USA v. Scottie Sanderson

Filing

Per Curiam OPINION filed : AFFIRMED. Decision not for publication. Damon J. Keith, Alice M. Batchelder, and Richard Allen Griffin, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0347n.06
No. 16-6659
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SCOTTIE LEE SANDERSON,
Defendant-Appellant.

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Jun 19, 2017
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF
TENNESSEE

BEFORE: KEITH, BATCHELDER, and GRIFFIN, Circuit Judges.
PER CURIAM. Scottie Lee Sanderson appeals the district court’s order denying his
motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). As set forth below, we
affirm.
In 2010, a federal grand jury returned an indictment charging Sanderson with two counts
of possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924 and four
counts of possession with intent to distribute and distribution of marijuana in violation of 21
U.S.C. § 841(a)(1). Sanderson entered into a written plea agreement, agreeing to plead guilty to
two of the marijuana counts in exchange for the dismissal of the other counts. In the plea
agreement, the parties acknowledged that, if convicted of either firearm count, Sanderson would
face a mandatory minimum sentence of 180 months and a maximum sentence of life because he
qualified as an armed career criminal.

Pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C), the parties agreed upon a sentence of 60 months on each count, to run consecutively

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for a total of 120 months of imprisonment. Sanderson waived his right to appeal or collaterally
attack the agreed-upon sentence.
Using the drug guideline, USSG § 2D1.1, which resulted in a greater offense level than
the career offender guideline, USSG § 4B1.1, the probation office calculated Sanderson’s
guidelines range as 41 to 51 months of imprisonment. At sentencing, the district court accepted
the plea agreement and sentenced Sanderson to 60 months of imprisonment on each count, to run
consecutively.
In 2016, Sanderson filed a pro se motion for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) based on Amendment 782 to the sentencing guidelines, which amended USSG
§ 2D1.1’s drug quantity table to reduce by two levels the base offense level for most drug
offenses. The district court appointed counsel to represent Sanderson and ordered the probation
office to prepare a revised presentence report. Applying Amendment 782, the probation office
determined that Sanderson’s offense level was now greater under the career offender guideline
than under the drug guideline and that his revised guidelines range was therefore the career
offender range—37 to 46 months of imprisonment. After briefing by the parties, the district
court denied Sanderson’s § 3582(c)(2) motion, concluding that he was not entitled to a sentence
reduction because his sentence was based on the Rule 11(c)(1)(C) plea agreement and not on a
guidelines range. This timely appeal followed.
The government contends that Sanderson waived his right to seek a sentence reduction
under § 3582(c)(2) in the plea agreement in exchange for the government’s concessions,
including its agreement to dismiss four counts of the indictment, two of which carried a 15-year
mandatory minimum sentence. “It is well settled that a defendant in a criminal case may waive
any right, even a constitutional right, by means of a plea agreement.” United States v. Calderon,
388 F.3d 197, 199 (6th Cir. 2004) (quoting United States v. Fleming, 239 F.3d 761, 763-64 (6th
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Cir. 2001)). In his plea agreement, Sanderson “knowingly waive[d] the right to challenge the
sentence imposed in any collateral attack, including, but not limited to, a motion brought
pursuant to . . . 18 U.S.C. § 3582(c).” Sanderson contends that the waiver is ambiguous for two
reasons: (1) a § 3582(c) motion is not a collateral attack and (2) a waiver of a § 3582(c) motion
does not necessarily preclude a motion for a sentence reduction under § 3582(c)(2). Rejecting
these same arguments, this court has found identical waiver provisions to be unambiguous and
enforceable in § 3582(c)(2) cases, albeit in unpublished decisions. See United States v. Bryant,
663 F. App’x 420, 422-23 (6th Cir. 2016); see also United States v. Shelton, __ F. App’x __, No.
16-5772, 2017 WL 244800, at *1 (6th Cir. Jan. 20, 2017); United States v. Ellison, 664 F. App’x
507, 509 (6th Cir. 2016).
Regardless of whether Sanderson waived his right to file a § 3582(c)(2) motion, the
district court properly denied his motion for a sentence reduction. We review de novo the
district court’s determination that Sanderson was not eligible for a sentence reduction under
§ 3582(c)(2). United States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010). “A district court may
modify a defendant’s sentence only as provided by statute.” United States v. Perdue, 572 F.3d
288, 290 (6th Cir. 2009). Under § 3582(c)(2), a district court may reduce a defendant’s sentence
if the defendant “has been sentenced to a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing Commission.”
In her narrower and therefore controlling opinion in Freeman v. United States, 564 U.S.
522 (2011), Justice Sotomayor held that “the term of imprisonment imposed pursuant to [a Rule
11(c)(1)(C)] agreement is, for purposes of § 3582(c)(2), ‘based on’ the agreement itself.” 564
U.S. at 536 (Sotomayor, J., concurring). A defendant sentenced pursuant to a Rule 11(c)(1)(C)
agreement is eligible for a sentence reduction under § 3582(c)(2) only when the agreement
“expressly uses a Guidelines sentencing range to establish the term of imprisonment, and that
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range is subsequently lowered by the Commission.” Id. at 539 (Sotomayor, J., concurring).
Sanderson’s Rule 11(c)(1)(C) agreement did not mention a guidelines range, offense level, or
criminal history category in establishing the agreed-upon sentence. In fact, the plea agreement
stated that “[t]he parties have no agreement as to a U.S.S.G. calculation.” The district court
properly concluded that Sanderson’s sentence was not based on a guidelines range and that he
was not entitled to a sentence reduction. See United States v. McNeese, 819 F.3d 922, 927-29
(6th Cir.), cert. denied, 137 S. Ct. 474 (2016); United States v. Riley, 726 F.3d 756, 760-61 (6th
Cir. 2013).
Sanderson argues that Justice Sotomayor’s concurring opinion in Freeman should not be
read as controlling, citing United States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc), and
United States v. Epps, 707 F.3d 337 (D.C. Cir. 2013). This court has repeatedly held that Justice
Sotomayor’s concurring opinion provides “the framework that governs the inquiry into whether a
defendant sentenced pursuant to a Rule 11(c)(1)(C) agreement qualifies for § 3582(c)(2) relief.”
McNeese, 819 F.3d at 927; see Riley, 726 F.3d at 760; United States v. Smith, 658 F.3d 608, 611
(6th Cir. 2011). We are bound by that holding. See United States v. Lanier, 201 F.3d 842, 846
(6th Cir. 2000) (“It is firmly established that one panel of this court cannot overturn a decision of
another panel; only the court sitting en banc can overturn such a decision.”).
Accordingly, we AFFIRM the district court’s order denying Sanderson’s motion for a
sentence reduction.

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