                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

____________________________
                             )
UNITED STATES OF AMERICA,    )
                             )
          v.                 )   Criminal Action No. 03-311-5 (RWR)
                             )
CARL WATSON,                 )
                             )
          Defendant.         )
____________________________ )

                         MEMORANDUM ORDER

     Defendant Carl Watson pled guilty under a Federal Rule of

Criminal Procedure 11(c)(1)(C) plea agreement to conspiracy to

distribute and possess with intent to distribute 50 grams or more

of cocaine base, 5 kilograms or more of cocaine, and 100 grams or

more of heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1),

841(b)(1)(A)(ii), 841(b)(1)(A)(iii), and 841(b)(1)(B)(i).   In the

plea agreement, the parties agreed to a sentence of 120 months.     I

accepted and imposed the agreed-upon sentence.   Watson now moves

under 18 U.S.C. § 3582(c)(2) for sentence reduction, citing

amendments to the United States Sentencing Guidelines that lowered

the base offense levels for offenses involving crack cocaine.    See

U.S. Sentencing Guidelines Manual supp. app. C, amend. 706 (2010)

(effective Nov. 1, 2007); id. § 1B1.10 (listing 706 among those

amendments with retroactive effect).   The government opposes on

the grounds that the offenses to which Watson pled guilty

subjected him to a 10-year mandatory minimum sentence, which he

received, and that because he pled guilty under a plea agreement,
                                 -2-

subsequent guidelines amendments do not enable him to seek a

reduction.1

     A defendant is eligible for a sentence reduction where his

term of imprisonment is “based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.”   18

U.S.C. § 3582(c)(2).   In the case of a defendant sentenced under a

Rule 11(c)(1)(C) plea agreement, the agreed-upon sentence is

“based on” a subsequently lowered range where the plea agreement

indicates the parties’ intent that the sentence be determined in

accordance with that particular guidelines range.    Freeman v.

United States, 131 S. Ct. 2685, 2698-99 & n.5 (2011) (Sotomayor,

J., concurring).2   In addition, “any sentence reduction must be

‘consistent with applicable policy statements issued by the

Sentencing Commission.’”   United States v. Berry, 618 F.3d 13, 17

(D.C. Cir. 2010) (quoting 18 U.S.C. § 3582(c)(2)).   A policy


     1
       Briefing was previously ordered on what, if any, effect
the safety valve provision, 18 U.S.C. § 3553(f), has on the
defendant’s motion to reduce. Because the D.C. Circuit’s
subsequent decision in United States v. Berry, 618 F.3d 13 (D.C.
Cir. 2010), and the Supreme Court’s subsequent decision in
Freeman v. United States, 131 S. Ct. 2685 (2011), control the
resolution of Watson’s motion, additional arguments regarding the
safety valve provision need not be addressed.
     2
       Justice Kennedy’s opinion announcing the judgment of the
Court in Freeman did not command a majority. Because Justice
Sotomayor’s opinion concurs in the result on grounds narrower
than that of the plurality, her opinion is controlling. See
United States v. Turner, Criminal No. 07-263 (RCL), 2011 WL
5865490, at *5 (D.D.C. Nov. 21, 2011); United States v. Walker,
Criminal Action No. 06-78 (RWR), 2011 WL 4888772, at 1-2 (D.D.C.
Oct. 14, 2011).
                                 -3-

statement in the Sentencing Guidelines prohibits sentence

modifications under § 3582(c)(2) if a retroactive Guidelines

amendment “does not have the effect of lowering the defendant’s

applicable guideline range” because, for example, of “the

operation of . . . a statutory mandatory minimum term of

imprisonment.”    U.S. Sentencing Guidelines Manual

§ 1B1.10(a)(2)(B) & cmt. n.1 (2011).

     Here, Watson’s plea agreement did not reflect the parties’

intent to base the agreed-upon sentence on a range determined by

the guidelines.   The agreement states only that the parties “agree

that a sentence of 120 months’ incarceration is the appropriate

sentence for the offense.”   (Plea agreement ¶ 3.)    Moreover,

Watson was and remains subject to a statutory mandatory minimum

sentence of 10 years, 21 U.S.C. §§ 846, 841(a)(1),

841(b)(1)(A)(ii), 841(b)(1)(A)(iii), the term that he received

under the plea agreement.3   For these reasons, Watson is ineligible

for a sentence reduction.    Accordingly, it is hereby



     3
       Amendments to the statutory mandatory minimum provisions
after Watson’s sentencing increased the quantity of cocaine base
necessary to trigger the 10-year mandatory minimum from 50 grams
to 280 grams. See Fair Sentencing Act of 2010, Pub. L. 111–220,
§ 2(a)(1), 124 Stat. 2372, 2372 (2010). The Act, however, does
not affect the outcome here since it does not include an express
statement of retroactivity, and since Watson agreed in the plea
agreement that he was “accountable for at least 1.5 kilograms of
cocaine base.” (Plea agreement ¶ 2.) In addition, Watson pled
guilty to conspiracy to distribute and possess with intent to
distribute 5 kilograms or more of cocaine, which itself triggers
the 10-year mandatory minimum. 21 U.S.C. § 841(b)(1)(A)(ii).
                                -4-

     ORDERED that Watson’s motion [449] to reduce be, and hereby

is, DENIED.

     SIGNED this 26th day of January, 2012.



                                       /s/
                             RICHARD W. ROBERTS
                             United States District Judge
