                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 12-1783
                                    _____________

                           UNITED STATES OF AMERICA

                                            v.

                               ERIC WEATHERSPOON
                                    a/k/a UNCLE
                                      a/k/a LA,

                                   Eric Weatherspoon.
                                                Appellant
                                    _____________

                    On Appeal from the United States District Court
                       For the Middle District of Pennsylvania
                             (D.C. No. 3:05-cr-00176-012)
                     District Judge: Honorable James M. Munley
                                    _____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                November 16, 2012

           Before: RENDELL, FUENTES and CHAGARES, Circuit Judges

                          (Opinion Filed: November 21, 2012)
                                   _____________

                              OPINION OF THE COURT
                                   _____________

FUENTES, Circuit Judge.

      On October 23, 2006, Appellant Eric Weatherspoon pleaded guilty in accordance

with a written plea agreement to one count of conspiracy to distribute and possess with


                                            1
intent to distribute in excess of 50 grams of cocaine base (crack) in violation of 21 U.S.C.

§ 846. The District Court sentenced him to 210 months’ imprisonment. Thereafter,

Weatherspoon moved for a reduction of sentence based on the 2007 and 2008

amendments to the United States Sentencing Guidelines (the “Guidelines”) for cocaine

base offenses. On March 6, 2012, the District Court denied his motion. Weatherspoon

appeals, asking this Court to vacate the District Court’s order and have his case remanded

for further proceedings.

       For the reasons that follow, we will affirm the decision of the District Court.

                                             I.

       Because we write primarily for the parties, who are well acquainted with this case,

we recite only the facts essential to our disposition of this appeal. On April 22, 2005,

Appellant was charged in the Middle District of Pennsylvania with conspiracy to

distribute and possess with intent to distribute in excess of 50 grams of crack cocaine and

related offenses. On October 23, 2006, Appellant pleaded guilty in accordance with a

written plea agreement, entered pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C), to the conspiracy count. In that agreement, the parties agreed that

Weatherspoon should receive a sentence of 210 months’ imprisonment because that

sentence was “a reasonable sentence under the facts and circumstances of the case.”

Appendix (“App.”) at 17-18.

       For sentencing, the Probation Department prepared a pre-sentence report. Using

the 2006 edition of the Guidelines manual, the Probation Officer determined that




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Weatherspoon’s guideline imprisonment range was 360 months to life. On February 2,

2007, the District Court imposed the agreed-upon sentence of 210 months’ imprisonment.

       On November 1, 2007, the Sentencing Commission passed Amendment 706 to the

Guidelines, which reduced the cocaine base equivalency, thereby reducing imprisonment

ranges for certain defendants convicted of crack-cocaine related offenses. In March

2008, the amendment was made retroactive. On July 11, 2011, Weatherspoon filed a

motion to appoint counsel which the Court Clerk construed as a motion pursuant to 18

U.S.C. § 3582(c)(2) to reduce his sentence based upon Amendment 706. On January 20,

2012, the Government filed a response, arguing that a reduction was not appropriate

given that “the sentence imposed in this case was based upon the plea agreement and not

upon the Guidelines and that the District Court would have no authority to reduce Mr.

Weatherspoon’s sentence.” App. at 106.

       On March 6, 2012 the District Court denied Weatherspoon’s motion to reduce his

sentence, explaining that Weatherspoon’s sentence was based upon the parties’

agreement and not tied to the Guidelines. Weatherspoon filed a timely notice of appeal.

                                            II.

       The District Court had subject matter jurisdiction over Weatherspoon’s motion to

reduce his sentence pursuant to 18 U.S.C. § 3582(c). We have appellate jurisdiction

pursuant to 28 U.S.C. § 1291. When the district court determines that a defendant is

ineligible for relief under 18 U.S.C. § 3582(c)(2), our review is plenary. United States v.

Weatherspoon, 696 F.3d 416, 420 (3d Cir. 2012)




                                             3
       Section 3582(c)(2) of the Sentencing Reform Act of 1984 permits a modification

of 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 . . . .” 18 U.S.C. § 3582(c)(2) (emphasis added). Here it is

undisputed that Amendment 706 retroactively lowered Weatherspoon’s Guidelines range.

Thus, the only issue before us is whether Weatherspoon’s 210-month sentence was

“based on” his Guidelines range. See Weatherspoon, 696 F.3d at 422.

       This case is governed by our recently issued opinion in United States v. Kevin

Weatherspoon, 696 F.3d 416 (3d Cir. 2012). 1 In Weatherspoon, citing Justice

Sotomayor’s concurrence in Freeman v. United States, 131 S. Ct. 2685 (2011), we held

that “any determination of whether a defendant’s sentence is ‘based on’ the Guidelines

turns solely on an examination of the four corners of the plea agreement,” and that “[a]ny

statements made by the District Court, the probation department, or counsel are irrelevant

to this analysis.” Id. at 422. We went on to hold that in order “to be eligible for relief

under 18 U.S.C. § 3582(c)(2), a defendant who agrees to a specific term of imprisonment

in [an 11(c)(1)(C)] plea agreement must show that his agreement both identifies a

Guidelines range and demonstrates a sufficient link between that range and the

recommended sentence.” Id. at 423.




1
 In fact, the cases are related – Kevin Weatherspoon was Eric Weatherspoon’s co-
defendant, and Mssrs. Wade and Ulrich of the Federal Public Defender for the Middle
District of Pennsylvania represented both Kevin and Eric Weatherspoon in their
respective appeals.

                                              4
       The plea agreement in this case is nearly identical to the one we considered in

Weatherspoon, and thus our reasoning in that case controls the outcome here. Here, as in

Weatherspoon,

       the agreement is silent as to his range. Nowhere in the agreement does it
       explicitly state the range the parties relied upon in determining his sentence.
       Nor does the agreement provide the necessary ingredients to calculate it.
       The Guidelines range can only be derived from a determination of a
       defendant’s criminal history category and his offense level. Here, we are
       missing at least one-half of the equation. There are simply no statements or
       assertions of fact in the agreement that allow us to determine [Appellant’s]
       criminal history category.

       Because his agreement does not explicitly state his Guidelines range, or his
       offense level and criminal history category, and because [Appellant] cannot
       otherwise demonstrate that his criminal history category is “evident from
       the agreement itself,” we cannot conclude that the agreement identifies a
       Guidelines range. Thus, his claim fails under Freeman and his motion was
       properly denied. See United States v. Austin, 676 F.3d 924, 930 (9th Cir.
       2012).

Id. at 424.

                                            III.

       For the foregoing reasons, we will affirm the decision of the District Court.




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