit entirely into the circle drawn by a broader opinion in order to derive a rule. Our most recent decision to address Marks explicitly employed the "reasoning" approach. Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012). In Lair, we approvingly cited King and held that the Marks standard applies only "where one opinion can be meaningfully regarded as narrower than another and can represent a common denominator of the Court's reasoning." Id. at 1205 (quoting United States v. Rodriguez-Preciado, 399 F.3d 1118, 1140 (9th Cir.), amended by 416 F.3d 939 (9th Cir. 2005)). Unless "the narrowest opinion is actually the logical subset of other broader opinions, ... the only binding aspect of a splintered decision is its specific result." Id. (internal quotation marks and citation omitted).
To foster clarity, we explicitly adopt the reasoning-based approach to applying Marks. This approach is not only consistent with our most recent caselaw, see Lair, 697 F.3d 1200, but also makes the most sense.
Applying Marks, as clarified above, to Freeman, we overrule our holding in Austin that Justice Sotomayor's concurrence controls.
Justice Sotomayor's concurrence cannot reasonably be described as a logical subset of Justice Kennedy's plurality opinion. The Freeman plurality explicitly rejected the concurrence's reasoning, in particular its underlying premise that a sentence imposed under a Rule 11(c)(1)(C) agreement is "based on" the parties' agreement, not the Guidelines. 564 U.S. at 529, 131 S.Ct. 2685 (plurality opinion); Id. at 535-36, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment). Even in setting out the circumstances in which she would find a defendant sentenced under a Rule 11(c)(1)(C) agreement eligible for relief, Justice Sotomayor focused on the role the parties' Guidelines calculations play in crafting a Rule 11(c)(1)(C) agreement. Id. at 538-39, 131 S.Ct. 2685. By contrast, the plurality focuses on the role of the judge's Guidelines calculations in deciding whether to accept or reject the agreement. Id. at 529, 131 S.Ct. 2685 (plurality opinion). This fundamental divergence in reasoning is enough to demonstrate that Justice Sotomayor's rationale is not controlling Supreme Court law. Although in Freeman these divergent approaches led to the same result, the D.C. Circuit properly recognized that "the set of cases where the
Two examples from Epps are instructive.
Id. at 350 n. 8. Justice Sotomayor would allow a sentence reduction in this example because the agreement explicitly "call[s] for the defendant to be sentenced within a particular Guidelines sentencing range." Freeman, 564 U.S. at 538, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment). The plurality, on the other hand, "would find [Freeman] ineligible because the range that the parties agreed to played no role in the court's determination that this was an appropriate sentence, despite the fact that the court imposed the agreed-upon term of imprisonment." Epps, 707 F.3d at 350 n. 8. Thus, the plurality opinion is actually the narrower one in certain respects.
A second example produces a similar result:
Id. Here again, if the court decides "for reasons unrelated to the guidelines range to impose the sentence the parties agreed upon," the defendant would be eligible for a reduction under Justice Sotomayor's approach but not under the plurality's. Id.
These examples make clear that the plurality and concurring opinions cannot be explained by a diagram in which a circle representing the reasoning of Justice Sotomayor's opinion sits neatly within a circle representing the reasoning of the plurality opinion. Because both opinions would allow sentence reductions in situations where the other would not, Justice Sotomayor's concurrence
We recognize that, with the exception of the D.C. Circuit, every other circuit that has considered the issue has adopted Justice Sotomayor's concurrence as the controlling opinion in Freeman. But we do not find those opinions convincing. Most engage with Marks only superficially, quoting its language with no analysis. See, e.g., United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013); United States v. Browne, 698 F.3d 1042, 1045-46 (8th Cir. 2012); United States v. Dixon, 687 F.3d 356, 359-60 (7th Cir. 2012); United States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011).
Those few cases that do discuss how Marks should apply to Freeman mistakenly conclude that although the "gap between the plurality and the concurrence is wide, [] it is still possible to tease out a common denominator." United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir. 2011); see also United States v. Thompson, 682 F.3d 285, 289-90 (3d Cir. 2012). Not so. As the examples above demonstrate, there are some circumstances where defendants would be eligible for relief under Justice Sotomayor's approach but not under the plurality's. We therefore cannot agree with the First Circuit's assertion that the "plurality would surely agree that in every case in which a defendant's C-type plea agreement satisfies the criteria for Justice Sotomayor's exception ... the sentencing judge's decision to accept that sentence is based on the guidelines." Rivera-Martinez, 665 F.3d at 348. A more nuanced reading of both opinions leads us to conclude that "there is no controlling opinion in Freeman because the plurality and concurring opinions do not share common reasoning whereby one analysis is a logical subset of the other." Epps, 707 F.3d at 350 (internal quotation marks and citation omitted).
Marks instructs us to consider the opinions only of "those Members who concurred in the judgments on the narrowest grounds" when deriving a rule from a fractured Supreme Court decision. Marks, 430 U.S. at 193, 97 S.Ct. 990 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, & Stevens, JJ.) (emphasis added)). Nonetheless, we acknowledge that the Supreme Court and our sister circuits have considered dissenting opinions when interpreting fragmented Supreme Court decisions. See, e.g., United States v. Jacobsen, 466 U.S. 109, 115-17, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (relying on a dissenting opinion to derive the rule in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980)); Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16-17, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (holding that Will v. Calvert Fire Insurance did not overrule
Considering Chief Justice Roberts's dissent would not change our conclusion because we cannot derive any common denominator by combining Freeman's dissenting opinion with either the plurality or concurring opinion. First, no rule can be derived from the Freeman plurality and dissenting opinions, as neither is a "logical subset" of the other. Indeed, the plurality holding that "[e]ven when a defendant enters into an 11(c)(1)(C) agreement, the judge's decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines," Freeman, 564 U.S. at 534, 131 S.Ct. 2685 (plurality opinion) is diametrically opposed to the dissent's position that a sentence imposed under a Rule 11(c)(1)(C) agreement is never "based on" the Guidelines because the agreement itself serves as the foundation for the sentence imposed, id. at 544-45, 131 S.Ct. 2685 (Roberts, C.J., dissenting). In practical terms, this divergence means the dissent would categorically find all defendants sentenced under a Rule 11(c)(1)(C) agreement ineligible for a sentence reduction, while the plurality would permit a reduction in most cases. Thus, the plurality and dissent "do not share common reasoning whereby one analysis is a logical subset of the other." Epps, 707 F.3d at 350 (internal quotation marks and citation omitted).
Second, Justice Sotomayor's concurring opinion is not a logical subset of the dissenting opinion, or vice versa. Again, the dissent would categorically bar defendants sentenced under Rule 11(c)(1)(C) agreements from seeking relief under § 3582(c)(2). Freeman, 564 U.S. at 544-45, 131 S.Ct. 2685 (Roberts, C.J., dissenting). Justice Sotomayor, by contrast, would permit sentence reductions in limited circumstances: if the Rule 11(c)(1)(C) agreement either 1) "call[s] for the defendant to be sentenced within a particular Guidelines sentencing range," or 2) "make[s] clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty" and "that sentencing range is evident from the agreement itself." Id. at 538-39, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment). Despite the dissent's arguments to the contrary, these approaches cannot be reconciled because Justice Sotomayor explicitly "reject[ed] the categorical rule advanced by the Government and endorsed by the dissent, which artificially divorces a [Rule 11(c)(1)(C)] agreement from its express terms." Id. at 539, 131 S.Ct. 2685. Indeed, in evaluating Freeman's case, Justice Sotomayor stated that "contrary to the dissent's curious suggestion that `there is no way of knowing what th[e] sentence was based on,'" the basis for Freeman's sentence was evident from the Rule 11(c)(1)(C) agreement itself. Id. at 542-43, 131 S.Ct. 2685.
The Freeman dissent is similarly critical of Justice Sotomayor, describing her view that certain Rule 11(c)(1)(C) defendants are eligible for relief as just "as mistaken
Given that no opinion in Freeman controls, we consider which of the rationales set forth in the varying opinions is most persuasive. Epps, 707 F.3d at 351. In so doing, we are restricted only by the ultimate result in Freeman: that defendants sentenced under Rule 11(c)(1)(C) agreements are not categorically barred from seeking a sentence reduction under § 3582(c)(2). We join the D.C. Circuit and adopt the plurality's rule: "Even when a defendant enters into an 11(c)(1)(C) agreement, the judge's decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief." Freeman, 564 U.S. at 534, 131 S.Ct. 2685 (plurality opinion).
As the plurality explained, three critical sources support this approach. First, "[f]ederal sentencing law requires the district judge" to impose sentences that comply with "the purposes of federal sentencing, in light of the Guidelines and other § 3553(a) factors." Id. at 529, 131 S.Ct. 2685. Thus, by statute, a sentencing judge's discretion is always framed by the Guidelines.
Second, Justice Kennedy looked to the district court's authority under Rule 11(c)(1)(C). Although the Rule "permits the defendant and the prosecutor to agree on a specific sentence," it preserves "the district court's independent obligation to exercise its discretion" and review the proposed sentence. Id. Because judges "use the Guidelines range as the starting point," they serve in a "real sense [as] a basis for the sentence," "[e]ven where the judge varies from the recommended range." Id.
Third, the Guidelines policy statements that apply to Rule 11(c)(1)(C) plea agreements and § 3582(c)(2) motions support the plurality's approach. Once a district court accepts a Rule 11(c)(1)(C) plea agreement, the parties' recommended sentence is binding on the court. As the Freeman plurality noted, however, the applicable Guidelines policy statement "forbids the district judge to accept an 11(c)(1)(C) agreement without first evaluating the recommended sentence" under the Guidelines. Id.; USSG § 6B1.2(c). Indeed, as the plurality further noted, the commentary to the policy statement instructs a sentencing court to accept the recommended sentence only if it is an appropriate sentence within the applicable Guidelines range or "departs ... for justifiable reasons." Freeman, 564 U.S. at 529, 131 S.Ct. 2685 (plurality opinion). The Guidelines policy statement that applies to § 3582(c)(2) motions likewise supports the plurality opinion. See USSG § 1B1.10(b)(1). As the plurality explained, § 1B1.10(b)(1) directs the district judge "in modifying a sentence to substitute only the retroactive amendment and then leave all original Guidelines determinations in place." Freeman, 564 U.S. at 530, 131 S.Ct. 2685 (plurality opinion). The goal of
Not only does the plurality approach best conform with these relevant sources, but a "contrary focus on the parties' intentions would contribute to the unwarranted disparity that the [Sentencing Reform Act] was designed to reduce." Epps, 707 F.3d at 351. In reducing the crack cocaine sentencing range, Congress and the Sentencing Commission sought to address "the urgent and compelling problem of crack-cocaine sentences." Freeman, 564 U.S. at 533, 131 S.Ct. 2685 (plurality opinion) (internal quotation marks omitted); supra at I.B. "Section 3582(c)(2) empowers district judges to correct sentences that depend on frameworks," like the one for crack cocaine, "that later prove unjustified." Freeman, 564 U.S. at 526, 131 S.Ct. 2685 (plurality opinion). Justice Sotomayor's approach would "extend the benefit of the Commission's judgment only to an arbitrary subset of defendants whose agreed sentences were accepted in light of a since-rejected Guidelines range based on whether their plea agreements refer to the Guidelines." Id. at 533-34, 131 S.Ct. 2685. Thus, adoption of the concurring opinion would "undercut a systemic solution" to a "systemic injustice." Id. at 534, 131 S.Ct. 2685. For all these reasons, we adopt the approach of the Freeman plurality opinion.
Applying the plurality's approach, we hold that Davis is eligible for relief under § 3582(c)(2) because the district court's "decision to accept the plea and impose the recommended sentence" was "based on the Guidelines." Freeman, 564 U.S. at 534, 131 S.Ct. 2685 (plurality opinion). Davis's Rule 11(c)(1)(C) plea agreement was clearly rooted in the Guidelines. First, it required the district judge to "determine Defendant's applicable Sentencing Guidelines range at the time of the sentencing." Second, the agreement stated that the amount of crack cocaine for which Davis admitted direct responsibility would yield a base offense level of 34 under Guidelines § 2D1.1(c)(3). Third, Davis's agreement explained that he qualified for a Guidelines increase under § 2D1.2 for proximity to a school zone and a Guidelines reduction under § 3E1.1 for acceptance of responsibility.
The district judge's decision to reimpose the eighteen-year sentence was also based on the Guidelines. During the resentencing hearing, the district court recalculated Davis's total offense level at 36 and a Guidelines range of 188 to 235 months. Then, reflecting on all the evidence presented, the court determined that the original eighteen-year sentence — which, at 216 months, fell within the calculated range — was "fair and reasonable" under the Guidelines.
Taken together, the text of Davis's plea agreement and the judge's statements during the sentencing hearing leave no
In sum, when applying Marks to a fractured Supreme Court decision, we look to those opinions that concurred in the judgment and determine whether one of those opinions sets forth a rationale that is the logical subset of other, broader opinions. When, however, no "common denominator of the Court's reasoning" exists, we are bound only by the "specific result."
Applying that framework to Freeman, we conclude that, contrary to our prior decision in Austin, Justice Sotomayor's concurrence is not the logical subset of the plurality opinion. Nor can we extract a shared reasoning by including the dissent in our analysis. Thus, we overrule Austin and adopt the Freeman plurality approach as the most persuasive means of analyzing sentence reductions in the context of Rule 11(c)(1)(C) plea agreements. Accordingly, we reverse the district court's determination that Davis is not eligible for a sentence reduction and remand for reconsideration of whether Davis should receive a sentence reduction under § 3582(c)(2) and the Guidelines' related policy statements.
CHRISTEN, Circuit Judge, joined by THOMAS, Chief Judge, and TALLMAN, NGUYEN, and HURWITZ, Circuit Judges, concurring:
Freeman v. United States, 564 U.S. 522, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), addressed an issue of grave importance to Davis and to countless other prisoners in his position. The opinion issued today corrects an error in our circuit's interpretation of Freeman, but it also represents a missed opportunity to straighten out our circuit's inconsistent applications of Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).
Marks specifically directs lower courts how to interpret splintered Supreme Court decisions. Its rule tends to crop up in the most contentious cases where, as here, the stakes are significant. Freeman is important, but Marks has even broader application to the wide spectrum of issues we decide. I join in the court's holding — as far as it goes — but it is regrettable that our court articulates an incomplete interpretation of Marks. Leaving this work unfinished will surely result in continued uneven application of Marks within our circuit.
The rule announced in Marks appears simple at first glance but it has proven to be confounding. See Grutter v. Bollinger, 539 U.S. 306, 325, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003) (noting Marks has "baffled and divided the lower courts that have considered it" (quoting Nichols v. United States, 511 U.S. 738, 746, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994))). The opinion issued today untangles part of the problem because it decisively adopts a reasoning-based approach to determine when splintered
Unfortunately, we leave unanswered whether our court will take into account dissenting opinions when applying Marks. I join the majority because its holding is entirely consistent with Marks: "[W]e look to those opinions that concurred in the judgment and determine whether one of those opinions sets forth a rationale that is the logical subset of other, broader opinions." But I disagree with the majority's assumption that we might be free to take dissenting opinions into account in future Marks analyses. Marks leaves some questions unanswered, but it plainly limits our review to the opinions of "those Members [of the Court] who concurred in the judgments." Marks, 430 U.S. at 193, 97 S.Ct. 990 (emphasis added). Because I do not see that this language leaves any room for our court to consider dissenting opinions, I would go further than the majority does and expressly state that dissents play no role in a Marks analysis. This is not to say that dissents serve no purpose. They can and should be read to provide context and a deeper understanding of the Court's decisions, but they do not inform our analysis of what binding rule, if any, emerges from a fractured decision.
The dissent points to National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949), as support for its view that dissenting opinions should be considered. Tidewater, of course, says nothing about how to interpret fractured Supreme Court decisions, though it was a fractured decision itself. In Tidewater, two concurring justices and four dissenting justices relied on the rule that Congress lacks authority to expand federal court subject matter jurisdiction beyond that provided in Article III. See id. at 604-46, 69 S.Ct. 1173. Our dissenting colleague is correct that courts have universally accepted this rule, but doing so does not require looking to Tidewater's dissenting opinions. Indeed, as recognized in Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983), this rule pre-dates Tidewater by a long shot. See id. at 491, 103 S.Ct. 1962 ("This Court's cases firmly establish that Congress may not expand the jurisdiction of the federal courts beyond the bounds established by the Constitution." (citing Hodgson v. Bowerbank, 9 U.S. 303, 5 Cranch 303, 3 L.Ed. 108 (1809); Kline v. Burke Constr. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 67 L.Ed. 226 (1922))); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 65, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (describing as "fundamental" that "Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III" (citing Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803))).
The Supreme Court at times looks to dissenting opinions when interpreting its own splintered decisions. See United States v. Jacobsen, 466 U.S. 109, 115, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 16-17, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). From this, the majority and dissent infer that we might be free to do the same. But the way the Supreme Court treats its own precedent says nothing about how lower courts must apply it. Marks, not Jacobsen or Moses H. Cone, is the Supreme Court authority that sets out the rule for lower courts to follow.
BEA, Circuit Judge, dissenting:
From its very first sentence, the majority unjustifiably departs from not only our own, but also well-established Supreme Court precedent. We correctly and squarely resolved the questions presented by this case in United States v. Austin, 676 F.3d 924 (9th Cir. 2012) until it was overruled by today's majority. In Austin, we considered whether a judge had jurisdiction to modify a prisoner's sentence under 18 U.S.C. § 3582(c)(2) (permitting modification of a term of imprisonment where that term was "based on" a sentencing range which was later reduced) if the prisoner was sentenced pursuant to a Federal Rules of Criminal Procedure ("F.R.C.P.") 11(c)(1)(C) plea agreement (a "Rule 11(c)(1)(C) agreement") that did not expressly incorporate the since-amended sentencing Guidelines.
Our interpretation in Austin has garnered the support of eight out of the nine Circuits which have interpreted Freeman. See, e.g., United States v. Graham, 704 F.3d 1275, 1278 (10th Cir. 2013); United States v. Thompson, 714 F.3d 946, 949 (6th Cir. 2013); United States v. Browne, 698 F.3d 1042, 1045-47 (8th Cir. 2012); United States v. Weatherspoon, 696 F.3d 416, 422 (3rd Cir. 2012); United States v. Dixon, 687 F.3d 356, 359-60 (7th Cir. 2012); United States v. Austin, 676 F.3d 924, 927 (9th Cir. 2012); United States v. Rivera-Martinez, 665 F.3d 344, 345 (1st Cir. 2011); United States v. Brown, 653 F.3d 337 (4th
I cannot subscribe to the Majority's view. To start, the Majority's "logical subset" requirement is an invention of the D.C. Circuit that finds no support in Marks or any other Supreme Court precedent. The Majority's "logical subset" invention permits a concurring opinion to become the precedential decision of the Court if, and only if, its reasoning shares all points in common with another, broader opinion that also reaches the majority result. Of course, the concurring opinion may have fewer elements of the decision than does the plurality opinion, but it may not have any elements in conflict. See Maj. Op. at 1021-22. This notion is an invention in our circuit's jurisprudence, though the Majority tips its hat to the D.C. Circuit. See Maj. Op. at 1016-17, 1020. And even if there were a "logical subset" requirement as defined by the Majority, the Majority misreads Justice Kennedy's plurality opinion to the extent it concludes that there are circumstances in which Justice Sotomayor would permit sentence modification but the Kennedy plurality would not. Finally, the Majority's adoption of the Kennedy plurality's approach violates stare decisis because five Justices in Freeman (a majority), all agreed that we look to the plea agreement itself to determine whether a plea was "based on" the since-modified sentencing Guidelines. Under cases like National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949), we are bound by holdings that garner the support of a "majority" of the nine Justices on the entire Court, even if that agreement derives in part from votes from the dissent. Thus, the Majority flouts not only Freeman, but also Supreme Court jurisprudence relating to the binding effect of splintered Supreme Court opinions, as well as this Court's structural role as a federal intermediary court.
In 2005, Tyrone Davis pleaded guilty to possession with intent to distribute crack cocaine pursuant to a Rule 11(c)(1)(C) plea agreement. In Davis's case, the plea agreement did not specifically mention any particular sentencing Guideline. Nor did the plea agreement itself calculate (or even contain sufficient facts with which to calculate) Davis's Guidelines range. True, it contained some of the factors that would enable a Guidelines calculation. For example, the parties stipulated to a base offense level of 34. But the agreement failed to list a criminal history category or adjustment determinations — both of which are essential to calculate a sentencing range under the Guidelines. After successive appeals to this Court on grounds no longer relevant, the district court calculated a Guidelines range of 188-235 and approved the 216-month sentence in Davis's plea agreement.
Congress thereafter passed the Fair Sentencing Act of 2010, which increased the threshold amount of cocaine base necessary to trigger an enhanced Guidelines range. Pub L. 111-220, § 2(a), 124 Stat. 2372. Under the new Guidelines, the amount of cocaine base that contributed to Davis's convictions would produce a Guidelines range of only 97-121 months (after inserting the calculations made by the district court at Davis's resentencing). Because Davis' 216-month sentence now falls much above that range, Davis moved in September 2012 for resentencing under 18 U.S.C. § 3582(c)(2), relying on the amended Guidelines. Section 3582(c)(2) provides:
Id. (emphasis added). The district court properly denied the motion, ruling that Davis's 216-month sentence was "based on" his plea agreement, not on the Guidelines range that had since been lowered. The district court relied on our decision in United States v. Austin, 676 F.3d 924, 927-28 (9th Cir. 2011), to hold that it lacked jurisdiction to review Davis' sentence, which was adopted pursuant to a Rule 11(c)(1)(C) agreement that did not reference any Guidelines range, and therefore did not meet either of Justice Sotomayor's exceptions in Freeman.
The original panel affirmed, citing Austin as the controlling law of the circuit. United States v. Davis, No. 13-30133, op. at 1016-17.
In Marks v. United States, the Supreme Court made clear that even splintered determinations of our highest court are binding on lower federal courts: "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds....'" Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (reversing the Sixth Circuit's determination that Memoirs v. Massachusetts,
The Majority today rejects the only application of Marks to Freeman that is consistent with stare decisis in favor of a widely-criticized approach endorsed by one panel in the D.C. Circuit in United States v. Epps, 707 F.3d 337, 351 (D.C. Cir. 2013).
This reading is also consistent with Marks' dictate that "the holding of the Court ... [is] the position taken by those Members who concurred in the judgment on the narrowest grounds...." Marks, 430 U.S. at 193, 97 S.Ct. 990 (emphasis
The Majority's adoption of a "logical subset" precondition to Marks applicability is plagued by the same logical fallacy. King v. Palmer, the D.C. Circuit case on which the Majority relied, justified its invention of a logical subset requirement on the grounds that:
King v. Palmer, 950 F.2d 771, 782 (D.C. Cir. 1991). Even accepting, arguendo, the King court's premise that a concurring opinion should be given stare decisis effect only when it consistently produces a result with which a majority of the Court would agree, that, again, would support the adoption of a rule that it is each Justice's vote, and not his reasoning, that counts under Marks. The King court's conclusion that Marks "works" only when a majority of Justices "subscribe to a given approach to a legal question," such that "one opinion supporting the judgment ... fit[s] entirely within a broader circle drawn by the others," id. at 782, simply does not follow from that court's premise — or from the many Supreme Court precedents interpreting and applying Marks to splintered opinions over the last four decades.
It is the result produced by majority vote that determines the stare decisis effect of the judgment. That is because whether the majority vote is produced by the adoption of one rationale or two, the rule of law made — the decision — is based on a rationale or rationales expected to remain the same and produce the same result in the next applicable case. After all, "stare decisis" means "to stand by things decided."
A simple application of Marks' methodology to Freeman compels a finding that Justice Sotomayor's concurrence is the "holding" of Freeman. See United States v. Austin, 676 F.3d 924, 927-28 (9th Cir. 2012). Five members of the Court agreed that Freeman — who had been sentenced pursuant to a Rule 11(c)(1)(C) agreement — was eligible for sentencing modification under 18 U.S.C. § 3582(c)(2), because his plea agreement had been "based on" a subsequently modified sentencing Guidelines range. Freeman v. U.S., 564 U.S. 522, 534, 544, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). Writing for a four-member plurality, Justice Kennedy reasoned that a plea agreement is "based on" applicable Guidelines whenever the sentencing judge at least consulted those guidelines before approving the proposed sentence — which, Justice Kennedy explained, the judge is statutorily "required" to do in "every case." See Freeman, 564 U.S. at 529, 131 S.Ct. 2685 (plurality opinion).
Concurring in result, Justice Sotomayor, a former district court judge experienced in actual sentencing, reasoned that plea agreements are sometimes based on sentencing guidelines, but only when the agreement itself "expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment," or the sentencing range is otherwise "evident from the agreement itself." Id. at 534, 539, 131 S.Ct. 2685 (Sotomayor, J., concurring) (emphasis added). Chief Justice Roberts, writing for the four dissenting Justices, "agree[d] with Justice Sotomayor that `the term of imprisonment imposed pursuant to a [Rule 11(c)(1)(C)] agreement is ... based on the agreement itself.'" Id. at 544, 131 S.Ct. 2685 (Roberts, C.J., dissenting) (emphasis added) (internal quotation marks omitted). However, the dissent would find that plea agreements are a matter of contract and thus never "based on" the sentencing Guidelines. Id. at 544-51, 131 S.Ct. 2685 (Roberts, C.J., dissenting).
Justice Sotomayor's opinion is controlling because "`sometimes' is the middle ground between `always' and `never.'" See United States v. Duvall, 740 F.3d 604, 612 (D.C. Cir. 2013) (Kavanaugh, J., concurring in the denial of rehearing en banc); see also supra, n.6. In circumstances in which Justice Sotomayor would permit reduction of a prior sentence, so too would the plurality (resulting in a five-Justice majority). Where Justice Sotomayor's criterion are not met, she would find agreement in the four-Justice dissent that the prisoner's sentence is not "based on" the
Under Justice Sotomayor's framework, Davis cannot seek resentencing, because his plea agreement does not meet either of her exceptions. It neither expressly cites, nor otherwise manifests that it is predicated upon, any particular Guidelines range. In fact, it omits several details (such as criminal history, and adjustments) necessary even to calculate a Guidelines range. Davis's sentence is therefore not subject to modification under § 3582(c)(2). The district court correctly determined that it lacked jurisdiction to resentence Davis, and the panel should affirm on that basis.
The Majority rejects this straight-forward approach on the grounds that circumstances could arise in which Justice Sotomayor would find a plea "based on" sentencing guidelines, but the Kennedy plurality would not. The Majority posits two hypotheticals, both of which assume express agreement in a plea bargain that a particular sentencing range applies (such that Justice Sotomayor would find the plea agreement "based on" the sentencing Guidelines, and subject to § 3582(c)(2) resentencing). See Maj. Op. at 1022-23. Both hypotheticals then posit that the "sentencing court ... might consider and reject the guideline range used by the parties" — in one scenario because the judge believed another range should apply, and, in the other, for "policy" reasons. Id. The Majority suggests that in either of these circumstances, the Freeman plurality would not find the plea agreement "based on" the sentencing guidelines, and thus would not grant relief.
The Majority is simply incorrect. The very fact that the sentencing judge in the Majority's hypotheticals must reject the Guidelines range recommended by the parties necessarily presupposes that the judge's analysis started with a consideration of the Guidelines range recommended in the plea agreement. Under the Kennedy plurality's approach, this consideration, at the inception of the sentencing, is enough to entitle a defendant to seek resentencing — regardless of the judge's ultimate reasons for approving the plea agreement. See Freeman, 564 U.S. at 529-30, 131 S.Ct. 2685 (plurality opinion) ("[I]f the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense a basis for the sentence." (emphases added)). The Majority recognizes as much on page 1026 of its opinion, wherein it quotes Justice Kennedy's statement that "the applicable Guidelines policy statement `forbids the district judge to accept an 11(c)(1)(C) agreement without first evaluating the recommended sentence' under the Guidelines." Maj. Op. at 1026 (quoting Freeman, 564 U.S. at 529, 131 S.Ct. 2685, and USSG § 6B1.2(c)).
The Majority criticizes my reading of Justice Kennedy's plurality opinion — a reading adopted by an overwhelming majority of circuits — as "oversimplified." In support of its more limited reading, the Majority relies solely on Justice Kennedy's statement that a "recommended sentence is likely to be based on the Guidelines." Maj. Op. at 1022 n. 9 (quoting Freeman, 564 U.S. at 534, 131 S.Ct. 2685).
But Justice Kennedy's use of the word "likely" in one sentence cannot be read in isolation. In the immediately preceding paragraph, Justice Kennedy in fact rejects the notion — advanced by the Majority — that his approach would limit relief to only a "subset of defendants." Freeman, 564 U.S. at 533-34, 131 S.Ct. 2685 ("[When] [t]he Commission determine[s] that [the]
Nothing about Justice Kennedy's opinion suggests any exceptions. He notes that the "Guidelines require the district judge to give due consideration to the relevant sentencing range, even if the defendant and prosecutor recommend a specific sentence as a condition of the guilty plea." Id. at 530, 131 S.Ct. 2685 (emphases added). He further reasons that "[f]ederal sentencing law requires" the sentencing judge to look to the Guidelines as "a framework or starting point" in "every case." Id. at 529, 131 S.Ct. 2685. Thus, notwithstanding his use of the word "likely" in one sentence, Justice Kennedy's opinion is most reasonably read as endorsing an approach under which a defendant may "always" seek resentencing on the basis of amended Guidelines. Certainly, for the reasons already stated above, Justice Kennedy would permit a defendant to seek resentencing in the examples given by the Majority.
The Majority imbues far more meaning into Justice Kennedy's single use of the word "likely" than the rest of Justice Kennedy's plurality opinion can bear. It may be that Justice Kennedy simply did not want to speak in absolutes. That is, he declined to say, as a matter of empirical fact, that a judge always consults the sentencing Guidelines, because there is always the possibility that a judge could make a mistake or fail to follow the law. But one thing is for sure: Justice Kennedy does not even hint at a case in which the sentencing judge could lawfully start sentencing with any consideration other than the Guidelines, and the Majority has not suggested any either. See 18 U.S.C. § 3553 (directing that a "court, in determining the particular sentence to be imposed, shall consider ... the sentencing range established for ... the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines" (emphasis added)); see also Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ("[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark." (citing Rita v. United States, 551 U.S. 338, 347-48, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007))).
Indeed, the failure of a sentencing judge to start the calculation of a sentence by considering the applicable sentencing Guidelines is in itself grounds for reversal for resentencing. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (instructing that appellate courts must "first ensure that the district court committed no significant procedural error, such as failing to calculate ... the Guidelines range"); United States v. Denton, 611 F.3d 646, 651 (9th Cir. 2010) (explaining that "[a] failure to calculate the correct advisory range constitutes procedural error" justifying reversal and remand for resentencing); United States v. Hammons, 558 F.3d 1100, 1106 (9th Cir. 2009) (holding that a sentencing court "committed plain error by failing to ... calculate the app[licable] guideline range"
The Majority's contrary analysis appears to substitute the Freeman plurality's requirement that a trial judge "consider" the Guidelines with its own innovation — that the trial judge must base his ultimate acceptance of the plea agreement on the Guidelines in order for a defendant to be entitled to seek resentencing. See Maj. Op. at 1022-23. But the latter is not the test enumerated by Justice Kennedy in Freeman. Properly read, Justice Kennedy's opinion would unquestionably permit resentencing in the hypotheticals offered by the Majority. See id. Thus, even if the Majority were correct that Marks applies only when one opinion is a "logical subset" of another, that precondition would be met here.
But even putting aside the "logical subset" issue, the Majority still cannot reach its result consistent with basic principles of stare decisis for the independent reason that we, as a federal intermediate court, are bound by holdings upon which five Justices of the Court agree — even if that agreement derives in part from dissenting Justices. The Supreme Court's fragmented decision in National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949), is a famous illustration of this principle.
United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), provides a more recent example of the same rule. The question in Jacobsen was the government's authority to conduct a warrantless search on the heels of a private search that identified potential contraband. The Jacobsen Court extracted the "controlling" legal standard from its prior precedent in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), by combining the opinion of the Walter Court (which garnered only two votes) with the opinion of four dissenting Justices, which it described as the "standard... adopted by the majority of the Court in Walter...." Id. at 116-17, 104 S.Ct. 1652 & n. 12 (emphasis added).
In Walter, a private party had opened a package containing films that, from the descriptions on the packaging, the private party concluded were contraband. Walter v. United States, 447 U.S. 649, 651-52, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). The government seized the films and, without obtaining a warrant, screened them from a projector. Id. at 652, 100 S.Ct. 2395. Delivering the two-Justice opinion of the Court, Justice Stevens reasoned that the government had violated the defendant's Fourth Amendment rights by actually watching films because the private party's search had consisted only of opening the package that contained the films. Id. at 657, 100 S.Ct. 2395 (The FBI's subsequent screening of such films constituted an "expansion of the search that had been conducted previously by the private party."); see also Jacobsen, 466 U.S. at 115-16, 104 S.Ct. 1652 (quoting Walter, 447 U.S. at 657, 100 S.Ct. 2395 (Opinion of Stevens, J., joined by Stewart, J.)). Three Justices in Walter concurred in the judgment on the grounds that the government had exceeded its authority under the "plain view" doctrine, but expressly rejected the notion that the scope of one's Fourth Amendment right could be tethered to the scope of an antecedent private search. Walter, 447 U.S. at 660-62, 100 S.Ct. 2395 (White, J., concurring). A four-Justice dissent agreed with Justice Stevens that the legality of a governmental search depended on the scope of the private party's antecedent search, but would have found no constitutional violation because "the FBI's subsequent viewing of the movies on a projector did not `change the nature of the search' and [thus] was not an additional search subject to the warrant requirement." Id. at 663-64, 100 S.Ct. 2395 (Blackmun, J., dissenting);
Presented with these competing views in Walter, the Jacobsen Court (in a six-Justice opinion of the Court) held that "a majority [in Walter] did agree on the appropriate analysis of a governmental search which follows on the heels of a private one. Two Justices [referring to Justices Stevens and Stewart].... [and] [f]our additional Justices [referring to the dissent] were ... of the view that the legality of the governmental search must be tested by the scope of the antecedent private search." Jacobsen, 466 U.S. at 115-16, 104 S.Ct. 1652. The Majority opinion here simply cannot be squared with the Court's reading of Walter in Jacobsen. Jacobsen recognized that the rule adopted by the two-Justice plurality in Walter was the precedential holding of the Walter Court, because it garnered the approval of six Justices (a majority) of the Court. This was so even though the three-Justice concurrence specifically rejected the plurality's rationale, and thus neither the plurality opinion nor the concurrence was a "logical subset" of the other.
Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) [hereinafter, "Memorial Hospital"] provides yet another example. There, the Court considered whether a lower court was bound to apply the Colorado River test,
The Majority is correct that the Justices in Freeman did not agree on much. But a five-Justice majority (Justice Sotomayor, plus the four dissenting Justices) did agree on one point — that a sentence imposed under a Rule 11(c)(1)(C) plea agreement is always "based on the [plea] agreement" itself. See, e.g., Freeman, 564 U.S. at 534, 131 S.Ct. 2685 (Sotomayor, J., concurring) ("[T]he term of imprisonment imposed by a district court pursuant to an agreement
The Majority blatantly ignores Chief Justice Roberts' express agreement with Justice Sotomayor and focuses only on the disagreements between them. But of course there are points on which they disagree; that is why there is both a concurrence and a dissent in Freeman (just as there was ample disagreement between the concurring and dissenting Justices in Tidewater). But those disagreements do not negate the fact that there are no sentence reductions which Justice Sotomayor would deny that the four dissenting Justices would not also deny. Where, as here, a plea agreement contains no mention of either the sentencing Guidelines or the criteria necessary to calculate the applicable Guidelines range (Justice Sotomayor's
In sum, the Majority makes a good case that "federal sentencing law," Rule 11(c)(1)(C), and the Guidelines' policy statements all support the view adopted by the Justice Kennedy plurality in Freeman. See Maj. Op. at 1026-27. And these arguments may well be the basis for a future Supreme Court opinion abrogating Freeman and adopting outright the plurality opinion of Justice Kennedy. But that is the Court's province, not ours. As an intermediate federal court, we are not free to disregard binding Supreme Court precedent simply because we can think of a rule we like better. The purpose of determining a "holding" is to apply stare decisis in decisions by intermediate appellate courts. It is only by intermediate courts following the holdings of the Supreme Court that one can hope to have predictability of law — the Rule of Law — from intermediate courts of appeal. While I may not agree with Justice Sotomayor's approach, I think Marks constrains our discretion. The Majority today defies stare decisis by adopting a contrary approach and result.
For all of these reasons, we had it right in Austin, and I respectfully dissent.
More importantly, Marks cannot be viewed in isolation. In subsequent cases interpreting fractured Supreme Court decisions, the Court has frequently focused on reasoning, rather than results. Indeed, the dissent recognizes as much when it argues that Marks requires consideration of dissenting opinions. Dissent at 1039-41, 1039-40 n. 9 (describing the various opinions in the fractured National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 69 S.Ct. 1173, 93 L.Ed. 1556 (1949), decision). As the dissent states, "[s]ince Tidewater, courts have universally accepted that Congress may not expand the scope of subject-matter jurisdiction conferred by Article III through passage of a Congressional Act," even though that rule could only be derived by combining the "views" or "rationale[s]" of Tidewater's concurrence and dissent. Dissent at 1039-40; 1039-40 n. 9. Thus, even the dissent acknowledges that the Supreme Court and lower courts have employed a reasoning-based approach to analyzing prior fractured Supreme Court decisions. A results approach cannot explain the governing rule that emerged from Tidewater.
Similarly, the dissent mischaracterizes United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), as employing a results-based approach. Dissent 1034 n. 7. In our view, the rule that "the legality of the government search must be tested by the scope of the antecedent private search," id. at 115-16, 104 S.Ct. 1652, represents a common reasoning shared by the dissenting and plurality opinions, not a result or outcome on which they agree. The dissent's own cases therefore contradict its assertion that a reasoning-based approach is an "invention" of the Ninth and D.C. Circuits. Dissent at 1030-31, 1035-36.
First, in United States v. Bride, we held that a defendant who was sentenced under a Rule 11(c)(1)(C) agreement could not seek a sentence reduction because his sentence was not "based on a sentencing range that had been subsequently lowered by the Sentencing Commission." 581 F.3d 888, 889 (9th Cir. 2009). We explicitly stated, however, that we did not "reach the issue of whether § 3582(c)(2) relief is necessarily precluded when the district court imposes a sentence pursuant to a Rule 11(c)(1)(C) plea agreement." Id. at 891 n. 5. Austin distinguished Bride on this basis. Austin, 676 F.3d at 927 n. 1. Nonetheless, to the extent Bride conflicts with our opinion today, it is overruled.
Second, in United States v. Pleasant, we cited Austin for the proposition that Justice Sotomayor's Freeman concurrence controls, and held that the defendant was eligible for a sentence reduction because his Rule 11(c)(1)(C) plea agreement fell under one of her two exceptions. 704 F.3d 808, 811 (9th Cir. 2013). Although the thrust of the Pleasant opinion focused on the separate question of whether a sentence reduction would be "consistent" with the Guidelines, we determined that Pleasant satisfied the threshold eligibility determination. Id. at 811-12. As with Bride, to the extent Pleasant's interpretation of Freeman is inconsistent with this opinion, it is overruled.
Nor did Justice Kennedy explicitly reject the idea "that his approach would limit relief to only a `subset of defendants,'" as the dissent claims. Dissent at 1037. Rather, in the passage the dissent cites, the plurality rejected Justice Sotomoyor's approach because of the arbitrariness of allowing sentence reductions only for those defendants whose plea agreements refer to the Guidelines. Freeman, 564 U.S. at 532-33, 131 S.Ct. 2685 (plurality opinion). Justice Kennedy never said he disagreed with Justice Sotomayor because her approach would "fail to permit resentencing in all cases." Dissent at 1037.
David appealed, arguing that the district court miscalculated the Guidelines range, and our panel reversed and remanded for resentencing. United States v. Davis, 312 Fed.Appx. 909, 912-13 (9th Cir. 2009) (unpublished). On remand, the district court held an evidentiary hearing about Davis's role in the offense, and then calculated a new (lower) Guidelines range of 188-235 months. The court then reimposed the same 216-month sentence as stipulated in the Rule 11(c)(1)(C) plea agreement. On a second appeal, we affirmed. See United States v. Davis, 389 Fed.Appx. 616 (9th Cir. 2010) (unpublished).
Id. at 612 (emphasis added).
By the same token, the Majority's rule would preclude us from deriving a binding rule from Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), where five Justices voted that the government's warrantless seizure of contraband films and viewing of those films on a projector violated the defendant's Fourth Amendment right. Id. at 652, 657, 660-62, 100 S.Ct. 2395. Two Justices voted for this result on the grounds that the government's act of viewing the films expanded the scope of a private party's earlier search, which had consisted only of opening the package that contained the films. Id. at 657, 100 S.Ct. 2395. Three Justices voted for this result for a completely different reason: that the government had exceeded its authority under the "plain view" doctrine. Id. at 660-62, 100 S.Ct. 2395. Thus, neither the approach adopted by the plurality nor the approach advanced by the concurrence was a "logical subset" of the other; and under the rule the Majority announces today, we could discern no "controlling" rule in Walter.
Yet such a conclusion is inconsistent with the Court's holding, only three years later in Jacobsen, that Walter did set forth a controlling rule: the rule advanced by the two-Justice plurality. See United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). The plurality's view was the "controlling" rule of Walter, because four Justices in dissent had also voted for the plurality's rule. Id. at 115-16, 104 S.Ct. 1652 ("[A] majority" in Walter "agree[d]" that "the legality of the governmental search must be tested by the scope of the antecedent private search."). Like in Marks, it was the vote of a majority of Justices that counted. I need not belabor the point, discussed more thoroughly infra, at pp. 1039-41, here. Suffice it to say that, as a federal intermediary court, we are not free to adopt a reasoning-based approach to Marks — an approach plainly inconsistent with the facts and holdings of Marks and later Supreme Court cases interpreting splintered opinions — simply because the Court has not yet had occasion expressly to reject that reasoning-based approach.
Writing for a three-justice plurality, Justice Jackson voted to uphold the statute under the rationale that Congress has the power to expand Article III by statute and thereby to confer subject-matter jurisdiction on bases not specified in Article III. See id. at 583-603, 69 S.Ct. 1173. That is, Justice Jackson would not disturb Hepburn's interpretation of Article III; he would simply hold that Congress may simply add a new basis for jurisdiction that does not exist in Article III. In a concurrence, Justice Rutledge, joined by Justice Murphy, strenuously disagreed that Congress had the power to expand Article III jurisdiction beyond the bases enumerated in the Constitution. See id. at 604-17, 69 S.Ct. 1173. Nevertheless, Justice Rutledge would overrule Hepburn's interpretation of Article III and would reinterpret Article III's reference to "citizen[s] of a state" as including citizens of Washington D.C. See id. at 617-626, 69 S.Ct. 1173. Justice Rutledge reasoned that "nothing but naked precedent, ... and the prestige of [Justice] Marshall's name, supports ... [the] unjust and discriminatory exclusion of District citizens from the federal courts. All of the reasons of justice, convenience, and practicality... point to the conclusion that [citizens of the District of Columbia] should enter freely and fully as other citizens and even aliens do." Id. at 617, 69 S.Ct. 1173. The four remaining Justices would have declined to overrule Hepburn; but they — like Justice Rutledge — also vehemently rejected Justice Jackson's suggestion that Congress had the power to create subject-matter jurisdiction not conferred by Article III. Thus, based on the rationale that the Court was bound by Justice Marshall's interpretation of Article III in Hepburn, and that Congress lacked authority to expand Article III, the dissenting Justices would have found the statute unconstitutional. See id. at 626-46, 69 S.Ct. 1173. In sum, six Justices agreed that Congress could not expand the scope of subject-matter jurisdiction of Article III courts beyond that provided by the Constitution. This view — which finds majority support only by combining the views of two concurring and four dissenting justices — is the governing rule. Tidewater therefore demonstrates that a "majority" view of the Court that binds us as intermediate courts may be comprised of dissenting and concurring justices, regardless of the quite obvious lack of any "logical subset" between the views expressed by the concurring and dissenting Justices.
Consideration of dissenting opinions to derive the "narrowest grounds" does not focus on the various reasonings as determinative of results. Indeed, it is just the opposite. Consideration of dissenting opinions is done not for the purpose of combining the rationales — an impossible task, since they are contradictory — but for predicting the vote (the result) which the dissenting opinions would add to the plurality opinion's votes for the next analogous case.
It is not the contradictory rationales that combine in Tidewater to result in a rule that "Congress may not expand the scope of subject-matter jurisdiction conferred by Article III through passage of a Congressional Act." See supra, at pp. 1039-40. It is the combined results of Justice Rutledge's and Justice Murphy's votes in favor of such a rule, plus the similar votes of the four dissenting Justices on that same issue that established the rule.
Seen from the other side of the case, it is the combination of the result of the votes of the 3-member plurality that Congress had the power to so expand subject-matter jurisdiction, with the 2-member concurrence, which vehemently rejected such power, but found that Art. III itself was originally intended to include D.C. citizens for purposes of establishing diversity of citizenship jurisdiction, that established the rule.
It was not a rule "derived by combining the `views' or `rationales[s]' of Tidewater's concurrence and dissent." Majority Op. 1022, n. 7. Just the opposite. It was a rule derived from the votes of the Justices, notwithstanding contradictory views or rationales used to explain the votes.
I note the Majority's "logical subset" also cannot be squared with Tidewater, as neither opinion in Tidewater was a logical subset of the other, and yet we have derived a binding holding from that splintered decision.
