                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 15-30039
                 Plaintiff-Appellee,
                                             D.C. No.
                 v.                       6:05-cr-00002-
                                             DWM-1
ANTONIO RODRIGUEZ-SORIANO,
            Defendant-Appellant.            OPINION



      Appeal from the United States District Court
              for the District of Montana
      Donald W. Molloy, District Judge, Presiding

       Argued and Submitted December 7, 2016
                Seattle, Washington

                      Filed May 2, 2017

 Before: M. Margaret McKeown, Richard C. Tallman,
       and Morgan B. Christen, Circuit Judges.

             Opinion by Judge McKeown
2          UNITED STATES V. RODRIGUEZ-SORIANO

                          SUMMARY *


                          Criminal Law

    The panel affirmed the district court’s denial of a motion
pursuant to 18 U.S.C. § 3582(c)(2) for a sentence reduction
in light of Sentencing Guidelines Amendment 782, which
lowered by two levels the base offense level calculated for
certain drug types and quantities.

    The panel held that the defendant’s original sentence was
not “based on” a subsequently lowered guideline range, and
that he is therefore ineligible for a sentence reduction under
the first requirement of § 3582(c)(2), where the record
makes clear that the defendant’s initial guideline range
played no role in the sentencing court’s determination of the
appropriate sentence.        The panel observed that the
sentencing judge’s decision about the extent of a substantial-
assistance departure was not based on or affected by the
guideline range that would have applied in the absence of the
statutory mandatory minimum.

    The panel noted that in light of Sentencing Guidelines
Amendment 780 and U.S.S.G. § 1B1.10(c) (providing that a
defendant’s amended guideline range shall be determined
without regard to the operation of any mandatory minimum
if a substantial-assistance motion allowed the court to
deviate below the minimum), the defendant’s applicable
guideline range would be lowered due to Amendment 782,
satisfying the second requirement for a reduction under

    *
      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. RODRIGUEZ-SORIANO                3

§ 3582(c)(2). But the panel explained that this inquiry does
not resolve whether as a threshold matter the original
sentence was “based on” the guideline range initially
calculated; and that because in this case it was not, the
defendant is not eligible for a reduction.


                        COUNSEL

Michael Donahoe (argued), Senior Litigator; Joslyn Hunt,
Research Attorney; Anthony R. Gallagher, Federal
Defender; Office of the Federal Public Defender, Helena,
Montana, for Defendant-Appellant.

Joseph E. Thaggard (argued), Assistant United States
Attorney; Michael W. Cotter, United States Attorney;
United States Attorney’s Office, Missoula, Montana; for
Plaintiff-Appellee.


                        OPINION

McKEOWN, Circuit Judge:

    Congress has provided a limited mechanism for
defendants to shave time off their sentences when the
Sentencing Commission amends the Sentencing Guidelines
with retroactive effect. In recent years, the Commission
amended the Guidelines to reduce the potential time served
by defendants convicted of certain drug crimes. After one
of these amendments came into effect, Antonio Rodriguez-
Soriano asked the district court to shorten his sentence, but
the court declined to do so. We affirm because the district
court properly determined that Rodriguez-Soriano’s original
4         UNITED STATES V. RODRIGUEZ-SORIANO

sentence was not actually “based on” a subsequently lowered
guideline range, so he is ineligible for a sentence reduction.

                       BACKGROUND

    In 2005, Rodriguez-Soriano pled guilty to possession
with intent to distribute methamphetamine in violation of
21 U.S.C. § 841(a)(1). Because of the amount of drugs
involved, his base offense level was 32 and his total offense
level was 29. See U.S.S.G. § 2D1.1(c). Although the
guideline range was 97–121 months due to his criminal
history, his guideline sentence was a mandatory term of life
imprisonment because of two prior convictions for felony
drug offenses. See 21 U.S.C. § 841(b)(1)(A); U.S.S.G.
§ 5G1.1(b).

    Before sentencing, the government filed a motion
pursuant to 18 U.S.C. § 3553(e) and § 5K1.1 of the
Guidelines. This motion permitted the district court to
sentence Rodriguez-Soriano below the mandatory life term.
18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. The district court
granted the motion and imposed a sentence of 300 months.

    In November 2014, Amendment 782 to the Guidelines
became effective, lowering by two levels the base offense
level calculated under § 2D1.1(c) for certain drug types and
quantities. In Rodriguez-Soriano’s case, his offense level
dropped from 32 to 30. On that basis, he moved for a
sentence reduction under 18 U.S.C. § 3582(c)(2). The
district court denied the motion, determining that Rodriguez-
Soriano was ineligible for a reduction because his sentence
was not “based on” his guideline range of 97–121 months.
Rather, in the district court’s view, the record showed that
his sentence was “based on” the interplay between the
mandatory life term and the government’s motion.
            UNITED STATES V. RODRIGUEZ-SORIANO                           5

                              ANALYSIS

    Under federal sentencing law, a district court generally
“may not modify a term of imprisonment once it has been
imposed.” 18 U.S.C. § 3582(c). This baseline rule is subject
to an important exception: a district court may reduce a
sentence based on a guideline range that is later lowered by
the Sentencing Commission. Id. § 3582(c)(2).

    In deciding whether to reduce a sentence under
§ 3582(c)(2), a district court first determines a defendant’s
eligibility for a reduction. Dillon v. United States, 560 U.S.
817, 827 (2010). If a defendant is eligible, the court must
then consider the factors in 18 U.S.C. § 3553(a) and assess
whether the requested reduction is warranted. Dillon,
560 U.S. at 827.

    This appeal involves only the first step—the question of
eligibility. Under this step, a defendant must show (1) that
his sentence was “based on” a guideline range that has since
been lowered, and (2) that the reduction he seeks is
“consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). These
two statutory requirements are distinct, and the defendant
must satisfy both to be eligible for a reduction. In re Sealed
Case, 722 F.3d 361, 364–68 (D.C. Cir. 2013). 1


    1
       The Fourth Circuit takes a contrary view. In United States v.
Williams, 808 F.3d 253, 260, 262–63 (4th Cir. 2015), that court ignored
the “based on” language in § 3582(c)(2) and held that the relevant policy
statement alone “dictates eligibility for § 3582(c)(2) relief.” The dissent
in Williams disagreed. Id. at 264 (Traxler, C.J., dissenting) (maintaining
that the defendant was “not eligible for a sentence reduction” because his
“sentence was not ‘based on a sentencing range that has subsequently
been lowered by the Sentencing Commission’” (quoting 18 U.S.C.
6          UNITED STATES V. RODRIGUEZ-SORIANO

I. The Meaning of “Based On” Under § 3582(c)(2)

    The meaning of the statutory phrase “based on” was the
subject of a divided court in Freeman v. United States,
564 U.S. 522, 525–26 (2011), in which the Supreme Court
considered whether a sentence is “based on” a guideline
range when a defendant is sentenced following a plea
agreement under Federal Rule of Criminal Procedure
11(c)(1)(C). Parsing the conflicting Freeman opinions is
essential to understanding our circuit’s interpretation of the
phrase “based on.”

    A four-justice plurality in Freeman reasoned that a
sentence imposed following a Rule 11(c)(1)(C) plea
agreement may be “based on” a guideline range. In the
plurality’s view, a district court may reduce a sentence “to
whatever extent” the subsequently lowered guideline range
“was a relevant part of the analytic framework the judge used
to determine the sentence.” Freeman, 564 U.S. at 530. To
explain this view, the plurality began by noting that district
courts “must exercise discretion to impose an appropriate
sentence” in every case and that “[t]his discretion, in turn, is
framed by the Guidelines.” Id. at 525. The plurality then
concluded that § 3582(c)(2) permits sentence reductions
“[w]here the decision to impose a sentence is based on a
range later subject to retroactive amendment,” so district
courts may “correct sentences that depend on frameworks
that later prove unjustified.” Id. at 526.




§ 3582(c)(2))). Given our own interpretation of § 3582(c)(2), we cannot
embrace the Fourth Circuit’s treatment of the statutory language. See
United States v. Davis, 825 F.3d 1014, 1022–23 (9th Cir. 2016) (en
banc).
         UNITED STATES V. RODRIGUEZ-SORIANO                7

    Put differently, the plurality reasoned that § 3582(c)(2)
relief is available to defendants imprisoned “pursuant to
sentences that would not have been imposed but for a since-
rejected, excessive range.” Id. (emphasis added). The
plurality’s analysis therefore requires a connection between
the sentence imposed and the subsequently lowered
guideline range—a connection beyond the district court’s
mere calculation of the guideline range or the fact that its
discretion is always “framed by the Guidelines” to some
extent. See id. at 525. Accordingly, § 3582(c)(2) “calls for
an inquiry into the reasons for a judge’s sentence.” Id. at
533 (emphasis added).

    The plurality then applied its approach by reviewing the
transcript from the sentencing hearing in that case. This
review showed that the defendant’s sentence was in fact
“based on” the relevant guideline range because the district
court not only calculated the range but also noted that the
sentence imposed fell within the range and expressed
independent judgment that the sentence was appropriate in
light of that range. Id. at 530–31. As a consequence, the
defendant was eligible for a reduction because his sentence
was “based on” a subsequently lowered guideline range. Id.
at 531.

    Justice Sotomayor concurred in the judgment but took a
different approach. She maintained that a sentence imposed
following a Rule 11(c)(1)(C) plea agreement is “based on”
the agreement itself—rather than on the court’s guideline
calculation—but she claimed a defendant could still be
eligible for a reduction if the agreement expressly
incorporated the relevant guideline range. Id. at 535–36,
538–39 (Sotomayor, J., concurring in the judgment). By
contrast, the four-justice dissent asserted that a defendant
sentenced following a Rule 11(c)(1)(C) plea agreement can
8         UNITED STATES V. RODRIGUEZ-SORIANO

never be eligible for a sentence reduction because the
sentence will always be “based on” the plea agreement itself.
Id. at 544 (Roberts, C.J., dissenting).

    Although our circuit initially followed Justice
Sotomayor’s reasoning, United States v. Austin, 676 F.3d
924, 926 (9th Cir. 2012), we changed course in United States
v. Davis, 825 F.3d 1014, 1016–17 (9th Cir. 2016) (en banc).
Because there was no rationale common to a majority of the
justices in Freeman, we were bound only by the result and
so adopted the plurality’s more persuasive analysis. Davis,
825 F.3d at 1016–17.

    Key to our determination was the view that Justice
Sotomayor’s concurrence is not a “logical subset” of the
plurality’s reasoning. Id. at 1022 (applying Marks v. United
States, 430 U.S. 188 (1977)). Although the plurality’s
approach superficially seems to apply more broadly, we
concluded that it is narrower in certain respects. Id. at 1023.
To illustrate the point, we cited two examples where Justice
Sotomayor’s rationale would allow a sentence reduction but
the plurality’s would not. Id. These examples demonstrated
that the plurality focused on what the district court actually
used as a basis for the sentence. If the guideline range
“played no role” in the district court’s determination of the
appropriate sentence, the sentence would not be “based on”
that range. See id. (citation omitted). In other words, if the
district court decides to impose a particular sentence “for
reasons unrelated to the guideline range,” the defendant is
ineligible for a reduction because his sentence was not
“based on” that range. See id. (citation omitted).

    Having adopted the plurality’s approach, we looked to
the transcript from the sentencing hearing to determine
whether Davis’s sentence was “based on” the relevant
guideline range. Id. at 1027. The record showed that the
         UNITED STATES V. RODRIGUEZ-SORIANO                9

district court initially calculated the range and, after
reflecting on the evidence presented, determined that the
sentence (which fell within the range) was “fair and
reasonable.” Id. We also noted that the plea agreement itself
mentioned the guideline range and several factors that could
affect that range. Id. We therefore concluded that Davis was
eligible for a sentence reduction because his sentence was
based on the guideline range. Id. at 1028.

II. Rodriguez-Soriano’s Eligibility Under § 3582(c)(2)

    With this background in mind, we turn to Rodriguez-
Soriano’s appeal. He argues that his sentence was “based
on” the guideline range subsequently lowered by
Amendment 782. The government agrees and urges us to
reverse the district court. The parties believe Rodriguez-
Soriano is eligible for a reduction due to a different
amendment to the Sentencing Guidelines, Amendment 780,
which endorses reductions for some defendants who
provided substantial assistance.

    This is, admittedly, an unusual situation with both the
government and the defendant urging us to remand. At the
time they filed their briefs, the parties did not have the
benefit of our en banc decision in Davis. There is, however,
a crucial flaw in their argument—the parties disregard the
requirement that the district court consider what “role,” if
any, the relevant guideline range played in determining
Rodriguez-Soriano’s original sentence. Davis, 825 F.3d at
1023 (citation omitted); see also Freeman, 564 U.S. at 526
(explaining that § 3852(c)(2) provides relief if a sentence
“would not have been imposed but for a since-rejected,
excessive range”). This oversight ignores § 3582(c)(2)’s
limited scope: under this subsection, a district court may
reduce a sentence only “to whatever extent” the range “was
a relevant part of the analytic framework the judge used to
10        UNITED STATES V. RODRIGUEZ-SORIANO

determine the sentence.” Freeman, 564 U.S. at 530. Thus,
to determine Rodriguez-Soriano’s eligibility for a reduction,
we must review the record to see if his sentence was in fact
“based on” the guideline range lowered by Amendment 782.
See id. at 533 (“[§ 3582(c)(2)] calls for an inquiry into the
reasons for a judge’s sentence . . . .”).

    The district court began the sentencing hearing with an
obligatory calculation of Rodriguez-Soriano’s guideline
range but never mentioned that range again after concluding
it was trumped by the mandatory life term. See Gall v.
United States, 552 U.S. 38, 49 (2007). The court then
granted the government’s motion, deviated below the
mandatory life term, and imposed a sentence of 300 months.

    Reviewing the hearing transcript reveals how and why
the district court settled on a 300-month sentence. The
government recommended 240 months, which it engineered
by making a hypothetical six-level downward departure
from the offense level for a mandatory life term. The court
then calculated the hypothetical guideline range implicit in
the government’s recommendation as being 235–293
months. Finally, the court settled on a 300-month sentence,
which,      though    higher     than   the    government’s
recommendation, “reflect[ed] a downward departure from
the life sentence pursuant to” the government’s motion.

     The record makes clear that Rodriguez-Soriano’s initial
guideline range “played no role” in the district court’s
determination of the appropriate sentence, so his sentence
was not “based on” that range. See Davis, 825 F.3d at 1023
(citation omitted); see also id. (explaining that a sentence is
not “based on” a guideline range if the court “selects its
sentence without regard to [that range]” (citation omitted)).
Although the court began by calculating the range, that
initial calculation alone did not satisfy § 3582(c)(2)’s “based
            UNITED STATES V. RODRIGUEZ-SORIANO                         11

on” requirement, nor did it suffice that the court’s discretion
was “framed by the Guidelines” in some abstract way. See
id. at 1023 & n.9, 1026. As the district court noted, “[t]he
record clearly indicates that the sentencing judge’s decision
about the extent of the substantial-assistance departure was
not based on or affected by the guideline range that would
have applied in the absence of the statutory mandatory
minimum.” In other words, the court imposed the sentence
“for reasons unrelated to the guideline range” lowered by
Amendment 782, so the sentence was not based on that range
in any relevant way. See id. at 1023 (quoting United States
v. Epps, 707 F.3d 337, 350 n.8 (D.C. Cir. 2013)); see also
Freeman, 564 U.S. at 530 (“§ 3582(c)(2) modification
proceedings should be available to permit the district court
to revisit a prior sentence to whatever extent the sentencing
range in question was a relevant part of the analytic
framework the judge used to determine the sentence . . . .”).

    The parties essentially argue that the “based on”
requirement is no requirement at all. They would read this
phrase out of the statute since an initial guideline calculation
is always required. Gall, 552 U.S. at 49. They assume that,
under the Freeman plurality’s logic, the fact that the district
court initially calculated Rodriguez-Soriano’s guideline
range means that his original sentence was necessarily
“based on” that range. 2 But we have rejected this

    2
        Other circuits have accepted this interpretation of the plurality’s
approach as part of their consideration of the competing opinions in
Freeman. The Fourth Circuit, for example, adopted Justice Sotomayor’s
concurrence as the “narrowest opinion” after concluding that the
plurality’s rule meant district courts “can always grant § 3582(c)(2)
relief to a defendant who enters into a Rule 11(c)(1)(C) plea agreement.”
United States v. Brown, 653 F.3d 337, 339, 340 & n.1 (4th Cir. 2011)
(emphasis added); see also In re Sealed Case, 722 F.3d at 365 (noting
that the plurality’s rule means that “a sentence that emerges from a Rule
12           UNITED STATES V. RODRIGUEZ-SORIANO

“oversimplified” view and our panel is bound by the
decision in Davis. 825 F.3d at 1023 n.9.

    Under § 3582(c)(2), defendants do not “always” qualify
for a sentence reduction simply because they are sentenced.
Id. Rather, defendants are eligible only “when” the sentence
was in fact “based on” the subsequently lowered guideline
range. See id. at 1017 (quoting Freeman, 564 U.S. at 534).
This rule flows from the statute’s plain language and adheres
to the overall scheme of federal sentencing, in which
§ 3582(c)(2) has a “narrow scope” and “applies only to a
limited class of prisoners—namely, those whose sentence
was based on a sentencing range subsequently lowered by
the Commission.” Dillon, 560 U.S. at 825–26; accord id. at
826 (“Congress intended to authorize only a limited
adjustment to an otherwise final sentence and not a plenary
resentencing proceeding [through § 3582(c)(2)].”).

   The parties’ invocation of Amendment 780 3 misses the
point. To be sure, this amendment helps defendants who

11(c)(1)(C) plea agreement is always eligible for a subsequent
reduction”); United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st
Cir. 2011) (concluding that the plurality’s rule is broader because “the
district judge in every case [must] consult the guidelines,” so sentences
entered pursuant to Rule 11(c)(1)(C) plea agreements are always “based
on the guidelines”). We noted these conflicting opinions in Davis but
“d[id] not find [them] convincing.” 825 F.3d at 1024.

     3
         Amendment 780 provides:

           Cases Involving Mandatory Minimum Sentences and
           Substantial Assistance.—If the case involves a
           statutorily required minimum sentence and the court
           had the authority to impose a sentence below the
           statutorily required minimum sentence pursuant to a
           government motion to reflect the defendant’s
          UNITED STATES V. RODRIGUEZ-SORIANO                      13

provide substantial assistance by removing an obstacle
arguably posed by a policy statement in § 1B1.10 that
prohibits reductions when an “amendment does not have the
effect of lowering the defendant’s applicable guideline range
because of the operation of another guideline or statutory
provision (e.g., a statutory mandatory minimum term of
imprisonment).” U.S.S.G. § 1B1.10, Application Note
1(A)(ii). Some courts had interpreted this statement to mean
that defendants subject to mandatory minimums were
necessarily ineligible for reductions under retroactive
amendments similar to Amendment 782. See, e.g., United
States v. Johnson, 732 F.3d 109, 111 (2d Cir. 2013). But
Amendment 780 clarified that, for defendants who were
subject to a mandatory minimum but who were sentenced
below that minimum following a substantial-assistance
motion, “applicable guideline range” means the range
stemming from the court’s initial guideline calculation
before the mandatory minimum kicked in. See U.S.S.G.
Supplement to Appendix C, Amendment 780.                  The
amendment was then incorporated into the Guidelines at
§ 1B1.10(c), which now provides that a defendant’s
amended guideline range “shall be determined without
regard to the operation” of any mandatory minimum if a
substantial-assistance motion allowed the court to deviate
below the minimum.

   Rodriguez-Soriano’s guideline range of 97–121 months
would be different following Amendments 780 and 782.

       substantial assistance to authorities, then for purposes
       of this policy statement the amended guideline range
       shall be determined without regard to the operation of
       § 5G1.1 (Sentencing on a Single Count of Conviction)
       ....

U.S.S.G. Supplement to Appendix C, Amendment 780.
14        UNITED STATES V. RODRIGUEZ-SORIANO

Amendment 782 would lower his base offense level from 32
to 30, thereby decreasing his total offense level from 29 to
27. Given his criminal history, his amended guideline range
would drop to 78–97 months. In light of Amendment 780
and § 1B1.10(c), then, Rodriguez-Soriano’s “applicable
guideline range” would be lowered due to Amendment 782.
Crucially, though, this inquiry goes only to the second
requirement under § 3582(c)(2)—whether the sentence
reduction Rodriguez-Soriano requests is “consistent with
applicable policy statements.” It does not resolve whether,
as a threshold matter, his original sentence was “based on”
the guideline range the district court initially calculated. For
that determination, we look to Davis. Because the initial
guideline range was not relevant in determining Rodriguez-
Soriano’s sentence, he is ineligible for a reduction under
§ 3582(c)(2). Had the circumstances of sentencing been
different, Rodriguez-Soriano may have benefited from
Amendment 782. But in the end, as the district court made
clear, his sentence was not “based on” the guideline range.

     AFFIRMED.
