                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0347n.06

                                           No. 16-6659

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                   FILED
UNITED STATES OF AMERICA,                              )                     Jun 19, 2017
                                                       )                 DEBORAH S. HUNT, Clerk
          Plaintiff-Appellee,                          )
                                                       )   ON APPEAL FROM THE UNITED
v.                                                     )   STATES DISTRICT COURT FOR
                                                       )   THE MIDDLE DISTRICT OF
SCOTTIE LEE SANDERSON,                                 )   TENNESSEE
                                                       )
          Defendant-Appellant.                         )
                                                       )
                                                       )


          BEFORE: KEITH, BATCHELDER, and GRIFFIN, Circuit Judges.

          PER CURIAM. Scottie Lee Sanderson appeals the district court’s order denying his

motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). As set forth below, we

affirm.

          In 2010, a federal grand jury returned an indictment charging Sanderson with two counts

of possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924 and four

counts of possession with intent to distribute and distribution of marijuana in violation of 21

U.S.C. § 841(a)(1). Sanderson entered into a written plea agreement, agreeing to plead guilty to

two of the marijuana counts in exchange for the dismissal of the other counts. In the plea

agreement, the parties acknowledged that, if convicted of either firearm count, Sanderson would

face a mandatory minimum sentence of 180 months and a maximum sentence of life because he

qualified as an armed career criminal.        Pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C), the parties agreed upon a sentence of 60 months on each count, to run consecutively
No. 16-6659, United States v. Sanderson

for a total of 120 months of imprisonment. Sanderson waived his right to appeal or collaterally

attack the agreed-upon sentence.

       Using the drug guideline, USSG § 2D1.1, which resulted in a greater offense level than

the career offender guideline, USSG § 4B1.1, the probation office calculated Sanderson’s

guidelines range as 41 to 51 months of imprisonment. At sentencing, the district court accepted

the plea agreement and sentenced Sanderson to 60 months of imprisonment on each count, to run

consecutively.

       In 2016, Sanderson filed a pro se motion for a sentence reduction pursuant to 18 U.S.C.

§ 3582(c)(2) based on Amendment 782 to the sentencing guidelines, which amended USSG

§ 2D1.1’s drug quantity table to reduce by two levels the base offense level for most drug

offenses. The district court appointed counsel to represent Sanderson and ordered the probation

office to prepare a revised presentence report. Applying Amendment 782, the probation office

determined that Sanderson’s offense level was now greater under the career offender guideline

than under the drug guideline and that his revised guidelines range was therefore the career

offender range—37 to 46 months of imprisonment. After briefing by the parties, the district

court denied Sanderson’s § 3582(c)(2) motion, concluding that he was not entitled to a sentence

reduction because his sentence was based on the Rule 11(c)(1)(C) plea agreement and not on a

guidelines range. This timely appeal followed.

       The government contends that Sanderson waived his right to seek a sentence reduction

under § 3582(c)(2) in the plea agreement in exchange for the government’s concessions,

including its agreement to dismiss four counts of the indictment, two of which carried a 15-year

mandatory minimum sentence. “It is well settled that a defendant in a criminal case may waive

any right, even a constitutional right, by means of a plea agreement.” United States v. Calderon,

388 F.3d 197, 199 (6th Cir. 2004) (quoting United States v. Fleming, 239 F.3d 761, 763-64 (6th

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No. 16-6659, United States v. Sanderson

Cir. 2001)). In his plea agreement, Sanderson “knowingly waive[d] the right to challenge the

sentence imposed in any collateral attack, including, but not limited to, a motion brought

pursuant to . . . 18 U.S.C. § 3582(c).” Sanderson contends that the waiver is ambiguous for two

reasons: (1) a § 3582(c) motion is not a collateral attack and (2) a waiver of a § 3582(c) motion

does not necessarily preclude a motion for a sentence reduction under § 3582(c)(2). Rejecting

these same arguments, this court has found identical waiver provisions to be unambiguous and

enforceable in § 3582(c)(2) cases, albeit in unpublished decisions. See United States v. Bryant,

663 F. App’x 420, 422-23 (6th Cir. 2016); see also United States v. Shelton, __ F. App’x __, No.

16-5772, 2017 WL 244800, at *1 (6th Cir. Jan. 20, 2017); United States v. Ellison, 664 F. App’x

507, 509 (6th Cir. 2016).

       Regardless of whether Sanderson waived his right to file a § 3582(c)(2) motion, the

district court properly denied his motion for a sentence reduction. We review de novo the

district court’s determination that Sanderson was not eligible for a sentence reduction under

§ 3582(c)(2). United States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010). “A district court may

modify a defendant’s sentence only as provided by statute.” United States v. Perdue, 572 F.3d

288, 290 (6th Cir. 2009). Under § 3582(c)(2), a district court may reduce a defendant’s sentence

if the defendant “has been sentenced to a term of imprisonment based on a sentencing range that

has subsequently been lowered by the Sentencing Commission.”

       In her narrower and therefore controlling opinion in Freeman v. United States, 564 U.S.

522 (2011), Justice Sotomayor held that “the term of imprisonment imposed pursuant to [a Rule

11(c)(1)(C)] agreement is, for purposes of § 3582(c)(2), ‘based on’ the agreement itself.” 564

U.S. at 536 (Sotomayor, J., concurring). A defendant sentenced pursuant to a Rule 11(c)(1)(C)

agreement is eligible for a sentence reduction under § 3582(c)(2) only when the agreement

“expressly uses a Guidelines sentencing range to establish the term of imprisonment, and that

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No. 16-6659, United States v. Sanderson

range is subsequently lowered by the Commission.” Id. at 539 (Sotomayor, J., concurring).

Sanderson’s Rule 11(c)(1)(C) agreement did not mention a guidelines range, offense level, or

criminal history category in establishing the agreed-upon sentence. In fact, the plea agreement

stated that “[t]he parties have no agreement as to a U.S.S.G. calculation.” The district court

properly concluded that Sanderson’s sentence was not based on a guidelines range and that he

was not entitled to a sentence reduction. See United States v. McNeese, 819 F.3d 922, 927-29

(6th Cir.), cert. denied, 137 S. Ct. 474 (2016); United States v. Riley, 726 F.3d 756, 760-61 (6th

Cir. 2013).

       Sanderson argues that Justice Sotomayor’s concurring opinion in Freeman should not be

read as controlling, citing United States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc), and

United States v. Epps, 707 F.3d 337 (D.C. Cir. 2013). This court has repeatedly held that Justice

Sotomayor’s concurring opinion provides “the framework that governs the inquiry into whether a

defendant sentenced pursuant to a Rule 11(c)(1)(C) agreement qualifies for § 3582(c)(2) relief.”

McNeese, 819 F.3d at 927; see Riley, 726 F.3d at 760; United States v. Smith, 658 F.3d 608, 611

(6th Cir. 2011). We are bound by that holding. See United States v. Lanier, 201 F.3d 842, 846

(6th Cir. 2000) (“It is firmly established that one panel of this court cannot overturn a decision of

another panel; only the court sitting en banc can overturn such a decision.”).

       Accordingly, we AFFIRM the district court’s order denying Sanderson’s motion for a

sentence reduction.




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