                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 25, 2015
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 15-3127
 v.
                                             (D.C. No. 2:07-CR-20077-KHV-1)
                                                         (D. Kan.)
 JOSE L. FALCON-SANCHEZ,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.


      After the Sentencing Commission lowered the base offense levels for

certain drug crimes, see U.S. Sentencing Guidelines Manual app. C, amend. 782

(Supp. 2014), Jose Falcon-Sanchez asked the district court to reduce his sentence

under 18 U.S.C. § 3582(c)(2). The district court denied his request, holding that

Mr. Falcon-Sanchez isn’t eligible for such a reduction because his Rule




      *
         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)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument. 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judgment is not binding precedent, except under the doctrines of law of the case,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.
11(c)(1)(C) plea agreement called for a specific stipulated sentence — 168

months in prison — and did not rely on an advisory guidelines sentencing range.

      On appeal, Mr. Falcon-Sanchez argues he is entitled to relief under the

Supreme Court’s decision in Freeman v. United States, 131 S. Ct. 2685 (2011).

The questions presented in Freeman were whether and when an initial sentence

imposed (as here) under a Rule 11(c)(1)(C) plea agreement can be said to be

“based on” a Guidelines sentencing range. See id. at 2690 (plurality opinion).

      Freeman produced a fractured result. Four justices indicated that they

would “permit the district court to revisit a prior sentence to whatever extent the

sentencing range in question was a relevant part of the analytic framework the

judge used to determine the sentence or to approve the agreement.” Id. at 2692-

93. The dissent preferred a categorical rule barring any revision to a sentence

imposed under a Rule 11(c)(1)(C) agreement. Id. at 2700-01 (Roberts, C.J.,

dissenting). And Justice Sotomayor, writing for herself in a controlling

concurrence, rejected both the plurality’s approach and the dissent’s. She

suggested instead that district courts have authority to revise a sentence only

“when a [Rule 11(c)(1)(C)] agreement expressly uses a Guidelines sentencing

range to establish the term of imprisonment.” Id. at 2698 (Sotomayor, J.,

concurring in the judgment); see also United States v. Graham, 704 F.3d 1275,

1278 (10th Cir. 2013) (recognizing that “Justice Sotomayor’s concurrence . . .

represents the Court’s holding”).

                                        -2-
      Justice Sotomayor identified two scenarios in which a prisoner may qualify

for a revised sentence. The first occurs when the 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). The

second occurs when the agreement expressly “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.” Id.

      Mr. Falcon-Sanchez satisfies neither of these conditions for relief. Because

his plea agreement stipulated to a sentence of 168 months, the district court was

never asked to sentence Mr. Falcon-Sanchez within a particular sentencing range.

Neither did the agreement clearly indicate that the basis for his sentence was a

particular guidelines sentencing range. In fact, the agreement contains language

stating exactly the opposite: “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.”

      Because Mr. Falcon-Sanchez’s sentence was based on his Rule 11(c)(1)(C)

plea agreement and not on an advisory guidelines sentencing range that has been

lowered by the sentencing commission within the meaning of the controlling

opinion in Freeman, the district court properly recognized that it lacked authority

to revise it. See, e.g., United States v. Rivera-Martínez, 665 F.3d 344, 348-50




                                        -3-
(1st Cir. 2011); United States v. Price, No. 15-3125, 2015 WL 5915954, at *2-3

(10th Cir. Oct. 9, 2015).

      Affirmed.


                                     ENTERED FOR THE COURT



                                     Neil M. Gorsuch
                                     Circuit Judge




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