USA v. Todd Bryant

Filing

OPINION filed: REVERSED; decision not for publication. Jeffrey S. Sutton, Circuit Judge (AUTHORING); Jane Branstetter Stranch, Circuit Judge (CONCURRING IN PART AND DISSENTING IN PART) and George C. Steeh, U.S. District Judge for the Eastern District of Michigan, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0565n.06
Case No. 16-5176
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
TODD BRYANT,
Defendant-Appellee.

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Oct 11, 2016
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF
TENNESSEE

BEFORE: SUTTON and STRANCH, Circuit Judges; and STEEH, District Judge*
SUTTON, Circuit Judge. Todd Bryant was charged with conspiracy to distribute large
quantities of cocaine and marijuana, and an undetermined amount of ecstasy. As part of a plea
agreement, Bryant pleaded guilty only to the marijuana offense and accepted a 71-month
sentence. Nearly two years after Bryant took the plea, Amendment 782 to the Sentencing
Guidelines retroactively reduced the sentencing ranges for federal drug trafficking crimes.
Bryant asked the district court to reduce his sentence under Amendment 782, and the district
court obliged. But because Bryant explicitly waived the right to challenge his sentence under
§ 3582(c) in his plea agreement, and because Bryant’s sentence was set by the plea agreement
and not the Guidelines, the district court lacked authority to reduce Bryant’s sentence. We must
reverse.
*The Honorable George Caram Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.

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Case No. 16-5176
United States v. Bryant
In July 2012, a grand jury charged Todd Bryant with conspiracy to distribute five
kilograms or more of cocaine, 280 grams or more of crack cocaine, 100 kilograms or more of
marijuana, and an unspecified quantity of ecstasy. A year later, he pleaded guilty to the lesser
included marijuana offense and accepted a sentence of 71 months in prison followed by five
years of supervised release. Bryant and the government entered into the plea agreement under
Rule 11(c)(1)(C), which authorizes plea agreements to provide “that a specific sentence or
sentencing range is the appropriate disposition of the case.” Bryant’s plea agreement noted that,
because this was a Rule 11(c)(1)(C) agreement, any “sentencing guideline calculations are moot,
and . . . the sentence agreed to herein is an appropriate sentence.” R. 1458 at 11. The agreement
also contained a “[w]aiver of [a]ppellate [r]ights,” in which Bryant “knowingly waive[d] the
right to challenge [the sentence] in any collateral attack, including, but not limited to, a motion
brought pursuant to 28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. § 3582(c).” Id. at 13
(emphasis added). The district court accepted the plea and imposed the agreed-upon sentence.
In 2014, the Sentencing Commission issued Amendment 782 to the Sentencing
Guidelines, which retroactively lowered by two levels all of the offense levels assigned by the
Guidelines’ drug quantity table. See U.S.S.G. § 2D1.1, 1B1.10(d). Under the amendment,
Bryant’s appropriate sentencing range would be 57 to 71 months.
18 U.S.C. § 3582(c)(2) authorizes district courts to reduce sentences “based on a
sentencing rage that has subsequently been lowered by the [Sentencing] Commission.” Bryant
filed a motion under the statute, asking to reduce his sentence to the statutory minimum of 60
months. See 21 U.S.C § 841(b)(1)(B) The district court granted the motion, finding that
Bryant’s waiver of appellate rights was ineffective because a § 3582(c) motion is not a

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“collateral attack,” and that Bryant was eligible for a reduction because his sentence was based
on the Guidelines rather than the plea agreement. R. 1779 at 2. We disagree on both counts.
Waiver. The district court lacked authority to grant Bryant’s motion because he waived
the right to challenge his sentence under § 3582(c) in the plea agreement. The agreement could
not be clearer. It states that Bryant “knowingly waives the right to challenge th[e] agreed
sentence in any collateral attack, including . . . a motion brought pursuant to . . . 18 U.S.C.
§ 3582(c).” This case begins, and arguably should end, there.
Bryant nonetheless attempts to find ambiguity in the waiver. His efforts fall short. In
interpreting plea agreements, as in interpreting any other contract or a statute, the specific
governs the general. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,
2070–71 (2012); 11 Williston on Contracts § 32:10 (4th ed. 2016).

The language of the

agreement, which could not be more specific, tells us just what to do here.

It makes no

difference that some might say that § 3582(c)(2) motions for a sentence reduction are not
technically “collateral attack[s]” on an original sentence. See United States v. Goodloe, 388 F.
App’x 500, 503 (6th Cir. 2010).

Whether or not the waiver properly classified § 3582(c)

motions is irrelevant to today’s proceeding. The fact remains that the agreement expressly
forbids Bryant from bringing a § 3582(c) motion, however one chooses to characterize such a
motion.
Our colleague raises two alternative readings, one similar to Bryant’s, one that goes
beyond it. The key answer to both arguments is that it does not suffice to identify an ambiguity
in the abstract. In asserting ambiguity in a contract or a statute, the claimant must show two
competing interpretations, both of which are plausible on their own. TMW Enters., Inc. v. Fed.
Ins. Co., 619 F.3d 574, 580 (6th Cir. 2010). That is not the case with either proposal.

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Both readings rely on a narrow view of what qualifies as a “collateral attack”—only
challenges to the legality of the original sentence, not those that bring an independent ground for
reduction to the court’s attention. One way to accommodate that view, urged by Bryant, would
be to read his § 3582(c) waiver out of the agreement on the ground that no challenge under
§ 3582(c) is a true collateral attack. But it is not plausible to give maximum effect to an
ambiguous general term at the expense of a specific, explicit one.
The second proposal runs in the other direction. It says that “collateral attack” is the
more specific phrase, and thus that Bryant reserved the right to bring non-collateral challenges to
his sentence under § 3582(c). This would be a permissible reading if § 3582(c) authorized
challenges that meet the proposed specific definition of “collateral.” But it does not. The dissent
points to § 3582(c)(1)(B), but a defendant cannot attack his sentence under that provision.
It instead authorizes a district court to modify a sentence after a defendant successfully attacks
the sentence through one of three other motions: a collateral attack under § 2255, a direct attack
under § 2106, or a Rule 35 motion to correct a clerical error in the sentence or reduce the
sentence for substantial assistance. See United States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001).
All of which leads us where we started: The only plausible interpretation of the plea agreement
is that Bryant waived his right to bring a § 3582(c) motion.
Nor is it a fair reading of the agreement to construe the general statement at the end of the
agreement that “[Bryant’s] compliance with each part of this Plea Agreement extends until such
time as he is sentenced” to nullify the detailed waiver of later appellate rights. The whole point
of an appellate waiver is to bind Bryant after sentencing.
Eligibility. Bryant argues that, even if he waived his right to bring a § 3582(c) motion,
the district court had authority to reduce his sentence “on its own motion,” making any error

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harmless. 18 U.S.C. § 3582(c)(2). Even if a district court could nullify a waiver in this way
(a point we need not decide), the court had no authority to do so here because, under Freeman v.
United States, 564 U.S. 522 (2011), Bryant remains ineligible for a sentence reduction.
Freeman was a plurality decision, and we have held that Justice Sotomayor’s
concurrence in Freeman is, as the narrowest grounds for the decision, the controlling opinion.
United States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011); see Marks v. United States, 430 U.S.
188, 193 (1977). Justice Sotomayor concluded that sentences imposed in accordance with Rule
11(c)(1)(C) agreements are generally “based on” the agreements themselves rather than the
Guidelines, and thus cannot be reduced under § 3582(c). Freeman, 564 U.S. at 534. But when,
as in Freeman’s case, an agreement “expressly uses a Guidelines sentencing range to establish
the term of imprisonment . . . [the sentence] is ‘based on’ the range employed” and the defendant
may be eligible for a sentence reduction under § 3582(c)(2). Id. (emphasis added).
That did not happen here. The plea agreement expressly disclaims any reliance on the
Guidelines. “[T]he parties,” it says, “agree that the sentencing guideline calculations are moot,
and that the sentence agreed to herein is an appropriate sentence.” R. 1458 at 11. The language
of the agreement once again resolves the matter.

Because Bryant’s plea agreement never

mentions a sentencing range and disavows any reliance on the Guidelines, he cannot seek relief
under § 3582(c)(2). See United States v. McNeese, 819 F.3d 922, 927–28 (6th Cir. 2016).
Bryant counters that the plea agreement “provided enough building blocks” to
demonstrate that his 71-month sentence was based on the Guidelines. Appellee’s Br. 21. But
simply referring to the facts relevant to determining an offense level, without making the
offense-level determination, does not constitute an express use of a Guidelines range, as

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Freeman requires. What’s more, the agreement makes no reference to Bryant’s criminal history,
which, along with the offense level, is one of the inputs in calculating a sentencing range.
Nor does it matter that it “seem[ed] clear” to the district court “that the anticipated
sentencing range was a part of the negotiation of the agreement in this case.” R. 1779 at 2. As
Justice Sotomayor noted, “the mere fact that the parties to a [Rule 11(c)(1)(C)] agreement may
have considered the Guidelines in the course of their negotiations does not empower the court
under § 3582(c)(2) to reduce the term of imprisonment they ultimately agreed upon.” Freeman,
564 U.S. at 537. Because a defendant’s sentence is only “based on” the Guidelines when the
agreement explicitly references a Guidelines range, McNeese, 819 F.3d at 927, there was no need
for the district court to conduct “a free-ranging search through the parties’ negotiating history.”
Freeman, 564 U.S. at 538.
Bryant’s final argument is that this court’s repeated holdings that Justice Sotomayor’s
Freeman concurrence is controlling are mistaken, and that we should conclude instead that there
is no controlling opinion in Freeman. As Bryant to his credit recognizes, however, this panel
lacks the power to make such a departure from our precedent.
For these reasons, we reverse.

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STRANCH, Circuit Judge, concurring in part and dissenting in part. I write separately
because I disagree with the majority’s conclusion that Bryant waived his right to seek a sentence
reduction. The lead opinion asserts that the plea agreement “could not be clearer.” (Maj. Op. 3)
I disagree. The plea agreement states that Bryant “knowingly waive[d] the right to challenge
[his] sentence in any collateral attack, including, but not limited to, a motion brought pursuant to
28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. § 3582(c).” The parties appear to agree that a
motion for sentence reduction under § 3582(c) is not properly considered a “collateral attack.”
Despite this apparent contradiction in the wording of the plea agreement, the majority concludes
that “the language . . . could not be more specific.” (Maj. Op. 3) I find the language of the plea
agreement to be ambiguous and therefore respectfully dissent from the determination that Bryant
waived his right to move for a sentence reduction.
Plea agreements are “contractual in nature” but also “implicate[] concerns in addition to
those pertaining to the formation and interpretation of commercial contracts between private
parties.” United States v. Randolph, 230 F.3d 243, 249 (6th Cir. 2000) (quoting United States v.
Johnson, 979 F.2d 396, 399 (6th Cir. 1992)). A defendant’s “underlying right of contract is
constitutional,” therefore “both constitutional and supervisory concerns require holding the
government to a greater degree of responsibility than the defendant . . . for imprecisions or
ambiguities in the plea agreements.” Id.; see also United States v. Bowman, 634 F.3d 357, 360
(6th Cir. 2011). In Randolph, the defendant entered a plea agreement for conspiracy charges in
Texas.

Id. at 247.

After entering the plea agreement, prosecutors in Texas notified law

enforcement in Tennessee of the conspiracy and “provided them with all the information
obtained as a result of the Texan investigation.” Id. Even though the express terms of the plea
agreement provided that Randolph would not be further prosecuted on the matter in Texas, we

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vacated the conviction in Tennessee because Randolph “was in no way informed as to the
illusory nature of the government’s promise.” Id. at 251. The “exigencies of due process and the
operation of the fundamental canons of contract construction compel us to the conclusion that
Randolph’s prosecution in Tennessee was entirely barred by the plea agreement he entered into
in . . . Texas.” Id.
In a similar fashion, concerns for Bryant’s constitutional rights must guide our
interpretation of the plea agreement in this case. Constitutional rights may be surrendered in a
plea agreement “if that waiver was made knowingly and voluntarily.” United States v. Wilson,
438 F.3d 672, 673 (6th Cir. 2006). But defendants do not waive a constitutional right through a
plea agreement that is ambiguous on the matter. United States v. Jones, 569 F.3d 569, 573 (6th
Cir. 2009).
In this case, Bryant waived the right to challenge his sentence “in any collateral attack.”
That language is followed by references to three statutes that spell out post-conviction
procedures: 1) § 2255 (providing for collateral attack on federal sentence); 2) § 2241 (providing
for collateral attack through writ of habeas corpus); and 3) § 3582(c) (providing for modification
of imposed term of imprisonment).

Section 3582(c) allows a court to modify a term of

imprisonment in specified circumstances, including “to the extent otherwise expressly permitted
by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” § 3582(c)(1)(B). Rule 35
allows a court to correct a clear error within fourteen days of sentencing or to reduce a sentence
on a government motion for substantial assistance in investigating or prosecuting another person.
FED. R. CRIM. P. 35. Presumably, the provision in § 3582(c)(1)(B) authorizes modification
“expressly permitted” by the other statutes, § 2255 and § 2241, listed in the plea agreement.

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The majority opinion concludes that a waiver of the right to move for a sentence
reduction under § 3582(c) is more specific than a general waiver of “any collateral attack.” (Maj.
Op. 3) However, another way to read the provision is that “any collateral attack” includes
motions under § 2255 (collateral attack), § 2241 (collateral attack), and § 3582(c)(1)(B)
(providing courts with authority to modify sentences permitted by statute or rules).

This

alternative reading of the provision does not reach a motion under § 3582(c)(2), which is based
on a subsequent change in a sentencing range and is not a collateral attack. See United States v.
Goodloe, 388 F. App’x 500, 503 (6th Cir. 2010). Under this reading, Bryant has not waived his
right to bring a motion for a sentence reduction under § 3582(c)(2).
The ambiguity of the waiver provision—combined with constitutional concerns that
direct us to read plea agreements against the Government—require that we reach the merits of
Bryant’s appeal. I therefore respectfully dissent from the determination that Bryant waived his
right to bring a motion for a sentence reduction under § 3582(c)(2).
On the merits, I agree with the majority that Bryant’s plea agreement was not “based on”
the Guidelines as required by Freeman v. United States, 564 U.S. 522 (2011), and United States
v. McNeese, 819 F.3d 922 (6th Cir. 2016), the latter of which was decided after the district court
ruled on Bryant’s motion. I therefore concur in the judgment.

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