For "Drugs Minus Two" Relief, Rule 11(c) Agreements Must Explicitly Refer to Guidelines Range

          In case you missed it in the excitement over the Supreme Court declaring Johnson retroactive less than three weeks after hearing argument on the issue, the Sixth Circuit today continued its recent trend of publishing decisions rejecting motions under 18 U.S.C. § 3582 for relief under Guideline Amendment 782, aka “drugs minus two.” Fortunately, there are still plenty of ways for defendants to "shoot the gap" and gain relief.

          First, in February, the court in United States v. Smith, No. 15-5853, held that a defendant is ineligible for relief if Amendment 782 wouldn't have affected the original guideline range because the defendant was a career offender. This ruling doesn't apply, however, even to career offenders, if the defendant’s guideline range based on the drug guideline was higher than the range based on the career-offender guideline.

          Next, in March, the court in United States v. Taylor, No. 15-5930, concluded (over Judge Merritt’s dissent) that § 3582 relief is unavailable for drug offenders who received a downward variance based on a mix of substantial assistance and other “non-assistance factors.” Offenders who received a downward variance based solely on assistance remain eligible for relief. See USSG § 1B1.10(b).

          Then today, in United States v. McNeese, No. 15-5548, the court decided that a defendant who pleads guilty according to a Rule 11(c) plea agreement is not eligible for relief under § 3582 if the agreement itself does not explicitly mention a guideline range. Section 3582(c)(2) requires, for a sentencing reduction, that the sentence be “based on” a sentencing range that was subsequently lowered by the Sentencing Commission. Relying on United States v. Freeman, the court concluded that, even if by the time of sentencing it was clear the sentence was derived from a guidelines range, the range must be clear from the agreement itself in order to qualify for relief. McNeese is fairly easy to distinguish: As long as a Rule 11(c) plea agreement explicitly incorporates a guideline range, McNeese shouldn’t bar relief.