Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2009

USA v. Eric Sanchez
Precedential or Non-Precedential: Precedential

Docket No. 08-1847




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                                         PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 08-1847
                   _____________

          UNITED STATES OF AMERICA

                          v.

                  ERIC SANCHEZ,
                     a/k/a "E",

                     Appellant.
                  _______________

    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
              (D.C. No. 00-cr-00300-002)
      District Judge: Honorable Sylvia H. Rambo
                   _______________

      Submitted Under Third Circuit LAR 34.1(a)
                  February 2, 2009

Before: RENDELL, JORDAN and ROTH, Circuit Judges.

                 (Filed April 3, 2009)
                  _______________
James V. Wade
Ronald A. Krauss
Federal Public Defender - Appeals
100 Chestnut Street - #306
Harrisburg, PA 17101
       Counsel for Appellant

Martin C. Carlson
Christy H. Fawcett
United States Attorney’s Office
Federal Building
228 Walnut Street
Harrisburg, PA 17108
       Counsel for Appellee
                     _______________

                 OPINION OF THE COURT
                     _______________

JORDAN, Circuit Judge.

       Eric Sanchez appeals the order of the United States
District Court for the Middle District of Pennsylvania denying
his motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2), the statutory provision allowing a court to reduce
a sentence which is “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission ... .”

Court determined that Sanchez was convicted
of an offense that carried a mandatory minimum term of


                               2
imprisonment and that he was therefore ineligible for the
requested relief. For the following reasons, we will affirm.

I.            Background

       On August 8, 2001, Sanchez was charged in a seven-
count superseding indictment with various federal offenses
related to the distribution of crack cocaine.1 He originally pled
not guilty, but, after three days of trial, he appeared before the
District Court to plead guilty to one count of conspiracy to
distribute 50 grams or more of crack cocaine. At the change-of-
plea hearing, Sanchez reported, through counsel, that he and the
government had reached a plea agreement which they wanted to
be binding under Federal Rule of Criminal Procedure
11(e)(1)(C),2 and pursuant to which, in exchange for Sanchez’s


          1
      Specifically, Sanchez was charged with one count of
conspiring to use a firearm during a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A); three counts of using a
firearm during a drug-trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A), (o); one count of conspiring to distribute
and possess with intent to distribute 50 grams or more of crack
cocaine, in violation of 21 U.S.C. § 846; and two counts of
distributing and possessing with the intent to distribute 50 grams
or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2.
     2
         That subsection of the Rule provides, in pertinent part:



                                     3
plea, the government promised to drop the remaining counts of
the indictment. In addition, the prosecutor told the Court that
the parties stipulated that the quantity of crack cocaine involved
in the conspiracy was “between 35 to 50 grams.” (App. at 35.)
 Most significantly, the prosecutor explained that “the intent of
the plea agreement [was] that the defendant w[ould] receive a
sentence of ten years.” (Id.)

        The Court responded by acknowledging its understanding
“that the amount of drugs ... is agreed to be between 35 and 50
grams.” (Id. at 36.) Then, at the specific request of Sanchez’s
counsel, the Court further acknowledged that the terms of the
agreement, if accepted by the Court, were to be binding under
Rule 11(e)(1)(C). Later in the hearing, the Court asked the
government to put on the record the facts supporting its case
against Sanchez. The prosecutor said that the government
would be able to prove that “the quantity of crack cocaine that
was conspired to be distributed or possessed with intent to
distribute was between 35 and 50 grams.” (Id. at 38.) Sanchez


If the defendant pleads guilty ... to either a charged offense or a
lesser or related offense, the plea agreement may specify that an
attorney for the government will ... agree that a specific sentence
or sentencing range is the appropriate disposition of the case, or
that a particular provision of the Sentencing Guidelines, or
policy statement, or sentencing factor does or does not apply
(such a recommendation or request binds the court once the
court accepts the plea agreement).

The subsection has since been renumbered as Rule 11(c)(1)(C).

                                4
orally agreed to the amount and entered a guilty plea, which the
Court accepted. Then, although the binding agreement provided
that Sanchez would receive a sentence involving ten years’
imprisonment, the Court rightly deferred sentencing pending its
receipt of a presentence report (“PSR”).3

       The parties had not reduced their agreement to writing by
the time of the change-of-plea hearing, and nothing in the record
indicates that they ever did, but the District Court apparently
shared their understanding that the agreement was binding.
Accordingly, it instructed the government to indicate “in your
plea agreement, when it is drafted, ... that this is pursuant to
Rule 11(e)(1)(C), and that the Court has accepted this plea
agreement.” (App. at 39.)

       Sanchez was sentenced on August 30, 2002. The
probation officer who prepared the PSR calculated the
sentencing range – based on a drug weight of 50 grams or more
of crack cocaine – at 121 to 151 months, but he acknowledged
that, pursuant to the parties’ agreement, Sanchez would be
sentenced to ten years’ imprisonment. Although Sanchez
objected to the amount of drugs attributed to him in the PSR, he
and his counsel expressly agreed at sentencing that the objection
was rendered moot by the stipulated term of imprisonment in the
plea agreement. In keeping with that agreement, the Court


   3
   While the plea agreement provided for a specific term of
imprisonment, it did not touch on any of the other aspects of
Sanchez’s sentence, such as his post-release supervision or
whether a fine should be imposed.

                               5
sentenced Sanchez to 120 months’ imprisonment. In its
Statement of Reasons in support of the sentence, the Court
adopted the factual findings in the PSR and stated that it was
departing from the Guidelines range due to the binding plea
agreement under Rule 11(e)(1)(C).

        Subsequently, the U.S. Sentencing Commission
announced a two-level reduction on crack cocaine offenses and
made that amendment retroactive. Sanchez then moved pro se
for a sentence reduction under 18 U.S.C. § 3582(c)(2). On
March 12, 2008, the District Court denied his motion on the
basis that he had received a mandatory minimum sentence – ten
years imprisonment – for conspiracy to distribute 50 grams or
more of crack cocaine. Such sentences, according to the Court,
were not eligible for reduction under the retroactive crack
cocaine amendments. Sanchez’s timely appeal followed.

II.    Discussion

       The District Court had jurisdiction over this matter
pursuant to 18 U.S.C. § 3231. Our jurisdiction arises under 28
U.S.C. § 1291. The District Court ruled that it lacked the
authority to reduce Sanchez’s sentence under 18 U.S.C.
§ 3582(c)(2), which presents a legal issue subject to de novo
review.4 See United States v. Edwards, 

(3d Cir.


  4
    Pertinent authority suggests that abuse-of-discretion review
is appropriate when a court declines to reduce a defendant’s
sentence, despite having the authority to do so. The circuit
courts that have considered the issue thus far have applied that

                               6
2002) (“Our review over legal questions concerning the proper
interpretation of the Sentencing Guidelines is plenary.” (internal
citation omitted)).

       According to Sanchez, the District Court erred by treating
his ten-year prison sentence as a mandatory minimum and
denying on that basis his motion for a sentence reduction.
Sanchez pled guilty to Count Five of the indictment, which
expressly charged him with conspiracy to distribute “50 grams
and more” of crack cocaine (App. at 28), a crime for which 21
U.S.C. § 841(b)(1)(A)(iii), in conjunction with 21 U.S.C. § 846,
imposes a 120-month minimum sentence. Sanchez contends,
however, that while his sentence may have been in accord with


standard. E.g., United States v. Carter, 

, 490 (6th
Cir. 2007); United States v. Rodriguez-Pena, 

, 432
(1st Cir. 2006); United States v. White, 

, 1267
(11th Cir. 2002); United States v. Dorrough, 

, 1311
(10th Cir. 1996). Moreover, that standard accords with the
language of 18 U.S.C. § 3582(c), which states that a court “may
reduce the term of imprisonment ... if such a reduction is
consistent with applicable policy statements issued by the
Sentencing Commission” (emphasis added), and that standard
is also in keeping with our usual review of district courts’
sentencing determinations, e.g., United States v. Lloyd, 

, 321 (3d Cir. 2006) (internal citation omitted). This case,
however, does not present an opportunity for us to employ
abuse-of-discretion review, because the District Court ruled that
it could not give Sanchez a sentence reduction under
§ 3582(c)(2).

                                7
a statutory minimum, it was based on a Rule 11(e)(1)(C) plea
agreement, in which he and the government stipulated that he
was responsible for “between 35 to 50 grams” of the drug and
would receive a sentence including 120 months’ imprisonment.
(App. at 35.) That stipulation, he argues, should be read as
meaning “at least 35, but less than 50, grams,” a quantity that
would not have subjected him to the mandatory minimum of ten
years under § 841(b)(1)(A)(iii).

        Although the count of the indictment to which Sanchez
pled guilty clearly charged him with responsibility for “50 grams
and more” of crack cocaine (App. at 28), Sanchez’s position
cannot be dismissed out of hand. First, it has some logical force
in the abstract. Fifty grams is a highly significant amount when
it comes to crack cocaine sentencing, one that triggers a ten-
year, rather than a five-year, mandatory minimum sentence
under 21 U.S.C. § 841(b)(1)(A)(iii), and leads to a higher base
offense level under the Sentencing Guidelines, see U.S.S.G.
§ 2D1.1(c)(5), (6) (providing a base offense level of 30 for “[a]t
least 50 g[rams] but less than 150 g[rams] of cocaine base” and
a level of 28 for “[a]t least 35 g[rams] but less than 50 g[rams]”
of the substance). It would be odd to stipulate to a range of
crack cocaine amounts that, depending on how the stipulation is
read, straddles penalty provisions in both the applicable statute
and the Sentencing Guidelines.

       Second, Sanchez’s argument has some support in the
record. During the plea colloquy, the District Court said, “It is
my understanding that the amount of drugs in this [case] is
agreed to be between 35 and 50 grams, and that there is
apparently an indication that he would receive ten years.” (App.

                                8
at 36-37.) Counsel for the government assented, saying, “That’s
correct, Your Honor. I should specify between 35 and 50 grams
of crack cocaine.” (Id. at 37.) Given that all were in accord that
Sanchez’s part in the charged conspiracy involved 35 to 50
grams of crack, it can be argued that everyone in the courtroom
was trying to give effect to a deal exposing Sanchez to
punishment geared to their specific agreement, not to the
minimum mandatory punishment set forth in § 841(b)(1)(A)(iii).
Moreover, despite the unambiguous wording of the charging
document, the government, in the brief it submitted to us,
concedes that it is “unclear ... whether Sanchez was subject to a
[ten]-year mandatory minimum sentence based on the quantity
of crack cocaine involved ... .” (Gov’t Br. at 14.)

      We need not sort out the conflicting signals in the record,
however, because we are able to affirm on the alternative
ground that Sanchez’s sentence was the result of a binding plea
agreement and is therefore not subject to reduction under 18
U.S.C. § 3582(c)(2).5 “An appellate court may affirm a result


  5
    It can certainly be argued that the guilty plea actually makes
irrelevant the stipulation regarding the amount of drugs. Having
sworn in open court that he distributed 50 grams or more of
crack cocaine, which carries with it a ten-year minimum
mandatory sentence, his earlier comments and contentions about
the amount involved could be viewed as being superseded by a
conclusive admission. Approaching the case in that manner,
however, raises the question of whether the amount of the drug
charged in the indictment is an element of the charged offense.
Compare United States v. Serrano-Lopez, 

, 638

                                9
reached by the District Court on different reasons, as long as the
record supports the judgment.” Guthrie v. Lady Jane Colleries,
Inc., 

, 1145 n.1 (3d Cir. 1983) (citing Helvering
v. Gowran, 

, 245 (1937)). Here, despite the
contradictory character of the colloquy and the charging
language, the record is clear at least in this: Sanchez was
sentenced pursuant to a stipulation in a Rule 11(e)(1)(C) plea
agreement.

        To stave off that conclusion, Sanchez contends that there
is insufficient evidence that the District Court ever accepted his
plea. The record, however, definitively proves the opposite.
Although Sanchez leans heavily on the District Court’s decision
to delay sentencing until it had received the PSR – a fact that,
out of context, might indicate that the Court had yet to accept
the binding plea agreement – that deferral must be seen in light
of two statements indicating the Court’s acceptance of the plea
at the change-of-plea hearing. First, after Sanchez’s counsel


(8th Cir. 2004) (quantity is an element of drug offenses where
“it can and does lead to the imposition of a sentence greater than
the otherwise applicable statutory maximum”) with United
States v. Outen, 

, 635 (2d Cir. 2002) (quantity
becomes an element of the offense where it “may be used to
impose a sentence above the statutory maximum for an
indeterminate quantity of drugs”) and with United States v.
Smith, 

, 741 (7th Cir. 2002) (quantity not an
element of § 841 offenses). We need not decide that issue
today, since we can dispose of the case on the basis of the Rule
11(e)(1)(C) agreement.

                               10
confirmed that the parties were agreed as to the plea’s binding
nature, the Court said, “I will accept that.” (App. at 37.) Then,
the Court gave the government the following instructions: “And
in your plea agreement, when it is drafted, would you indicate
that this is pursuant to Rule 11(e)(1)(C), and that the Court has
accepted [it]?” (App. at 39.)

        There is further proof that the parties reached, and the
Court approved, a binding agreement. At Sanchez’s sentencing
hearing, the Court asked him and his counsel whether they
agreed that their objections to the PSR were preempted by the
binding agreement, to which they both responded affirmatively.
Moreover, in its written Statement of Reasons supporting the
sentence, the Court noted that it had departed from the
Guidelines range “[p]ursuant to the terms of the binding plea
agreement under Rule 11(e)(1)(C) of the Federal Rules of
Criminal Procedure.” Given those statements, Sanchez’s claim
that the Court never accepted the agreement is plainly untenable.

       Sanchez also implies that the plea agreement was non-
binding because it was never reduced to writing.6 “Plea
agreements, although arising in a criminal context, are analyzed
under contract law standards.” United States v. Nolan-Cooper,

, 236 (3d Cir. 1998) (citing United States v.
Moscahlaidis, 

, 1361 (3d Cir. 1989)). Just as
contracts are not invalid simply because they are made orally,


   6
    The government neither admits nor denies that the plea
agreement was not written down, but no written agreement
appears in the record.

                               11
the same is true of plea agreements. See Santobello v. New
York, 

(1971) (finding government in breach of
plea agreement for reneging on oral promise to abstain from a
sentencing recommendation); Brown v. Poole, 

,
1159 (9th Cir. 2003) (“The terms of oral plea agreements are
enforceable, as are those of any other contracts, even though
oral plea agreements are not encouraged by reviewing courts.”).
Here, the record establishes that the parties reached an
agreement as to Sanchez’s guilt concerning a particular charge,
the amount of drugs for which he was responsible, and the
sentence he was to receive. Written or not, that agreement is
binding on Sanchez, and nothing that occurred either at the plea
hearing or at sentencing indicates that anyone understood it to
be less than that.

        Finally, Sanchez argues that, even if he entered into a
binding plea agreement, its existence does not render him
ineligible for the sentence reduction he seeks. Under 18 U.S.C.
§ 3582(c)(2), a court may reduce the prison term of a “defendant
who has been sentenced ... based on a sentencing range that has
subsequently been lowered by the Sentencing Commission ... .”
While we have not applied this provision to a defendant in
Sanchez’s situation, at least three Circuit Courts have concluded
that a sentence prescribed in a binding plea agreement is not
“based on” a subsequently lowered sentencing range. We find
their reasoning to be persuasive.

       In United States v. Trujeque, 

(10th Cir.
1996), the Tenth Circuit held that a district court lacked
jurisdiction to consider a motion for sentence reduction under
§ 3582(c)(2), based on an amendment concerning the calculation

                               12
of LSD weight, when a defendant was sentenced pursuant to a
binding plea agreement. Because Trujeque, like Sanchez, had
agreed to serve a specific term of imprisonment, the Court
reasoned that the retroactive amendment had no effect on the
original sentence. 

         The Sixth Circuit adopted the logic of Trujeque in United
States v. Peveler, 

(6th Cir. 2004), which affirmed
a district court decision claiming a lack of authority to modify
a sentence imposed pursuant to a binding plea agreement,
notwithstanding a retroactive amendment that lowered the
Guidelines range applicable to the defendant. Notably, Peveler
and the government had not agreed to a specific sentence, but to
a total offense level based on specific calculations that appeared
in the plea, from which the court would derive a sentence. 

Regardless, the Court concluded that “absent an
agreement of the parties, the plain language of ... Rule
11(c)(1)(C) generally precludes the district court from altering
the parties’ agreed sentence under § 3582(c).” 

The
Seventh Circuit has likewise ruled that “[a] sentence imposed
under a Rule 11(c)(1)(C) arises directly from the agreement
itself, not from the [Sentencing] Guidelines.” United States v.
Cieslowski, 

, 364 (7th Cir. 2005).

       Sanchez attempts to distinguish his case from Trujeque
on the basis that his ten-year sentence fell within, and was thus
“based on,” his Guidelines range, whereas Trujeque, who was
subject to a Guidelines range of 27 to 33 months, received an
84-month sentence. Sanchez refers to the range found by the
sentencing court in that case, but, according to the Tenth Circuit,
the sentencing decision “erroneously stated Trujeque’s ...

                                13
sentencing range under the 

n.3.
Indeed, Trujeque’s sentence was within the Guidelines, even as
amended. 

        As for other cases finding sentences imposed pursuant to
binding agreements ineligible for reduction, Sanchez claims that
they are unpersuasive in light of § 3582(c)’s plain language.
But it is he who strains the statutory text. As stated above,
§ 3582(c)(2) permits a court to reduce the prison term of a
“defendant who has been sentenced ... based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission ... .” (emphasis added). According to Sanchez, the
fact that his ten-year sentence fell within what would have been
his Guidelines range shows that the parties considered the
Guidelines when agreeing on a sentence. In this manner, he
says, his sentence is “based on” a subsequently lowered range.7


  7
   Sanchez does find support for his position in a recent Fourth
Circuit opinion. In United States v. Dews, 

(4th
Cir. 2008), a majority of the panel held that two defendants who
received 168-month sentences pursuant to Rule 11(e)(1)(C) plea
agreements were eligible for crack-cocaine sentence reductions
under § 3582(c)(2). According to the majority, the sentences
were “based on” the Guidelines, as well as the plea agreements,
because the district court did not accept the pleas until it
confirmed that the agreed-on sentences were within the
Guidelines range. 

Even under this reading of §
3582(c)(2), it is unclear how the defendants in that case were
eligible for sentence reductions. The meaning of “based on”
aside, the defendants – and the district court – are still bound to

                                14
the terms of the Rule 11(e)(1)(C) agreements, which called for
specific sentences. “Under contract principles, a plea agreement
necessarily ‘works both ways.’ Not only must the government
comply with its terms and conditions, but so must the
defendant.” 

(3d Cir. 2007) (quoting
United States v. Carrara, 

, 107 (3d Cir. 1995)); see
also United States v. Makai, 

, 955 (9th Cir. 1994)
(“The rules contain no provision for the district court to modify
a Rule 11(e)(1)(C) plea agreement.”). We agree with the dissent
in Dews, which “would [have] conclude[d] on that basis alone
that the district court correctly determined that it did not have
jurisdiction to consider the ... § 3582(c)(2) motion[s] for
reduction of 

.
        In expressing agreement with Sanchez, the dissent cites
Dews and the contract principle of “fundamental assumption.”
Here, according to the dissent, the relevant Sentencing
Guideline constitutes the mutually held fundamental assumption
on which Sanchez’s agreement to a ten-year sentence was
conditioned. And, because the Guideline was altered five years
after the sentence was entered, the dissent’s reasoning is
presumably that the parties have turned out to be mistaken in
their assumption, so Sanchez may rescind his promise. Had
both parties misunderstood the applicable Guideline at the time
they entered into the plea agreement, the dissent’s analysis
would carry more weight. But they did not. There is no
indication of a mutual mistake. Nor does the record or common
sense, to which the dissent appeals, suggest that the government
entered the plea agreement on the assumption that the
Guidelines would never change. Just as the buyer of an

                               15
The flaw in Sanchez’s reasoning is two-fold. First, there is
nothing in the record to support his assertion that the parties
based the ten-year term on a Guidelines calculation. We could
speculate about how they came to that number, but it would be
pure speculation. Second, even if the parties did as Sanchez
claims, the pertinent question is not answered by the parties’
background negotiations. The question is what is the sentence
based on, and the answer depends on what happened in court.
Because district courts, not parties, impose terms of
imprisonment, § 3582(c)’s language directs our attention to what
the District Court considered in sentencing the defendant. See
18 U.S.C. § 3582(c)(2) (“[T]he court may reduce the term of
imprisonment, after considering the factors set forth in section
3553(a) to the extent that they are applicable, if such a reduction
is consistent with applicable policy statements issued by the
Sentencing Commission.”). Here, the record shows that
Sanchez was sentenced based on a binding plea agreement under
Rule 11(e)(1)(C) and not on a range from the Sentencing
Guidelines. If “binding” is to have meaning, it cannot be
undone by the discretionary possibility of a different sentence




automobile cannot rescind his purchase when the market
changes and the same model suddenly becomes cheaper,
Sanchez must likewise live with the bargain he made, though he
might have later gotten the same deal at a price less dear. His
unilateral assumption about the invariability of the Guidelines,
if he actually had such an assumption, does not entitle him to
change the arrangement he made with the government.

                                16
under § 3582(c). Sanchez is therefore ineligible for a reduction
under that statute.8




 8
    The dissent notes that all plea agreements are binding, except
for those expressly made conditional. While it is true that all
plea agreements are binding on the parties, only those entered
pursuant to what is now Rule 11(c)(1)(C) are binding on the
sentencing court. That distinction is significant in the § 3582(c)
context, which obliges us to ask what the sentence is “based on.”
Where, as here, the District Court accepted a so-called “C” plea,
the answer is simple: the sentence is based on the terms
expressly agreed on by the defendant and the government. That
is what the Rule itself demands.
          We are not, as the dissent suggests, eliding the question
of whether Sanchez’s sentence is also based on a Sentencing
Guideline. On the contrary, we are confronting it head-on.
Sanchez’s sentence cannot be based on the Guidelines because
the Court lacked the discretion to consider anything outside of
the parties’ agreement in sentencing him. According to the
dissent, the parties must have considered the relevant Guideline
in negotiating a sentence. But even if the dissent were correct,
it is ultimately irrelevant what the parties considered. Sanchez’s
sentence is “based on” whatever the District Court considered
in imposing it, and, as we have explained, the District Court was
constrained to adhere strictly to the terms of the parties’
agreement.

                                17
III.   Conclusion

      For the foregoing reasons, we will affirm the District
Court’s denial of Sanchez’s motion for a sentence reduction
under 18 U.S.C. § 3582(c)(2) on the basis that Sanchez was
sentenced pursuant to a binding plea agreement under Federal
Rule of Criminal Procedure 11(e)(1)(C).

RENDELL, Circuit Judge, Concurring:

       I agree with Judge Jordan that we can affirm the District
Court's denial of a reduction, but would do so without deciding
what Sanchez’s sentence was “based on.” Here, there was a
binding plea agreement – binding not only on the parties, but on
the court as well – that would prevent the District Court from
ever imposing a different sentence. There was no provision in
the plea agreement that a later amendment to the guidelines, or
consideration of crack / cocaine disparity, would permit re-
sentencing. Absent some agreed-upon basis for a different
sentence, the plea agreement was binding as a matter of law.
Rule 11(c)(1)(C) so states.9
       The District Court here made it abundantly clear at
sentencing that she was bound by the terms of the plea
agreement to impose the 120 months’ sentence. Judicial
opinions considering this issue have recognized the contractual
nature of such agreements, binding the courts as well as the


  9
   Rule 11(c)(1)(C) specifically states that the government may
agree to a specific sentence in a plea agreement, and that this
“binds the court once the court accepts the plea agreement.”

                              18
parties. See, e.g., United States v. Peveler, 

, 379
(6th Cir. 2004) (“[T]he plain language of . . . Rule 11(c)(1)(C)
generally precludes the district court from altering the parties’
agreed sentence under 18 U.S.C. § 3582(C). This conclusion
applies despite the retroactivity of a subsequent amendment to
a relevant guideline utilized to determine the defendant’s
sentence.”); United States v. Dews, Nos. 08-6458, 08-6476,

, at *13 (4th Cir. Dec. 30, 2008) (Agee, J.,
dissenting).
       I suggest that the exercise of trying to divine what the
sentence was “based on” serves little purpose, for, whether or
not section 3582(a)(2) permits Sanchez to file a motion, and
whether or not this provision states (as it does) that the
sentencing court then “may reduce” his sentence, in truth, it
cannot. The agreement is the agreement, binding on the District
Court without exception applicable here. The filing of the
motion is as useless an act as is our agonizing over what the
sentence was “based on.” A cc ordingly, w e sh ould af firm
because the District Court was without authority to reduce the
sentence it imposed on Sanchez by virtue of the binding plea
agreement.

ROTH, Circuit Judge, Dissenting:

        No good deed goes unpunished. The majority provides
for resentencing under § 3582(c) for criminal defendants who go
to trial – but not for those who enter into binding plea




                               19
agreements.10 For the majority, the binding nature of such
agreements justifies a difference in the treatment between the
offenders who choose to go to trial and those who choose to
plead guilty thus saving judicial and governmental resources.11
I find this distinction false because a jury verdict is also binding
on the parties. Accordingly, I believe that the binding effect of
the factors leading up to the judgment should not preclude the
application of § 3582(c). For these reasons, I respectfully
dissent from the majority opinion and suggest that defendants
sentenced under binding plea agreements should be permitted to
move for resentencing based on a change in the Guidelines that
would affect the basic elements that led up to the final plea
agreed upon.
        Although I appreciate the majority's sincere interest in
holding defendants, prosecutors, and courts to the bargain that
is created once a district court accepts a plea agreement under
Rule 11(c)(1)(C), I do not see how permitting a defendant to
later seek resentencing under § 3582(c)(2) destroys this bargain.
I agree with the reasoning of the Fourth Circuit Court of
Appeals in United States v. Dews, 

(4th Cir. 2008):
a plea agreement specifying a particular sentence does not
necessarily include the waiver of a defendant's right to seek
resentencing under § 3582(c)(2). 

A defendant, like
Sanchez, who agrees to accept a certain sentence, does not agree


   10
     I am not aware of plea agreements that are not binding,
except as specifically made conditional.
   11
     Sanchez of course pled guilty part way through his trial,
thus only saving part of the trial expense.

                                20
that he will not seek resentencing if at some point in the future
the Guideline on which his sentence is based changes. Such a
waiver must be specifically bargained for, just like the waiver of
a defendant's right of appeal or other possible terms of a plea
agreement.
        In addition, I take issue with my colleagues’ refusal to
address whether or not Sanchez’s sentence was “based on” a
Sentencing Guideline that was subsequently changed. Because
I believe defendants, who enter into binding plea agreements,
should be permitted to file motions for resentencing under §
3582(c)(2), I will touch briefly on this issue.
        The majority suggests not enough information exists in
the record to divine whether the 120-month sentence, stipulated
to in the plea agreement, was based on the Guidelines. From my
perspective, it strains credulity to imagine that the plea
agreement was not based on the Guidelines. When offenders are
considering a plea, the sentencing consequences, including the
impact of the Sentencing Guidelines, are a crucial element in
reaching the bargain. Of course, mandatory minimum terms of
imprisonment will also be an element. All these factors are
considered in a plea negotiation.
        Sanchez pled to conspiracy to distribute between 35 and
50 grams of crack cocaine.12 Under the Guidelines in effect at
the time of his sentencing, this amount of drugs resulted in a


    12
       The majority points to some confusion over whether
Sanchez actually pled to 50 grams and more or between 35 and
50 grams. This confusion is more imagined than real. It is clear
from the transcript of the plea hearing that the parties intended
the amount to be between 35 and 50 grams.

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base offense level of 30 and a sentence range of 97-121 months.
It requires only the smallest inference to determine this
Guidelines sentence range provided the boundaries of what
would be acceptable to both the Government and Sanchez,
resulting in their selection of 120 months in their plea
agreement.13


     13
        The majority and the concurrence both couch their
arguments that plea agreements must be strictly adhered to in
contract terms. One contract principle they have neglected to
mention is that even where a contract has been fully integrated,
a plaintiff may demonstrate the existence of a “fundamental
assumption” that is a basic condition of the contract. As Corbin
observes:

          It very often happens that when two parties are trying to
          integrate their agreement in a writing, they omit to state
          some fundamental assumption on the basis of which, as
          both of them well know, the agreement is being made.
          The mere existence of the writing should never be held
          to exclude testimony of such an unstated fundamental
          assumption. The truth of this assumption – the existence
          of the fact that is assumed – is a condition of the
          obligation of the written promise....

6 Arthur Linton Corbin, Corbin on Contracts § 590, at 240 (rev.
ed. 2002). Where a plea agreement is the contract involved, it
is commonsense that the relevant Sentencing Guidelines for a
defendant’s offense would constitute a “fundamental
assumption” that the parties both held unless proven otherwise.

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       For the foregoing reasons, I respectfully dissent and
suggest that we should reverse the denial of the motion for
resentencing under § 3582(c)(2) and remand this case for a
redetermination of Sanchez’s motion.




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