                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1437
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                   Byron A. Brown

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
               for the Eastern District of Missouri - Cape Girardeau
                                  ____________

                              Submitted: June 25, 2015
                                Filed: July 16, 2015
                                    [Published]
                                   ____________

Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
                         ____________

PER CURIAM.

      Byron Brown appeals from the district court’s denial of his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2). For the following reasons, we
reverse the court’s ruling that Brown is ineligible for a reduction. See United States
v. Long, 757 F.3d 762, 763 (8th Cir. 2014) (standard of review).
        Brown pleaded guilty to distributing cocaine base, see 21 U.S.C. § 841(a)(1),
in accordance with a written plea agreement with the government in which the parties
agreed that the final sentence to be imposed, “pursuant to [Federal Rule of Criminal
Procedure] 11(c)(1)(C), shall be the greater of the minimum sentence under the
U.S.S.G. range as determined by the District Court, or 100 months.” The court
accepted the plea agreement, and sentenced Brown to 100 months in prison. In 2011,
Brown moved for a sentence reduction under 18 U.S.C. § 3582(c)(2), which
authorizes a court to reduce “a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing Commission.” The government
agreed that Brown was entitled to a reduction, and the court reduced Brown’s
sentence to 70 months. In November 2014, Brown brought the instant motion for a
further reduction based on 2014 amendments to the Guidelines. The government
argued this time, however--and the district court agreed--that Brown was not eligible
for a reduction, because he had not been sentenced based on a Guidelines sentencing
range, but based on a Rule 11(c)(1)(C) plea agreement. Brown argues, as he did
below, that his plea agreement shows that a Guidelines range was used to establish
his sentence, and that the government should be bound by its position in 2011
favoring the grant of a reduction.

       Upon careful review, we conclude that because the Rule 11(c)(1)(C) agreement
was for the greater of 100 months or the court-determined Guidelines minimum, “the
agreement itself employs the particular Guidelines sentencing range applicable to the
charged offenses in establishing the term of imprisonment,” and thus Brown “is
eligible to have his sentence reduced under § 3582(c)(2).” Freeman v. United States,
131 S. Ct. 2685, 2698 (2011) (Sotomayor, J., concurring). We reject the
government’s contention--contrary to its 2011 interpretation of the agreement in
supporting a reduction--that an uninitialed partial alteration of the plea agreement can
establish that Justice Sotomayor’s controlling opinion in Freeman does not squarely
apply. In any event, “[w]here a plea agreement is ambiguous, the ambiguities are



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construed against the government.” See United States v. Lewis, 673 F.3d 758, 763
(8th Cir. 2011).

       Accordingly, we reverse the district court’s ruling that Brown is ineligible for
a section 3582(c)(2) sentence reduction, and remand for exercise of the court’s
discretion whether to grant the authorized reduction.
                       ______________________________




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