USA v. Erik Hughes

Filing

Opinion issued by court as to Appellant Erik Lindsey Hughes. Decision: Affirmed. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.--[Edited 02/27/2017 by DC]

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15246
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D.C. Docket No. 4:13-cr-00043-HLM-WEJ-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIK LINDSEY HUGHES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_______________________
(February 27, 2017)
Before WILLIAM PRYOR, JORDAN, and BALDOCK, ∗ Circuit Judges.
WILLIAM PRYOR, Circuit Judge:

∗

Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by
designation.

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This appeal requires us to apply the rule of Marks v. United States, 430 U.S.
188 (1977), to the splintered opinion in Freeman v. United States, 564 U.S. 522
(2011), to determine whether a defendant who entered into a plea agreement that
recommended a particular sentence as a condition of his guilty plea is eligible for a
reduced sentence, 18 U.S.C. § 3582(c)(2). Erik Hughes pleaded guilty to drug and
firearm offenses and entered into a binding plea agreement with the government,
Fed. R. Crim. P. 11(c)(1)(C). The district court accepted the agreement and
sentenced Hughes according to the agreement. Hughes then sought a sentence
reduction permitted for defendants who have been “sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by
the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added). In
Freeman, the justices divided over the question whether a defendant sentenced
under a binding plea agreement was sentenced “based on a sentencing range.” 564
U.S. at 525, 534. The district court determined that Justice Sotomayor’s concurring
opinion stated the holding in Freeman because she concurred in the judgment on
the narrowest grounds, Marks, 430 U.S. at 193, and it denied Hughes’s motion
based on the reasoning of that concurring opinion. We agree on both counts.
Hughes is ineligible for a sentence reduction because he was not sentenced “based
on a sentencing range,” 18 U.S.C. § 3582(c)(2), that has since been lowered. We
affirm.

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I. BACKGROUND
In 2013, a federal grand jury returned an indictment that charged Erik
Hughes in four counts for drug and firearm offenses. Hughes pleaded guilty to two
counts: conspiracy to possess with intent to distribute at least 500 grams of
methamphetamine, 21 U.S.C. §§ 841(b)(1)(A)(viii), 846, and being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1). In the plea agreement, Hughes and
the government agreed to a sentence of 180 months of imprisonment.
At the sentencing hearing, the district court calculated Hughes’s guidelines
range and determined that his sentencing range under the United States Sentencing
Guidelines was 188 to 235 months. The district court then accepted the plea
agreement, which bound the court to impose the below-guidelines sentence
recommended by the parties. See Fed. R. Crim. P. 11(c)(1)(C). So the district court
sentenced Hughes to 180 months of imprisonment.
Just over a year later, Hughes filed a motion to reduce his sentence, 18
U.S.C. § 3582(c)(2). Section 3582(c)(2) allows a court to reduce the term of
imprisonment of “a defendant who has been sentenced . . . based on a sentencing
range that has subsequently been lowered by the Sentencing Commission.” Hughes
sought a reduction based on Amendment 782 to the Sentencing Guidelines, which
reduced the offense levels for certain drug offenses by two levels and applies
retroactively. See United States Sentencing Guidelines Manual § 1B1.10 (Nov.

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2015). According to Hughes, applying the amendment would reduce his guidelines
range to 151 to 188 months.
The district court denied Hughes’s motion. It determined that Hughes was
ineligible for a reduced sentence. It reasoned, based on Justice Sotomayor’s
concurring opinion in Freeman, that the sentence in Hughes’s binding plea
agreement was not “based on” a sentencing guidelines range as required by section
3582(c)(2).
II. STANDARDS OF REVIEW
“We review a district court’s decision whether to reduce a sentence pursuant
to [section] 3582(c)(2), based on a subsequent change in the sentencing guidelines,
for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343 (11th Cir.
2003). Like all questions of statutory interpretation, we review the conclusions of
the district court about the scope of its legal authority under section 3582(c)(2) de
novo. United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008).
III. DISCUSSION
We divide our discussion in two parts. First, we explain that Justice
Sotomayor’s concurring opinion in Freeman constitutes the holding of that
decision because it is the “position taken by th[e] [Justice] who concurred in the
judgment[] on the narrowest grounds.” Marks, 430 U.S. at 193 (quoting Gregg v.
Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens,
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JJ.)). Second, we explain that the district court correctly denied Hughes’s motion
for a sentence reduction because applying the holding of Freeman, Hughes was not
sentenced based on a sentencing guidelines range, Freeman, 564 U.S. at 538–39
(Sotomayor, J., concurring in the judgment).
A. Justice Sotomayor’s Concurring Opinion Stated the Holding in Freeman.
Federal courts ordinarily may not “modify a term of imprisonment once it
has been imposed,” 18 U.S.C. § 3582(c), but “Congress has provided an exception
to that rule ‘in the case of 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.’” Dillon v. United States, 560 U.S. 817, 819 (2010)
(quoting 18 U.S.C. § 3582(c)(2)). Such a defendant may have his sentence reduced
after the court “consider[s] the factors set forth in [18 U.S.C.] § 3553(a) . . . if such
a reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” Id. § 3582(c)(2).
In Freeman, the Supreme Court split over the question whether defendants
like Hughes who enter into plea agreements that recommend a particular sentence
as a condition of their guilty plea were sentenced “based on a sentencing range.”
564 U.S. at 525 (plurality opinion). William Freeman entered into a plea agreement
with the government under Rule 11(c)(1)(C), and the district court accepted the
agreement and imposed the recommended sentence. Id. at 527–28. The Sentencing

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Commission later issued a retroactive amendment that lowered the guidelines
range applicable to Freeman’s conduct, and he moved for a sentence reduction, 18
U.S.C. § 3582(c)(2). Id. at 528. The district court denied Freeman’s motion, and
the Sixth Circuit affirmed. Id. But the Supreme Court, in a five to four decision,
reversed. Id. at 525–526
Five justices agreed that the district court could reduce Freeman’s sentence,
but those justices differed in their reasoning. The plurality opinion, joined by four
justices, determined that the “[t]he district judge’s decision to impose a sentence
may . . . be based on the Guidelines even if the defendant agrees to plead guilty
under Rule 11(c)(1)(C).” Id. at 526. “In every case the judge must exercise
discretion to impose an appropriate sentence” and “[t]his discretion, in turn, is
framed by the Guidelines.” Id. at 525. But Justice Sotomayor concurred only in the
judgment. Id. at 534.
Justice Sotomayor’s concurring opinion determined that “the term of
imprisonment imposed by a district court pursuant to an agreement authorized by
Federal Rule of Criminal Procedure 11(c)(1)(C) . . . is ‘based on’ the agreement
itself, not on the judge’s calculation of the Sentencing Guidelines.” Id. (Sotomayor,
J., concurring in the judgment). Under this view, if a plea agreement “call[s] for
the defendant to be sentenced within a particular Guidelines sentencing range,” the
acceptance of the agreement by the district court “obligates the court to sentence

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the defendant accordingly, and there can be no doubt that the term of imprisonment
the court imposes is ‘based on’ the agreed-upon sentencing range.” Id. at 538. And
if a plea agreement “provide[s] for a specific term of imprisonment . . . but also
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,” then “[a]s long as
that sentencing range is evident from the agreement itself,” the term of
imprisonment imposed is “based on” that range. Id. at 539.
“When a fragmented Court decides a case and no single rationale explaining
the result enjoys the assent of five Justices, ‘the holding of the Court may be
viewed as that position taken by those Members who concurred in the judgments
on the narrowest grounds.’” Marks, 430 U.S. at 193 (quoting Gregg, 428 U.S. at
169 n.15). “The Marks Court did not elaborate on how to identify the narrowest
grounds.” Bryan A. Garner, et al., The Law of Judicial Precedent 199–200 (2016).
“But the prevailing view is that the narrowest grounds are those that, when applied
to other cases, would consistently produce results that a majority of the Justices
supporting the result in the governing precedent would have reached.” Id. at 200.
We have explained that the “‘narrowest grounds’ is understood as the ‘less farreaching’ common ground.” United States v. Robison, 505 F.3d 1208, 1221 (11th
Cir. 2007) (quoting Johnson v. Bd. of Regents, 263 F.3d 1234, 1247 (11th Cir.

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2001)). When determining which opinion controls, we do not “consider the
positions of those who dissented.” Id.
Justice Sotomayor’s opinion in Freeman provides the narrowest ground of
agreement because her concurring opinion establishes the “le[ast] far-reaching”
rule. District courts are required to consult the guidelines before sentencing a
defendant, see Freeman, 564 U.S. at 525–26 (plurality opinion), and district courts
may not accept an agreement under Rule 11(c)(1)(C) “without first evaluating the
recommended sentence in [the] light of the defendant’s applicable sentencing
range.” Id. at 529; see also U.S.S.G. § 6B1.2. Under the logic of the plurality
opinion, the guidelines range always “provide[s] a framework or starting point—a
basis, in the commonsense meaning of the term—for the judge’s exercise of
discretion” in deciding to accept a plea agreement under Rule 11(c)(1)(C). Id.
Justice Sotomayor’s opinion, by contrast, provides two examples in which a
sentence is based on a sentencing range.
Both opinions agree on the broader principle that defendants sentenced
based on a binding plea agreement can later have their sentences reduced under
section 3582(c)(2), but the concurring opinion uses narrower reasoning than the
plurality opinion. Whenever the concurring opinion would grant relief to a
defendant sentenced according to a binding plea agreement, the plurality opinion
would agree with the result because, under the logic of the plurality opinion, a

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defendant should always receive relief. Justice Sotomayor’s opinion is the less farreaching common ground. We already reached this conclusion in dicta when we
evaluated the impact of Freeman on our precedent and stated that “Justice
Sotomayor’s concurring opinion can be viewed as the holding in Freeman.” United
States v. Lawson, 686 F.3d 1317, 1321 n.2 (11th Cir. 2012).
The decisions of eight sister circuits also support our conclusion that Justice
Sotomayor’s concurring opinion is the holding of Freeman. See Garner, et al.,
supra, at 204 (“Almost every federal circuit court to consider the Marks issue in
Freeman has held that [Justice Sotomayor’s] opinion is controlling.”). The First,
Third, and Fourth Circuits reached that conclusion because “the plurality would
surely agree that in every case in which a defendant’s [Rule 11(c)(1)(C)] plea
agreement satisfies the criteria for Justice Sotomayor’s exception . . . the
sentencing judge’s decision to accept that sentence is based on the guidelines.”
United States v. Rivera-Martínez, 665 F.3d 344, 348 (1st Cir. 2011); see also
United States v. Thompson, 682 F.3d 285, 289 (3d Cir. 2012); United States v.
Brown, 653 F.3d 337, 340 n.1 (4th Cir. 2011). The Tenth Circuit explained that
Justice Sotomayor’s concurring opinion is the holding in Freeman because it is a
“middle ground.” United States v. Graham, 704 F.3d 1275, 1277–78 (10th Cir.
2013). And the Fifth, Sixth, Seventh, Eighth Circuits adopted Justice Sotomayor’s
concurring opinion after stating the Marks rule and then stating that Justice

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Sotomayor’s concurring opinion provides the narrowest ground of agreement. See
United States v. Benitez, 822 F.3d 807, 811 (5th Cir. 2016); United States v. Smith,
658 F.3d 608, 611 (6th Cir. 2011); United States v. Dixon, 687 F.3d 356, 359 (7th
Cir. 2012); United States v. Browne, 698 F.3d 1042, 1045 (8th Cir. 2012).
The decisions of two circuits deviate from this majority view and hold that
Justice Sotomayor’s concurring opinion does not provide the narrowest ground of
agreement in Freeman, but we find their reasoning unpersuasive. The Ninth and
D.C. Circuits explained that the rule in Marks applies when one opinion is a
“logical subset” of another, broader opinion. See United States v. Davis, 825 F.3d
1014, 1021–22 (9th Cir. 2016) (en banc); United States v. Epps, 707 F.3d 337, 350
(D.C. Cir. 2013). Both courts then determined that Justice Sotomayor’s concurring
opinion is not a logical subset of the plurality opinion but instead offers a different
rationale because the concurring opinion focuses on the parties’ agreement and the
plurality opinion focuses on “the role of the judge’s Guidelines calculations in
deciding whether to accept or reject the agreement.” Davis, 825 F.3d at 1022; see
also Epps, 707 F.3d at 350. But this narrow focus on the rationale of the opinions
in Freeman is misplaced.
The Supreme Court has not stated that an opinion can qualify as the
“narrowest grounds” of decision only when it “represent[s] a common denominator
of the Court’s reasoning.” Davis, 825 F.3d at 1020 (quoting King v. Palmer, 950

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F.2d 771, 781 (D.C. Cir. 1991) (en banc)); see also id. at 1031 (Bea, J., dissenting)
(“The . . . ‘logical subset’ requirement is an invention of the D.C. Circuit that finds
no support in Marks or any other Supreme Court precedent.”). Indeed, the Supreme
Court has determined that an opinion is controlling, under Marks, even when that
opinion does not share common reasoning with the other opinions necessary to
support the judgment. See O’Dell v. Netherland, 521 U.S. 151, 162 (1997)
(adopting Justice White’s concurring opinion in Gardner v. Florida, 430 U.S. 349
(1977), as the “narrowest grounds of decision among the justices whose votes were
necessary to the judgment” even though the concurring opinion relied on a
different constitutional amendment than the plurality opinion). “After all, in
splintered cases, there are multiple opinions precisely because the Justices did not
agree on a common rationale.” United States v. Duvall, 740 F.3d 604, 613 (D.C.
Cir. 2013) (Kavanaugh, J., concurring in the denial of rehearing en banc).
Marks itself determined that a plurality opinion governed as the narrowest
grounds of decision notwithstanding that none of the justices that concurred in the
judgment “agreed with the rule enumerated by the . . . plurality.” Davis, 825 F.3d
at 1034 (Bea, J., dissenting). Marks evaluated which opinion provided the holding
of the Supreme Court in A Book Named “John Cleland’s Memoirs of a Woman of
Pleasure” v. Attorney General of the Commonwealth of Massachusetts, 383
U.S. 413 (1966). The plurality opinion in Memoirs determined that literature was

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protected by the First Amendment unless it satisfied the test of obscenity
established by Roth v. United States, 354 U.S. 476 (1957). See Memoirs, 383 U.S.
at 418. Justice Black’s and Justice Douglas’s concurring opinions in Memoirs, in
contrast, stated a rule that “the First Amendment provides an absolute shield
against governmental action aimed at suppressing obscenity.” Marks, 430 U.S. at
193. And Justice Stewart’s concurring opinion, different still, explained that only
hardcore pornography could be suppressed. Id. Although six justices agreed that
the literature at issue was protected by the First Amendment, only the plurality
opinion, joined by three justices, relied on the test in Roth to reach that result. Yet
the Supreme Court determined that the plurality opinion governed as the “position
taken by those Members who concurred in the judgments on the narrowest
grounds,” id. (quoting Gregg, 428 U.S. at 169 n.15).
The decision in Marks that the plurality opinion in Memoirs stated the
holding makes clear that when no opinion garners a majority of the votes, the
opinion that relies on the narrowest grounds necessary to reach the judgment
controls. See also United States v. Santos, 553 U.S. 507, 523 (2008) (opinion of
Scalia, Souter, and Ginsburg, JJ.) (explaining that the holding of the Court was
limited by Justice Stevens’s concurrence because his vote was necessary to the
judgment and his opinion rested upon the narrower ground). As Judge Bea has
explained, “Marks’ emphasis on the Court’s ‘judgment’ demonstrates that it is the

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ultimate ‘vote’ of five Justices that is important in determining the binding effect
of a splintered Supreme Court opinion.” Davis, 825 F.3d at 1035 (Bea, J.,
dissenting). “That is, Marks requires us to find a ‘legal standard which, when
applied, will necessarily produce results with which a majority of the Court from
that case would agree.” Id. (quoting United States v. Williams, 435 F.3d 1148,
1157 n.9 (9th Cir. 2006)); see also Duvall, 740 F.3d at 608 (Kavanaugh, J.,
concurring in the denial of rehearing en banc).
As we see it, Justice Sotomayor’s opinion provides a legal standard that
produces results with which a majority of the Court in Freeman would agree
because whenever Justice Sotomayor’s opinion would permit a sentence reduction,
the plurality opinion would as well. The plurality opinion stated that because a
judge must “evaluat[e] the recommended sentence in [the] light of the defendant’s
applicable sentencing range” and determine “either that such sentence is an
appropriate sentence within the applicable guideline range or, if not, that the
sentence departs from the applicable guideline range for justifiable reasons” before
the judge accepts the agreement, “the court’s acceptance is itself based on the
Guidelines.” Freeman, 564 U.S. at 529 (plurality opinion) (internal quotation
marks omitted). Justice Sotomayor’s opinion, in contrast, provided two examples
in which a sentence imposed according to a plea agreement is “based on a
sentencing range.” Because the district judge must evaluate the sentencing range

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before accepting the plea agreement, the plurality opinion would reach the same
result as Justice Sotomayor’s concurring opinion and determine that, in those two
circumstances, the defendant was sentenced “based on a sentencing range” and
qualifies for a sentence reduction. As a result, Justice Sotomayor’s opinion is the
narrower opinion.
When applying the rule of Marks to a splintered Supreme Court opinion, we
must determine which opinion that supports the judgment relied on the narrowest
grounds. Applying this rule to Freeman, it is clear that Justice Sotomayor’s
opinion controls because “‘sometimes’ is a middle ground between ‘always’ and
‘never.’” Duvall, 740 F.3d at 612 (Kavanaugh, J., concurring in the denial of
rehearing en banc). As a result, we must apply Justice Sotomayor’s concurring
opinion to determine whether Hughes qualifies for a sentence reduction under
section 3582(c)(2).
B. Hughes Is Not Eligible for a Sentence Reduction.
The district court did not abuse its discretion when it determined that
Hughes is not eligible for a sentence reduction because Hughes’s sentence was not
based on a sentencing guidelines range. Justice Sotomayor’s opinion explained that
a trial judge’s acceptance of a binding plea agreement is “based on” a sentencing
range when the Rule 11(c)(1)(C) agreement calls for a “defendant to be sentenced
within a particular Guidelines sentencing range,” or the agreement “make[s] clear

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that the basis for the specified term is a Guidelines sentencing range applicable to
the offense to which the defendant pleaded guilty.” Freeman, 564 U.S. at 538–39
(Sotomayor, J., concurring in the judgment). Hughes’s agreement does neither. His
plea agreement does not call for him to be sentenced within a particular sentencing
range but instead states that he “should be sentenced to 180 months.” And his plea
agreement does not “make clear” that the basis for the 180 month recommendation
is a guidelines sentencing range.
The plea agreement does not “make clear” that a sentencing range formed
the basis for Hughes’s sentence. The agreement states that the district court and the
probation office will calculate the applicable guidelines range. And the government
reserved the right to modify its recommendations about the guidelines. But the
agreement does not make any recommendation about a specific application of the
Sentencing Guidelines, and the agreement does not calculate Hughes’s range or
discuss factors that must be used to determine that range, such as Hughes’s
criminal history. Nor does it set the agreed-upon sentence within the applicable
guideline range. Hughes was not sentenced “based on” a guidelines range, and he
is not eligible for a sentence modification under section 3582.
IV. CONCLUSION
We AFFIRM the judgment of the district court.

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