                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 22 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10080

              Plaintiff - Appellant,             D.C. No. 4:09-cr-00745-DLJ-1

  v.
                                                 MEMORANDUM*
JIMMY LEE THORNTON,

              Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                 D. Lowell Jensen, Senior District Judge, Presiding

                      Argued and Submitted March 13, 2014
                           San Francisco, California

Before: THOMAS, FISHER, and BERZON, Circuit Judges.

       The United States appeals from the district court’s order reducing the prison

sentence of defendant-appellee Jimmy Lee Thornton pursuant to 18 U.S.C.

§ 3582(c)(2). We conclude that the district court lacked jurisdiction under

§ 3582(c)(2) to reduce Thornton’s sentence, and reverse.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Thornton does not dispute that he was sentenced pursuant to a binding plea

agreement of the kind described in Federal Rule of Criminal Procedure

11(c)(1)(C). Therefore, unless Thornton’s 11(c)(1)(C) plea agreement was itself

“based on” a United States Sentencing Commission Guidelines range that has

subsequently been reduced, the district court lacked § 3582(c)(2) jurisdiction to

modify his sentence. Freeman v. United States, 131 S. Ct. 2685, 2695 (2011)

(Sotomayor, J., concurring); United States v. Austin, 676 F.3d 924, 927–28 (9th

Cir. 2012).

      Here, no “Guidelines sentencing range [is] ‘evident from the agreement

itself’”; nor does the plea agreement “‘expressly use’ a Guidelines range.” See

Austin, 676 F.3d at 930. “No sentencing range appears on the face of the plea

agreement[,]” and the “terms of the agreement do not ‘make clear’ that any

particular Guidelines range was ‘employed[.]’” Id. (internal citation omitted)

(quoting Freeman, 131 S. Ct. at 2697 & 2700 (Sotomayor, J., concurring)).

Indeed, Thornton acknowledges that “the stipulated sentence was a compromise

between the mandatory minimum of five years and what could have been a

mandatory minimum of ten years” if the government had alleged Thornton’s prior

convictions. As Thornton was sentenced based on this compromise stipulation and

not on a Guidelines range that has subsequently been reduced, we conclude that the


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district court was without § 3582(c)(2) jurisdiction to modify Thornton’s sentence.

See id.

      In granting § 3582(c)(2) relief, the district court applied the analysis of

whether a “guideline range applicable to that defendant has subsequently been

lowered as a result of an amendment to the Guidelines” from United States v.

Pleasant, 704 F.3d 808, 810 (9th Cir. 2013) (quoting U.S.S.G. § 1B1.10(a)(1)), to

the separate question of whether Thornton was sentenced “based on” a guidelines

range that has been subsequently reduced. This was error, as these questions are

separate prongs of the § 3582(c)(2) analysis. Pleasant, 704 F.3d at 810–11.

“Although the ‘applicable to’ language[,]” derived from the Guidelines policy

statements, “appears to mirror the ‘based on’ language of the first prong, each

prong requires a separate analysis.” Id. Because Thornton’s plea agreement fails

the test set out in Justice Sotomayor’s Freeman concurrence, the district court

lacked jurisdiction to modify Thornton’s sentence, and there was no occasion to

move to the second prong of the analysis. See Austin, 676 F.3d at 926.

      As we conclude that the district court was without jurisdiction to order this

sentencing modification, we do not address the government’s additional arguments

for reversal.




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       Accordingly, the district court’s order granting Thornton’s motion to reduce

his sentence is REVERSED and the reduced sentence is VACATED. On remand,

the district court is to reinstate the original sentence.




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