                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0558n.06

                                           No. 16-6634

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                   Oct 06, 2017
UNITED STATES OF AMERICA,                    )                                DEBORAH S. HUNT, Clerk
                                             )
       Plaintiff-Appellee,                   )
                                             )        ON APPEAL FROM THE
v.                                           )        UNITED STATES DISTRICT
                                             )        COURT FOR THE MIDDLE
LASONDRA DOWELL,                             )        DISTRICT OF TENNESSEE
                                             )
       Defendant-Appellant.                  )        OPINION
                                             )

BEFORE: NORRIS, MOORE, and STRANCH, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Defendant Lasondra Dowell appeals the district

court’s denial of her motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). The

district court held that Dowell was ineligible for resentencing because her sentence was not

based on the Sentencing Guidelines. We affirm.

                                                 I.

       On December 8, 2010, the government indicted Dowell and numerous other individuals

in a twenty-eight-count Sixth Superseding Indictment. The government alleged that Dowell

conspired with others to distribute and possess with the intent to distribute five grams or more of

crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. The

government also alleged Dowell possessed with the intent to distribute five grams or more of

crack cocaine within 1,000 feet of a public housing facility, in violation of 21 U.S.C.

§§ 841(a)(1) and 860, and 18 U.S.C. § 2. In a later filed one-count Information, the government
                                                                          United States v. Dowell
                                                                                    No. 16-6634

alleged Dowell knowingly possessed a firearm in furtherance of a crime of violence, in violation

of 18 U.S.C. §§ 924(c)(1)(A)(i) and (2).

       In 2012, Dowell pleaded guilty to the drug offenses and firearm charge pursuant to a plea

agreement. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the parties agreed that

Dowell should be sentenced to 60 months’ imprisonment for the drug offenses. The parties also

agreed to a term of 60 months’ imprisonment for the firearm offense, to be served consecutively

to the sentence for the drug offenses. Only the sentence and plea agreement as they relate to the

drug offenses are at issue in this appeal.

       One section of Dowell’s plea agreement is of particular importance to this case. In the

section titled “Sentencing Guidelines Calculations,” the parties agreed that “the Sentencing

Guideline calculations are moot and have no effect on the agreed sentence.” The section went on

to calculate Dowell’s base offense level, but it did not assign her a criminal history category or

define a sentencing range.

       After the plea agreement was signed, the Probation Office prepared a Presentence

Investigation Report (“PSR”). The PSR determined Dowell’s Total Offense Level and her

Criminal History Category. Based on the Total Offense Level of 23 and Criminal History

Category III, her sentencing range was 60 to 71 months. The district court adopted the PSR,

accepted the plea agreement, and imposed the sentence of 60 months for the drug offenses,

which fell within the Guidelines.

        After the Sentencing Commission issued Amendment 782 in 2014, Dowell filed a pro se

motion to reduce her sentence under 18 U.S.C. § 3582(c)(2). On October 20, 2016, the district

court issued an order denying Dowell’s motion. Relying primarily on the concurring opinion of

Justice Sotomayor in Freeman v. United States, 564 U.S. 522 (2011), the district court held that


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Dowell was ineligible for resentencing because her sentence was not based on the Guidelines.

The district court noted that the plea agreement did not explicitly employ a sentencing range nor

did it specify a criminal history category. The district court also cited to the language in the plea

agreement declaring that “the Sentencing Guidelines [sic] are moot and have no effect on the

agreed sentence” as further support. This appeal followed.

                                                 II.

       This court reviews de novo a district court’s conclusion that it lacks the authority to

reduce a defendant’s sentence under 18 U.S.C. § 3582(c)(2). United States v. Riley, 726 F.3d

756, 758 (6th Cir. 2013). A district court may reduce a term of imprisonment “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.” 18 U.S.C. § 3582(c)(2). In

Freeman, a plurality of the Supreme Court held that sentences imposed pursuant to a plea

agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) are eligible for modification

under § 3582. 564 U.S. at 534. We have held that Justice Sotomayor’s concurrence in the case

“is the narrowest ground for the Court’s decision and thus represents the Court’s holding in

Freeman.” United States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011); see also Riley, 726 F.3d at

760. Therefore, a Guidelines sentencing range must be “expressly” used in the plea agreement,

or the Guidelines being the basis for a specific term of imprisonment must be “evident from the

agreement itself,” for the plea agreement to be “based on” the Guidelines for the purposes of

§ 3582. Freeman, 564 U.S. at 538-39 (Sotomayor, J., concurring).

       Dowell argues that her sentence was based on the Guidelines under Freeman because the

plea agreement recommended a within-Guidelines sentence of 60 months, the parties mentioned

the Guidelines during the plea hearing, and the plea agreement calculated her base offense level.


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A review of Freeman and this Court’s subsequent precedents make it clear that her plea

agreement does not meet the standard necessary to qualify for a sentence reduction under § 3582.

       First, in applying Freeman, this court has held that “a defendant’s sentence—for purposes

of § 3582(c)(2)—is based on a guideline range only when that guideline range is explicitly

referenced in a plea agreement.” United States v. McNeese, 819 F.3d 922, 927 (6th Cir. 2016)

(cleaned up). Here, Dowell’s plea agreement makes no explicit reference to an applicable

Guidelines range. Her agreement goes even further by declaring the Guidelines “moot” for the

purposes of her sentence.

       Next, the argument that Dowell’s sentence was based on the Guidelines because it

recommended a sentence within the Guidelines is unpersuasive. The Guidelines being the basis

for the sentence must be “evident from the agreement itself” if they are not expressly used.

Freeman, 564 U.S. at 539. However, as Justice Sotomayor noted, “the mere fact that the parties

to [an 11(c)(1)(C) plea] agreement may have considered the Guidelines in the course of their

negotiations” does not make § 3582 applicable. Id. at 537. Negotiating a plea agreement

“necessarily occurs in the shadow of the sentencing scheme.” Id. at 538. Thus, the mere fact that

Dowell’s sentence falls within what the Guidelines recommended is not enough on its own to

permit a sentence reduction.

       The brief comments made during the plea agreement hearing that Dowell’s sentence was

“what the Guidelines would carry” also do not make her sentence “based on” the Guidelines.

Again, Justice Sotomayor’s concurrence in Freeman makes clear that a tangential relationship

between the plea agreement sentence and the Guidelines is not enough. Id. at 537. Further, this

court has moved toward disregarding remarks made at hearings for the purpose of determining

whether a sentence qualifies under § 3582. McNeese, 819 F.3d at 929-30; Smith, 658 F.3d at 613


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                                                                                      No. 16-6634

(“[T]rial counsel’s after-the-fact statements about the basis for the plea agreement are not

relevant to [defendant]’s eligibility for a sentence reduction.”). Giving priority to the actual plea

agreement over statements made at hearings is also logical when you consider that once a district

court accepts an 11(c)(1)(C) plea agreement it is bound to impose the agreed upon term of

imprisonment. See Freeman, 564 U.S. at 536 (Sotomayor, J., concurring). Therefore, the

comments made at Dowell’s plea hearing do not alter our analysis.

        Finally, the plea agreement’s calculation of Dowell’s base offense level without more is

insufficient to find that her sentence was “based on” the Guidelines. In order for the sentencing

range to be evident from the plea agreement, the agreement must at least give the reviewing

court all of the tools necessary to calculate a Guidelines sentencing range. McNeese, 819 F.3d at

928. Here, as with the defendant in McNeese, the plea agreement says nothing about Dowell’s

criminal history category. Id. Accordingly, it is impossible to calculate the actual sentencing

range from the contents of the plea agreement.

        This court has counseled against speculating as to what the parties might have known and

what might have motivated them when entering into plea agreements. Id. at 929. As Justice

Sotomayor cautioned, courts should not “engage in a free-ranging search through the parties’

negotiating history in search of a Guidelines sentencing range that might have been relevant to

the agreement or the court’s acceptance of it.” Freeman, 564 U.S. at 538 (Sotomayor, J.,

concurring). Thus, without an actual reference that relies upon the sentencing range, or at least

all the necessary components to calculate one, we are unable to conclude that Dowell’s sentence

was based on the Guidelines. Accordingly, her sentence is not eligible for reduction under §

3582.




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                                       III.

The judgment of the district court is affirmed.




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