                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-6213


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SEAN FRAZIER, a/k/a Brock,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:08-cr-00086-WDQ-8)


Submitted:   June 18, 2013                 Decided:   June 27, 2013


Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Baltimore, Maryland; Thomas
Sarachan, Staff Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant.   Rod J. Rosenstein, United
States Attorney, Barbara S. Sale, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Sean Frazier appeals the district court’s judgment holding

him not entitled to a plea reduction.                         We affirm.

      Frazier        pled     guilty     to    participation            in    a     racketeering

conspiracy in violation of 18 U.S.C. § 1962(d).                                      Pursuant to

Fed. R. Crim. P. 11(c)(1)(C), he and the Government agreed that

a   sentence      of    135    months      imprisonment           was       “the     appropriate

disposition of this case.”                 Accordingly, on July 24, 2009, the

district court sentenced him to 135 months imprisonment.

      On       November       1,    2010,          the       United     States        Sentencing

Commission lowered the guidelines for crack cocaine offenses; on

November        1,     2011,       the     Commission            made         this     amendment

retroactive.           See U.S.S.G. app. C. amends. 748, 750, 759.                              On

September 24, 2012, Frazier asked the district court to reduce

his     sentence       pursuant      to       18       U.S.C.    §      3582(c).         Frazier

maintained that the crack cocaine amendments to the Sentencing

Guidelines provided a basis for the reduction.                                     The district

court    denied      the    motion,       finding        Frazier      not     eligible    for   a

sentence reduction.            Frazier appeals that order.

      We   review       a   district       court’s           decision    as    to    whether    to

reduce     a    sentence       pursuant        to        §    3582(c)(2)       for     abuse    of

discretion.          United States v. Mann, 709 F.3d 301, 304 (4th Cir.

2013).     But we review the district court’s holding as to the



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scope     of     its    authority       to    reduce      a       sentence     pursuant   to

§ 3582(c)(2) de novo.             Id.

      Resolution of the question raised here rests on the proper

application of Freeman v. United States, 131 S. Ct. 2685 (2011),

to the case at hand.              In Freeman, the Supreme Court held that a

defendant sentenced in accord with Rule 11(c)(1)(C), as Frazier

was, is eligible for a sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2) if his sentence had been “based on” a Sentencing

Guidelines range that had been lowered.                       But if the sentence was

“based on” the agreement of the parties, the defendant is not

eligible for a § 3582(c)(2) sentence reduction.                                The Freeman

Court divided 4-1-4, with a plurality concluding that defendants

who   enter      into    Rule     11(c)(1)(C)       pleas         are   not   categorically

barred from eligibility for a § 3582(c)(2) sentence reduction.

Justice    Sotomayor           concurred     in    the    judgment.           Her   opinion,

narrower       than     that    of   the     plurality,       controls.         See   United

States v. Brown, 653 F.3d 337, 340 (4th Cir. 2011) (applying

rule of Marks v. United States, 430 U.S. 188, 193 (1977) to find

Justice        Sotomayor’s       opinion      in    Freeman         controlling),      cert.

denied, 132 S. Ct. 1003 (2012).

      Justice      Sotomayor         concluded     that       a    defendant    who   pleads

guilty in accordance with Rule 11(c)(1)(C) can demonstrate his

sentence was “based on” a Guidelines range and so he is eligible

to seek a plea reduction pursuant to § 3582(c)(2) only in two

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instances.        The first is where the plea agreement “call[s] for

the defendant to be sentenced within a particular Guidelines

sentencing range.”         Freeman, 131 S. Ct. at 2697 (Sotomayor, J.,

concurring in the judgment).             Frazier does not maintain that his

plea   agreement     “call[s]     for”    him   “to   be    sentenced         within       a

particular Guidelines range.”

       But Frazier does maintain that Justice Sotomayor’s second

exception     to    the   general      rule    that   defendants           making    Rule

11(c)(1)(C) pleas are not eligible for § 3582(c)(2)’s reductions

applies to him.           That second exception applies when the plea

agreement (1) “provide[s] for a specific term of imprisonment”

and (2) “make[s] clear that the basis for the specified term is

a   Guidelines      sentence    range     applicable       to    the    offense”          of

conviction provided that “the sentencing range is evident from

the agreement itself.”         131 S. Ct. at 2697.

       Applying this test, we must affirm the district court’s

holding     that    Frazier    does    not     qualify     for    a    §    3582(c)(2)

sentence    reduction.         Frazier’s      agreement    does       provide       for    a

specific term of imprisonment -- 135 months.                     But the agreement

does not make clear that the specified term is a Guidelines

sentencing range applicable to the sentence of conviction, let

alone make this “evident from the agreement itself.”

       As   the    district    court     noted,    Frazier’s       plea      agreement

“disclaimed any agreement as to his criminal history or criminal

                                          4
history    category”      and    gave   no       “Guidelines      sentencing     range.”

Thus,   the   agreement         “does   not       make    clear     that   the    agreed

sentence   was    based    upon    a    Guidelines        calculation.”          We   note

that, on very similar facts, the First Circuit has come to the

same conclusion.       See United States v. Rivera-Martinez, 665 F.3d

344, 349 (1st Cir. 2011); see also United States v. Austin, 676

F.3d 924, 930 (9th Cir. 2012); Brown, 653 F.3d at 340.

     We dispense with oral argument because the facts and legal

contentions      are   adequately       presented        in   the   materials      before

this court and argument would not aid the decisional process.



                                                                                 AFFIRMED




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