Legal Case Summary

We'll hear argument first this morning in K0910245, Freeman versus United States. Mr. Heft. Mr. Chief Justice, may I please the Court? William Freeman's plea agreement, his pre-sentence report and a sentencing record, all show that his term of imprisonment was based on crack cocaine guideline that was retroactively lowered by the United States Sentencing Commission. This case asked the Court to decide whether the fact that a sentencing court accepted a plea agreement under Criminal Rule 11C1C, precludes eligibility for a sentence reduction under Section 3582C2. We submit that Mr. Freeman is not barred from eligibility for a C2 sentence reduction for several reasons. First, under the ordinary definition of based upon, and in the context of this particular statute, since the subsequently lowered guideline was used to determine Mr. Freeman's term of imprisonment, that term of imprisonment was based on the subsequently lowered guideline. Second, the categorical ban on eligibility adopted by the Sixth Circuit and advanced by the government frustrates the purpose underlying Section C2 and finds no support in the playing language of the statute, of the rule, and under the terms of Mr. Freeman's plea agreement. Third, a record-based analysis that reviews the plea agreement, the pre-sentence report, and the sentencing record for it to determine the basis of the sentence, is best suited to correctly implement Section C2. And that record-based analysis supports the conclusion that Mr. Freeman's sentence was indeed based on a retroactively lowered guideline. The Sixth Circuit view. If we issue an opinion and we analyze the statute's language, the statute's purpose, and the statute's legislative history, would the opinion, the judgment be based on each of those or not? In other words, does everything that goes into the final determination, would you say that determination is based on each of those factors individually? Yes, certainly it is, the determination certainly would be based on the statute you're on, but as we've argued in our brief, we've asked Court to take what we believe to be a record-based analysis and to look at the record in this case, look at the terms of the plea agreement, look at the other. No, I think my question goes in a different direction. This plea agreement, I think, could be said to be based on the sentencing guidelines, but it's also based on the agreement. In other words, the combination of the two of them is what gives you the sentence. So how can you say it's based on only the sentencing guidelines when it may not have been imposed in the absence of the plea agreement? Well, probably wouldn't have been. Mr. Chief Justice, we don't believe that that's mutually exclusive. A sentence can be a guideline, a sentence based on the guidelines, and it can be a sentence based on a see-play agreement. Well, you quote one definition of the noun base in your brief, uses a point from which something can develop

. But you omit another standard definition of the term, the principal element or ingredient or ingredient of anything, considered as its fundamental part. And why do you do that? Well, I think that the dictionary definition that we have given encompasses both the definition that you're on is just described. There are two different definitions. One is something that provides a starting point for analysis. The other is the fundamental thing on which something is it rests. Well, our content is that the definition you use, the latter definition you have to decide which is more fundamental here, the agreement between the parties or the sentencing guidelines, which certainly provided the starting point for the analysis of the sentencing by the district court. Justice Alita, that's correct. The guideline certainly were the starting point, but they are also the principal foundation of this agreement. Because what the agreement is- Isn't it enough for you to say or based not in whole, but in part, based on something could be based on several things. And one of them is the guidelines that then existed. Certainly. And this plea agreement reflects that it was based on the guidelines. Well, then are you saying a plea agreement was based on the fact that he was caught with two guns rather than four guns? Would you be willing to say that? In the words, everything your position, it seems to me, could be criticized for saying everything that contributes to the final 106 months that that sentence is based on every one of those things. Well, it makes the statutory language largely meaningless. Well, you're on the sentence is based on a number of guidelines. I mean, each guide- No sentence is based on just one guideline as this plea agreement reflects. It's based on a compilation of guidelines. It's based on the crack guidelines. And as- But it's also based on things that are not reflected in the guidelines. You've got a particular U.S. attorney who's more lenient in prosecuting these types of crimes than another one. The fact that you got the minimum under the guidelines might be based on that. It's based on the fact that this person felt he could handle 106 months in prison, and he wasn't willing to risk whatever the top sentence under the guideline calculation

. It would have been 117 months. So he figures it's better for media? It's based on his decision that 106 months is better than the risk of 117. Well, certainly there are a number of factors that go into plea bargaining and negotiation. But what I think what the Court has to look at is what is said in that plea agreement. And I think it's just a Schinsburg pointed out a minute ago, the definition of based on if a guideline sentence is based in part on the guidelines, that would be adequate under the- What's the sentence? What do you've gotten if you were just sentenced under the guidelines? No plea agreement. He would have got that he would have ever seen the same sentence you're on. Why, why, why do we know that? Well, guidelines give you a range that Judge might have given him 117 months. But the plea agreement here was for the bottom of the guidelines. The parties, Cal- No, no, I'm putting aside the plea agreement. What would he have gotten under the sentencing guidelines? We don't know, right? It would have been left, well, soon it depends on the nature of the plea, you're talking- There's no plea. He's convicted at trial. It would be somewhere within that guideline range, that's correct. So how can you say that this is based on the guideline range when the guideline range would not have been determinative? Well, we're looking at the content of the plea agreement, Your Honor. The plea agreement itself- But my hypothetical is in a different context. But even at that, Your Honor, if that sentence ultimately is going to be based on a guideline range, and if that guideline range is subsequently lowered by the sentencing commission, then the counsel could you, maybe it would be easier if you would describe to us the situations you don't think would be based on the guidelines. The solicitor general claims that since every plea negotiation has to start with the guideline calculation as a starting point for departure and or consideration by the judge under 6B1, that every plea agreement would be considered based on. Are you taking that position? No, Your Honor, absolutely not. So I'll give you a couple of examples, but you give me more. Would a plea agreement that doesn't mention the guidelines at all, but picks a sentence within the actual guideline, is that based on the guideline? Possibly, Your Honor. All right. And how about one that departs or varies from the guideline range? Whichever word you want to use? You're on the sentencing commission in 1B110, note 3, says that a below guideline sentence can be based on the guideline. So the solicitor general is right. There really isn't any situation that you're claiming is not based on. Oh, no, Your Honor

. There are, there are, there are, see please. Give me the examples. All right. Well, first of all, we've cited cases in our brief where circuit courts have determined that a see plea was not based on the guidelines. But let me give you another example. Let's just assume that the guideline range is something like 151 to 188 months. And then, but the parties agree to a sentence of 60 months. And they do that for several reasons. First of all, maybe the defendant's elderly, maybe the defendant has serious medical conditions, maybe the defendant was sexually abused as a child. But if those are the factors, if that's the reason why the defendant got that, received that 60 month sentence, that sentence is not based on the guideline range. Well, wouldn't the guidelines, even in that situation, provide the starting point for analysis? Isn't the district court obligated? And isn't the, doesn't the pre-sentence report have to go through the guidelines calculation before the sentence is imposed? So you start out with the, the, the guideline sentence of whatever the figure was that you mentioned. And then you go from there and maybe you depart downward. That's true. The guidelines would be the starting point of any negotiations. So why wouldn't that be based on the guidelines, just because there's such a big downward departure? It, you're on it would not be based on the guidelines. If those other factors were the motivating reason for the imposition of the. Sorry, I don't understand that. Don't the guidelines provide for departures? They do, you're on it. Well, yeah. And aren't you giving a guideline sentence if you give your reasons as is required by the sentence in commission in 6B1.2 and you say the judge says, I think this is a special case and therefore I'm giving a lower sentence, just as he's required to do under the guidelines in order to accept a C type agreement. If the parties can show that the sentence is tied to the guidelines. Well, how could it not be? Wouldn't the judge have to say it's not tied to the guidelines because I am varying and I no longer wish to apply the guideline. If he doesn't say that, isn't he applying the guideline? In that instance, he would be applying

. Whether he gives the specific robbery three point, whatever it is, 17 months or whether he says I have a special case and I depart under Section 5 of the guidelines. Both of those are guidelines sentences, aren't they? If the judge were to take the word to actually apply those guidelines and say based on that guideline, I am going to depart, that sentence is based on the guidelines. So from what base does the judge depart downwards? From the crack cocaine range or from the downward departure range? I think it would depend on the nature of the agreement you want to. It may very well depend on the judge made depart from the crack cocaine. So aren't you just asking us to permit district court judges to make up their own C agreement, to decide what the parties would have done in the absence of a higher range? And don't we fall prey to sort of just create asking district court judges to create their own agreements? No, no, you are not. I don't believe that's not what we're asking for court to do at all. Mr. Hathayu, you will be lying. I mean, this was a plea agreement that said specifically, defendant agrees to have his sentence determined pursuant to the guidelines and then the judge said that he was adopting the probation report and the application of the guidelines has set out there, there in. So both the defendant says, I agreed to a determination pursuant to the guidelines and the judge said, I'm going to apply the guidelines and give you a sentence. So the hypotheticals we're talking about are quite far afield from where you have a specific statement by the defendant and the sentencing judge that the guidelines are being applied. That's correct, Your Honor. And that's why we've asked the court not to take a categorical approach to this issue, but to take either a case by case approach or a record based analysis to allow the district judge to determine if it's Justice Ginsburg pointed out what are, you know, what is the, what would you require those kinds of statements in the agreement or in the colloquy in order to satisfy the standard, suppose those statements just didn't exist. That's certainly problematic, Justice Kagan. If there was nothing in that plea agreement to tie the sentence to the, the sentence, the agreed sentence to the guidelines, that certainly would be problematic. But that doesn't resolve the issue one way or the other, because the judge would have to consider the pre-sentence report to see if there's a connection or correlation between the agreed sentence and the guidelines. And also the judge could look at the guilty plea colloquy and the sentence transcript to see if the attorneys actually expressed their intent about where this sentence came from. But we have to look at this. It seems very complicated. You have to look at everything and you're not giving us a lot of guidance as to what you do when you, when you see these things. I mean, this sort of case by case, all things considered approach just seems as though you're going to get a lot of inconsistent decisions. Respectfully, Your Honor, I disagree. I think this is what Juddistrict Judges do all the time, not just in the context of the, the seeably, but a bb plea as well. They have to look at the nature of the plea agreement

. They have to look at the PSR. They have to look at the sentencing transcript to determine whether or not the defendant is eligible for that sentence reduction. So Judges are doing this routinely, they're doing it. Every case they have to go through the guidelines calculation and the parties have the opportunity to object to the calculation, right? Yes, Your Honor. So what does paragraph 12 of the plea agreement contribute here other than with respect to the fine and things besides the sentence that we're talking about? It doesn't seem to me to add anything substantively. Well, you want to, I think it does, Justice Alito. I think it does add substance and it adds meaning to that plea agreement because in paragraph 11, where the parties very meticulously go through the offense level, tie that to the guidelines. And then they state in paragraph 12, the defendant agrees to be sentenced pursuant to the guidelines. That's very clear that the review in the guideline calculation is what the sentence is based on. And again, a sentencing judge we found who have abused his or her discretion in approving a plea, a C plea agreement which provides for less than the minimum guideline sentence and gives no particular reason for that. Would that be appealable as an invalid sentence? Well, Your Honor, under Section 3742, the government could appeal an incorrect application of the guidelines if that's what Your Honor is referring to. But now you're talking about a plea agreement, Mr. the government has consented to whatever this agreement is. And whether sometimes the plea agreement will say, okay, if you take a plea, will it drop certain charges or will charge a small amount of volume of the drug? Was there any of that in this plea? No, Your Honor. Mr. Freeman pleaded guilty to all charges in the indictment, the party stipulated the amount of drugs that were found on his person when he was arrested. So there were no dismissed charges, no amended charges in this plea agreement. Let me ask my question a different way. In deciding whether to approve the plea agreement, doesn't the judge have to consider whether it is an application of the guidelines, whether it is wildly inconsistent with the guidelines, whether it does not take into account valid reasons for departure from the guidelines? Yes, the judge would have to consider the guidelines. Van, if that's the case, then every plea agreement is based on the guidelines. Every single one, because the judge always has to consider out of the guidelines applied to this plea agreement. Well, Justice Scalia, consideration of the guidelines alone is not enough to determine whether or not that sentence is actually based on the law. I understand why you resist that. I mean, that's precisely what the guidelines say

. The only ones that aren't the guidelines sentences are dismissal charges, where it's an agreement to dismiss, but a type B type C, the guidelines themselves say that the judge hears what you do. Judge, you look and see if the guidelines sentence is there. Is it a guideline sentence? If it is, you can approve it. If it isn't, you can't. I mean, that's my reading of what it says. So why do you resist that conclusion? Well, of course, the judge now could depart from the guidelines. I mean, vary, whatever that word, technical word, is very. He can say, I'm not going to apply the guidelines at all, but if he is going to apply the guidelines, isn't that what they tell him to do? I've always thought that, and you may tell me I'm mistaken. They do, obviously, they do consider the guidelines, but then the other question is whether or not the sentence is based on those guidelines. Well, how could it not be since the judge has no power if he is to apply the guidelines? Well, to accept any agreement, other than agreement, that corresponds with the guideline. That's what it says. It says, the Court should accept a recommended sentence or a C, the specific sentence, only if the Court is satisfied, either that it is within the applicable guideline range, or if it's based on a departure under the guidelines. That seems to me what it says. Isn't that what it says? That's what it says, you're OK. Then if that is so, every sentence is, you're going to say no. I mean, I thought that was helping you, but if you want to say no, go say no, and explain why that is. You are, because to go back to the point that Justice Sotomayor made with the hypotheticals, there still can be C-pleads that are not based on the guidelines. How? Well, the example that I gave previously, there's a guideline range, but the judge bases his decision, his or her decision solely on other factors other than the guidelines, whether, as I mentioned earlier, that you were supposed to psychoanalyze the judge. The judge says on his writing, checks the box, this is a guideline sentence. It is robbery. It is precisely within the robbery range. But I am going to give it the low end of the range because I believe that the, you know, he has a lovely mother and family and so forth. You're saying that isn't based on the guideline? No. Okay

. Is that the point? Well, it depends what the judge does at Sotomayor. What he does is he applies the guideline sentence. He has to do that. Now, within that range, he's applied the guideline sentence. He got the information. He says, I'm satisfied it applies. Done. Now, are we supposed to look further and say what is true reason is? Is that what you're saying? It would, you're on a, I would say that it would depend on the nature of the plea agreement, whether or not that sentence is actually based, going to be based on the guidelines. Well, let's talk about that. Incidentally, and it sort of bears upon this discussion, are the guidelines mandatory when they are applied in approving a plea agreement? In other words, does Booker fan-fan not apply to the application of the guidelines when a judge is approving a plea agreement? You think the guidelines are mandatory in that situation? No, Your Honor. You were just at the very point when we decided Booker, is that right? It was, you're sentencing took place July 2005 and we came out with Booker in- I believe it was March of 2004. All right. So it's quite possible the judge wasn't totally. But I mean, I agree. It's much more complicated after Booker. I don't know how to treat yours. That's true. That's possible. What if there had been evidence here of that? Well, what if the government in connection with this plea agreement had dropped counts where had decided not to seek a superseding indictment, adding counts? Would that situation be the same? Yes, Your Honor. I think it would be the same. Because the Court would have to look at, again, what the terms of the plea agreement was and what the parties determined. Now, I think what I should emphasize is that we're only talking about eligibility here. And if those concessions that the government has made would perhaps result, or at least in the government's view, result in an unjustified windfall, that is not a critical factor in determining eligibility. That's not a fact at all in determining eligibility

. That could come into play after eligibility is determined and the district judge determines whether or how much. How would that possibly work? The government drops count, agrees to a plea on count one with a guideline range of 60 to 65 months. Drops count two, which would have at increased the guideline range to, let's say, 100 to 105 months, and says, this is our deal. You know, you agree to two 65 months, and we're going to drop count two. All right? And then the guideline for that is lowered. And you say in determining whether the defendant is eligible, what the government would then have to have a mini trial and prove the proof count two? No, no, no, no. How would it work? It would work assuming that the defendant's eligible cases were mandated to district court. As in this case, there would be a recalculation of the guidelines to determine if the guideline range would be reduced. And then as the district judge, in this case, said, if you have objections, let me know, file your objections. That's where the government could file. The government filed the subjections and says, well, we dropped count two when the defendant says, well, I wasn't guilty of count two. That's up to the district judge's discretion whether or not to reduce that amended guideline sentence. How's the judge going to decide that? Well, I think that's something that district judges decide every day, whether or not. Because the judge presumably has been, is familiar with the case, with the pre-sentence report, with the terms of the original plea agreement, with the facts of the case, and the judge can make an assessment based on those factors, whether or not the sentence reduction should be granted, and if so, how much of a reduction should be granted? But Justice Alito's hypothetical points out, points up the fact that even though the agreement may mention the guidelines, it may do that just for the purpose of enabling the judge more readily to approve the agreement. But there's no reason to believe that the government is interested in the guidelines, as opposed to being interested in putting this person away for a certain amount of time, especially when another count is dropped. And the government says, well, I'll drop it if this guy goes to prison for two years. But if the government had known he's not going for two years, he's only going for a year and a half or a year, the agreement might not have been concluded. So it really, I mean, it doesn't further the intent of both parties, at least, to say when the guideline is changed, the agreement changes. Well, the agreement certainly has been modified by the amended guideline, and that's where the district judge has to exercise his or her discretion, whether or not to grant that reduction. But in that event, the sweet part was the open to reconsideration, too. I mean, you can't say, I want the good part, the lowered guideline, but I also want to keep that certain accounts were dropped, and that a certain quantity of drugs was agreed upon. You would have to reopen the whole thing, wouldn't you? No, Justice Ginsburg, I don't think you'd have to reopen the case. Again, I think the judge could look at the pre-sentence report. The government could make it some juxtaposition saying, here's why we gave that particular sense, and the judge could exercise his or her discretion to say whether or not the defendant's going to get that sentence reduction

. Thank you, counsel. Thank you, Your Honor. Mr. Ganon. Mr. Chief Justice, and may I please the Court? When a criminal defendant in the government agreed to a specific sentence, and that agreement is binding on the sentencing judge by virtue of Rule 11C1C, the resulting sentence is based on the party's agreement. It is not based on the advisory guideline range that would otherwise have been used at sentencing, even if the sentence corresponds to that range. Well, here the agreement at various points says that the party's agree on the calculation of the guideline. I think that's paragraph 11 and 12. They say the sentence is according to the guideline. Well, there's reference to the guidelines throughout, and the Court made the guidelines calculation. Certainly, it means that the Court certainly means to me fair under the statute to say that it is based on the guideline. Well, but are there other provisions in the agreement you might argue about? Well, I think the statutory question here isn't just whether the sentence is based on the guidelines, the language under 3582 C2, is whether the defendant was sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the commission. So it's not just whether the guidelines played a role. It's whether this particular sentencing range was what was driving the sentence. And Justice Kennedy, you point out, pages 2526 of the plea agreement in the joint appendix. And I think it's instructive that the agreement deals differently with the fine component as Justice Alito referred to earlier than it does with the term of imprisonment. At the bottom of page 25, the agreement says that a fine will be at the lowest end of the applicable guideline range. And then if you go over to pages 27 and 28 in paragraph 11, that's where the guideline calculation occurs. And notice it's an incomplete calculation. The parties don't actually come up with the final calculation because they don't come up with a criminal history. Well, they do come up with a recommendation. Which is three levels below the otherwise applicable guideline. They come up with a recommendation for purposes of determining the offense level, the base offense level, 22 and then reduces the night's

. Yes, that's all based on the guidelines. Well, that aspect is based on the guidelines. But then the guideline application computation is incomplete because the next paragraph paragraph B says we aren't agreed on what the criminal history is going to be. And the next paragraph, paragraph C, specifically says that the foregoing state statements of applicability of sections of the sentencing guidelines are not binding upon the court. The defendant understands the court will independently calculate the guidelines at sentencing. That doesn't mean that the court can't base its conclusion on its independent judgment on the guideline. Well, I think what I'm trying to say, Justice Kennedy, is the agreement expressly contemplates that the judge needs to determine the applicable guideline range for purposes of determining what the fine will be. And that's different from the way the plea agreement deals with the term of imprisonment. Because if we go back to page 26, it does not tie the term of imprisonment to a guideline range. That's completely different from the way it deals with the fine. It specifically says there's an agreement that the sentence of 106 months of incarceration is the appropriate amount. And so that happens to have been at the bottom end of the guideline range that would have been applicable if the party's agreement, if the party's prediction about the likely criminal history calculation turned out to be the right one. Well, you're talking about what based on means and that's an important part of your argument. If I can just, well, I've got you jump to this question of what happens on remand. If you lose the case, on remand, I take it, you're not bound by the agreement because of the last. Well, I ask the, of Section 24, so the defendant argues for any sentence other than the one to which he has agreed to the agreement. Well, at that point, the remedy for the breach would be that the United States is relieved of its obligations under the agreement. What would that mean? Well, I think that's part of the problem in a case like this where there was a specific sentence agreement that it's impossible for the government to get back the things that it gave up at the time that it needs to be addressed. And guilty pleas on all of the counts. We know that. Well, but it also, in your position, in your view, would the government be able to take the position that the guilty pleas stay in place, but it now wants maximum? Well, I think that that would not be an axed maximum of guidelines. I don't think the 3582 C2 content place that the sentence will be increased. The only thing is the court telling the defendant that the agreement does. The agreement relieves you. Well, I think that's if the any obligation. I see what you mean. I mean, now that the sentence has become final, I think 3582 C2 has opened a narrow window for ways in which the otherwise final sentence could be modified. It only contemplates that the judge will have the discretion to reduce the sentence. If it is first a sentence that was based on the relevant guideline range that subsequently been amended and made retroactively applicable, but also second, then the judge would need to comply with a policy statement that appears in 1B1.10. So you say the judgment's final, so the fact that the plea, that there's a breach of the plea agreement is irrelevant at this point? Well, I think that the remedy that the agreement contemplates of the government being released from its other obligations in the plea doesn't really leave us much of an option at this point. We're not going to be able to go back and argue that he should have been sentenced at the upper end of the range that we're talking about. We're not going to be argued that the criminal history should have been a higher or that the criminal history substantially underrepresented the seriousness of his history where he had 10 years of offenses preceding this one. There may have even been a potential career offender adjustment that went by the boards. That's mentioned on page 162 of the Joint Appendix. Mr. Gannon, you assert that the within the language of the statutory provision, the sentence here is not based on the guidelines, but it's based on the agreement. And the agreement, arguably, is based on the guidelines. I think the agreement is, arguably, I mean, I don't think the face of this agreement proves that it's based on the guidelines, but it is obvious that the parties negotiated in the shadow of the guidelines. If you take that position that based on means determined by absolutely, then I don't think any sentence would ever be based on the guidelines after Booker Fanfare. Well, the guidelines form part of the consideration of the judge, but the judge's decision is not based on the guidelines. Well, just as here, the agreement, the guidelines form part of what produces the agreement. So also, they form part of what produces the judge's decision. And it seems to me, if that's going to be enough for the judge's determination, it ought to be the same for the agreement. Well, I think it's not clear that the judge needed to be considering the guidelines in the course of deciding whether to accept the plea agreement. And Justice Breyer earlier had a call with Mr. Haft about guidelines 6B1.2, which even before Booker was a non-binding policy statement

. Well, I think that's if the any obligation. I see what you mean. I mean, now that the sentence has become final, I think 3582 C2 has opened a narrow window for ways in which the otherwise final sentence could be modified. It only contemplates that the judge will have the discretion to reduce the sentence. If it is first a sentence that was based on the relevant guideline range that subsequently been amended and made retroactively applicable, but also second, then the judge would need to comply with a policy statement that appears in 1B1.10. So you say the judgment's final, so the fact that the plea, that there's a breach of the plea agreement is irrelevant at this point? Well, I think that the remedy that the agreement contemplates of the government being released from its other obligations in the plea doesn't really leave us much of an option at this point. We're not going to be able to go back and argue that he should have been sentenced at the upper end of the range that we're talking about. We're not going to be argued that the criminal history should have been a higher or that the criminal history substantially underrepresented the seriousness of his history where he had 10 years of offenses preceding this one. There may have even been a potential career offender adjustment that went by the boards. That's mentioned on page 162 of the Joint Appendix. Mr. Gannon, you assert that the within the language of the statutory provision, the sentence here is not based on the guidelines, but it's based on the agreement. And the agreement, arguably, is based on the guidelines. I think the agreement is, arguably, I mean, I don't think the face of this agreement proves that it's based on the guidelines, but it is obvious that the parties negotiated in the shadow of the guidelines. If you take that position that based on means determined by absolutely, then I don't think any sentence would ever be based on the guidelines after Booker Fanfare. Well, the guidelines form part of the consideration of the judge, but the judge's decision is not based on the guidelines. Well, just as here, the agreement, the guidelines form part of what produces the agreement. So also, they form part of what produces the judge's decision. And it seems to me, if that's going to be enough for the judge's determination, it ought to be the same for the agreement. Well, I think it's not clear that the judge needed to be considering the guidelines in the course of deciding whether to accept the plea agreement. And Justice Breyer earlier had a call with Mr. Haft about guidelines 6B1.2, which even before Booker was a non-binding policy statement. And so to be sure, when 3582 was enacted, the guidelines were binding. And therefore, they would have been expected to have played a larger role in most sentences. But let's assume there is no plea agreement. Yes, and you have a judge who sentences Post Booker Fanfare. Now, his sentence is not based on the guidelines. Any more than this agreement is based on the guidelines. The guidelines are one of the things that he must take into account and does take into account in determining the sentence. Now, if that is enough for purposes of determining whether this statute, a statutory provision applies to a sentence imposed directly by a judge, it seems to me the same analysis ought to apply to a sentence imposed through a plea agreement. Well, I think that there's a different purpose that's being served by asking the 3582 C2 inquiry, which is asking the judge to go back and redo the aspects of his analysis that would have been different. And the relevant guideline range been changed at the time he engaged as an analysis. And so you acknowledge that based on covers Post Booker Fanfare's sentences by the judge. Outside the context of a specific C, a specific statement under type C, that on page 28 of our brief, we acknowledge that in most contexts, it's open to contend that the sentence was based on the relevant guidelines. Even though the guidelines are just one of the things that have to be taken into account. It is the test that we state in the subheading of that section of our brief is whether there of legal consequence in the detention. Find legal consequences, your test, Mr. Ganon. Well, that's not a finding legal consequence, Post Booker. The test that we have for the overarching test is whether it is of legal consequence. And the phrase that you're talking about on page 27 of our brief Justice Kagan is when we know that there is something that was of binding legal consequence and was controlling, we know that that is the thing that's not based on. What is your test instead? Well, that is that it in when something literally is controlling the analysis, the party's agreement here binds the district judge. We know that that is what the sentence is based on. There is a need to be. Yes, is there some other instances in which you would say that something is based on even though it's not of binding legal consequence? Well, it would be of legal consequence even if it weren't controlling. This Court has made clear even after Booker than under 3553A

. And so to be sure, when 3582 was enacted, the guidelines were binding. And therefore, they would have been expected to have played a larger role in most sentences. But let's assume there is no plea agreement. Yes, and you have a judge who sentences Post Booker Fanfare. Now, his sentence is not based on the guidelines. Any more than this agreement is based on the guidelines. The guidelines are one of the things that he must take into account and does take into account in determining the sentence. Now, if that is enough for purposes of determining whether this statute, a statutory provision applies to a sentence imposed directly by a judge, it seems to me the same analysis ought to apply to a sentence imposed through a plea agreement. Well, I think that there's a different purpose that's being served by asking the 3582 C2 inquiry, which is asking the judge to go back and redo the aspects of his analysis that would have been different. And the relevant guideline range been changed at the time he engaged as an analysis. And so you acknowledge that based on covers Post Booker Fanfare's sentences by the judge. Outside the context of a specific C, a specific statement under type C, that on page 28 of our brief, we acknowledge that in most contexts, it's open to contend that the sentence was based on the relevant guidelines. Even though the guidelines are just one of the things that have to be taken into account. It is the test that we state in the subheading of that section of our brief is whether there of legal consequence in the detention. Find legal consequences, your test, Mr. Ganon. Well, that's not a finding legal consequence, Post Booker. The test that we have for the overarching test is whether it is of legal consequence. And the phrase that you're talking about on page 27 of our brief Justice Kagan is when we know that there is something that was of binding legal consequence and was controlling, we know that that is the thing that's not based on. What is your test instead? Well, that is that it in when something literally is controlling the analysis, the party's agreement here binds the district judge. We know that that is what the sentence is based on. There is a need to be. Yes, is there some other instances in which you would say that something is based on even though it's not of binding legal consequence? Well, it would be of legal consequence even if it weren't controlling. This Court has made clear even after Booker than under 3553A. Court still need to go through the relevant guidelines analysis. They apply the guidelines. It may turn out that the sentence turns out not to be based on the relevant guidelines because the judge is the only one who is not in the legal consequence. So then on back with Justice Scalia, because if it's only of legal consequence, not of binding legal consequence, if it's something that somebody considers rather than something that is determinative, it seems to me the same in the non-plie context and in the plea context. Well, I don't think that's true in the context of a specific sentence agreement under a type C plea because, and this is reinforced by the language in the policy statement, 1B1.10, which the Court last term in Dylan held is binding and controls what needs to be done during the sentence reduction proceeding. And it specifically refers to the guideline provisions that were applied when the defendant was sentenced. And that's something that happens in the process of the 3553A Factor's applicability. I doesn't this line of questioning lead logically to the conclusion that no sentence after Booker and Fanfan is based on the guidelines because today a sentencing judge can engage in the same analysis that the Sentencing Commission may engage in when it decides that a guideline range should be lowered and that that should be retroactive. The judge can do that at the time when the sentence is imposed. We roll the clock back on the crack, on the crack cocaine guidelines under the authority that judges now have under Booker and Fanfan. The judge could say, well, I see that this is the crack cocaine guideline right now, but I think it's too harsh for all the reasons that were later persuasive in lowering the range and therefore I'm sentencing below the range. So it seems to lead logically to the conclusion that 3582 is yet another provision of the Sentencing Reform Act that was tied to the old pre-booker mandatory sentencing regime and now that that's out the window with Booker and Fanfan, the whole mechanism is superfluous. Well, I understand the point that the analysis has certainly changed since Booker, but it is still the case that the defendant can appeal an error in application of the guidelines after Booker. If the judge were to to to misapply the guidelines before he engages in the analysis that you talk about Justice Alito, that would be grounds for an appeal. In retrospect, if the judge has asked whether the sentence was based on the guidelines, he may say that particular sentence wasn't because I ended up disregarding the guidelines under 3553A. I did the analysis. I was exercising my sentencing discretion the first time around under 3553A and the guidelines ended up not being the basis of the sentence. And that's not something that's an option in a type C plea agreement because they're the defendant can't appeal when the judge agrees to the sentence in the review. I find it hard to understand the analysis that would require courts to decide whether some C1C plea agreements are based on the guidelines and some are not based on the guidelines. Maybe they're all based on the guidelines and then the obligation would be on the government to put a provision in a standard plea agreement requiring the defendant to give up the opportunity to move for a sentence reduction if the guideline range is subsequently forward. Or maybe none of them are based on the guidelines because for the reasons I just mentioned, this whole mechanism is now needed no longer as a result of the Booker and Fan Fan. Well, I think in the context of an actual specific sentence plea agreement, that's the one that we think is off the table because that is what's going to control the sentence and some type C plea agreements affirmatively contemplate application of the guidelines as this one does with respect to the fine. And so when you have a plea agreement that tells the district judge you are bound to apply a guideline provision once you've accepted this agreement, we haven't taken the position that the resulting sentence there isn't based on the relevant guideline range

. Court still need to go through the relevant guidelines analysis. They apply the guidelines. It may turn out that the sentence turns out not to be based on the relevant guidelines because the judge is the only one who is not in the legal consequence. So then on back with Justice Scalia, because if it's only of legal consequence, not of binding legal consequence, if it's something that somebody considers rather than something that is determinative, it seems to me the same in the non-plie context and in the plea context. Well, I don't think that's true in the context of a specific sentence agreement under a type C plea because, and this is reinforced by the language in the policy statement, 1B1.10, which the Court last term in Dylan held is binding and controls what needs to be done during the sentence reduction proceeding. And it specifically refers to the guideline provisions that were applied when the defendant was sentenced. And that's something that happens in the process of the 3553A Factor's applicability. I doesn't this line of questioning lead logically to the conclusion that no sentence after Booker and Fanfan is based on the guidelines because today a sentencing judge can engage in the same analysis that the Sentencing Commission may engage in when it decides that a guideline range should be lowered and that that should be retroactive. The judge can do that at the time when the sentence is imposed. We roll the clock back on the crack, on the crack cocaine guidelines under the authority that judges now have under Booker and Fanfan. The judge could say, well, I see that this is the crack cocaine guideline right now, but I think it's too harsh for all the reasons that were later persuasive in lowering the range and therefore I'm sentencing below the range. So it seems to lead logically to the conclusion that 3582 is yet another provision of the Sentencing Reform Act that was tied to the old pre-booker mandatory sentencing regime and now that that's out the window with Booker and Fanfan, the whole mechanism is superfluous. Well, I understand the point that the analysis has certainly changed since Booker, but it is still the case that the defendant can appeal an error in application of the guidelines after Booker. If the judge were to to to misapply the guidelines before he engages in the analysis that you talk about Justice Alito, that would be grounds for an appeal. In retrospect, if the judge has asked whether the sentence was based on the guidelines, he may say that particular sentence wasn't because I ended up disregarding the guidelines under 3553A. I did the analysis. I was exercising my sentencing discretion the first time around under 3553A and the guidelines ended up not being the basis of the sentence. And that's not something that's an option in a type C plea agreement because they're the defendant can't appeal when the judge agrees to the sentence in the review. I find it hard to understand the analysis that would require courts to decide whether some C1C plea agreements are based on the guidelines and some are not based on the guidelines. Maybe they're all based on the guidelines and then the obligation would be on the government to put a provision in a standard plea agreement requiring the defendant to give up the opportunity to move for a sentence reduction if the guideline range is subsequently forward. Or maybe none of them are based on the guidelines because for the reasons I just mentioned, this whole mechanism is now needed no longer as a result of the Booker and Fan Fan. Well, I think in the context of an actual specific sentence plea agreement, that's the one that we think is off the table because that is what's going to control the sentence and some type C plea agreements affirmatively contemplate application of the guidelines as this one does with respect to the fine. And so when you have a plea agreement that tells the district judge you are bound to apply a guideline provision once you've accepted this agreement, we haven't taken the position that the resulting sentence there isn't based on the relevant guideline range. But that's not what's going on here. All right. So you want us to decide this case. I completely agree with what Justice Alito is saying and Justice Scalia, that maybe the world after Booker is different. And I haven't thought that one through. But I'm thinking this case is a pre-booker case. It isn't really. But I'm thinking it's on the cost. So how am I to treat this case? If it's a case where the guidelines apply. If it is such a case, and I think maybe everyone here has assumed throughout it was, am I right about that? Were you saying this is a case where the guidelines don't apply, where they're not binding? I mean, were pre-booker doesn't count? Well, I didn't want us to take this. Pre-booker or post-book? Well, I think that the answer isn't. I know you think this is a pre-booker case, this is a hard one. I think it is completely different regardless. So let's avoid that controversy at the moment. And you tell me whether you want me to take it pre-booker or post-booker. The sentencing proceeding occurred six months after the Booker. And you want us to decide this post-booker. Yes, but perhaps we should have it re-argued. If we're taking this pre-booker, I would have thought it's QED. I mean, I imagine that the sentencing commission, imagine that the sentencing, it's not true, but imagine. The sentencing commission had written the following words. Pleabargining over sentences is abolished. As many argued they should. They write those words

. But that's not what's going on here. All right. So you want us to decide this case. I completely agree with what Justice Alito is saying and Justice Scalia, that maybe the world after Booker is different. And I haven't thought that one through. But I'm thinking this case is a pre-booker case. It isn't really. But I'm thinking it's on the cost. So how am I to treat this case? If it's a case where the guidelines apply. If it is such a case, and I think maybe everyone here has assumed throughout it was, am I right about that? Were you saying this is a case where the guidelines don't apply, where they're not binding? I mean, were pre-booker doesn't count? Well, I didn't want us to take this. Pre-booker or post-book? Well, I think that the answer isn't. I know you think this is a pre-booker case, this is a hard one. I think it is completely different regardless. So let's avoid that controversy at the moment. And you tell me whether you want me to take it pre-booker or post-booker. The sentencing proceeding occurred six months after the Booker. And you want us to decide this post-booker. Yes, but perhaps we should have it re-argued. If we're taking this pre-booker, I would have thought it's QED. I mean, I imagine that the sentencing commission, imagine that the sentencing, it's not true, but imagine. The sentencing commission had written the following words. Pleabargining over sentences is abolished. As many argued they should. They write those words. Then they write the next word, exception. There is an exception, however, you are permitted to plea bargain about a sentence in so far as you argue about the range. Where within the range it applies. And of course, when you apply the guidelines, as when you always apply the guidelines, here or elsewhere, departure in an unusual case. Now, suppose those were the words that the commission had written. Could it, how is it possible under those circumstances you would still be arguing? This sentence, under the plea bargaining abolished, except over where within the range, is it possible you would be arguing that this is not based on the guidelines? Well, I think that had the sentencing commission adoptive such a position, and if it were binding on a sentencing. Oh, it is because it used to be because it says in sentencing guidelines, judge, you will apply the guidelines unless you find a circumstance that commission did not adequately take into account. And in respect to that, you may and must consult policy statements, but guidelines and other materials. That is what it says. So we take time right on that. Assume I am right. You can disagree with it, and I will look into it. Before Wukker was decided, several of the circuits had already concluded that a judge could accept a type C plea agreement that had a sentence outside the range and that that wasn't a guideline spacing. I want an answer to my hypothetical because I am trying to figure out how to think about it, and you will help me if you answer my hypothetical. I think in those circumstances, the commission effectively would have repealed type C plea agreements, because- Yes, that is right. That is what they wanted to do. Okay? Now, that is correct, but you can still have them. In your hypothetical, that is what they wanted to do. You can still have them, but they allow them only for the purpose of where within the range the sentence will lie. Okay? In those circumstances, I think that it would be fair to say that the sentence was based on the guideline range, because the agreement hadn't given any reason for the judge to- Now, I would like to- Because if they wrote those words, C agreements are abolished, but for where within the range. Okay? You agree it would be based on the guidelines. Now, what I would like you to do is to look at Section 6B, whatever that is. Section 6B 1.2 is not- You told me how that differs from what I just said

. Then they write the next word, exception. There is an exception, however, you are permitted to plea bargain about a sentence in so far as you argue about the range. Where within the range it applies. And of course, when you apply the guidelines, as when you always apply the guidelines, here or elsewhere, departure in an unusual case. Now, suppose those were the words that the commission had written. Could it, how is it possible under those circumstances you would still be arguing? This sentence, under the plea bargaining abolished, except over where within the range, is it possible you would be arguing that this is not based on the guidelines? Well, I think that had the sentencing commission adoptive such a position, and if it were binding on a sentencing. Oh, it is because it used to be because it says in sentencing guidelines, judge, you will apply the guidelines unless you find a circumstance that commission did not adequately take into account. And in respect to that, you may and must consult policy statements, but guidelines and other materials. That is what it says. So we take time right on that. Assume I am right. You can disagree with it, and I will look into it. Before Wukker was decided, several of the circuits had already concluded that a judge could accept a type C plea agreement that had a sentence outside the range and that that wasn't a guideline spacing. I want an answer to my hypothetical because I am trying to figure out how to think about it, and you will help me if you answer my hypothetical. I think in those circumstances, the commission effectively would have repealed type C plea agreements, because- Yes, that is right. That is what they wanted to do. Okay? Now, that is correct, but you can still have them. In your hypothetical, that is what they wanted to do. You can still have them, but they allow them only for the purpose of where within the range the sentence will lie. Okay? In those circumstances, I think that it would be fair to say that the sentence was based on the guideline range, because the agreement hadn't given any reason for the judge to- Now, I would like to- Because if they wrote those words, C agreements are abolished, but for where within the range. Okay? You agree it would be based on the guidelines. Now, what I would like you to do is to look at Section 6B, whatever that is. Section 6B 1.2 is not- You told me how that differs from what I just said. Well, I think it differs in two key ways. First of all, this is on the last page of the government's appendix, which is 16A of our brief, and I think that it differs in two regards. First of all, it was a policy statement that even before Booker was not binding on the sentencing judge, the mission determined that this particular guideline was not binding on judges the same way other provisions of guidelines- Well, I mean that binding was not a part of his test anymore. Well, the question is whether the judge even had to apply it at all, and the judge didn't need to. And the second point that I was going to get to is that, unlike the callick me that Justice Breyer had with Mr. Heft earlier on, it doesn't say the Court may accept the agreement only if the Court is satisfied that it's within the guideline range. It gives the Court permission to accept the agreement. This is a policy statement that gives the Court permission to accept the agreement when it's within the guideline range or when there's a justifiable departure, but it does not then say that everything else is prohibited. It's only if, the words there are only if. It's said it should accept a recommended sentence or a plea agreement requiring imposition of a specific sentence, only if the Court is satisfied, either that such sentence is appropriate within the guideline or departure. You're reading a different, I am. I'm reading 6B1.3 commentary. I'm reading commentary on this policy statement. This is for 6B1.3? I'm reading the commentary on the. I was reading the commentary. I've been looking at a text of 6B1 to itself, which leaves out the word only, but I think that here, even if you go back to the pre-booker practice, I think it was clear that judges were able to depart from the guidelines to accept a type-c plea agreement that imposed a sentence that was outside the guideline range, and they, and it wasn't considered an abusive discretion. I think that's what I'm having such a hard time. I'm having a hard time because first I put myself back in the commission days, and there the commission did want to abolish seas. And that's what it intended to do, and that's what it said it did, but for what we're talking about. Now, you first raised the question of, did they have the authority to do that? And I agree with you that that is a legitimate question. I made you assume it away, but I think it is a legitimate question. Now, we have the additional question of how Booker Fan Fan changes that, and for what, and when

. Well, I think it differs in two key ways. First of all, this is on the last page of the government's appendix, which is 16A of our brief, and I think that it differs in two regards. First of all, it was a policy statement that even before Booker was not binding on the sentencing judge, the mission determined that this particular guideline was not binding on judges the same way other provisions of guidelines- Well, I mean that binding was not a part of his test anymore. Well, the question is whether the judge even had to apply it at all, and the judge didn't need to. And the second point that I was going to get to is that, unlike the callick me that Justice Breyer had with Mr. Heft earlier on, it doesn't say the Court may accept the agreement only if the Court is satisfied that it's within the guideline range. It gives the Court permission to accept the agreement. This is a policy statement that gives the Court permission to accept the agreement when it's within the guideline range or when there's a justifiable departure, but it does not then say that everything else is prohibited. It's only if, the words there are only if. It's said it should accept a recommended sentence or a plea agreement requiring imposition of a specific sentence, only if the Court is satisfied, either that such sentence is appropriate within the guideline or departure. You're reading a different, I am. I'm reading 6B1.3 commentary. I'm reading commentary on this policy statement. This is for 6B1.3? I'm reading the commentary on the. I was reading the commentary. I've been looking at a text of 6B1 to itself, which leaves out the word only, but I think that here, even if you go back to the pre-booker practice, I think it was clear that judges were able to depart from the guidelines to accept a type-c plea agreement that imposed a sentence that was outside the guideline range, and they, and it wasn't considered an abusive discretion. I think that's what I'm having such a hard time. I'm having a hard time because first I put myself back in the commission days, and there the commission did want to abolish seas. And that's what it intended to do, and that's what it said it did, but for what we're talking about. Now, you first raised the question of, did they have the authority to do that? And I agree with you that that is a legitimate question. I made you assume it away, but I think it is a legitimate question. Now, we have the additional question of how Booker Fan Fan changes that, and for what, and when. You see why I'm puzzled and why I was asking you rather harshly to start with my hypothetical I do think that this gets puzzled as you get further down, but I think that this is the simplest case. It's a narrow category of cases. We're dealing with a subset of one particular type of plea agreement. It's distinct from every other aspect of Federal sentencing. It's unlike what happens when somebody goes to trial. In those circumstances, the judge clearly has the discretion to apply the sentencing guidelines at the time of sentencing. It's different from regular type-b plea agreements where the parties have come up with an agreement, and the judge notwithstanding the agreement is still free to determine the sentence that he or she wants to determine. This is a unique, this uniquely gives a high level of certainty to the parties about the specific sentence that they negotiated. I don't, I'm not in disagreement with the point you're making, but I think that going back to what had bothered Justice Alito and Justice Scalia on now that the guidelines are not mandatory is any sentence even under C really based on the agreement because even a C agreement has to be approved by the judge. The legal consequence is not the agreement. That doesn't sentence the defendant. It's the judge's decision as to what the sentence should be, which he denotes in accepting the agreement that binds. And I think I may be making Justice Breyer's argument that if under the policy statement and it's clear what the judge did here, if the judge feels bound by the agreement or otherwise to calculate a sentence in the guideline and impose one in the guideline, how can you say that the illegal effect is not the guideline sentence? Well, because I think that the relevant question for purposes of both 3582 and 32 and the policy statements that the Court said in Dillon controls the process of implementing 3582 and 32 is what did the judge do at the time of imposing the sentence? And so although it is true that the judge generally will consider how the type C specific sentence that the parties have agreed upon corresponds to a guidelines analysis at the time of deciding whether to accept the plea agreement, the relevant phrase in 1B1.10B1, which is on page 8A of the government's appendix, is that the judge is supposed to go back and look at what to only make substitutions for the corresponding guideline provisions that were applied when the defendant was sentenced. And so when you have a type C plea agreement that has a specific sentence, even under the terms of this agreement, the only thing that the judge considered when he decided the sentence was going to be 106 months with respect to the term of imprisonment was the binding plea agreement. That's what Rule 11C1C required. Sotomayor would know because you're assuming that the agreement was automatically binding on the judge. The judge was always capable of saying at the time of sentence, I won't accept the 106. If he had calculated the guidelines and it had turned out that the guidelines call for 240 to 360, he could have said easily, no, that's out so far outside of the guideline range with no justification that I'm not going to accept and post a sentence. You can withdraw your agreement and do whatever you're going to do. And had he done that, the sentencing proceeding would have proceeded differently, and it may not have even occurred right then. And I think that because under Rule 11, if he was rejecting the plea agreement and the 106 months that the parties had agreed to, he would have to give the defendant the right to withdraw the plea at that point. The government would have been released from its obligations. The parties, the defendant could have gone to trial

. You see why I'm puzzled and why I was asking you rather harshly to start with my hypothetical I do think that this gets puzzled as you get further down, but I think that this is the simplest case. It's a narrow category of cases. We're dealing with a subset of one particular type of plea agreement. It's distinct from every other aspect of Federal sentencing. It's unlike what happens when somebody goes to trial. In those circumstances, the judge clearly has the discretion to apply the sentencing guidelines at the time of sentencing. It's different from regular type-b plea agreements where the parties have come up with an agreement, and the judge notwithstanding the agreement is still free to determine the sentence that he or she wants to determine. This is a unique, this uniquely gives a high level of certainty to the parties about the specific sentence that they negotiated. I don't, I'm not in disagreement with the point you're making, but I think that going back to what had bothered Justice Alito and Justice Scalia on now that the guidelines are not mandatory is any sentence even under C really based on the agreement because even a C agreement has to be approved by the judge. The legal consequence is not the agreement. That doesn't sentence the defendant. It's the judge's decision as to what the sentence should be, which he denotes in accepting the agreement that binds. And I think I may be making Justice Breyer's argument that if under the policy statement and it's clear what the judge did here, if the judge feels bound by the agreement or otherwise to calculate a sentence in the guideline and impose one in the guideline, how can you say that the illegal effect is not the guideline sentence? Well, because I think that the relevant question for purposes of both 3582 and 32 and the policy statements that the Court said in Dillon controls the process of implementing 3582 and 32 is what did the judge do at the time of imposing the sentence? And so although it is true that the judge generally will consider how the type C specific sentence that the parties have agreed upon corresponds to a guidelines analysis at the time of deciding whether to accept the plea agreement, the relevant phrase in 1B1.10B1, which is on page 8A of the government's appendix, is that the judge is supposed to go back and look at what to only make substitutions for the corresponding guideline provisions that were applied when the defendant was sentenced. And so when you have a type C plea agreement that has a specific sentence, even under the terms of this agreement, the only thing that the judge considered when he decided the sentence was going to be 106 months with respect to the term of imprisonment was the binding plea agreement. That's what Rule 11C1C required. Sotomayor would know because you're assuming that the agreement was automatically binding on the judge. The judge was always capable of saying at the time of sentence, I won't accept the 106. If he had calculated the guidelines and it had turned out that the guidelines call for 240 to 360, he could have said easily, no, that's out so far outside of the guideline range with no justification that I'm not going to accept and post a sentence. You can withdraw your agreement and do whatever you're going to do. And had he done that, the sentencing proceeding would have proceeded differently, and it may not have even occurred right then. And I think that because under Rule 11, if he was rejecting the plea agreement and the 106 months that the parties had agreed to, he would have to give the defendant the right to withdraw the plea at that point. The government would have been released from its obligations. The parties, the defendant could have gone to trial. He could have continued to plead guilty. The parties could have come up with a plea, be plea agreement. The parties may have asked for time to renegotiate a different type, see agreement. We don't know what would have happened in those circumstances. And as you pointed out before, Justice Sotomayor, this is not about asking the judge to step into the shoes of the parties and renegotiate what the agreement would have been, had the judge decided to reject it the first time around. Instead, 3582 C2 contemplates a limited process by which the judge will reapply those provisions of the guidelines that he applied the first time around and make the substitution that's now called for by the retroactively applicable change. But here, because the judge didn't actually make that application at the time of sentencing, the judge didn't actually have to apply the drug quantity statement. And I'm not following that argument for this reason. It seems to me, if you ask what did the judge apply at the time he imposed the original sentence, well, it's got to be the guidelines because, first, the agreement provides for it, then he says, I'm going to wait for the probation report so I can see what the calculation is whether I agree with it. And then he gives him a sentence that is precisely within the guidelines. So if you ask me to describe what that sentence was of what was it, 46 days, I say, yeah, that was a guideline sentence. It was right there within the brackets that the guideline. So why wasn't it a guideline sentence? Because for purposes of the term of imprisonment, the judge was not actually applying the guidelines at that point. He did so for purposes of the fine. He ended up actually waving the relevant fine. But those type C plea agreement here called for the judge to apply the guidelines with respect to the fine and did not call for the judge to apply the guidelines with respect to the term of imprisonment. He knew that it was within what the PSR had calculated as the guideline range and he concluded that that was the applicable guideline range, which he needed to do for purposes of calculating the fine and other things. But it wasn't actually the basis for the sentence. The basis for the sentence was the plea agreement that he accepted. And there it was the party's agreement and there are all sorts of things that went into the party's agreement that the judge does not have the wherewithal to reconsider in retrospect. I thought one of the things in the plea agreement was that the judge would have the right to self-calculate the guideline range. Yes. And that's specifically contemplated in Rule 11C and in the guidelines that the judge may postpone acceptance of the plea agreement until after the pre-sentence report is prepared. And the judge did do that here

. He could have continued to plead guilty. The parties could have come up with a plea, be plea agreement. The parties may have asked for time to renegotiate a different type, see agreement. We don't know what would have happened in those circumstances. And as you pointed out before, Justice Sotomayor, this is not about asking the judge to step into the shoes of the parties and renegotiate what the agreement would have been, had the judge decided to reject it the first time around. Instead, 3582 C2 contemplates a limited process by which the judge will reapply those provisions of the guidelines that he applied the first time around and make the substitution that's now called for by the retroactively applicable change. But here, because the judge didn't actually make that application at the time of sentencing, the judge didn't actually have to apply the drug quantity statement. And I'm not following that argument for this reason. It seems to me, if you ask what did the judge apply at the time he imposed the original sentence, well, it's got to be the guidelines because, first, the agreement provides for it, then he says, I'm going to wait for the probation report so I can see what the calculation is whether I agree with it. And then he gives him a sentence that is precisely within the guidelines. So if you ask me to describe what that sentence was of what was it, 46 days, I say, yeah, that was a guideline sentence. It was right there within the brackets that the guideline. So why wasn't it a guideline sentence? Because for purposes of the term of imprisonment, the judge was not actually applying the guidelines at that point. He did so for purposes of the fine. He ended up actually waving the relevant fine. But those type C plea agreement here called for the judge to apply the guidelines with respect to the fine and did not call for the judge to apply the guidelines with respect to the term of imprisonment. He knew that it was within what the PSR had calculated as the guideline range and he concluded that that was the applicable guideline range, which he needed to do for purposes of calculating the fine and other things. But it wasn't actually the basis for the sentence. The basis for the sentence was the plea agreement that he accepted. And there it was the party's agreement and there are all sorts of things that went into the party's agreement that the judge does not have the wherewithal to reconsider in retrospect. I thought one of the things in the plea agreement was that the judge would have the right to self-calculate the guideline range. Yes. And that's specifically contemplated in Rule 11C and in the guidelines that the judge may postpone acceptance of the plea agreement until after the pre-sentence report is prepared. And the judge did do that here. So he was aware of what the PSR recommended. But once, and had he decided that he didn't like the 106-month sentence and he wanted to preserve his sentencing discretion, the option at that point was to have rejected the plea agreement at which point the parties would have been free to do different things. And among other things, the government could then have argued for a higher sentence within the range, could have argued that the criminal history failed to represent the seriousness of the defendant's criminal past, could have argued for an upward departure even. But the defendant got the benefit of the 106-month agreement of not having the government raise any of those other arguments at that time. And now he's asking for essentially another ride at the apple. And we think that because the basis for the sentence was indeed the negotiation and the agreement between the parties that the Court of Appeals decision was correct. There are no further questions. Thank you, Mr. Ganon. Mr. Hathke, you have three minutes remaining? Thank you, Your Honor. Excuse me. Just a couple of points. First of all, the record here leaves no doubt that the judge based his sentence on the guidelines. The sentencing transcript specifically states that the judge, and I would like to quote this, this is at page 47 of the Joint Appendix, and I quote, the Court will adopt the findings of the probation officer disclosed in the probation report an application of the guidelines is set out there at. On page 48 of the Joint Appendix, the judge says having considered the advisory guidelines, he went on to impose that sentence. So it's quite clear that the judge, and even in a statement of reasons on page 95 of the Joint Appendix, again reaffirmed that this sentence was based on the guidelines. Now, the other point that I'd like to make is that the government acknowledges that it is carved out a very small exception to its argument that see please regarding specific sentences and sentencing ranges are not eligible for more seat to relieve. But it seems to me that reading that, taking the government's position into account, if this plea agreement had not stated 100 to 6 months, then Mr. Freeman's under the terms of this plea agreement, in the government's view, and under the government's argument of what exception exists, I'm just to see please the purposes of 3582, Mr. Freeman would be eligible for the relief that was granted. And we would simply urge the Court in this case to adopt a rule that does not accept and exclude specific sentences and see please for eligibility in 3582. Thank you. Thank you, Council

. The case is submitted