United States v. Falcon-Sanchez , 622 F. App'x 766 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
November 25, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 15-3127
v.
(D.C. No. 2:07-CR-20077-KHV-1)
(D. Kan.)
JOSE L. FALCON-SANCHEZ,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.
After the Sentencing Commission lowered the base offense levels for
certain drug crimes, see U.S. Sentencing Guidelines Manual app. C, amend. 782
(Supp. 2014), Jose Falcon-Sanchez asked the district court to reduce his sentence
under 18 U.S.C. § 3582(c)(2). The district court denied his request, holding that
Mr. Falcon-Sanchez isn’t eligible for such a reduction because his Rule
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
11(c)(1)(C) plea agreement called for a specific stipulated sentence — 168
months in prison — and did not rely on an advisory guidelines sentencing range.
On appeal, Mr. Falcon-Sanchez argues he is entitled to relief under the
Supreme Court’s decision in Freeman v. United States, 131 S. Ct. 2685 (2011).
The questions presented in Freeman were whether and when an initial sentence
imposed (as here) under a Rule 11(c)(1)(C) plea agreement can be said to be
“based on” a Guidelines sentencing range. See id. at 2690 (plurality opinion).
Freeman produced a fractured result. Four justices indicated that they
would “permit the district court to revisit a prior sentence to whatever extent the
sentencing range in question was a relevant part of the analytic framework the
judge used to determine the sentence or to approve the agreement.” Id. at 2692-
93. The dissent preferred a categorical rule barring any revision to a sentence
imposed under a Rule 11(c)(1)(C) agreement. Id. at 2700-01 (Roberts, C.J.,
dissenting). And Justice Sotomayor, writing for herself in a controlling
concurrence, rejected both the plurality’s approach and the dissent’s. She
suggested instead that district courts have authority to revise a sentence only
“when a [Rule 11(c)(1)(C)] agreement expressly uses a Guidelines sentencing
range to establish the term of imprisonment.” Id. at 2698 (Sotomayor, J.,
concurring in the judgment); see also United States v. Graham, 704 F.3d 1275,
1278 (10th Cir. 2013) (recognizing that “Justice Sotomayor’s concurrence . . .
represents the Court’s holding”).
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Justice Sotomayor identified two scenarios in which a prisoner may qualify
for a revised sentence. The first occurs when the agreement “call[s] for the
defendant to be sentenced within a particular Guidelines sentencing range.”
Freeman, 131 S. Ct. at 2697 (Sotomayor, J., concurring in the judgment). The
second occurs when the agreement expressly “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.” Id.Mr. Falcon-Sanchez satisfies neither of these conditions for relief. Because
his plea agreement stipulated to a sentence of 168 months, the district court was
never asked to sentence Mr. Falcon-Sanchez within a particular sentencing range.
Neither did the agreement clearly indicate that the basis for his sentence was a
particular guidelines sentencing range. In fact, the agreement contains language
stating exactly the opposite: “because this proposed sentence is sought pursuant
to Fed. R. Crim. P. 11(c)(1)(C), the parties are not requesting imposition of an
advisory guideline sentence.”
Because Mr. Falcon-Sanchez’s sentence was based on his Rule 11(c)(1)(C)
plea agreement and not on an advisory guidelines sentencing range that has been
lowered by the sentencing commission within the meaning of the controlling
opinion in Freeman, the district court properly recognized that it lacked authority
to revise it. See, e.g., United States v. Rivera-Martínez, 665 F.3d 344, 348-50
-3-
(1st Cir. 2011); United States v. Price, No. 15-3125, 2015 WL 5915954, at *2-3
(10th Cir. Oct. 9, 2015).
Affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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