August Term, 2009 Argued: October 20, 2009 Decided: February 17, 2010 Docket No.… v. - Andre Green

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# UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2009

(Argued: October 20, 2009

Decided: February 17, 2010)

Docket No. 08-5426-cr

UNITED STATES OF AMERICA,

Appellee,

\- V. -

ANDRE GREEN,

Defendant-Appellant.

Before: KEARSE, WINTER, and POOLER, Circuit Judges.

Appeal from postjudgment orders of the United States
District Court for the Western District of New York, Charles J.
Siragusa, Judge, declining to reduce defendant's previously
agreed-upon 145-month term of imprisonment upon his motion for a
reduction pursuant to 18 U.S.C. § 3582 (c) (2) in light of United
States Sentencing Commission amendments to sentencing guidelines
for offenses related to crack cocaine.

Affirmed.

STEPHAN J. BACZYNSKI, Assistant United States
Attorney, Buffalo, New York (Terrance P.
Flynn, United States Attorney for the
Western District of New York, Kathleen M.
Mehltretter, Assistant United States
Attorney, Buffalo, New York, on the brief) ,
for Appellee.

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MARYBETH COVERT, Buffalo, New York (Federal
Public Defender's Office, Western District
of New York, Buffalo, New York, on the
brief) , for Defendant-Appellant.

KEARSE, Circuit Judge:

Defendant Andre Green, who, pursuant to a plea bargain,
pleaded guilty to possessing crack cocaine with intent to
distribute, in violation of 21 U.S.C. §§ 841 (a) (1) & (b) (1) (C),
and possessing a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924 (c), and was sentenced
principally -- as agreed with the government -- to 145 months'
imprisonment, appeals from an initial order and a final amended
order of the United States District Court for the Western District
of New York, Charles J. Siragusa, Judge, denying his motion
pursuant to 18 U.S.C. § 3582 (c) (2) for a reduction of his prison
term to less than 145 months in light of amendments by the United
States Sentencing Commission ("Commission" or "Sentencing
Commission") to the advisory Sentencing Guidelines ( "Guidelines")
which lowered the recommended imprisonment ranges for offenses
related to crack cocaine. In its final amended order, the
district court denied Green's motion on the ground that the
sentence imposed had already effectively reduced Green's crack-
cocaine-related Guidelines offense level. On appeal, Green seeks
a remand for reconsideration of his § 3582 (c) (2) motion,
contending that the denial of the motion was procedurally flawed
because the court (a) in its final amended order failed to
determine Green's Guidelines offense level and imprisonment range

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in light of the crack cocaine guidelines revisions, (b) in each
order relied on an erroneous articulation of fact, and (c) in both
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orders failed to take into account an error in the calculation of
his original sentence. For the reasons that follow, we conclude
that these contentions are moot. As we conclude that the district
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court sentenced Green pursuant to a plea agreement governed by
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Fed. R. Crim. P. 11 (c) (1) (C), we affirm the denial of Green's
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motion in light of this Court's ruling in United States v. Main,
579 F.3d 200, 203 (2d Cir. 2009) ("Main"), cert. denied, 78
U.S.L.W. 3394 (U.S. Jan. 11, 2010), that a defendant who has been
11 sentenced pursuant to a Rule 11 (c) (1) (C) plea agreement is
12 ineligible for a reduction of sentence under § 3582 (c) (2) .

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## I. BACKGROUND

On April 1, 2004, Green was indicted by a federal grand
jury on charges of possessing crack cocaine with intent to
distribute, in violation of 21 U.S.C. §§ 841 (a) (1) & (b) (1) (A)
(count 2), conspiring to do so, in violation of 21 U.S.C. § 846
(count 1), and possessing a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924 (c) (1)
(count 3). On March 29, 2004, Green had been sentenced in state
court in Steuben County, New York, following his plea of guilty to
narcotics trafficking in violation of state law. For his state
offense, Green was sentenced to 3% to 10 years' imprisonment and
was incarcerated in state prison.

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A. Green's Plea and Sentencing in the Present Case

In May 2006, with respect to the federal indictment, Green
and the government entered into a plea agreement. The parties
agreed that Green would plead guilty to count 3, the firearms
charge; that in satisfaction of the count 2 charge of possessing
crack cocaine with intent to distribute, he would plead guilty
under 21 U.S.C. § 841 (b) (1) (C), which carries no statutory minimum
prison term, rather than under § 841 (b) (1) (A), which carries a
10-year mandatory minimum; and that the government would move to
dismiss count 1. With regard to sentencing, the parties agreed
that under the advisory Guidelines, the range of imprisonment for
Green on counts 2 and 3 combined was 147-168 months. They agreed
that " [n] otwithstanding" that calculation,

it is the agreement of the parties pursuant to Rule
11 (c) (1) (C) of the Federal Rules of Criminal
Procedure that the Court at the time of sentence
impose a 168 month term of imprisonment as part of
the appropriate sentence in this case. The parties

further agree pursuant to Rule 11 (c) (1) (C) that the
168 month sentence be imposed to run concurrent to
the sentence imposed against the defendant in Steuben
County Court on March 29, 2004 for his plea of guilty
to Criminal Possession of Controlled Substances 3d,
with Intent to Sell. If, after reviewing the
presentence report, the Court rejects this agreement,
the defendant shall then be afforded the opportunity
to withdraw the plea of guilty and the parties shall
then be afforded the right to void the agreement.

(Plea Agreement | 13 (emphases added) . )

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On the day the plea agreement was entered into, Green
appeared in district court before Judge Michael A. Telesca, to
whom the case was then assigned, to enter his plea of guilty. The

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parties disclosed the terms of the plea agreement in open court.
(See Transcript of Plea Hearing, May 25, 2006 ("Plea Tr. "),
at 3-6.) Judge Telesca, after requiring the government to state
the factual basis for the plea and engaging Green in a colloquy to
ensure that his plea was knowing and voluntary, accepted Green's
plea of guilty and scheduled sentencing for August 10, 2006 (see
id. at 15). The court postponed its ruling on whether to accept
or reject the plea agreement until it received and reviewed a
presentence report on Green, stating that it would "go along with
[the parties'] understanding" on sentencing as set out in that
agreement "unless there [wa]s something startling in that
presentencing report." (Id. at 10.)

Green's sentencing hearing was eventually held on November
1, 2006, before Judge Siragusa, to whom the case had been
reassigned. Prior to that date, Green completed service of his
state-court sentence. Given that Green could no longer serve any
part of his federal sentence concurrently with his state sentence,
his then-attorney Robert Napier wrote to Everardo Rodriguez, the
Assistant United States Attorney ( "AUSA") handling the
prosecution, and proposed that the parties agree that the
appropriate federal prison term for Green would be 145 months.
(See e-mail from Robert Napier to AUSA Everardo Rodriguez, dated
September 5, 2006 ("Napier e-mail") .) Although it does not
appear that the government made a written response, the record
indicates that the government agreed to Napier's proposal and that
the parties met with Judge Siragusa to seek his approval. Thus,

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at the sentencing hearing, Judge Siragusa informed Green as
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follows :

I . . . at Mr. Napier's request, had an extensive
meeting with Mr. Napier on your behalf and Mr.
Rodriguez on behalf of the government. We just met
again in Chambers. I wanted to make sure I recalled
the details of the meeting. Mr. Napier says that
despite the fact that you and the government agreed
to 168 months in front of Judge Telesca . . . .
[d]espite the fact that the sentencing you were
recommending with you and the government of 168
months, Mr. Napier said if I went along with that it
would be inequitable because the understanding or
belief would be that you would somehow get credit for
the state sentence. To his credit, Mr. Rodriguez was
also convinced by Mr. Napier's argument.

(Sentencing Transcript, November 1, 2006 ("S.Tr. "), at 2-3.) The
court stated that it approved the change to 145 months :

The long and the short, I will accept the 11 (c) (1) (C)
agreement, which is saying I can go along with 168
months, but having been presented with Mr. Napier's
statement, I will give you credit for the state
sentence and I'll sentence you to a combined total of
145 months.

(Id. at 3.) Pointing out that, at the plea hearing, the ruling on
whether to accept or reject the plea agreement had been postponed
until Green's presentence report could be reviewed, Judge
Siragusa stated that he had reviewed the presentence report "and I
can go along with the recommendations and, in fact, as I told you,
the sentence that you will receive, because of Mr. Napier's
efforts, will even be less, do you understand that?" (Id. at 6.)
Green stated that he understood.

The court noted that the advisory Guidelines range of
imprisonment for Green's crack distribution and firearms offenses
was 147 to 168 months. It stated that, " [h]owever, as you know,

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and as I explained, I will give you credit for the time that
you've already done on your plea on the state side and reduce
your combined incarceration on these federal counts to 145
months." (Id. at 11-12.)
Accordingly, the district court
sentenced Green to, inter alia, a prison term of 145 months,
comprising 85 months on the narcotics count, to be followed by 60
months on the firearms count.

### B. Green's § 3582 (c) (2) Motion

In November 2007, the Sentencing Commission amended the
advisory Guidelines with respect to offenses related to crack
cocaine, reducing the base offense level for such crimes (the
"crack amendments"), see, e.g., Guidelines Supplement to
Appendix C, Amendment 706, as amended by Amendment 711 (eff.
Nov. 1, 2007) ; and it thereafter provided that the courts could
consider whether, and to what extent, to apply the crack
amendments retroactively, see id. Amendment 713 (eff. Mar. 3,
2008). If the amended crack guidelines had been in effect when
Green was sentenced, the range of imprisonment for his combined
offenses would have been 130 to 147 months rather than 147 to 168
months. In June 2008, Green moved under 18 U.S.C. § 3582 (c) (2)
for a reduction in his sentence in light of the crack amendments.

In a one-page Order Regarding Motion for Sentence
Reduction Pursuant to 18 U.S.C. § 3582 (c) (2), dated October 21,
2008 ("Initial Order"), the district court initially purported to
grant Green's motion. However, in that order, the court

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incorrectly stated that Green had been sentenced to 168 months
(rather than 145 months) and, it stated that the imprisonment term
"of 168 months is reduced to 147 months," Initial Order (emphasis
in original). Thus, while purporting to grant a sentence
reduction, the Initial Order would actually have made Green's
prison term two months longer.

On November 5, 2008, the district court issued an Amended
Order Regarding Motion for Sentence Reduction Pursuant to
18 U.S.C. § 3582 (c) (2) ("Amended Order"), superseding the Initial
Order and denying Green's motion. In an Attachment to that order,
the court noted that Green had entered his plea of guilty pursuant
to Fed. R. Crim. P. 11 (c) (1) (C) and that the court had "accept [ed]
the plea agreement, " Amended Order Attachment. But it stated that
after reviewing the Presentence Report, the Court,
with the consent of the government, sentenced the
defendant, not [to] the agreed upon sentence of 168
months, but rather [to] a combined sentence of 145
months to allow credit for a state sentence he was
serving. Therefore, the Court [] effectively reduced
the defendant's crack cocaine charge offense level
which put him at a quideline range of 70-87
months resulting in a quideline range of 145 months.

The defendant's motion for reduction of sentence
is denied.

Id. (emphasis added) . This appeal followed.

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## II. DISCUSSION

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On appeal, Green contends that the district court abused
its discretion in denying his motion because (1) in the Amended
Order it failed to make amended calculations of his offense level

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and Guidelines range (see Green brief on appeal at 15-16) ; (2) in
each order it made erroneous statements of facts -- apparently
referring, inter alia, to (a) the statement in the Initial Order
that Green's original sentence was 168 months, and (b) the
suggestion in the Amended Order that the reduction in Green's
sentence resulted from a Guidelines-range recalculation prompted
by consideration of the severity of the crack guidelines (see id.
at 14, 20) ; and (3) in both orders the court failed to consider an
alleged error in its original sentencing decision (see id.
at 19-20) . The government argues that Green's assertion of error
in his original sentence is not cognizable on a motion pursuant to
§ 3582 (c) (2), and that regardless of any claimed procedural errors
in the court's treatment of the § 3582 (c) (2) motion, Green was not
entitled to a reduction of sentence pursuant to § 3582 (c) (2)
because he was sentenced pursuant to Rule 11 (c) (1) (C) .
In

response to the latter argument, Green disputes the government's
assertion that he was sentenced pursuant to Rule 11 (c) (1) (C) .

Although we agree with Green's contention that the
district court's stated rationales for the rulings made in its
Initial and Amended Orders did not accurately reflect the record,
we may affirm a ruling on any ground that is supported by the
record, see, e.g., United States v. Dhinsa, 171 F.3d 721, 727 (2d
Cir. 1999) ; and we conclude that all of Green's contentions are
moot, as Green was sentenced pursuant to Rule 11 (c) (1) (C), and,
under our decision in Main, he is therefore ineligible for a
sentence reduction pursuant to § 3582 (c) (2) .

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A. Section 3582 (c) (2), Rule 11 (c) (1) (C), and the Decision in Main
Section 3582 (c) provides that the district court "may not
modify a term of imprisonment once it has been imposed, " except in
certain specified circumstances. 18 U.S.C. § 3582 (c). One
exception is made for "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." Id.
Rule 11 (c), which addresses plea agreement procedures that are set
out more fully in Part II.B. below, provides, inter alia, that
" [a]n attorney for the government and the defendant's attorney

. . . may discuss and reach a plea agreement, " Fed. R. Crim. P.
11 (c) (1); that in that agreement the parties may "agree that a
specific sentence or sentencing range is the appropriate
disposition of the case, " id. Rule 11 (c) (1) (C) ; and that "once the
court accepts [such a] plea agreement, " the parties' agreement on
sentence "binds the court, " id.

In Main, which was decided after the district court
decisions in the present case but before the argument of this
appeal, we considered a challenge to the denial of a § 3582 (c) (2)
motion made by a defendant who had been charged with crack cocaine
offenses and had entered into a plea agreement with the government
"pursuant to Federal Rule of Criminal Procedure 11 (c) (1) (C) " that
"the appropriate sentence to be imposed, with regard to
imprisonment, is a term of not more than eight (8) years, " 579
25 F.3d at 202 (internal quotation marks omitted). The district

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court accepted the parties' plea agreement. Accordingly, despite
calculating that the then-recommended Guidelines range of
imprisonment for Main was 120 to 150 months, i.e., 10 to 12%
years, see id. at 203, the court sentenced him to a prison term of
seven years, see id. at 202. After the Sentencing Commission
subsequently lowered the Guidelines-recommended imprisonment
ranges for crack-related offenses, Main moved, unsuccessfully, to
have his sentence reduced pursuant to § 3582 (c) (2) .

We upheld the district court's denial of Main's motion.
Noting that § 3582 (c) (2) authorizes a sentence reduction only for
a sentence "based on" a Guidelines range that has subsequently
been lowered by the Commission, Main, 579 F.3d at 203 (internal
quotation marks omitted), and that " [u]nder Rule 11 (c) (1) (C), a
district court may not deviate from the 'specific sentence or
sentencing range, ' Fed. R.Crim. P. 11 (c) (1) (C), recommended or
requested by the accepted plea agreement, " 579 F.3d at 203, we
concluded that "Main's sentence was 'based on' his Rule
11 (c) (1) (C) agreement with the government, and not a sentencing

range that the Sentencing Commission subsequently lowered, " id.
Accordingly, we ruled that "the district court was without
authority to reduce Main's sentence under section 3582 (c) , " 579
F.3d at 201.

### B. The Sentencing of Green

In an effort to avoid the applicability of Main, Green
contends that the 145-month prison term to which he was sentenced

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was not imposed pursuant to Rule 11 (c) (1) (C) . He argues that "the
four corners of the written agreement, as it pertains to Rule
11 (c) (1) (C) , called for a sentence of 168 months to run concurrent
to a then existing state sentence" (Green reply brief on appeal
at 5), and that the district court "cannot be said to have
accepted the agreement since the sentence imposed was inconsistent
with th[is] provision" (id. at 7). He also states that " [n]o
written amendment to the agreement was made" (id. at 6) ; that "the
email belatedly provided by the government" did "no [t] mention
the Rule 11 (c) (1) (C) provision" (id. ) ; and that " [n]o oral
amendment to the Rule 11 (c) (1) (C) provision is mentioned on the
record" (id.). These arguments disregard the applicable legal
principles and distort the record.

As adverted to above, Rule 11 (c) provides in pertinent
part as follows :

(1) . . . . An attorney for the government and the
defendant's attorney . . . may discuss and reach a plea
agreement. The court must not participate in these
discussions. If the defendant pleads guilty . . . to
either a charged offense or a lesser or related offense,
the plea agreement may specify that an attorney for the
government will:

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(C) agree that a specific sentence or sentencing
range is the appropriate disposition of the case
. . . (such a recommendation or request binds the
court once the court accepts the plea agreement) .

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(2) Disclosing a Plea Agreement. The parties must
disclose the plea agreement in open court when the plea is
offered, unless the court for good cause allows the
parties to disclose the plea agreement in camera.

(3) Judicial Consideration of a Plea Agreement.

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(A) To the extent the plea agreement is of the
type specified in Rule 11 (c) (1) (A) or (C), the court
may accept the agreement, reject it, or defer a
decision until the court has reviewed the presentence
report.

(4) Accepting a Plea Agreement. If the court
accepts the plea agreement, it must inform the defendant
that to the extent the agreement is of the type specified
in Rule 11 (c) (1) (A) or (C), the agreed disposition will be
included in the judgment.

(5) Rejecting a Plea Agreement. If the court
rejects a plea agreement containing the provisions of the
type specified in Rule 11 (c) (1) (A) or (C), the court must
do the following on the record and in open court (or, for
good cause, in camera) :

(A) inform the parties that the court rejects
the plea agreement ;

(B) advise the defendant personally that the
court is not required to follow the plea agreement
and give the defendant an opportunity to withdraw the
plea; and

(C) advise the defendant personally that if the
plea is not withdrawn, the court may dispose of the
case less favorably toward the defendant than the
plea agreement contemplated.

Fed. R. Crim. P. 11(c). In sum, as most pertinent here, when the
parties have entered into a Rule 11 (c) (1) (C) plea agreement, the
district court may accept it or reject it but may not modify it,
see, e.g., United States v. Cunavelis, 969 F.2d 1419, 1422 (2d
Cir. 1992); and once the court has accepted it, the Rule
11 (c) (1) (C) plea agreement "dictate [s]" the sentence, Main, 579
F.3d at 201.

In general, " [p] lea agreements are construed according to
contract law principles, " United States v. Yemitan, 70 F.3d 746,
747 (2d Cir. 1995) ; see generally United States v. Hyde, 520 U.S.

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670, 677 (1997) ; Santobello v. New York, 404 U.S. 257, 262 (1971) ;
United States v. Riera, 298 F.3d 128, 133 (2d Cir. 2002) ("We
review interpretations of plea agreements de novo and in
accordance with principles of contract law. "). Although Green
argues that the district court "cannot be said to have accepted"
the plea agreement because the original agreement called for a
168-month prison term, and "inconsistent with th[at] provision"
the court imposed a term of 145 months (Green reply brief on
appeal at 7), we see nothing in the Rules or in ordinary contract
principles that prevents the parties to a plea agreement, prior to
its acceptance or rejection by the court, from amending their
agreement as to what punishment is "appropriate, " Fed. R. Crim. P.
11 (c) (1) (C) . Green's contention that the amendment agreed upon by
the parties was ineffective because there was " [n]o written
amendment" (id. at 6) is meritless. Although Rule 11 (c) (2)
provides that the plea agreement must be disclosed in open court,
nothing requires that the plea agreement be in writing:

Just as contracts are not invalid simply because they
are made orally, the same is true of plea agreements.

See Santobello v. New York, 404 U.S. 257, 92 S.Ct.

495, 30 L.Ed.2d 427 (1971) (finding government in
breach of plea agreement for reneging on oral promise
to abstain from a sentencing recommendation)

United States v. Sanchez, 562 F.3d 275, 280 (3d Cir. 2009), cert.
denied, 78 U.S.L.W. 3392 (U.S. Jan. 11, 2010). It suffices if the
agreement is "stated orally and recorded by the court reporter,
whose notes then [are] preserved or transcribed." Fed. R. Crim.
P. 11 Advisory Committee Note (1974) (internal quotation marks
omitted). And although Green's plea agreement was in fact in

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writing, it contained no provision requiring that any amendment
of the agreement be in writing. Given that the plea agreement
itself need not have been in writing, the parties' amendment to
the agreement likewise need not have been in writing.

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United States v. Floyd, 1 F.3d 867, 870 (9th Cir. 1993) .

We note that the proposal for the amendment was itself in
writing. And although Green refers to the e-mail making that
proposal as one that was "belatedly provided by the government"
(Green reply brief on appeal at 6), that e-mail was in fact the
September 2006 Napier e-mail, sent to the government by Green's
then-attorney. Further, the fact that the e-mail itself did not
mention Rule 11 (c) (1) (C) is immaterial. The Napier e-mail
proposed "an adjusted sentence of 145 months" (emphasis added),
obviously alluding to the parties' original agreement on 168
months, and discussed Green's service of "state time, " prompted by
Green's recent release from state custody which made it impossible
for him to serve any part of his federal sentence concurrently
with his state sentence -- concurrent service having been expressed
as the major premise of the parties' agreement as to the
appropriate federal prison term in the original plea agreement
(see Plea Agreement | 13). The parties' agreement that 145
months, rather than 168 months, had become the appropriate prison
term for Green was, of course, subject to approval by the court.
"A plea agreement, and therefore any modification of a plea
agreement, must be accepted by the court before it is binding."

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Judge Siragusa's statements were based on conferences with
the attorneys that were held in Green's absence and were not
transcribed. Although the court later sought to summarize those
discussions during the sentencing hearing, and the attorneys
proffered alterations or modifications of the court's summary, it
should be emphasized that the practice of conducting off-the-
record conversations and memorializing them only by later
summarizing them on the record is not a recommended practice, as
it risks avoidable disputes as to what occurred, and it hinders
this Court in assessing whether the district court may have erred
or abused its discretion.

Green's assertion that " [n]o oral amendment to the Rule
11 (c) (1) (C) provision is mentioned in the record" (Green reply
brief on appeal at 6) is contradicted by the transcript of the
sentencing hearing. At that hearing, Judge Siragusa stated on the
record that "despite the fact that [Green] and the government
agreed to 168 months [when Green pleaded guilty] in front of Judge
Telesca, " Green's attorney and the AUSA subsequently had an
extensive meeting with Judge Siragusa, to whom the matter had been
reassigned (S.Tr. 2); that at that meeting Green's attorney
pointed out that 168 months "would be inequitable because" Green
could no longer -- as envisioned by the parties originally -- serve
part of his federal sentence concurrently with "the state
sentence" (id. at 3) ; and that the AUSA "was also convinced" on
that point (id.) . Plainly, the parties had agreed on an amendment
setting Green's appropriate prison term at 145 months, as proposed

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in the Napier e-mail, rather than the 168 months agreed on
originally.

Equally plainly, the court did not reject the amended plea
agreement. Had it done so, it would have been required by Rule
11 (c) (5) to advise Green that he could withdraw his plea, and that
if he did not withdraw the plea he could be sentenced more
severely than the parties agreed. Instead of rejecting the
agreement and advising Green that he could withdraw his plea, the
court acknowledged that the plea agreement was governed by Rule
11 (c) (1) (C) and it accepted the agreement as amended by the
parties, stating

I will accept the 11 (c) (1) (C) agreement, which is
saying I can go along with 168 months, but having
been presented with Mr. Napier's statement, I will
give you credit for the state sentence and I'll
sentence you to a combined total of 145 months.

(S.Tr. 3 (emphases added) .) Although this could have been stated
with greater fluidity, we think it entirely clear from this
statement and from the court's statement that the AUSA had
concurred in Napier's proposal, that the court believed it was
accepting a Rule 11 (c) (1) (C) plea agreement as amended by
agreement between the parties.

The one respect in which the proceedings below arguably
deviated from the requirements of Rule 11 is that the amended plea
agreement was not disclosed "when the plea [wals offered, " Fed. R.
Crim. P. 11 (c) (2). However, it could not have been disclosed in
May 2006 when Green's plea was offered because the amendment had
not yet been agreed upon, the impetus for the amendment not yet

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having occurred. In order to comply punctiliously with the terms
of Rule 11 (c) (2) at the November 1, 2006 hearing, the district
court would have had to allow Green to withdraw and reenter his
plea. However, Rule 11 provides that " [a] variance from the
requirements of [Rule 11] is harmless error if it does not affect
substantial rights." Fed. R. Crim. P. 11 (h) . Here, the agreed
amendment was disclosed in open court. Unfortunately, the
district court was much less clear than it should have been when
it recorded the amended plea agreement on the record and
discussed the terms of the amended agreement with Green. However,
the transcript of the sentencing hearing leaves us with no doubt
that Green understood that his attorney had requested the
modification of the original plea agreement after he was

discharged from State custody, that the government had accepted
counsel's proposed modification, and that, as amended, the plea
agreement called for a sentence of 145 months. As a result, we
cannot conclude that the court's acceptance of the modification
without taking the formal step of having Green's plea withdrawn
and reentered affected his substantial rights.

In sum, we conclude that the district court accepted a
Rule 11 (c) (1) (C) plea agreement that had been permissibly amended
by the parties, and that the court sentenced Green pursuant to
that agreement rather than pursuant to a guideline. Therefore,
under our ruling in Main, relief under 18 U.S.C. § 3582 (c) (2) was
not available to Green.

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# CONCLUSION

We have considered all of Green's arguments in support of
his position on this appeal and found in them no basis for
reversal. For the reasons discussed above, the amended order of
the district court denying Green's § 3582 (c) (2) motion is
affirmed.

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