United States v. Sean Frazier ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6213
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SEAN FRAZIER, a/k/a Brock,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cr-00086-WDQ-8)
Submitted: June 18, 2013 Decided: June 27, 2013
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Baltimore, Maryland; Thomas
Sarachan, Staff Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Barbara S. Sale, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sean Frazier appeals the district court’s judgment holding
him not entitled to a plea reduction. We affirm.
Frazier pled guilty to participation in a racketeering
conspiracy in violation of 18 U.S.C. § 1962(d). Pursuant to
Fed. R. Crim. P. 11(c)(1)(C), he and the Government agreed that
a sentence of 135 months imprisonment was “the appropriate
disposition of this case.” Accordingly, on July 24, 2009, the
district court sentenced him to 135 months imprisonment.
On November 1, 2010, the United States Sentencing
Commission lowered the guidelines for crack cocaine offenses; on
November 1, 2011, the Commission made this amendment
retroactive. See U.S.S.G. app. C. amends. 748, 750, 759. On
September 24, 2012, Frazier asked the district court to reduce
his sentence pursuant to 18 U.S.C. § 3582(c). Frazier
maintained that the crack cocaine amendments to the Sentencing
Guidelines provided a basis for the reduction. The district
court denied the motion, finding Frazier not eligible for a
sentence reduction. Frazier appeals that order.
We review a district court’s decision as to whether to
reduce a sentence pursuant to § 3582(c)(2) for abuse of
discretion. United States v. Mann, 709 F.3d 301, 304 (4th Cir.
2013). But we review the district court’s holding as to the
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scope of its authority to reduce a sentence pursuant to
§ 3582(c)(2) de novo. Id.
Resolution of the question raised here rests on the proper
application of Freeman v. United States, 131 S. Ct. 2685 (2011),
to the case at hand. In Freeman, the Supreme Court held that a
defendant sentenced in accord with Rule 11(c)(1)(C), as Frazier
was, is eligible for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) if his sentence had been “based on” a Sentencing
Guidelines range that had been lowered. But if the sentence was
“based on” the agreement of the parties, the defendant is not
eligible for a § 3582(c)(2) sentence reduction. The Freeman
Court divided 4-1-4, with a plurality concluding that defendants
who enter into Rule 11(c)(1)(C) pleas are not categorically
barred from eligibility for a § 3582(c)(2) sentence reduction.
Justice Sotomayor concurred in the judgment. Her opinion,
narrower than that of the plurality, controls. See United
States v. Brown, 653 F.3d 337, 340 (4th Cir. 2011) (applying
rule of Marks v. United States, 430 U.S. 188, 193 (1977) to find
Justice Sotomayor’s opinion in Freeman controlling), cert.
denied, 132 S. Ct. 1003 (2012).
Justice Sotomayor concluded that a defendant who pleads
guilty in accordance with Rule 11(c)(1)(C) can demonstrate his
sentence was “based on” a Guidelines range and so he is eligible
to seek a plea reduction pursuant to § 3582(c)(2) only in two
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instances. The first is where the plea 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). Frazier does not maintain that his
plea agreement “call[s] for” him “to be sentenced within a
particular Guidelines range.”
But Frazier does maintain that Justice Sotomayor’s second
exception to the general rule that defendants making Rule
11(c)(1)(C) pleas are not eligible for § 3582(c)(2)’s reductions
applies to him. That second exception applies when the plea
agreement (1) “provide[s] for a specific term of imprisonment”
and (2) “make[s] clear that the basis for the specified term is
a Guidelines sentence range applicable to the offense” of
conviction provided that “the sentencing range is evident from
the agreement itself.” 131 S. Ct. at 2697.
Applying this test, we must affirm the district court’s
holding that Frazier does not qualify for a § 3582(c)(2)
sentence reduction. Frazier’s agreement does provide for a
specific term of imprisonment -- 135 months. But the agreement
does not make clear that the specified term is a Guidelines
sentencing range applicable to the sentence of conviction, let
alone make this “evident from the agreement itself.”
As the district court noted, Frazier’s plea agreement
“disclaimed any agreement as to his criminal history or criminal
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history category” and gave no “Guidelines sentencing range.”
Thus, the agreement “does not make clear that the agreed
sentence was based upon a Guidelines calculation.” We note
that, on very similar facts, the First Circuit has come to the
same conclusion. See United States v. Rivera-Martinez, 665 F.3d
344, 349 (1st Cir. 2011); see also United States v. Austin, 676
F.3d 924, 930 (9th Cir. 2012); Brown, 653 F.3d at 340.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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