On June 7, 2011, President Obama nominated Susie Morgan to the United States District Court for the Eastern District of Louisiana. Ms. Morgan is a partner in the commercial litigation group at Phelps Dunbar here in New Orleans. Prior to joining Phelps Dunbar in 2005, she worked for 24 years at the Shreveport firm of Wiener, Weiss and Madison. Before that, she served as a law clerk to former Chief Judge of the Fifth Circuit Court of Appeals, Henry A. Politz. No hearing date has been set yet.

The Senate held confirmation hearings on June 8, 2011 for two of President Obama’s Louisiana nominees: Stephen Higginson, nominated on May 9, 2011 to the Fifth Circuit Court of Appeals, and Jane Margaret Triche-Milazzo, nominated on March 16, 2011 to the Eastern District of Louisiana. The Senate also held a confirmation hearing on May 4, 2011 for Nannette Jolivette-Brown, nominated on March 3, 2011 to the Eastern District of Louisiana. Her nomination was reported by the Committee to the Senate on May 26, 2011.

The issue of the retroactivity of the “Fair Sentencing Act of 2010″ (FSA), which reduced penalties for crack cocaine offenses, has been the source of quite a bit of recent litigation. On February 9, 2011, the Fifth Circuit ruled, in United States v. Doggins, 633 F.3d 379 (5th Cir. 2011), that the FSA is NOT retroactive for defendants who were sentenced BEFORE the FSA was signed into law on August 3, 2010. The Fifth Circuit, and indeed nearly every other federal circuit, has ruled that the “Savings Statute” of Title 1 U.S.C. §109 requires the application of the old law in place at the time of the commission of the crime, in the absence of congressional intent either express or implied as to the retroactivity of a new law. Thus, in the Fifth Circuit, the FSA is not retroactive as to any defendant who was sentenced before August 3, 2010. What about defendants who committed their offense before August 3, 2010, but have not been convicted and/or sentenced until AFTER August 3, 2010?

In a surprising decision, on May 31, 2011, the First Circuit upheld a district court’s decision to apply the FSA retroactively to a defendant who committed his offense before August 3, 2010, but was sentenced after that date. In United States v. Douglas, F.3d , 2011 WL 2120163 (C.A.1 (Me.)), the First Circuit looked to congressional intent and determined that Congress would not have ordered the Sentencing Commission to promulgate emergency guideline amendments to implement the FSA if it had not wanted the act to apply to defendants whose cases were still pending conviction or sentence after August 3, 2010. The First Circuit stated that “the imposition of a minimum sentence that Congress has condemned as too harsh makes this an unusual case. It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums. The purity of the mandatory minimum regime has always been tempered by charging decisions, assistance departures and other interventions: here, at least, it is likely that Congress would wish to apply the new minimums to new sentences.”

The First Circuit’s Douglas decision creates a circuit split with the Seventh Circuit’s decision in United States v. Fisher, 635 F.3d 336 (7th Cir. 2011). The Seventh Circuit found that the FSA did not apply retroactively to defendants who committed their offense before August 3, 2010, but were sentenced later. The Fifth Circuit has not addressed the issue of the whether it will allow retroactive application of the FSA to defendants who committed their crime before August 3, 2010, but were or still are awaiting sentence. We do not know whether the Fifth Circuit will follow the First or Seventh Circuit’s lead on this issue. Given the circuit split, it is likely that the Government will take a writ of certiorari to the Supreme Court on the Douglas decision.

With all the uncertainty at the circuit level, it is little wonder that the district courts are all over the place with trying to decide whether the FSA applies retroactively to pending cases with defendants who committed offenses before the FSA was enacted but had or have not yet been sentenced. Judge Ponsor’s ruling, in United States v. Watts, F.Supp.2d , 2011 WL 1282542 (D.Mass.) from the District of Massachusetts, is truly outstanding and should serve as a model for any defense motion requesting application of the FSA to a currently pending crack case. Given the huge success with the Douglas decision in the First Circuit and the resulting circuit split, defense counsel should definitely consider filing a motion for application of the FSA to any crack cases where the defendant committed the offense prior to August 3, 2010, but has not yet been convicted and/or sentenced.

__________________________________

1Evans, Circuit Judge, United States v. Anthony Fisher, 635F.3d336 (7th Cir. 2011).

In United States v. Cardenas-Guillen v. Hearst Newspapers, LLC (No. 10-40221), the Fifth Circuit held that the press and public have a First Amendment right of access to sentencing hearings and, therefore, the district court must give notice and an opportunity to be heard before closing or sealing a sentencing proceeding. This can be accomplished by, for example, docketing the motion to seal, or simply by placing a notice on the docket that there is a motion to close “a proceeding” and allowing interested parties to submit briefs or hold a hearing. The court explicitly rejected the government’s argument that security concerns justified the district court’s decision not to give

the press and public any notice or opportunity to be heard prior to closure

By way of background, the Houston Chronicle had moved to intervene in the criminal prosecution of a drug cartel leader, had requested that certain sealed documents be unsealed, and had also requested that the district court give notice and an opportunity to be heard before closing any future proceedings. The government then moved to close the sentencing hearing for reasons for public safety, and to not give notice to the public that the hearing was taking place. The court granted the government’s motion in a sealed order, and the court also sealed the government’s motion. The Houston Chronicle was able to find out when the sentencing hearing was scheduled and attempted to gain access to the courtroom with a handwritten motion. However, the court did not rule on that motion, denied access to the reporter and then denied the motion as moot after the closed sentencing proceeding had concluded.

USSC ADOPTS PERMANENT AMENDMENT IMPLEMENTING FSA

In April 2011, the Commission promulgated amendments to the federal sentencing guidelines covering drug trafficking offenses, firearms offenses, and other federal offenses.

In particular, it adopted a permanent amendment implementing the provisions of the Fair Sentencing Act of 2010, legislation that, among other things, reduced the statutory mandatory minimum penalties for crack cocaine trafficking and eliminated the mandatory minimum sentence for simple possession of crack cocaine. The Act also contained directives to the Commission to review and amend the federal sentencing guidelines to account for certain aggravating and mitigating circumstances in drug trafficking cases to better account for offender culpability. In October 2010, the Commission promulgated an emergency, temporary amendment to implement an emergency directive in the Fair Sentencing Act of 2010.

The Commission voted to set the triggering quantities of crack cocaine for the 5- and 10-year mandatory minimum penalties (28 grams and 280 grams, respectively) at base offense levels 26 and 32, which correspond to a sentencing range of 63-78 months and 121-151 months, respectively, for a defendant with little or no criminal history. The new mandatory minimum quantity threshold levels for crack cocaine offenses are consistent with the Commission’s 2007 report to Congress, Cocaine and Federal Sentencing Policy, in which the Commission, based on available information, defined crack cocaine offenders who deal in quantities of one ounce (approximately 28 grams) or more in a single transaction as wholesalers. As a result of the Commission’s amendments, the federal sentencing guidelines will focus more on offender culpability by placing greater emphasis on factors other than drug quantity.

In other actions the Commission adopted amendments to:  increase penalties for certain firearms offenses. For example, the Commission voted to provide increased penalties for

certain “straw purchasers” of firearms and for offenders who illegally traffic firearms across the United States border.  implement the Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 111–148), the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. No. 111–203), and the Secure and Responsible Drug Disposal Act of 2010 (Pub. L. No. 111–273). More information regarding these amendments, and other amendments, can be found on

the Commission’s website at www.ussc.gov.

The Commission submitted its 2010-2011 amendment package to Congress on April 28, 2011. Congress has 180 days to review the amendments submitted by the Commission. The amendments have a designated effective date of November 1, 2011, unless Congress acts affirmatively to modify or disapprove them.

On June 30, 2011, the United States Sentencing Commission voted unanimously to give retroactive effect to its proposed permanent amendment to the federal sentencing guidelines implementing the FSA’s 18:1 crack/powder ratio. Retroactivity of the amendment will become effective on November 1, 2011, the same day that the proposed permanent amendment would take effect, unless Congress acts to disapprove the amendment.

Unfortunately, the Commission’s vote to give retroactive application to the proposed amendments to the guidelines does not give retroactive effect to the FSA itself. Many crack offenders will still be required under federal law to serve mandatory 5- or 10-year sentences because of the amount of crack cocaine involved in their offenses.

According to the Commission’s June 30 news release, approximately 12,000 offenders may be eligible to seek a sentence reduction. The average sentence reduction for eligible offenders will be approximately 37 months. The average sentence for these offenders, even after reduction, will remain about 10 years. The Bureau of Prisons estimates that retroactivity of the FSA amendment could result in a savings of over $200 million within the first five years after retroactivity takes effect.

The Commission’s news release lists a number of factors that were considered during its deliberations, including the purpose of the amendment implementing the FSA, which lowers the penalties for crack cocaine offenses, the limit on any reduction allowed by the amendment, whether it would be difficult for the courts to apply the reduction, and whether making the amendment retroactive would raise public safety concerns or cause unwarranted sentencing disparity in the federal system. Ultimately, the Commission determined that the statutory purposes of sentencing are best served by retroactive application of the amendment.

According to the news release, after the Commission voted to give retroactive effect to its 2007 crack cocaine amendment, 16,433 motions for a reduced sentence were granted by federal district courts throughout the country. The Commission has conducted a study of the recidivism rate of those offenders who received a reduced sentence as a result of the 2007 amendment as compared to a similarly situated group of federal crack cocaine offenders who served their normal term of imprisonment. It has determined that there is no statistically significant difference in recidivism rates between the two groups of offenders.

1 (Slip Opinion) OCTOBER TERM, 2010

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

TAPIA v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 10–5400. Argued April 18, 2011—Decided June 16, 2011

Petitioner Tapia was convicted of, inter alia, smuggling unauthorized aliens into the United States. The District Court imposed a 51month prison term, reasoning that Tapia should serve that long in order to qualify for and complete the Bureau of Prisons’ ResidentialDrug Abuse Program (RDAP). On appeal, Tapia argued that lengthening her prison term to make her eligible for RDAP violated 18

U. S. C. §3582(a), which instructs sentencing courts to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” The Ninth Circuit disagreed. Relying onCircuit precedent, it held that a sentencing court cannot impose a prison term to assist a defendant’s rehabilitation, but once imprisonment is chosen, the court may consider the defendant’s rehabilitation needs in setting the sentence’s length.

Held: Section 3582(a) does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation. Pp. 3–15.

(a) For nearly a century, the Federal Government used an indeterminate sentencing system premised on faith in rehabilitation. Mistretta v. United States, 488 U. S. 361, 363. Because that systemproduced “serious disparities in [the] sentences” imposed on similarlysituated defendants, id., at 365, and failed to “achieve rehabilitation,” id., at 366, Congress enacted the Sentencing Reform Act of 1984(SRA), replacing the system with one in which Sentencing Guidelines would provide courts with “a range of determinate sentences,” id., at

368. Under the SRA, a sentencing judge must impose at least imprisonment, probation, or a fine. See §3551(b). In determining the appropriate sentence, judges must consider retribution, deterrence,incapacitation, and rehabilitation, §3553(a)(2), but a particular pur2 TAPIA v. UNITED STATES

Syllabus

pose may apply differently, or not at all, depending on the kind ofsentence under consideration. As relevant here, a court ordering imprisonment must “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” §3582(a). A similar provision instructs the Sentencing Commission, as the Sentencing Guidelines’ author, to “insure that the guidelines reflect theinappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant.” 28 U. S. C. §994(k). Pp. 3–6.

(b) Consideration of Tapia’s claim starts with §3582(a)’s clear text.Putting together the most natural definitions of “recognize”—“to acknowledge or treat as valid”—and not “appropriate”—not “suitable orfitting for a particular purpose”—§3582(a) tells courts to acknowledge that imprisonment is not suitable for the purpose of promoting rehabilitation. It also instructs courts to make that acknowledgment when “determining whether to impose a term of imprisonment, and. . . [when] determining the length of the term.” Amicus, appointed todefend the judgment below, argues that the “recognizing” clause is merely a caution for judges not to put too much faith in the capacityof prisons to rehabilitate. But his alternative interpretation is unpersuasive, as Congress expressed itself clearly in §3582(a). Amicus also errs in echoing the Ninth Circuit’s reasoning that §3582’s term“imprisonment” relates to the decision whether to incarcerate, not thedetermination of the sentence’s length. Because “imprisonment”most naturally means “the state of being confined” or “a period of confinement,” it does not distinguish between the defendant’s initialplacement behind bars and his continued stay there.

Section 3582(a)’s context supports this textual conclusion. By restating §3582(a)’s message to the Sentencing Commission, Congressensured that all sentencing officials would work in tandem to implement the statutory determination to “reject imprisonment as a means of promoting rehabilitation.” Mistretta, 488 U. S., at 367. Equally illuminating is the absence of any provision authorizing courts to ensure that offenders participate in prison rehabilitation programs. When Congress wanted sentencing courts to take account of rehabilitative needs, it gave them authority to do so. See, e.g., §3563(b)(9).In fact, although a sentencing court can recommend that an offender be placed in a particular facility or program, see §3582(a), the authority to make the placement rests with the Bureau of Prisons, see, e.g., §3621(e). The point is well illustrated here, where the District Court’s strong recommendations that Tapia participate in RDAP and be placed in a particular facility went unfulfilled. Finally, for those who consider legislative history useful, the key Senate Report on the SRA provides corroborating evidence. Pp. 6–12.

3 Cite as: 564 U. S. ____ (2011) Syllabus

(c) Amicus’ attempts to recast what the SRA says about rehabilitation are unavailing. Pp. 12–14.

(d) Here, the sentencing transcript suggests that Tapia’s sentencemay have been lengthened in light of her rehabilitative needs. A court does not err by discussing the opportunities for rehabilitationwithin prison or the benefits of specific treatment or training programs. But the record indicates that the District Court may have increased the length of Tapia’s sentence to ensure her completion ofRDAP, something a court may not do. The Ninth Circuit is left to consider on remand the effect of Tapia’s failure to object to the sentence when imposed. Pp. 14–15.

376 Fed. Appx. 707, reversed and remanded.

KAGAN, J., delivered the opinion for a unanimous Court. SOTOMAYOR, J., filed a concurring opinion, in which ALITO, J., joined. _________________ _________________ 1 Cite as: 564 U. S. ____ (2011)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 10–5400

ALEJANDRA TAPIA, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[June 16, 2011]

JUSTICE KAGAN delivered the opinion of the Court.

We consider here whether the Sentencing Reform Act precludes federal courts from imposing or lengthening aprison term in order to promote a criminal defendant’srehabilitation. We hold that it does.

I Petitioner Alejandra Tapia was convicted of, inter alia, smuggling unauthorized aliens into the United States, inviolation of 8 U. S. C. §§1324(a)(2)(B)(ii) and (iii). At sentencing, the District Court determined that the United States Sentencing Guidelines recommended a prison termof between 41 and 51 months for Tapia’s offenses. The court decided to impose a 51-month term, followed bythree years of supervised release. In explaining its reasons, the court referred several times to Tapia’s need for drug treatment, citing in particular the Bureau of Prison’sResidential Drug Abuse Program (known as RDAP or the500 Hour Drug Program). The court indicated that Tapiashould serve a prison term long enough to qualify for andcomplete that program:

“The sentence has to be sufficient to provide needed correctional treatment, and here I think the needed 2 TAPIA v. UNITED STATES

Opinion of the Court

correctional treatment is the 500 Hour Drug Program. . . . . .

“Here I have to say that one of the factors that—I am going to impose a 51-month sentence, . . . and one ofthe factors that affects this is the need to provide treatment. In other words, so she is in long enough toget the 500 Hour Drug Program, number one.” App.

27.

(“Number two” was “to deter her from committing other criminal offenses.” Ibid.) The court “strongly recommend[ed]” to the Bureau of Prisons (BOP) that Tapia “participate in [RDAP] and that she serve her sentence at”the Federal Correctional Institution in Dublin, California (FCI Dublin), where “they have the appropriate tools . . . to help her, to start to make a recovery.” Id., at 29. Tapiadid not object to the sentence at that time. Id., at 31.

On appeal, however, Tapia argued that the DistrictCourt had erred in lengthening her prison term to make her eligible for RDAP. App. to Pet. for Cert. 2. In Tapia’sview, this action violated 18 U. S. C. §3582(a), which instructs sentencing courts to “recogniz[e] that imprisonment is not an appropriate means of promoting correctionand rehabilitation.” The United States Court of Appeals for the Ninth Circuit disagreed, 376 Fed. Appx. 707 (2010),relying on its prior decision in United States v. Duran, 37

F. 3d 557 (1994). The Ninth Circuit had held there that §3582(a) distinguishes between deciding to impose a termof imprisonment and determining its length. See id., at

561. According to Duran, a sentencing court cannot impose a prison term to assist a defendant’s rehabilitation.But “[o]nce imprisonment is chosen as a punishment,” thecourt may consider the defendant’s need for rehabilitation in setting the length of the sentence. Ibid.

We granted certiorari to consider whether §3582(a) 3 Cite as: 564 U. S. ____ (2011)

Opinion of the Court

permits a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation. 562

U. S. ___ (2010). That question has divided the Courts of Appeals.¹ Because the United States agrees with Tapia’s interpretation of the statute, we appointed an amicus curiae to defend the judgment below.² We now reverse.

II We begin with statutory background—how the relevant sentencing provisions came about and what they say.Aficionados of our sentencing decisions will recognize much of the story line.“For almost a century, the Federal Government employed in criminal cases a system of indeterminate sentencing.” Mistretta v. United States, 488 U. S. 361, 363 (1989). Within “customarily wide” outer boundaries set byCongress, trial judges exercised “almost unfettered discretion” to select prison sentences for federal offenders. Id., at 364. In the usual case, a judge also could reject prisontime altogether, by imposing a “suspended” sentence. If the judge decided to impose a prison term, discretionaryauthority shifted to parole officials: Once the defendanthad spent a third of his term behind bars, they could orderhis release. See K. Stith & J. Cabranes, Fear of Judging:Sentencing Guidelines in the Federal Courts 18–20 (1998). This system was premised on a faith in rehabilitation.

—————— ¹Three Circuits have held that §3582(a) allows a court to lengthen, although not to impose, a prison term based on the need for rehabilitation. See United States v. Duran, 37 F. 3d 557 (CA9 1994); United States v. Hawk Wing, 433 F. 3d 622 (CA8 2006); United States v. Jimenez, 605 F. 3d 415 (CA6 2010). Two Courts of Appeals have ruledthat §3582(a) bars a court from either imposing or increasing a periodof confinement for rehabilitative reasons. See United States v. Manzella, 475 F. 3d 152 (CA3 2007); In re Sealed Case, 573 F. 3d 844 (CADC 2009).²We appointed Stephanos Bibas to brief and argue the case, 562 U. S.___ (2011), and he has ably discharged his responsibilities. 4 TAPIA v. UNITED STATES

Opinion of the Court

Discretion allowed “the judge and the parole officer to [base] their respective sentencing and release decisions upon their own assessments of the offender’s amenability to rehabilitation.” Mistretta, 488 U. S., at 363. A convict, the theory went, should generally remain in prison onlyuntil he was able to reenter society safely. His release therefore often coincided with “the successful completion of certain vocational, educational, and counseling programs within the prisons.” S. Rep. No. 98–225, p. 40 (1983) (hereinafter S. Rep.). At that point, parole officials could “determin[e] that [the] prisoner had become rehabilitated and should be released from confinement.” Stith & Cabranes, supra, at 18.³

But this model of indeterminate sentencing eventuallyfell into disfavor. One concern was that it produced “[s]erious disparities in [the] sentences” imposed on simi- larly situated defendants. Mistretta, 488 U. S., at 365. Another was that the system’s attempt to “achieve rehabilitation of offenders had failed.” Id., at 366. Lawmakers and others increasingly doubted that prison programscould “rehabilitate individuals on a routine basis”—or that parole officers could “determine accurately whether orwhen a particular prisoner ha[d] been rehabilitated.”

S. Rep., at 40.

—————— ³The statutes governing punishment of drug-addicted offenders (likeTapia) provide an example of this system at work. If a court concluded that such an offender was “likely to be rehabilitated through treatment,” it could order confinement “for treatment . . . for an indeterminate period of time” not to exceed the lesser of 10 years or the statutorymaximum for the offender’s crime. 18 U. S. C. §4253(a) (1982 ed.); see also §4251(c) (“ ‘Treatment’ includes confinement and treatment in an institution . . . and includes, but is not limited to, medical, educational, social, psychological, and vocational services, corrective and preventive guidance and training, and other rehabilitative services”). Once the offender had undergone treatment for six months, the Attorney Generalcould recommend that the Board of Parole release him from custody, and the Board could then order release “in its discretion.” §4254. 5 Cite as: 564 U. S. ____ (2011) Opinion of the Court

Congress accordingly enacted the Sentencing ReformAct of 1984, 98 Stat. 1987 (SRA or Act), to overhaul federal sentencing practices. The Act abandoned indeterminate sentencing and parole in favor of a system in whichSentencing Guidelines, promulgated by a new SentencingCommission, would provide courts with “a range of determinate sentences for categories of offenses and defendants.” Mistretta, 488 U. S., at 368. And the Act further channeled judges’ discretion by establishing a frameworkto govern their consideration and imposition of sentences.

Under the SRA, a judge sentencing a federal offender must impose at least one of the following sanctions: imprisonment (often followed by supervised release), probation, or a fine. See §3551(b). In determining the appropriate sentence from among these options, §3553(a)(2) requires the judge to consider specified factors, including:

“the need for the sentence imposed—“(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; “(B) to afford adequate deterrence to criminal conduct; “(C) to protect the public from further crimes of the defendant; and “(D) to provide the defendant with needed educational or vocational training, medicalcare, or other correctional treatment in the most effective manner.”

These four considerations—retribution, deterrence, incapacitation, and rehabilitation—are the four purposes ofsentencing generally, and a court must fashion a sentence“to achieve the[se] purposes . . . to the extent that they are applicable” in a given case. §3551(a).

The SRA then provides additional guidance about how the considerations listed in §3553(a)(2) pertain to each of 6 TAPIA v. UNITED STATES Opinion of the Court

the Act’s main sentencing options—imprisonment, supervised release, probation, and fines. See §3582(a); §3583;§3562(a); §3572(a). These provisions make clear that a particular purpose may apply differently, or even not at all, depending on the kind of sentence under consideration. For example, a court may not take account of retribution (the first purpose listed in §3553(a)(2)) when imposing a term of supervised release. See §3583(c).

Section 3582(a), the provision at issue here, specifies the “factors to be considered” when a court orders imprisonment. That section provides:

“The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment isto be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means ofpromoting correction and rehabilitation.”

A similar provision addresses the Sentencing Commissionin its capacity as author of the Sentencing Guidelines. The SRA instructs the Commission to:

“insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.” 28 U. S. C. §994(k).

With this statutory background established, we turn to the matter of interpretation.

III

A Our consideration of Tapia’s claim starts with the text of18 U. S. C. §3582(a)—and given the clarity of that provi- 7 Cite as: 564 U. S. ____ (2011)

Opinion of the Court

sion’s language, could end there as well. As just noted, that section instructs courts to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” A common—and in context the most natural—definition of the word “recognize” is “to acknowledge or treat as valid.” Random House Dictionary of the English Language 1611 (2d ed. 1987). And a thingthat is not “appropriate” is not “suitable or fitting for aparticular purpose.” Id., at 103. Putting these two definitions together, §3582(a) tells courts that they should acknowledge that imprisonment is not suitable for the purpose of promoting rehabilitation. And when should courts acknowledge this? Section §3582(a) answers: when “determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, [when] determining the length of the term.” So a court making these decisions should consider the specified rationales of punishment except for rehabilitation, which it should acknowledge as an unsuitable justification for a prison term.

As against this understanding, amicus argues that§3582(a)’s “recognizing” clause is not a flat prohibitionbut only a “reminder” or a “guide [for] sentencing judges’ cognitive processes.” Brief for Court-Appointed Amicus Curiae in Support of Judgment Below 23–24 (hereinafter Amicus Brief) (emphasis deleted). Amicus supports thisview by offering a string of other definitions of the word “recognize”: “‘recall to mind,’ ‘realize,’ or ‘perceiveclearly.’” Id., at 24 (quoting dictionary definitions). Once these are plugged in, amicus suggests, §3582(a) reveals itself as a kind of loosey-goosey caution not to put too much faith in the capacity of prisons to rehabilitate.

But we do not see how these alternative meanings of“recognize” help amicus’s cause. A judge who “perceivesclearly” that imprisonment is not an appropriate means of promoting rehabilitation would hardly incarcerate someone for that purpose. Ditto for a judge who “realizes” or 8 TAPIA v. UNITED STATES

Opinion of the Court

“recalls” that imprisonment is not a way to rehabilitate an offender. To be sure, the drafters of the “recognizing”clause could have used still more commanding language:Congress could have inserted a “thou shalt not” or equivalent phrase to convey that a sentencing judge may never,ever, under any circumstances consider rehabilitation in imposing a prison term. But when we interpret a statute,we cannot allow the perfect to be the enemy of the merely excellent. Congress expressed itself clearly in §3582(a),even if armchair legislators might come up with something even better. And what Congress said was that when sentencing an offender to prison, the court shall consider all the purposes of punishment except rehabilitation—because imprisonment is not an appropriate means of pursuing that goal.

Amicus also claims, echoing the Ninth Circuit’s reasoning in Duran, that §3582(a)’s “recognizing” clause bars courts from considering rehabilitation only when imposing a prison term, and not when deciding on its length. The argument goes as follows. Section 3582(a) refers to twodecisions: “The court, [1] in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, [2] in determining the length of theterm” must consider the purposes of punishment listed in §3553(a)(2), subject to the caveat of the “recognizing” clause. But that clause says only that “imprisonment” isnot an appropriate means of rehabilitation. Because the “primary meaning of ‘imprisonment’ is ‘the act of confining a person,’” amicus argues, the clause relates only to

[1] the decision to incarcerate, and not to [2] the separate determination of the sentence’s length. Amicus Brief 52.

We again disagree. Under standard rules of grammar,§3582(a) says: A sentencing judge shall recognize that imprisonment is not appropriate to promote rehabilitation when the court considers the applicable factors of§3553(a)(2); and a court considers these factors when 9 Cite as: 564 U. S. ____ (2011) Opinion of the Court

determining both whether to imprison an offender and what length of term to give him. The use of the word “imprisonment” in the “recognizing” clause does notdestroy—but instead fits neatly into—this construction.“Imprisonment” as used in the clause most naturallymeans “[t]he state of being confined” or “a period of confinement.” Black’s Law Dictionary 825 (9th ed. 2009); see also Webster’s Third New International Dictionary 1137(1993) (the “state of being imprisoned”). So the word does not distinguish between the defendant’s initial placementbehind bars and his continued stay there. As the D. C. Circuit noted in rejecting an identical argument, “[a]sentencing court deciding to keep a defendant locked up for an additional month is, as to that month, in fact choosing imprisonment over release.” In re Sealed Case, 573

F. 3d 844, 850 (2009).⁴ Accordingly, the word “imprisonment” does not change the function of the “recognizing”clause—to constrain a sentencing court’s decision both to impose and to lengthen a prison term.⁵

The context of §3582(a) puts an exclamation point onthis textual conclusion. As noted earlier, supra, at 6, another provision of the SRA restates §3582(a)’s message,

—————— ⁴Indeed, we can scarcely imagine a reason why Congress would have wanted to draw the distinction that amicus urges on us. That distinction would prevent a court from considering rehabilitative needs in imposing a 1-month sentence rather than probation, but not in choosing a 60-month sentence over a 1-month term. The only policy argument amicus can offer in favor of this result is that “[t]he effects of imprisonment plateau a short while after the incarceration” and “ ‘[t]he difference in harm between longer and shorter prison terms is smaller than typically assumed.’ ” Amicus Brief 56. But nothing in the SRAindicates that Congress is so indifferent to the length of prison terms. ⁵The Government argues that “Congress did not intend to prohibit courts from imposing less imprisonment in order to promote a defendant’s rehabilitation.” Brief for United States 40 (emphasis added). This case does not require us to address that question, and nothing inour decision expresses any views on it. 10 TAPIA v. UNITED STATES Opinion of the Court

but to a different audience. That provision, 28 U. S. C. §994(k), directs the Sentencing Commission to ensure that the Guidelines “reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose ofrehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.” In this way, Congress ensured that all sentencing officials would work in tandem to implement the statutory determination to“rejec[t] imprisonment as a means of promoting rehabilitation.” Mistretta, 488 U. S., at 367 (citing 28 U. S. C. §994(k)). Section 994(k) bars the Commission from recommending a “term of imprisonment”—a phrase that again refers both to the fact and to the length of incarceration—based on a defendant’s rehabilitative needs. And §3582(a) prohibits a court from considering those needs to impose or lengthen a period of confinement when selecting a sentence from within, or choosing to depart from, the Guidelines range. Each actor at each stage in the sentencing process receives the same message: Do not think aboutprison as a way to rehabilitate an offender.

Equally illuminating here is a statutory silence—the absence of any provision granting courts the power toensure that offenders participate in prison rehabilitation programs. For when Congress wanted sentencing courts to take account of rehabilitative needs, it gave courtsthe authority to direct appropriate treatment for offenders. Thus, the SRA instructs courts, in deciding whetherto impose probation or supervised release, to considerwhether an offender could benefit from training and treatment programs. See 18 U. S. C. §3562(a); §3583(c). And so the SRA also authorizes courts, when imposing those sentences, to order an offender’s participation in certain programs and facilities. §3563(b)(9); §3563(b)(11); §3563(a)(4); §3583(d). As a condition of probation, for example, the court may require the offender to “undergo 11 Cite as: 564 U. S. ____ (2011)

Opinion of the Court

available medical, psychiatric, or psychological treatment,including treatment for drug or alcohol dependency, asspecified by the court, and [to] remain in a specified institution if required for that purpose.” §3563(b)(9).

If Congress had similarly meant to allow courts to baseprison terms on offenders’ rehabilitative needs, it would have given courts the capacity to ensure that offendersparticipate in prison correctional programs. But in fact, courts do not have this authority. When a court sentences a federal offender, the BOP has plenary control, subject to statutory constraints, over “the place of the prisoner’s imprisonment,” §3621(b), and the treatment programs (ifany) in which he may participate, §§3621(e), (f); §3624(f). See also 28 CFR pt. 544 (2010) (BOP regulations for administering inmate educational, recreational, and vocational programs); 28 CFR pt. 550, subpart F (drug abuse treatment programs). A sentencing court can recommend that the BOP place an offender in a particular facility or program. See §3582(a). But decisionmaking authorityrests with the BOP.

This case well illustrates the point. As noted earlier, the District Court “strongly recommend[ed]” that Tapia participate in RDAP, App. 29, and serve her sentence at FCI Dublin, “where they have the facilities to really help her,” id., at 28. But the court’s recommendations were only recommendations—and in the end they had no effect. See Amicus Brief 42 (“[Tapia] was not admitted to RDAP,nor even placed in the prison recommended by the districtcourt”); Reply Brief for United States 8, n. 1 (“According toBOP records, [Tapia] was encouraged to enroll [in RDAP] during her psychology intake screening at [the federal prison], but she stated that she was not interested, and she has not volunteered for the program”). The sentencingcourt may have had plans for Tapia’s rehabilitation, but itlacked the power to implement them. That incapacity speaks volumes. It indicates that Congress did not intend 12 TAPIA v. UNITED STATES Opinion of the Court

that courts consider offenders’ rehabilitative needs when imposing prison sentences.

Finally, for those who consider legislative history useful, the key Senate Report concerning the SRA provides onelast piece of corroborating evidence. According to thatReport, decades of experience with indeterminate sentencing, resulting in the release of many inmates after theycompleted correctional programs, had left Congress skeptical that “rehabilitation can be induced reliably in a prison setting.” S. Rep., at 38. Although some critics argued that “rehabilitation should be eliminated completely as a purpose of sentencing,” Congress declined toadopt that categorical position. Id., at 76. Instead, the Report explains, Congress barred courts from consideringrehabilitation in imposing prison terms, ibid., and n. 165, but not in ordering other kinds of sentences, ibid., and

n. 164. “[T]he purpose of rehabilitation,” the Report stated, “is still important in determining whether a sanction other than a term of imprisonment is appropriate in aparticular case.” See id., at 76–77 (emphasis added).

And so this is a case in which text, context, and historypoint to the same bottom line: Section 3582(a) precludes sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation.

B With all these sources of statutory meaning stacked against him, amicus understandably tries to put the SRA’sview of rehabilitation in a wholly different frame. Amicus begins by conceding that Congress, in enacting the SRA, rejected the old “[r]ehabilitation [m]odel.” Amicus Brief 1. But according to amicus, that model had a very limited focus: It was the belief that “isolation and prison routine” could alone produce “penitence and spiritual renewal.” Id., at 1, 11. What the rehabilitation model did not include—and the SRA therefore did not reject—was prison 13 Cite as: 564 U. S. ____ (2011) Opinion of the Court

treatment programs (including for drug addiction) targeted to offenders’ particular needs. See id., at 21, 25, 27–

28. So even after the passage of §3582(a), amicus argues, a court may impose or lengthen a prison sentence to promote an offender’s participation in a targeted treatment program. The only thing the court may not do is to impose a prison term on the ground that confinement itself—itsinherent solitude and routine—will lead to rehabilitation.

We think this reading of the SRA is too narrow. For one thing, the relevant history shows that at the time ofthe SRA’s enactment, prison rehabilitation efforts focused on treatment, counseling, and training programs, not onseclusion and regimentation. See Rotman, The Failure of Reform: United States, 1865–1965, in Oxford History of the Prison: The Practice of Punishment in Western Society 169, 189–190 (N. Morris & D. Rothman eds. 1995) (describing the pre-SRA “therapeutic model of rehabilitation”as characterized by “individualized treatment” and “vocational training and group counseling programs”); see also

n. 3, supra (noting pre-SRA statutes linking the confinement of drug addicts to the completion of treatment programs). Indeed, Congress had in mind precisely theseprograms when it prohibited consideration of rehabilitation in imposing a prison term. See 28 U. S. C. §994(k) (instructing the Sentencing Commission to prevent theuse of imprisonment to “provid[e] the defendant withneeded educational or vocational training . . . or other correctional treatment”); S. Rep., at 40 (rejecting the“model of ‘coercive’ rehabilitation—the theory of correction that ties prison release dates to the successful completion of certain vocational, educational, and counseling programs within the prisons”). Far from falling outside the“rehabilitation model,” these programs practically defined it.

It is hardly surprising, then, that amicus’s argument finds little support in the statutory text. Read most natu14 TAPIA v. UNITED STATES Opinion of the Court

rally, 18 U. S. C. §3582(a)’s prohibition on “promotingcorrection and rehabilitation” covers efforts to place offenders in rehabilitation programs. Indeed, §3582(a)’s language recalls the SRA’s description of the rehabilitative purpose of sentencing—“provid[ing] the defendant with needed educational or vocational training, medical care, orother correctional treatment.” §3553(a)(2)(D). That description makes clear that, under the SRA, treatment, training, and like programs are rehabilitation’s sum andsubstance. So amicus’s efforts to exclude rehabilitation programs from the “recognizing” clause’s reach do not succeed. That section prevents a sentencing court fromimposing or lengthening a prison term because the court thinks an offender will benefit from a prison treatment program.

IV In this case, the sentencing transcript suggests thepossibility that Tapia’s sentence was based on her rehabilitative needs. We note first what we do not disapprove about Tapia’s sentencing. A court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs. To the contrary, a court properly may address a person who is about to begin a prison term about these important matters. And as noted earlier, a court may urge the BOP toplace an offender in a prison treatment program. See supra, at 11. Section 3582(a) itself provides, just after the clause at issue here, that a court may “make a recommendation concerning the type of prison facility appropriate for the defendant”; and in this calculus, the presence of arehabilitation program may make one facility more appropriate than another. So the sentencing court here didnothing wrong—and probably something very right—intrying to get Tapia into an effective drug treatment 15 Cite as: 564 U. S. ____ (2011) Opinion of the Court

program.

But the record indicates that the court may have done more—that it may have selected the length of the sentence to ensure that Tapia could complete the 500 Hour DrugProgram. “The sentence has to be sufficient,” the court explained, “to provide needed correctional treatment, and here I think the needed correctional treatment is the 500 Hour Drug Program.” App. 27; see supra, at 1–2. Or again: The “number one” thing “is the need to provide treatment. In other words, so she is in long enough to get the 500 Hour Drug Program.” App. 27; see supra, at 2. These statements suggest that the court may have calculated the length of Tapia’s sentence to ensure that shereceive certain rehabilitative services. And that a sentencing court may not do. As we have held, a court may notimpose or lengthen a prison sentence to enable an offenderto complete a treatment program or otherwise to promoterehabilitation.

For the reasons stated, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. Consistent with our practice, see, e.g., United States v. Marcus, 560 U. S. ___, ___ (2010) (slip op., at 8), we leave it to the Court of Appeals to consider the effect of Tapia’s failure to object tothe sentence when imposed. See Fed. Rule Crim. Proc. 52(b); United States v. Olano, 507 U. S. 725, 731 (1993).

It is so ordered. _________________ _________________ 1 Cite as: 564 U. S. ____ (2011)

SOTOMAYOR, J., concurring

SUPREME COURT OF THE UNITED STATES

No. 10–5400

ALEJANDRA TAPIA, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[June 16, 2011]

JUSTICE SOTOMAYOR, with whom JUSTICE ALITO joins,concurring.

I agree with the Court’s conclusion that 18 U. S. C.§3582(a) “precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant’s rehabilitation.” Ante, at 1. I write separatelyto note my skepticism that the District Judge violated this proscription in this case.

At the sentencing hearing, the District Judge carefullyreviewed the sentencing factors set forth in §3553(a). First, he considered “[t]he nature and circumstances of the offense” committed by petitioner Alejandra Tapia—in this case, alien smuggling. App. 25–26; see §3553(a)(1). He emphasized that Tapia’s criminal conduct “created a substantial risk of death or serious bodily injury” to the smuggled aliens. App. 26; see also id., at 20 (noting thatthe aliens were secreted in the vehicle’s gas tank compartment). Second, he reviewed Tapia’s “history andcharacteristics,” §3553(a)(1), including her history of beingabused and her associations “with the wrong people,” id., at 26. He noted his particular concern about Tapia’scriminal conduct while released on bail, when she failed to appear and was found in an apartment with methamphetamine, a sawed-off shotgun, and stolen mail. Id., at 25–26. Third, he noted that the offense was “serious,” warranting a “sufficient” sentence. Id., at 26; see 2 TAPIA v. UNITED STATES

SOTOMAYOR, J., concurring

§3553(a)(2)(A). Fourth, he considered the need “to deter criminal conduct” and “to protect the public from furthercrimes of the defendant,” which he characterized as a “bigfactor here, given [Tapia’s] failure to appear and what she did out on bail.” App. 26; see §§3553(a)(2)(B), (C). Fifth, he took account of the need “to provide needed correctional treatment,” in this case, the Bureau of Prisons’ (BOP) “500Hour Drug Program,” more officially called the Residential Drug Abuse Treatment Program (RDAP). App. 27; see§3553(a)(2)(D). And, finally, he noted the need “to avoid unwarranted sentencing disparities” and the need for thesentence “to be sufficient to effect the purposes of 3553(a) but not greater.” App. 27; see §§3553(a), (a)(6).

Tapia faced a mandatory minimum sentence of 36months’ incarceration, App. 18, but her Guidelines range was 41 to 51 months, id., at 13. After reviewing the §3553(a) factors, the judge imposed a sentence of 51months, the top of the Guidelines range. He offered two reasons for choosing this sentence: “number one,” the needfor drug treatment; and “[n]umber two,” deterrence. Id., at 27. With respect to the latter reason, the judge highlighted Tapia’s criminal history and her criminal conductwhile released on bail—which, he said, was “something that motivates imposing a sentence that in total is at the high end of the guideline range.” Id., at 27–28. He concluded, “I think that a sentence less than what I am imposing would not deter her and provide for sufficient time so she could begin to address these problems.” Id., at 28.

The District Judge’s comments at sentencing suggestthat he believed the need to deter Tapia from engaging infurther criminal conduct warranted a sentence of 51 months’ incarceration. Granted, the judge also mentioned the need to provide drug treatment through the RDAP. The 51-month sentence he selected, however, appears to have had no connection to eligibility for the RDAP. See BOP Program Statement No. P5330.11, §2.5.1(b) (Mar. 16, 3 Cite as: 564 U. S. ____ (2011) SOTOMAYOR, J., concurring

2009) (providing that, to participate in the RDAP, aninmate must ordinarily have at least 24 months remaining on her sentence). Even the 36-month mandatory minimum would have qualified Tapia for participation in the RDAP. I thus find it questionable that the judge lengthened her term of imprisonment beyond that necessary for deterrence in the belief that a 51-month sentence was necessary for rehabilitation. Cf. S. Rep. No. 98–225,

p. 176 (1983) (“A term imposed for another purpose of sentencing may . . . have a rehabilitative focus if rehabilitation in such a case is an appropriate secondary purpose of the sentence”).

Although I am skeptical that the thoughtful DistrictJudge imposed or lengthened Tapia’s sentence to promote rehabilitation, I acknowledge that his comments at sentencing were not perfectly clear. Given that Ninth Circuit precedent incorrectly permitted sentencing courts to consider rehabilitation in setting the length of a sentence, see ante, at 2, and that the judge stated that the sentenceneeded to be “long enough to get the 500 Hour DrugProgram,” App. 27, I cannot be certain that he did not lengthen Tapia’s sentence to promote rehabilitation inviolation of §3582(a). I therefore agree with the Court’sdisposition of this case and join the Court’s opinion in full.

1 (Slip Opinion) OCTOBER TERM, 2010

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

FREEMAN v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 09–10245. Argued February 23, 2011—Decided June 23, 2011

In order to reduce unwarranted federal sentencing disparities, the Sentencing Reform Act of 1984 authorizes the United States SentencingCommission to create, and to retroactively amend, Sentencing Guidelines to inform judicial discretion. Title 18 U. S. C. §3582(c)(2) permits a defendant who was sentenced to a term of imprisonment“based on” a Guidelines sentencing range that has subsequently beenlowered by retroactive amendment to move for a sentence reduction.This case concerns §3582(c)(2)’s application to cases in which the defendant and the Government have entered into a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), which permits the parties to “agree that a specific sentence or sentencing range is the appropriate disposition of the case,” and “binds the court [to theagreed-upon sentence] once [it] accepts the plea agreement.” Petitioner Freeman was indicted for various crimes, including possessing with intent to distribute cocaine base. 21 U. S. C. §841(a)(1).He entered into an 11(c)(1)(C) agreement to plead guilty to allcharges; in return the Government agreed to a 106-month sentence.The agreement states that the parties independently reviewed theapplicable Guidelines, noted that Freeman agreed to have his sentence determined under the Guidelines, and reflected the parties’ understanding that the agreed-to sentence corresponded with the minimum sentence suggested by the applicable Guidelines range of 46 to 57 months, along with a consecutive mandatory minimum of 60months for possessing a firearm in furtherance of a drug-traffickingcrime under 18 U. S. C. §924(c)(1)(A). Three years after the District Court accepted the plea agreement, the Commission issued a retroactive Guidelines amendment to remedy the significant disparity between the penalties for cocaine base and powder cocaine offenses. 2 FREEMAN v. UNITED STATES Syllabus

Because the amendment’s effect was to reduce Freeman’s applicablesentencing range to 37 to 46 months plus the consecutive 60-monthmandatory minimum, he moved for a sentence reduction under §3582(c)(2). However, the District Court denied the motion, and the Sixth Circuit affirmed because its precedent rendered defendants sentenced pursuant to 11(c)(1)(C) agreements ineligible for §3582(c)(2) relief, barring a miscarriage of justice or mutual mistake.

Held: The judgment is reversed, and the case is remanded. 355 Fed. Appx. 1, reversed and remanded. JUSTICE KENNEDY, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN, concluded that defendants who enter into 11(c)(1)(C) agreements that specify a particular sentence as a condition of the guilty plea may be eligible for relief under §3582(c)(2). Pp.5–10.

(a) The text and purpose of the statute, Rule 11(c)(1)(C), and the governing Guidelines policy statements compel the conclusion thatthe district court has authority to entertain §3582(c)(2) motions whensentences are imposed in light of the Guidelines, even if the defendant enters into an 11(c)(1)(C) agreement. The district judge must,in every case, impose “a sentence sufficient, but not greater than necessary, to comply with” the purposes of federal sentencing, in light of the Guidelines and other relevant factors. §3553(a). The Guidelines provide a framework or starting point—a basis, in the term’s commonsense meaning—for the judge’s exercise of discretion. Rule 11(c)(1)(C) permits the defendant and the prosecutor to agree on a specific sentence, but that agreement does not discharge the district court’s independent obligation to exercise its discretion. In the usual sentencing, whether following trial or plea, the judge’s reliance on the Guidelines will be apparent when the judge uses the Guidelines range as the starting point in the analysis and imposes a sentencewithin the range. Gall v. United States, 552 U. S. 38, 49. Even where the judge varies from the recommended range, id., at 50, if the judge uses the sentencing range as the beginning point to explain the deviation, then the Guidelines are in a real sense a basis for the sentence. The parties’ recommended sentence binds the court “once the court accepts the plea agreement,” Rule 11(c)(1)(C), but the relevant policy statement forbids the judge to accept an agreement without first giving due consideration to the applicable Guidelines sentencing range, even if the parties recommend a specific sentence as a condition of the guilty plea, see U. S. Sentencing Commission, GuidelinesManual §6B1.2. This approach finds further support in the policystatement applicable to §3582(c)(2) motions, which instructs the district court in modifying a sentence to substitute the retroactive amendment, but to leave all original Guidelines determinations in 3 Cite as: 564 U. S. ____ (2011)

Syllabus

place, §1B1.10(b)(1). Pp. 5–7.

(b) Petitioner’s sentencing hearing transcript reveals that the District Court expressed its independent judgment that the sentencewas appropriate in light of the applicable Guidelines range. Its decision was therefore “based on” that range within §3582(c)(2)’s meaning. P. 7.

(c) The Government’s argument that sentences that follow an 11(c)(1)(C) agreement are based only on the agreement itself and not the Guidelines, and are therefore ineligible for §3582(c)(2) reduction, must be rejected. Even when a defendant enters into an 11(c)(1)(C)agreement, the judge’s decision to accept the plea and impose therecommended sentence is likely to be based on the Guidelines; andwhen it is, the defendant should be eligible to seek §3582(c)(2) relief.Pp. 7–10.

JUSTICE SOTOMAYOR concluded that if an agreement under FederalRule of Criminal Procedure 11(c)(1)(C) ((C) agreement) expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequentlylowered by the Sentencing Commission, the prison term is “based on” the range employed and the defendant is eligible for sentence reduction under 18 U. S. C. §3582(c)(2). Pp. 1–11.

(a) The term of imprisonment imposed by a district court pursuantto a (C) agreement is “based on” the agreement itself, not on the judge’s calculation of the Guidelines sentencing range. To hold otherwise would be to contravene the very purpose of (C) agreements—tobind the district court and allow the Government and the defendant to determine what sentence he will receive. Pp. 1–5.

(b) This does not mean, however, that a term of imprisonment imposed under a (C) agreement can never be reduced under §3582(c)(2).Because the very purpose of a (C) agreement is to allow the parties todetermine the defendant’s sentence, when the agreement itself employs a particular Guidelines sentencing range applicable to the charged offenses in establishing the term of imprisonment imposedby the district court, the defendant is eligible to have his sentence reduced under §3582(c)(2). Pp. 5–9.

(c) Freeman is eligible. The offense level and criminal history category set forth in his (C) agreement produce a sentencing range of 46 to 57 months; it is evident that the parties combined the 46-monthfigure at the low end of the range with the 60-month mandatory minimum sentence under §924(c)(1)(A) to establish the 106-monthsentence called for in the agreement. Under the amended Guidelines, however, the applicable sentencing range is now 37 to 46 months. Therefore, Freeman’s prison term is “based on” a sentencing range that “has subsequently been lowered by the Sentencing Com

4 FREEMAN v. UNITED STATES

Syllabus

mission,” rendering him eligible for sentence reduction. Pp. 9–11.

KENNEDY, J., announced the judgment of the Court and delivered anopinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined. SO-TOMAYOR, J., filed an opinion concurring in the judgment. ROBERTS,

C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined. _________________ _________________ 1 Cite as: 564 U. S. ____ (2011)

Opinion of KENNEDY, J.

NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 09–10245

WILLIAM FREEMAN, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2011]

JUSTICE KENNEDY announced the judgment of the Court and delivered an opinion, in which JUSTICE GINSBURG,JUSTICE BREYER, and JUSTICE KAGAN join.

The Sentencing Reform Act of 1984, 18 U. S. C. §3551 et seq., calls for the creation of Sentencing Guidelines to inform judicial discretion in order to reduce unwarranted disparities in federal sentencing. The Act allows retroactive amendments to the Guidelines for cases where the Guidelines become a cause of inequality, not a bulwark against it. When a retroactive Guideline amendment is adopted, §3582(c)(2) permits defendants sentenced based on a sentencing range that has been modified to move for a reduced sentence.

The question here is whether defendants who enter intoplea agreements that recommend a particular sentence as a condition of the guilty plea may be eligible for relief under §3582(c)(2). See Fed. R. Crim. Proc. 11(c)(1)(C) (authorizing such plea agreements). The Court of Appeals for the Sixth Circuit held that, barring a miscarriage ofjustice or mutual mistake, defendants who enter into 11(c)(1)(C) agreements cannot benefit from retroactiveGuideline amendments.

Five Members of the Court agree that this judgmentmust be reversed. The Justices who join this pluralityopinion conclude that the categorical bar enacted by the 2 FREEMAN v. UNITED STATES

Opinion of KENNEDY, J.

Court of Appeals finds no support in §3582(c)(2), Rule11(c)(1)(C), or the relevant Guidelines policy statements. In every case the judge must exercise discretion to impose an appropriate sentence. This discretion, in turn, is framed by the Guidelines. And the Guidelines must be consulted, in the regular course, whether the case is one inwhich the conviction was after a trial or after a plea,including a plea pursuant to an agreement that recommends a particular sentence. The district judge’s decision to impose a sentence may therefore be based on the Guidelines even if the defendant agrees to plead guilty under Rule 11(c)(1)(C). Where the decision to impose a sentenceis based on a range later subject to retroactive amendment, §3582(c)(2) permits a sentence reduction.

Section 3582(c)(2) empowers district judges to correct sentences that depend on frameworks that later prove unjustified. There is no reason to deny §3582(c)(2) relief todefendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.

JUSTICE SOTOMAYOR would reverse the judgment on adifferent ground set out in the opinion concurring in the judgment. That opinion, like the dissent, would hold that sentences following 11(c)(1)(C) agreement are based on the agreement rather than the Guidelines, and therefore that§3582(c)(2) relief is not available in the typical case. But unlike the dissent she would permit the petitioner here toseek a sentence reduction because his plea agreement in express terms ties the recommended sentence to theGuidelines sentencing range.

The reasons that lead those Members of the Court who join this plurality opinion may be set forth as follows.

I A Federal courts are forbidden, as a general matter, to 3 Cite as: 564 U. S. ____ (2011) Opinion of KENNEDY, J.

“modify a term of imprisonment once it has been imposed,” 18 U. S. C. §3582(c); but the rule of finality is subject to a few narrow exceptions. Here, the exception is contained in a statutory provision enacted to permit defendants whose Guidelines sentencing range has been lowered by retroactive amendment to move for a sentence reduction if the terms of the statute are met. The statute provides:

“In the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U. S. C. 994(o) . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reductionis consistent with applicable policy statements issued by the Sentencing Commission.” §3582(c)(2).

This case concerns the application of the statute to casesin which defendants enter into plea agreements underRule 11(c)(1)(C). That Rule permits the parties to “agreethat a specific sentence or sentencing range is the appropriate disposition of the case, . . . [a request which] binds the court once the court accepts the plea agreement.” The question is whether defendants who enter into 11(c)(1)(C) agreements that specify a particular sentence may be saidto have been sentenced “based on” a Guidelines sentencingrange, making them eligible for relief under §3582(c)(2).

B Petitioner William Freeman was indicted in 2005 for various crimes, including possessing with intent to distribute cocaine base. 21 U. S. C. §§841(a)(1); (b)(1)(C). He entered into an agreement under Rule 11(c)(1)(C) in whichhe agreed to plead guilty to all charges. In return the Government “agree[d] that a sentence of 106 months’ incarceration is the appropriate disposition of this case.” 4 FREEMAN v. UNITED STATES

Opinion of KENNEDY, J.

App. 26a. The agreement states that “[b]oth parties have independently reviewed the Sentencing Guidelines applicable in this case,” and that “[Freeman] agrees to have his sentence determined pursuant to the Sentencing Guidelines.” The agreement reflects the parties’ expectationthat Freeman would face a Guidelines range of 46 to 57months, id., at 27a–28a (Offense Level 19, Criminal History Category IV), along with a consecutive mandatoryminimum of 60 months for possessing a firearm in furtherance of a drug-trafficking crime under 18 U. S. C.§924(c)(1)(A). The recommended sentence of 106 months thus corresponded with the minimum sentence suggested by the Guidelines, in addition to the 60-month §924(c) (1)(A) sentence.

The District Court accepted the plea agreement. At the sentencing hearing, the court “adopt[ed] the findings ofthe probation officer disclosed in the probation report andapplication of the guidelines as set out therein.” App. 47a.“[H]aving considered the advisory guidelines and 18 USC 3553(a),” the court imposed the recommended 106-monthsentence, which was “within the guideline ranges”—the 46- to 57-month range the parties had anticipated plus the mandatory 60 months under §924(c)(1)(A)—and “sufficient to meet the objectives of the law.” Id. at 48a–49a.

Three years later, the Commission issued a retroactiveamendment to the Guidelines to remedy the significant disparity between the penalties for cocaine base and powder cocaine offenses. See United States Sentencing Commission, Guidelines Manual Supp. App. C, Amdt. 706(Nov. 2010) (USSG) (effective Nov. 1, 2007) (adjusting Guidelines); id., Amdt. 713 (effective Mar. 3, 2008) (making Amendment 706 retroactive). Its effect was to reduce Freeman’s applicable sentencing range to 37 to 46 months,again with the consecutive 60-month mandatory minimum. App. 142a–144a (Sealed).

Freeman moved for a sentence reduction under 5 Cite as: 564 U. S. ____ (2011) Opinion of KENNEDY, J.

§3582(c)(2). The District Court, however, denied the motion, and the Court of Appeals for the Sixth Circuitaffirmed. United States v. Goins, 355 Fed. Appx. 1 (2009). Adhering to its decision in United States v. Peveler, 359

F. 3d 369 (2004), the Court of Appeals held that defendants sentenced following 11(c)(1)(C) agreements thatspecify a particular sentence are ineligible for §3582(c)(2) relief, barring a miscarriage of justice or mutual mistake.

This Court granted certiorari. 561 U. S. __ (2010).

II Federal sentencing law requires the district judge inevery case to impose “a sentence sufficient, but not greaterthan necessary, to comply with” the purposes of federal sentencing, in light of the Guidelines and other §3553(a) factors. 18 U. S. C. §3553(a). The Guidelines provide aframework or starting point—a basis, in the commonsensemeaning of the term—for the judge’s exercise of discretion. E.g., 1 Oxford English Dictionary 977 (2d ed. 1989). Rule 11(c)(1)(C) permits the defendant and the prosecutor to agree that a specific sentence is appropriate, but that agreement does not discharge the district court’s independent obligation to exercise its discretion. In the usual sentencing, whether following trial or plea, the judge’sreliance on the Guidelines will be apparent, for the judgewill use the Guidelines range as the starting point in the analysis and impose a sentence within the range. Gall v. United States, 552 U. S. 38, 49 (2007). Even where the judge varies from the recommended range, id., at 50, if the judge uses the sentencing range as the beginning point toexplain the decision to deviate from it, then the Guidelines are in a real sense a basis for the sentence. Rule 11(c)(1)(C) makes the parties’ recommended sentence binding on the court “once the court accepts the pleaagreement,” but the governing policy statement confirmsthat the court’s acceptance is itself based on the Guide6 FREEMAN v. UNITED STATES

Opinion of KENNEDY, J.

lines. See USSG §6B1.2. That policy statement forbidsthe district judge to accept an 11(c)(1)(C) agreement without first evaluating the recommended sentence in light of the defendant’s applicable sentencing range. The commentary to §6B1.2 advises that a court may accept an11(c)(1)(C) agreement “only if the court is satisfied either that such sentence is an appropriate sentence within the applicable guideline range or, if not, that the sentence departs from the applicable guideline range for justifiablereasons.” Cf. Stinson v. United States, 508 U. S. 36 (1993)(Guidelines commentary is authoritative). Any bargainbetween the parties is contingent until the court accepts the agreement. The Guidelines require the district judgeto give due consideration to the relevant sentencing range, even if the defendant and prosecutor recommend a specificsentence as a condition of the guilty plea.

This approach finds further support in the policy statement that applies to §3582(c)(2) motions. See USSG §1B1.10. It instructs the district court in modifying a sentence to substitute only the retroactive amendment and then leave all original Guidelines determinations inplace. §1B1.10(b)(1). In other words, the policy statementseeks to isolate whatever marginal effect the sincerejected Guideline had on the defendant’s sentence. Working backwards from this purpose, §3582(c)(2) modification proceedings should be available to permit the districtcourt to revisit a prior sentence to whatever extent thesentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement. This is the only ruleconsistent with the governing policy statement, a statement that rests on the premise that a Guideline rangemay be one of many factors that determine the sentence imposed.

Thus, the text and purpose of the three relevantsources—the statute, the Rule, and the governing policy 7 Cite as: 564 U. S. ____ (2011)

Opinion of KENNEDY, J.

statements—require the conclusion that the district courthas authority to entertain §3582(c)(2) motions when sentences are imposed in light of the Guidelines, even if thedefendant enters into an 11(c)(1)(C) agreement.

III The transcript of petitioner’s sentencing hearing revealsthat his original sentence was based on the Guidelines. The District Court first calculated the sentencing range,as both §3553(a)(4) and §6B1.2(c) require. App. 47a, 49a. It explained that it “considered the advisory guidelinesand 18 USC 3553(a),” and that “the sentence imposed . . . fall[s] within the guideline rang[e] and [is] sufficient tomeet the objectives of the law.” Id., at 48a–49a. Apart from the defense attorney’s initial statement that the caseinvolved a “(C) plea,” id., at 47a, the hearing proceeded asif the agreement did not exist. The court expressed itsindependent judgment that the sentence was appropriatein light of the applicable Guidelines range, and its decisionwas therefore “based on” that range.

IV The Government asks this Court to hold that sentences like petitioner’s, which follow an 11(c)(1)(C) agreement,are based only on the agreement and not the Guidelines, and therefore that defendants so sentenced are ineligiblefor §3582(c)(2) relief. The Government’s position rests inpart on the concern that the conclusion reached here will upset the bargain struck between prosecutor and defendant. See Brief for United States 42–43. That, however, has nothing to do with whether a sentence is “based on” the Guidelines under §3582(c)(2). And in any event, theconcern is overstated. Retroactive reductions to sentencing ranges are infrequent, so the problem will not arise often. Thompson, DOJ’s Attack on Federal Judicial “Leniency,” the Supreme Court’s Response, and the Future of 8 FREEMAN v. UNITED STATES

Opinion of KENNEDY, J.

Criminal Sentencing, 44 Tulsa L. Rev. 519, 535 (2009).More important, the district court’s authority under §3582(c)(2) is subject to significant constraints, constraintsthat can be enforced by appellate review.

The binding policy statement governing §3582(c)(2) motions places considerable limits on district court discretion. All Guidelines decisions from the original sentencing remain in place, save the sentencing range that was altered by retroactive amendment. USSG §1B1.10(b)(1). In an initial sentencing hearing, a district court can vary below the Guidelines; but, by contrast, below-Guidelinesmodifications in §3582(c)(2) proceedings are forbidden,USSG §1B1.10(b)(2)(A), except where the original sentence was itself a downward departure. §1B1.10(b)(2)(B).And the court must always “consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment.” §1B1.10, comment., n. 1(B)(ii). The district court’s authority is limited; and the Courts of Appeals, and ultimately this Court, can ensure that districtcourts do not overhaul plea agreements, thereby abusing their authority under §3582(c)(2). See Dillon v. United States, 560 U. S. ___ (2010) (reviewing and affirming a §3582(c)(2) sentence reduction); Gall, 552 U. S., at 49 (all sentences are reviewable for abuse of discretion).

The Government would enact a categorical bar on§3582(c)(2) relief. But such a bar would prevent district courts from making an inquiry that is within their own special knowledge and expertise. What is at stake in thiscase is a defendant’s eligibility for relief, not the extent of that relief. Indeed, even where a defendant is permitted to seek a reduction, the district judge may conclude that areduction would be inappropriate. District judges have a continuing professional commitment, based on scholarshipand accumulated experience, to a consistent sentencingpolicy. They can rely on the frameworks they have de9 Cite as: 564 U. S. ____ (2011) Opinion of KENNEDY, J.

vised to determine whether and to what extent a sentence reduction is warranted in any particular case. They may,when considering a §3582(c)(2) motion, take into account a defendant’s decision to enter into an 11(c)(1)(C) agreement. If the district court, based on its experience andinformed judgment, concludes the agreement led to a morelenient sentence than would otherwise have been imposed,it can deny the motion, for the statute permits but does not require the court to reduce a sentence. This discretion ensures that §3582(c)(2) does not produce a windfall.

As noted, the opinion concurring in the judgment suggests an intermediate position. That opinion argues thatin general defendants sentenced following 11(c)(1)(C)agreements are ineligible for §3582(c)(2) relief, but relief may be sought where the plea agreement itself contemplates sentence reduction. The statute, however, calls for an inquiry into the reasons for a judge’s sentence, not the reasons that motivated or informed the parties. If, as the Government suggests, the judge’s decision to impose a sentence is based on the agreement, then §3582(c)(2)does not apply. The parties cannot by contract upset anotherwise-final sentence. And the consequences of this erroneous rule would be significant. By allowing modification only when the terms of the agreement contemplate it,the proposed rule would permit the very disparities theSentencing Reform Act seeks to eliminate.

The Act aims to create a comprehensive sentencingscheme in which those who commit crimes of similar severity under similar conditions receive similar sentences. See 18 U. S. C. §3553(a)(6); K. Stith & J. Cabranes, Fear of Judging 104–105 (1998). Section 3582(c)(2) contributes to that goal by ensuring that district courts may adjust sentences imposed pursuant to a range that the Commission concludes are too severe, out of stepwith the seriousness of the crime and the sentencingranges of analogous offenses, and inconsistent with the 10 FREEMAN v. UNITED STATES

Opinion of KENNEDY, J.

Act’s purposes.

The crack-cocaine range here is a prime example of anunwarranted disparity that §3582(c)(2) is designed to cure. The Commission amended the crack-cocaine Guidelines to effect a “partial remedy” for the “urgent and compelling” problem of crack-cocaine sentences, which, the Commission concluded, “significantly undermines the variouscongressional objectives set forth in the Sentencing Reform Act.” United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy,pp. 8–10 (May 2007); see also USSG Supp. App. C, Amdt. 706; Kimbrough v. United States, 552 U. S. 85, 99–100 (2007). The Commission determined that those Guidelines were flawed, and therefore that sentences that relied on them ought to be reexamined. There is no good reasonto extend the benefit of the Commission’s judgment only to an arbitrary subset of defendants whose agreed sentenceswere accepted in light of a since-rejected Guidelines range based on whether their plea agreements refer to theGuidelines. Congress enacted §3582(c)(2) to remedy systemic injustice, and the approach outlined in the opinion concurring in the judgment would undercut a systemic solution.

Even when a defendant enters into an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek §3582(c)(2) relief. This straightforward analysis would avoid making arbitrary distinctions betweensimilar defendants based on the terms of their plea agreements. And it would also reduce unwarranted disparities in federal sentencing, consistent with the purposes of the Sentencing Reform Act.

* * * The judgment of the Court of Appeals is reversed and 11 Cite as: 564 U. S. ____ (2011) Opinion of KENNEDY, J.

this case is remanded for further proceedings.

It is so ordered. _________________ _________________ 1 Cite as: 564 U. S. ____ (2011)

SOTOMAYOR, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

No. 09–10245

WILLIAM FREEMAN, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2011]

JUSTICE SOTOMAYOR, concurring in the judgment.

I agree with the plurality that petitioner William Freeman is eligible for sentence reduction under 18 U. S. C. §3582(c)(2), but I differ as to the reason why. In my view, the term of imprisonment imposed by a district court pursuant to an agreement authorized by Federal Rule of Criminal Procedure 11(c)(1)(C) ((C) agreement) is “based on” the agreement itself, not on the judge’s calculation of the Sentencing Guidelines. However, I believe that if a (C) agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission, the term of imprisonment is “based on” the range employed and the defendant is eligible for sentence reduction under §3582(c)(2).

I

To ask whether a particular term of imprisonment is “based on” a Guidelines sentencing range is to ask whether that range serves as the basis or foundation for the term of imprisonment. No term of imprisonment— 2 FREEMAN v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

whether derived from a (C) agreement or otherwise—has legal effect until the court enters judgment imposing it. As a result, in applying §3582(c)(2) a court must discern the foundation for the term of imprisonment imposed by the sentencing judge. As the plurality explains, in the normal course the district judge’s calculation of the Guidelines range applicable to the charged offenses will serve as the basis for the term of imprisonment imposed. See ante, at 5; see also Gall v. United States, 552 U. S. 38, 49 (2007).

Sentencing under (C) agreements, however, is different.At the time of sentencing, the term of imprisonment imposed pursuant to a (C) agreement does not involve the court’s independent calculation of the Guidelines or consideration of the other 18 U. S. C. §3553(a) factors. The court may only accept or reject the agreement, and if it chooses to accept it, at sentencing the court may onlyimpose the term of imprisonment the agreement calls for;the court may not change its terms. See Fed. Rule Crim. Proc. 11(c)(3)(A) (“To the extent the plea agreement is ofthe type specified in [Rule 11(c)(1)(C)], the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report”); AdvisoryCommittee’s Notes on 1979 Amendments to Fed. Rule Crim. Proc. 11, 18 U. S. C. App., pp. 583–584 (1982 ed.)(“[C]ritical to a . . . (C) agreement is that the defendant receive the . . . agreed-to sentence”); accord, United States

v. Rivera-Martínez, 607 F. 3d 283, 286 (CA1 2010); United States v. Green, 595 F. 3d 432, 438 (CA2 2010).

In the (C) agreement context, therefore, it is the binding plea agreement that is the foundation for the term of imprisonment to which the defendant is sentenced. At the moment of sentencing, the court simply implements theterms of the agreement it has already accepted. Contrary to the plurality’s view, see ante, at 5–6, the fact that USSG §6B1.2(c) (Nov. 2010) instructs a district court to use the Guidelines as a yardstick in deciding whether to accept a 3 Cite as: 564 U. S. ____ (2011) SOTOMAYOR, J., concurring in judgment

(C) agreement does not mean that the term of imprisonment imposed by the court is “based on” a particular Guidelines sentencing range. The term of imprisonment imposed by the sentencing judge is dictated by the termsof the agreement entered into by the parties, not the judge’s Guidelines calculation. In short, the term of imprisonment imposed pursuant to a (C) agreement is, for purposes of §3582(c)(2), “based on” the agreement itself.

To hold otherwise would be to contravene the very purpose of (C) agreements—to bind the district court andallow the Government and the defendant to determine what sentence he will receive. Although district courts ordinarily have significant discretion in determining the appropriate sentence to be imposed on a particular defendant, see Gall, 552 U. S., at 46, under Rule 11(c)(1)(C) it is the parties’ agreement that determines the sentence to be imposed, see Advisory Committee’s Notes on 1999Amendments to Fed. Rule Crim. Proc. 11, 18 U. S. C. App.,

p. 1570 (2000 ed.) (noting that, under a (C) agreement, “the government and defense have actually agreed on what amounts to an appropriate sentence . . . . [T]his agreement is binding on the court once the court acceptsit”). To be sure, the court “retains absolute discretion whether to accept a plea agreement,” ibid., but once it does it is bound at sentencing to give effect to the parties’ agreement as to the appropriate term of imprisonment.

Allowing district courts later to reduce a term of imprisonment simply because the court itself consideredthe Guidelines in deciding whether to accept the agreement would transform §3582(c)(2) into a mechanism bywhich courts could rewrite the terms of (C) agreements inways not contemplated by the parties. At the time that §3582(c)(2) was enacted in 1984, it was already well understood that, under Rule 11, the term of imprisonment stipulated in a (C) agreement bound the district court onceit accepted the agreement. See Fed. Rule Crim. Proc. 4 FREEMAN v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

11(e)(1) (1982) (specifying that the parties to a (C) agreement may “agree that a specific sentence is the appropriate disposition of the case”); United States v. French, 719

F. 2d 387, 389, n. 2 (CA11 1983) (per curiam) (noting that a Rule 11(e)(1)(C) plea agreement was a “‘binding’ plea bargain”).¹

In the absence of any indication from the statutory text or legislative history that §3582(c)(2) was meant to fundamentally alter the way in which Rule 11(c)(1)(C) operates, I cannot endorse the plurality’s suggestion that §3582(c)(2) should be understood “to permit the district court to revisit a prior sentence to whatever extent thesentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement.” Ante, at 6; cf. Dillon

v. United States, 560 U. S. ___, ___ (2010) (slip op., at (“Congress intended [§3582(c)(2)] to authorize only alimited adjustment to an otherwise final sentence”).

By the same token, the mere fact that the parties to a

(C) agreement may have considered the Guidelines in thecourse of their negotiations does not empower the courtunder §3582(c)(2) to reduce the term of imprisonment they ultimately agreed upon, as Freeman argues. Undoubtedly, he is correct that in most cases the Government andthe defendant will negotiate the term of imprisonment in a

(C) agreement by reference to the applicable Guidelinesprovisions. See Brief for Petitioner 30–31 (“[T]he Guidelines are . . . the starting point and initial benchmark for plea negotiations”); Brief for United States 33 (noting the“concededly strong likelihood that the parties will . . . calculat[e] and conside[r] potential Guidelines ranges in

—————— ¹Prior to 2002, Rule 11’s provisions governing binding plea agreements were located in Rule 11(e)(1)(C). In substance they were largely identical to the current rules in 11(c)(1)(C). See Fed. Rule Crim. Proc. 11(e)(1)(C) (2000). 5 Cite as: 564 U. S. ____ (2011)

SOTOMAYOR, J., concurring in judgment

the course of negotiating a plea agreement and selecting aspecific sentence”). This only makes sense; plea bargaining necessarily occurs in the shadow of the sentencing scheme to which the defendant would otherwise be subject. See United States v. Booker, 543 U. S. 220, 255 (2005) (“[P]lea bargaining takes place in the shadow of . . . a potential trial” (emphasis deleted)).

The term of imprisonment imposed by the district court,however, is not “based on” those background negotia- tions; instead, as explained above, it is based on the binding agreement produced by those negotiations. I therefore cannot agree with Freeman that §3582(c)(2) calls upondistrict courts to engage in a free-ranging search through the parties’ negotiating history in search of a Guidelinessentencing range that might have been relevant to the agreement or the court’s acceptance of it. Nor can I agreewith the plurality that the district judge’s calculation ofthe Guidelines provides the basis for the term of imprisonment imposed pursuant to a (C) agreement.

II These conclusions, however, do not mean that a term of imprisonment imposed pursuant to a (C) agreement can never be reduced under §3582(c)(2), as the Government contends. For example, Rule 11(c)(1)(C) allows the parties to “agree that a specific . . . sentencing range is the appropriate disposition of the case.” In delineating the agreedupon term of imprisonment, some (C) agreements maycall for the defendant to be sentenced within a particularGuidelines sentencing range. In such cases, the district court’s acceptance of the agreement obligates the court to sentence the defendant accordingly, and there can be nodoubt that the term of imprisonment the court imposes is“based on” the agreed-upon sentencing range within the meaning of §3582(c)(2). If that Guidelines range is subsequently lowered by the Sentencing Commission, the de6 FREEMAN v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

fendant is eligible for sentence reduction.

Similarly, a plea agreement might provide for a specificterm of imprisonment—such as a number of months—but also make clear that the basis for the specified term is a Guidelines sentencing range applicable to the offenseto which the defendant pleaded guilty. As long as that sentencing range is evident from the agreement itself, for purposes of §3582(c)(2) the term of imprisonment imposedby the court in accordance with that agreement is “basedon” that range. Therefore, when a (C) agreement expressly uses a Guidelines sentencing range to establishthe term of imprisonment, and that range is subsequently lowered by the Commission, the defendant is eligible for sentence reduction under §3582(c)(2).²

In so holding, I necessarily reject the categorical ruleadvanced by the Government and endorsed by the dissent,which artificially divorces a (C) agreement from its express terms.³ Because the very purpose of a (C) agreement ——————

²The dissent suggests that this rule results from a “mistaken shift inanalysis” in this opinion from the actions of the judge to the intent of the parties. See post, at 4 (opinion of ROBERTS, C. J.). The purpose of a

(C) agreement, however, is to bind the sentencing court to the terms agreed upon by the parties. See supra, at 3–4. Therefore, to determine whether a sentence imposed pursuant to a (C) agreement was “basedon” a Guidelines sentencing range, the reviewing court must necessarily look to the agreement itself.

³The majority of the Courts of Appeals to have addressed this question have taken approaches consistent with the one I take today. See United States v. Rivera-Martínez, 607 F. 3d 283, 286–287 (CA1 2010); United States v. Ray, 598 F. 3d 407, 409–410 (CA7 2010); United States

v. Main, 579 F. 3d 200, 203 (CA2 2009); United States v. Scurlark, 560

F. 3d 839, 842–843 (CA8 2009). It appears that only the Third Circuithas applied the absolute rule advanced by the Government. See United States v. Sanchez, 562 F. 3d 275, 282, and n. 8 (2009). As noted by the plurality, see ante, at 1, even the Sixth Circuit allows for sentence reduction “to avoid a miscarriage of justice or to correct a mutual mistake,” United States v. Peveler, 359 F. 3d 369, 378, n. 4 (2004) (internal quotation marks omitted). And only two Courts of Appeals have adopted a wide-ranging approach similar to the one suggested by

7 Cite as: 564 U. S. ____ (2011)

SOTOMAYOR, J., concurring in judgment

is to allow the parties to determine the defendant’s sentence, when the agreement itself employs the particular Guidelines sentencing range applicable to the charged offenses in establishing the term of imprisonment, thedefendant is eligible to have his sentence reduced under §3582(c)(2).⁴ In such cases, the district court’s reduction of the sentence does not rewrite the plea agreement; instead, it enforces the agreement’s terms.

Like the plurality, I am not persuaded by the Government’s argument that allowing a term of imprisonment imposed pursuant to a (C) agreement to be reduced under§3582(c)(2) deprives the Government of the benefit of thebargain it struck with the defendant. When a (C) agreement explicitly employs a particular Guidelines sentencing range to establish the term of imprisonment, theagreement itself demonstrates the parties’ intent thatthe imposed term of imprisonment will be based on that range, as required for sentence reduction under the statute.⁵ The Government’s concern that application of

—————— Freeman. See United States v. Garcia, 606 F. 3d 209, 214 (CA5 2010) (per curiam); United States v. Cobb, 584 F. 3d 979, 985 (CA10 2009). ⁴The dissent contends that, even when a (C) agreement expressly uses a Guidelines sentencing range to establish the term of imprisonment, the district court imposing a sentence pursuant to that agreement does not “appl[y]” that range within the meaning of the applicable Guidelines policy statement. See post, at 4–5 (citing USSG §1B1.10(b)(1) (Nov. 2010)). But in so arguing, the dissent—like theGovernment—would have courts ignore the agreement’s express terms,which the court “applie[s]” when imposing the term of imprisonment. ⁵The plurality asserts that “[t]here is no good reason to extend the benefit [of sentence reduction] only to an arbitrary subset of defendants. . . based on whether their plea agreements refer to the Guidelines.” Ante, at 10. But the “good reason” is evident: Rule 11(c)(1)(C)’s entire purpose is to allow the parties’ intent to determine sentencing outcomes. See supra, at 3–4. If a (C) agreement does not indicate the parties’ intent to base the term of imprisonment on a particular Guidelines range subsequently lowered by the Commission, then §3582(c)(2)simply does not apply. 8 FREEMAN v. UNITED STATES

SOTOMAYOR, J., concurring in judgment

§3582(c)(2) to (C) agreements will result in certain defendants receiving an “unjustified windfall” is therefore misplaced. See Brief for United States 40, 43.

Furthermore, in cases where the Government believes that even the limited sentence reduction authorized by §3582(c)(2) and USSG §1B1.10 improperly benefits thedefendant, it can argue to the district court that the courtshould not exercise its discretion under the statute to reduce the sentence.⁶ See Dillon, 560 U. S., at ___ (slip op., at 9) (noting that, in applying §3582(c)(2), the courtmust “consider whether the authorized reduction is warranted, either in whole or in part, according to the factorsset forth in [18 U. S. C.] §3553(a)”).

Finally, if the Government wants to ensure ex ante that a particular defendant’s term of imprisonment will not be reduced later, the solution is simple enough: Nothingprevents the Government from negotiating with a defendant to secure a waiver of his statutory right to seek sentence reduction under §3582(c)(2), just as it often doeswith respect to a defendant’s rights to appeal and collaterally attack the conviction and sentence.⁷ See 18 U. S. C. §3742; 28 U. S. C. §2255 (2006 ed., Supp. III); see alsoApp. 28a–29a (provision in Freeman’s agreement expressly waiving both rights). In short, application of

—————— ⁶For example, the district court might decline to reduce the term of imprisonment of an eligible defendant in light of the Government’sargument that it made significant concessions in the agreement—such as dropping a charge or forgoing a future charge—and therefore itwould not have agreed to a lower sentence at the time the agreement was made. ⁷The opposite would not necessarily be true, however, under thereading of §3582(c)(2) proposed by the Government and the dissent. If a district court has no statutory authority to reduce a term of imprisonment imposed pursuant to a (C) agreement—because such a term isnever “based on” a Guidelines sentencing range within the meaning of §3582(c)(2)—it is not clear how the parties could effectively confer thatauthority upon the court by the terms of their agreement. 9 Cite as: 564 U. S. ____ (2011)

SOTOMAYOR, J., concurring in judgment

§3582(c)(2) to an eligible defendant does not—and will not—deprive the Government of the benefit of its bargain.

III In order to conclude that Freeman is eligible for sentence reduction under §3582(c)(2), the plea agreementbetween Freeman and the Government must use a Guidelines sentencing range that has subsequently been lowered by the Sentencing Commission to establish the termof imprisonment imposed by the District Court. Freeman’s agreement does.The agreement states that Freeman “agrees to have hissentence determined pursuant to the Sentencing Guidelines,” App. 28a, and that 106 months is the total term ofimprisonment to be imposed, id., at 26a. The agreement also makes clear that the §924(c)(1)(A) count to whichFreeman agrees to plead guilty carries a minimum sentence of 60 months, “which must be served consecutivelyto” any other sentence imposed. Id., at 27a. This leaves 46 months unaccounted for. The agreement sets Freeman’s offense level at 19, as determined by the quantity of drugs and his acceptance of responsibility, and states that the parties anticipate a criminal history category of IV. Id., at 27a–28a. Looking to the Sentencing Guidelines, an offense level of 19 and a criminal history category ofIV produce a sentencing range of 46 to 57 months.⁸ See USSG ch. 5, pt. A (sentencing table). Therefore, contraryto the dissent’s curious suggestion that “there is no wayof knowing what th[e] sentence was ‘based on,’” post, at 6, it is evident that Freeman’s agreement employed the

—————— ⁸Because it is the parties’ agreement that controls in the (C) agreement context, see supra, at 3–4, even if the District Court had calculated the range differently than the parties, see post, at 8 (ROBERTS,

C. J., dissenting), Freeman would still be eligible for resentencing, aslong as the parties’ chosen range was one that was “subsequently . . .lowered by the Sentencing Commission,” §3582(c)(2). 10 FREEMAN v. UNITED STATES SOTOMAYOR, J., concurring in judgment

46-month figure at the bottom end of this sentencing range,in combination with the 60-month mandatory minimumsentence under §924(c)(1)(A), to establish his 106-month sentence.⁹ Thus the first of §3582(c)(2)’s conditions issatisfied—Freeman’s term of imprisonment is “based on” a Guidelines sentencing range.

In 2007 the Commission amended the Guidelines provisions applicable to cocaine base offenses, such that the offense level applicable to the quantity of drugs for whichFreeman was charged was lowered from 22 to 20. See App. 142a–143a (Sealed); USSG Supp. App. C, Amdt. 706.Taking into account the three-level reduction for acceptance of responsibility, Freeman’s recalculated offense level is 17, resulting in an amended sentencing range of 37to 46 months. Thus there can be no doubt that the Guidelines sentencing range originally used to establish Freeman’s term of imprisonment “has subsequently been

—————— ⁹The dissent asks whether Freeman would be eligible for sentence reduction if the agreement had called for a 53-month term of imprisonment. See post, at 7. Though that question is not presented by thefacts of this case, the answer is evident from the foregoing discussion: Ifthe agreement itself made clear that the parties arrived at the 53month term of imprisonment by determining the sentencing range applicable to Freeman’s offenses and then halving the 106-month figureat its low end, he would have been eligible under §3582(c)(2). See United States v. Franklin, 600 F. 3d 893, 897 (CA7 2010) (noting that a

(C) agreement would not foreclose relief under §3582(c)(2) if it providedthat the term of imprisonment was to be 40 percent below the low endof the applicable sentencing range).

Of course, if a (C) agreement “does not contain any references to the Guidelines,” post, at 8 (ROBERTS, C. J., dissenting), there is no way of knowing whether the agreement “use[d] a Guidelines sentencing rangeto establish the term of imprisonment,” supra, at 6, and a prisonersentenced under such an agreement would not be eligible. It is therefore unclear why the dissent believes that the straightforward inquirycalled for by the rule I apply today will “foster confusion” among the lower courts. Post, at 7. This approach is consistent with the onealready taken by most Courts of Appeals, see n. 3, supra, and there is no indication that they have found it unpalatable, cf. post, at 9. 11 Cite as: 564 U. S. ____ (2011) SOTOMAYOR, J., concurring in judgment

lowered by the Sentencing Commission,” §3582(c)(2), suchthat the amendment “ha[s] the effect of lowering [Freeman’s] applicable guideline range,” §1B1.10(a)(2)(B). As a result, Freeman’s term of imprisonment satisfies thesecond of §3582(c)(2)’s conditions. I therefore concur in the plurality’s judgment that he is eligible for sentencereduction. _________________ _________________ 1 Cite as: 564 U. S. ____ (2011)

ROBERTS, C. J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 09–10245

WILLIAM FREEMAN, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

[June 23, 2011]

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA, JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.

The plurality and the opinion concurring in the judgment agree on very little except the judgment. I on the other hand agree with much of each opinion, but disagreeon the judgment. I agree with the concurrence that thesentence imposed under a Rule 11(c)(1)(C) plea agreement is based on the agreement, not the Sentencing Guidelines. I would, however, adhere to that logic regardless whetherthe agreement could be said to “use” or “employ” a Guidelines range in arriving at the particular sentence specifiedin the agreement. Ante, at 1 (opinion of SOTOMAYOR, J.).In that respect I agree with the plurality that the approach of the concurrence to determining when a Rule 11(c)(1)(C) sentence may be reduced is arbitrary and unworkable. Ante, at 9–10.

Section 3582(c)(2) provides that “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently beenlowered by the Sentencing Commission,” a district court“may reduce the term of imprisonment . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U. S. C. §3582(c)(2). The lone issue here is whether petitioner William Freeman meets the initial prerequisite of having been sen2 FREEMAN v. UNITED STATES

ROBERTS, C. J., dissenting

tenced to a term of imprisonment “based on” a subsequently reduced sentencing range.

I agree with JUSTICE SOTOMAYOR that “the term of imprisonment imposed pursuant to a (C) agreement is, for purposes of §3582(c)(2), ‘based on’ the agreement itself.” Ante, at 3. In this case, Freeman executed a written pleaagreement in which the parties “agree[d] that a sentenceof 106 months’ incarceration [was] the appropriate disposition.” App. 26a. Because the plea agreement was entered pursuant to Rule 11(c)(1)(C), that proposed sentence became binding on the District Court once it accepted the agreement. See Fed. Rule Crim. Proc. 11(c)(1)(C) (the parties’ “request” for “a specific sentence” “binds the court once the court accepts the plea agreement”). As a result, when determining the sentence to impose on Freeman, the District Court needed to consult one thing and one thingonly—the plea agreement. See ante, at 2 (opinion of SOTOMAYOR, J.) (“At the moment of sentencing, the court simply implements the terms of the agreement it has already accepted”).

I also agree with JUSTICE SOTOMAYOR that the “term of imprisonment imposed by the sentencing judge is dictatedby the terms of the agreement entered into by the parties, not the judge’s Guidelines calculation,” and that “[a]l-lowing district courts later to reduce a term of imprisonment simply because the court itself considered the Guidelines in deciding whether to accept the agreement would transform §3582(c)(2) into a mechanism by which courts could rewrite the terms of (C) agreements in ways not contemplated by the parties.” Ante, at 3.

But then comes the O. Henry twist: After cogently explaining why a Rule 11(c)(1)(C) sentence is based on the plea agreement, JUSTICE SOTOMAYOR diverges from that straightforward conclusion and holds that Freeman nevertheless satisfies the threshold requirement in §3582(c)(2).According to her opinion, if a Rule 11(c)(1)(C) “agreement 3 Cite as: 564 U. S. ____ (2011)

ROBERTS, C. J., dissenting

expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment”—or if such use is “evident from the agreement”—then the defendant’s “term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sentence reduction under §3582(c)(2).” Ante, at 1, 6. This exception is in my view as mistaken as the position of the plurality—and basically for the same reasons.

JUSTICE SOTOMAYOR begins the departure from her own rule innocently enough. As she explains, “some (C)agreements may call for the defendant to be sentencedwithin a particular Guidelines sentencing range.” Ante, at

5. In such a case, according to JUSTICE SOTOMAYOR, there can be “no doubt” that the prison term the court imposes is“based on” the agreed-upon sentencing range, and therefore the defendant is eligible for sentence reduction. Ibid.

Whether or not that is true, it provides no support for the next step:

“Similarly, a plea agreement might provide for aspecific term of imprisonment—such as a number ofmonths—but also make clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty. As long as that sentencing range is evident from the agreement itself . . . the term of imprisonment imposed by the court in accordance with thatagreement is ‘based on’ that range.” Ante, at 6.

This category of cases is not “similar” to the first at all.It is one thing to say that a sentence imposed pursuant to an agreement expressly providing that the court willsentence the defendant within an applicable Guidelinesrange is “based on” that range. It is quite another toconclude that an agreement providing for a specific term is “similarly” based on a Guidelines range, simply because the specified term can be said to reflect that range. 4 FREEMAN v. UNITED STATES ROBERTS, C. J., dissenting

According to the concurrence, if the parties simply “consider[ ] the Guidelines” or “negotiate . . . by reference”to them, the defendant is not eligible for a sentence reduction. Ante, at 4. If, however, the agreement sets forth a specific term but it is somehow “clear that the basis for thespecified term is a Guidelines sentencing range,” then thedefendant is eligible for a sentence reduction. Ante, at 6. This head-scratching distinction between negotiating byreference to the Guidelines and using them as a basis for the specified term makes for an unworkable test that canyield only arbitrary results.

The confusion is compounded by the varying standardsin the concurrence. Sometimes the test is whether an agreement “expressly uses” a Guidelines sentencing range, ante, at 1, 6; see ante, at 7 (“explicitly employs”). Other times the test is whether such use is “evident,” ante, at 6, 9; see ante, at 10, n. 9 (“clear”). A third option is whether the agreement “indicate[s] the parties’ intent to base theterm of imprisonment on a particular Guideline range.” Ante, at 7, n. 5 (emphasis added).

The error in the concurring opinion is largely attributable to a mistaken shift in analysis. In the first half of the opinion, the inquiry properly looks to what the judge does: He is, after all, the one who imposes the sentence. After approving the agreement, the judge considers only the fixed term in the agreement, so the sentence he actuallyimposes is not “based on” the Guidelines.

In the second half of the opinion, however, the analysis suddenly shifts, and focuses on the parties: Did they “use” or “employ” the Guidelines in arriving at the term in theiragreement? But §3582(c)(2) is concerned only withwhether a defendant “has been sentenced to a term of imprisonment based on a sentencing range.” Only a courtcan sentence a defendant, so there is no basis for examining why the parties settled on a particular prison term.

This conclusion dovetails with USSG §1B1.10(b)(1)— 5 Cite as: 564 U. S. ____ (2011) ROBERTS, C. J., dissenting

the Sentencing Commission’s policy statement governing whether a defendant is eligible for a reduction under§3582(c)(2). As we explained last Term, §3582(c)(2) requires a district court “to follow the Commission’s instructions in §1B1.10 to determine the prisoner’s eligibility for a sentence modification.” Dillon v. United States, 560 U. S. ___, ___ (2010) (slip op., at 9). According to §1B1.10(b)(1), the court must first determine “the amended guideline range that would have been applicableto the defendant” if the retroactively amended provisionhad been in effect at the time of his sentencing. “In making such determination, the court shall substitute onlythe amendments . . . for the corresponding guideline provisions that were applied when the defendant was sentenced.” USSG §1B1.10(b)(1), p. s. (emphasis added).

As noted, the District Court sentenced Freeman pursuant to the term specified by his plea agreement; it never “applied” a Guidelines provision in imposing his term of imprisonment. The fact that the court may have “use[d]the Guidelines as a yardstick in deciding whether to accept a (C) agreement does not mean that the term of imprisonment imposed by the court is ‘based on’ a particularGuidelines sentencing range.” Ante, at 2–3 (opinion of SOTOMAYOR, J.). Even if the Guidelines were “used” or “employed” by the parties in arriving at the Rule 11(c)(1)(C) sentencing term, they were not “applied whenthe defendant was sentenced.” Once the District Court accepted the agreement, all that was later “applied” was the sentence set forth in that agreement.

JUSTICE SOTOMAYOR is wrong to assert that her standard “does not rewrite the plea agreement” but rather“enforces the agreement’s terms.” Ante, at 7. According tothe concurrence, “[w]hen a (C) agreement explicitly employs a particular Guidelines sentencing range to establishthe term of imprisonment, the agreement itself demonstrates the parties’ intent that the imposed term of im6 FREEMAN v. UNITED STATES

ROBERTS, C. J., dissenting

prisonment will be based on that range,” and therefore subject to reduction if the Commission subsequently lowers that range. Ibid. In this case, JUSTICE SOTOMAYOR concludes that Freeman’s agreement contemplated such areduction, even though the parties had “agree[d] that asentence of 106 months’ incarceration is the appropriatedisposition of this case.” App. 26a.

There is, however, no indication whatever that the parties to the agreement contemplated the prospect of lowered sentencing ranges. And it is fanciful to suppose that the parties would have said “106 months” if what theyreally meant was “a sentence at the lowest end of the applicable Guidelines range.” Cf. App. 25a (parties in this case recommending “a fine at the lowest end of the applicable Guideline Range”). In concluding otherwise, the concurrence “ignore[s] the agreement’s express terms.” Ante, at 7, n. 4.

The reality is that whenever the parties choose a fixed term, there is no way of knowing what that sentence was“based on.” The prosecutor and the defendant could well have had quite different reasons for concluding that 106months was a good deal. Perhaps the prosecutor wanted to devote the limited resources of his office to a different area of criminal activity, rather than try this case. Perhaps the defendant had reason to question the credibilityof one of his key witnesses, and feared a longer sentence if the case went to trial.

Indeed, the fact that there may be uncertainty abouthow to calculate the appropriate Guidelines range could be the basis for agreement on a fixed term in a plea under Rule 11(c)(1)(C). Here the agreement made clear thatthere was some doubt about the Guidelines calculations. See App. 28a (“Both parties reserve the right to object tothe USSG §4A1.1 calculation of defendant’s criminal history”); ibid. (the parties acknowledge that their Guidelines calculations “are not binding upon the Court” and 7 Cite as: 564 U. S. ____ (2011)

ROBERTS, C. J., dissenting

that the “defendant understands the Court will independently calculate the Guidelines at sentencing and defendant may not withdraw the plea of guilty solely because theCourt does not agree with . . . [the] Sentencing Guideline application”).

In addition, parties frequently enter plea agreementsthat reflect prosecutorial decisions not to pursue particular counts. If a defendant faces three counts, and agreesto plead to one if the prosecutor does not pursue the other two, is the sentence reflected in the Rule 11(c)(1)(C)agreement in any sense “based on” the Guidelines sentencing range for the one count to which the defendant pleaded? Surely not. The concurrence tacitly concedes as much when it suggests that an agreement to “drop[ ] acharge or forgo[ ] a future charge” could ultimately begrounds for not reducing the defendant’s sentence. Ante, at 8, n. 6. But what this really shows is a basic flaw in the“based on” test adopted by that opinion.

Finally, JUSTICE SOTOMAYOR’s approach will foster confusion in an area in need of clarity. As noted, courts will be hard pressed to apply the distinction between referring to and relying on a Guidelines range. Other questions abound:

What if the agreement contains a particular Guidelines calculation but the agreement’s stipulated sentence is outside the parties’ predicted Guidelines range? The test in the concurring opinion is whether the agreement “uses”or “employs” a Guidelines sentencing range to establishthe term of imprisonment, ante, at 1, not whether that term falls within the range. In this case, what if the term was 53 months—exactly half the low end of the sentencing range anticipated by the parties? Is it “evident” in that case that the Guidelines were used or employed to establish the agreed-upon sentence?*

——————

* JUSTICE SOTOMAYOR responds that “[i]f the agreement itself made 8 FREEMAN v. UNITED STATES

ROBERTS, C. J., dissenting

What if the plea agreement does not contain any references to the Guidelines—not even the partial and tentative Guidelines calculations in Freeman’s agreement—butthe binding sentence selected by the parties corresponds exactly to the low end of the applicable Guidelines range?Is it “evident” in that case that the agreement is based ona sentencing range?

What if the District Court calculates the applicableGuidelines range differently than the parties? This is no academic hypothetical. See, e.g., United States v. Franklin, 600 F. 3d 893, 896–897 (CA7 2010) (noting that “thedistrict court settled on a higher guidelines range than that contemplated in the [Rule 11(c)(1)(C)] plea agreement”). Is a Rule 11(c)(1)(C) sentence still subject to reduction if the parties relied on the wrong sentencingrange? JUSTICE SOTOMAYOR’s surprising answer is “yes,” see ante, at 9, n. 8, even though the governing Guidelines provision specifies that a defendant is only eligiblefor sentence reduction if the amended Guideline has “the effect of lowering the defendant’s applicable guideline range”—presumably the correct applicable guideline range. See USSG §1B1.10(a)(2), p. s. Relying on error isjust one unforeseen consequence of looking not to thespecified term in a Rule 11(c)(1)(C) agreement, but insteadtrying to reconstruct what led the parties to agree to thatterm in the first place.

This confusion will invite the very thing JUSTICE SOTOMAYOR claims to disavow: a “free-ranging search” bydistrict courts “through the parties’ negotiating history in search of a Guidelines sentencing range that might havebeen relevant to the agreement.” Ante, at 5. This is par—————— clear” that the parties arrived at the 53-month figure by determiningthe sentencing range and then halving the range’s low end—106 months—then the sentence could be reduced. Ante, at 10, n. 9. Does the 53-month figure itself make that clear? What if the figure is 26½ months? 9 Cite as: 564 U. S. ____ (2011)

ROBERTS, C. J., dissenting

ticularly unfortunate given that the whole point of Rule 11(c)(1)(C) agreements is to provide the parties with certainty about sentencing.

* * * As with any negotiation, parties entering a Rule 11(c)(1)(C) plea agreement must take the bitter with the sweet. Because of today’s decision, however, Freeman gets more sweet and the Government more bitter than either side bargained for. But those who will really be left with asour taste after today’s decision are the lower courtscharged with making sense of it going forward. I respectfully dissent.

1 (Slip Opinion) OCTOBER TERM, 2010

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GOODYEAR DUNLOP TIRES OPERATIONS, S. A., ET AL. v. BROWN ET UX., CO-ADMINISTRATORS OFTHE ESTATE OF BROWN, ET AL.

CERTIORARI TO THE COURT OF APPEALS OF NORTH CAROLINA

No. 10–76. Argued January 11, 2011 —Decided June 27, 2011

Respondents, North Carolina residents whose sons died in a bus accident outside Paris, France, filed a suit for wrongful-death damages inNorth Carolina state court. Alleging that the accident was caused bytire failure, they named as defendants Goodyear USA, an Ohio corporation, and petitioners, three Goodyear USA subsidiaries, organizedand operating, respectively, in Luxembourg, Turkey, and France. Petitioners’ tires are manufactured primarily for European and Asianmarkets and differ in size and construction from tires ordinarily sold in the United States. Petitioners are not registered to do business inNorth Carolina; have no place of business, employees, or bank accounts in the State; do not design, manufacture, or advertise theirproducts in the State; and do not solicit business in the State or sellor ship tires to North Carolina customers. Even so, a small percentage of their tires were distributed in North Carolina by other Goodyear USA affiliates. The trial court denied petitioners’ motion todismiss the claims against them for want of personal jurisdiction. The North Carolina Court of Appeals affirmed, concluding that the North Carolina courts had general jurisdiction over petitioners, whose tires had reached the State through “the stream of commerce.”

Held: Petitioners were not amenable to suit in North Carolina on claims unrelated to any activity of petitioners in the forum State.Pp. 6–14.

(a) The Fourteenth Amendment’s Due Process Clause sets the outer boundaries of a state tribunal’s authority to proceed against adefendant. The pathmarking decision of International Shoe Co. v. Washington, 326 U. S. 310, provides that state courts may exercise 2

GOODYEAR DUNLOP TIRES OPERATIONS, S. A.

v. BROWN Syllabus

personal jurisdiction over an out-of-state defendant who has “certainminimum contacts with [the State] such that the maintenance of thesuit does not offend ‘traditional notions of fair play and substantialjustice.’ ” Id., at 316. Endeavoring to give specific content to the “fairplay and substantial justice” concept, the Court in International Shoe classified cases involving out-of-state corporate defendants. First, the Court recognized that jurisdiction could be asserted where thecorporation’s in-state activity is “continuous and systematic” and gave rise to the episode-in-suit. Id., at 317. It also observed that the commission of “single or occasional acts” in a State may be sufficientto render a corporation answerable in that State with respect to thoseacts, though not with respect to matters unrelated to the forum connections. Id., at 318. These two categories compose what is nowknown as “specific jurisdiction.” Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 414, n. 8. International Shoe distinguished from cases that fit within the “specific jurisdiction” categories, “instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suitagainst it on causes of action arising from dealings entirely distinctfrom those activities.” 326 U. S., at 318. Adjudicatory authority so grounded is now called “general jurisdiction.” Helicopteros, 466 U. S., at 414, n. 9. Since International Shoe, this Court’s decisions have elaborated primarily on circumstances that warrant the exercise of specific jurisdiction. In only two decisions postdating International Shoe has this Court considered whether an out-of-state corporate defendant’s in-state contacts were sufficiently “continuous and systematic” to justify the exercise of general jurisdiction over claims unrelated to those contacts: Perkins v. Benguet Consol. Mining Co., 342

U. S. 437; and Helicopteros, 466 U. S. 408. Pp. 6–9.

(b) Petitioners lack “the kind of continuous and systematic general business contacts” necessary to allow North Carolina to entertain asuit against them unrelated to anything that connects them to theState. Helicopteros, 466 U. S., at 416. The stream-of-commerce cases on which the North Carolina court relied relate to exercises of specific jurisdiction in products liability actions, in which a nonresident defendant, acting outside the forum, places in the stream of commerce aproduct that ultimately causes harm inside the forum. Many statelong-arm statutes authorize courts to exercise specific jurisdictionover manufacturers when the events in suit, or some of them, occurred within the forum State. The North Carolina court’s stream-ofcommerce analysis elided the essential difference between casespecific and general jurisdiction. Flow of a manufacturer’s productsinto the forum may bolster an affiliation germane to specific jurisdiction, see, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 3 Cite as: 564 U. S. ____ (2011)

Syllabus

286, 297; but ties serving to bolster the exercise of specific jurisdiction do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant. A corporation’s “continuous activity of some sorts within a state,” International Shoe instructed, “is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.” 326 U. S., at 318.

Measured against Helicopteros and Perkins, North Carolina is not a forum in which it would be permissible to subject petitioners togeneral jurisdiction. In the 1952 Perkins case, general jurisdictionwas appropriately exercised over a Philippine corporation sued inOhio, where the company’s affairs were overseen during World War

II. In Helicopteros, however, the survivors of U. S. citizens killed when a helicopter owned by a Colombian corporation crashed in Peru could not maintain wrongful-death actions against that corporationin Texas, where the company’s contacts “consisted of sending its chief executive officer to Houston for a contract-negotiation session; accepting into its New York bank account checks drawn on a Houston bank; purchasing helicopters, equipment, and training services from [a Texas enterprise]; and sending personnel to [Texas] for training.”466 U. S., at 416. These links to Texas did not “constitute the kind of continuous and systematic general business contacts . . . found to exist in Perkins,” and were insufficient to support the exercise of jurisdiction over a claim that neither “ ‘ar[o]se out of’ . . . no[r] related to” the defendant’s activities in Texas. Id., at 415–416. This Court sees no reason to differentiate from the ties to Texas held insufficient in Helicopteros, the sales of petitioners’ tires sporadically made in North Carolina through intermediaries. Pp. 9–13.

(c) Neither below nor in their brief in opposition to the petition forcertiorari did respondents urge disregard of petitioners’ discretestatus as subsidiaries and treatment of all Goodyear entities as a “unitary business,” so that jurisdiction over the parent would draw in the subsidiaries as well. Respondents have therefore forfeited this contention. Pp. 13–14.

199 N. C. App. 50, 681 S. E. 2d 382, reversed.

GINSBURG, J., delivered the opinion for a unanimous Court. _________________ _________________ 1 Cite as: 564 U. S. ____ (2011)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 10–76

GOODYEAR DUNLOP TIRES OPERATIONS, S. A., ET AL., PETITIONERS v. EDGAR D. BROWN,ET UX., CO-ADMINISTRATORS OF THE ESTATEOF JULIAN DAVID BROWN, ET AL.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF NORTH CAROLINA

[June 27, 2011]

JUSTICE GINSBURG delivered the opinion of the Court.

This case concerns the jurisdiction of state courts overcorporations organized and operating abroad. We address, in particular, this question: Are foreign subsidiaries of aUnited States parent corporation amenable to suit in state court on claims unrelated to any activity of the subsidiaries in the forum State?

A bus accident outside Paris that took the lives of two 13-year-old boys from North Carolina gave rise to the litigation we here consider. Attributing the accident to adefective tire manufactured in Turkey at the plant of aforeign subsidiary of The Goodyear Tire and Rubber Company (Goodyear USA), the boys’ parents commenced an action for damages in a North Carolina state court; theynamed as defendants Goodyear USA, an Ohio corporation,and three of its subsidiaries, organized and operating, respectively, in Turkey, France, and Luxembourg. Goodyear USA, which had plants in North Carolina and regularly engaged in commercial activity there, did not contest 2

GOODYEAR DUNLOP TIRES OPERATIONS, S. A.

v. BROWN Opinion of the Court

the North Carolina court’s jurisdiction over it; GoodyearUSA’s foreign subsidiaries, however, maintained thatNorth Carolina lacked adjudicatory authority over them.

A state court’s assertion of jurisdiction exposes defendants to the State’s coercive power, and is therefore subject to review for compatibility with the FourteenthAmendment’s Due Process Clause. International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945) (assertion of jurisdiction over out-of-state corporation must comply with“‘traditional notions of fair play and substantial justice’” (quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940))).Opinions in the wake of the pathmarking International Shoe decision have differentiated between general or allpurpose jurisdiction, and specific or case-linked jurisdiction. Helicopteros Nacionales de Colombia, S. A. v. Hall, 466 U. S. 408, 414, nn. 8, 9 (1984).

A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations withthe State are so “continuous and systematic” as to render them essentially at home in the forum State. See International Shoe, 326 U. S., at 317. Specific jurisdiction, on the other hand, depends on an “affiliatio[n] between the forumand the underlying controversy,” principally, activity or anoccurrence that takes place in the forum State and istherefore subject to the State’s regulation. von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1136 (1966) (hereinafter vonMehren & Trautman); see Brilmayer et al., A GeneralLook at General Jurisdiction, 66 Texas L. Rev. 721, 782 (1988) (hereinafter Brilmayer). In contrast to general, allpurpose jurisdiction, specific jurisdiction is confined toadjudication of “issues deriving from, or connected with, the very controversy that establishes jurisdiction.” von Mehren & Trautman 1136.

Because the episode-in-suit, the bus accident, occurred 3 Cite as: 564 U. S. ____ (2011)

Opinion of the Court

in France, and the tire alleged to have caused the accident was manufactured and sold abroad, North Carolina courts lacked specific jurisdiction to adjudicate the controversy.The North Carolina Court of Appeals so acknowledged. Brown v. Meter, 199 N. C. App. 50, 57–58, 681 S. E. 2d 382, 388 (2009). Were the foreign subsidiaries nonetheless amenable to general jurisdiction in North Carolina courts? Confusing or blending general and specific jurisdictionalinquiries, the North Carolina courts answered yes. Some of the tires made abroad by Goodyear’s foreign subsidiaries, the North Carolina Court of Appeals stressed, had reached North Carolina through “the stream of commerce”; that connection, the Court of Appeals believed,gave North Carolina courts the handle needed for the exercise of general jurisdiction over the foreign corporations. Id., at 67–68, 681 S. E. 2d, at 394–395.

A connection so limited between the forum and the foreign corporation, we hold, is an inadequate basis for theexercise of general jurisdiction. Such a connection does not establish the “continuous and systematic” affiliation necessary to empower North Carolina courts to entertain claims unrelated to the foreign corporation’s contacts withthe State.

I On April 18, 2004, a bus destined for Charles de Gaulle Airport overturned on a road outside Paris, France. Passengers on the bus were young soccer players from NorthCarolina beginning their journey home. Two 13-year-olds, Julian Brown and Matthew Helms, sustained fatal injuries. The boys’ parents, respondents in this Court, filed asuit for wrongful-death damages in the Superior Court ofOnslow County, North Carolina, in their capacity as administrators of the boys’ estates. Attributing the accidentto a tire that failed when its plies separated, the parents alleged negligence in the “design, construction, testing, 4

GOODYEAR DUNLOP TIRES OPERATIONS, S. A.

v. BROWN Opinion of the Court

and inspection” of the tire. 199 N. C. App., at 51, 681 S. E.2d, at 384 (internal quotation marks omitted).

Goodyear Luxembourg Tires, SA (Goodyear Luxembourg), Goodyear Lastikleri T. A. S. (Goodyear Turkey),and Goodyear Dunlop Tires France, SA (GoodyearFrance), petitioners here, were named as defendants. Incorporated in Luxembourg, Turkey, and France, respectively, petitioners are indirect subsidiaries of GoodyearUSA, an Ohio corporation also named as a defendant in the suit. Petitioners manufacture tires primarily for sale in European and Asian markets. Their tires differ in size and construction from tires ordinarily sold in the United States. They are designed to carry significantly heavier loads, and to serve under road conditions and speed limits in the manufacturers’ primary markets.¹

In contrast to the parent company, Goodyear USA,which does not contest the North Carolina courts’ personaljurisdiction over it, petitioners are not registered to dobusiness in North Carolina. They have no place of business, employees, or bank accounts in North Carolina.They do not design, manufacture, or advertise their products in North Carolina. And they do not solicit business in North Carolina or themselves sell or ship tires to North Carolina customers. Even so, a small percentage of petitioners’ tires (tens of thousands out of tens of millionsmanufactured between 2004 and 2007) were distributed within North Carolina by other Goodyear USA affiliates. These tires were typically custom ordered to equip specialized vehicles such as cement mixers, waste haulers, and boat and horse trailers. Petitioners state, and respondents

—————— ¹Respondents portray Goodyear USA’s structure as a reprehensible effort to “outsource” all manufacturing, and correspondingly, tort litigation, to foreign jurisdictions. See Brief for Respondents 51–53.Yet Turkey, where the tire alleged to have caused the accident-in-suit was made, is hardly a strange location for a facility that primarilysupplies markets in Europe and Asia. 5 Cite as: 564 U. S. ____ (2011)

Opinion of the Court

do not here deny, that the type of tire involved in the accident, a Goodyear Regional RHS tire manufacturedby Goodyear Turkey, was never distributed in NorthCarolina.

Petitioners moved to dismiss the claims against them for want of personal jurisdiction. The trial court denied the motion, and the North Carolina Court of Appeals affirmed. Acknowledging that the claims neither “related to, nor . . . ar[o]se from, [petitioners’] contacts with NorthCarolina,” the Court of Appeals confined its analysis to “general rather than specific jurisdiction,” which the court recognized required a “higher threshold” showing: A defendant must have “continuous and systematic contacts” with the forum. Id., at 58, 681 S. E. 2d, at 388 (internal quotation marks omitted). That threshold was crossed, the court determined, when petitioners placed their tires“in the stream of interstate commerce without any limitation on the extent to which those tires could be sold in North Carolina.” Id., at 67, 681 S. E. 2d, at 394.

Nothing in the record, the court observed, indicatedthat petitioners “took any affirmative action to cause tires which they had manufactured to be shipped into North Carolina.” Id., at 64, 681 S. E. 2d, at 392. The court found, however, that tires made by petitioners reached North Carolina as a consequence of a “highly-organized distribution process” involving other Goodyear USA subsidiaries. Id., at 67, 681 S. E. 2d, at 394. Petitioners, the court noted, made “no attempt to keep these tires from reaching the North Carolina market.” Id., at 66, 681 S. E. 2d, at 393. Indeed, the very tire involved in the accident,the court observed, conformed to tire standards established by the U. S. Department of Transportation and boremarkings required for sale in the United States. Ibid.² As

—————— ²Such markings do not necessarily show that any of the tires weredestined for sale in the United States. To facilitate trade, the Solicitor 6

GOODYEAR DUNLOP TIRES OPERATIONS, S. A.

v. BROWN Opinion of the Court

further support, the court invoked North Carolina’s “interest in providing a forum in which its citizens are able toseek redress for [their] injuries,” and noted the hardshipNorth Carolina plaintiffs would experience “[were they]required to litigate their claims in France,” a country towhich they have no ties. Id., at 68, 681 S. E. 2d, at 394. The North Carolina Supreme Court denied discretionaryreview. Brown v. Meter, 364 N. C. 128, 695 S. E. 2d 756 (2010).

We granted certiorari to decide whether the general jurisdiction the North Carolina courts asserted over petitioners is consistent with the Due Process Clause of the Fourteenth Amendment. 561 U. S. ___ (2010).

II A

The Due Process Clause of the Fourteenth Amendment sets the outer boundaries of a state tribunal’s authority toproceed against a defendant. Shaffer v. Heitner, 433 U. S. 186, 207 (1977). The canonical opinion in this area remains International Shoe, 326 U. S. 310, in which we held that a State may authorize its courts to exercise personal jurisdiction over an out-of-state defendant if the defendanthas “certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Id., at 316 (quoting Meyer, 311 U. S., at 463).

Endeavoring to give specific content to the “fair play andsubstantial justice” concept, the Court in International Shoe classified cases involving out-of-state corporate defendants. First, as in International Shoe itself, jurisdiction unquestionably could be asserted where the corpora

—————— General explained, the United States encourages other countries to“treat compliance with [Department of Transportation] standards, including through use of DOT markings, as evidence that the products are safely manufactured.” Brief for United States as Amicus Curiae 32. 7 Cite as: 564 U. S. ____ (2011)

Opinion of the Court

tion’s in-state activity is “continuous and systematic” and that activity gave rise to the episode-in-suit. 326 U. S., at

317. Further, the Court observed, the commission of certain “single or occasional acts” in a State may be sufficient to render a corporation answerable in that Statewith respect to those acts, though not with respect tomatters unrelated to the forum connections. Id., at 318. The heading courts today use to encompass these two International Shoe categories is “specific jurisdiction.” See von Mehren & Trautman 1144–1163. Adjudicatory authority is “specific” when the suit “aris[es] out of or relate[s] to the defendant’s contacts with the forum.” Helicopteros, 466 U. S., at 414, n. 8.

International Shoe distinguished from cases that fit within the “specific jurisdiction” categories, “instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” 326 U. S., at 318. Adjudicatory authority so grounded is today called “general jurisdiction.” Helicopteros, 466 U. S., at 414, n. 9. For an individual, the paradigm forum for the exercise of general jurisdiction is the individual’s domicile; for acorporation, it is an equivalent place, one in which thecorporation is fairly regarded as at home. See Brilmayer728 (identifying domicile, place of incorporation, andprincipal place of business as “paradig[m]” bases for the exercise of general jurisdiction).

Since International Shoe, this Court’s decisions have elaborated primarily on circumstances that warrant the exercise of specific jurisdiction, particularly in cases involving “single or occasional acts” occurring or having their impact within the forum State. As a rule in these cases, this Court has inquired whether there was “some act by which the defendant purposefully avail[ed] itself ofthe privilege of conducting activities within the forum 8

GOODYEAR DUNLOP TIRES OPERATIONS, S. A.

v. BROWN Opinion of the Court

State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, 357 U. S. 235, 253 (1958). See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286, 287, 297 (1980) (Oklahoma court may not exercise personal jurisdiction “over a nonresident automobile retailer and its wholesale distributor in a products-liabilityaction, when the defendants’ only connection with Oklahoma is the fact that an automobile sold in New York to New York residents became involved in an accident in Oklahoma”); Burger King Corp. v. Rudzewicz, 471 U. S. 462, 474–475 (1985) (franchisor headquartered in Florida may maintain breach-of-contract action in Florida against Michigan franchisees, where agreement contemplated ongoing interactions between franchisees and franchisor’sheadquarters); Asahi Metal Industry Co. v. Superior Court of Cal., Solano Cty., 480 U. S. 102, 105 (1987) (Taiwanese tire manufacturer settled product liability action broughtin California and sought indemnification there from Japanese valve assembly manufacturer; Japanese company’s“mere awareness . . . that the components it manufactured, sold, and delivered outside the United States would reach the forum State in the stream of commerce” held insufficient to permit California court’s adjudication ofTaiwanese company’s cross-complaint); id., at 109 (opinion of O’Connor, J.); id., at 116–117 (Brennan, J., concurringin part and concurring in judgment). See also Twitchell, The Myth of General Jurisdiction, 101 Harv. L. Rev. 610,628 (1988) (in the wake of International Shoe, “specificjurisdiction has become the centerpiece of modern jurisdiction theory, while general jurisdiction plays a reducedrole”).

In only two decisions postdating International Shoe, discussed infra, at 11–13, has this Court considered whether an out-of-state corporate defendant’s in-state contacts were sufficiently “continuous and systematic” to justify the exercise of general jurisdiction over claims 9 Cite as: 564 U. S. ____ (2011) Opinion of the Court

unrelated to those contacts: Perkins v. Benguet Consol. Mining Co., 342 U. S. 437 (1952) (general jurisdictionappropriately exercised over Philippine corporation suedin Ohio, where the company’s affairs were overseen during World War II); and Helicopteros, 466 U. S. 408 (helicopter owned by Colombian corporation crashed in Peru; survivors of U. S. citizens who died in the crash, the Court held, could not maintain wrongful-death actions against theColombian corporation in Texas, for the corporation’shelicopter purchases and purchase-linked activity inTexas were insufficient to subject it to Texas court’s general jurisdiction).

B To justify the exercise of general jurisdiction over petitioners, the North Carolina courts relied on the petitioners’ placement of their tires in the “stream of commerce.”See supra, at 5. The stream-of-commerce metaphor hasbeen invoked frequently in lower court decisions permitting “jurisdiction in products liability cases in which theproduct has traveled through an extensive chain of distribution before reaching the ultimate consumer.” 18 W. Fletcher, Cyclopedia of the Law of Corporations §8640.40,

p. 133 (rev. ed. 2007). Typically, in such cases, a nonresident defendant, acting outside the forum, places in thestream of commerce a product that ultimately causes harm inside the forum. See generally Dayton, PersonalJurisdiction and the Stream of Commerce, 7 Rev. Litigation 239, 262–268 (1988) (discussing origins and evolutionof the stream-of-commerce doctrine).

Many States have enacted long-arm statutes authorizing courts to exercise specific jurisdiction over manufacturers when the events in suit, or some of them, occurred within the forum state. For example, the “Local Injury; Foreign Act” subsection of North Carolina’s long-armstatute authorizes North Carolina courts to exercise per10

GOODYEAR DUNLOP TIRES OPERATIONS, S. A.

v. BROWN Opinion of the Court

sonal jurisdiction in “any action claiming injury to personor property within this State arising out of [the defendant’s] act or omission outside this State,” if, “in addition[,] at or about the time of the injury,” ”[p]roducts . . .manufactured by the defendant were used or consumed,within this State in the ordinary course of trade.” N. C. Gen. Stat. Ann. §1–75.4(4)(b) (Lexis 2009).³ As the North Carolina Court of Appeals recognized, this provision of theState’s long-arm statute “does not apply to this case,” forboth the act alleged to have caused injury (the fabricationof the allegedly defective tire) and its impact (the accident) occurred outside the forum. See 199 N. C. App., at 61,

n. 6, 681 S. E. 2d, at 390, n. 6.⁴

The North Carolina court’s stream-of-commerce analysiselided the essential difference between case-specific andall-purpose (general) jurisdiction. Flow of a manufacturer’s products into the forum, we have explained, may bolster an affiliation germane to specific jurisdiction. See, e.g., World-Wide Volkswagen, 444 U. S., at 297 (where “thesale of a product . . . is not simply an isolated occurrence,but arises from the efforts of the manufacturer or distributor to serve . . . the market for its product in [several]

—————— ³Cf. D. C. Code §13–423(a)(4) (2001) (providing for specific jurisdiction over defendant who “caus[es] tortious injury in the [forum] by an act or omission outside the [forum]” when, in addition, the defendant “derives substantial revenue from goods used or consumed . . . in the [forum]”). ⁴The court instead relied on N. C. Gen. Stat. Ann. §1–75.4(1)(d), see199 N. C. App., at 57, 681 S. E. 2d, at 388, which provides for jurisdiction, “whether the claim arises within or without [the] State,” when thedefendant “[i]s engaged in substantial activity within this State,whether such activity is wholly interstate, intrastate, or otherwise.”This provision, the North Carolina Supreme Court has held, was “intended to make available to the North Carolina courts the full jurisdictional powers permissible under federal due process.” Dillon v. Numismatic Funding Corp., 291 N. C. 674, 676, 231 S. E. 2d 629, 630 (1977). 11 Cite as: 564 U. S. ____ (2011) Opinion of the Court

States, it is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others” (emphasis added)). But ties serving to bolster the exercise of specific jurisdiction do not warrant a determinationthat, based on those ties, the forum has general jurisdiction over a defendant. See, e.g., Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F. 2d 200, 203, n. 5 (CADC 1981) (defendants’ marketing arrangements, although “adequate to permit litigation of claims relating to [their] introduction of . . . wine intothe United States stream of commerce, . . . would not be adequate to support general, ‘all purpose’ adjudicatoryauthority”).

A corporation’s “continuous activity of some sorts withina state,” International Shoe instructed, “is not enough tosupport the demand that the corporation be amenable tosuits unrelated to that activity.” 326 U. S., at 318. Our 1952 decision in Perkins v. Benguet Consol. Mining Co. remains “[t]he textbook case of general jurisdiction appropriately exercised over a foreign corporation that has not consented to suit in the forum.” Donahue v. Far Eastern Air Transport Corp., 652 F. 2d 1032, 1037 (CADC 1981).

Sued in Ohio, the defendant in Perkins was a Philippinemining corporation that had ceased activities in the Philippines during World War II. To the extent that the company was conducting any business during and immediately after the Japanese occupation of the Philippines, itwas doing so in Ohio: the corporation’s president maintained his office there, kept the company files in thatoffice, and supervised from the Ohio office “the necessarilylimited wartime activities of the company.” Perkins, 342

U. S., at 447–448. Although the claim-in-suit did not arise in Ohio, this Court ruled that it would not violate due process for Ohio to adjudicate the controversy. Ibid.; see Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 779–780, 12

GOODYEAR DUNLOP TIRES OPERATIONS, S. A.

v. BROWN Opinion of the Court

n. 11 (1984) (Ohio’s exercise of general jurisdiction waspermissible in Perkins because “Ohio was the corporation’s principal, if temporary, place of business”).

We next addressed the exercise of general jurisdiction over an out-of-state corporation over three decades later,in Helicopteros. In that case, survivors of United States citizens who died in a helicopter crash in Peru instituted wrongful-death actions in a Texas state court against the owner and operator of the helicopter, a Colombian corporation. The Colombian corporation had no place of business in Texas and was not licensed to do business there. “Basically, [the company’s] contacts with Texas consistedof sending its chief executive officer to Houston for a contract-negotiation session; accepting into its New Yorkbank account checks drawn on a Houston bank; purchasing helicopters, equipment, and training services from [aTexas enterprise] for substantial sums; and sending personnel to [Texas] for training.” 466 U. S., at 416. These links to Texas, we determined, did not “constitute the kind of continuous and systematic general business contacts . . . found to exist in Perkins,” and were insufficient to supportthe exercise of jurisdiction over a claim that neither“ar[o]se out of . . . no[r] related to” the defendant’s activities in Texas. Id., at 415–416 (internal quotation marks omitted).

Helicopteros concluded that “mere purchases [made inthe forum State], even if occurring at regular intervals, are not enough to warrant a State’s assertion of [general] jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.” Id., at

418. We see no reason to differentiate from the ties to Texas held insufficient in Helicopteros, the sales of petitioners’ tires sporadically made in North Carolina throughintermediaries. Under the sprawling view of general jurisdiction urged by respondents and embraced by the North Carolina Court of Appeals, any substantial manu13 Cite as: 564 U. S. ____ (2011) Opinion of the Court

facturer or seller of goods would be amenable to suit, onany claim for relief, wherever its products are distributed.But cf. World-Wide Volkswagen, 444 U. S., at 296 (everyseller of chattels does not, by virtue of the sale, “appoint the chattel his agent for service of process”).

Measured against Helicopteros and Perkins, North Carolina is not a forum in which it would be permissible tosubject petitioners to general jurisdiction. Unlike the defendant in Perkins, whose sole wartime business activity was conducted in Ohio, petitioners are in no sense athome in North Carolina. Their attenuated connections to the State, see supra, at 4–5, fall far short of the “the continuous and systematic general business contacts” necessary to empower North Carolina to entertain suit against them on claims unrelated to anything that connects themto the State. Helicopteros, 466 U. S., at 416.⁵

C Respondents belatedly assert a “single enterprise” theory, asking us to consolidate petitioners’ ties to North Carolina with those of Goodyear USA and other Goodyearentities. See Brief for Respondents 44–50. In effect,

—————— ⁵As earlier noted, see supra, at 6, the North Carolina Court of Appeals invoked the State’s “well-recognized interest in providing a forumin which its citizens are able to seek redress for injuries that they havesustained.” 199 N. C. App., at 68, 681 S. E. 2d, at 394. But “[g]eneraljurisdiction to adjudicate has in [United States] practice never been based on the plaintiff’s relationship to the forum. There is nothing in [our] law comparable to . . . article 14 of the Civil Code of France (1804)under which the French nationality of the plaintiff is a sufficient ground for jurisdiction.” von Mehren & Trautman 1137; see Clermont & Palmer, Exorbitant Jurisdiction, 58 Me. L. Rev. 474, 492–495 (2006)(French law permitting plaintiff-based jurisdiction is rarely invokedin the absence of other supporting factors). When a defendant’s act outside the forum causes injury in the forum, by contrast, a plaintiff’sresidence in the forum may strengthen the case for the exercise of specific jurisdiction. See Calder v. Jones, 465 U. S. 783, 788 (1984); von Mehren & Trautman 1167–1173. 14

GOODYEAR DUNLOP TIRES OPERATIONS, S. A.

v. BROWN Opinion of the Court

respondents would have us pierce Goodyear corporate veils, at least for jurisdictional purposes. See Brilmayer &Paisley, Personal Jurisdiction and Substantive Legal Relations: Corporations, Conspiracies, and Agency, 74 Cal.

L. Rev. 1, 14, 29–30 (1986) (merging parent and subsidiary for jurisdictional purposes requires an inquiry “comparable to the corporate law question of piercing the corporate veil”). But see 199 N. C. App., at 64, 681 S. E. 2d, at 392(North Carolina Court of Appeals understood that petitioners are “separate corporate entities . . . not directly responsible for the presence in North Carolina of tires thatthey had manufactured”). Neither below nor in their brief in opposition to the petition for certiorari did respondentsurge disregard of petitioners’ discrete status as subsidiaries and treatment of all Goodyear entities as a “unitarybusiness,” so that jurisdiction over the parent would drawin the subsidiaries as well.⁶ Brief for Respondents 44. Respondents have therefore forfeited this contention, and we do not address it. This Court’s Rule 15.2; Granite Rock Co. v. Teamsters, 561 U. S. ___, ___ (2010) (slip op., at 16).

* * * For the reasons stated, the judgment of the North Carolina Court of Appeals is

Reversed.

—————— ⁶In the brief they filed in the North Carolina Court of Appeals, respondents stated that petitioners were part of an “integrated worldwide efforts to design, manufacture, market and sell their tires in the United States, including in North Carolina.” App. 485 (emphasis added). See also Brief in Opposition 18. Read in context, that assertion was offered in support of a narrower proposition: The distribution ofpetitioners’ tires in North Carolina, respondents maintained, demonstrated petitioners’ own “calculated and deliberate efforts to takeadvantage of the North Carolina market.” App. 485. As already explained, see supra, at 12–13, even regularly occurring sales of aproduct in a State do not justify the exercise of jurisdiction over a claim unrelated to those sales.

1 Cite as: 564 U. S. ____ (2011) Per Curiam

SUPREME COURT OF THE UNITED STATES

UNITED STATES v. JUVENILE MALE

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 09–940 Decided June 27, 2011

PER CURIAM.

The Court of Appeals in this case held that the requirements of the Sex Offender Registration and Notification Act (SORNA), 42 U. S. C. §16901 et seq., violate the Ex Post Facto Clause of the Constitution, Art. I, §9, cl. 3,when applied to juveniles adjudicated as delinquent before SORNA’s enactment. We conclude that the Court of Appeals had no authority to enter that judgment because it had no live controversy before it.

I Respondent Juvenile Male was 13 years old when hebegan sexually abusing a 10-year-old boy on the Fort Belknap Indian Reservation in Montana. The abuse continued for approximately two years, until respondent was 15 and his victim 12. In 2005, respondent was charged in the District of Montana with delinquency under the Federal Juvenile Delinquency Act, 18 U. S. C.§5031 et seq. Respondent pleaded “true” to charges thathe knowingly engaged in sexual acts with a child under 12, which would have been a federal crime had respondent been an adult. See §§2241(c), 1153(a). The court sentenced respondent to two years of juvenile detention,followed by juvenile supervision until his 21st birthday.Respondent was to spend the first six months of his postconfinement supervision in a prerelease center. See United States v. Juvenile Male, 560 U. S. ___, ___ (2010) (per curiam) (slip op., at 1). In 2006, while respondent remained in juvenile deten2 UNITED STATES v. JUVENILE MALE

Per Curiam

tion, Congress enacted SORNA. 120 Stat. 590. Under SORNA, a sex offender must “register, and keep the registration current, in each jurisdiction” where the offender resides, is employed, or attends school. 42 U. S. C. §16913(a). This registration requirement extends to certain juveniles adjudicated as delinquent for serious sexoffenses. §16911(8). In addition, an interim rule issued by the Attorney General mandates that SORNA’s requirements apply retroactively to sex offenders convicted before the statute’s enactment. 72 Fed. Reg. 8897 (2007) (codified at 28 CFR pt. 72 (2010)); see 42 U. S. C. §16913(d).¹

In July 2007, the District Court determined that respondent had failed to comply with the requirements ofhis prerelease program. The court revoked respondent’sjuvenile supervision, imposed an additional 6-month term of detention, and ordered that the detention be followed by supervision until respondent’s 21st birthday. 560 U. S., at ___ (slip op., at 1–2). At the Government’s urging, and over respondent’s objection, the court also imposed a “special conditio[n]” of supervision requiring respondent to register and keep current as a sex offender. Id., at ___ (slip op., at 2) (internal quotation marks omitted); see Pet.for Cert. 9 (noting the Government’s argument in the District Court that respondent should be required to register under SORNA “‘at least until’” his release from juvenile supervision on his 21st birthday).

On appeal to the Ninth Circuit, respondent challenged this “special conditio[n]” of supervision. He requested thatthe Court of Appeals “reverse th[e] portion of his sentence

—————— ¹On December 29, 2010, the Attorney General finalized the interimrule. See 75 Fed. Reg. 81849. In Reynolds v. United States, No. 10– 6549, this Court granted certiorari on the question whether sex offenders convicted before the enactment of SORNA have standing to challenge the validity of the Attorney General’s interim rule. 562 U. S. ___ (2011); Pet. for Cert. in Reynolds, p. i. Reynolds is slated to be heard next Term. 3 Cite as: 564 U. S. ____ (2011)

Per Curiam

requiring Sex Offender Registration and remand with instructions that the district court . . . strik[e] Sex Offender Registration as a condition of juvenile supervision.” Opening Brief for Defendant-Appellant in No. 07–30290 (CA9), p. 25. Then, in May 2008, with his appeal stillpending in the Ninth Circuit, respondent turned 21, and the juvenile-supervision order requiring him to register as a sex offender expired. 560 U. S., at ___ (slip op., at 2).

Over a year after respondent’s 21st birthday, the Court of Appeals handed down its decision. 581 F. 3d 977 (CA92009), amended, 590 F. 3d 924 (2010). No party had raised any issue of mootness in the Ninth Circuit, and the Court of Appeals did not address the issue sua sponte. The court’s opinion discussed only the merits and concluded that applying SORNA to juvenile delinquents who committed their offenses “before SORNA’s passage violates the Ex Post Facto Clause.” Id., at 927. On that basis, the court vacated the District Court’s condition of supervision requiring sex-offender registration and reporting. Id., at 942. The United States petitioned for a writ of certiorari.

While that petition was pending, this Court entered a per curiam opinion in this case certifying a preliminary question of Montana law to the Montana Supreme Court. 560 U. S. ___ (2010). The opinion noted that a “threshold issue of mootness” might prevent us from reviewing thedecision below on the merits. Id., at ___ (slip op., at 2). We explained that, because respondent is “no longer . . .subject” to the District Court’s “sex-offender-registrationconditions,” respondent must “show that a decision invalidating” those conditions “would be sufficiently likely toredress ‘collateral consequences adequate to meet ArticleIII’s injury-in-fact requirement.’” Id., at ___ (slip op., at2–3) (quoting Spencer v. Kemna, 523 U. S. 1, 14 (1998)). We noted that by the time of the Ninth Circuit’s decision, “respondent had become registered as a sex offender in 4 UNITED STATES v. JUVENILE MALE Per Curiam

Montana.” 560 U. S., at ___ (slip op., at 3) (internal quotation marks omitted). Thus, “[p]erhaps the most likelypotential ‘collateral consequenc[e]’ that might be remediedby a judgment in respondent’s favor is the requirement that respondent remain registered as a sex offender under Montana law.” Ibid. In order to ascertain whether a decision invalidating the District Court’s registrationconditions would enable respondent to remove his name from the Montana sex-offender registry, the Court certified the following question to the Montana SupremeCourt:

“Is respondent’s duty to remain registered as a sexoffender under Montana law contingent upon the validity of the conditions of his now-expired federaljuvenile-supervision order that required him to register as a sex offender, or is the duty an independent requirement of Montana law that is unaffected by the validity or invalidity of the federal juvenilesupervision conditions?” Id., at ___ (slip op., at 3) (citations omitted).

The Montana Supreme Court has now responded to ourcertified question. See United States v. Juvenile Male, ___

P. 3d ___, 2011 WL 2162807 (2011). Its answer is that respondent’s “state law duty to remain registered as a sexoffender is not contingent upon the validity of the conditions of his federal supervision order, but is an independent requirement of Montana law.” Id., at ___, 2011 WL 2162807,*1.

II It is a basic principle of Article III that a justiciable caseor controversy must remain “extant at all stages of review,not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U. S. 43, 67 (1997)(internal quotation marks omitted). “[T]hroughout the 5 Cite as: 564 U. S. ____ (2011) Per Curiam

litigation,” the party seeking relief “‘must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’” Spencer, supra, at 7 (quoting Lewis v. Continental Bank Corp., 494 U. S. 472, 477 (1990)).

In criminal cases, this requirement means that a defendant wishing to continue his appeals after the expiration of his sentence must suffer some “continuing injury” or“collateral consequence” sufficient to satisfy Article III.See Spencer, 523 U. S., at 7–8. When the defendant challenges his underlying conviction, this Court’s cases have long presumed the existence of collateral consequences. Id., at 8; see Sibron v. New York, 392 U. S. 40, 55–56 (1968). But when a defendant challenges only an expired sentence, no such presumption applies, and the defendantmust bear the burden of identifying some ongoing “collateral consequenc[e]” that is “traceable” to the challengedportion of the sentence and “likely to be redressed by a favorable judicial decision.” See Spencer, supra, at 7, 14.

At the time of the Ninth Circuit’s decision in this case, the District Court’s order of juvenile supervision had expired, and respondent was no longer subject to the sexoffender-registration conditions that he sought to challenge on appeal. 560 U. S., at ___ (slip op., at 2). As a result, respondent’s challenge was moot before the NinthCircuit unless he could “show that a decision invalidating” the District Court’s order would likely redress some collateral consequence of the registration conditions. Id., at ___ (slip op., at 2–3) (citing Spencer, supra, at 14).

As we noted in our prior opinion, one “potential collateral consequence that might be remedied” by an order invalidating the registration conditions “is the requirement that respondent remain registered” under Montanalaw. 560 U. S., at ___ (slip op., at 3) (internal quotation marks and brackets omitted). But as the Montana Supreme Court has now clarified, respondent’s “state law 6 UNITED STATES v. JUVENILE MALE Per Curiam

duty to remain registered as a sex offender is not contingent upon the validity of the conditions of his federal supervision order,” 2011 WL 2162807, *1, and continues to apply regardless of the outcome in this case. True, a favorable decision in this case might serve as a usefulprecedent for respondent in a hypothetical lawsuit challenging Montana’s registration requirement on ex post facto grounds. But this possible, indirect benefit in a future lawsuit cannot save this case from mootness. See Camreta v. Greene, 563 U. S. ___, ___ (2011) (slip op., at 16); Commodity Futures Trading Comm’n v. Board of Trade of Chicago, 701 F. 2d 653, 656 (CA7 1989) (Posner, J.) (“[O]ne can never be certain that findings made in a decision concluding one lawsuit will not some day . . . control the outcome of another suit. But if that were enough to avoid mootness, no case would ever be moot”).

Respondent also argues that this case “cannot be considered moot in any practical sense” because, under current law, respondent may have “an independent duty to register as a sex offender” under SORNA itself. Brief in Opposition 6.² But the duty to register under SORNA is not a consequence—collateral or otherwise—of the District Court’s special conditions of supervision. The statutoryduty to register is, as respondent notes, an obligation that exists “independent” of those conditions. That continuingobligation might provide grounds for a pre-enforcement challenge to SORNA’s registration requirements. It does not, however, render the current controversy regardingthe validity of respondent’s sentence any less moot.

Respondent further argues that this case falls within —————— ²See 42 U. S. C. §16911(8) (SORNA applicable if the juvenile was “14years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse(as described in section 2241 of title 18)”); 72 Fed. Reg. 8897 (codified at28 CFR pt. 72) (SORNA’s requirements extend to sex offenders convicted before the statute’s enactment). 7 Cite as: 564 U. S. ____ (2011)

Per Curiam

the established exception to mootness for disputes that are “‘capable of repetition, yet evading review.’” Id., at 8 (quoting Weinstein v. Bradford, 423 U. S. 147, 148–149 (1975) (per curiam)). This exception, however, appliesonly where “(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that thesame complaining party [will] be subject to the sameaction again.” Spencer, supra, at 17 (internal quotation marks omitted). At the very least, respondent cannot satisfy the second of these requirements. He has now turned 21, and he will never again be subject to an order imposing special conditions of juvenile supervision. See, e.g., DeFunis v. Odegaard, 416 U. S. 312 (1974) (per curiam). The capable-of-repetition exception to mootnessthus does not apply, and the Ninth Circuit lackedthe authority under Article III to decide this case on the merits.

The petition for a writ of certiorari and respondent’smotion to proceed in forma pauperis are granted. The judgment of the Court of Appeals is vacated, and the case is remanded with instructions to dismiss the appeal.

It is so ordered.

JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR would remand the case to the Ninth Circuit for that court’s consideration of mootness in the first instance.

JUSTICE KAGAN took no part in the consideration or decision of this case.

INTRODUCTION

Over the past several years progress has been made in reducing the harsh sentences for crack cocaine offenses. Most recently, on August 3, 2010 the Fair Sentencing Act of 2010 was signed into law, reducing to 18 to 1 the sentencing ratio amount of powder cocaine versus crack cocaine that triggers the same sentence. The legislation also eliminates the mandatory minimum for simple possession of crack. On November 1, 2007, the Sentencing Commission amended the crack guidelines, lowering the penalties for most crack cocaine offenses in USSG §2D1.1 by two levels. On December 11, 2007, the Commission voted to make the amended guidelines retroactive to cases sentenced before November 1, 2007, with an effective date of March 3, 2008. The Commission also significantly modified USSG §1B1.10, which addresses the retroactive application of amendments. Through an amendment effective May 1, 2008 (Amendment 715), the Commission further modified USSG §2D1.1, revising the way in which combined offense levels are determined in cases involving crack and other drugs. The amendment, which was also made retroactive, provides that 1 gram of cocaine base equals 20 kilograms of marijuana and provides for a two-level reduction in the combined offense level for polydrug cases unless certain exceptions apply. The resources on this page help explain the new law as well as the application of the 2007 crack cocaine guidelines.

COMBATING DISPARITY IN CRACK/POWDER COCAINE SENTENCING

Legislative Developments Historic Crack Reform Law Enacted: On August 3, 2010 President Obama signed the Fair Sentencing Act of 2010, reducing sentences for crack cocaine offenses. The 100 to 1 sentencing ratio has been reduced to 18 to 1. Twenty-eight grams of crack cocaine will now trigger a five-year prison sentence and 280 grams of crack will trigger a ten-year sentence. The five-year mandatory minimum for simple possession of crack cocaine has also been eliminated. The Fair Sentencing Act does not appear to apply retroactively. The Sentencing Commission has issued proposed amendments to implement the directives of the new legislation. The notice and comment period for the proposed amendments is 30 days, to accommodate the Act’s mandate that the Commission promulgate temporary amendments by November 1, 2010. For details on the Act, including the issue of retroactivity, see the FAMM website and the Sentencing Law and Policy Blog. Also, this sample pleading may be helpful in arguing for application of the Act to pending cases with offenses committed before August 3, 2010. Testimony of Assistant United States Attorney General Lanny Breuer Supporting Elimination of Crack/Powder Disparity (April 30, 2009) In testimony before the Senate Judiciary Subcommittee on Crime and Drugs yesterday, Assistant United States Attorney General Lanny Breuer declared that “Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine.” This is the first time that the Department of Justice has supported equalization of cocaine sentencing. Noting that a complete end to the sentencing disparity cannot occur without Congressional action, Mr. Breuer offered hope for defendants currently facing sentencing for crack cocaine offenses: [W]e recognize that federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio. Our prosecutors will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and our prosecutors will bring the relevant case-specific facts to the courts’ attention. Mr. Breuer was one of several witnesses who testified at the April 30th hearing on “Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity.” On May 21, 2009, Mr. Breuer reiterated the Administration’s position before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security’s Hearing on: Unfairness in Federal Cocaine Sentencing: Is it Time to Crack the 100 to 1 Disparity? Joint Statement of Thomas W. Hillier, II and Jon Sands at the April 29, 2009 U.S. Senate Hearing on Restoring Fairness to Sentencing: Addressing the Crack-Powder Disparity Thomas W. Hillier, II, Federal Public Defender, Western District of Washington, Chair, Federal Defender Legislative Expert Panel; Jon Sands, Federal Public Defender, District of Arizona, Federal Defender Sentencing Guidelines Committee, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee This testimony urges the following reforms: (1) penalties for offenses involving the same quantity of crack and powder cocaine should be equalized at a level no greater than the current level for powder cocaine; (2) differences among offenses and offenders should be taken into account by the sentencing judge in the individual case, and aggravating circumstances should not be built into every sentence for crack cocaine; (3) the mandatory minimum for simple possession of crack cocaine should be repealed; (4) mandatory minimums should be repealed; (5) recidivist sentencing enhancements should be narrowly tailored to minimize their disparate impact on people of color; (6) enhanced penalties for drug distribution near protected zones should be repealed. Statement of A.J. Kramer at the February 12, 2008 U.S. Senate Hearing on Federal Cocaine Sentencing Laws: Reforming the 100- to-1 Crack/Powder Disparity A.J. Kramer, Federal Defender, District of the District of Columbia, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee This testimony urges Congress to make the following reforms: equalize the penalties for crack and powder cocaine at the current powder cocaine quantity levels; direct the USSC to review and, if appropriate, amend the guidelines applicable to all drug types, to account for aggravating and mitigating circumstances that may or may not be present in individual cases; repeal the mandatory minimum for simple possession of crack cocaine; repeal the mandatory minimum for all drug offenses; establish a pilot program for federal substance abuse courts; authorize the appropriation of additional funds for the defense of drug trafficking cases in the event Congress authorizes increased salaries and expenses for the prosecution of such cases. In A.J. Kramer’s Supplemental Statement he also addresses DOJ’s arguments against retroactive application of the crack cocaine amendments and refutes DOJ claims regarding the rates of violence and recidivism of crack cocaine offenders. Statement of Michael S. Nachmanoff at the February 26, 2008 U.S. House of Representatives Hearing – Cracked Justice: Addressing the Unfairness in Cocaine Sentencing Michael S. Nachmanoff, Federal Defender, Eastern District of Virginia, on behalf of the Federal Public and Community Defenders, before the Judiciary Committee of the House of Representatives Subcommittee on Crime, Terrorism and Homeland Security This testimony provides additional support and statistics for many of the same arguments made in A.J. Kramer’s Testimony & Supplemental Testimony (described above on this page) before the Senate Subcommittee on Crime and Drugs of the Senate Judiciary Committee. DOJ and USSC Support of Equalization DOJ Memo of May 1, 2009 on Department Policies and Procedures Concerning Sentencing for Crack Cocaine Offenses This memo from the Deputy Attorney General to all United States Attorneys directs prosecutors to “inform courts that the Administration believes Congress and the Commission should eliminate the crack/powder disparity, but that Congress has not yet determined whether or how to achieve a more appropriate sentencing scheme for crack and powder offenses. Until Congress acts, courts must exercise their discretion under existing case law to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a). Prosecutors should be governed by the facts and circumstances of individual cases and existing law. They may indicate that they will not object to a reasonable variance in an average case.” 2007 USSC Report to Congress on Cocaine and Federal Sentencing Policy In this report, the Commission urges reform of the crack cocaine sentencing laws. Facts and arguments contained in the report may be very useful to practitioners defending crack cocaine cases.

ANALYSIS OF THE 2007 CRACK COCAINE GUIDELINE AMENDMENTS

Mathematical Anomalies Resulting from Drug Equivalency and Quantity Tables When the USSC amended the crack cocaine guideline to reduce the base offense levels in November 2007, two separate types of mathematical anomalies resulted: (1) within range-anomalies and differing ratios between crack and powder cocaine in the drug quantity table; and (2) false equivalencies in poly-drug cases resulting from a new crack-to-marijuana equivalency table, resulting in base offense levels no different than pre-amendment levels. The first of these anomalies remains. With Amendment 715, effective May 1, 2008, the Commission remedied the second of these anomalies. Present Anomalies Resulting from Drug Quantity Table: Currently, the lowest ratios incorporated into the amended Drug Quantity Table of §2D1.1 only operate at base offense level 26. This results in within range-anomalies and wildly disparate ratios between crack and powder cocaine. See Kimbrough v. United States, 128 S.Ct. 558, 573 (2007)(“[a]s a result of the 2007 amendment,. . .the Guidelines now advance a crack/powder ratio that varies (at different offense levels) between 25 to 1 and 80 to 1″). When the Commission promulgates a guideline that is based on “unsound judgment,” such as the arbitrary crack/powder ratios animating the drug quantity table, courts may exercise discretion to reject that provision. See Rita v. United States, 127 S.Ct. 2456, 2468 (2007); Spears v. United States, _ S.Ct._, 2009 WL 129044 (Jan. 21, 2008) (per curiam) (reaffirming holding in Kimbrough that sentencing judges are entitled to reject and vary from crack cocaine guidelines based on policy disagreements, i.e., that 100:1 crack/powder ratio creates unwarranted disparity); see also U.S. v. Taylor, 586 F. Supp. 2d 1065, 1069. (E.D.Wis. Oct. 29, 2008) (finding that continued flaws and disparity in crack to powder ratio supports non-guideline sentence where had defendant possessed only powder cocaine, his base offense level would have been 22 rather than 30, and his range 46-57 months rather than 108-135). This analysis should find support in the new legislation that reduces the disparity to 18:1. For a more thorough discussion of present anomalies and suggestions on how to argue against unwarranted disparity still existing between the guidelines treatment of crack and powder cocaine offenses see Good Math to Fight the Bad Math: Avoiding Unwarranted Disparity by Applying the Commission’s Lowest Accepted Ratios to All Offense Levels. Remedy to False Equivalencies in Poly-Drug Cases: Through amendment 715, the Commission modified the Drug Equivalency Tables in Application Note 10(E) of §2D1.1, to provide that 1 gram of cocaine base equals 20 kilograms of marijuana. It also amended Application Note 10(D) to provide for a two level reduction to the combined offense level for a case involving crack and one or more other drugs, subject to some exclusions. A corresponding amendment to §1B1.10 renders the change to §2D1.1 retroactive. Attorneys who are challenging §2D1.1 on its face may wish to study the history of the prior mathematical problems with the equivalency table.

RETROACTIVE APPLICATION OF THE 2007 CRACK COCAINE GUIDELINE AMENDMENTS

Guidance to CJA Panel Attorneys Sample Motions, Briefs, Petitions and Orders Chart Comparing Amended Version of USSG §1B1.10 with Previous Version by National Federal Defender Sentencing Resource Counsel This chart compares the November 1, 2007 amended version of USSG §1B1.10 against the previous version, pointing out new potential limitations on eligibility for relief. For additional comparisons of the previous and amended versions of USSG §1B1.10 see Redline Version of §1B1.10, Old Version of §1B1.10 and Amended Version of §1B1.10. Supreme Court Holds That Booker Does Not Apply to Resentencings Under 18 U.S.C. § 3582 In Dillon v. United States (No. 09-6338), issued on June 17, 2010, the Court held that Booker does not apply to sentencing modifications under 18 U.S.C. § 3582(c)(2). Percy Dillon had moved for a sentence reduction after the crack cocaine guidelines were amended, arguing both for the two-level reduction set forth in the amended guidelines as well as a sentence below the amended guideline range based on application of the 3553(a) factors. The Third Circuit held that Booker did not apply to section 3582 sentencing modifications; instead, the court treated the amended guideline range as mandatory and held that the defendant was only eligible for the two-level reduction. In affirming the Third Circuit’s judgment, the Supreme Court first determined that “Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Based on this determination, “we conclude that proceedings under that section do not implicate the interests identified in Booker.” For further analysis of Dillon see this SCOTUSblog post. For briefs filed in the case see SCOTUSwiki. For orders cited within petitioner’s reply brief see fact-finding orders and appointment of counsel orders. Commission Clarifies Meaning of USSG §1B1.10(b)(2)(B): Clients Who Received Non-Guideline Sentence Under Booker Still Eligible for Crack Retroactivity Sentence Reduction The amended guideline retroactivity policy statement, USSG §1B1.10, states at §1B1.10(b)(2)(B) that “if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, a further reduction generally would not be appropriate.” This appears to suggest that clients are not entitled to relief under the amendment if they received a non-guideline sentence under Booker. However, Sentencing Resource Counsel, as well as many Federal Defenders, report that at the Crack Summits in Charlotte and St. Louis, and at the Defender conference in Seattle, the Commission explained that §1B1.10(b)(2)(B) applies only if the original sentencing judge did not consider the guidelines at all. This acknowledgment is good news because there should be no instances in which judges ignored the guidelines. A sentencing judge must consider the guidelines, even if she then rejects them as unsound policy, and to do otherwise is reversible error under Gall v. United States, 128 S.Ct. 586, 596 (2007); Kimbrough v. United States, 128 S.Ct. 558, 564, 570 (2007); Rita v. United States, 127 S.Ct. 2456, 2465, 2468 (2007); Booker, 543 U.S. 220, 245-46 (2005). For comments relevant to this issue made at the St. Louis Crack Summit, view the Transcript of Portions of the Crack Amendment Retroactivity Summit. Crack Retroactivity: Questions, Answers, Caselaw, Argument Outlines (February 18, 2008) by Federal Public & Community Defenders This memorandum addresses a variety of procedural and substantive issues arising in crack retroactivity cases including: the right to counsel; the right to a hearing and for the defendant to be present; whether a court must order a new presentence report upon motion; whether a court may amend a sentence under § 3582(c)(2) where the original sentence was imposed pursuant to a binding plea agreement; application of §3582(c)(2) to defendants who originally received a non-guideline sentence; application of safety valve or the substantial assistance statute in §3582(c)(2) proceedings; application of §3582(c)(2) relief to career offenders; relief where the defendant was incarcerated beyond the expiration of his sentence under the amended guideline range; and whether a court may impose a sentence below the minimum of the amended guideline range. For a more recent update on several issues raised in this article, see Crack Retroactivity Caselaw (May 11, 2009). For prior articles raising similar issues, see Sentence Reductions Under the Retroactive Crack Amendment , Selected Retroactivity Caselaw, Retroactive Crack Amendment: Practice Tips and Other Lessons Learned in Charlotte and Crack Summit II: Practice Tips and Lessons Learned in St. Louis. Appointment of Counsel in Crack Retroactivity Cases (June 25, 2008) by the Training Branch of the Office of Defender Services This memo to the participants of the National Sentencing Policy Institute presents ten reasons why counsel should be appointed to handle § 3582(c)(2) motions. For a prior memorandum addressing this issue, see Providing Counsel to All Potentially Eligible Beneficiaries of the Retroactive Crack Guideline Amendment Makes Sense and Is Constitutionally Required (by National Federal Defender Sentencing Resource Counsel) and Effective, Efficient, and Fair Implementation of the Retroactive Amendment. BOP Communications Affecting Inmates Eligible for Sentence Reductions Under the Amended Crack Cocaine Guidelines Letter from Defenders to the United States Sentencing Commission (November 21, 2007) This letter outlines the Defender community’s opposition to the Commission’s decision to amend USSG §1B1.10 (concerning retroactive application of amendments). Practitioners may find this letter useful in arguing, for example, that courts are not bound by the limitations set forth in the amendments to USSG §1B1.10. Supplemental Statement of A.J. Kramer for the February 12, 2008 U.S. Senate Hearing on Federal Cocaine Sentencing Laws: Reforming the 100- to-1 Crack/Powder Disparity A.J. Kramer, Federal Defender, District of the District of Columbia, on behalf of the Federal Public and Community Defenders, before the Subcommittee on Crime and Drugs of the Senate Judiciary Committee This supplemental testimony responds to several DOJ assertions about retroactive application of the crack cocaine amendments, and corrects DOJ inaccuracies concerning alleged “dangerousness” of defendants convicted of crack cocaine offenses. It includes statistics showing lack of violence and recidivism in crack cocaine cases, urges judicial discretion, and directly contradicts DOJ testimony. Practitioners can use this supplemental statement, as well as A.J. Kramer’s original testimony, and the testimony of Michael Nachmanoff before the House, when disputing prosecutorial allegations that crack cocaine offenses, and those who are convicted of them, are “dangerous.”

HELPFUL LINKS

Families Against Mandatory Minimums Check FAMM’s web site for updated information on legislative developments regarding punishment for cocaine related offenses. FJC Crack Cocaine Retroactivity Guideline Information Exchange The Federal Judicial Center hosts this intranet web page to provide a forum for sharing information and ideas on policy and practice with regard to crack cocaine sentencing guideline retroactivity. Those with access to the site include all federal court judges and employees, federal defenders, personnel from the Administrative Office of the U.S. Courts (such as Probation), the Sentencing Commission and the Federal Judicial Center.

Office of Defender Services/Training Branch, Administrative Office of the United States Courts * One Columbus Circle, N.E. * Suite G-430 * Washington, DC 20544 Phone (202) 502-2900 * Hotline (800) 788-9908 * Fax (202) 502-2911