                                    PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 15-7912


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

DAVID TOBIAS MAY,

                   Defendant - Appellant.



Appeal from the United States District Court for the Western District of Virginia, at
Abingdon. James P. Jones, District Judge. (1:07-cr-00058-JPJ-PMS-1)


Argued: January 26, 2017                                     Decided: April 25, 2017


Before GREGORY, Chief Judge, and DUNCAN and FLOYD, Circuit Judges.


Affirmed by published opinion. Judge Floyd wrote the opinion, in which Chief Judge
Gregory and Judge Duncan joined.


ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant. Jennifer R. Bockhorst, OFFICE OF THE
UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON BRIEF: Larry
W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. John P. Fishwick, Jr., United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
FLOYD, Circuit Judge:

       In mid-2009, David May pleaded guilty to various drug and firearm offenses, and

was sentenced pursuant to a stipulated plea agreement under Federal Rule of Criminal

Procedure 11(c)(1)(C). In November 2014, the Sentencing Guidelines were amended,

retroactively lowering the offense levels associated with two of the offenses to which

May pleaded guilty. In February 2015, the district court, sua sponte, denied May a

sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), on the grounds that May’s

sentence was not based on the Guidelines. In September 2015, May filed a motion for

reconsideration of the district court’s sua sponte denial, which the district court denied

two months later. May timely appealed the denial of his motion for reconsideration,

challenging the district court’s refusal to apply the amended Guidelines to his sentence.

We agree with the district court’s denial of relief, and we therefore affirm.


                                             I.
       In a nineteen-count indictment filed on May 14, 2008, David May was charged

with various drug and firearms offenses by a grand jury in the Western District of

Virginia. On May 4, 2009, May entered into a plea agreement with the government

pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). 1 May pleaded guilty to

conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(C) (Count 1); distribution of methamphetamine, in violation of 21 U.S.C.



       1
          Rule 11(c)(1)(C) makes the parties’ recommended sentence binding on the
district court once the court accepts the plea agreement.


                                              2
§§ 841(a)(1) and 846(b)(1)(C) (Count 8); using and carrying a firearm during and in

relation to, and possession of a firearm in furtherance of, a drug trafficking crime, in

violation of 18 U.S.C. § 924(c) (Count 9); and possession of a firearm after having been

convicted of a crime punishable by more than one year imprisonment and while being an

unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(1) and (3)

(Count 13). J.A. 31–32. In exchange, the remaining fifteen counts from the indictment

were dropped. May’s plea agreement also included an appeal waiver.

      Under a section titled “Sentencing Provisions” and a subsection titled “General

Matters,” the plea agreement stated that pursuant to Rule 11(c)(1)(C), the parties agreed

to May’s prison term. J.A. 33. The parties agreed to a prison term of 180 months on the

drug counts (Counts 1 and 8), a concurrent term of 120 months on the felon in possession

count (Count 13), and a consecutive term of 60 months on the § 924(c) count (Count 9).

Id.

       Immediately following the “General Matters” subsection, the plea agreement

contains a subsection titled “Sentencing Guidelines.” J.A. 34. In this subsection, the

parties set forth their stipulations as to offense level calculations under the Sentencing

Guidelines. The parties agreed to an offense level of 30 for the drug counts, which

corresponded to “350 grams to 499.99 grams of methamphetamine” (Counts 1 and 8); an

offense level of 16 for the felon in possession count (Count 13); and a total offense level

of 30 for all the above-described counts (Counts 1, 8, and 13). Id. The parties also stated

that the guideline range for the § 924(c) count (Count 9) was a term of 60 months

imprisonment. Id.


                                            3
       The probation office then prepared a presentence report (PSR). The PSR relied on

a total offense level of 30, as was stipulated, and a criminal history category of V, as was

determined by the probation office, to conclude that “the advisory guideline range for

imprisonment is 151 to 188 months.” J.A. 93. The PSR noted, however, that “in the plea

agreement, the defendant has pled to a total term of 240 months.” Id.

       On July 20, 2009, the district court accepted May’s plea agreement and sentenced

him to a total of 240 months: a term of 180 months on the drug counts (Counts 1 and 8),

a concurrent term of 120 months on the felon in possession count (Count 13), and a

consecutive term of 60 months on the § 924(c) count (Count 9). J.A. 44–46.

       On November 1, 2014, Amendment 782 to the Guidelines—which was made

retroactive by Amendment 788—went into effect.            See U.S.S.G. Supp. to App. C,

Amends. 782 & 788 (Nov. 1, 2014). Amendment 782 reduced by two the offense levels

assigned to drug quantities listed in U.S.S.G. § 2D1.1, which governs Counts 1 and 8 in

this case.

       On February 25, 2015, the district court, sua sponte, denied May a sentence

reduction    under   Amendment     782    pursuant   to   18   U.S.C.   § 3582(c)(2)   (the

“Section 3582(c)(2) Denial Order”). J.A. 51. The district court explained that because

May’s plea agreement neither called for May to be sentenced within a particular

Guidelines sentencing range, nor clarified that his agreed-upon sentence was based on a

Guidelines sentencing range applicable to the offense of conviction, May was ineligible

for any reduction under Amendment 782. Id.




                                             4
       May claims that he was never properly notified of the Section 3582(c)(2) Denial

Order. May had no counsel of record at the time to receive electronic notification of the

entry of the order. May also denies ever receiving the order in the mail, and even the

government concedes that there is no routine minute entry to confirm that the order was

mailed. See Appellee’s Supp. Br. at 9 n.3.

       Lisa Lorish, an Assistant Federal Public Defender, later learned about May’s case

and the Section 3582(c)(2) Denial Order while conducting an internal review of cases

where a drug reduction might apply. See Appellant’s Supp. Br. at 9 n.2. On September

18, 2015, May, represented by Lorish, filed a motion for reconsideration of the

Section 3582(c)(2) Denial Order. This motion argued that May’s “plea agreement clearly

ties the drug related sentence of 180 months to [his] drug guidelines,” and that he

therefore qualifies for § 3582(c)(2) relief. J.A. 53.

       The government responded with a motion opposing any sentence reduction on the

grounds that May’s plea agreement did not expressly rely on the Guidelines. Nowhere in

this motion did the government assert that the district court lacked authority to grant

relief following a motion for reconsideration of a § 3582(c)(2) ruling.

       On November 18, 2015, the district court issued an order denying May’s motion

for reconsideration. J.A. 64–67. The district court reiterated its conclusion that May was

ineligible for § 3582(c)(2) relief because his plea agreement “did not stipulate to the

range of imprisonment under the guidelines” and “did not stipulate to the Criminal

History category applicable to [May].” J.A. 66–67.




                                              5
       On December 1, 2015, May’s counsel appealed the denial of May’s motion for

reconsideration. On appeal, the parties initially briefed the issue of whether May’s plea

agreement was sufficiently based on the Guidelines to qualify him for § 3582(c)(2) relief.

This Court then ordered and received supplemental briefing “addressing whether May’s

18 U.S.C. § 3582 (2012) motion was successive and/or barred by United States v.

Goodwyn, 596 F.3d 233, 234 (4th Cir. 2010).” Order, United States v. May, No. 15-7912

(4th Cir. 2016), ECF No. 39. At no point in its briefing did the government invoke

May’s appeal waiver, “and we will not sua sponte enforce it.” United States v. Jones,

667 F.3d 477, 486 (4th Cir. 2012).


                                           II.
       Although we have previously prohibited 18 U.S.C. § 3582(c)(2)-based motions for

reconsideration, United States v. Goodwyn, 596 F.3d 233, 234 (4th Cir. 2010), we

understand this prohibition to be non-jurisdictional, and thus waived when the

government failed to assert it below.

       Section 3582(c)(2) provides:

       The court may not modify a term of imprisonment once it has been
       imposed except that—
        ...
       (2) 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 pursuant to 28 U.S.C. 994(o), upon
       motion of the defendant or the Director of the Bureau of Prisons, or on its
       own motion, the court may reduce the term of imprisonment, after
       considering the factors set forth in section 3553(a) to the extent that they
       are applicable, if such a reduction is consistent with applicable policy
       statements issued by the Sentencing Commission.



                                            6
       The Supreme Court requires Congress to “clearly state[] that a threshold limitation

on a statute’s scope shall count as jurisdictional” before a court can treat the limitation as

such. Arbaugh v. Y&H Corp., 546 U.S. 500, 515–16 (2006). But the prohibition on

§ 3582(c)(2)-based motions for reconsideration is not based on a limitation that Congress

has clearly ranked as jurisdictional. Rather, it is implied from § 3582(c)(2)’s silence on a

district court’s authority to grant motions for reconsideration, coupled with sentence

finality interests and “the clear intent of § 3582 . . . to constrain postjudgment sentence

modifications.” Goodwyn, 596 F.3d at 235–36. We therefore conclude that the implied

prohibition on § 3582(c)(2)-based motions for reconsideration, as recognized in

Goodwyn, is non-jurisdictional. 2

       Our conclusion comports with the decisions of at least four of our sister circuits.

See United States v. Anderson, 772 F.3d 662, 666–67 (11th Cir. 2014); United States v.

Beard, 745 F.3d 288, 291–92 (7th Cir. 2014); Trujillo, 713 F.3d at 1006–08; United

States v. Weatherspoon, 696 F.3d 416, 421–22 (3d Cir. 2012). Some of these decisions

admittedly dealt with purely successive motions for relief premised on a single

retroactive Guidelines amendment, rather than with motions for reconsideration, but

§ 3582(c)(2) does not expressly authorize nor prohibit either type of motion. Thus, the


       2
          Some authorities—none of which are binding in this Circuit—have read
Goodwyn as suggesting that a jurisdictional limitation exists with respect to § 3582(c)(2)-
based motions for reconsideration. See, e.g., United States v. Trujillo, 713 F.3d 1003,
1007 (9th Cir. 2013); United States v. Mann, 435 F. App’x 254, 255 (4th Cir. 2011) (per
curiam). We reject this reading of our precedent. Goodwyn never used the word
“jurisdiction” in its opinion, and it did not purport to identify a clear statement in
§ 3582(c)(2) that created a jurisdictional limitation on motions for reconsideration.


                                              7
rule is the same for both purely successive § 3582(c)(2) motions and § 3582(c)(2)-based

motions for reconsideration: A defendant cannot obtain relief on the basis of such

motions, but this prohibition is non-jurisdictional and thus subject to waiver.

       In the present case, this Court is confronted with a motion for reconsideration

unauthorized by § 3582(c)(2). We believe, however, that the government has waived its

right to object to the district court’s failure to deny May relief on the grounds that he

brought an unauthorized motion for reconsideration. As the government concedes, see

Appellee’s Supp. Reply Br. at 1, it never invoked § 3582(c)(2)’s prohibition on motions

for reconsideration at the district court level. Because the government failed to raise this

non-jurisdictional limitation below, it is waived on appeal. See Trujillo, 713 F.3d at

1008; Weatherspoon, 696 F.3d at 422; see also United States v. Benton, 523 F.3d 424,

428 (4th Cir. 2008) (“Failure to raise an argument before the district court typically

results in the waiver of that argument on appeal.”). 3


                                             III.

       The district court concluded that May was ineligible for 18 U.S.C. § 3582(c)(2)

relief from the court because he was sentenced pursuant to a Rule 11(c)(1)(C) plea

       3
          In light of our waiver holding, we need not explore other avenues of relief
available to a defendant who, as here, was subject to a sua sponte denial of § 3582(c)(2)
relief that he or she did not learn about (through no fault of the defendant) until after the
applicable appeal deadline has passed. The unfairness of such a situation is self-evident.
At a minimum, a defendant in that situation can call upon Federal Rule of Appellate
Procedure 4(b)(4), which “authorizes a district court to extend the [appeal] deadline up to
thirty additional days ‘[u]pon a finding of excusable neglect or good cause.’” United
States v. Urutyan, 564 F.3d 679, 684 n.6 (4th Cir. 2009) (quoting Fed. R. App. P. 4(b)(4))
(modification in original).


                                              8
agreement that did not use a Guidelines sentencing range. We review de novo the district

court’s conclusion regarding the scope of its legal authority under § 3582(c)(2). United

States v. Mann, 709 F.3d 301, 304 (4th Cir. 2013). Upon review of the record, we agree

with the district court’s conclusion that May was ineligible for relief.

       In Freeman v. United States, 564 U.S. 522 (2011), the Supreme Court considered

the issue of whether a district court may grant a § 3582(c)(2) sentence reduction motion

when the original sentence is imposed pursuant to a Rule 11(c)(1)(C) plea agreement.

This issue turned on whether such a sentence is “based on” a Guidelines sentencing

range—a prerequisite for relief under the terms of § 3582(c)(2).

       The controlling opinion in Freeman, authored by Justice Sotomayor, 4 held that a

sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is generally based on the

agreement itself rather than on the Guidelines, thus precluding § 3582(c)(2) relief in most

Rule 11(c)(1)(C) cases. Freeman, 564 U.S. at 535–38 (Sotomayor, J., concurring in

judgment). This general rule is subject to the following exception: When a defendant’s

plea agreement “call[s] for the defendant to be sentenced within a particular Guidelines

sentencing range,” or to a “specific term of imprisonment” within a particular Guidelines

sentencing range, then “the term of imprisonment the court imposes is ‘based on’ the

       4
          Freeman was decided by a four-Justice plurality, plus an opinion by Justice
Sotomayor concurring in the judgment. We have held that Justice Sotomayor’s
concurrence provides the narrowest grounds for Freeman’s holding and is therefore the
controlling opinion in that case. See United States v. Brown, 653 F.3d 337, 339–40 & n.1
(4th Cir. 2011); see also United States v. Hughes, 849 F.3d 1008, 1013 (11th Cir. 2017)
(listing nine circuits (including itself) that view Justice Sotomayor’s concurrence as the
controlling opinion in Freeman, and noting that only the Ninth and D.C. Circuits have
held otherwise).


                                              9
agreed-upon sentencing range within the meaning of § 3582(c)(2).”           Id. at 538–39.

Consequently, “[i]f that Guidelines range is subsequently lowered by the Sentencing

Commission, the defendant is eligible for sentence reduction.” Id.

       This exception was at issue in Freeman itself. There, the defendant entered into a

Rule 11(c)(1)(C) plea agreement that contained (i) the defendant’s stipulated total offense

level; (ii) his anticipated criminal history category; and (iii) a proposed prison term that

was expressly linked to the Guidelines and that fell within the Guidelines sentencing

range corresponding to the plea agreement’s offense level and criminal history

determinations. Id. at 542–43. When the aforementioned Guidelines sentencing range

was subsequently lowered, Justice Sotomayor reasoned that the defendant became

eligible for relief, because his prison term was “based on” a subsequently-lowered

Guidelines sentencing range under her definition of the phrase. Id. at 542–44.

       Of course, not all plea agreements contain the level of Guidelines-specific detail

that was contained in the plea agreement examined in Freeman. At least two of our sister

circuits have had the opportunity to apply the Freeman rule to circumstances where, as

here, a Rule 11(c)(1)(C) plea agreement outlined a proposed prison term and an offense

level stipulation, but did not expressly link the sentence to the Guidelines and did not

contain a criminal history determination. See United States v. Scott, 711 F.3d 784, 786

(7th Cir. 2013); United States v. Rivera-Martinez, 665 F.3d 344, 345–46 (1st Cir. 2011).

Both circuits concluded that the proposed prison term contained in such agreements are

not “based on” a Guidelines sentencing range for § 3582(c)(2) purposes, thus precluding




                                            10
§ 3582(c)(2) relief. Scott, 711 F.3d at 787; Rivera-Martinez, 665 F.3d at 348–50. We

agree with these persuasive authorities.

       May’s plea agreement did not “expressly use[] a [subsequently-lowered]

Guidelines sentencing range to establish the [proposed] term of imprisonment.”

Freeman, 564 U.S. at 539 (Sotomayor, J., concurring in judgment). Accordingly, his

plea agreement did not in explicit terms “make clear that the basis for the specified term

is a Guidelines sentencing range.” Id.

       Moreover, even assuming that it would suffice to have a proposed prison term

implicitly linked to a particular Guidelines sentencing range, no such link can exist here.

After all, May’s plea agreement does not contain all the ingredients necessary to establish

a particular Guidelines sentencing range. Whereas the plea agreement considered in

Freeman contained both an offense level stipulation and an anticipated criminal history

category, id. at 542–43, May’s plea agreement contains only the former and not the latter.

       May argues that we need not insist that the plea agreement make a criminal history

determination, because “a criminal history category is an objective determination that

cannot be influenced by the agreement of the parties.” Appellant’s Br. at 14. This

argument misses the mark. The relevant inquiry is whether a defendant’s plea agreement

makes clear that its proposed sentence is based on an “agreed-upon” Guidelines

sentencing range. Freeman, 564 U.S. at 538–39 (Sotomayor, J., concurring in judgment).

An ingredient of an agreed-upon Guidelines sentencing range is necessarily an agreed-

upon criminal history category, not a defendant’s criminal history category in the

“objective” sense that was not agreed upon.


                                              11
       Although absent from the plea agreement, a particular Guidelines sentencing range

might still be discovered upon review of “the parties’ background negotiations or the

facts that informed the sentencing judge’s decision to accept the plea.” Rivera-Martinez,

665 F.3d at 349. However, Justice Sotomayor’s concurrence “forbids us from making

such an archeological dig,” id., and instead confines our inquiry to the four corners of the

plea agreement, see Freeman, 564 U.S. at 538 (Sotomayor, J., concurring in judgment)

(directing focus to the parties’ “binding agreement,” rather than to “a free-ranging search

through the parties’ negotiating history in search of a Guidelines sentencing range that

might have been relevant to the agreement or the court’s acceptance of it”).

       Looking at the plea agreement alone, the most that can be said about the parties’

proposed sentence is that it was implicitly based on a Guidelines sentencing range

ingredient, i.e., a particular offense level. But § 3582(c)(2)’s text does not authorize

relief when the defendant has agreed to be sentenced to a term of imprisonment based on

an ingredient of a sentencing range that has been subsequently lowered. Rather, the

statute authorizes relief only when the defendant has been “sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered.”

§ 3582(c)(2) (emphasis added). Because we cannot conclude that the proposed sentence

at issue here was based on a particular Guidelines sentencing range subsequently lowered

by the Sentencing Commission, we agree with the district court that May is ineligible for

§ 3582(c)(2) relief.




                                            12
                                     IV.
For the foregoing reasons, the judgment of the district court is

                                                                   AFFIRMED.




                                      13
