                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 01 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-30389

              Plaintiff - Appellee,              DC No. CR 97-0105 JWS

  v.
                                                 MEMORANDUM *
DAVID SOMPETT POWERS, AKA
Joker,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                      Argued and Submitted January 11, 2010
                               Seattle, Washington
                       Submission Vacated October 1, 2010
                           Resubmitted August 8, 2011

Before:       KLEINFELD, TASHIMA, and TALLMAN, Circuit Judges.

       Defendant David Sompett Powers appeals the denial of his motion to reduce

his sentence pursuant to 18 U.S.C. § 3582(c)(2). We have jurisdiction under 28




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 1291, and we reverse and remand.1

      In October 1997, Powers was indicted in a First Superseding Indictment for

one count of conspiracy, in violation of 21 U.S.C. § 846; fourteen counts of

distributing, or possessing with intent to distribute, cocaine powder and cocaine

base (“crack cocaine”), in violation of 21 U.S.C. § 841(a)(1); two counts of using

and carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. §

924(c)(1); and one count of possession of stolen firearms, in violation of 18 U.S.C.

§ 922(j). Pursuant to a Federal Rule of Criminal Procedure 11(e)(1)(C)2

agreement, Powers agreed to plead guilty to a single count of intent to distribute a

Schedule II controlled substance in exchange for the government’s dismissal of the

remaining counts. The district court accepted the agreement and imposed the

stipulated sentence of 210 months.

      Effective November 1, 2007, the Sentencing Commission amended the



      1
              In light of our holding in United States v. Leniear, 574 F.3d 668, 672
(9th Cir. 2009), that a plea agreement’s waiver of the right “to appeal the sentence .
. . imposed” does not encompass the right to appeal the district court’s conclusion
that it lacked jurisdiction to modify the sentence pursuant to § 3582(c)(2)), the
government has abandoned its argument that the appeal waiver in Powers’ plea
agreement bars this appeal.
      2
            Rule 11(e)(1)(C) has since been recodified as Rule 11(c)(1)(C). The
only changes are stylistic. See In re Morgan, 506 F.3d 705, 709 n.1 (9th Cir.
2007).

                                         -2-
sentencing guideline affecting crack cocaine convictions, reducing by two levels

the applicable base offense levels assigned to various quantities of crack cocaine.

See U.S. Sentencing Guidelines Manual (“USSG”) Supp. App. C, Amend. 706

(effective Nov. 1, 2007) (modifying USSG § 2D1.1); see also Leniear, 574 F.3d at

672-73. In 2008, the Commission made the amendment retroactive. See USSG

Supp. App. C, Amend. 713 (effective Mar. 3, 2008); see also Dillon v. United

States, 130 S.Ct. 2683, 2688 (2010).

      Powers moved the court to reduce his sentence pursuant to § 3582(c)(2),

which gives the district court the authority to modify a sentence “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.” Id. The district court denied the motion, concluding that it did not

have the authority to modify a sentence imposed pursuant to a Rule 11(e)(1)(C)

agreement.

      In Freeman v. United States, 131 S.Ct. 2685 (2011), the Court recently

decided that some sentences imposed pursuant to a Rule 11(e)(1)(C) agreement

qualify as “based on” the sentencing guidelines for the purposes of a § 3582(c)(2)

modification. Pursuant to Freeman, the government has confessed error and

moved to remand this case “so that the district court can consider [Powers’] motion


                                          -3-
for reduction of sentence pursuant to 18 U.S.C. § 3582(c).” We agree with the

government’s concession that Powers’ plea agreement “meets Justice Sotomayor’s

description [in her concurring opinion] of ‘C’ agreements that nevertheless can be

considered to be based upon a sentencing range . . . .”

      Accordingly, the district court’s order denying Powers’ motion to reduce his

sentence is reversed and the case is remanded for further proceedings consistent

with Freeman.

REVERSED and REMANDED.




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