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1 Criminal Law Fourth Circuit Allows 3582(c)(2) Sentence Modification Under Rule 11 Plea Agreement to Specific Term United States v. Dews, 551 F.3d 204 (4th Cir. 2008), reh g en banc granted, No (4th Cir. Feb. 20, 2009), reh g dismissed as moot, No (4th Cir. May 4, 2009) Although their application is no longer mandatory, the United States Sentencing Guidelines (USSG) still serve an important role in determining a defendant s sentence after conviction and whether a trial judge will accept a negotiated plea agreement. 1 Once imposed, a judge can only reduce a defendant s sentence for extraordinary and compelling reasons, including the subsequent lowering of the USSG range upon which the sentence was based, as per 18 U.S.C. 3582(c)(2). 2 In United States v. Dews, 3 the United States Court of Appeals for the Fourth Circuit considered whether a sentence to a term of months imposed pursuant to a Rule 11 plea agreement is based on a USSG range for purposes of qualifying for reduction under 3582(c)(2). 4 The Fourth Circuit held that when a Rule 11 plea to a term of imprisonment is negotiated by the parties and accepted by the court because it is within the applicable USSG range, a defendant may receive a sentence reduction in accordance with 3582(c)(2). 5 In April of 1998, Darrell Dews entered into a plea agreement to plead guilty to two crack cocaine related offenses. 6 Pursuant to Rule 11 of the Federal 1. See United States v. Booker, 543 U.S. 220, 245 (2005) (holding mandatory application of USSG violates Sixth Amendment and declaring USSG advisory); see also 18 U.S.C. 3553(a)(4) (2006) (providing sentencing considerations); FED. R. CRIM. P. 11(b)(1)(M) (requiring judge to inform defendant of USSG range and sentencing considerations before accepting plea agreement). See generally Lindsay C. Harrison, Appellate Discretion and Sentencing After Booker, 62 U. MIAMI L. REV (2008) (exploring role of appellate courts when reviewing post-booker sentences). 2. See 18 U.S.C. 3582(c) (2006) (providing three avenues where sentence modification permitted). The text of 18 U.S.C. 3582(c)(2) states: (c) Modification of an imposed term of imprisonment. The court may not modify a term of imprisonment once it has been imposed except that.... (2) 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), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, 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 reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. 3582(c)(2) (2006) F.3d 204 (4th Cir. 2008). 4. See id. at 208 (stating issue under consideration by court). 5. See id. at (noting both requirements of 3582(c)(2) met and reversing lower court). 6. See id. at 205 (listing charges included in plea agreement). Dews pled guilty to one count of

2 1052 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:1051 Rules of Criminal Procedure and in accordance with the sentencing guidelines, the parties agreed to a term of imprisonment of 168 months followed by five years of supervised release. 7 The agreement recognized that the court would independently calculate a sentence consistent with the sentencing guidelines, and Dews could withdraw his guilty plea only if the court imposed a sentence other than 168 months. 8 After accepting Dews s guilty plea, the court emphasized that the sentence would be determined by reference to the sentencing guidelines. 9 Based on its independent calculations and the report of the probation officer, the court accepted the 168-month sentence specifically because it was within the applicable USSG range. 10 Ten years later, the Sentencing Commission retroactively lowered the sentencing guideline ranges for offenses involving crack cocaine. 11 Dews moved for a sentence reduction under 18 U.S.C. 3582(c)(2) because the USSG amendment reduced the applicable guidelines range for the crimes for which he was sentenced. 12 The district court denied the motion because it concluded that sentences imposed pursuant to a plea agreement are not eligible for reduction under the statute. 13 Prior to 1984, federal trial judges had broad, practically unfettered discretion conspiracy to distribute and possess with intent to distribute cocaine base and one count of money laundering. Id. Brian Allen, the appellant in the companion case of United States v. Allen, entered into a similar agreement for the same charges. Id. at F.3d at 205; see also id. at (providing details of Allen s plea agreement and sentencing). The parties made several stipulations to sentencing guideline factors: the base-level offense, the relatedness of the counts, and a downward adjustment for Dews s timely plea and his acceptance of responsibility. Id. at 206. In 1998, former subsection (e)(1)(c) governed Rule 11 plea agreements and provided: (e) Plea Agreement Procedure. (1) In General. The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following.... (C) agree that a specific sentence is the appropriate disposition of the case. FED. R. CRIM. P. 11(e) (1998). Additionally, Rule 11(e)(3) provided that if the sentencing judge accepted the plea agreement, the court would impose the sentence embodied in the agreement and could not change the terms of the agreement. See id. (providing procedure for accepting plea agreement) F.3d at 206 (describing terms of agreement). 9. Id. (noting explicitly sentence to be made with reference to USSG). 10. See id. at 207 (summarizing reasons for the court s acceptance of Dew s guilty plea); id. at 208 (accepting Allen s guilty plea and noting sentence under plea agreement also within applicable guideline range). 11. Id. at 208; see UNITED STATES SENTENCING COMMISSION, FEDERAL SENTENCING GUIDELINES MANUAL app. C, amd. 706 (2009) (lowering base offense level for crack cocaine offenses); UNITED STATES SENTENCING COMMISSION, FEDERAL SENTENCING GUIDELINES MANUAL app. C, amd. 713 (2009) (making amendment 706 retroactive in application). 12. See 551 F.3d at 208 (stating grounds for appeal). 13. See id. at 205, 208 (stating reasoning for lower court decision).

3 2010] CASE COMMENT 1053 in imposing and modifying sentences of criminal defendants. 14 Concerns over sentence disparity prompted Congress to enact the Sentencing Reform Act of 1984 (SRA), abolishing the prior system and authorizing the newly formed Sentencing Commission to devise sentencing guidelines that would accomplish uniformity in sentencing. 15 Under the new SRA, sentences may only be modified in accordance with 18 U.S.C. 3582(c). 16 Section 3582(c)(2) permits and authorizes, but does not mandate, a sentence reduction when a term of imprisonment based on a sentencing range... has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o). 17 A proceeding under 3582(c)(2) is not a do over of the original sentencing proceeding with full constitutional protections, and has been characterized as a mechanism for equitable sentencing relief to promote the congressional purpose of sentence parity. 18 Sentence reduction, however, is a statutory mechanism, and defendants may only invoke it when they fall within the ambit of the statute See FED. R. CRIM. P. 35, 383 U.S (1966) (providing procedure for sentence reduction or correction); United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir. 1968) (explaining former Rule 35 intended to give defendants second chance at sentencing); MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 6-8 (1973) (contending discretion of sentencing judge only limited by statutory maximum and personal preferences of judge); see also Leslie A. Cory, Comment, Looking at the Federal Sentencing Process One Judge at a Time, One Probation Officer at a Time, 51 EMORY L.J. 379, (2002) (describing sentencing process and judicial discretion prior to 1984); cf. Sandra D. Jordan, Have We Come Full Circle? Judicial Sentencing Discretion Revived in Booker and Fanfan, 33 PEPP. L. REV. 615 passim (2006) (comparing trial judge s discretion post-booker with pre-sra discretion). Justice Breyer commented that prior to 1984, the length of time a person spent in prison appeared to depend on what the judge ate for breakfast on the day of sentencing, on which judge you got, or on other factors that should not have made a difference to the length of the sentence. Blakely v. Washington, 542 U.S. 296, 332 (2004) (Breyer, J., dissenting). Once sentenced, a prisoner could only be released after the approval of a federal parole board. See Cory, supra, at (outlining federal parole process and impact on sentencing). 15. See Comprehensive Crime Control Act of 1984, Pub. L. No , 98 Stat (1984) (codified as amended in scattered sections of 18 U.S.C. and 28 U.S.C (1988)); see also Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 HOFSTRA L. REV. 1, 4-6 (1988) (elucidating Congressional purpose for creating uniform sentencing guidelines). 16. See 18 U.S.C. 3582(c) (2006) (laying out three avenues for sentence modification). Section 3582(c)(1)(B) provides for modification of sentences to the extent permitted by Rule 35 of the Federal Rules of Criminal Procedure. See id.; FED. R. CRIM. P. 35 (allowing technical correction of sentences and sentence reduction when defendant renders substantial assistance to government). Pursuant to 3582(c)(1)(A)(i), the United States Sentencing Commission allows compassionate release under appropriate circumstances. See 18 U.S.C. 3582(c)(1)(A)(i) (2006) (permitting sentence modification when warranted by extraordinary and compelling reasons ); UNITED STATES SENTENCING COMMISSION, FEDERAL SENTENCING GUIDELINES MANUAL 1B1.13 cmt. 1 (2009). See generally William W. Berry, III, Extraordinary and Compelling: A Reexamination of the Justifications for Compassionate Release, 68 MD. L. REV. 850 (2009) (advocating more extensive use of compassionate release) U.S.C. 3582(c)(2) (2006). 18. See FED. R. CRIM. P. 43 (mandating defendant s presence at sentencing, but not at sentence correction); United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999) (distinguishing sentencing reduction from original sentencing proceeding); see also Steven L. Chanenson, Statement of Steven L. Chanenson Before the United States Sentencing Commission Regarding Retroactivity of Crack Guidelines Amendments, 20 FED. SENT G REP. 146, 148 (2007) (characterizing 3582(c)(2) proceeding as equitable mitigation in sentencing). 19. See United States v. Lawrence, 535 F.3d 631, 637 (7th Cir. 2008) (explaining statutory avenues criminal defendants may utilize to invoke court s jurisdiction for sentence modifiation); cf. (United States v.

4 1054 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:1051 Each year, federal courts sentence approximately ninety-five percent of all defendants pursuant to Rule 11 plea agreements. 20 Although the Supreme Court has never specifically held that commercial contract law applies to criminal plea agreements, the Court has used contract principles to interpret plea agreements. 21 A plea agreement, however, is not just a contract between two parties because a plea agreement involves the constitutional rights of the defendant. 22 The court s involvement in plea agreement proceedings serves many purposes, including enforcement of the contract s plain language, ensuring that each party receives the benefit of the bargain, and protecting the integrity of the criminal justice system. 23 Fanfan, 558 F.3d 105, 107 (1st Cir. 2009) (noting 3582 limited exception to rule regarding finality of judgments). 20. See UNITED STATES SENTENCING COMMISSION, SOURCEBOOK OF FEDERAL SENTENCING STATISTICS fig.c (14th ed. 2010), available at (summarizing trial and guilty plea rates from 2005 to 2009). In 2009, 96.3% of criminal cases resulted in a plea agreement. See id. Rule 11(c) lays out three types of pleas, specifying that in exchange for a guilty plea an attorney for the government will: (A) not bring, or will move to dismiss, other charges; (B) recommend, or agree not to oppose the defendant s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement). FED. R. CRIM. P. 11(c)(1); cf. supra note 7 (providing text of former Rule 11). 21. See United States v. Hyde, 520 U.S. 670, (1997) (discussing guilty pleas and plea agreements in terms of bargains, promised performances, and contractual duties); Brady v. United States, 397 U.S. 742, (1970) (examining comparative burdens and benefits of trials and guilty pleas); cf. Ricketts v. Adamson, 483 U.S. 1, 7 n.3 (1987) (noting dissent s contract analysis of plea agreement illuminating, but irrelevant ). 22. See Santobello v. New York, 404 U.S. 257, 262 (1971) (recognizing courts must enforce government promises within plea agreements forming consideration for plea); United States v. Wood, 378 F.3d 342, (4th Cir. 2004) (discussing role of court in plea agreements in contract and due process terms). The Sixth Circuit explained that a guilty plea involves the waiver of at least three constitutional rights so the analogy of a plea agreement to a traditional contract is not complete or precise, and the application of ordinary contract law principles to a plea agreement is not always appropriate. United States v. Skidmore, 998 F.2d 372, 375 (6th Cir. 1993). 23. See United States v. Altamirano-Quintero, 511 F.3d 1087, 1094 (10th Cir. 2007) (interpreting agreement according to express language and construing ambiguities against drafter); United States v. Holbrook, 368 F.3d 415, 420 (4th Cir. 2004) (analyzing plea agreement in contract law language), vacated on other grounds, 545 U.S (2005); United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998) (recognizing criminal plea agreements analyzed under contract law standards); see also ARTHUR LINTON CORBIN, CORBIN ON CONTRACTS 83.2 (Joseph Perillo ed., rev. ed. 2003) (discussing application of contract principles to criminal plea agreements); Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. LEGAL STUD. 289, (1983) (discussing plea bargaining and rights of parties involved in plea agreements); supra note 22 and accompanying text (noting constitutional and due process issues of plea agreements).

5 2010] CASE COMMENT 1055 Several circuits have addressed the intersection of Rule 11 plea agreements and sentence reductions under 3582(c)(2). 24 The majority of courts have held that a sentence imposed pursuant to a Rule 11 plea is not based on a guidelines range because the sentence actually is based on the arrangement of the parties, as embodied in the plea agreement. 25 In United States v. Sanchez, 26 the Third Circuit reasoned that a binding plea agreement has no meaning if it can be changed by the discretionary possibility of a different sentence pursuant to 3582(c). 27 The consensus is that when a judge imposes a sentence pursuant to a Rule 11 plea agreement, that sentence is not based on a sentencing range and will never qualify for a sentence reduction. 28 In United States v. Dews, however, the Fourth Circuit determined that a sentence imposed pursuant to a plea agreement qualifies as a sentence based on a sentencing range pursuant to 18 U.S.C. 3582(c)(2). 29 The majority considered the agreement itself, the negotiations between the parties, and the consideration given to the USSG when the trial judge accepted the plea agreement, and determined that the trial court based Dews s sentence on a guidelines range. 30 The majority distinguished previous cases, reasoning that although the parties agreement bound the court, the agreement did not prohibit Dews from seeking sentencing relief if the Sentencing Commission retroactively lowered a relevant guideline. 31 The majority concluded that the 24. See infra notes and accompanying text (examining circuit precedent on issue). 25. See United States v. Scurlark, 560 F.3d 839, 843 (8th Cir. 2009) (holding Rule 11 sentence not eligible for reduction under 3582(c)(2)); United States v. Peveler, 359 F.3d 369, 379 (6th Cir. 2004) (holding Rule 11 binds court and parties to sentence within agreement once accepted by court); United States v. Hemminger, 114 F.3d 1192, 1997 WL , at *1 (7th Cir. 1997) (reasoning defendant bargained away right to sentence reduction through plea agreement); United States v. Trujeque, 100 F.3d 869, 871 (10th Cir. 1996) (holding sentence based on agreement, not sentencing range and not eligible for reduction under 3582(c)(2)). But see United States v. Coleman, 594 F. Supp. 2d 164, (D. Mass. 2009) (amending Rule 11 sentence pursuant to 3582(c) when agreement included sentence range). Outside the context of 3582(c), the District of Columbia Circuit has similarly stated a sentence arising from a Rule 11(e)(1)(C) plea... does not result from the determination of an appropriate guidelines offense level, but rather from the agreement of the parties. See United States v. Heard, 359 F.3d 544, 548 (D.C. Cir. 2004) (addressing plea agreement sentence appealed on imposition of consecutive rather than concurrent sentences) F.3d 275 (3d Cir. 2009). 27. United States v. Sanchez, 562 F.3d 275, 282 (3rd Cir. 2009); see also United States v. Peveler, 359 F.3d 369, 379 (6th Cir. 2004) (holding Rule 11 prevents court from altering previously agreed upon and accepted sentence). 28. See supra notes (examining circuit courts addressing issue). The current version of Rule 11 differs formally, but not substantially, from the 1998 version. Compare FED. R. CRIM. P. 11(c)(1)(C) (2008) (specifying plea agreement about specific sentence or sentencing range binds court upon acceptance) and FED. R. CRIM. P. 11(c)(4) (2008) (emphasizing acceptance of Rule 11(c)(1)(C) agreement requires court to incorporate agreed disposition into judgment), with FED. R. CRIM. P. 11(e)(1)(C) (1998) (allowing parties to agree a specific sentence is the appropriate disposition of the case ) and FED. R. CRIM. P. 11(e)(3) (1998) (requiring court accepting plea agreement to integrate agreed disposition into judgment). 29. See 551 F.3d at 209 (concluding negotiated sentence can be based on sentencing guidelines range). 30. See id. at (examining agreement negotiations and influence of USSG on negotiations); supra notes 7-9 and accompanying text (noting role of USSG in judge accepting plea). 31. See 551 F.3d at 211 (declining to follow Sixth Circuit). The majority discussed the other circuits that have addressed the issue by dividing the decisions into three categories. See id. at (analyzing circuit

6 1056 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:1051 requirements of 3582(c)(2) were satisfied the sentence was based on a sentencing guidelines range that was subsequently lowered and remanded the case for sentence reduction. 32 In a lengthy dissent, Judge Agee argued that a sentence imposed pursuant to a Rule 11 plea agreement can never be based on a sentencing range as required by 3582(c)(2). 33 Drawing on fundamental contract principles, the dissent accused the majority of erroneously rewriting the agreement by looking beyond its plain language to the negotiations between the parties and the due diligence of the trial judge. 34 Concluding that the agreement explicitly and unambiguously fixed a term of months, the dissent considered all parties bound by its terms once the sentencing court accepted it. 35 Agreeing with other circuits treatment of Rule 11 pleas in 3582(c)(2) appeals, the dissent would hold Dews s sentence ineligible for reduction because it was based on a fixedterm plea agreement and not on a USSG range calculation. 36 The majority s approach is an inelegant and unsatisfactory solution to the intersection of 3582(c)(2) and Rule 11 plea agreements because it neglects fundamental principles of statutory interpretation and contract law. 37 To qualify for the statutory remedy of sentence modification, 3582(c)(2) requires that a defendant be sentenced to a term that is based on a sentencing range. 38 The sentencing court imposed Dews s sentence based on the term of months embodied in the plea agreement; not the USSG sentencing range. 39 By allowing sentence modification when a defendant is sentenced to a term of imprisonment based on [an agreement consistent with] a sentencing range, the court precedent). The majority distinguished the first group of cases because the sentences imposed were not based on the applicable USSG range and, thus, did not meet the first requirement of 3582(c)(2). See id. at 210 (describing sentences inconsistent with applicable USSG range). The majority placed in the second category all cases in which the facts were insufficient to provide certainty about the basis of the sentence. Id. at 210. The majority cited the Sixth Circuit s decision in Peveler as an example of the third category of cases. See id. at See id. at , 212 (analyzing 3582(c)(2) requirements). 33. See 551 F.3d at 218 (Agee, J., dissenting) (arguing defendant received bargained-for sentence not sentence based on sentencing range). 34. See id. at 214 (Agee, J., dissenting) (arguing agreement language controlling, not plea negotiations). The dissent noted under the USSG applicable at the time of sentencing, the judge was obligated to consider the guidelines before accepting or rejecting the plea agreement. See id. at 213 (recognizing judicial obligations under USSG); see also UNITED STATES SENTENCING COMMISSION, FEDERAL SENTENCING GUIDELINE MANUAL 6B1.2 (1997) (requiring judicial consideration of applicable guidelines range before accepting plea). Consideration of the guidelines, however, is ordinary due diligence and the dissent argues the majority uses it to transform the terms of the agreement and rewrite the agreement contrary to its terms. See 551 F.3d at 214 (Agee, J., dissenting) (distinguishing plea negotiations from plea agreement terms). 35. See 551 F.3d at (Agee, J., dissenting) (arguing clear and unambiguous fixed term plea agreements not subject to later modification). 36. See id. at (Agee, J., dissenting) (describing other circuits analysis of issue). 37. See id. at 214 (Agee, J., dissenting) (explaining contract principles with regard to plea agreements) U.S.C. 3582(c)(2) (2006); see also supra notes (discussing circuits addressing based on a sentencing range phrase). 39. See 551 F.3d at 214 (Agee, J., dissenting) (stating plea agreement explicit in a fixed term of 168 months, not a range); supra notes 7-10 and accompanying text (describing plea agreement process).

7 2010] CASE COMMENT 1057 majority ignored the plain language of the statute. 40 The majority also neglected fundamental principles of contract law when it considered the negotiations leading up to the agreement, in addition to the agreement itself. 41 Although criminal plea agreements involve additional concerns, commercial contract principles still guide their interpretation. 42 Typically, a court looks beyond the four corners of an agreement only when it is ambiguous. 43 Dews s plea agreement, however, unambiguously set a term of 168 months of imprisonment to be followed by five years of supervised release. 44 By looking through the agreement to the negotiations, the majority recast Dews s explicit agreement with the government. 45 In light of these fundamental principles, the approach of the Dews majority, although equitable, is ultimately unpersuasive. 46 A plea agreement presents both risks and rewards to the defendant and the government; those attendant risks and rewards are cognizable at the time the parties enter into the agreement. 47 Absent overreaching or mistake, a court is without authority to rewrite an agreement because a defendant failed to account for the risk of a retroactive change in the applicable USSG range. 48 Future defendants can and should craft provisions within their plea agreements to avoid the based on a sentencing range barrier of In United States v. Dews, the Fourth Circuit considered whether a sentence imposed pursuant to a Rule 11 plea agreement can be based on a USSG range allowing it to qualify for sentence reduction under 18 U.S.C. 3582(c)(2). By holding that this type of sentence is based on a sentencing range, the Fourth Circuit ignored the statute s plain language and relevant principles of contract law. A judge sentencing a defendant pursuant to a plea agreement does not impose that sentence based on a USSG range, but on the sentence fixed in the agreement by the parties. The statute, procedural rule, and Dews s agreement U.S.C. 3582(c)(2) (2006); cf. 551 F.3d at 213 (Agee, J., dissenting) (accusing majority of rewriting agreement). 41. See 551 F.3d at (examining agreement negotiations and influence of USSG on negotiations); id. at 214 (Agee, J., dissenting) (highlighting error made by majority when examining party deliberations and judge s review); supra notes 7-9 and accompanying text (noting role of USSG in judge accepting plea agreement). But see United States v. Sanchez, 562 F.3d 275, 284 n.13 (3d Cir. 2009) (Roth, J., dissenting) (characterizing USSG range as fundamental assumption of plea agreement and basic condition of obligation). 42. See supra notes (discussing applicability of commercial contract principles to criminal plea agreements). 43. See 8 ARTHUR LINTON CORBIN, CORBIN ON CONTRACTS 24.7 (Joseph Perillo ed., rev. ed. 2003) (discussing circumstances justifying use of extrinsic evidence in contract interpretation) F.3d at 205; see id. at 214 (Agee, J., dissenting) (noting Dews claimed no ambiguity). 45. Id. at 214 (Agee, J., dissenting). 46. See supra notes and accompanying text (describing majority s failure to adhere to principles). 47. See 551 F.3d at 218 (Agee, J., dissenting) (citing United States v. Johnson, 410 F.3d 137, 153 (4th Cir. 2005)) (noting favorable change in law after plea normal risk of guilty plea). 48. See id. at , (Agee, J., dissenting) (explaining parties could have agreed to include benefit of retroactive sentence range reduction). 49. See 18 U.S.C. 3582(c)(2) (2006); supra note 48.

8 1058 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:1051 were unambiguous. The court impermissibly rewrote the agreement by looking to extrinsic evidence and stretching the definition of the phrase based on a sentencing range. Kimberly L. Patwardhan