“Based On” the Guidelines? Applying Retroactive Sentencing Amendments to Binding Plea Agreements

In recent years, two pronounced trends have dominated criminal law jurisprudence and captivated criminal law scholarship: the reemergence of discretionary sentencing and measures to reduce the crack–powder cocaine sentencing disparity. The first time they converged, in Kimbrough v United States, the Supreme Court ruled in favor of discretion and reduction. With the passage of several amendments to the United States Sentencing Guidelines in 2007 aimed at mitigating the crack-powder sentencing disparity, the two trends have converged once again—with surprisingly different results.

These Guidelines amendments reduce the base offense level for most crack offenses by two levels and permit defendants who received sentences under the old Guidelines to apply for sentence reductions. District courts generally have broad discretion to grant or deny these motions, but controversy has arisen over whether courts may grant sentence reductions for offenders whose sentences were imposed pursuant to binding plea agreements.

The majority of courts hold that judges cannot grant such reductions. They reason that 18 USC § 3582(c)(2) prohibits courts from granting a sentence-reduction motion unless a defendant’s original sentence was “based on” the subsequently amended Guidelines, and a sentence that is fixed via plea agreement is based exclusively on that agreement. In other words, sentencing judges’ hands are tied because the underlying sentences are “based on” plea bargains, not the Guidelines. Meanwhile, a growing minority of courts has been willing to grant reductions under certain circumstances to defendants who accepted binding plea agreements. This Comment disputes the majority position, arguing that a per se rule precluding district courts from reducing sentences imposed pursuant to binding plea agreements is inconsistent with both proper interpretation of the applicable federal statute and the quasi-contractual, “contracts plus” framework courts utilize to construe plea agreements.