               Case: 15-15246       Date Filed: 02/27/2017      Page: 1 of 15


                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 15-15246
                              ________________________

                     D.C. Docket No. 4:13-cr-00043-HLM-WEJ-1



UNITED STATES OF AMERICA,

                                                                      Plaintiff-Appellee,
                                            versus

ERIK LINDSEY HUGHES,

                                                                  Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                             _______________________

                                    (February 27, 2017)

Before WILLIAM PRYOR, JORDAN, and BALDOCK, ∗ Circuit Judges.

WILLIAM PRYOR, Circuit Judge:




∗
 Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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      This appeal requires us to apply the rule of Marks v. United States, 430 U.S.

188 (1977), to the splintered opinion in Freeman v. United States, 564 U.S. 522

(2011), to determine whether a defendant who entered into a plea agreement that

recommended a particular sentence as a condition of his guilty plea is eligible for a

reduced sentence, 18 U.S.C. § 3582(c)(2). Erik Hughes pleaded guilty to drug and

firearm offenses and entered into a binding plea agreement with the government,

Fed. R. Crim. P. 11(c)(1)(C). The district court accepted the agreement and

sentenced Hughes according to the agreement. Hughes then sought a sentence

reduction permitted for defendants who have been “sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by

the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added). In

Freeman, the justices divided over the question whether a defendant sentenced

under a binding plea agreement was sentenced “based on a sentencing range.” 564

U.S. at 525, 534. The district court determined that Justice Sotomayor’s concurring

opinion stated the holding in Freeman because she concurred in the judgment on

the narrowest grounds, Marks, 430 U.S. at 193, and it denied Hughes’s motion

based on the reasoning of that concurring opinion. We agree on both counts.

Hughes is ineligible for a sentence reduction because he was not sentenced “based

on a sentencing range,” 18 U.S.C. § 3582(c)(2), that has since been lowered. We

affirm.



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                                I. BACKGROUND

      In 2013, a federal grand jury returned an indictment that charged Erik

Hughes in four counts for drug and firearm offenses. Hughes pleaded guilty to two

counts: conspiracy to possess with intent to distribute at least 500 grams of

methamphetamine, 21 U.S.C. §§ 841(b)(1)(A)(viii), 846, and being a felon in

possession of a firearm, 18 U.S.C. § 922(g)(1). In the plea agreement, Hughes and

the government agreed to a sentence of 180 months of imprisonment.

      At the sentencing hearing, the district court calculated Hughes’s guidelines

range and determined that his sentencing range under the United States Sentencing

Guidelines was 188 to 235 months. The district court then accepted the plea

agreement, which bound the court to impose the below-guidelines sentence

recommended by the parties. See Fed. R. Crim. P. 11(c)(1)(C). So the district court

sentenced Hughes to 180 months of imprisonment.

      Just over a year later, Hughes filed a motion to reduce his sentence, 18

U.S.C. § 3582(c)(2). Section 3582(c)(2) allows a court to reduce the term of

imprisonment of “a defendant who has been sentenced . . . based on a sentencing

range that has subsequently been lowered by the Sentencing Commission.” Hughes

sought a reduction based on Amendment 782 to the Sentencing Guidelines, which

reduced the offense levels for certain drug offenses by two levels and applies

retroactively. See United States Sentencing Guidelines Manual § 1B1.10 (Nov.



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2015). According to Hughes, applying the amendment would reduce his guidelines

range to 151 to 188 months.


      The district court denied Hughes’s motion. It determined that Hughes was

ineligible for a reduced sentence. It reasoned, based on Justice Sotomayor’s

concurring opinion in Freeman, that the sentence in Hughes’s binding plea

agreement was not “based on” a sentencing guidelines range as required by section

3582(c)(2).


                         II. STANDARDS OF REVIEW

      “We review a district court’s decision whether to reduce a sentence pursuant

to [section] 3582(c)(2), based on a subsequent change in the sentencing guidelines,

for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343 (11th Cir.

2003). Like all questions of statutory interpretation, we review the conclusions of

the district court about the scope of its legal authority under section 3582(c)(2) de

novo. United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008).

                                 III. DISCUSSION

      We divide our discussion in two parts. First, we explain that Justice

Sotomayor’s concurring opinion in Freeman constitutes the holding of that

decision because it is the “position taken by th[e] [Justice] who concurred in the

judgment[] on the narrowest grounds.” Marks, 430 U.S. at 193 (quoting Gregg v.

Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens,

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JJ.)). Second, we explain that the district court correctly denied Hughes’s motion

for a sentence reduction because applying the holding of Freeman, Hughes was not

sentenced based on a sentencing guidelines range, Freeman, 564 U.S. at 538–39

(Sotomayor, J., concurring in the judgment).

   A. Justice Sotomayor’s Concurring Opinion Stated the Holding in Freeman.
      Federal courts ordinarily may not “modify a term of imprisonment once it

has been imposed,” 18 U.S.C. § 3582(c), but “Congress has provided an exception

to that rule ‘in the case of a defendant who has been sentenced to a term of

imprisonment based on a sentencing range that has subsequently been lowered by

the Sentencing Commission.’” Dillon v. United States, 560 U.S. 817, 819 (2010)

(quoting 18 U.S.C. § 3582(c)(2)). Such a defendant may have his sentence reduced

after the court “consider[s] the factors set forth in [18 U.S.C.] § 3553(a) . . . if such

a reduction is consistent with applicable policy statements issued by the Sentencing

Commission.” Id. § 3582(c)(2).

      In Freeman, the Supreme Court split over the question whether defendants

like Hughes who enter into plea agreements that recommend a particular sentence

as a condition of their guilty plea were sentenced “based on a sentencing range.”

564 U.S. at 525 (plurality opinion). William Freeman entered into a plea agreement

with the government under Rule 11(c)(1)(C), and the district court accepted the

agreement and imposed the recommended sentence. Id. at 527–28. The Sentencing



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Commission later issued a retroactive amendment that lowered the guidelines

range applicable to Freeman’s conduct, and he moved for a sentence reduction, 18

U.S.C. § 3582(c)(2). Id. at 528. The district court denied Freeman’s motion, and

the Sixth Circuit affirmed. Id. But the Supreme Court, in a five to four decision,

reversed. Id. at 525–526

      Five justices agreed that the district court could reduce Freeman’s sentence,

but those justices differed in their reasoning. The plurality opinion, joined by four

justices, determined that the “[t]he district judge’s decision to impose a sentence

may . . . be based on the Guidelines even if the defendant agrees to plead guilty

under Rule 11(c)(1)(C).” Id. at 526. “In every case the judge must exercise

discretion to impose an appropriate sentence” and “[t]his discretion, in turn, is

framed by the Guidelines.” Id. at 525. But Justice Sotomayor concurred only in the

judgment. Id. at 534.

      Justice Sotomayor’s concurring opinion determined that “the term of

imprisonment imposed by a district court pursuant to an agreement authorized by

Federal Rule of Criminal Procedure 11(c)(1)(C) . . . is ‘based on’ the agreement

itself, not on the judge’s calculation of the Sentencing Guidelines.” Id. (Sotomayor,

J., concurring in the judgment). Under this view, if a plea agreement “call[s] for

the defendant to be sentenced within a particular Guidelines sentencing range,” the

acceptance of the agreement by the district court “obligates the court to sentence



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the defendant accordingly, and there can be no doubt that the term of imprisonment

the court imposes is ‘based on’ the agreed-upon sentencing range.” Id. at 538. And

if a plea agreement “provide[s] for a specific term of imprisonment . . . but also

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,” then “[a]s long as

that sentencing range is evident from the agreement itself,” the term of

imprisonment imposed is “based on” that range. Id. at 539.

       “When a fragmented Court decides a case and no single rationale explaining

the result enjoys the assent of five Justices, ‘the holding of the Court may be

viewed as that position taken by those Members who concurred in the judgments

on the narrowest grounds.’” Marks, 430 U.S. at 193 (quoting Gregg, 428 U.S. at

169 n.15). “The Marks Court did not elaborate on how to identify the narrowest

grounds.” Bryan A. Garner, et al., The Law of Judicial Precedent 199–200 (2016).

“But the prevailing view is that the narrowest grounds are those that, when applied

to other cases, would consistently produce results that a majority of the Justices

supporting the result in the governing precedent would have reached.” Id. at 200.

We have explained that the “‘narrowest grounds’ is understood as the ‘less far-

reaching’ common ground.” United States v. Robison, 505 F.3d 1208, 1221 (11th

Cir. 2007) (quoting Johnson v. Bd. of Regents, 263 F.3d 1234, 1247 (11th Cir.




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2001)). When determining which opinion controls, we do not “consider the

positions of those who dissented.” Id.

      Justice Sotomayor’s opinion in Freeman provides the narrowest ground of

agreement because her concurring opinion establishes the “le[ast] far-reaching”

rule. District courts are required to consult the guidelines before sentencing a

defendant, see Freeman, 564 U.S. at 525–26 (plurality opinion), and district courts

may not accept an agreement under Rule 11(c)(1)(C) “without first evaluating the

recommended sentence in [the] light of the defendant’s applicable sentencing

range.” Id. at 529; see also U.S.S.G. § 6B1.2. Under the logic of the plurality

opinion, the guidelines range always “provide[s] a framework or starting point—a

basis, in the commonsense meaning of the term—for the judge’s exercise of

discretion” in deciding to accept a plea agreement under Rule 11(c)(1)(C). Id.

Justice Sotomayor’s opinion, by contrast, provides two examples in which a

sentence is based on a sentencing range.

      Both opinions agree on the broader principle that defendants sentenced

based on a binding plea agreement can later have their sentences reduced under

section 3582(c)(2), but the concurring opinion uses narrower reasoning than the

plurality opinion. Whenever the concurring opinion would grant relief to a

defendant sentenced according to a binding plea agreement, the plurality opinion

would agree with the result because, under the logic of the plurality opinion, a



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defendant should always receive relief. Justice Sotomayor’s opinion is the less far-

reaching common ground. We already reached this conclusion in dicta when we

evaluated the impact of Freeman on our precedent and stated that “Justice

Sotomayor’s concurring opinion can be viewed as the holding in Freeman.” United

States v. Lawson, 686 F.3d 1317, 1321 n.2 (11th Cir. 2012).

      The decisions of eight sister circuits also support our conclusion that Justice

Sotomayor’s concurring opinion is the holding of Freeman. See Garner, et al.,

supra, at 204 (“Almost every federal circuit court to consider the Marks issue in

Freeman has held that [Justice Sotomayor’s] opinion is controlling.”). The First,

Third, and Fourth Circuits reached that conclusion because “the plurality would

surely agree that in every case in which a defendant’s [Rule 11(c)(1)(C)] plea

agreement satisfies the criteria for Justice Sotomayor’s exception . . . the

sentencing judge’s decision to accept that sentence is based on the guidelines.”

United States v. Rivera-Martínez, 665 F.3d 344, 348 (1st Cir. 2011); see also

United States v. Thompson, 682 F.3d 285, 289 (3d Cir. 2012); United States v.

Brown, 653 F.3d 337, 340 n.1 (4th Cir. 2011). The Tenth Circuit explained that

Justice Sotomayor’s concurring opinion is the holding in Freeman because it is a

“middle ground.” United States v. Graham, 704 F.3d 1275, 1277–78 (10th Cir.

2013). And the Fifth, Sixth, Seventh, Eighth Circuits adopted Justice Sotomayor’s

concurring opinion after stating the Marks rule and then stating that Justice



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Sotomayor’s concurring opinion provides the narrowest ground of agreement. See

United States v. Benitez, 822 F.3d 807, 811 (5th Cir. 2016); United States v. Smith,

658 F.3d 608, 611 (6th Cir. 2011); United States v. Dixon, 687 F.3d 356, 359 (7th

Cir. 2012); United States v. Browne, 698 F.3d 1042, 1045 (8th Cir. 2012).

      The decisions of two circuits deviate from this majority view and hold that

Justice Sotomayor’s concurring opinion does not provide the narrowest ground of

agreement in Freeman, but we find their reasoning unpersuasive. The Ninth and

D.C. Circuits explained that the rule in Marks applies when one opinion is a

“logical subset” of another, broader opinion. See United States v. Davis, 825 F.3d

1014, 1021–22 (9th Cir. 2016) (en banc); United States v. Epps, 707 F.3d 337, 350

(D.C. Cir. 2013). Both courts then determined that Justice Sotomayor’s concurring

opinion is not a logical subset of the plurality opinion but instead offers a different

rationale because the concurring opinion focuses on the parties’ agreement and the

plurality opinion focuses on “the role of the judge’s Guidelines calculations in

deciding whether to accept or reject the agreement.” Davis, 825 F.3d at 1022; see

also Epps, 707 F.3d at 350. But this narrow focus on the rationale of the opinions

in Freeman is misplaced.

      The Supreme Court has not stated that an opinion can qualify as the

“narrowest grounds” of decision only when it “represent[s] a common denominator

of the Court’s reasoning.” Davis, 825 F.3d at 1020 (quoting King v. Palmer, 950



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F.2d 771, 781 (D.C. Cir. 1991) (en banc)); see also id. at 1031 (Bea, J., dissenting)

(“The . . . ‘logical subset’ requirement is an invention of the D.C. Circuit that finds

no support in Marks or any other Supreme Court precedent.”). Indeed, the Supreme

Court has determined that an opinion is controlling, under Marks, even when that

opinion does not share common reasoning with the other opinions necessary to

support the judgment. See O’Dell v. Netherland, 521 U.S. 151, 162 (1997)

(adopting Justice White’s concurring opinion in Gardner v. Florida, 430 U.S. 349

(1977), as the “narrowest grounds of decision among the justices whose votes were

necessary to the judgment” even though the concurring opinion relied on a

different constitutional amendment than the plurality opinion). “After all, in

splintered cases, there are multiple opinions precisely because the Justices did not

agree on a common rationale.” United States v. Duvall, 740 F.3d 604, 613 (D.C.

Cir. 2013) (Kavanaugh, J., concurring in the denial of rehearing en banc).

      Marks itself determined that a plurality opinion governed as the narrowest

grounds of decision notwithstanding that none of the justices that concurred in the

judgment “agreed with the rule enumerated by the . . . plurality.” Davis, 825 F.3d

at 1034 (Bea, J., dissenting). Marks evaluated which opinion provided the holding

of the Supreme Court in A Book Named “John Cleland’s Memoirs of a Woman of

Pleasure” v. Attorney General of the Commonwealth of Massachusetts, 383

U.S. 413 (1966). The plurality opinion in Memoirs determined that literature was



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protected by the First Amendment unless it satisfied the test of obscenity

established by Roth v. United States, 354 U.S. 476 (1957). See Memoirs, 383 U.S.

at 418. Justice Black’s and Justice Douglas’s concurring opinions in Memoirs, in

contrast, stated a rule that “the First Amendment provides an absolute shield

against governmental action aimed at suppressing obscenity.” Marks, 430 U.S. at

193. And Justice Stewart’s concurring opinion, different still, explained that only

hardcore pornography could be suppressed. Id. Although six justices agreed that

the literature at issue was protected by the First Amendment, only the plurality

opinion, joined by three justices, relied on the test in Roth to reach that result. Yet

the Supreme Court determined that the plurality opinion governed as the “position

taken by those Members who concurred in the judgments on the narrowest

grounds,” id. (quoting Gregg, 428 U.S. at 169 n.15).

      The decision in Marks that the plurality opinion in Memoirs stated the

holding makes clear that when no opinion garners a majority of the votes, the

opinion that relies on the narrowest grounds necessary to reach the judgment

controls. See also United States v. Santos, 553 U.S. 507, 523 (2008) (opinion of

Scalia, Souter, and Ginsburg, JJ.) (explaining that the holding of the Court was

limited by Justice Stevens’s concurrence because his vote was necessary to the

judgment and his opinion rested upon the narrower ground). As Judge Bea has

explained, “Marks’ emphasis on the Court’s ‘judgment’ demonstrates that it is the



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ultimate ‘vote’ of five Justices that is important in determining the binding effect

of a splintered Supreme Court opinion.” Davis, 825 F.3d at 1035 (Bea, J.,

dissenting). “That is, Marks requires us to find a ‘legal standard which, when

applied, will necessarily produce results with which a majority of the Court from

that case would agree.” Id. (quoting United States v. Williams, 435 F.3d 1148,

1157 n.9 (9th Cir. 2006)); see also Duvall, 740 F.3d at 608 (Kavanaugh, J.,

concurring in the denial of rehearing en banc).

      As we see it, Justice Sotomayor’s opinion provides a legal standard that

produces results with which a majority of the Court in Freeman would agree

because whenever Justice Sotomayor’s opinion would permit a sentence reduction,

the plurality opinion would as well. The plurality opinion stated that because a

judge must “evaluat[e] the recommended sentence in [the] light of the defendant’s

applicable sentencing range” and determine “either that such sentence is an

appropriate sentence within the applicable guideline range or, if not, that the

sentence departs from the applicable guideline range for justifiable reasons” before

the judge accepts the agreement, “the court’s acceptance is itself based on the

Guidelines.” Freeman, 564 U.S. at 529 (plurality opinion) (internal quotation

marks omitted). Justice Sotomayor’s opinion, in contrast, provided two examples

in which a sentence imposed according to a plea agreement is “based on a

sentencing range.” Because the district judge must evaluate the sentencing range



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before accepting the plea agreement, the plurality opinion would reach the same

result as Justice Sotomayor’s concurring opinion and determine that, in those two

circumstances, the defendant was sentenced “based on a sentencing range” and

qualifies for a sentence reduction. As a result, Justice Sotomayor’s opinion is the

narrower opinion.

      When applying the rule of Marks to a splintered Supreme Court opinion, we

must determine which opinion that supports the judgment relied on the narrowest

grounds. Applying this rule to Freeman, it is clear that Justice Sotomayor’s

opinion controls because “‘sometimes’ is a middle ground between ‘always’ and

‘never.’” Duvall, 740 F.3d at 612 (Kavanaugh, J., concurring in the denial of

rehearing en banc). As a result, we must apply Justice Sotomayor’s concurring

opinion to determine whether Hughes qualifies for a sentence reduction under

section 3582(c)(2).

                B. Hughes Is Not Eligible for a Sentence Reduction.
      The district court did not abuse its discretion when it determined that

Hughes is not eligible for a sentence reduction because Hughes’s sentence was not

based on a sentencing guidelines range. Justice Sotomayor’s opinion explained that

a trial judge’s acceptance of a binding plea agreement is “based on” a sentencing

range when the Rule 11(c)(1)(C) agreement calls for a “defendant to be sentenced

within a particular Guidelines sentencing range,” or the agreement “make[s] clear



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that the basis for the specified term is a Guidelines sentencing range applicable to

the offense to which the defendant pleaded guilty.” Freeman, 564 U.S. at 538–39

(Sotomayor, J., concurring in the judgment). Hughes’s agreement does neither. His

plea agreement does not call for him to be sentenced within a particular sentencing

range but instead states that he “should be sentenced to 180 months.” And his plea

agreement does not “make clear” that the basis for the 180 month recommendation

is a guidelines sentencing range.

      The plea agreement does not “make clear” that a sentencing range formed

the basis for Hughes’s sentence. The agreement states that the district court and the

probation office will calculate the applicable guidelines range. And the government

reserved the right to modify its recommendations about the guidelines. But the

agreement does not make any recommendation about a specific application of the

Sentencing Guidelines, and the agreement does not calculate Hughes’s range or

discuss factors that must be used to determine that range, such as Hughes’s

criminal history. Nor does it set the agreed-upon sentence within the applicable

guideline range. Hughes was not sentenced “based on” a guidelines range, and he

is not eligible for a sentence modification under section 3582.

                                IV. CONCLUSION

      We AFFIRM the judgment of the district court.




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