                  United States Court of Appeals
                               For the Eighth Circuit


                                    No. 12-1257


                             United States of America

                                       Plaintiff-Appellee

                                          v.

                                Theodore T. Browne

                                      Defendant-Appellant
                                   ___________

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

                          Submitted: September 21, 2012
                             Filed: November 5, 2012
                                    __________

Before LOKEN and MURPHY, Circuit Judges, and JACKSON,1District Judge.
                           __________

JACKSON, District Judge.

      Theodore T. Browne appeals the district court’s 2 denial of his motion to reduce
sentence pursuant to 18 U.S.C. § 3582(c)(2). We affirm.

      1
       The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri, sitting by designation.
      2
       The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
                                       I.

      In 1997, Browne pleaded guilty to a cocaine base offense. Pursuant to former
Federal Rule of Criminal Procedure 11(e)(1)(C).,3 the parties agreed that “under the
circumstances of this case,” a 210-month term of imprisonment was an appropriate
sentence. The plea agreement also contained the following language:

      The Sentencing Guidelines do not directly apply to the sentencing in this
      case. Nevertheless, the parties have discussed the guidelines and how
      they apply to the relevant conduct of the defendant. The parties agree
      that certain factors will apply to the sentence and that the Sentencing
      Guidelines establish a sentencing range based upon factors determined
      to be present in the case, which include, but are not limited to the
      following . . .

The agreement went on to list the factors of drug quantity, role in the offense,
possession of a firearm, obstruction of justice, criminal history, acceptance of
responsibility, and concurrent sentencing, along with citations to provisions of the
United States Sentencing Guidelines (U.S.S.G.) that pertained to the factors.

       At the change of plea hearing, the following exchange took place between the
court and the prosecutor:

      THE COURT: I rather imagine, we don’t have to go into detail, but you
      are anticipating--what is it you are anticipating of the guideline range?



      3
       At the time of Browne’s plea in 1997, Rule 11(e)(1)(C) of the Federal Rules
of Criminal Procedure governed plea agreements in which the parties “agree that a
specific sentence is the appropriate disposition of the case.” In 2002, Rule 11 was
reorganized such that language similar to that contained in Rule 11(e)(1)(C) is now
contained in Rule 11(c)(1)(C).

                                            -2-
      MR. CRONK: Your honor, we’re anticipating a level 34, category IV, or level
      33, category V.

      THE COURT: Okay.
      MR. CRONK; That would be 210 to 262 months.
      THE COURT: All right. If that turns out to be the case, then the agreed-upon
      sentence of --
      MR. CRONK: 210 months.
      THE COURT: --210 months would fall within that guideline range; correct?
      MR. CRONK: Yes.

      The court informed the parties that it could not accept the agreed sentence of
210 months if it fell outside the guideline range and there were no grounds for a
departure.

      At the sentencing hearing, the district court addressed the applicable provisions
of the Sentencing Guidelines and determined that the guideline range for
imprisonment was 235-293 months, based on a total offense level of 34 and a
criminal history category of V. After finding that Browne’s criminal history was
overstated, the court concluded that a downward departure to the 210-262 month
guideline range was appropriate. The court then accepted the plea agreement and
imposed the agreed upon sentence.

       In 2008, Browne moved for a sentence reduction, pursuant to 18 U.S.C. § 3582
(c)(2), based on Amendment 706 to the Sentencing Guidelines which retroactively
lowered the base offense level for cocaine base offenses. The district court granted
the motion and reduced Browne’s sentence to 168 months. After the government
appealed, we reversed, holding that Browne’s sentence was based on a binding plea
agreement which the district court lacked authority under § 3582(c)(2) to alter.
United States v. Browne, 364 Fed. Appx. 315 (8th Cir. 2010).

                                         -3-
       Following the decision of the United States Supreme Court in Freeman v.
United States, __ U.S. __, 131 S. Ct. 2685, 180 L.Ed.2d 519 (2011), Browne filed a
second § 3582(c)(2) motion to reduce his sentence. The district court found that
Browne’s 210-month sentence was based on a “Rule 11(e)(1)(C) plea agreement with
an agreed sentence” and not based on the Sentencing Guidelines. As such, the court
concluded that the ruling in Freeman did not benefit Browne and he was not entitled
to relief under § 3582(c)(2).
                                         II.
              We review de novo the district court’s determination that Browne was
not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). United States v.
Scurlark, 560 F.3d 839, 841 (8th Cir. 2009).

       Section 3582(c)(2) provides that a court may reduce a sentence 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). Because the Sentencing
Commission lowered the guideline range for cocaine base offenses, Browne would
be eligible for a sentence reduction only if the sentence of imprisonment he received
was “based on” the sentencing guidelines.

       In Freeman, the United States Supreme Court addressed the question of
whether defendants who, like Browne, enter into Rule 11(c)(1)(C) plea agreements
that specify a particular sentence “may be said to have been sentenced ‘based on’ a
Guidelines sentencing range, making them eligible for relief under § 3582(c)(2).”
Freeman, 131 S.Ct. at 2691. In a plurality opinion in which four justices joined,
Justice Kennedy reasoned that because a judge in imposing a sentence must exercise
discretion that is “framed by the Guidelines,” Id. at 2690, the decision to accept an
11(c)(1)( C) plea agreement “and impose the recommended sentence is likely to be
based on the Guidelines; and when it is, the defendant should be eligible to seek §

                                         -4-
3582(c)(2) relief.” Id. at 2695. Four dissenting justices believed that a sentence
imposed pursuant to an 11(c)(1)(C) agreement is based on the agreement, not on the
Sentencing Guidelines, and therefore could not be reduced under § 3582(c)(2). Id.
at 2700 (Roberts, C.J., dissenting).

        In a concurring opinion, Justice Sotomayor concluded that “if a [Rule
11(c)(1)(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 (Sotomayor, J., concurring).
Under Justice Sotomayor’s approach, it is the language of the written plea agreement
that determines the applicability of § 3582(c)(2). Thus, the statute is applicable (1)
where the agreement “call[s] for the defendant to be sentenced within a particular
Guidelines sentencing range,” or (2) where the agreement provides for a specific
term of imprisonment and “make[s] clear that the basis for the specified term is a
Guidelines range applicable to the offense to which the defendant pleaded guilty.”
Freeman, 131 S.Ct. at 2697. If the plea agreement “does not indicate the parties’
intent to base the term of imprisonment on a particular Guidelines range subsequently
lowered by the Commission, then § 3582(c)(2) simply does not apply.” Id. at 2699,
fn. 5. It is Justice Sotomayor’s concurring opinion in Freeman that is controlling and
represents the holding of the Court. See United States v. Thompson, 682 F.3d 285,
290 (3rd Cir. 2012) (“We therefore conclude, as has every other circuit to consider
the question, that, because Justice Sotomayor’s opinion [in Freeman] is narrower than
Justice Kennedy’s, it expresses the holding of the Court.”(citations omitted)). See
also Gregg v. Georgia, 428 U.S. 153, 169, n. 15 (1976) (holding of the Court is the
position taken by member who concurs in the judgment on the narrowest grounds).

      Unlike the plea agreement in Freeman, which stated that the defendant “agrees
to have his sentence determined pursuant to the Sentencing Guidelines,” Id. at 2691,

                                         -5-
Browne’s plea agreement stated just the opposite---i.e., that “the Sentencing
Guidelines do not directly apply to the sentencing in this case” and that the agreement
of 210 months was “based on the circumstances” of the case. Browne’s plea
agreement contained no specific reference to a Sentencing Guidelines range
applicable to the offense. As determined by the sentencing court, the applicable
guideline range (before departure) was 235-293 months. There is no mention of this
range or any other guideline range in the plea agreement.

       Nevertheless, Browne argues that the references to sentencing factors and
citation to certain Sentencing Guidelines provisions in the plea agreement show that
a guideline range was the basis for the agreed-to sentence. In Freeman, Justice
Sotomayor found such an argument unavailing. The Sentencing Guidelines will
likely be the starting point in all plea negotiations, as the parties know that whatever
they agree to must be evaluated by the sentencing judge in the context of the
guidelines. See U.S.S.G. § 6B1.2( c) (discussed infra). The parties’ consideration of
Sentencing Guidelines provisions does not make § 3582(c)(2) applicable, for “plea
bargaining necessarily occurs in the shadow of the sentencing scheme to which the
defendant would otherwise be subject.” Id. at 2697. The focus in determining
eligibility for a § 3582(c)(2) sentence reduction is on the contents of the written plea
agreement itself; the negotiations leading up to the final document do not come into
play. It is only when a Rule 11(c)(1)( C) agreement “explicitly employs a particular
Guidelines sentencing range to establish the term of imprisonment” that it can be said
that “the agreement itself demonstrates the parties’ intent that the imposed term of
imprisonment will be based on that range, as required for sentence reduction under
[§ 3582(c)(2)].” Id. at 2698.

       The references to Sentencing Guidelines provisions in Browne’s plea
agreement reflect no more than the parties’ consideration of various Sentencing
Guidelines provisions in arriving at a stipulated sentence. As discussed above, no
specific guideline range is mentioned and no such range can even be inferred from

                                          -6-
the sentencing factors and guidelines that are cited.4 The references to Sentencing
Guidelines provisions in Browne’ plea agreement do not satisfy the explicitness
required to demonstrate the parties’ intent to base the agreed-upon term of
imprisonment on a particular guidelines sentencing range.

       The concurrence in Freeman also leads us to reject Browne’s argument that the
district court’s analysis of the Sentencing Guidelines shows that the sentence was
based on a guidelines range. Before accepting the plea agreement, the district court
reviewed the relevant sentencing guidelines, determined Browne’s total offense level
and criminal history category, and calculated the guidelines range applicable to the
offense. Section 6B1.2(c) of the Sentencing Guidelines provides that in the case of
a Rule 11(c)(1)( C) agreement that includes a specific sentence, “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) . . . the agreed sentence departs from the applicable
guideline range for justifiable reasons . . .” U.S.S.G. § 6B1.2(c). Thus, the court could
not accept the plea agreement without first determining the applicable guideline
range. The fact that a court does what § 6B1.2(c) requires (i.e., “to use the Guidelines
as a yardstick in deciding whether to accept” a Rule 11(c)(1)( C) agreement) does not
mean that the sentence imposed was “based on” a particular guidelines range. Id. at
2696. Once Browne’s plea agreement was accepted, the sentencing court was bound
to impose the agreed-to sentence of 210 months. The sentence imposed was pursuant
to---and therefore based on---the plea agreement, not on the guidelines range
determined by the court. Id.; see also Scurlark, 560 F.3d at 842 (after accepting Rule
11(c)(1)(C) agreement, court bound to sentence defendant pursuant to agreement; §
3582(c)(2) inapplicable because sentence was based on the agreement).


      4
       For example, the plea agreement states that the parties recommend an
adjustment for the defendant’s “aggravated (sic) role in the offense within the
meaning of §§ 3B1.1 and 3B1.2.” The agreement does not state whether the
adjustment should be an increase of 2, 3 or 4 levels under U.S.S.G. § 3B1.1., and
U.S.S.G. § 3B1.2 applies to mitigating roles.

                                          -7-
        Finally, Browne argues that the oral statements made by the prosecutor
establish that the agreed upon sentence was based on a guidelines range. The same
argument was considered by the court in United States v. Dixon, 687 F.3d 356 (7th
Cir. 2012). In Dixon, the written plea agreement provided for a sentencing range of
15 to 20 years, but did not refer to a sentencing guidelines range that could have
formed a basis for the agreed upon range. At sentencing, the prosecutor stated orally
that the agreed upon sentencing range was “from one-half to two-thirds of the bottom
of the applicable Guideline range” and that it represented a reduction that took into
account the defendant’s substantial assistance. Id. at p. 360. The court of appeals
rejected the defendant’s argument that the prosecutor’s oral statements linking the
agreed upon sentencing range to a guidelines range were sufficient to make him
eligible for § 3582(c)(2) relief. Id. at 361. We agree with the Seventh Circuit that
such an argument is foreclosed by Justice Sotomayor’s opinion in Freeman which
“rejected reliance on the parties’ negotiations and oral explanations beyond the scope
of the written agreement itself.” Id. Because it is the language of the plea agreement
itself that determines whether a defendant is eligible for relief under § 3582(c)(2),
“[a]ll that matters is whether the parties’ binding plea agreement was expressly based
on the Sentencing Guidelines, not whether the Guidelines informed the parties’
decision to enter into the agreement or whether the Guidelines informed the court’s
decision to accept the agreement.” Dixon, 687 F.3d at 361 (citations omitted).

                                         III.

       Because the written plea agreement in this case did not expressly state a
Sentencing Guidelines range as the basis for the parties’ agreed upon sentence, it
cannot be said that the sentence imposed was based on a sentencing range that was
subsequently lowered by the Sentencing Commission. Therefore, we affirm the
district court’s denial of Browne’s motion for a sentence reduction under §
3582(c)(2).



                                         -8-
