                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-3792
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Judith Renfrow

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                          Submitted: November 14, 2016
                             Filed: February 28, 2017
                                  [Unpublished]
                                  ____________

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
                          ____________

PER CURIAM.

       Judith Renfrow was charged with four counts of distribution of
methamphetamine in violation of 21 U.S.C. § 841 in 2013. Renfrow entered a guilty
plea pursuant to a plea agreement under Federal Rule of Criminal Procedure
11(c)(1)(C). In the plea agreement, Renfrow agreed to plead guilty to one count of
distributing methamphetamine in exchange for dismissal of the three other counts and
a sentence of 90 months. The agreement stated that it was "based on the defendant's
role in the offense, criminal history, and acceptance of responsibility." The plea
agreement did not otherwise reference any calculations made as a result of applying
the Guidelines. Renfrow's presentence investigation report (PSR) indicated that
Renfrow's suggested Guidelines range would have been 97-121 months, but the plea
agreement did not reference the PSR.

      Subsequently, Renfrow filed a motion for a sentence reduction pursuant to 18
U.S.C. § 3582(c)(2) and Amendment 782 to the Sentencing Guidelines. Amendment
782, which became effective November 1, 2014, retroactively lowered most base
offense levels in the drug quantity tables in the Guidelines. See United States v.
Thomas, 775 F.3d 982, 982 (8th Cir. 2014) (per curiam). The district court1 denied
Renfrow's motion, concluding that Renfrow's sentence was not based on the
Guidelines because her Rule 11(c)(1)(C) plea agreement made no reference to the
Guidelines range and contained no information about how any particular Guidelines
range might have been calculated. Renfrow appeals.

       Where a defendant's "term of imprisonment [is] based on a sentencing range
that has subsequently been lowered by the Sentencing Commission . . . the court may
reduce the term of imprisonment." 18 U.S.C. § 3582(c)(2). The district court,
however, concluded that Renfrow's sentence was not "based on a sentencing range"
but instead was based upon a negotiated agreement between the parties. A Rule
11(c)(1)(C) agreement may be reduced under § 3582(c)(2) if the agreement "call[s]
for the defendant to be sentenced within a particular Guidelines sentencing range" or
provides for a specific term of imprisonment and "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." Freeman v. United States, 564 U.S. 522, 538-39 (2011)


      1
        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
                                         -2-
(Sotomayor, J., concurring).2 In making this eligibility determination, we look to the
language of the plea agreement itself. Id. at 539-40.

       Renfrow argues that the plea agreement's reference to her role in the offense,
criminal history, and acceptance of responsibility brings it within the purview of one
of the two types of cases described by Freeman. This argument, however, is not
consistent with our cases construing Rule 11(c)(1)(C) agreements and the application
of § 3582(c)(2). The plea agreement must do more than opaquely refer to concepts
usually embodied in Guidelines calculations. See United States v. Johnson, 697 F.3d
1190, 1191 (8th Cir. 2012) (per curiam) (holding that where the Rule 11(c)(1)(C)
agreement stated that the agreed upon sentencing range "takes into account all of the
factors to be considered under the advisory sentencing guidelines that apply to this
offense," the language was not sufficiently clearly based upon the Guidelines so as
to entitle the defendant to a § 3582(c)(2) reduction). Even where a Rule 11(c)(1)(C)
agreement specified a drug quantity and base offense level, we have determined that
without more obvious Guidelines calculations, the agreement was not based upon the
Guidelines and instead was based upon a bargain between the parties. Long, 757
F.3d at 764. This was because it was "impossible to calculate the range based solely
on the plea agreement." Id.

       In contrast to Johnson and Long, in United States v. Logan, 710 F.3d 856, 858
(8th Cir. 2013), the Rule 11(c)(1)(C) plea agreement specifically stated that the
parties "agreed to 'the sentencing guideline computation' in the PSR, including the
advisory guidelines range of 151 to 188 months." Because the basis for the
sentencing range—the PSR calculation—was evident in the agreement itself, we held
the Logan defendant was eligible for a reduction because the range was based upon
a guideline that was subsequently lowered by the Sentencing Commission. Id. at 859-
60.

      2
       Justice Sotomayor's opinion is the controlling opinion in Freeman. See Long,
757 F.3d at 764.
                                         -3-
       Here, the plea agreement's language is quite similar to the language we
examined in Johnson and not even as explicit as the language in Long. There is no
Guidelines range as there was in Logan. Nothing in Renfrow's agreement makes clear
that the basis for her 90-month sentence was any particular Guidelines calculation.
And indeed, it would be "impossible" to calculate her Guidelines range based on the
language of the agreement. Long, 757 F.3d at 764. Accordingly, we affirm the
district court's denial of Renfrow's § 3582(c)(2) motion for reduction of sentence.3

BEAM, Circuit Judge, concurring in the judgment.

        I agree with the final result reached by the court. However, the court fails to
cite applicable Supreme Court precedent. Dillon v. United States, 560 U.S. 817, 827
(2010), sets forth the two-step process a district court shall follow when considering
a sentence-reduction motion pursuant to § 3582(c)(2). At step one, § 3582(c)(2)
requires the court to determine the prisoner's eligibility for a sentence modification
and the extent of the reduction authorized. Dillon, 560 U.S. at 827. If the defendant
is eligible, the district court must analyze the § 3553(a) factors and use its discretion
to decide whether to allow the reduction. Dillon, 560 U.S. at 827. I believe that even
though this case ultimately turns on the Freeman analysis, the two-step rubric of
Dillon and § 3582 nonetheless sets forth the framework to be used in sentence
reduction cases such as this, even when a Rule 11(c)(1)(C) agreement is involved.
Several of our sister circuits agree. E.g., United States v. Leonard, 844 F.3d 102,


      3
        The district court did not discuss the “two-step” approach described in Dillon
v. United States, 560 U.S. 817, 826-827 (2010), and there was no need to address the
two questions identified therein—namely, whether a sentence reduction would be
consistent with USSG § 1B1.10 or whether an authorized reduction would be
warranted according to the factors set forth in 18 U.S.C. § 3553(a). Accord United
States v. Bogdan, 835 F.3d 805, 808-09 (8th Cir. 2016); United States v. Bailey, 820
F.3d 325, 328-29 (8th Cir. 2016) (per curiam); United States v. Long, 757 F.3d 762,
764 (8th Cir. 2014); United States v. Browne, 698 F.3d 1042, 1044-47 (8th Cir.
2012); United States v. Johnson, 697 F.3d 1190, 1191 (8th Cir. 2012) (per curiam).
                                          -4-
106-07 (2d Cir. 2016); United States v. Benitez, 822 F.3d 807, 810-12 (5th Cir. 2016)
(per curiam); United States v. Thompson, 714 F.3d 946, 948-50 (6th Cir. 2013); see
also United States v. Gordon, No. CR 98-71-3, 2016 WL 4074123, at *2 (D. D.C.
July 29, 2016) (unpublished) ("Here, the defendant fails to pass the first step of the
Dillon test . . . . [because] defendant's sentence of 276 months was imposed pursuant
to a binding plea agreement with the government, under Fed. R. Crim. P. 11(e)(1)(C)
(sic), and was not a sentence 'based on a sentencing range that has subsequently been
lowered by the Sentencing Commission . . . .' 18 U.S.C. § 3582(c)(2)."). Because
Renfrow's plea agreement, and not a Guidelines calculation, was the basis for her
original sentence, she fails Dillon's eligibility step. Accordingly, I concur only in the
court's judgment.
                           ______________________________




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