                                        PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                      No. 16-4289
                     ____________

           UNITED STATES OF AMERICA,

                           v.

                 RICHARD MARTIN,

                               Appellant
                     ____________

     On Appeal from the United States District Court
        for the Western District of Pennsylvania
              (D.C. No. 2-09-cr-00098-001)
      District Judge: Honorable David S. Cercone
                     ____________

      Submitted Under Third Circuit L.A.R. 34.1(a)
                    May 26, 2017

Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.

                (Filed: August 15, 2017)
Soo C. Song
Jane M. Dattilo
Rebecca R. Haywood
Michael L. Ivory
Office of the United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
       Counsel for Plaintiff-Appellee

Lisa B. Freeland
Samantha L. Stern
Office of the Federal Public Defender
1001 Liberty Avenue, Suite 1500
Pittsburgh, PA 15222
       Counsel for Defendant-Appellant
                        ____________

                 OPINION OF THE COURT
                      ____________

HARDIMAN, Circuit Judge.

       Richard Martin appeals an order of the United States
District Court for the Western District of Pennsylvania that
denied his motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2). Martin claimed he was entitled to a lesser sentence
because of Amendment 782 to the United States Sentencing
Guidelines (Guidelines or USSG), but the District Court
disagreed because Martin was a career offender. We agree with
the District Court that Martin’s status as a career offender meant
that he was not eligible for a reduced sentence.




                                2
                                 I

                                A

        Martin pleaded guilty to possession with intent to
distribute more than 50 grams of crack cocaine in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B)(iii). He and the United States
entered into a written plea agreement pursuant to Federal Rule
of Criminal Procedure 11(c)(1)(C), colloquially known as a “(C)
plea,” in which they agreed that Martin’s advisory range under
the Guidelines was 70 to 87 months’ imprisonment and that a
sentence of 87 months was appropriate.

       Prior to Martin’s sentencing, the United States Probation
Office prepared a Presentence Investigation Report (PSR) that
differed from the Guidelines calculation agreed upon by the
parties. According to the Probation Office, Martin’s true
advisory Guidelines range was 188 to 235 months’
imprisonment because Martin was a career offender.

        The Government did not object to the PSR, but Martin
disagreed that he was a career offender and reserved the right to
object to that finding at a later date. As Martin’s counsel
explained at the sentencing hearing: “I want to make the record
clear. I didn’t file objections. What I filed was an 11(c)(1)(C)
with eighty-seven months. If the Court were not to accept it, I
have a number of objections.” App. 27–28.

       At sentencing, the District Court noted several times that
Martin was a career offender. The Court explained: “In this
case, the defendant’s criminal history includes separate
convictions in the Court of Common Pleas of Allegheny County
for crimes of aggravated assault, resisting arrest, and fleeing and




                                3
alluding [sic] a police officer. These convictions, when coupled
with his current drug offense, define him as a career offender.”
App. 23–24. Accordingly, the District Court agreed with the
PSR, finding that Martin’s total offense level was 31 and his
criminal history category was VI, resulting in an advisory
Guidelines range of 188 to 235 months. Nevertheless, after
considering the sentencing factors enumerated in 18 U.S.C.
§ 3553, the Court sentenced Martin to 87 months’ imprisonment
in accordance with Martin’s (C) plea.

       In its Statement of Reasons, the District Court noted that
it had adopted the PSR without change and again identified
Martin’s sentencing range as 188 to 235 months (the career
offender range). After noting that it had imposed a below-
Guidelines sentence, the Court explained that it had imposed the
sentence agreed upon by the parties. Martin did not appeal his
sentence.

                               B

       In 2014, the United States Sentencing Commission
promulgated Amendment 782 to the Guidelines, which
retroactively reduced by two levels the base offense for many
drug quantities, including the drug quantity associated with
Martin’s offense. See USSG app. C., amend. 782 (effective Nov.
1, 2014). In September 2015, Martin filed a motion for reduction
of sentence under 18 U.S.C. § 3582(c)(2), citing Amendment
782.

      Martin also moved to vacate his sentence under 28
U.S.C. § 2255. He argued that he was no longer a career
offender because all three of his predicate offenses qualified as
crimes of violence only under the residual clause of USSG




                               4
§ 4B1.2, and the Supreme Court had invalidated the same
residual clause in 18 U.S.C. § 924(e) (the Armed Career
Criminal Act) in Johnson v. United States, 135 S. Ct. 2551
(2015). Martin asked the District Court to defer ruling on his
§ 2255 motion until after it had decided whether to reduce his
sentence.

        The District Court denied Martin’s motion, holding that
he was ineligible for relief because his Guidelines range was
based on his status as a career offender rather than the drug
quantity. Martin appealed this order, but asked to stay the
briefing schedule pending the District Court’s ruling on his
§ 2255 motion. Martin later withdrew his § 2255 motion after
the Supreme Court declined to extend Johnson to the Guidelines
in Beckles v. United States, 137 S. Ct. 886, 890 (2017) (holding
that the Guidelines, including the residual clause of § 4B1.2, are
not subject to a vagueness challenge under the Due Process
Clause). This Court then granted Martin’s motion to expedite his
appeal.

                                II

      The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have appellate jurisdiction under 28 U.S.C. § 1291.
United States v. Rodriguez, 855 F.3d 526, 529–31 (3d Cir.
2017). Because “we are presented with legal questions
concerning the proper interpretation of the Sentencing
Guidelines,” our review is plenary. United States v. Thompson,
825 F.3d 198, 203 (3d Cir. 2016) (citation omitted).




                                5
                                III

       Under 18 U.S.C. § 3582(c)(2), a district court may reduce
a term of imprisonment only if two requirements are met.
Thompson, 825 F.3d at 203. First, the sentence must have been
“based on a sentencing range that has subsequently been
lowered by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2). Second, a reduction in sentence must be
“consistent with applicable policy statements issued by the
Sentencing Commission.” Id. Under the governing policy
statement, defendants qualify for § 3582(c)(2) relief only if an
amendment has “the effect of lowering the defendant’s
applicable guideline range.” USSG § 1B1.10(a)(2)(B). In 2011,
the Sentencing Commission issued Amendment 759, which
amended § 1B1.10 to clarify that a defendant’s “applicable
guideline range” is “the guideline range that corresponds to the
offense level and criminal history category determined pursuant
to § 1B1.1(a), which is determined before consideration of any
departure provision in the Guidelines Manual or any variance.”
Id. § 1B1.10 cmt. n.1(A).

        The Government has conceded that Martin meets the first
requirement for a sentence reduction—his sentence was based
on a Guidelines range that was later reduced. As for the second
requirement, however, the Government insists that a reduction
in Martin’s sentence would be inconsistent with applicable
policy statements because Martin was a career offender subject
to a Guidelines range of 188–235 months’ imprisonment. Since
that range was not lowered by Amendment 782, Martin is not
entitled to a reduction. For his part, Martin claims his applicable
range was the one specified in his (C) plea (70–87 months). And
because Amendment 782 lowered that range to 57 to 71 months,
it follows that Martin is eligible for a sentence reduction.



                                6
      As we shall explain, Martin’s applicable Guidelines
range was the career offender range. Accordingly, the District
Court was correct to find him ineligible for a sentence reduction.

                                A

        Relying principally on the Supreme Court’s decision in
Freeman v. United States, 564 U.S. 522 (2011), Martin argues
that the sentencing range set forth in the parties’ plea agreement
is the sole focus of the § 3582(c)(2) eligibility inquiry. In
Freeman, the Supreme Court addressed whether a defendant
sentenced pursuant to a (C) plea was eligible for a sentence
reduction under § 3582(c)(2). Id. at 525 (plurality opinion). The
specific question was whether such a sentence was “based on”
the Sentencing Guidelines for purposes of § 3582(c)(2). Id. The
Supreme Court held that a sentence imposed following a (C)
plea is “based on” the Guidelines if the agreement “expressly
uses a Guidelines sentencing range applicable to the charged
offense to establish the term of imprisonment,” and that
sentencing range was subsequently lowered. Id. at 534
(Sotomayor, J., concurring in the judgment). We have held that
Justice Sotomayor’s concurrence expresses the holding of the
Court because its holding is narrower than the plurality’s. United
States v. Thompson, 682 F.3d 285, 290 (3d Cir. 2012).

       Martin’s case differs from Freeman in two important
respects. For starters, the Government has conceded that
Martin’s sentence was “based on” the subsequently-lowered
drug Guidelines, which was the central issue in Freeman.
Second, Martin qualified as a career offender under the
Guidelines, whereas Freeman did not address the career
offender issue at all. The question here is whether the parties’
agreement that Martin’s sentence should be based on the drug




                                7
Guidelines and the District Court’s acceptance of that agreement
changed Martin’s “applicable guideline range” from the career
offender range to the drug offense range.

        Although this Court has not yet addressed the question
presented, two of our sister courts have done so persuasively. In
United States v. Leonard, the Court of Appeals for the Second
Circuit considered the Guidelines range applicable to a
defendant who pleaded guilty pursuant to a (C) plea, for
purposes of determining § 3582(c)(2) eligibility. 844 F.3d 102,
104 (2d Cir. 2016). The defendant claimed his applicable range
was that specified in his plea agreement. Id. at 112. The
government argued that the applicable range was the one
initially calculated by the district court before it accepted the (C)
plea. Id. The Second Circuit agreed with the government,
holding that the applicable range was “that determined by the
court as set forth in the Guidelines, without regard to the parties’
agreement to a different calculation, and before the exercise of
any departure or variance discretion.” Id. at 113. After
reviewing the definition of “applicable guideline range” in
§ 1B1.10, the court explained: “[W]hen a district court accepts
an 11(c)(1)(C) sentence or sentencing range that is lower than its
calculated Guidelines range, what the court effectively does is
grant a departure or variance.” Id. Thus, it concluded that the
applicable Guideline range is the one determined by the
sentencing court rather than the parties’ agreement. Id. at 117.

        In United States v. Pleasant, the Ninth Circuit considered
a situation even more similar to Martin’s case. 704 F.3d 808 (9th
Cir. 2013), overruled on other grounds by United States v.
Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc). There the
defendant pleaded guilty to drug possession after reaching an
agreement with the government under Rule 11(c)(1)(C). That



                                 8
agreement recognized that the defendant was a career offender,
but “provided instead that his sentence should be at the low end
of the guidelines applicable to crack-cocaine offenses.” Id. at
809. The district court accepted the (C) plea and sentenced the
defendant accordingly at the low end of the Guidelines. In light
of subsequent amendments to the Guidelines, the defendant
moved to reduce his sentence, and the district court granted the
motion, relying on Freeman. See id. at 810. The Ninth Circuit
reversed, holding that the defendant’s applicable Guidelines
range was that of career offenders. Id. at 813–14. It explained
that the defendant “was only able to avoid the Career Offender
guidelines because the district court granted a downward
variance” by accepting the plea agreement. Id. at 812.1

       These decisions comport with our precedent considering
the interplay between the career offender Guidelines and
subsequently-lowered drug Guidelines. In United States v.
Flemming, 723 F.3d 407 (3d Cir. 2013), for example, the
defendant was subject to the career offender designation, but
received a downward departure under § 4A1.3. In that case, we
held that the “applicable guideline range” for defendants
designated as career offenders “is the range calculated pursuant

       1
          The Ninth Circuit found further support in USSG
§ 6B1.2 (“Standards for Acceptance of Plea Agreements”),
which allows a court to accept (C) plea if “the agreed sentence
is outside the applicable guideline range for justifiable reasons.”
Pleasant, 704 F.3d at 812. Because this provision clearly
distinguishes between the “applicable guideline range” and the
“agreed sentence,” it “confirms that a defendant’s applicable
range is distinct from the range agreed to in a plea agreement.”
Id.




                                9
to the career offender designation of § 4B1.1, and not the range
calculated after applying any departure or variance.” Id. at 412;
see also Thompson, 825 F.3d at 204 (“Appellants acknowledge
that, after Amendment 759, their ‘applicable guideline ranges’
under the Sentencing Commission’s policy statement in
§ 1B1.10 are their Career Offender Guidelines ranges.”); United
States v. Ware, 694 F.3d 527, 531–32 (3d Cir. 2012) (“All
parties to these appeals agree” that “the ‘applicable guideline
range’ for [defendants] would be the guideline range reflecting
their career offender designations, which were not affected by
Amendment 750.”); United States v. Barney, 672 F.3d 228,
231–32 (3d Cir. 2012) (affirming district court’s conclusion that
“applicable guideline range” was career offender range and not
post-departure drug range).

                                B

        Like the defendants in Leonard and Pleasant, Martin
argues that Freeman demands a different conclusion. In
Freeman, Justice Sotomayor’s concurrence stated: “Because it is
the parties’ agreement that controls in the (C) agreement
context, . . . even if the District Court had calculated the range
differently than the parties, . . . [the defendant] would still be
eligible for resentencing, as long as the parties’ chosen range
was one that was ‘subsequently . . . lowered by the Sentencing
Commission.’” 564 U.S. at 542 n.8 (fourth alteration in original)
(quoting 18 U.S.C. § 3582(c)(2)); see also United States v.
Smith, 658 F.3d 608, 613 (6th Cir. 2011) (“Justice Sotomayor’s
opinion in Freeman makes it clear that where the parties have
entered into a Rule 11(c)(1)(C) plea agreement that is based on
the Sentencing Guidelines, the applicable Guidelines range for
purposes of § 3582(c) is the one provided in the plea
agreement.”). Based on this language in Freeman, Martin



                               10
contends that the terms of his (C) plea alone should govern the
§ 3582(c)(2) eligibility analysis. We do not agree that Freeman
compels such a result.

       As discussed, Freeman established that a defendant’s
sentence is “based on” the Guidelines agreed to in the parties’
(C) plea. 564 U.S. at 538–39 (Sotomayor, J., concurring in the
judgment). Freeman did not, however, decide what constitutes
the “applicable guideline range” for purposes of a § 3582(c)(2)
reduction. The stipulated sentence in the parties’ agreement was
within the Guidelines range calculated by the district court, and
that range had been lowered by retroactive amendment. Id. at
527–28 (plurality opinion).

        For that reason, Freeman sheds no light on how to
identify the “applicable guideline range” when the district court
calculates that range differently from the parties in their (C)
plea, and the controlling concurrence’s footnote considering
such a circumstance “is at best dictum.” Leonard, 844 F.3d at
114. Moreover, after Freeman was decided, the Sentencing
Commission issued Amendment 759, which defined “applicable
guideline range” as the range calculated before any departure or
variance. See USSG § 1B1.10 cmt. n.1(A). As the Second
Circuit explained, this amendment provided for the court to
calculate the applicable range according to the Guidelines
Manual and “does not contemplate that the parties will
themselves identify the applicable Guidelines range, much less
that they will do so differently than the district court.” Leonard,
844 F.3d at 115; see also Pleasant, 704 F.3d at 813 (“Freeman
did not hold that a defendant’s agreed sentencing range is
necessarily the same as his applicable sentencing range and,
even if it did, Freeman would have been abrogated by
Amendment 759’s clarification of the definition of ‘applicable



                                11
guidelines.’”); Ware, 694 F.3d at 534 n.4 (“Freeman was
decided prior to the amendment of the Guidelines commentary
that added the language at issue in these appeals.”).

       As determined by the District Court, Martin’s applicable
Guidelines range was the career offender range of 188 to 235
months. And because that range has not been lowered by any
amendment to the Guidelines, Martin was not eligible for a
sentence reduction pursuant to § 3582(c)(2).

                        *      *       *

       For the reasons stated, we will affirm the judgment of the
District Court.




                               12
