               United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-3862
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Elnora Levitha Logan

                    lllllllllllllllllllll Defendant - Appellant
                                    ____________

                   Appeal from United States District Court
                for the Southern District of Iowa - Des Moines
                                ____________

                          Submitted: December 10, 2012
                              Filed: April 2, 2013
                                 ____________

Before LOKEN, MELLOY, and COLLOTON, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.
       Elnora Logan appeals the district court’s denial of her 18 U.S.C. § 3582(c)(2)
motion to reduce her sentence based on an amendment to the advisory guidelines that
lowered the base offense levels for certain cocaine base (“crack cocaine”) drug
offenses. The district court ruled that Logan was not eligible for § 3582(c)(2) relief.
We conclude that this ruling is inconsistent with the Supreme Court’s recent decision
in Freeman v. United States, 131 S. Ct. 2685 (2011), governing when defendants
sentenced for crack offenses based upon Rule 11(c)(1)(C) plea agreements are
eligible for § 3582(c)(2) relief. Accordingly, we reverse.

        A district court has very limited authority to reduce a term of imprisonment
after it has been imposed. 18 U.S.C. § 3582(c). An often-invoked exception to the
general rule is found in § 3582(c)(2), which provides in relevant part:

            (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 . . . upon motion of the
      defendant . . . the court may reduce the term of imprisonment . . . if such
      a reduction is consistent with applicable policy statements issued by the
      Sentencing Commission.

The Sentencing Commission’s introductory guidelines limit this authority to
guideline amendments it has expressly made retroactive, which include the crack
cocaine amendments. See U.S.S.G. § 1B1.10(a)(2), (c). We review de novo the
district court’s determination that Logan was not eligible for a reduction under 18
U.S.C. § 3582(c)(2). United States v. Browne, 698 F.3d 1042, 1045 (8th Cir. 2012).

                                          I.

      In March 1996, Logan pleaded guilty to conspiring to distribute 50 grams or
more of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. The plea
agreement included sentencing stipulations but recited that the sentence to be

                                         -2-
imposed was “within the Court’s discretion.” The agreement further provided that
Logan would “fully cooperate” and explained the government’s discretion to file a
substantial assistance motion either at the time of sentencing or thereafter.

       A presentence investigation report (“PSR”) was then prepared. The PSR
recommended findings that would result in an advisory guidelines range of 151 to
188 months in prison. It also reported a previously unknown prior felony drug
conviction that exposed Logan to a mandatory minimum twenty-year sentence. See
21 U.S.C. § 841(b)(1)(A). Paragraph 7 of the plea agreement provided that “the
government may withdraw from the plea agreement” if Logan “is found to have a
prior felony drug conviction.” Instead, in early August 2006, the parties entered into
a Sentencing Agreement and Stipulation pursuant to Rule 11(c)(1)(C) of the Federal
Rules of Criminal Procedure (“the (C) Agreement”). In the (C) Agreement, the
parties agreed to “the sentencing guideline computation” in the PSR, including the
advisory guidelines range of 151 to 188 months, in consideration for the government
not exercising its right to withdraw from the prior plea agreement and an
understanding that “any and all” substantial assistance provided by Logan “ha[d] been
considered and included within the agreed-upon sentencing range of 151-188
months.” At the August 18 sentencing, the district court approved the (C) Agreement
and sentenced Logan to 156 months in prison.

       In June 2008, following the initial retroactive crack cocaine amendment, the
district court reviewed Logan’s sentence and denied § 3582(c)(2) relief because she
was sentenced “consistent with a binding” (C) Agreement. At the time, this ruling
was consistent with decisions of many of our sister circuits. See United States v.
Scurlark, 560 F.3d 839, 841 n.2 (8th Cir.), cert. denied, 130 S. Ct. 738 (2009).

      In July 2008, the government filed a Rule 35(b) motion to reduce Logan’s
sentence for substantial assistance she provided after sentencing. The government
recommended a twenty percent reduction. The district court granted the motion and

                                         -3-
reduced Logan’s sentence to 120 months, the mandatory minimum applicable to the
drug quantity to which the parties stipulated in the (C) Agreement. In September
2011, Logan moved for a sentence reduction under 18 U.S.C. § 3582(c)(2) based on
the 2011 retroactive crack cocaine amendment. See U.S.S.G. App. C, Amend. 750.
The district court denied the motion, concluding that Logan was ineligible for a
reduction because her sentence had been previously reduced to the statutory
minimum. Logan appeals that order. The government primarily argues that the (C)
Agreement makes Logan ineligible for relief under § 3582(c)(2) as construed in
Freeman. We disagree.

       Unlike most plea agreements, which leave the sentence to be imposed to the
discretion of the district court at sentencing, an agreement under Rule 11(c)(1)(C)
“binds the court once the court accepts the plea agreement.” This raises the question
whether a sentence imposed by the court after accepting a Rule 11(c)(1)(C) agreement
was “based on a sentencing range that has subsequently been lowered” within the
meaning of § 3582(c)(2). In Freeman, a sharply divided Court resolved a conflict in
the circuits on this question. There was no majority opinion in Freeman. Four
Justices broadly concluded that defendants sentenced in accordance with Rule
11(c)(1)(C) agreements are eligible for discretionary § 3582(c)(2) relief because the
guidelines mandate that acceptance of a (C) agreement “is itself based on the
Guidelines.” 131 S. Ct. at 2692 (opinion of Kennedy, J.); see U.S.S.G. § 6B1.2. Four
dissenting Justices would have categorically precluded § 3582(c)(2) relief because
a sentence entered in accordance with a Rule 11(c)(1)(C) agreement is “based on” the
agreement, not a guidelines range. 131 S. Ct. at 2700 (Roberts, C.J., dissenting).
Justice Sotomayor, the fifth vote to reverse, adopted a narrower middle ground. 131
S. Ct. at 2695 (Sotomayor, J., concurring). We concluded in Browne, as have most
other circuits, that Justice Sotomayor’s concurring opinion “is controlling and
represents the holding of the Court” in Freeman. 698 F.3d at 1045.




                                        -4-
       Justice Sotomayor agreed with the dissenting Justices that a sentence imposed
in accord with a Rule 11(c)(1)(C) agreement is “based on” the agreement, not on the
district court’s consideration of the guidelines in deciding whether to accept the plea.
Freeman, 131 S. Ct. at 2695. Therefore, “the mere fact that the parties to a (C)
agreement may have considered the Guidelines in the course of their negotiations
does not empower the court under § 3582(c)(2) to reduce the term of imprisonment
they ultimately agreed upon.” Id. at 2697. However, Justice Sotomayor reasoned, “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).” Id. at 2695.

       Noting that Rule 11(c)(1)(C) expressly authorizes the parties to “agree that a
specific sentence or sentencing range is the appropriate disposition of the case,”
Justice Sotomayor described two types of agreement provisions that result in a
sentence “based on a sentencing range” within the meaning of § 3582(c)(2). Id. at
2697. First:

      In delineating the agreed-upon term of imprisonment, some (C)
      agreements may call for the defendant to be sentenced within a
      particular Guidelines 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 no doubt that the term of
      imprisonment the court imposes is “based on” the agreed-upon
      sentencing range within the meaning of § 3582(c)(2).

Id. Even Chief Justice Roberts in dissent, while advocating a categorical rule
precluding reduction of any sentence based on a Rule 11(c)(1)(C) agreement,
described this first “departure” from that rule as “innocent[] enough.” Id. at 2701.
Second, Justice Sotomayor explained:

                                          -5-
      a plea agreement might provide for a specific term of imprisonment . . .
      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 . . .
      is “based on” that range.

Id. at 2697-98. It is this category of agreements that was the focus of the Chief
Justice’s dissent. See id. at 2703 (“The reality is that whenever the parties choose a
fixed term, there is no way of knowing what that sentence was ‘based on.’”) In
Freeman, Justice Sotomayor concluded that the (C) agreement fell within this more
open-ended second category and therefore Freeman was eligible for § 3582(c)(2)
relief. Id. at 2700. Our post-Freeman decisions affirming denials of § 3582(c)(2)
relief have similarly addressed whether the Rule 11(c)(1)(C) agreements at issue fell
within this second category of (C) agreement provisions. See Browne, 698 F.3d at
1046; United States v. Hoskins, 489 Fed. App’x 990 (8th Cir. 2012), cert. denied, No.
12-8271, 81 U.S.L.W. 3454 (U.S. Feb. 19, 2013).

       By contrast, the Rule 11(c)(1)(C) agreement in this case falls squarely within
Justice Sotomayor’s first category. The parties’ (C) Agreement explicitly adopted the
recommended guidelines determinations in the PSR and then expressly agreed on a
guidelines sentencing range -- 151 to 188 months -- not on a specific sentence.
Under this Agreement, the district court retained at sentencing discretion to impose
a sentence anywhere in the agreed range, discretion that necessarily had to be
exercised consistent with the advisory guidelines and the sentencing factors in 18
U.S.C. § 3553(a). As Justice Sotomayor declared, “there can be no doubt” that the
resulting sentence was “‘based on’ the agreed-upon sentencing range.” 131 S. Ct. at
2697. Therefore, under the controlling decision in Freeman, Logan’s sentence was
“based on” a sentencing range of 151 to 188 months in prison.




                                         -6-
       Alternatively, the government argues that Logan’s original sentence could only
be “based on” the applicable 20-year statutory minimum sentence. This contention
is likewise foreclosed by Justice Sotomayor’s opinion in Freeman: “it is the parties’
agreement that controls in the (C) agreement context . . . even if the District Court
[would have] calculated the range differently than the parties.” 131 S. Ct. at 2699
n.8. Here, the (C) Agreement established a 151-to-188-month range. Moreover, the
government did not file the information required by 21 U.S.C. § 851(a)(1) to make
the 20-year minimum applicable, and the district court made no statutory minimum
determination at sentencing.

                                          II.

       The district court denied Logan’s motion for § 3582(c)(2) relief on a different
ground, concluding that she was “not eligible for the retroactive sentence adjustment
as [she] was previously sentenced to the mandatory minimum term of imprisonment.”
We disagree. It is true that a § 3582(c)(2) reduction is not authorized by a retroactive
guidelines amendment that “does not have the effect of lowering the defendant’s
applicable guideline range because of the operation of” a statutory minimum
sentence. U.S.S.G. § 1B1.10, comment. (n.1(A)). At sentencing, when the statutory
minimum is greater than the otherwise applicable range, the statutory minimum “shall
be the guideline sentence,” U.S.S.G. § 5G1.1(b); therefore, the defendant is not later
eligible for § 3582(c)(2) relief if the displaced range is retroactively lowered because
the applicable statutory minimum did not change. See United States v. Baylor, 556
F.3d 672, 673 (8th Cir. 2009).

       But this case presents a different issue. Logan was originally sentenced based
on a range of 151 to 188 months in prison, well above the 120-month statutory
minimum applicable to the drug quantity stipulated in the (C) Agreement. Some two
years later, the government filed a Rule 35(b) substantial assistance motion. The
district court granted the motion and reduced Logan’s sentence to the statutory

                                          -7-
minimum, 120 months. The parties agree that the 2011 retroactive crack cocaine
amendment lowered the range in the (C) Agreement to 92 to 115 months. This brings
into play the guidelines provision that a § 3582(c)(2) reduction may not be to a term
below the minimum of the amended guideline range -- here, 120 months by reason
of the statutory minimum -- unless the sentence being reduced was below the then-
applicable range pursuant to a substantial assistance motion, in which case “a
reduction comparably less than the amended guideline range . . . may be appropriate.”
U.S.S.G. § 1B1.10(b)(2)(A) & (B).

       In this case, the government’s prior Rule 35(b) motion, like a substantial
assistance motion at sentencing under 18 U.S.C. § 3553(e), permitted the court to
“reduce the sentence to a level below the minimum sentence established by statute.”
Rule 35(b)(4); see United States v. Grant, 636 F.3d 803, 807, 812-13 (6th Cir.) (en
banc), cert. denied, 132 S. Ct. 371 (2011). Therefore, although the district court
limited its prior reduction to the statutory minimum, it was not required to do so and
now has the discretion to grant a § 3582(c)(2) reduction comparable to that originally
provided under Rule 35(b), even though such a reduction would bring Logan’s
sentence below the applicable statutory minimum. Accord United States v. Cooper,
353 Fed. App’x 70, 71-72 (8th Cir. 2009) (unpublished).

       For these reasons, we conclude that Elnora Logan is eligible for an exercise of
the district court’s substantial discretion under 18 U.S.C. § 3582(c)(2). Accordingly,
we reverse the district court’s Order dated November 14, 2011, and remand for
further proceedings not inconsistent with this opinion. We deny as moot the pending
Joint Motion To Remand.

COLLOTON, Circuit Judge, dissenting.

       The question presented in this appeal is whether Elnora Logan was “sentenced
to a term of imprisonment based on a sentencing range that has subsequently been

                                         -8-
lowered by the Sentencing Commission,” within the meaning of 18 U.S.C.
§ 3582(c)(2). Logan was sentenced pursuant to a Sentencing Agreement and
Stipulation that the parties entered pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C). In light of Freeman v. United States, 131 S. Ct. 2685 (2011), I conclude
that Logan’s sentence was not “based on” a Guidelines sentencing range, and that the
district court’s order of November 14, 2011, should be affirmed.

       The controlling opinion in Freeman concluded that a term of imprisonment is
“based on” a Guidelines sentencing range where a plea agreement authorized by Rule
11(c)(1)(C) “expressly uses a Guidelines sentencing range applicable to the charged
offense to establish the term of imprisonment.” 131 S. Ct. at 2695 (Sotomayor, J.,
concurring). Not every plea agreement that specifies a particular sentencing range
qualifies. The agreement must “employ[] the particular Guidelines sentencing range
applicable to the charged offenses in establishing the term of imprisonment.” Id. at
2698 (emphasis added). If the parties arrive at an agreed-upon sentencing range by
considering factors other than the Guidelines range applicable to the defendant’s
charged offense, then the term of imprisonment is not “based on” a Guidelines
sentencing range that has been subsequently lowered.

       This court’s decision in United States v. Scurlark, 560 F.3d 839 (8th Cir.
2009), illustrates the point. There, the parties, pursuant to Rule 11(c)(1)(C), agreed
to “a binding sentencing range of 151 to 188 months’ imprisonment, agreeing that
Scurlark’s offense level was 33 and that he had a Category II criminal history.” Id.
at 840. Nonetheless, this court held that Scurlark’s sentence was not “based on” a
Guidelines sentencing range, because “[e]ach party offered concessions to reach the
agreement,” and the circumstances thus demonstrated “the contractual nature of the
agreement.” Id. at 842. Justice Sotomayor specifically cited Scurlark as a decision
that took an approach “consistent with” her controlling opinion in Freeman. 131
S. Ct. at 2698 n.3, 2700 n.9 (Sotomayor, J., concurring).



                                         -9-
       The Rule 11(c)(1)(C) sentencing agreement in this case demonstrates that the
parties did not merely employ the Guidelines range applicable to the charged offense
to arrive at an agreed-upon sentencing range, but rather reached an agreement of a
“contractual nature” that reflected the influence of other factors. The parties initially
signed a plea agreement that did not include a binding stipulation about sentencing.
This agreement noted that Logan had represented to the government that she had no
prior felony drug conviction. When the government later discovered that Logan had
been convicted of a felony drug offense, the government had the option to withdraw
from the plea agreement and to enhance Logan’s sentence to a mandatory minimum
term of 240 months’ imprisonment. See 21 U.S.C. §§ 841(b)(1)(A) and 851. Instead,
the parties entered into a new Sentencing Agreement and Stipulation under Rule
11(c)(1)(C). This agreement provided that “[r]ather than withdraw from the plea
agreement in order to enhance the Defendant’s sentence to 20 years and in order to
address substantial assistance . . ., the parties have reached this agreement to a
stipulated sentence within the guidelines range of 151-188 months.”

       The sentencing agreement served the interests of both parties. Instead of
subjecting Logan to the 240-month mandatory minimum sentence by filing a notice
of her prior conviction under § 851, and then moving to reduce her sentence for the
provision of substantial assistance pursuant to 18 U.S.C. § 3553(e), the government
eliminated those intermediate steps by agreeing directly to a sentencing range of 151-
188 months. The government thus awarded Logan a benefit for her assistance but
eliminated the possibility that an unconstrained sentencing court might reduce
Logan’s sentence below 151 months based on § 3553(e). For her part, Logan avoided
triggering the mandatory minimum sentence and averted the risk that she could be
sentenced to more than 188 months’ imprisonment, if the sentencing court granted
only a small reduction for substantial assistance. The result was a sentence that was
“based on” the sentencing agreement, but not based on a Guidelines sentencing range
that was subsequently lowered.



                                          -10-
       For these reasons, I would affirm the district court’s order that Logan is
ineligible for a reduction in sentence pursuant to § 3582(c). Even under the
majority’s contrary view, however, the district court could decline to reduce Logan’s
term of imprisonment if the government argues “that it made significant concessions
in the agreement . . . and therefore it would not have agreed to a lower sentence at the
time the agreement was made.” 131 S. Ct. at 2699 n.6 (Sotomayor, J., concurring).
                         ______________________________




                                         -11-
