Freeman in Action

In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court held that a defendant who enters into a Rule 11(c)(1)(C) plea agreement is eligible to seek a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) based on a reduction in the Sentencing Guidelines range if the original sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o). Today in United States v. Smith, a unanimous panel of the 6th Circuit applied Freeman and arguably expanded it.

In Smith, the (c)(1)(C) agreement included a guidelines calculation worksheet which came to an offense level of 35, 2 levels lower than the apparently correct offense level. This was because the plea agreement applied a 2 level enhancement for Smith’s role in the offense, and the guidelines would have applied a 4 level enhancement. At the time of sentencing, defense counsel argued that this 2 level difference was the product of plea negotiations, and,

"Worshiping the dead mandatory guidelines gives honor to the deceased guidelines and gives them more weight and respect than the rulings of the United States Supreme Court and the Sixth Circuit Court of Appeals. The mandatory guidelines should be left in their crypt and not brought above ground level."

Smith was then sentenced pursuant to the lower guidelines range contained in the plea agreement. Accordingly, if Smith’s guidelines range was calculated today, it would be the same one he was sentenced to (-2 for the new crack guidelines, +2 for the 4 level role enhancement instead of the 2 level one). However, the 6th Circuit held that Smith can have his cake and eat it too. He gets the benefit of the below guidelines range sentence in the (c)(1)(C) agreement and the benefit of the new crack guidelines.

The Court reached this conclusion by deciding that “the applicable Guidelines range for purposes of § 3852(c) is the one provided in the plea agreement.” In other words, on a 3582 motion, the court is stuck with all guidelines calculations provided in the (c)(1)(C) agreement, whether they result from mistakes, concessions, or otherwise. The one exception, of course, is a guidelines amendment like the crack one that lowers the guidelines ranges and entitles a defendant to 3582 relief.

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