UNITED STATES of America, Appellee, v. Corey KORNEGAY, Defendant-Appellant.

No. 08-4925-cr.United States Court of Appeals, Second Circuit.
December 21, 2009.

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[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a September 25, 2008 order of the United States District Court for the District of Vermont (J. Garvan Murtha Judge).

UPON CONSIDERATION WHERE-OF, IT IS HEREBY ORDERED,ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Michael L. Desautels, Office of the Federal Public Defender, District of Vermont, Burlington, VT, for Appellant.

Paul J. Van de Graaf, Acting United States Attorney, and Gregory L. Waples and William B. Darrow, Assistant United States Attorneys, United States Attorney’s Office, District of Vermont, Burlington, VT, for Appellee.

PRESENT: GUIDO CALABRESI, JOSÉ A. CABRANES, B.D. PARKER, Circuit Judges.

SUMMARY ORDER
Appellant Corey Kornegay entered into a so-called “binding” plea agreement with the United States under Federal Rule of Criminal Procedure 11(c)(1)(C) and, in accordance with that agreement, pleaded guilty in the District Court to crimes relating to the distribution of crack cocaine. The District Court accepted the Rule 11(c)(1)(C) agreement and adhered to the terms of the agreement when calculating appellant’s Guidelines sentencing range. See generally United States v. Cunavelis, 969 F.2d 1419, 1422-23 (2d Cir. 1992). The District Court calculated a Guidelines range of 78-97 months and imposed, principally, two concurrent 84-month sentences. Appellant did not appeal his sentence.

Following appellant’s conviction, the United States Sentencing Commission instituted a two-level, retroactive reduction to the Guidelines offense level for crimes relating to crack cocaine See United States v. Main, 579 F.3d 200, 202 (2d Cir. 2009). Appellant then moved in the District Court for a reduction of his sentence under 18 U.S.C. § 3582(c)(2), which provides that a court may modify a term of imprisonment “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.” The District Court denied appellant’s motion.

On appeal, appellant claims that the District Court erred by declining to reduce his sentence under 18 U.S.C. § 3582(c)(2). We disagree and affirm the District Court’s order.

The transcript of appellant’s sentencing hearing shows that the District Court calculated appellant’s Guidelines range not by undertaking an independent analysis under the Guidelines but by adhering strictly to the terms of the Rule 11(c)(1)(C) plea agreement. For example, the District

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Court accepted the plea agreement’s stipulation that appellant had trafficked 50-150 grams of crack cocaine, even though the Presentence Report indicated that appellant’s crimes likely involved at least double that amount. The District Court also applied a substantial assistance reduction and a role reduction exactly as provided in the plea agreement. Appellant’s sentence, therefore, was “`based on’ his Rule 11(c)(1)(C) agreement with the government, and not a sentencing range that the Sentencing Commission subsequently lowered.”Main, 579 F.3d at 203. As a result, “the district court was without authority to reduce the sentence pursuant to 18 U.S.C. § 3582(c)(2).” Id.

That conclusion results naturally from our recent decision i Main, and it is also consistent with the precedent of the overwhelming majority of our sister circuits. See United States v. Sanchez, 562 F.3d 275, 279-82 (3d Cir. 2009) (holding that a defendant sentenced pursuant to a Rule 11(c)(1)(C) plea agreement was “ineligible” for § 3582(c)(2) relief); United States v. Scurlark, 560 F.3d 839, 842 (8th Cir. 2009) (holding that where a Rule 11(c)(1)(C) plea agreement “stipulated to a sentencing range,” § 3582(c)(2) was “inapplicable” because the sentence was “based on the agreement and not a sentencing range that ha[d] subsequently been lowered by the Sentencing Commission”) (internal quotation marks omitted) (alteration in original) United States v. Cieslowski 410 F.3d 353, 364 (7th Cir. 2005) (“A sentence imposed under a Rule 11(c)(1)(C) arises directly from the agreement itself, not from the Guidelines. . . .”); United States v. Peveler, 359 F.3d 369, 379 (6th Cir. 2004) (“[A]bsent an agreement of the parties, the plain language of . . . Rule 11(c)(1)(C) generally precludes the district court from altering the parties’ agreed sentence under § 3582(c).”); United States v. Trujeque, 100 F.3d 869, 871 (10th Cir. 1996) (denying a motion under § 3582(c)(2) where a sentence was “based on a valid Rule 11(e)(1)(C) plea agreement” and thus “not based on a sentencing range that has subsequently been lowered by the Sentencing Commission” (internal quotation marks omitted)); see also Main, 579 F.3d at 203-04 (noting that a panel of the Fourth Circuit in United States v. Dews, 551 F.3d 204, 208-12 (4th Cir. 2008), reached a contrary result but the panel’s opinion was vacated when the Fourth Circuit granted rehearing en banc and subsequently dismissed the appeal as moot). But see United States v. Cobb, 584 F.3d 979 (10th Cir. 2009) (distinguishing the Tenth Circuit’s prior opinion in Trujeque — as well as five nonprecedential Tenth Circuit opinions that relied on it — and holding, over a dissent, that “nothing in the language of § 3582(c)(2) or in the language of Rule 11 precludes a defendant who pleads guilty under Rule 11 from later benefiting from a favorable retroactive guideline amendment”).

CONCLUSION
For the foregoing reasons, the September 25, 2008 judgment of the District Court is AFFIRMED.

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