                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0748n.06

                                       Nos. 08-6374, 09-5047
                                                                                        FILED
                                                                                   NOV 20, 2009
                                                                               LEONARD GREEN, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
        Plaintiff-Appellee,                               )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
                v.                                        )        COURT FOR THE WESTERN
                                                          )        DISTRICT OF KENTUCKY
ANTONIO GOINS; WILLIAM FREEMAN,                           )
                                                          )
        Defendants-Appellants.                            )
                                                          )



BEFORE: BOGGS, ROGERS, and WHITE, Circuit Judges.

        ROGERS, Circuit Judge. In these consolidated cases, two criminal defendants seek to have

their sentences reduced based on the more lenient treatment that the Sentencing Guidelines now

afford to crack offenders. In each case, the defendant pled guilty pursuant to an agreement under

Federal Rule of Criminal Procedure 11(c)(1)(C), which rule binds the court to the sentence described

in the agreement if the court accepts the plea. Under United States v. Peveler, 359 F.3d 369 (6th Cir.

2004), neither defendant is entitled to relief.

        In November 2005, Antonio Goins was indicted for two counts of crack possession, one

count of cocaine possession, and two counts of weapon possession. He entered a plea agreement

with the Government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). According to the

terms of the agreement, Goins would plead guilty to the drug counts and one of the weapon counts,

and the Government would move to dismiss the other weapon count. The agreement specified that
Nos. 08-6374, 09-5047
United States v. Antonio Goins, et al


the Government would agree to a sentence of fourteen years of imprisonment. The agreement also

went on to discuss the applicability of the Guidelines and to specify how the various provisions

would apply to Goins. The parties specified the exact quantity of crack and powder for which Goins

would be held responsible and spelled out exactly how those amounts would result in a base offense

level of 30. The parties agreed that Goins would receive a three-level reduction for acceptance of

responsibility and would not receive a two-level increase for possession of a dangerous weapon. The

parties also agreed that Goins was subject to a five-year mandatory minimum consecutive sentence

for the remaining weapon offense. The agreement did not specify Goins’s criminal history category,

and the parties reserved the right to object to the court’s determination of that category but agreed

not to seek a departure under U.S.S.G. § 4A1.3 from that determination. The agreement also

specified, consistent with the provisions of Rule 11(c)(1)(C), that if the court did not accept and

comply with the terms of the agreement the agreement would be null and void and Goins could

withdraw his plea of guilty.

       Consistent with the agreement, the court sentenced Goins to a fourteen-year term of

imprisonment. Because the court assigned Goins a criminal history category of II, the fourteen-year

term exceeded the recommended Guidelines range by eleven months.

       In January 2005, William Freeman was charged in a superseding indictment with one count

of crack possession, one count of marijuana possession, and two counts of weapon possession. Like

Goins, Freeman entered a plea agreement pursuant to Rule 11(c)(1)(C). The terms required Freeman

to plead guilty to all the counts in the superseding indictment and the Government to agree to a


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United States v. Antonio Goins, et al


sentence of 106 months. Like Goins’s agreement, Freeman’s agreement specified the exact

quantities of drugs for which he was accountable and that he would receive a three-level reduction

for acceptance of responsibility. The agreement specified that Freeman’s offense level after the

three-level reduction would be 19 and that his criminal history category would be determined by the

court, although the parties anticipated that Freeman’s criminal history category would be IV. Like

Goins’s agreement, the agreement also specified that if the court did not accept and comply with the

terms of the agreement, the agreement would be null and void and Freeman could withdraw his plea

of guilty. Consistent with the agreement, the court sentenced Freeman to 106 months in prison.

        After entry of both sentences, the Sentencing Commission amended the Guidelines to reduce

the disparity in the treatment of crack and powder cocaine and made the amendment retroactive. See

U.S.S.G. Appx. C, Amend. 706, id. § 1B1.10. Goins and Freeman sought to have their sentences

reduced. In each case, the district court held that this circuit’s precedent in United States v. Peveler

precluded modification of a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement. In

Goins’s case, the court added that the original sentence remained “sufficient but not greater than

necessary to satisfy the purposes of sentencing.” In Freeman’s case, the court expressed ambivalence

about the reasoning of Peveler but acknowledged it as binding precedent. Both defendants appealed.

        The court’s holding in Peveler precludes resentencing in each defendant’s case. In Peveler,

we held that the language of Rule 11(c)(1)(C) generally precludes a court from amending a sentence

imposed pursuant to a plea under that provision, regardless of any subsequent change to the

Guideline underlying the plea agreement. 359 F.3d at 379. Although Peveler’s holding does not


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United States v. Antonio Goins, et al


preclude reducing the sentence of a defendant who pled under Rule 11(c)(1)(C) where resentencing

is necessary to avoid a miscarriage of justice, see 359 F.3d at 379 n.4, neither Goins nor Freeman

falls within that exception.

        Goins is not entitled to resentencing because the district court specifically reiterated the

appropriateness of Goins’s sentence in light of the amendment to the Guidelines. Due to some

uncertainty about which criminal history category the court would assign, Goins’s agreed-upon

sentence ultimately exceeded the high end of the Guidelines range applicable at the time Goins was

sentenced. Given a criminal history category of II, Goins’s advisory range was 78 to 97 months, to

run consecutively with a 60-month mandatory minimum sentence for possession of a firearm in

furtherance of a drug trafficking crime. This resulted in a total Guidelines range of 138 to 157

months, below the agreed-upon 168 months. The amendment to the Guidelines reduced the advisory

portion of the sentence to 63 to 78 months, resulting in a total range of 123 to 138 months. Goins’s

14-year (168 month) sentence therefore exceeds the high end of the amended range by 30 months

instead of 11. This disparity, however, does not by itself constitute a miscarriage of justice. In

pleading guilty, Goins entered into a carefully constructed agreement in which the parties balanced

many factors—including the charges to which Goins would plead guilty, the charges which the

Government would move to dismiss, and the amount of drugs for which Goins would be held

responsible. Having carefully bargained to reach this sentence, the parties acted under Rule

11(c)(1)(C) in order to restrict the ability of the court to upset the negotiated balance. Nothing in this




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United States v. Antonio Goins, et al


record suggests that declining to resentence Goins works any injustice. The district court did not err

by holding Goins to the bargain he made. Peveler, 359 F.3d at 373.

       Freeman also does not qualify for an exception under Peveler, but for different reasons.

Unlike the court that considered Goins’s motion for resentencing, the court considered Freeman’s

motion did not reiterate the appropriateness of Freeman’s sentence. To the contrary, the court

indicated that it felt constrained to deny Freeman’s motion. However, the district court did not

indicate that failing to resentence Freeman resulted in a miscarriage of justice. Indeed, Peveler

would not have supported such a conclusion. Like the defendant in Peveler, Freeman’s original 106-

month sentence remained inside the Guidelines range for his crime, even after the amendment. See

id. at 379 n. 4. At the time Freeman was sentenced, the Guidelines called for a sentence of 46 to 57

months, to run consecutively with a 60-month mandatory minimum sentence for possession of a

firearm in furtherance of a drug trafficking crime, for a total of 106 to 117 months. Under the

amended Guidelines, the range was 37 to 46 months, also to run consecutively with the 60-month

sentence, for a total of 97 to 106 months. Freeman’s 106-month sentence therefore fell at the bottom

of the range before the amendment and at the top of the range after the amendment, a situation that

the Peveler court contemplated and determined did not overcome the general prohibition on

resentencing. See id. (“We note, however, that with the two-level deduction sought, Peveler’s actual

sentence is within the revised sentencing guideline range although the sentence is not at the low end

of the revised guideline range as provided in the plea agreement.”).

       For the foregoing reasons, the orders denying resentencing are AFFIRMED.


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Nos. 08-6374, 09-5047
United States v. Antonio Goins, et al


       WHITE , Circuit Judge, concurring. I agree that affirmance is mandated by our decision

in United States v. Peveler, 359 F.3d 369 (6th Cir. 2004), and thus concur. I write separately because

I believe Peveler construes 18 U.S.C. § 3582(c)(2) more narrowly than Congress intended.

       Peveler’s, and Goins’ and Freeman’s, sentence modification requests are based on 18 U.S.C.

§ 3582(c)(2), which provides:

       The court may not modify a term of imprisonment once it has been imposed except
       ... 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 ... after
       considering the factors set forth in section 3553(a) ... if such a reduction is consistent
       with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3553(a) lists the following factors to be considered when imposing sentence:

       (1) the nature and circumstances of the offense and the history and characteristics of
       the defendant;

       (2) the need for the sentence imposed --

               (A) to reflect the seriousness of the offense, to promote respect for the
               law, to provide just punishment for the offense;

               (B) to afford adequate deterrence to criminal conduct;
               (C) to protect the public from further crimes of the defendant; and

                                                 ***
       (5) any pertinent policy statement --

               (A) issued by the Sentencing Commission ...
       (6) the need to avoid unwarranted sentence disparities among defendants with
       similar records who have been found guilty of similar conduct; . . . .




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United States v. Antonio Goins, et al


United States Sentencing Commission Policy statement U.S.S.G. §1B1.10 addresses §3582(c)(2)

motions, stating:

       a) Authority.--
              (1) In General.--In a case in which a defendant is serving a term of
              imprisonment, and the guideline range applicable to that defendant
              has subsequently been lowered as a result of an amendment to the
              Guidelines Manual listed in subsection (c) below, the court may
              reduce the defendant's term of imprisonment as provided by 18
              U.S.C. 3582(c)(2). As required by 18 U.S.C. 3582(c)(2), any such
              reduction in the defendant's term of imprisonment shall be consistent
              with this policy statement.

               (2) Exclusions.--A reduction in the defendant's term of imprisonment
               is not consistent with this policy statement and therefore is not
               authorized under 18 U.S.C. 3582(c)(2) if--

                      (A) None of the amendments listed in subsection (c)
                      is applicable to the defendant; or

                      (B) An amendment listed in subsection (c) does not
                      have the effect of lowering the defendant's applicable
                      guideline range.

               (3) Limitation.--Consistent with subsection (b), proceedings under 18
               U.S.C. 3582(c)(2) and this policy statement do not constitute a full
               resentencing of the defendant.

       (b) Determination of Reduction in Term of Imprisonment.--

               (1) In General.--In determining whether, and to what extent, a
               reduction in the defendant's term of imprisonment under 18 U.S.C.
               3582(c)(2) and this policy statement is warranted, the court shall
               determine the amended guideline range that would have been
               applicable to the defendant if the amendment(s) to the guidelines
               listed in subsection (c) had been in effect at the time the defendant
               was sentenced. In making such determination, the court shall
               substitute only the amendments listed in subsection (c) for the
               corresponding guideline provisions that were applied when the

                                                -7-
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United States v. Antonio Goins, et al


                 defendant was sentenced and shall leave all other guideline
                 application decisions unaffected.

       Following the Tenth Circuit’s decision in United States v. Trujeque, 100 F.3d 869 (10th Cir.

1996), which also involved a plea taken under Rule 11, the Peveler court explained:

       The Tenth Circuit then ruled that the defendant's sentence was not actually calculated
       under the guidelines, but was determined by the Rule 11(e)(1)(C) plea agreement.
       Id. at 871. Thus, this retroactive amendment could not have affected the original
       sentence, and the Tenth Circuit directed a dismissal of the motion to modify. Id.
       Similarly, Peveler was sentenced pursuant to a Rule 11(e)(1)(C) plea agreement that
       binds both the parties and the court. The fact that the parties in this case specified an
       offense level under the sentencing guidelines rather than a fixed period of
       imprisonment like the parties in Trujeque is a distinction without a difference in
       terms of the court lacking the power to amend the plea agreement.

[Peveler, 359 F.3d at 378.] Like the Tenth Circuit, the Peveler court emphasized the binding nature

of Rule 11(c)(1)(C) sentence agreements once the plea is accepted by the court:

       Thus, absent an agreement of the parties, the plain language of the current version of
       Rule 11(e)(1)(C), now Rule 11(c)(1)(C), generally precludes the district court from
       altering the parties' agreed sentence under 18 U.S.C. § 3582(C). This conclusion
       applies despite the retroactivity of a subsequent amendment to a relevant guideline
       utilized to determine the defendant's sentence.

[359 F.3d at 378-79.]1


       1
           The relevant provision states:

       (c) Plea Agreement Procedure.

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

                                                 -8-
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United States v. Antonio Goins, et al



       There is indeed a tension between the various provisions bearing on the question. Sentences

imposed pursuant to Rule 11(c)(1) agreements are different in that usually the defendant has received

concessions in exchange for a plea of guilty or nolo contendere. These concessions may include the

dismissal of charges, or charge reductions that affect the applicable Guidelines range. In such cases,

the government may have made the concessions relying, at least in part, on the knowledge that the

defendant will be sentenced to a certain minimum term. On the other hand, Rule 11(c)(1)

negotiations and the resulting agreements are informed and shaped by the existing Guidelines. The

parties evaluate their gains and concessions using the Guidelines as their yardstick.

       With this context in mind, I look to the language of 18 U.S.C. § 3582(c)(2). The statute

authorizes a modification of sentence where the defendant has been sentenced to a term of

imprisonment “based on a sentencing range that has subsequently been lowered by the Sentencing

Commission.” [Emphasis added.] The Peveler court concluded that a sentence imposed pursuant




                       (A) not bring, or will move to dismiss, other charges;
                                               ***

                       (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)(C).

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United States v. Antonio Goins, et al


to a Rule 11(c)(1)(C) agreement is based on the agreement, not the Guidelines, and thus is not

encompassed by the statute. This is an overly narrow interpretation of the statute.

       The statute does not address the issue directly; although it lists certain exceptions, a sentence

imposed pursuant to a plea agreement is not one of them. The statutory language – “sentenced to

a term of imprisonment based on a sentencing range that has subsequently been lowered” – can be

fairly understood to support either result. One can say that a Rule 11(c)(1)(C) sentence is based on

the plea agreement, not the Guidelines; or one can say that the sentence is imposed pursuant to the

agreement but is based on many factors, including the agreement and the Guidelines.

       Nothing in the statute or policy statements supports the conclusion that Congress intended

to exclude sentences that were based on the Guidelines, but imposed pursuant to Rule 11(c)(1)(C)

plea agreements. Congress obligated the Sentencing Commission to review and revise the

Guidelines periodically, 28 U.S.C. 994(o), and gave the courts explicit authority to amend sentences

that were based on Guideline ranges that were subsequently lowered by the Commission, provided

the sentence reduction is consistent with policy statements issued by the Commission. Acting under

Congressional authority, the Sentencing Commission has determined that certain amendments to the

Guidelines, including the revision to the 100-to-1 powder/crack cocaine ratio, should be applied

retroactively, so that sentences based on Guidelines and ranges that have subsequently been

reevaluated and rejected in favor of new Guidelines and ranges can be adjusted if necessary to

achieve the goals of sentencing as expressed by Congress in § 3553(a). Given that Rule 11(c)(1)(C)

sentences are negotiated in the context of the same Guidelines as non-negotiated sentences, and are


                                                 -10-
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United States v. Antonio Goins, et al


affected by the same Guidelines later rejected and amended by the Commission, there is no reason

to believe Congress intended to single these sentences out and deny § 3582(c)(2) relief to defendants

who pleaded guilty pursuant to Rule 11(c)(1)(C) agreements. The essential feature of these

sentences is the same whether imposed solely in the exercise of the court’s discretion, or based on

a Rule 11(c)(1)(C) agreement – the sentences are based on a Guidelines range that was subsequently

lowered by the Commission under circumstances that led the Commission to determine that a

reduced sentence might be appropriate.

       Peveler, and the cases on which it relies, hold that a district court is without authority to

modify a sentence imposed pursuant to a Rule 11(c)(1)(C) agreement.2          But a district court is


       2
        I observe that the language of the application note to U.S.S.G. § 1B1.10 found significant
by the Peveler Court has been amended. When Peveler was decided the note read:

       In determining whether, and to what extent, a reduction in the term of imprisonment
       is warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2),
       the court should consider the term of imprisonment that it would have imposed
       had the amendment(s) to the guidelines listed in subsection (c) been in effect at
       the time the defendant was sentenced ... [Emphasis added.]

This language was seen as supporting the view that Rule 11(c)(1)(C) sentences are not within the
purview of §3582(c)(2) because the court would have been bound to impose the same agreed-upon
sentence without regard to the Guidelines. Section 1B1.10(b)(1) now reads:

       In determining whether, and to what extent, a reduction in the defendant's term of
       imprisonment under 18 U.S.C. 3582(c)(2) and this policy statement is warranted, the
       court shall determine the amended guideline range that would have been applicable
       to the defendant if the amendment(s) to the guidelines listed in subsection (c) had
       been in effect at the time the defendant was sentenced. In making such
       determination, the court shall substitute only the amendments listed in subsection (c)
       for the corresponding guideline provisions that were applied when the defendant was
       sentenced and shall leave all other guideline application decisions unaffected.

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United States v. Antonio Goins, et al


without authority to modify any sentence, unless specifically authorized to do so by statute. 18

U.S.C. §3582(c).      Section 3582(c) grants the authority to modify a sentence under certain

circumstances, including where the sentence is based on a Guideline range that has been lowered.

If section § 3582(c)(2) is applicable, it affords district courts the authority to modify Rule 11(c)(1)(C)

sentences.

         We should be further guided by recognition that§ 3582(c) sets forth other circumstances in

which a district court is authorized to modify a sentence. Section 3582(c)(1) grants authority to

modify

         (1) in any case--
                (A) the court, upon motion of the Director of the Bureau of Prisons,
                may reduce the term of imprisonment (and may impose a term of
                probation or supervised release with or without conditions that does
                not exceed the unserved portion of the original term of
                imprisonment), after considering the factors set forth in section
                3553(a) to the extent that they are applicable, if it finds that--
                       (i) extraordinary and compelling reasons warrant such a
                reduction; or
                       (ii) the defendant is at least 70 years of age, has served at least
                30 years in prison, pursuant to a sentence imposed under section
                3559(c), for the offense or offenses for which the defendant is
                currently imprisoned, and a determination has been made by the
                Director of the Bureau of Prisons that the defendant is not a danger
                to the safety of any other person or the community, as provided under
                section 3142(g);



Thus, the policy now refers to the Guidelines range that would have been applicable, rather than the
sentence that would have been imposed.


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United States v. Antonio Goins, et al


               and that such a reduction is consistent with applicable policy statements
               issued by the Sentencing Commission; . . . .

If a district court lacks authority to modify a Rule 11(c)(1)(C) sentence under § 3582(c)(2) because

of the binding nature of such an agreement, it should likewise lack authority to modify such a

sentence upon the Director of the Bureau of Prisons’ motion under § 3582(c)(1). In either case, the

Government and the defendant bargained for a sentence that became binding on the court when the

agreement was accepted. Yet, § 3582(c)(1) clearly contemplates that district courts will entertain

such motions and have authority to grant them. Thus, Congress did not regard the binding nature

of Rule 11(c)(1)(C) sentence agreements as trumping Congressional intent to permit sentence

modification in certain limited circumstances, and any argument that § 3582(c)(2) does not

encompass Rule 11(c)(1)(C) sentences must be based on the specific language of § 3582(c)(2),

which, as discussed above, does not support such a limitation.

       Further, although a Rule 11(c)(1)(C) sentence agreement is an agreement between the

Government and the defendant, it is not binding on the court unless accepted; and the court is

required to exercise its independent judicial judgment in deciding whether to accept the agreement.

That discretion is exercised in the context of the Guidelines. It is not simply a matter of contract.3

Section 6B1.2 of the Guidelines Policy Statement makes this clear:




       3
         In United States v. Cobb, 584 F.3d 979 (10th Cir. 2009), the majority criticized Trujeque’s
reliance on contract principles as misguided. See, infra, at pp. 9-10.

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         § 6B1.2. Standards for Acceptance of Plea Agreements (Policy Statement)

                                                ***

              c) In the case of a plea agreement that includes a specific sentence (Rule
       11(c)(1)(C)), the court may accept the agreement if the court is satisfied either that:
                (1) the agreed sentence is within the applicable guideline range; or


                (2)(A) the agreed sentence departs from the applicable guideline range for
               justifiable reasons; and (B) those reasons are specifically set forth in writing in
               the statement of reasons or judgment and commitment order.



       To be sure, the government should not be forced to grant concessions against its will, and if

a concession was given in reliance on a sentence of a certain length, without regard to the

Guidelines range, the policies supporting Rule 11(c)(1)(C) may have been violated. In such a case,

however, the district court is free to conclude that the sentence was not based on a Guidelines range

that was subsequently amended. District judges are certainly capable of making these distinctions

and identifying those Rule 11(c)(1)(C) sentences that were based on Guideline ranges that were

subsequently modified, and those that were not. In many cases, the role of the Guidelines will be

apparent from the agreement itself, as where the agreement sets forth certain scoring concessions

and provides for a sentence within a particular area (low, center, high) of the Guidelines range.

When faced with a § 3582(2) motion in the context of a Rule 11(c)(1)(C) agreement, the court

should be able to evaluate the agreement and the surrounding circumstances to determine whether

the sentence was based at least in part on a subsequently reduced Guidelines range, and if so,

whether and to what extent it should be reduced.

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       Lastly, the Tenth Circuit has recently distinguished and narrowed Trujeque. In United States

v. Cobb, 584 F.3d 979 (10th Cir. 2009), the majority distinguished Trujeque as involving a Rule 11

sentence that was not based on the Guidelines, because the agreed-upon term was not within the

Guidelines range. Cobb’s sentence, however, “was tied to the guidelines at every step,” Slip op.

at 3. The Cobb majority retreated from Trujeque:


       We agree with the Fourth Circuit [in United States v. Dews, 551 F.3d 204 (4th Cir.
       2008), rehearing en banc granted, opinion vacated Feb. 20, 2009] that nothing in the
       language of § 3582(c)(2) or in the language of Rule 11 precludes a defendant who
       pleads guilty under Rule 11 from later benefitting from a favorable retroactive
       guideline amendment. But see, e.g., United States v. Peveler, 359 F.3d 369, 379 (6th
       Cir. 2004) (concluding the language of Rule 11 precludes application of § 3582(c));
       United States v. Scurlark, 560 F.3d 839, 842 (8th Cir.2009) (same). Implicitly, in
       Trujeque and our later cases relying upon it, we have imported contract analysis into
       our application and interpretation of § 3582. But we lack statutory or guideline
       authority for doing so. We are construing a statute, not common law. Importing
       contract ideas into our assessment of § 3582 would hinder adequate consideration of
       Defendant's perfectly logical analysis and misdirect our focus from the reasonable
       interpretation that Congress did not intend to keep negotiated plea agreements (even
       those specifying a particular sentence within a properly computed guideline range)
       from the reach of § 3582. In § 3582(c)(2), Congress merely used the language “based
       upon a qualifying sentencing range.” The statute imposes no requirement that to be
       based on a qualifying range, the sentence be a non-negotiated, “run-of-the-mill”
       guideline sentence. Instead, it generally allows for reductions of sentences which are
       based in any way on a qualifying range. No other connection is required.

       With § 3582 and the authority Congress gave to the Sentencing Commission under 28
       U.S.C. § 994(o), Congress intended, in part, to reduce unwarranted disparity in
       sentencing. See 28 U.S.C. § 991(b)(1)(B). Section 3582 was enacted in an
       environment in which an overwhelming number of cases were resolved by plea
       agreements, see Ronald F. Wright, Trial Distortion and the End of Innocence in
       Federal Criminal Justice, 154 U. Pa. L.Rev. 79, 91 fig. 1 (2005), as they still are
       today, see United States Sentencing Commission, Sourcebook of Federal Sentencing
       Statistics, fig. C (2008). Barring defendants who enter Rule 11 pleas from pursuing

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Nos. 08-6374, 09-5047
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       sentence modifications under § 3582 tends to undermine this general pattern and
       ignore the pervasiveness of pleas. It also undervalues the role of the guidelines in
       determining the negotiable range in plea agreements. It is simply unrealistic to think
       that the applicable guideline range is not a major factor (if not the major factor) in
       reaching a stipulated sentence. If we categorically removed Rule 11 pleas from the
       reach of § 3582, it would perpetuate the very disparity § 3582 and the retroactive
       application of Amendment 706 were meant to correct. Such an approach would leave
       defendants who pled guilty before the effective date of the amendment with higher
       sentences than those who pled guilty afterward because the post-amendment pleas and
       plea negotiations are based on the lower, modified sentencing ranges. Therefore, all
       defendants who entered Rule 11 pleas before the effective date of the amendment
       would be left serving greater sentences on the now-rejected grounds of the 100-to-1
       powder-to-crack cocaine ratio.

       Ultimately, we hold truer to the language of § 3582(c)(2) by concluding the district
       court has authority to reduce sentences imposed pursuant to Rule 11 pleas where, as
       here, the sentence was based at least in part on the then-applicable sentencing range.

[Cobb, 584 F.3d at 984-85.]

       Were it not for Peveler, I would remand in both cases4 with instructions to determine whether

the original sentence was based on the Guidelines and, if so, to consider whether a reduced sentence

is appropriate.




       4
        On remand, Goins may find it difficult to make a threshold showing in light of the fact that
the agreed- on sentence was above the guidelines.

                                               -16-
