                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0535n.06

                                             08-6026                                     FILED

                          UNITED STATES COURT OF APPEALS                             Aug 03, 2011
                               FOR THE SIXTH CIRCUIT                             LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
       Plaintiff-Appellee,                               )        COURT FOR THE
                                                         )        WESTERN DISTRICT OF
v.                                                       )        KENTUCKY
                                                         )
KENSTON L. TAYLOR,                                       )                          OPINION
                                                         )
       Defendant-Appellant.                              )




BEFORE:        MOORE, GIBBONS, and McKEAGUE, Circuit Judges.

       Per Curiam. Pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement,

Kenston L. Taylor was convicted of one count of possession with intent to distribute crack cocaine

in violation of 21 U.S.C. § 841(a)(1) and sentenced to 77 months in prison. Subsequently, the

Sentencing Commission approved Amendment 706, which together with Amendment 713,

retroactively reduced the base offense levels applicable to crack cocaine offenses. Taylor filed a

motion pursuant to 18 U.S.C. § 3582(c)(2), seeking a reduction in his sentence on the basis of

Amendment 706. The district court denied the motion, relying on the holding in United States v.

Peveler, 359 F.3d 369 (6th Cir. 2004), which stated that, “absent an agreement of the parties,” the

plain language of Rule 11(c)(1)(C) did not permit alteration of the agreed sentence under

§ 3582(c)(2), despite the retroactivity of the amendment at issue. Id. at 379.
No. 08-6026
United States v. Taylor

       Taylor appealed the district court’s denial, challenging this court’s holding in Peveler.

During the pendency of the appeal, the Supreme Court granted certiorari in another case from this

circuit addressing the same issue raised by Taylor and also relying on Peveler’s holding to deny relief

under § 3582(c)(2) and Amendment 706. See United States v. Goins, 355 F. App’x 1 (6th Cir.

2009). The Supreme Court recently issued its decision, reversing this court’s decision and

remanding the case for further proceedings. Freeman v. United States, 131 S. Ct. 2685 (2011).

Although there was no majority opinion in Freeman, Taylor’s case is still controlled by even the

most narrow interpretation of the case’s holding as advanced by the concurrence. Here, as in

Freeman, Taylor’s recommended sentence was both imposed in light of and expressly tied to the

Guidelines sentencing range in which his sentence fell, and it was that range that was lowered by

Amendment 706. See id. at 2694; id. at 2695 (Sotomayor, J., concurring in the judgment).

Accordingly, we remand Taylor’s case to the district court for further proceedings consistent with

the Supreme Court’s opinion.




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