United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 1, 2012          Decided January 25, 2013

                       No. 10-3091

               UNITED STATES OF AMERICA,
                       APPELLEE

                            v.

         DAVID A. DUVALL, ALSO KNOWN AS TONE,
                      APPELLANT


                Consolidated with 11-3114


       Appeals from the United States District Court
               for the District of Columbia
               (No. 1:09-cr-00236-RCL-1)


    Sylvia Royce, appointed by the court, argued the cause
and filed the briefs for appellant.

    Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman,
Chrisellen R. Kolb, and Courtney Spivey, Assistant U.S.
Attorneys.
                               2
   Before: GARLAND and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

   Opinion for       the   Court   filed   by   Circuit   Judge
KAVANAUGH.

    Opinion concurring in the judgment filed by Senior
Circuit Judge WILLIAMS.

     KAVANAUGH, Circuit Judge: From 2007 to 2009,
David Duvall and others distributed large quantities of
powder cocaine to mid-level drug dealers, who then cooked
the cocaine into crack and sold it. In late 2009, Duvall was
arrested and indicted for conspiracy to distribute crack
cocaine.

    Duvall pled guilty pursuant to a Rule 11(c)(1)(C) plea
agreement. A Rule 11(c)(1)(C) plea agreement generally
specifies an agreed-upon sentence or sentencing range. Here,
the District Court accepted the plea agreement and sentenced
Duvall to 14 years’ imprisonment, as the agreement required.

     On appeal, Duvall primarily argues that he is entitled to a
sentence reduction because the advisory U.S. Sentencing
Guidelines     governing    crack-related    offenses      were
retroactively lowered after he was sentenced. Federal law
allows sentence reductions when a defendant “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). Here, however,
Duvall’s sentence was not based on a Guidelines sentencing
range, but was instead based on a plea agreement made under
Federal Rule of Criminal Procedure 11(c)(1)(C) – that is, the
plea agreement that provided for his 14-year sentence. See
Freeman v. United States, 131 S. Ct. 2685, 2695-700 (2011)
(opinion of Sotomayor, J.). In this case, therefore, the
                               3
Sentencing Commission’s change to the crack Guidelines
sentencing ranges does not make Duvall eligible for a
sentence reduction under Section 3582(c)(2).

    Duvall also raises a choice-of-counsel argument, which
we find meritless.

    We therefore affirm the judgment of the District Court.

                                I

     From at least August 2007 until his arrest in September
2009, David Duvall and his associates supplied large
quantities of powder cocaine to mid-level street dealers in the
Washington, D.C., area. The dealers then cooked the cocaine
into crack and sold it.

     After Duvall was arrested and indicted, the Government
notified the District Court that Duvall’s record contained two
prior drug convictions. As a result, Duvall would face a
mandatory life sentence if found guilty at trial.

     Duvall hired two attorneys to represent him. His
attorneys negotiated with the Government, and the parties
ultimately reached a plea agreement that avoided a possible
life sentence. The agreement expressly listed an agreed-upon
sentence of 15 years’ imprisonment for conspiracy to
distribute crack cocaine – far lower than the mandatory life
sentence that Duvall would have received had he been
convicted at trial. The plea agreement was negotiated
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C),
which allows plea agreements conditioned on a specific
sentence or sentencing range. If the district court accepts a
Rule 11(c)(1)(C) plea agreement, the court must impose the
sentence listed in the plea agreement. If the district court does
not accept the plea agreement (for example, because of the
                              4
court’s concerns about the agreed-upon sentence), the
defendant is free to withdraw his plea.

     The District Court accepted Duvall’s guilty plea on April
21, 2010. When Duvall entered his plea, the Court asked if he
was “satisfied with the services” of his attorneys. Plea Entry
Tr. 24, Apr. 21, 2010. Duvall answered “no,” but he said that
he still wanted to proceed with the plea. Id. at 24, 30.

     After the plea hearing but before sentencing, the District
Court received a letter from Duvall raising concerns about the
effectiveness of his counsel. Duvall wrote that his “Sixth
Amendment Right” to “effective assistance of [counsel] in
criminal prosecution” was being violated because, among
other things, he was promised discovery and a private
investigator, but received none, and one of his attorneys was
on the verge of being disbarred. Duvall App. 30.

     To address Duvall’s concerns, the District Court quickly
convened a status conference that took place on May 3, 2010.
At the conference, Duvall reiterated his grievances and noted
that, due to his mistrust of counsel, he didn’t “fully
understand” if he was “facing life or not.” Status Conference
Tr. 4, May 3, 2010. He wanted to plead guilty only if a
conviction would truly trigger a mandatory life sentence. And
he wasn’t sure he was truly facing a mandatory life sentence
if convicted at trial.

    The Court asked if Duvall had “any money left to hire
another lawyer.” Id. at 6. Duvall replied that he did not.
Duvall’s attorneys withdrew, and the Court then appointed a
new attorney to assist Duvall and to help Duvall determine
whether he should withdraw his plea.

     The new counsel advised Duvall that he was, in fact,
facing a mandatory life sentence if convicted at trial. The
                               5
new counsel also convinced the Government to reduce
Duvall’s agreed-upon sentence from 15 years to 14 years.

    At sentencing on September 10, 2010, after being invited
to speak, Duvall expressed no objections to the plea
agreement or to his new counsel. The District Court then
sentenced Duvall to 14 years’ imprisonment.

     About a year later, effective November 1, 2011, the U.S.
Sentencing Commission permanently reduced the sentencing
levels for certain crack-related offenses.        See U.S.
SENTENCING GUIDELINES MANUAL app. C, amend. 750
(2011). In addition, the Commission made those reductions
retroactive. Id. amend. 759.

    Based on those new Guidelines, Duvall filed a motion to
reduce his sentence. The District Court denied the motion.
The Court found that Duvall’s sentence was based on the Rule
11(c)(1)(C) plea agreement, not on the now-reduced
Guidelines sentencing range, as is required for a sentence
reduction under 18 U.S.C. § 3582(c)(2).

                               II

     On appeal, Duvall contends that the District Court did not
give him sufficient time to hire a new attorney of his choice,
using his own means, between the May 2010 status
conference – when Duvall jettisoned his original attorneys –
and the September 2010 sentencing. Because he did not raise
this argument in the District Court, we review it only for plain
error. The argument is meritless in light of (i) the four-month
stretch between counsel’s withdrawal and sentencing – a
period in which Duvall could have hired a different attorney if
he had the desire and means to do so; and (ii) the District
Court’s patient and careful handling of Duvall’s stated
concerns with his initial attorneys, including the Court’s
                              6
assignment of new counsel who assisted Duvall. Put simply,
the District Court did not in any way prevent Duvall from
hiring his counsel of choice. There was no error, much less
plain error.

                             III

     Duvall next argues that he is entitled to a sentence
reduction because of the Sentencing Commission’s recent
revision to the crack-cocaine Guidelines.

     Federal law allows a defendant to receive a sentence
reduction when he “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). About a year after Duvall was
sentenced for conspiracy to distribute crack cocaine, the U.S.
Sentencing Commission amended the advisory Sentencing
Guidelines governing crack-related offenses and gave those
amendments retroactive effect.        See U.S. SENTENCING
GUIDELINES MANUAL app. C, amend. 750 (2011) (effective
Nov. 1, 2011) (adjusting Guidelines); id., amend. 759
(effective Nov. 1, 2011) (making Amendment 750
retroactive).

    Under the statute, Duvall is eligible for a sentence
reduction if his sentence was “based on” a Guidelines
sentencing range that was lowered by the crack-related
amendments to the Sentencing Guidelines. To determine
whether Duvall’s sentence was based on a Guidelines
sentencing range, we must analyze the role of Duvall’s Rule
11(c)(1)(C) plea agreement in sentencing.

    Rule 11(c)(1)(C) plea agreements allow the prosecutor
and the defendant to agree on a determinate sentence or
sentencing range, which is then submitted to the judge for
                               7
approval. See Fed. R. Crim. P. 11(c)(1)(C); United States v.
Berry, 618 F.3d 13, 16 (D.C. Cir. 2010). If the judge accepts
the agreement with the agreed-upon sentence, the judge may
not impose a different sentence without allowing the
defendant to withdraw his plea. See Fed. R. Crim. P.
11(c)(5)(B). Before a Rule 11(c)(1)(C) plea agreement is
approved, moreover, the judge must calculate the applicable
Guidelines sentencing range and consider the Guidelines. See
18 U.S.C. § 3553(a)(4); U.S. SENTENCING GUIDELINES
MANUAL § 6.B1.2(c).

    In cases involving Rule 11(c)(1)(C) plea agreements, it
can be difficult to determine what the sentence is “based on”
for purposes of the Section 3582(c)(2) sentence reduction
provision. Section 3582(c)(2) applies only if the sentence was
based on a Guidelines sentencing range. Is the sentence in a
Rule 11(c)(1)(C) case based on the plea agreement? Is it
based on a Guidelines sentencing range? On both?

    The Supreme Court recently addressed that question in
Freeman v. United States, 131 S. Ct. 2685 (2011). Freeman
was a splintered decision: Four Justices concluded that
sentences under Rule 11(c)(1)(C) plea agreements are “based
on” the Guidelines sentencing range calculated by the judge;
four Justices concluded that the sentences are “based on” the
plea agreement, and not “based on” a Guidelines sentencing
range; and Justice Sotomayor concluded that the sentences are
“based on” the plea agreement, but in a specific subset of
cases are also “based on” a Guidelines sentencing range. See
id.

    For purposes of this appeal, both parties agree that Justice
Sotomayor’s opinion controls our analysis in light of the
Supreme Court’s decision in Marks v. United States, 430 U.S.
                                 8
188, 193 (1977). 1 Accordingly, we do not further address that
question.

    Justice Sotomayor’s opinion sets forth two possible ways
in which a Rule 11(c)(1)(C) plea agreement may be “based
on” a Guidelines sentencing range, thereby making the
defendant eligible for a sentence reduction under Section
3582(c)(2) if the relevant Guidelines sentencing range is later
amended.

     First, the plea agreement may not provide for a specific
term of imprisonment but instead may explicitly provide “for
the defendant to be sentenced within a particular Guidelines
sentencing range.” Freeman, 131 S. Ct. at 2697 (opinion of
Sotomayor, J.). In that situation, the defendant has been
sentenced “based on” the specified Guidelines sentencing
range for purposes of Section 3582(c)(2) and thus may be
eligible for a sentence reduction if the relevant Guidelines
sentencing range is later amended.


    1
      The Government notes in its brief that every court of appeals
to address the issue has found Justice Sotomayor’s Freeman
opinion controlling under the principle of Marks v. United States.
430 U.S. 188 (1977). Marks stated that “the holding of the Court
may be viewed as that position taken by those Members who
concurred in the judgment[]” based on the “narrowest grounds.” Id.
at 193 (internal quotation marks omitted). See United States v.
Rivera-Martínez, 665 F.3d 344, 347-48 (1st Cir. 2011); United
States v. White, 429 Fed. App’x 43, 47 (2d Cir. 2011)
(unpublished); United States v. Thompson, 682 F.3d 285, 289-90
(3d Cir. 2012); United States v. Brown, 653 F.3d 337, 340 & n.1
(4th Cir. 2011); United States v. Smith, 658 F.3d 608, 611 (6th Cir.
2011); United States v. Dixon, 687 F.3d 356, 359-60 (7th Cir.
2012); United States v. Browne, 698 F.3d 1042, 1045 (8th Cir.
2012); United States v. Austin, 676 F.3d 924, 927 (9th Cir. 2012);
United States v. Lawson, 686 F.3d 1317, 1321 n.2 (11th Cir. 2012).
                                   9
     Second, the plea agreement may provide for a specific
term of imprisonment but may still “make clear that the basis
for the specified term is a Guidelines sentencing range
applicable to the offense to which the defendant pleaded
guilty.” Id. To fall into this category, the Guidelines
sentencing range must be “evident from the agreement itself.”
Id. at 2697-98. As we read Justice Sotomayor’s analysis in
Freeman, that situation may arise when the plea agreement
(i) expressly specifies the Guidelines sentencing range and
makes clear that the Guidelines sentencing range was used by
the parties to determine the agreed-upon sentence, id. at 2698,
or (ii) expressly specifies the Guidelines offense level and
criminal history category and makes clear that the
corresponding Guidelines sentencing range was used by the
parties to determine the agreed-upon sentence, id. at 2699-
700. In those circumstances, it can be “evident from the
agreement itself” that the sentence is based on a Guidelines
sentencing range for purposes of Section 3582(c)(2). Id. at
2698. Other courts of appeals have similarly interpreted
Freeman. See United States v. Austin, 676 F.3d 924, 930 (9th
Cir. 2012); United States v. Rivera-Martínez, 665 F.3d 344,
349 (1st Cir. 2011); United States v. Brown, 653 F.3d 337,
340 (4th Cir. 2011).

   In applying Justice Sotomayor’s opinion, there of course
may be some close calls at the margins. 2 But this case is not a

     2
        The Freeman analysis may prove difficult in some cases, but
it is likely to be a relatively short-lived issue for the courts. At oral
argument, the Assistant U.S. Attorney indicated that the U.S.
Attorney’s Office now drafts Rule 11(c)(1)(C) plea agreements
with an eye to avoiding later litigation on the Freeman issue.
Doing so is consistent with Justice Sotomayor’s suggestion that
parties draft future plea agreements to avoid this problem. See
Freeman, 131 S. Ct. at 2699.
                              10
close call. Here, unlike in Freeman itself, Duvall’s plea
agreement neither expressly specified the Guidelines
sentencing range nor expressly specified the offense level or
criminal history category. The plea agreement simply stated
that the parties “agree that 180 months is the appropriate
sentence for this offense.” Therefore, we do not even get to
the separate question of whether the agreement made clear
that the specified Guidelines range was used by the parties to
determine the agreed-upon sentence.            Applying Justice
Sotomayor’s analysis in Freeman, we conclude that Duvall’s
sentence was not based on a Guidelines sentencing range and
that he therefore is not eligible for a sentence reduction under
Section 3582(c)(2).

                             ***

    We affirm the judgment of the District Court.

                                                    So ordered.
    WILLIAMS, Senior Circuit Judge, concurring in the
judgment:

     I agree with the judgment of the court affirming the
district court’s denial of Duvall’s motion to reduce his
sentence under 18 U.S.C. § 3582(c)(2). I write separately to
explain my disagreement with the proposition, agreed on by
the parties and (quite understandably) accepted by my
colleagues, that Justice Sotomayor’s opinion in Freeman v.
United States, 131 S. Ct. 2685, 2695-700 (2011), controls the
outcome in this and other cases involving the application of
§ 3582(c)(2) to pleas under Rule 11(c)(1)(C) of the Federal
Rules of Criminal Procedure. (As today’s opinion points out,
every appellate court to have considered the question to date
has agreed on that proposition. Maj. Op. at 8.) Once we
reject the view that that opinion is controlling, it remains open
to us to make an independent interpretation of § 3582(c)(2)’s
“based on” language, and I believe such an interpretation
would, without more, call for reversal of the district court.

     Our decision in United States v. Berry, 618 F.3d 13 (D.C.
Cir. 2010), is something “more.” It appears to compel the
same judgment as the court here reaches. I believe the court
en banc should reconsider the holding in Berry.


                             * * *

    1. Reaching the issue of identifying any controlling
Supreme Court authority. While our normal practice is to
“decide only questions presented by the parties,” Greenlaw v.
United States, 554 U.S. 237, 244 (2008) (internal citation
omitted), we are “not limited to the particular legal theories
advanced by the parties,” and we have discretion “to identify
and apply the proper construction of governing law.” U.S.
                              2

Nat’l Bank of Or. v. Indep. Ins. Agents, 508 U.S. 439, 446
(1993) (internal citation omitted). There is good reason to
exercise this discretion here. I do not believe United States
courts should close the door on a man’s chance at release from
prison on the basis of a framework (1) that eight out of nine
justices of the Supreme Court have squarely rejected, and (2)
that depends on the talismanic presence of special words in a
plea agreement. Until Freeman, parties to Rule 11(c)(1)(C)
agreements had no special reason to include these words, so
their inclusion is completely random in relation to Congress’s
purposes in enacting § 3582. The peculiarity of keeping
prison doors closed on such a basis justifies exercising our
discretion to consider the question the parties appear to take
for granted: whether Justice Sotomayor’s opinion is indeed
binding upon us.

      2. Ascertaining a controlling viewpoint in splintered
Supreme Court opinions. The leading Supreme Court decision
on determining when two or more Supreme Court opinions
can be patched together to create a controlling principle is
Marks v. United States, 430 U.S. 188 (1977). Given our
thorough interpretation of Marks in King v. Palmer, 950 F.2d
771, 781 (D.C. Cir. 1991), I will jump directly to King,
incorporating its references back to Marks. I should explain
first that King appears susceptible of two readings, a “strong”
one (yielding a relatively narrow view of when such patching
is correct), and a “weak” one (yielding a somewhat broader
view). Under both, the opinion of Justice Sotomayor is not
controlling. I start with the strong reading, which appears to
me to be correct.

     The question in King was whether there was sufficient
common ground between the plurality opinion and that of
Justice O’Connor in Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, 483 U.S. 711 (1987)
(“Delaware Valley II”), to control our decision about when if
                               3

ever counsel should receive a contingency enhancement under
a fee-shifting statute, in addition to the “lodestar” award
computed by multiplying hours worked by a reasonable
hourly fee.        Four justices believed that contingency
enhancements “should be reserved for exceptional cases,” id.
at 728 (plurality opinion); four were at virtually the opposite
end of the spectrum, believing that these enhancements would
be “appropriate in most circumstances,” id. at 741 (Blackmun,
J., dissenting). The ninth, Justice O’Connor, agreed with the
dissenters that “Congress did not intend to foreclose
consideration of contingency in setting a reasonable fee.” Id.
at 731. Nonetheless, she joined the plurality in reversing the
enhancement in Delaware II and specifically endorsed the
plurality’s conclusion “that no enhancement for risk is
appropriate unless the applicant can establish that without an
adjustment for risk the prevailing party ‘would have faced
substantial difficulties in finding counsel in the local or other
relevant market.’” Id. (quoting plurality opinion at 733).
Despite their common endorsement of the “substantial
difficulties” test, however, we noted in King the challenges
involved in finding common content between the plurality and
Justice O’Connor under that test—“that is, determining just
how ‘substantial’ the ‘difficulties’ in attracting counsel have
to be, and how they must be proven.” King, 950 F.2d at 777.

     In attempting to answer the last question, we reviewed
cases involving the patching of fragmented opinions. The
most prominent of these is Marks, which considered the
earlier decision of A Book Named “John Cleland’s Memoirs
of a Woman of Pleasure” v. Attorney General of
Massachusetts, 383 U.S. 413 (1966) (“Memoirs”). There a
plurality of three justices took the view that a book could be
banned as obscenity if it is “utterly without redeeming social
value,” whereas Justices Black and Douglas would have held
categorically that obscenity could never be banned.
Accordingly, “[b]ecause Justices Black and Douglas had to
                                4

agree, as a logical consequence of their own position, with the
plurality’s view that anything with redeeming social value is
not obscene, the plurality of three in effect spoke for five
justices: Marks’ ‘narrowest grounds’ approach yielded a
logical result.” King, 950 F.2d at 781 (emphasis added). By
contrast, Delaware Valley II was “not a case in which the
concurrence posits a narrow test to which the plurality must
necessarily agree as a logical consequence of its own,
broader position.” Id. at 782 (emphasis added).

     Applying this principle to the problem before us in King,
we noted first that the question of the availability of a fee
enhancement (the focus of the plurality opinion) was
inseparable from the question of how to calculate such an
enhancement (the virtually exclusive focus of Justice
O’Connor’s opinion). Id. at 783. And here we found a gap
between Justice O’Connor and the plurality: Justice
O’Connor’s opinion focused solely on contingency
enhancements payable in the market, with no ceiling, while
the plurality analyzed the claim’s risk of not prevailing at trial
and imposed a ceiling of one-third of the lodestar. Id. We
concluded, “Because [Justice O’Connor’s] answer to [the]
question [of how to calculate the enhancement] is so clearly at
odds with that of the plurality, . . . we are left without a
controlling opinion . . . .” Id.

    Returning to the general principle, we drew a contrast
with the situation in Arizona v. Fulminante, 499 U.S. 279
(1991), which used two distinct majorities to arrive at a
judgment, so that both constituted binding law. That, we said,
was quite different from the situation “the Marks
methodology addresses, where there is no explicit majority
agreement on all the analytically necessary portions of a
Supreme Court opinion.” King, 950 F.2d at 784 (emphasis
added). Obviously we saw our task as resolving whether one
                              5

could find implicit “majority agreement on all the analytically
necessary portions of a Supreme Court opinion.”

    It seems quite obvious that there is no overlap at all
between “the analytically necessary portions” of the
plurality’s opinion in Freeman (which looks to the sentencing
judge’s explicit or implicit reasoning) and that of Justice
Sotomayor (which looks to the presence or absence of specific
phrases in the plea agreement). Thus on the strong view of
King Justice Sotomayor’s view cannot control in this circuit.

     I now turn to the “weak” reading of King. The basis for
such a reading would be disregard of the language cited above
requiring agreement by the plurality with the other opinion “as
a logical consequence of its own, broader position.” I can see
no basis for such disregard, but it is conceivable that others
employing legal reasoning could find a route to such a view.
This weak reading would seem to require only that as a purely
factual matter cases producing an outcome in favor of the
defendant under Justice Sotomayor’s opinion would
invariably yield an outcome in his favor under the plurality
view. Even under that view, however, the conditions for
coalescing the opinions of the Freeman plurality and of
Justice Sotomayor are missing.

     In Freeman a four-justice plurality believed that
§ 3581(c)(2) permitted a “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 or to approve the agreement.”
Freeman, 131 S. Ct. at 2692-93 (plurality opinion). Four
justices dissented, preferring a categorical bar for any
§ 3582(c)(2) reduction following a Rule 11(c)(1)(C)
agreement, arguing that the sentence was “based on” the plea,
not on the Guidelines at all. Id. at 2701 (Roberts, C.J.,
dissenting). Justice Sotomayor, writing alone, rejected the
                               6

dissent’s categorical rule, but regarded the statute as allowing
a district court to revise a sentence when “a [Rule 11(c)(1)(C)]
agreement expressly uses a Guidelines sentencing range
applicable to the charged offense to establish the term of
imprisonment,” id. at 2695, or when “a plea agreement [that]
provide[s] for a specific term of imprisonment—such as a
number of months—[] also make[s] clear that the basis for the
specified term is a Guidelines sentencing range applicable to
the offense to which the defendant pleaded guilty,” id. at
2697-98.

     While a coincidence of result will doubtless be common
between Justice Sotomayor’s opinion and the plurality’s,
Justice Sotomayor’s opinion is not a subset of the plurality’s
in Freeman.      Below I describe a case where Justice
Sotomayor would grant relief but the plurality would deny it.

     Suppose a defendant pleads guilty to distributing five
kilograms of cocaine base (before adoption in 2008 of
Amendment 706, reducing the penalties for crack). This puts
his Guidelines base offense level at 36. See USSG § 2D1.1(c)
(drug table at (2)) (as amended in 2007). Since he has
accepted responsibility, he is entitled to a 3-point reduction of
his offense level, to 33. See id. § 3E1.1. Suppose also that the
defendant has been in and out of prison over the past 15 years
as a result of five prior convictions for non-drug offenses,
each resulting in imprisonment terms of more than 13 months.
Suppose finally that two of these prior offenses were felony
crimes of violence.        This criminal history earns our
hypothetical defendant 15 criminal history points, producing a
criminal history category of VI. See id. § 4A1.1, § 5A (table).
According to the Sentencing Table, an offense level of 33 and
a criminal history level of VI yield a sentencing range of 235-
293 months. All this is duly recorded in the plea agreement,
which further agrees on a sentence of 262 months and makes
                               7

no mention of the career offender provisions of the
Guidelines.

     Suppose now that the sentencing judge, in reviewing the
plea agreement under Rule 11(c)(1)(C), disagrees with its
approach. The judge reasons that the defendant’s two prior
convictions for crimes of violence make the defendant a
career offender, per USSG § 4B1.1(a). Since the maximum
statutory sentence for the defendant’s crime is life, see 21
U.S.C § 841(b)(1)(A)(iii), the judge determines that the
defendant’s offense level is 37, and his criminal history
category is VI (as it is for all career offenders under the
Guidelines).     See USSG § 4B1.1(b).          The judge then
ascertains that the defendant is entitled to a 3-point reduction
for acceptance of guilt, which provides a final offense level of
34. Id. The judge consults the table and determines that,
contra the plea agreement, the defendant’s sentencing range
should be 262-327 months.

     The sentencing judge could, at that point, reject the plea
agreement because of its mode of calculation. But suppose he
accepts it, as the agreed-on 262 months is within what he
regards as the correct range. By doing so, he has imposed a
sentence identical to that in the plea agreement, but seemingly
based on a Guideline range that (as it turns out) was not
lowered by Amendment 706 (or any other retroactive
amendment). By contrast, the sentence in the plea agreement
is explicitly traceable to a Guideline range that Amendment
706 lowered.

    For this hypothetical, Justice Sotomayor would accept a
§ 3582(c) reduction: the agreement’s sentence includes the
magic words of a range and points directly to a subsequently
amended Guideline. The generally more expansive plurality
opinion, however, would apparently reject the reduction: the
Guideline altered by Amendment 706 would not have been “a
                              8

relevant part of the analytic framework the judge used to
determine the sentence or to approve the agreement.”
Freeman, 131 S. Ct. at 2692-93 (plurality opinion).

     Cases such as this will occur any time the parties to a
Rule 11(c)(1)(C) agreement agree to ignore some aspect of an
alleged offense that would trigger a mandatory minimum or a
mandatory enhancement that the sentencing judge deems
inappropriate to ignore, but the agreement yields an ultimate
sentence that the judge regards as otherwise “sufficient, but
not greater than necessary,” to achieve the goals of sentencing
as required by 18 U.S.C. § 3553(a).

     3. “[B]ased on a sentencing range that has subsequently
been lowered by the Sentencing Commission” interpreted
without controlling Supreme Court authority. In the absence
of a binding Supreme Court opinion, we must determine when
a sentence is “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2). I think it fair to say that Congress’s
concern in the choice of these words was not with “based on”
but with the succeeding phrase—“a sentencing range that has
subsequently been lowered by the Sentencing Commission.”
It wanted to make clear that the district court’s sentence
reduction authority was not to be all-purpose, but linked to a
range that an amendment had “lowered.” Bearing that in
mind, I would give the statutory language a natural reading,
roughly tracking (but perhaps broader than) the Freeman
plurality’s view. At least as a first approximation, it would
embrace a sentence pursuant to a Rule 11(c)(1)(C) plea
agreement if (1) the plea is to a charge governed by a
Guideline subsequently amended pursuant to 28 U.S.C.
§ 994(o); and (2) there is no trumping factor incorporated into
the sentence (or the agreed-upon range, if the plea proceeds by
that device, see Rule 11(c)(1)(C)), such as a mandatory
minimum for use of weapons or career offender status, which
                              9

trumping factor remains unaltered by the Guidelines
amendment in question. Of course in a case where a sentence
segment meets these criteria but is supplemented by a separate
add-on for time that cannot run concurrently, see, e.g., 18
U.S.C. § 924(c)(1)(A), § 3582(c)(2) would apply to the
segment meeting the criteria.

    Such analysis corresponds with ordinary uses of the
phrase “based on.” A sentence under these circumstances is
“based on” the Guidelines just as West Side Story is based on
Romeo & Juliet: the basis is not exclusive, but significant
enough to justify use of the phrase by ordinary English-
speaking persons.

     Passing this test, of course, would only get the defendant
in the door of § 3582(c)(2); what happens next lies within the
sound discretion of the district court. Consider for example a
judge whose regular practice, for expressly stated reasons, has
been to replace the once-prevailing crack-to-powder ratio of
100-to-1 with a 1-to-1 ratio. United States v. Lewis, 623 F.
Supp. 2d 42, 45-47 (D.D.C. 2009). Where the Guideline
affecting the defendant’s sentence has simply been changed to
a closer approximation of crack-powder identity (as has been
typically true in the recent run of cases), it would make no
sense for such a judge to make a further reduction. (Nor, of
course, would it make sense for another judge who for some
reason must rule on a proposed § 3582(c)(2) modification of a
sentence imposed by such a judge.)

     4. The impact of our decision in Berry. Duvall’s
agreement would pass the test formulated above. But for
another problem, I would therefore reverse and remand the
district court’s denial of the motion for reduction of his
sentence (at least I would do so unless briefing on the matters
discussed above, which I would have urged my colleagues to
order, had persuaded me to modify the above views). Our
                               10

precedent in United States v. Berry, 618 F.3d 13 (D.C. Cir.
2010), however, directs the opposite result. There the
defendant sought to gain the benefit of a § 3582(c)(2)
reduction after a Rule 11(c)(1)(C) plea to a crack charge. The
plea agreement stipulated a sentence of 168 months, although
Berry was potentially subject to career offender status and a
concomitant range of 262 to 327 months. Berry, 618 F.3d at
15. Berry argued (in the proceeding under § 3582(c)(2)) that
the sentence imposed reflected agreement on a sentencing
range of 168 to 210 months, which followed from the crack
quantity and other aspects of the offense—absent any role for
career offender status. Id. at 16. The agreement itself did not
explain how the parties had reached the term of 168 months,
id., but the inference that they elected to disregard the
potential career offender penalties is inescapable.

     Putting aside the “based on” language at issue here and in
Berry itself, the Berry panel turned to other language in
§ 3582(c)(2) which neither party had briefed—the clause
allowing a reduction only if it “is consistent with applicable
policy statements issued by the Sentencing Commission.” It
then turned to USSG § 1B1.10(a)(2)(B), which says that a
sentence reduction under § 3582(c)(2) is not authorized if the
amendment “does not have the effect of lowering the
defendant’s applicable guideline range.” This would seem to
me merely a reformulation of the obvious meaning of
§ 3582(c)(2)—that the amended Guideline in question must
have been the source of the original sentence range. Without
considering that possibility, the court held that the “applicable
guideline range” under § 1B1.10(a)(2)(B) was the career-
offender range, which was potentially applicable but which
the government had never asked the sentencing court to apply.
618 F.3d at 17-18.

    The gist of Berry is then as follows: Notwithstanding that
the government and defendant had agreed on a sentence that
                                11

in no way relied on the career-offender provisions, and that
the sentencing court had accepted that agreement, and that the
parties had never litigated the applicability of the career-
offender provisions, the court of appeals brought those
provisions into the case; the effect was to prevent the grant of
a § 3582(c)(2) motion directed to a sentence that appeared to
have been based on a match-up between a specific later-
amended Guideline and the facts of the offense (apart from
facts bringing the career-offender provisions into play, which
the parties had agreed not to apply). I can find no warrant for
that in the statute or the Guidelines.

    The Berry approach seems, moreover, to contradict the
rule that a § 3582(c)(2) proceeding is not an occasion to
correct sentencing errors unrelated to the amended guideline.
Dillon v. United States, 130 S. Ct. 2683, 2693-94 (2010). It
cannot be that Dillon applies only to thwart corrections that
favor the defendant, but allows retroactive reconfigurations of
the sentence actually imposed, to imagine a sentencing that
might have occurred, a whole alternative universe, in order to
deny relief for a defendant whose sentence was, by
hypothesis, “based on” a retroactively amended guideline.1

     Nevertheless, Berry is the law of the circuit. Because
Duvall was potentially subject to a mandatory life sentence,
his case is indistinguishable from Berry’s. We must therefore
affirm the district court’s denial of his motion for a reduced
sentence, and do likewise in future cases unless and until the
court en banc should see fit to overturn Berry.




    1
        Unless the defendant satisfied the “based on” requirement,
or the court assumed in his favor that he did so, he would lose
without regard to the provisions invoked by Berry.
