United States Court of Appeals For the First Circuit

No. 15-1898

UNITED STATES OF AMERICA,

Appellee,

v.

RAYMOND NEGRÓN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Torruella, Lynch, and Barron, Circuit Judges.

Bruce E. Kenna, on brief for appellant. Seth R. Aframe, Assistant United States Attorney, and Emily Gray Rice, United States Attorney, on brief for appellee.

September 14, 2016 TORRUELLA, Circuit Judge. Defendant-Appellant Raymond

Negrón appeals the United States District Court for the District

of New Hampshire's decision to deny a retroactive reduction to his

sentence pursuant to

(c)(2). Negrón had

previously entered into plea agreement pursuant to Federal Rule of

Criminal Procedure 11(c)(1)(C), which "bind[s] the district court

to a pre-agreed sentence if the court accepts the plea." United

States v. Rivera-Martínez,

(1st Cir. 2011).

Under so-called C-type plea agreements, a defendant is eligible

for a sentence reduction based on a retroactive amendment to the

United States Sentencing Guidelines ("Guidelines") only if the

term of imprisonment specified in the agreement is "based on" a

Guidelines sentencing range. We agree with the district court

that the proposed sentenced in Negrón's plea agreement failed to

meet this requirement and affirm.

I.

On August 22, 2012, a federal grand jury returned a nine-

count indictment against Negrón. 1 Negrón and the Government

1 Counts one through five charged Negrón with controlled substance offenses in violation of

(a)(1). Count six charged Negrón with sale of a firearm to a prohibited person in violation of

(d). Counts seven through nine related to Negrón's possession of a Mossberg twenty gauge bolt action shotgun. Negrón was charged with possession of an unregistered firearm,

(d), 5841, 5871; possession of a firearm with an obliterated serial number,

(k); and possession of a short-barreled shotgun during and in relation to a drug

-2- subsequently reached a plea agreement in which Negrón pled guilty

to counts one through eight. The Government dismissed count nine,

which carried a mandatory minimum consecutive sentence of 120

months' imprisonment. See

(c)(1)(B)(i). Negrón's

plea agreement was made pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(C). Under so-called C-type plea agreements,

"the parties bind the district court to a pre-agreed sentence if

the court accepts the plea." Rivera-Martínez,

.

Although the plea agreement did not state a base level offense,

applicable Guidelines range, or criminal history category ("CHC"),

the parties stipulated that Negrón would be sentenced to 144

months' imprisonment.

The district court conducted a sentencing hearing on

June 13, 2013, and determined that Negrón had a total base offense

level of 25 and CHC of I, corresponding to a Guidelines range

sentence of 57 to 71 months' imprisonment. Noting that the

stipulated sentence was "slightly over twice the high end of the

advisory guideline," the district court accepted the plea

agreement and imposed the stipulated sentence.

In 2014, the United States Sentencing Commission

retroactively reduced the base offense level for many drug offenses

trafficking crime,

(c)(1)(B)(i).

-3- by two levels. See U.S.S.G. § 1B1.10(a)(1); U.S.S.G. supplement

to app. C amend. 782 (Nov. 1, 2014); United States v. Vaughn,

(1st Cir. 2015). Because several of his convictions

were for controlled substance offenses, Negrón subsequently filed

a motion to modify his sentence pursuant to

(c)(2).

The district court denied Negrón's motion, concluding that

Negrón's sentence was not based on a Guidelines sentencing range

affected by an amendment. This timely appeal followed.

II.

A district court performs a "two-step inquiry" in

determining whether a defendant is entitled to a sentence reduction

under § 3582(c)(2). Dillon v. United States,

(2010). First, the district court must determine whether any

applicable Guidelines amendments apply to the defendant's

sentence.

. Second, if the district court concludes

the defendant is eligible for relief, it must weigh the sentencing

factors described in

(a) and determine whether a

reduction is warranted.

Here, the sole issue on appeal is

whether the district court properly applied our decision in Rivera-

Martínez,

, to conclude that Negrón was ineligible

for relief.2 Although "[w]e review a district court's denial of

2 The district court stated that, if Negrón were legally eligible, it would have reduced his sentence to 116 months' imprisonment.

-4- a motion for reduction of sentence under section 3582(c)(2) for

abuse of discretion," United States v. Caraballo,

(1st Cir. 2008), because Negrón contends the district court

committed legal error, our review is effectively de novo,

("A

material error of law is perforce an abuse of discretion.").

Courts may reduce the term of imprisonment for "a

defendant who has been sentenced to a term of imprisonment based

on a sentencing range that has subsequently been lowered by the

Sentencing Commission."

(c)(2). The term of

imprisonment in a C-type plea agreement is "based on" a Guidelines

sentencing range in two scenarios: (1) when the agreement "calls

for a sentence within an identified sentencing range," Rivera-

Martínez,

, and (2) when "the terms contained within

the four corners of the plea agreement,"

, "make clear

that the basis for a specified term of imprisonment is a Guidelines

sentencing range applicable to the offense to which the defendant

pleaded guilty,"

(alterations omitted) (quoting Freeman

v. United States,

(2011) (Sotomayor, J.,

concurring)).3

3 We acknowledge that since we decided Rivera-Martínez, two other circuits have concluded that Justice Sotomayor's concurrence is not the narrowest opinion in Freeman v. United States and thus nonbinding. See United States v. Davis, __ F.3d __,

(9th Cir. June 13, 2016) (en banc); United States v. Epps,

(D.C. Cir. 2013). Nonetheless, we view Rivera-

-5- Negrón acknowledges his term of imprisonment is not

within a specific Guidelines sentencing range, but argues that his

plea agreement fell into this second category. As in Rivera-

Martínez, however, Negrón's plea agreement lacks the "two

essential coordinates" that show a Guidelines sentencing range

underpins the proposed sentence.

. In that case, we

found that a C-type plea agreement that failed to specify a CHC

(despite specifying a base offense level) could not be considered

to be based on a Guidelines sentencing range.

Negrón's case

is even weaker because his plea agreement contains neither a base

offense level nor a CHC. Absent either of these two essential

coordinates, we cannot conclude Negrón's plea agreement was based

on a Guidelines sentencing range.

Nonetheless, Negrón contends that we can infer both

numbers from the four corners of his plea agreement. With respect

to the base offense level, Negrón argues his plea agreement

contains all of the facts necessary to calculate this integer.

With respect to his CHC, Negrón claims this number was never

seriously contested, due to his relatively sparse criminal record,

and is obvious from his presentence report. Finally, Negrón cites

the fact that at his sentencing hearing the district court

Martínez as controlling Negrón's appeal.

-6- acknowledged that 144 months' imprisonment was equal to doubling

the high end of the applicable Guidelines range and "rounding [up

to] an even twelve-year sentence." Negrón views this statement

as evidence that his plea agreement was based on a Guidelines

sentencing range.

Negrón's arguments run contrary to our holding in

Rivera-Martínez. Under the Guidelines, a district court may

accept a C-type plea agreement only if the agreement stipulates a

sentence that is within the applicable Guidelines range or the

district court is satisfied that the sentence departs from the

Guidelines range "for justifiable reasons." U.S.S.G. § 6B1.2(c).

In other words, even with C-type plea agreements, the district

court must calculate the defendant's base offense level and CHC to

determine whether the sentence negotiated by the parties is

acceptable. Because we have rejected the view that all C-type

plea agreements may qualify for relief under § 3582(c)(2), we have

held that the fact that the district court "perform[ed] [Guidelines

calculations] before deciding whether to accept the agreement" is

insufficient to show that the stipulated sentence is based on a

Guidelines sentencing range. Rivera-Martínez,

.

The inclusion of admitted facts in Negrón's plea

agreement does not necessarily demonstrate that that parties

intended to base his sentence on a particular base offense level.

-7- Rather, these facts merely helped the district court perform the

Guidelines analysis necessary to its review of the agreement.

Moreover, a sentencing court need not rely exclusively on the facts

listed in a plea agreement when performing its Guidelines

calculation to determine whether to accept the plea. The district

court and Negrón both relied on his presentence report -- a

document outside of the four corners of the plea agreement -- to

calculate his CHC. We therefore reject Negrón's contention that

we can infer that he and the Government had a specific base offense

level in mind from the stipulated facts in his plea agreement.

We also decline Negrón's invitation to find that his

plea agreement implicitly referenced his CHC. Although the

"obviousness" of this integer may be an explanation for its absence

from the plea agreement, it is not the only one. The absence of

the CHC is equally consistent with the parties simply viewing other

factors besides Negrón's Guidelines range as important to

determining his sentence.

For similar reasons, we are equally unpersuaded by

Negrón's argument that his plea agreement must have been based on

a Guidelines sentencing range because his stipulated sentence is

roughly double the high end of the Guidelines sentencing range.

We have recognized that the "term of imprisonment in a C-type plea

agreement will most often be negotiated by reference to the

-8- relevant guideline provisions" and interpreted § 3582(c)(2) as

requiring a stronger "linkage." Id. (citing Freeman,

). Negrón's observation falls short. Although the district

court acknowledged some relationship between the stipulated

sentence and the applicable Guidelines range, the district court

also factored into its analysis the fact that the Government had

agreed to dismiss count nine of Negrón's indictment, which carried

a mandatory minimum consecutive sentence of 120 months'

imprisonment. In other words, non-Guidelines factors also

explained Negrón's proposed sentence. Understanding the role the

Guidelines played vis-á-vis the dropped charge would require us to

"to supplement the [a]greement with . . . the parties' background

negotiations," something Rivera-Martínez forbids.

We

therefore decline to accept Negrón's invitation to infer a

Guidelines basis for his stipulated sentence.

Finally, Negrón claims his stipulated sentence was based

on a Guidelines sentencing range because his plea agreement

contains various references to the Guidelines including that

(1) the district court was required to consider the Guidelines in

an advisory capacity; (2) Negrón was aware that the Guidelines

were nonbinding; (3) the United States and the United States

Probation Office would advise the court of any inaccuracies in the

presentence report; and (4) the Government would not "oppose an

-9- appropriate reduction in [Negrón's] adjusted offense level, under

the advisory Sentencing Guidelines, based upon [Negrón's] prompt

recognition and affirmative acceptance of personal responsibility

for the offense." These generic plea agreement statements are

insufficient to show that Negrón's term of imprisonment was based

on a Guidelines sentencing range because it is not "evident from

the agreement itself" that the "basis for the specified term [of

imprisonment] is a Guidelines sentencing range." Freeman,

(Sotomayor, J., concurring). They simply show that

the Guidelines would play some amorphous role in the parties'

negotiations and the district court's analysis of the plea. This

falls short of the linkage Rivera-Martínez requires.

III.

Because we cannot conclude that Negrón's sentence was

based on a Guidelines sentencing range, we agree with the district

court that he is not eligible for a sentencing reduction pursuant

to § 3582(c)(2).

Affirmed.

-10-