                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,               No. 12-10213
              Plaintiff - Appellant,
                                            D.C. No.
                 v.                      3:08-cr-00771-
                                            MHP-1
ROBERT TERRELL PLEASANT ,
            Defendant - Appellee.
                                           OPINION


      Appeal from the United States District Court
        for the Northern District of California
        Susan Illston, District Judge, Presiding

               Argued and Submitted
      December 7, 2012–San Francisco, California

                 Filed January 2, 2013

  Before: Michael Daly Hawkins, A. Wallace Tashima,
         and Mary H. Murguia, Circuit Judges.

              Opinion by Judge Tashima
2                 UNITED STATES V . PLEASANT

                           SUMMARY*


                           Criminal Law

    The panel reversed the district court’s order granting a
sentence reduction under 18 U.S.C. § 3582(c)(2) after the
Sentencing Commission amended the crack-cocaine
guidelines.

    Applying Justice Sotomayor’s controlling concurrence in
Freeman v. United States, 131 S. Ct. 2685 (2011), the panel
wrote that the defendant’s sentence satisfied the first prong of
§ 3582(c)(2) eligibility – it was “based on” the subsequently-
amended crack-cocaine guideline, U.S.S.G. § 2D1.1(c),
where the Rule 11(c)(1)(C) plea agreement expressly used
§ 2D1.1(c) to set the stipulated sentence.

    The panel held, however, that the sentence did not satisfy
the second prong of § 3582(c)(2), which requires that the
reduction be consistent with applicable policy statements
issued by the Sentencing Commission. The panel wrote that
the reduction was not consistent with U.S.S.G.
§ 1B1.10(a)(1), which permits a reduction only if the
guideline range “applicable to” the defendant has
subsequently been lowered as a result of an amendment to the
Guidelines.     The panel held that under Guidelines
Amendment 759 (2011), the defendant’s “applicable
guideline range” is the Career Offender range (U.S.S.G.
§ 4B1.1) for which the plea agreement recognized the
defendant qualified, but under which the defendant was not

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               UNITED STATES V . PLEASANT                    3

sentenced only because the district court granted a downward
variance. The panel explained that Amendment 759 makes
clear that the applicable guideline is derived pre-departure
and pre-variance. The panel also explained that Freeman
addressed only when a sentence is “based on” a subsequently
amended sentencing range, not the meaning of “applicable
guidelines,” and that even if it had, Freeman would have been
abrogated by Amendment 759’s subsequent clarification of
the definition of “applicable guidelines.”


                         COUNSEL

Merry Jean Chan, Assistant United States Attorney, San
Francisco, California, for Plaintiff-Appellant.

Rita Bosworth, Assistant Federal Public Defender, San
Francisco, California, for Defendant-Appellee.


                         OPINION

TASHIMA, Circuit Judge:

    After pleading guilty to possession with intent to
distribute crack cocaine, Robert Pleasant was sentenced to 77
months’ imprisonment. The plea agreement stipulated that
Pleasant should be sentenced under the crack-cocaine
guidelines, but it also acknowledged that his status as a
Career Offender exposed Pleasant to a sentence as high as
235 months. After the Sentencing Commission amended the
crack-cocaine guidelines, the district court granted a sentence
reduction under 18 U.S.C. § 3582(c)(2). We have jurisdiction
under 18 U.S.C. § 3742(b), and we reverse.
4                 UNITED STATES V . PLEASANT

                                   I.

    Pleasant was indicted in 2008 for possessing, with intent
to distribute, crack cocaine in violation of 21 U.S.C.
§ 841(a)(1). He pled guilty pursuant to a Rule 11(c)(1)(C)1
plea agreement and, in doing so, admitted that he had
possessed over twelve grams of crack cocaine. The plea
agreement recognized that Pleasant qualified for sentencing
under the Career Offender guidelines (U.S.S.G. § 4B1.1), but
provided instead that his sentence should be at the low end of
the guidelines applicable to crack-cocaine offenses (U.S.S.G.
§ 2D1.1(c)). The district court accepted the plea agreement
by granting a variance from the Career Offender guidelines,
and thus sentenced Pleasant to 77 months imprisonment.2
Judgment was entered on March 17, 2009.

    The Fair Sentencing Act of 2010 (“FSA”) modified,
among other things, the penalties for crack cocaine offenses
by reducing sentencing disparities between crack and powder
cocaine offenses. Pub. L. No. 111-220, 124 Stat. 2372
(2010). On November 1, 2010, the U.S. Sentencing
Commission exercised its authority under the FSA by issuing
Amendment 748, which revised penalties for crack cocaine
offenses under the § 2D1.1(c) drug quantity table. U.S.S.G.
app. C (2011). The Commission then issued Amendment


        1
     All references to “Rules” are to the Federal Rules of Criminal
Procedure.

    2
   The sentence was calculated under the 2009 Guidelines, as follows:
Pursuant to § 2D1.1(c)(8), Pleasant’s offense level was 24, which was
adjusted down by 3 points for acceptance of responsibility, to level 21.
His criminal history category was VI (which would have resulted with or
without application of the Career Offender Guidelines). His sentencing
range was accordingly 77–96 months.
                   UNITED STATES V . PLEASANT                             5

750, which made the Amendment 748 changes permanent.
Id. Finally, the Commission issued Amendment 759, which:
(1) made the Amendment 750 changes retroactive; and (2)
modified § 1B1.10, which governs when a sentence may be
reduced by reason of a retroactive guideline amendment. Id.

    In light of these amendments, Pleasant filed a “Notice of
Eligibility” for a reduction of sentence under 18 U.S.C.
§ 3582(c)(2).3 In response, the government argued that
Pleasant was not entitled to a reduction because his applicable
guidelines were the Career Offender guidelines, which had
not been amended. On March 23, 2012, the district court
granted the motion from the bench, relying on Freeman v.
United States, 131 S. Ct. 2685 (2011). Specifically, the court
held that, under Freeman, Pleasant’s original sentence was
“based on” the crack-cocaine guidelines.

    Under the revised guidelines, Pleasant’s offense level was
20, adjusted down to 17 for acceptance of responsibility.
U.S.S.G. § 2D1.1(c)(10) (2011). Thus, with the same level VI
criminal history category, Pleasant’s new guideline range was
51–63 months. In light of the five-year mandatory minimum
for convictions under 21 U.S.C. § 841(a)(1), Pleasant was re-




  3
    Pleasant initially filed a premature pro se motion for a reduction in
sentence, which the district court denied without prejudice. He filed a
renewed pro se motion after the guideline amendments became effective.
Thereafter, appointed counsel filed a “Notice of Eligibility.” The filing
was presumably styled as a “notice” rather than a “motion” in order to
invoke the district court’s sua sponte authority under § 3582(c)(2) and not
run afoul of the waiver provision in the plea agreement. The district court,
indeed, relied on its sua sponte authority to order the reduction.
6                      UNITED STATES V . PLEASANT

sentenced to 60 months.4 See 21 U.S.C. § 841(b)(1)(B)(iii)
(2009). The government timely appealed.

                                        II.

    We review de novo whether a district court has
jurisdiction to resentence a defendant under 18 U.S.C.
§ 3582. United States v. Leniear, 574 F.3d 668, 672 (9th Cir.
2009). Under § 3582(c)(2),5 a defendant is eligible for a
sentence reduction if two prongs are satisfied: “(1) the
sentence is ‘based on a sentencing range that has
subsequently been lowered by the Sentencing Commission’
and (2) ‘such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.’” United
States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009) (quoting
18 U.S.C. § 3582(c)(2)) (emphasis added). The “primary


    4
   Because Pleasant was sentenced before August 3, 2010 (the effective
date of the FSA) he cannot benefit from the lower statutory mandatory
minimums codified by the FSA. See United States v. Baptist, 646 F.3d
1225, 1228–29 (9th Cir. 2011) (per curiam). But he was still eligible for
reduction under the revised guidelines, which were made retroactive by
Amendment 759.

    5
        Section 3582(c)(2) provides:

             [I]n 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 . . . , 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.”
                UNITED STATES V . PLEASANT                     7

applicable policy statement” is U.S.S.G. § 1B1.10,6 which
states that a defendant is eligible for a sentence reduction if
“the guideline range applicable to that defendant has
subsequently been lowered as a result of an amendment to the
Guidelines . . . .” U.S.S.G. § 1B1.10(a)(1) (emphasis added).
Although the “applicable to” language from the policy
statement appears to mirror the “based on” language of the
first prong, each prong requires a separate analysis. See
Wesson, 583 F.3d at 730, 732.

                               A.

    The government does not dispute that Pleasant satisfied
the first prong of § 3582(c)(2), but a brief discussion of that
issue provides necessary background for our discussion of the
second prong. In Freeman, the Supreme Court addressed
whether a defendant sentenced pursuant to a Rule 11(c)(1)(C)
plea agreement (“a (C) plea” or “a (C) agreement”) is eligible
for a sentence reduction under § 3582(c)(2). 131 S. Ct. at
2685. The critical question was whether, assuming there was
a relevant Guidelines amendment, such a defendant was
sentenced “based on” that amendment. A four-justice
plurality found that a court may “revisit a prior sentence to
whatever extent the sentencing range in question was a
relevant part of the analytical framework the judge used to
determine the sentence or to approve the agreement.” Id. at
2692–93.

    Justice Sotomayor wrote separately and agreed with the
plurality, but did so on narrower grounds that make her
concurrence controlling. See United States v. Austin,

   6
     See U.S.S.G. § 1B1.10(a)(1) (noting that any reduction under
§ 3582(c)(2) “shall be consistent with this policy statement”).
8              UNITED STATES V . PLEASANT

676 F.3d 924, 927 (9th Cir. 2012). Specifically, Justice
Sotomayor held that a sentence imposed under a (C) plea is
“based on” an amended guideline if: (1) the agreement
“expressly uses a Guidelines sentencing range applicable to
the charged offense to establish the term of imprisonment”;
and (2) that sentencing range was subsequently amended.
Freeman, 131 S. Ct. at 2695 (Sotomayor, J., concurring in the
judgment) (emphasis added).

     Applying Justice Sotomayor’s test here, Pleasant’s
sentence was clearly “based on” the crack-cocaine guidelines
because: (1) the plea agreement expressly used § 2D1.1(c) to
set the stipulated sentence; and (2) because that guideline was
“subsequently amended” via Amendments 748, 749, and 759.
Thus, even though the plea agreement recognized that
Pleasant’s status as a Career Offender could have triggered a
higher offense level, the agreement’s express reliance on
§ 2D1.1(c) means that, under § 3582(c), Pleasant’s sentence
was “based on” § 2D1.1(c). Id. at 2697 (noting that a
sentence reduction is available when the (C) agreement
“call[s] for the defendant to be sentenced within a particular
Guidelines sentencing range”). In sum, Pleasant satisfied the
first requirement for relief under § 3582(c).

                              B.

    Although Pleasant satisfied the “based on” requirement of
§ 3582(c)(2), his sentence reduction would be proper only if
it was also consistent with U.S.S.G. § 1B1.10(a)(1). Wesson,
583 U.S. at 730. That provision permits a reduction only if
“the guideline range applicable to that defendant has
subsequently been lowered as a result of an amendment to the
Guidelines . . . .” U.S.S.G. § 1B1.10(a)(1) (emphasis added).
The central dispute in this appeal is the meaning of
                 UNITED STATES V . PLEASANT                        9

“applicable to” and “applicable guidelines.” The government
contends that, in this case, the applicable guidelines are the
Career Offender guidelines because Pleasant qualified as a
Career Offender, even though he was not sentenced under
those guidelines. Pleasant argues that, under Freeman, the
applicable guideline is § 2D1.1 because the plea agreement
called for sentencing to be imposed under that provision.

    The commentary to § 1B1.10 addresses this very
question.7 See Stinson v. United States, 508 U.S. 36, 38
(1993) (holding that Guidelines commentary is generally
“authoritative”). Specifically, Application Note 1(A) clarifies
that § 3582(c)(2) “is triggered only by an amendment . . . that
lowers the applicable guideline range (i.e., the guideline
range that corresponds to the offense level and criminal
history category determined pursuant to § 1B1.1(a), which is
determined before consideration of any departure provision
in the Guidelines Manual or any variance).” U.S.S.G.
§ 1B1.10 cmt. n.1(A) (2011) (emphasis added). This
language was added to resolve a circuit split that had arisen
over whether a defendant’s “applicable guideline range”
should be derived before or after the application of a
departure or variance. U.S.S.G. app. C, amend. 759. In short,
Amendment 759 makes clear that the applicable guideline is
derived pre-departure and pre-variance.

    Under Amendment 759, Pleasant’s applicable guideline
range is the Career Offender range. The parties agree that
Pleasant qualifies as a Career Offender, and his plea
agreement outlined the stipulated ramifications of his Career


 7
   The relevant commentary is derived from the 2011 Guidelines Manual
which was in effect at the time the district court reduced Pleasant’s
sentence. See U.S.S.G. § 1B1.10, cmt. n.6.
10                 UNITED STATES V . PLEASANT

Offender status. Pleasant was only able to avoid the Career
Offender guidelines because the district court granted a
downward variance. Accordingly, Pleasant’s pre-variance
guideline range, i.e., his “applicable guideline range,” is the
Career Offender guideline.

    Section 6B1.2, which outlines the “Standards for
Acceptance of Plea Agreements,” confirms that a defendant’s
applicable range is distinct from the range agreed to in a plea
agreement. Specifically, § 6B1.2 allows a court to accept a
(C) agreement if “the agreed sentence is outside the
applicable guideline range for justifiable reasons.”
(emphases added). This provision expressly distinguishes
between the “applicable guideline range” and the “agreed
sentence.” Stated in terms of Pleasant’s plea, the applicable
guideline range was the Career Offender range, but the agreed
sentence was determined under the crack-cocaine range.8

    In sum, § 1B1.10 mandates that the Career Offender
guidelines were Pleasant’s “applicable guidelines”; thus, the
district court did not have jurisdiction either to hear
Pleasant’s § 3582(c) motion or to act sua sponte.

  8
    As the Sixth Circuit has noted, this reading of “applicable guideline”
is consistent with the purpose of § 3582(c)(2). “By its terms, § 3582(c)(2)
seeks to allow a sentence reduction only when the Sentencing
Commission has determined that a defendant’s original sentencing range
was excessive. In this case . . . [i]t was only the sentencing court that
determined that [defendant’s] career offender range was excessive, acting
under its departure authority, rather than by recalculating or altering the
‘applicable guideline range.’” United States v. Pembrook, 609 F.3d 381,
387 n.8 (6th Cir. 2010) (internal citation omitted). In issuing Amendment
759, the Commission referenced Pembrook as being on the correct side of
a circuit split over whether “applicable guideline” should be derived pre-
or post-departure. See U.S.S.G. app. C, vol. III. at 421 (adopting the
approach taken by the Sixth, Eighth, and Tenth Circuits).
               UNITED STATES V . PLEASANT                  11

                             III.

    Despite the clear directive in § 1B1.10, Pleasant contends
that Freeman controls the meaning of “applicable guidelines”
when a defendant is sentenced pursuant to a (C) agreement.
Pleasant misreads Freeman. Even if his reading were
accurate, Amendment 759 would have abrogated Freeman.

    As discussed above, Freeman established that, under
§ 3582(c)(2), a defendant’s sentence is “based on” whatever
guidelines the parties have agreed to in a (C) agreement.
Thus, because Freeman’s (C) agreement called for sentencing
under the crack-cocaine guidelines, Justice Sotomayor
concluded that his sentence was “based on” those guidelines.
Freeman, 131 S. Ct. at 2699. This conclusion only satisfied
the first prong of § 3582(c)(2), however, because a defendant
must also show that a sentence reduction is consistent with
§ 1B1.10, which requires that a defendant’s “applicable
guideline range” have been amended.

    As to this second prong, nothing in Freeman suggests that
Freeman’s agreed range was outside of the applicable range,
or that it arose from a departure or variance. Freeman’s
sentence thus satisfied “the second of § 3582(c)(2)’s
conditions” because the amendment had “‘the effect of
lowering [his] applicable guideline range.’” Id. at 2700
(Sotomayor, J., concurring in the judgment) (quoting
U.S.S.G. § 1B1.10(a)(2)(B)). But Pleasant’s circumstances
differ from Freeman’s because Pleasant’s “agreed sentence
[was] outside the applicable guideline range . . . .” U.S.S.G.
§ 6B1.2. In short, Freeman only addressed when a sentence
is “based on” a subsequently amended sentencing range, and
its holding does not control the question presented in this
appeal. See United States v. Ware, 694 F.3d 527, 534 (3d Cir.
12                UNITED STATES V . PLEASANT

2012) (holding that “the meaning of the term ‘based on’ – and
hence the holding of Freeman – is simply not germane to”
§ 1B1.10(a)(2)’s requirement that the amendment have
lowered the defendant’s applicable guideline range); see also
Freeman, 131 S. Ct. at 2701 (Roberts, C.J., dissenting) (“The
lone issue here is whether petitioner . . . meets the initial
prerequisite of having been sentenced to a term of
imprisonment ‘based on’ a subsequently reduced sentencing
range.”).

    Even if Freeman’s sentence had been a deviation from
otherwise applicable guidelines, e.g., even if he was a Career
Offender, then, the Freeman ruling would be in direct conflict
with Amendment 759. As noted above, Amendment 759 –
which was issued after Freeman – specified that the
applicable guideline range is “determined before
consideration of any departure provision in the Guidelines
Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A).
Thus, Pleasant’s expansive view of Freeman directly
conflicts with later-promulgated Guidelines commentary, and
the commentary controls. See Stinson, 508 U.S. at 46
(“[P]rior judicial constructions of a particular guideline
cannot prevent the Commission from adopting a conflicting
interpretation . . . .”); Ware, 694 F.3d at 534 n.4
(“§ 3582(c)(2) expressly incorporates the Guidelines policies,
and therefore modification of the relevant policies may affect
the proper interpretation of the statute as a whole”).9

  9
    Similarly, the W estern District of W ashington recently observed that
“this Court cannot ignore that Freeman pre-dated the Commission’s
amendment of § 1B1.10 and that the Supreme Court has stated on many
occasions that the Commissions’ statements regarding sentencing
modifications, specifically those contained at § 1B1.10, are
determinative.” United States v. Vinnie, No. 04-326-RSL, 2012 W L
992113 at *2 (W.D. W ash. Mar. 22, 2012).
               UNITED STATES V . PLEASANT                   13

    In sum, Freeman did not hold that a defendant’s agreed
sentencing range is necessarily the same as his applicable
sentencing range and, even if it did, Freeman would have
been abrogated by Amendment 759’s clarification of the
definition of “applicable guidelines.” Under that definition,
Pleasant’s applicable guidelines were the Career Offender
guidelines. Thus, Pleasant was not entitled to a reduction in
sentence under § 3582.

                      CONCLUSION

    The district court’s order reducing Pleasant’s sentence is
reversed and the case is remanded with instructions to
reinstate Pleasant’s original sentence as set forth in his plea
agreement.

   REVERSED and REMANDED.
