                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                   No. 13-30133
            Plaintiff-Appellee,
                                           D.C. No.
              v.                     3:04-cr-05350-RBL-2

TYRONE DAVIS,
        Defendant-Appellant.                 OPINION


     Appeal from the United States District Court
       for the Western District of Washington
     Ronald B. Leighton, District Judge, Presiding

               Argued and Submitted
          May 14, 2014—Seattle, Washington

                   Filed January 27, 2015

 Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,
         and Marsha S. Berzon, Circuit Judges.

                Per Curiam Opinion;
             Concurrence by Judge Berzon
2                   UNITED STATES V. DAVIS

                           SUMMARY*


                          Criminal Law

   The panel affirmed the district court’s denial of a motion
pursuant to 18 U.S.C. § 3582(c)(2) for reduction of sentence
based upon the retroactive amendments to the Sentencing
Guidelines governing crack cocaine.

    The panel held that the district court’s determination that
it lacked jurisdiction to reduce the defendant’s sentence
because the sentence was not “based on” the Guidelines is
compelled under United States v. Austin, 676 F.3d 924 (9th
Cir. 2012), where the defendant’s Fed. R. Crim. P.
11(c)(1)(C) plea agreement neither called for him to be
sentenced within a particular Guidelines range, nor made
clear that the basis for the specified term is a Guidelines
range applicable to the offense, or showed that a sentencing
range is evident from the agreement itself.

    Concurring, Judge Berzon agreed with the per curiam
opinion, given the holding of Austin, which she believes was
incorrectly decided and should be reconsidered en banc.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      UNITED STATES V. DAVIS                       3

                              COUNSEL

Anna M. Tolin, Kirkland, Washington, for Defendant-
Appellant.

Michael S. Morgan, Assistant United States Attorney, Seattle,
Washington, for Plaintiff-Appellee.


                               OPINION

PER CURIAM:

    In 2005, Davis was convicted on the basis of his plea
agreement and sentenced to 18 years for conspiracy,
distribution, and possession with intent to distribute cocaine
base, that is, crack. We affirmed his sentence on direct
appeal. Subsequently, in 2010, the United States Sentencing
Commission reduced the Sentencing Guidelines retroactively
for crack cocaine. Davis sought a retroactive reduction of his
sentence based upon this change. The district court held that
it lacked jurisdiction to modify his sentence because his
sentence was not “based on” the Guidelines.1 We review de
novo,2 and affirm.




 1
     See 18 U.S.C. § 3582(c)(2).
 2
     United States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012).
4                        UNITED STATES V. DAVIS

    Davis’s plea agreement recites that it is entered into
pursuant to Rule 11(c)(1)(C).3 A “(c)(1)(C)” agreement is
one that the district court has discretion to accept or reject,
but if the district court does not agree upon the particular
sentence the parties have agreed to, then the defendant is
entitled to withdraw from the agreement.4 There is no issue
in this case regarding whether the agreement was, as it
recites, an 11(c)(1)(C) agreement.

    The agreement lists some, but not all, of the factors that
would enable a Guidelines calculation. On the one hand, it
states what statutes and statutory penalties apply, and it says
that the total amount of cocaine base would yield a base
offense level of 34. On the other hand, it does not state
whether adjustments are appropriate, or what Davis’s
criminal history category would be under the Guidelines.
Criminal history category and adjustment determinations are
necessary to calculate the sentencing range on the Guidelines
matrix.    It appears from the sentencing memoranda


    3
        Fed. R. Crim. P. 11(c)(1):

             . . . If the defendant pleads guilty or nolo contendere to
             either a charged offense or a lesser or related offense,
             the plea agreement may specify that an attorney for the
             government will: . . .

                  (C) agree that a specific sentence or sentencing
                  range is the appropriate disposition of the case, or
                  that a particular provision of the Sentencing
                  Guidelines, or policy statement, or sentencing
                  factor does or does not apply (such a
                  recommendation or request binds the court once
                  the court accepts the plea agreement).
    4
        Fed. R. Crim. P. 11(d).
                       UNITED STATES V. DAVIS                       5

subsequently submitted to the district court that Davis’s
criminal history category was II. The district court found on
remand from the Ninth Circuit5 that Davis’s criminal history
was I. At his sentencing, the court found by a preponderance
of evidence that “Davis was a leader in the Seven Deuces
Mob and in the criminal conspiracy that gave rise to the
charges.” The court considered these factors in determining
whether to accept the plea agreement, and accepted it,
sentencing Davis to the 18 years he had agreed to.

     The law established by the Supreme Court decision in
Freeman v. United States6 has been much debated. Four
justices in Freeman would have held that all crack sentences
based on 11(c)(1)(C) agreements are eligible for the
retroactive reduction provided by the Guidelines, because the
trial judge’s discretion whether to accept the proposed
sentence is always informed by the Guidelines.7 Another four
justices accepted the government’s position that a sentence
imposed under an 11(c)(1)(C) agreement is based on the
agreement, not the Guidelines.8 One justice, Justice
Sotomayor, thought that a sentence imposed pursuant to an
11(c)(1)(C) agreement was based on the agreement and not
the Guidelines,9 so not subject to the retroactive crack
reduction.     However, Justice Sotomayor would have


 5
   See United States v. Davis, 312 Fed. Appx. 909, 913 (9th Cir. 2009)
(unpublished).
 6
     Freeman v. United States, 131 S.Ct. 2685 (2011).
 7
     Id. at 2690 (plurality opinion).
 8
     Id. at 2700 (Roberts, C.J., dissenting).
 9
     Id. at 2696 (Sotomayor, J., concurring in the judgment).
6                         UNITED STATES V. DAVIS

recognized two exceptions. First, Justice Sotomayor would
have recognized an exception where the (c)(1)(C) plea
agreement provides that the defendant be sentenced within a
specific Guidelines sentencing range. Second, Justice
Sotomayor would have recognized an exception where,
although the (c)(1)(C) agreement provided only for a specific
term of imprisonment, it was clear that “the basis for the
specified term is a Guidelines sentencing range” and that “the
sentencing range is evident from the agreement itself.”10 To
fit within her second exception, the (c)(1)(C) agreement has
to “expressly use[] a Guidelines sentencing range to establish
the term of imprisonment,” and that range must have been
“subsequently lowered by the [Sentencing] Commission”11
All eight of the other justices, four to affirm12 and four to
reverse,13 disagreed with Justice Sotomayor’s analysis. In the
context of Freeman, her view and the particularities of the
plea agreement led her to agree with the justices who thought
the district did have jurisdiction to apply the retroactive
reduction.

   In the case before us, the district court concluded that
under Marks v. United States,14 the Sotomayor view
controlled. In our circuit, the matter was resolved in United




    10
         Id. at 2697.
    11
         Id. at 2698.
    12
         Id. at 2690 (plurality opinion).
    13
         Id. at 2701 (Roberts, C.J., dissenting).
    14
         Marks v. United States, 430 U.S. 188 (1977).
                       UNITED STATES V. DAVIS                  7

States v. Austin.15 We held in Austin that Justice Sotomayor’s
concurrence in the judgment in Freeman controls under
Marks.16 The district court’s determination in this case that
it lacked jurisdiction to reduce Davis’s crack sentence is
consistent with Austin.

    Under Austin, Davis’s 18-year sentence was “based on”
his 11(c)(1)(C) agreement unless one of the two Freeman
exceptions applies. They do not. His agreement does not call
for him to be sentenced “within a particular Guidelines
sentencing range.”17 Nor does it “make clear that the basis
for the specified term is a Guidelines sentencing range
applicable to the offense,” or show that a “sentencing range
is evident from the agreement itself.”18 As explained above,
his agreement does not specify his Guidelines range, just one
element of it, quantity, leaving out other necessary elements
of the calculation, such as his criminal history and leadership
role. We are therefore compelled under Austin to affirm.

      AFFIRMED.




 15
      United States v. Austin, 676 F.3d 924 (9th Cir. 2012).
 16
      Id. at 927–28 (citation omitted).
 17
      Freeman, 131 S.Ct. at 2697.
 18
      Id.
8                UNITED STATES V. DAVIS

BERZON, Circuit Judge, concurring:

    I agree with the per curiam opinion, given the holding of
United States v. Austin, 676 F.3d 924 (9th Cir. 2012). In my
view, however, Austin was incorrectly decided and should be
reconsidered by this court en banc. We should instead adopt
the rationale of United States v. Epps, 707 F.3d 337 (D.C.
Cir. 2013).

    In Austin, we held that Justice Sotomayor’s opinion in
Freeman v. United States, 131 S. Ct. 2685 (2011), was
controlling under Marks v. United States, 430 U.S. 188
(1977). See Austin, 676 F.3d at 927–28. Subsequently, in
Epps, the D.C. Circuit concluded that none of the opinions in
Freeman represented the holding of the Court. Epps,
707 F.3d at 348–51. The D.C. Circuit then went on to hold,
independently of any binding Supreme Court precedent but
in accord with the plurality opinion in Freeman, that, for
purposes of 18 U.S.C. § 3582(c)(2), “the focus, even when
there is a [Fed. R. Crim. P.] 11(c)(1)(C) plea agreement,
ought to be on the reasons given by the district court for
accepting the sentence that it ultimately imposed, not on the
parties’ agreement.” Id. at 351. I agree.

    Under Marks, the holding of a fractured Supreme Court
opinion is “that position taken by those Members who
concurred in the judgments on the narrowest grounds.”
Marks, 430 U.S. at 193 (internal quotation marks omitted).
Epps held, relying on prior D.C. Circuit precedent
interpreting the Marks test, that Marks requires “‘a common
denominator of the Court’s reasoning’” which must
“‘embody a position implicitly approved by at least five
Justices who support the judgment.’” Epps, 707 F.3d at 348
(quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991)
                  UNITED STATES V. DAVIS                     9

(en banc)). This court has approvingly cited King’s test, and
has applied Marks in a similar way. See, e.g., Lair v. Bullock,
697 F.3d 1200, 1205 (9th Cir. 2012); United States v.
Williams, 435 F.3d 1148, 1157 (9th Cir. 2006).

    Epps concluded that there was no common denominator
in Freeman “because the plurality and concurring opinions do
not share common reasoning whereby one analysis is a
‘logical subset,’ King, 950 F.2d at 781, of the other.” Epps,
707 F.3d at 350. Indeed, as the per curiam opinion in this
case recounts, the Freeman plurality rejected Justice
Sotomayor’s approach. Id. Furthermore, while the plurality
and Justice Sotomayor agreed on the proper outcome of the
case on the facts presented in Freeman, Epps observed that
there was nothing logically necessary about this
correspondence in outcome. Id. There would be many cases
in which a defendant’s sentence would be reduced under the
plurality’s approach but not under Justice Sotomayor’s, of
course, but it was equally true that there would be cases in
which a defendant’s sentence would be reduced under Justice
Sotomayor’s approach but not under the plurality’s. See id.
at 350–51 (citing United States v. Duvall, 705 F.3d 479,
487–89 (D.C. Cir. 2013) (Williams, J., concurring in the
judgment) (explaining how the two approaches can diverge
in particular cases)). Because Justice Sotomayor’s opinion
focuses on the role the parties’ Guidelines calculations play
in the formation of a Fed. R. Crim. P. 11(c)(1)(C) agreement,
while the plurality’s approach focuses on the role of the
judge’s Guidelines calculations in deciding whether to accept
such an agreement, “the set of cases where the defendant
prevails under the concurrence is not always nestled within
10                    UNITED STATES V. DAVIS

the set of cases where the defendant prevails under the
plurality as the Marks framework requires.” Id at 351.1

    Like the D.C. Circuit in Epps, I cannot conclude that
Justice Sotomayor’s opinion qualifies as controlling under
Marks. On the contrary, the reasoning of Justice Sotomayor’s
opinion is totally contrary to that of the plurality opinion, and
her opinion would result in sentencing reductions in cases in
which the plurality opinion would not. I would follow the
D.C. Circuit’s conclusions that Justice Sotomayor’s opinion
is not binding; that, therefore, “we are bound only by the
result in Freeman, namely that [18 U.S.C.] § 3582(c)(2) relief
is not invariably barred when a sentence was imposed
pursuant to a Rule 11(c)(1)(C) plea agreement”; and that the
Freeman plurality’s reasoning is the most persuasive of the
three opinions in that case. Id. at 351. We should reconsider
Austin’s holding to the contrary.



   1
     “‘For example, the parties may state in the plea agreement that a
particular range applies and agree to a sentence at the bottom of that
range, but the district court may not agree that the range determined by the
parties applies, finding for example that the career offender range is
applicable instead, but notwithstanding this finding accept the plea
because it is to a term that is acceptable to the court for reasons unrelated
to the guideline range determined by the parties. Using Justice
Sotomayor’s standard, if the sentencing range used by the parties is
subsequently reduced, the defendant would be eligible for a sentence
reduction because the plea agreement was accepted and provided for a
stipulated sentence based on a subsequently reduced range–according to
Justice Sotomayor, eligibility is determined based on the agreement. The
plurality, however, would find this defendant ineligible because the range
that the parties agreed to played no role in the court’s determination that
this was an appropriate sentence, despite the fact that the court imposed
the agreed-upon term of imprisonment.’” Epps, 707 F.3d at 350 n.8
(quoting Epps’s reply brief).
