                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                TENTH CIRCUIT                               October 9, 2015
                       ___________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.                                                            No. 15-3125
ANDREW J. PRICE,                                  (D.C. No. 2:10-CR-20129-KHV-5)
                                                              (D. Kan.)
       Defendant-Appellant.
                   ____________________________________
                            ORDER AND JUDGMENT *
                       ____________________________________

Before TYMKOVICH, Chief Judge, BALDOCK and HARTZ, Circuit Judges. ∗∗
               ____________________________________

       In April 2011, Defendant Andrew J. Price pleaded guilty to Count One of a

Superseding Indictment charging him with conspiracy to distribute and possession with

intent to distribute more than 5 kilograms of cocaine powder and more than 280 grams of

cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(iii),

and 846. Defendant made this plea agreement pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(C) (“Rule 11(c)(1)(C)”), and any agreed-upon sentence under such a

plea “binds the court once the court accepts the plea agreement.” Fed. R. Crim. P.

       *
        This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       ∗∗
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
11(c)(1)(C). The parties recommended a sentence of 240 months’ imprisonment and, in

the fourth paragraph of the agreement, stated:

       [t]he parties are of the belief that the proposed sentence does not offend the
       now advisory sentencing guidelines, but because this proposed sentence is
       sought pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties are not
       requesting imposition of an advisory guideline sentence.

Defendant also waived his right to file any motion under 18 U.S.C. § 3582(c)(2). This

statute authorizes a district court to modify or reduce a defendant’s sentence when that

sentence was “based on a sentencing range that has subsequently been lowered by the

Sentencing Commission.” 18 U.S.C. § 3582(c)(2).

       The Presentence Investigation Report, prepared after Defendant executed the plea

agreement to help the district court decide whether it should accept the plea, concluded

that Defendant’s total offense level was 37 and that he was in criminal history category I.

This corresponded to an advisory Guideline sentence of 210 to 262 months. At the

September 15, 2011 sentencing hearing, the district court explicitly referenced this range

and told Defendant:

       As you know, we start the sentencing process by figuring out where you
       stand under the sentencing guidelines. And here they would call for a
       sentence between 210 and 262 months. After reviewing the entire case in
       light of the parties’ agreement for a sentence of 240 months, I’m convinced
       that this sentence which you propose would be sufficient but not greater
       than necessary to meet all of the objectives of federal sentencing law.

The district court thus accepted the plea agreement and sentenced Defendant to 240

months’ imprisonment.

       In February 2015, Defendant—notwithstanding the waiver he made in his plea

agreement—filed a motion pro se in the district court to reduce or modify his sentence

                                             2
pursuant to 18 U.S.C. § 3582(c)(2). He argued that Amendment 782 to the United States

Sentencing Guidelines, which “reduces by two levels the [base] offense levels assigned”

to the drug-trafficking offenses he was convicted under, lowered his total offense level to

35.   U.S. Sentencing Guidelines Manual app. C, amend. 782 (Supp. 2014).               The

corresponding effect would be an advisory Guideline range of 168 to 210 months’

imprisonment. Because his imposed sentence of 240 months was above this modified

range, Defendant asked the district court “to consider sentencing him at or near the

bottom of his amended guideline range.”

       The district court dismissed Defendant’s § 3582(c)(2) motion for lack of

jurisdiction. 1 Its decision was based on this Court’s holding in United States v. Graham,

704 F.3d 1275 (10th Cir. 2013), where we ruled that a district court did not have

jurisdiction to reach the merits of a pro se litigant’s § 3582(c)(2) motion when his

sentence “was not based on a Guideline sentencing range but on the terms of his [binding

Rule 11(c)(1)(C)] plea agreement.”      Id. at 1278.    The district court concluded that

Defendant’s Rule 11(c)(1)(C) plea agreement “calls for a specific sentence [of 240

months] and does not use or employ a guideline sentencing range,” and that it had

sentenced Defendant “based solely” on this plea agreement. It thus determined that it

could not reach the merits of his motion.

       Defendant thereafter timely filed a motion for reconsideration, arguing that he

satisfied the Graham rule because Defendant’s plea agreement, unlike the oral plea

       1
        The district court acknowledged that Defendant had waived his right to file any
§ 3582(c)(2) motions in the district court, but it stated in its Order that “[i]n dismissing
defendant’s present motion, the Court does not rely on the waiver in the plea agreement.”
                                             3
agreement at issue in Graham, explicitly stated that “[t]he parties are of the belief that the

proposed sentence does not offend the now advisory sentencing guidelines.”                He

contended that this written language showed his sentence was “based on” a Guideline

sentencing range. In support of his argument, he analogized his situation to Freeman v.

United States, 131 S. Ct. 2685 (2011), where the Supreme Court held that a binding Rule

11(c)(1)(C) agreement containing express language that the defendant “agrees to have his

sentence determined pursuant to the Sentencing Guidelines” was clearly a sentence

“based on” a Guideline sentencing range. Id. at 2690, 2699–700. The district court,

however, determined that Defendant’s plea agreement “[r]ead in its entirety . . . called for

a sentence of a specific number of months, not a specific offense level or range under the

guidelines.”   The district court thus denied Defendant’s motion for reconsideration.

Defendant now appeals, and we exercise jurisdiction under 28 U.S.C. § 1291. See United

States v. Trujeque, 100 F.3d 869, 870–71 (10th Cir. 1996).

       We generally review a denial of a motion to reconsider for abuse of discretion.

United States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011). When the district court

denied this motion on the grounds that a binding Rule 11(c)(1)(C) plea agreement

divested it of its § 3582(c)(2) jurisdiction, however—a matter that is a pure question of

law—we review the order de novo. See Graham, 704 F.3d at 1277.

       Defendant returns to his primary argument made in the district court and contends

that, in accordance with the Graham rule, the language in his plea agreement stating

“[t]he parties are of the belief that the proposed sentence does not offend the now

advisory sentencing guidelines” shows his agreement is based on the Sentencing

                                              4
Guidelines. Graham itself was primarily grounded in the Supreme Court’s decision in

Freeman, and in that case, we ruled that Justice Sotomayor’s concurring decision in

Freeman provided the Court’s governing holding.           Id. at 1278.     As it relates to

Defendant’s present appeal, Justice Sotomayor’s concurrence furnished an important rule

of law: a defendant’s Rule 11(c)(1)(C) plea agreement is based on the Sentencing

Guidelines—and therefore eligible for reduction under § 3582(c)(2)—only if that

agreement “expressly uses a Guideline sentencing range applicable to the charged offense

to establish the term of imprisonment.” Freeman, 131 S. Ct. at 2695 (Sotomayor, J.,

concurring in the judgment) (emphasis added). This express use can occur in only two

possible ways: (1) when the Rule 11(c)(1)(C) agreement “call[s] for the defendant to be

sentenced within a particular Guidelines sentencing range,” or (2) when the agreement

“provide[s] for a specific term of imprisonment . . . but also makes clear that the basis for

the specific term is a Guidelines sentencing range applicable to the offense to which the

defendant pleaded guilty.” Id. at 2697 (Sotomayor, J., concurring in the judgment)

(emphasis added).

         Defendant’s plea agreement satisfies neither of these express uses. Because his

agreement proposes a specific sentence of 240 months, it does not call for the district

court to sentence Defendant within a particular Guidelines sentencing range. Moreover,

his agreement does not “make clear” that the basis for this 240-month term is a

Guidelines sentencing range because the agreement never mentions or describes any such

range.    In fact, Paragraph 4 of the agreement contains language stating exactly the

opposite: the parties explicitly note that “because this proposed sentence is sought

                                             5
pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties are not requesting imposition of an

advisory guideline sentence.”     When read in conjunction with this dismissal of the

Guidelines, the language stating that the sentence does not “offend” the Sentencing

Guidelines merely indicates that the length of the sentence is not arbitrary. See id.

(Sotomayor, J., concurring in the judgment) (“[P]lea bargaining necessarily occurs in the

shadow of the sentencing scheme to which the defendant would otherwise be subject.”).

       Defendant combats this conclusion by pointing to a statement the Government

made in its Sentencing Memorandum wherein it declared that “[e]ven though the

government will recommend a sentence of 240 months imprisonment . . . the government

believes the USSG should be properly applied in any case.”             He argues that this

statement, when coupled with the “does not offend” language from the plea agreement,

shows the Government clearly intended to use the Guidelines as a basis for its

recommended sentence. Contrary to Defendant’s reading, however, the most natural

reading of this statement is that the Government was urging the district court, if it elected

not to accept the binding plea agreement, to impose a sentence that conformed to the

Sentencing Guidelines.      This reading is supported by the final paragraph of the

Government’s Sentencing Memorandum:

       [T]he government believes the defendant’s USSG range should be
       determined to be 210 to 262 months imprisonment. The government would
       note that but for the defendant’s Rule 11(c)(1)(C) plea agreement, it would
       likely be requesting an upward departure from the high end of the
       defendant’s USSG range. . . . However, as long as the defendant does not
       violate the plea agreement entered into by the parties, the government will
       recommend a sentence of 240 months imprisonment pursuant to the plea
       agreement.


                                             6
Any experienced prosecutor would have argued the same as an alternative measure.

       Even if we were to give Defendant the benefit of the doubt and assume that this

statement from the Sentencing Memorandum manifested the Government’s intent to use

the Guidelines as a basis for the 240-month sentence, this intent is not expressly apparent

from the plea agreement. This discrepancy would contravene the rule from Justice

Sotomayor’s concurrence in Freeman that the plea agreement itself must “make clear”

that the Guidelines serve as the basis for the sentence. See id. (Sotomayor, J., concurring

in the judgment) (noting that district courts need not “engage in a free-ranging search

through the parties’ negotiating history” in an effort to find some reference to a

Guidelines sentencing range that might have influenced a Rule 11(c)(1)(C) plea

agreement). Thus, at the very most, all this statement shows is that Defendant and the

Government considered the Sentencing Guidelines when drafting the plea agreement and

preparing for sentencing; for the Government to have done otherwise would have been

unusual.   Id. (Sotomayor, J., concurring in the judgment) (“[I]n most cases the

Government and the defendant will negotiate the term of imprisonment in a [Rule

11(c)(1)(C)] agreement by reference to the applicable Guidelines provisions.”).

      Defendant also argues that the district court’s consideration of the Guidelines and

reference to the objectives of the 18 U.S.C. § 3553(a) sentencing factors at his sentencing

hearing transformed his sentence into one based on the Guidelines. Justice Sotomayor

noted, however, that § 3582(c)(2) cannot be invoked to reduce a defendant’s sentence

“simply because the court itself considered the Guidelines in deciding whether to accept

the [Rule 11(c)(1)(C)] plea agreement.” See id. at 2696 (Sotomayor, J., concurring in the

                                            7
judgment). The district court was using the Guideline range and objectives solely to

determine whether it should accept the plea agreement, so this argument also fails.

       Finally, Defendant invokes our rule of “construing any ambiguities against the

government as the drafter of the [plea] agreement,” United States v. Altamirano-

Quintero, 511 F.3d 1087, 1094 (10th Cir. 2007) (quoting United States v. Rodriguez-

Delma, 456 F.3d 1246, 1250 (10th Cir. 2006)) (internal quotation mark omitted), to argue

that we must adopt his interpretation of the statement that “[t]he parties are of the belief

that the proposed sentence does not offend the now advisory sentencing guidelines.”

This rule, however, is contingent on the presence of an ambiguity in the plea agreement,

see id., and Defendant’s agreement contains none: the parties expressly state in the same

paragraph of the agreement that “because this proposed sentence is sought pursuant to

Fed. R. Crim. P. 11(c)(1)(C), the parties are not requesting imposition of an advisory

guideline sentence.” Once again, the clear conclusion we must draw is that the plea

agreement, when read as a whole, is unambiguous and not based on the Guidelines.

Thus, while it is undoubtedly true that we construe plea agreements “according to

contract principles and what the defendant reasonably understood when he entered his

plea,” United States v. Veri, 108 F.3d 1311, 1313 (10th Cir. 1997), we cannot hold

Defendant’s interpretation of this clause to be reasonable.

       AFFIRMED.

                                          Entered for the Court,


                                          Bobby R. Baldock
                                          United States Circuit Judge

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