Saturday, March 13, 2010

A Main Event

United States v. Green, No. 08-5426-cr (2d Cir. February 17, 2010) (Kearse, Winter, Pooler, CJJ)

In this case, the Court holds that a crack sentence that was the product of an imperfectly amended Rule 11(c)(1)(C) plea agreement could not be reduced under 18 U.S.C. § 3582(c)(2).

Last year, in United States v. Main, 579 F.3d 200, 203 (2d Cir. 2009), the court held that a defendant sentenced under an 11(c)(1)(C) agreement was ineligible for a § 3582(c)(2) sentence reduction. See
“Out Of Range,” posted August 30, 2009. Here, the 11(c)(1)(C) agreement specified a 168-month sentence, to run concurrent with Green’s undischarged state sentence. However, by the time Green was to be sentenced, he had completed the other sentence. His attorney wrote to the government and proposed that instead the sentence be 145 months. The government agreed, although not in writing, and at sentencing, the judge agreed as well and imposed the 145-month term. Years later, but before Main was decided, when Green moved for a § 3582(c)(2) sentence reduction, the court denied the motion on the ground that the 145-month sentence was already “effectively” in the lower range.

On Green’s appeal, the circuit held that Main applied, even though the sentence was different from that specified in the written 11(c)(1)(C) agreement, rejecting Green’s argument that the sentence was not imposed pursuant to Rule 11(c)(1)(C). The court found that the parties’ agreement on a 145-month sentence, although not reduced to writing, was still a Rule 11(c)(1)(C) sentence, and hence was covered by Main.

The court thus affirmed even though, in one respect, the district court did not comply with Rule 11(c)(1)(C). The rule requires that the agreement be disclosed when the plea is offered, and here the amended agreement was not. In order to accomplish this, the district court would have had to let Green withdraw his plea and reenter it. The Rule 11 error was harmless, however, since the amended agreement was disclosed in open court, and the record was clear Green understood the new terms.


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