                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 13-30133
           Plaintiff-Appellee,
                                          D.C. No.
              v.                    3:04-cr-05350-RBL-2

TYRONE DAVIS,
        Defendant-Appellant.               OPINION


      Appeal from the United States District Court
        for the Western District of Washington
      Ronald B. Leighton, District Judge, Presiding

   Argued and Submitted En Banc September 10, 2015
               San Francisco, California

                    Filed June 13, 2016

 Before: Sidney R. Thomas, Chief Judge and William A.
Fletcher, Richard A. Paez, Richard C. Tallman, Johnnie B.
Rawlinson, Consuelo M. Callahan, Carlos T. Bea, Morgan
 Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz and
              John B. Owens, Circuit Judges.

               Opinion by Judge Paez;
            Concurrence by Judge Christen;
                Dissent by Judge Bea
2                   UNITED STATES V. DAVIS

                           SUMMARY*


                          Criminal Law

    The en banc court reversed the district court’s
determination that Tyrone Davis is not eligible for a sentence
reduction under 18 U.S.C. § 3582(c)(2), and remanded for
reconsideration of whether Davis should receive a reduction
under § 3582(c)(2) and the Guidelines’ related policy
statements.

    Revisiting Freeman v. United States, 564 U.S. 522
(2011), which addressed whether a defendant sentenced
pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C)
plea agreement is eligible for a sentence reduction under
§ 3582(c)(2), and this court’s application of Marks v. United
States, 430 U.S. 188 (1977), to fractured Supreme Court
opinions, the en banc court held that where no rationale
common to a majority of the Justices can be identified, only
the result is binding. In so holding, the en banc court joined
the D.C. Circuit, which concluded that Freeman lacks a
controlling opinion “because the plurality and concurring
opinions do not share common reasoning whereby one
analysis is a logical subset of the other.” Bound only by
Freeman’s specific result, the en banc court adopted the
plurality opinion’s approach, which holds that “[e]ven when
a defendant enters into an 11(c)(1)(C) agreement, the judge’s
decision to accept the plea and impose the recommended
sentence is likely to be based on the Guidelines; and when it
is, the defendant should be eligible to seek § 3582(c)(2)

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. DAVIS                     3

relief.” Adopting and applying the plurality approach, the en
banc court overruled United States v. Austin, 676 F.3d 924
(9th Cir. 2012), which held that Justice Sotomayor’s
concurring opinion was controlling, and concluded that Davis
is eligible to seek a sentence reduction under § 3582(c)(2).

    Judge Christen, joined by Chief Judge Thomas, and
Judges Tallman, Nguyen, and Hurwitz, concurred. She
joined in the en banc court’s holding as far as it goes, but
disagreed with the majority’s assumption that a court might
be free to take dissenting opinions into account in future
Marks analyses of what binding rule, if any, emerges from a
fractured Supreme Court decision.

    Dissenting, Judge Bea wrote that the majority’s “logical
subset” requirement finds no support in Marks or any other
Supreme Court precedent; that even if there were such a
requirement, the majority misreads Justice Kennedy’s
plurality opinion to the extent it concludes that there are
circumstances in which Justice Sotomayor would permit
sentence modification but the Kennedy plurality would not;
and that the majority’s adoption of the Kennedy plurality’s
approach violates stare decisis because five Justices in
Freeman agreed that a court looks to the plea agreement itself
to determine whether a plea was “based on” since-modified
sentencing Guidelines.
4               UNITED STATES V. DAVIS

                       COUNSEL

Nathaniel Garrett (argued), San Francisco, California; Anna
M. Tolin, Kirkland, Washington, for Defendant-Appellant.

Michael S. Morgan (argued), Assistant United States
Attorney; Jenny A. Durkan, United States Attorney; United
States Attorney’s Office, Western District of Washington,
Seattle, Washington; for Plaintiff-Appellee.

Nancy L. Talner, ACLU-WA Foundation, Seattle,
Washington; Michael Filipovic, Federal Public Defender for
the Western District of Washington, Seattle, Washington;
Theresa M. DeMonte and Andrew R.W. Hughes, Calfo
Harrigan Leyh & Eakes LLP, Seattle, Washington; Suzanne
Lee Elliott, Co-Chair, WACDL Amicus Committee, Seattle,
Washington; for Amici Curiae ACLU-WA, Federal Public
Defender for the Western District of Washington, and
WACDL.
                  UNITED STATES V. DAVIS                      5

                          OPINION

PAEZ, Circuit Judge:

    In this case, we must consider how to interpret the
Supreme Court’s fractured opinion in Freeman v. United
States, which addressed whether a defendant sentenced
pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C)
plea agreement is eligible for a sentence reduction under
18 U.S.C. § 3582(c)(2). 564 U.S. 522 (2011). Although a
majority of the Court held that in such cases defendants
remain eligible for relief under § 3582(c)(2), the plurality and
concurring opinions did not agree on a single rationale.
Citing Marks v. United States, 430 U.S. 188 (1977), which
provides guidance on interpreting fractured Supreme Court
opinions, we held in United States v. Austin that Justice
Sotomayor’s concurring opinion was controlling, as it
represented the narrowest grounds on which a majority of the
justices agreed. See 676 F.3d 924 (9th Cir. 2012). Applying
Justice Sotomayor’s approach, the district court denied
Appellant Tyrone Davis’s (“Davis”) motion for a sentence
reduction, ruling that his sentence was based on a Rule
11(c)(1)(C) plea agreement and not a “sentencing range that
has subsequently been lowered by the Sentencing
Commission” as required by § 3582(c)(2).

    Revisiting Freeman and our application of Marks to
fractured Supreme Court opinions, we hold that where we can
identify no rationale common to a majority of the Justices, we
are bound only by the result. In so holding, we join the D.C.
Circuit, which concluded that Freeman lacks a controlling
opinion “because the plurality and concurring opinions do not
share common reasoning whereby one analysis is a logical
subset of the other.” United States v. Epps, 707 F.3d 337,
6                    UNITED STATES V. DAVIS

350 (D.C. Cir. 2013) (internal quotation marks and citation
omitted). Bound only by Freeman’s specific result, the D.C.
Circuit adopted the plurality opinion’s approach, which holds
that “[e]ven when a defendant enters into an 11(c)(1)(C)
agreement, the judge’s decision to accept the plea and impose
the recommended sentence is likely to be based on the
Guidelines; and when it is, the defendant should be eligible
to seek § 3582(c)(2) relief.” Freeman, 564 U.S. at 534
(plurality opinion). We also adopt this approach and overrule
Austin. Applying the plurality approach, we conclude that
Davis is eligible to seek a sentence reduction under
§ 3582(c)(2). We therefore reverse the district court’s denial
of Davis’s motion and remand for a determination of whether
Davis should receive a reduction in his sentence.

                                    I.

                                   A.

    In 2005, pursuant to a plea agreement entered into under
Rule 11(c)(1)(C), Davis pled guilty to a series of counts
related to distribution of cocaine base, or “crack cocaine.”1
In his plea agreement, Davis admitted his offense conduct
involved at least 170.5 grams of crack cocaine. Given the
quantity of crack cocaine for which Davis accepted direct
responsibility, the parties agreed that Davis’s base offense
level was 34 under United States Sentencing Guidelines

    1
     Davis pled guilty to the following offenses alleged in the Third
Superseding Indictment: conspiracy to distribute cocaine base in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 1); distribution
of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and
860 (Counts 10 and 11); and possession with intent to distribute cocaine
base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts 12
and 13).
                  UNITED STATES V. DAVIS                       7

(“USSG”) § 2D1.1(c)(3) (Nov. 2005) and that the appropriate
prison sentence would be eighteen years. The plea agreement
acknowledged that under Rule 11(c)(1)(C), the district court
had discretion to accept or reject the proposed agreement and
recommended sentence. If the district court accepted the
agreement, then under Rule 11(c)(1)(C) the recommended
sentence would be binding on the court. On the other hand,
if the court rejected the recommended sentence, the parties
could withdraw from the agreement.

    At sentencing in 2006, the district court calculated
Davis’s total offense level as 37 with a Criminal History
Category II, resulting in a Guidelines range of 235 to 293
months. The court accepted the Rule 11(c)(1)(C) plea
agreement and imposed the recommended eighteen-year
(216-month) sentence. We reversed and remanded, holding
that the district court had erred in its determination of Davis’s
criminal history category and in its imposition of an
“organizer or leader” enhancement. United States v. Davis,
312 F. App’x 909, 911–14 (9th Cir. 2009). At Davis’s
resentencing in 2009, the district court calculated his total
offense level as 36 with a Criminal History Category I,
resulting in a Guidelines range of 188 to 235 months. The
court reimposed the plea agreement’s recommended eighteen-
year (216-month) sentence, finding it “fair and reasonable”
under the Guidelines. We affirmed. United States v. Davis,
389 F. App’x 616 (9th Cir. 2010).

                               B.

    When Davis pled guilty, the Guidelines punished
defendants far more harshly for crack cocaine offenses than
for powder cocaine offenses. A defendant responsible for one
gram of crack cocaine faced the same Guidelines sentence as
8                   UNITED STATES V. DAVIS

a defendant responsible for one hundred grams of powder
cocaine. This 100:1 ratio was roundly criticized for its
racially disparate effects. See, e.g., Kimbrough v. United
States, 552 U.S. 85, 98 (2007) (citing the Sentencing
Commission’s finding that the “severe sentences required by
the 100-to-1 ratio are imposed primarily upon black
offenders”) (internal quotation marks omitted). As a 2006
survey by the Substance Abuse and Mental Health Services
Administration showed, whites formed the biggest group of
crack cocaine users in absolute numbers,2 but African
Americans were disproportionately arrested and convicted for
crack cocaine offenses. A 2007 report by the Sentencing
Commission documented that when Davis was sentenced in
2006, 81.8% of federal crack cocaine offenders were African
American.      U.S. Sentencing Commission, Report to
Congress: Cocaine and Federal Sentencing Policy at 15
(2007) (“2007 Report”). Moreover, in a series of reports to
Congress, the Sentencing Commission warned that the “data
no longer support” the assumption that crack cocaine is more
harmful than powder cocaine. Kimbrough, 552 U.S. at 97–98
(quoting U.S. Sentencing Commission, Report to Congress:
Cocaine and Federal Sentencing Policy at 96 (2002); also
citing the 2007 Report); see also United States v. Baptist,


    2
      Results from the Substance Abuse and Mental Health Services
Administration’s National Survey on Drug Use and Health from 2006
show that 3.3% of whites report ever using crack cocaine compared with
5.4% of African Americans. Thus, in absolute numbers, white crack
cocaine users far outnumber African-American crack cocaine users.
Quick Table: Ever Used Crack BY Race and Ethnicity, National
Survey on Drug Use and Health, 2006, available at
https://www.icpsr.umich.edu/icpsrweb/NAHDAP/series/00064/studies
(follow “National Survey on Drug Use and Health, 2006”; then follow
“Quick Tables, Drug Use: Entire Sample”; then follow “Crack Use”’; then
select “Race and Ethnicity”; and generate table).
                  UNITED STATES V. DAVIS                        9

646 F.3d 1225, 1226, 1228 n.1 (9th Cir. 2011) (per curiam).
Citing the “urgent and compelling” problems raised by the
overly punitive crack sentencing scheme, the Sentencing
Commission repeatedly called on Congress to reduce the
100:1 ratio. See, e.g., 2007 Report at 8–9. Federal judges
and Department of Justice officials likewise joined the chorus
of voices demanding reform. See, e.g., United States v. Then,
56 F.3d 464, 467 (2d Cir. 1995) (Calabresi, J., concurring)
(“The unfavorable and disproportionate impact that the 100-
to-1 crack/cocaine sentencing ratio has on members of
minority groups is deeply troubling.”); Remarks of
Attorney General Eric Holder, D.C. Court of Appeals
Judicial Conference (June 19, 2009), available at
http://www.justice.gov/opa/speech/attorney-general-eric-
holder-dc-court-appeals-judicial-conference (“It is the view
of this Administration that the 100-to-1 crack-powder
sentencing ratio is simply wrong. It is plainly unjust to hand
down wildly disparate prison sentences for materially similar
crimes.”).

    In 2010, Congress responded by passing the Fair
Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010),
which dramatically reduced the sentencing ratio to 18:1. The
Fair Sentencing Act also gave the Sentencing Commission
“emergency authority” to “make such conforming
amendments to the Federal sentencing guidelines.” Id. § 8.
The Sentencing Commission responded by issuing amended
Guidelines reflecting the new 18:1 ratio3 and made the




  3
   See U.S. Sentencing Guidelines Manual app. C, Amend. 748 (U.S.
Sentencing Comm’n 2010) (adjusting Guidelines temporarily); id. at
Amend. 750 (2011) (making adjustment permanent).
10                     UNITED STATES V. DAVIS

changes retroactive4 for all 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).

                                     C.

    In 2012, Davis filed a pro se motion under § 3582(c)(2)
seeking a retroactive reduction of his sentence in light of the
amended Guidelines.5 Before the Fair Sentencing Act, the
stipulated amount of 170.5 grams of crack cocaine in Davis’s
Rule 11(c)(1)(C) plea agreement resulted in a base offense
level of 34. After the dramatic reduction in the sentencing
ratio, that same amount yielded a base offense level of 28.
USSG § 2D1.1(c)(6) (2011). Davis argued that he was
eligible for a sentence modification under § 3582(c)(2)
because his sentence was “based on” the Guidelines.




 4
     Id. at Amend. 759 (making Amendment 750 retroactive).
 5
     Section 3582(c)(2) permits a district court to

          modify a term of imprisonment . . . 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 pursuant to 28 U.S.C. 994(o), upon motion
          of the defendant or the Director of the Bureau of
          Prisons, or on its own motion, the court may reduce the
          term of imprisonment, after considering the factors set
          forth in section 3553(a) to the extent that they are
          applicable, if such a reduction is consistent with
          applicable policy statements issued by the Sentencing
          Commission.
                    UNITED STATES V. DAVIS                           11

    The district court denied the motion, holding that it lacked
jurisdiction to modify Davis’s sentence because it was “based
on” the Rule 11(c)(1)(C) plea agreement, not the Guidelines.
In so ruling, the district court concluded that it was bound by
Justice Sotomayor’s concurring opinion in Freeman. Davis
appealed for a third time. A three-judge panel affirmed,
relying on Austin. United States v. Davis, 776 F.3d 1088 (9th
Cir. 2015). We granted rehearing en banc. United States v.
Davis, 795 F.3d 1188 (9th Cir. 2015).6

                                  II.

                                   A.

    In Freeman v. United States, the Supreme Court
considered whether a defendant sentenced under a Rule
11(c)(1)(C) agreement may be eligible for a sentence
reduction under § 3582(c)(2). 564 U.S. 522 (2011). Five
justices ultimately agreed that Freeman was eligible for a
reduction, but no rationale commanded a majority of the
Court.

     A four-justice plurality held that “[e]ven when a
defendant enters into an 11(c)(1)(C) agreement, the judge’s
decision to accept the plea and impose the recommended
sentence is likely to be based on the Guidelines; and when it
is, the defendant should be eligible to seek § 3582(c)(2)
relief.” Id. at 534 (plurality opinion). Writing for the
plurality, Justice Kennedy explained that this approach was


  6
     Whether a district court has jurisdiction to modify a defendant’s
sentence under 18 U.S.C. § 3582(c)(2) is a legal question that we review
de novo. United States v. Paulk, 569 F.3d 1094, 1095 (9th Cir. 2009) (per
curiam).
12               UNITED STATES V. DAVIS

consistent with the “text and purpose” of the Sentencing
Reform Act, Rule 11(c)(1)(C), and the binding Guidelines
policy statements in sections 6B1.2 and 1B1.10 relating to
Rule 11(c)(1)(C) and § 3582(c)(2). Id. at 530.

    In a dissenting opinion by Chief Justice Roberts, four
Justices took the contrary position that a sentence imposed
under a Rule 11(c)(1)(C) agreement is never “based on” the
Guidelines because the agreement itself serves as the
foundation for the sentence imposed. Id. at 544 (Roberts,
C.J., dissenting).

    Concurring only in the judgment, Justice Sotomayor
staked out yet a third position. Justice Sotomayor argued that
a sentence imposed under a Rule 11(c)(1)(C) agreement is
generally based on the agreement, not the Guidelines, but
rejected the dissent’s categorical bar to relief for all
defendants sentenced under such agreements. Id. at 534
(Sotomayor, J., concurring in the judgment). Justice
Sotomayor concluded that district courts have jurisdiction to
consider a sentence reduction in at least two circumstances:
when the Rule 11(c)(1)(C) agreement either 1) “call[s] for the
defendant to be sentenced within a particular Guidelines
sentencing range,” or 2) “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” and “that
sentencing range is evident from the agreement itself.” Id. at
538–39.

     To say that Freeman divided the Court would be an
understatement. Not only did the plurality and dissenting
opinions take opposite positions, but both also strongly
criticized Justice Sotomayor’s concurrence. The plurality
warned that the “consequences of [the concurrence’s]
                 UNITED STATES V. DAVIS                    13

erroneous rule would be significant,” id. at 533 (plurality
opinion), while the dissent complained that Justice
Sotomayor’s approach would “foster confusion in an area in
need of clarity,” id. at 550 (Roberts, C.J., dissenting). The
dissenting opinion accurately stated that the plurality and
concurrence “agree on very little except the judgment.” Id.
at 544 (Roberts, C.J., dissenting). Thus, the 4-1-4 Freeman
Court did not articulate a clear path forward for analysis of
sentence-reduction requests by defendants sentenced under
Rule 11(c)(1)(C) agreements.

                             B.

                              1.

    In Marks v. United States, the Supreme Court explained
that “[w]hen 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.” 430 U.S. 188, 193
(1977) (internal quotation marks and citation omitted). In the
nearly forty years since Marks, lower courts have struggled
to divine what the Supreme Court meant by “the narrowest
grounds.” Indeed, the Court has acknowledged that the
Marks inquiry at times has “baffled and divided the lower
courts that have considered it,” Nichols v. United States,
511 U.S. 738, 746 (1994), and that the “test is more easily
stated than applied.” Grutter v. Bollinger, 539 U.S. 306, 325
(2003) (quoting Nichols, 511 U.S. at 745–46). In the face of
this confusion, two main approaches have emerged: one
focusing on the reasoning of the various opinions and the
other on the ultimate results.
14                UNITED STATES V. DAVIS

   The D.C. Circuit has offered a clear example of the first
approach. In King v. Palmer, the court explained:

       Marks is workable—one opinion can be
       meaningfully regarded as “narrower” than
       another—only when one opinion is a logical
       subset of other, broader opinions. In essence,
       the narrowest opinion must represent a
       common denominator of the Court’s
       reasoning; it must embody a position
       implicitly approved by at least five Justices
       who support the judgment.

950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). The D.C.
Circuit reaffirmed this approach in Epps, describing Marks as
applicable only when “the concurrence posits a narrow test to
which the plurality must necessarily agree as a logical
consequence of its own, broader position.” 707 F.3d at 348
(emphasis omitted) (quoting King, 950 F.2d at 782).

    The second approach looks to results rather than
reasoning. It defines the narrowest ground as the rule that
“would necessarily produce results with which a majority of
the Justices from the controlling case would agree.” See, e.g.,
Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682,
694–97 (3d Cir. 1991) (finding that Justice O’Connor’s
concurring opinions controlled the fractured decisions in
Webster v. Reproductive Health Services, 492 U.S. 490
(1989), and Hodgson v. Minnesota, 497 U.S. 417 (1990),
because a majority of justices in each case would have agreed
with her result), aff’d in part, rev’d in part, 505 U.S. 833
(1992).
                     UNITED STATES V. DAVIS                           15

                                   2.

     Our cases interpreting Marks have not been a model of
clarity. On one occasion, we cited the “results” language
described above. See United States v. Williams, 435 F.3d
1148, 1157 n.9 (9th Cir. 2006) (explaining that a concurrence
is controlling under Marks if it “would affect a narrower
range of cases than that of the plurality”). Nonetheless, in
Williams and other decisions applying Marks to a fractured
Supreme Court decision, we analyzed whether the reasoning
of a narrower opinion fit entirely into the circle drawn by a
broader opinion in order to derive a rule. Our most recent
decision to address Marks explicitly employed the
“reasoning” approach. Lair v. Bullock, 697 F.3d 1200 (9th
Cir. 2012). In Lair, we approvingly cited King and held that
the Marks standard applies only “where one opinion can be
meaningfully regarded as narrower than another and can
represent a common denominator of the Court’s reasoning.”
Id. at 1205 (quoting United States v. Rodriguez–Preciado,
399 F.3d 1118, 1140 (9th Cir.), amended by 416 F.3d 939
(9th Cir. 2005)). Unless “the narrowest opinion is actually
the logical subset of other broader opinions, . . . the only
binding aspect of a splintered decision is its specific result.”
Id. (internal quotation marks and citation omitted).

   To foster clarity, we explicitly adopt the reasoning-based
approach to applying Marks. This approach is not only
consistent with our most recent caselaw, see Lair, 697 F.3d
1200, but also makes the most sense.7 A fractured Supreme


  7
    This approach is not “fundamentally inconsistent with Marks itself.”
Dissent at 41, 42 n.7. Marks never defined the “narrowest grounds,” and
the dissent identifies no subsequent Supreme Court case that has offered
an explanation or clarification of Marks as requiring an unwavering focus
16                   UNITED STATES V. DAVIS

Court decision should only bind the federal courts of appeal
when a majority of the Justices agree upon a single
underlying rationale and one opinion can reasonably be
described as a logical subset of the other. When no single
rationale commands a majority of the Court, only the specific
result is binding on lower federal courts.




on results. The difficult task of interpreting Marks has been left to the
courts of appeal. See, e.g., King, 950 F.2d at 781; Lair, 697 F.3d at 1205;
United States v. Johnson, 467 F.3d 56, 62–64 (1st Cir. 2006).

     More importantly, Marks cannot be viewed in isolation. In
subsequent cases interpreting fractured Supreme Court decisions, the
Court has frequently focused on reasoning, rather than results. Indeed, the
dissent recognizes as much when it argues that Marks requires
consideration of dissenting opinions. Dissent at 52–57, 52–53 n.9
(describing the various opinions in the fractured Tidewater National
Mutual Insurance Co. v. Tidewater Transfer Co., 377 U.S. 582 (1949),
decision). As the dissent states, “[s]ince Tidewater, courts have
universally accepted that Congress may not expand the scope of subject-
matter jurisdiction conferred by Article III through passage of a
Congressional Act,” even though that rule could only be derived by
combining the “views” or “rationale[s]” of Tidewater’s concurrence and
dissent. Dissent at 52–54; 52–53 n.9. Thus, even the dissent
acknowledges that the Supreme Court and lower courts have employed a
reasoning-based approach to analyzing prior fractured Supreme Court
decisions. A results approach cannot explain the governing rule that
emerged from Tidewater.

     Similarly, the dissent mischaracterizes United States v. Jacobsen,
466 U.S. 109 (1984), as employing a results-based approach. Dissent 42
n.7. In our view, the rule that “the legality of the government search must
be tested by the scope of the antecedent private search,” id. at 115–16,
represents a common reasoning shared by the dissenting and plurality
opinions, not a result or outcome on which they agree. The dissent’s own
cases therefore contradict its assertion that a reasoning-based approach is
an “invention” of the Ninth and D.C. Circuits. Dissent at 34–35, 44–45.
                     UNITED STATES V. DAVIS                            17

                                   III.

    Applying Marks, as clarified above, to Freeman, we
overrule our holding in Austin that Justice Sotomayor’s
concurrence controls.8 Instead, we adopt the analysis of the
D.C. Circuit in Epps that there was no common denominator
in Freeman “because the plurality and concurring opinions do
not share common reasoning whereby one analysis is a
logical subset of the other.” Epps, 707 F.3d at 350 (internal
quotation marks and citation omitted).




 8
   Following the adoption of the Fair Sentencing Act, we have issued, in
addition to Austin, two opinions that discuss sentence modifications under
§ 3582(c)(2) and that bear mentioning here.

    First, in United States v. Bride, we held that a defendant who was
sentenced under a Rule 11(c)(1)(C) agreement could not seek a sentence
reduction because his sentence was not “based on a sentencing range that
had been subsequently lowered by the Sentencing Commission.”
581 F.3d 888, 889 (9th Cir. 2009). We explicitly stated, however, that we
did not “reach the issue of whether § 3582(c)(2) relief is necessarily
precluded when the district court imposes a sentence pursuant to a Rule
11(c)(1)(C) plea agreement.” Id. at 891 n.5. Austin distinguished Bride
on this basis. Austin, 676 F.3d at 927 n.1. Nonetheless, to the extent
Bride conflicts with our opinion today, it is overruled.

     Second, in United States v. Pleasant, we cited Austin for the
proposition that Justice Sotomayor’s Freeman concurrence controls, and
held that the defendant was eligible for a sentence reduction because his
Rule 11(c)(1)(C) plea agreement fell under one of her two exceptions.
704 F.3d 808, 811 (9th Cir. 2013). Although the thrust of the Pleasant
opinion focused on the separate question of whether a sentence reduction
would be “consistent” with the Guidelines, we determined that Pleasant
satisfied the threshold eligibility determination. Id. at 811–12. As with
Bride, to the extent Pleasant’s interpretation of Freeman is inconsistent
with this opinion, it is overruled.
18                    UNITED STATES V. DAVIS

    Justice Sotomayor’s concurrence cannot reasonably be
described as a logical subset of Justice Kennedy’s plurality
opinion. The Freeman plurality explicitly rejected the
concurrence’s reasoning, in particular its underlying premise
that a sentence imposed under a Rule 11(c)(1)(C) agreement
is “based on” the parties’ agreement, not the Guidelines.
564 U.S. at 529 (plurality opinion); Id. at 535–36
(Sotomayor, J., concurring in the judgment). Even in setting
out the circumstances in which she would find a defendant
sentenced under a Rule 11(c)(1)(C) agreement eligible for
relief, Justice Sotomayor focused on the role the parties’
Guidelines calculations play in crafting a Rule 11(c)(1)(C)
agreement. Id. at 538–39. By contrast, the plurality focuses
on the role of the judge’s Guidelines calculations in deciding
whether to accept or reject the agreement. Id. at 529
(plurality opinion).      This fundamental divergence in
reasoning is enough to demonstrate that Justice Sotomayor’s
rationale is not controlling Supreme Court law. Although in
Freeman these divergent approaches led to the same result,
the D.C. Circuit properly recognized that “the set of cases
where the defendant prevails under the concurrence is not
always nestled within the set of cases where the defendant
prevails under the plurality . . . .” Epps, 707 F.3d at 351.

     Two examples from Epps are instructive.9 First consider


  9
    The dissent criticizes these examples, dissent at 47–49, but its analysis
is oversimplified in suggesting that the plurality would always allow a
sentence modification in a Rule 11(c)(1)(C) agreement. If the plurality
intended such a rule, it could easily have explicitly said so. Instead,
Justice Kennedy wrote “[e]ven when a defendant enters into an
11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose
the recommended sentence is likely to be based on the Guidelines.”
Freeman, 564 U.S. at 534 (plurality opinion) (emphasis added). Likely is
not the same as always. Similarly, the plurality wrote that a “district
                     UNITED STATES V. DAVIS                             19

the following scenario:

         [T]he parties may state in the plea agreement
         that a particular range applies and agree to a
         sentence at the bottom of that range, but the
         district court may not agree that the range
         determined by the parties applies, finding for
         example that the career offender range is
         applicable instead, but notwithstanding this
         finding accept the plea because it is to a term
         that is acceptable to the court for reasons
         unrelated to the guideline range determined by
         the parties.

Id. at 350 n.8. Justice Sotomayor would allow a sentence
reduction in this example because the agreement explicitly
“call[s] for the defendant to be sentenced within a particular
Guidelines sentencing range.” Freeman, 564 U.S. at 538
(Sotomayor, J., concurring in the judgment). The plurality,
on the other hand, “would find [Freeman] ineligible because
the range that the parties agreed to played no role in the


judge’s decision to impose a sentence may therefore be based on the
Guidelines even if the defendant agrees to plead guilty under Rule
11(c)(1)(C).” Id. at 526 (emphasis added). That is different than saying
that a Rule 11(c)(1)(C) sentence is always based on the Guidelines.

     Nor did Justice Kennedy explicitly reject the idea “that his approach
would limit relief to only a ‘subset of defendants,”’ as the dissent claims.
Dissent at 49. Rather, in the passage the dissent cites, the plurality
rejected Justice Sotomoyor’s approach because of the arbitrariness of
allowing sentence reductions only for those defendants whose plea
agreements refer to the Guidelines. Freeman, 564 U.S. at 532–33
(plurality opinion). Justice Kennedy never said he disagreed with Justice
Sotomayor because her approach would “fail to permit resentencing in all
cases.” Dissent at 49.
20                UNITED STATES V. DAVIS

court’s determination that this was an appropriate sentence,
despite the fact that the court imposed the agreed-upon term
of imprisonment.” Epps, 707 F.3d at 350 n.8. Thus, the
plurality opinion is actually the narrower one in certain
respects.

     A second example produces a similar result:

        The sentencing court . . . might consider and
        reject the guideline range used by the parties,
        not because the court finds that a different
        guidelines range (such as the career offender
        range) applies, but because, having considered
        the applicable guidelines range, the court
        rejects it as a matter of policy and selects its
        sentence without regard to it.

Id. Here again, if the court decides “for reasons unrelated to
the guidelines range to impose the sentence the parties agreed
upon,” the defendant would be eligible for a reduction under
Justice Sotomayor’s approach but not under the plurality’s.
Id.

    These examples make clear that the plurality and
concurring opinions cannot be explained by a diagram in
which a circle representing the reasoning of Justice
Sotomayor’s opinion sits neatly within a circle representing
the reasoning of the plurality opinion. Because both opinions
would allow sentence reductions in situations where the other
                     UNITED STATES V. DAVIS                             21

would not, Justice Sotomayor’s concurrence is not the
“narrowest grounds” envisioned by Marks.10

    We recognize that, with the exception of the D.C. Circuit,
every other circuit that has considered the issue has adopted
Justice Sotomayor’s concurrence as the controlling opinion
in Freeman. But we do not find those opinions convincing.
Most engage with Marks only superficially, quoting its
language with no analysis. See, e.g., United States v.
Graham, 704 F.3d 1275, 1278 (10th Cir. 2013); United States
v. Browne, 698 F.3d 1042, 1045–46 (8th Cir. 2012); United
States v. Dixon, 687 F.3d 356, 359–60 (7th Cir. 2012); United
States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011).11 Given
their lack of meaningful analysis, these opinions lack
persuasive force.

   Those few cases that do discuss how Marks should apply
to Freeman mistakenly conclude that although the “gap
between the plurality and the concurrence is wide, [ ] it is still
possible to tease out a common denominator.” United States


  10
     We emphasize that this results-oriented approach is used only to
highlight the lack of a shared reasoning between Freeman’s plurality and
concurring opinions. Our primary focus remains on the text of the two
opinions, rather than on their application to hypothetical cases.
 11
    For example, the Tenth Circuit quoted the Marks “narrowest grounds”
test and then summarily agreed with the district court that “[a]pplying this
rule,” Justice Sotomayor’s concurrence controls. Graham, 704 F.3d at
1278. Similarly, the Sixth Circuit concluded that “Justice Sotomayor’s
opinion is the narrowest ground for the Court’s decision and thus
represents the Court’s holding in Freeman” without citing Marks. Smith,
658 F.3d at 611. The Second Circuit has considered the issue only in an
unpublished summary order. United States v. White, 429 F. App’x 43, 47
(2d Cir. 2011) (finding that Justice Sotomayor’s concurrence is
controlling).
22                UNITED STATES V. DAVIS

v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir. 2011); see
also United States v. Thompson, 682 F.3d 285, 289–90 (3d
Cir. 2012). Not so. As the examples above demonstrate,
there are some circumstances where defendants would be
eligible for relief under Justice Sotomayor’s approach but not
under the plurality’s. We therefore cannot agree with the
First Circuit’s assertion that the “plurality would surely agree
that in every case in which a defendant’s C-type plea
agreement satisfies the criteria for Justice Sotomayor’s
exception . . . the sentencing judge’s decision to accept that
sentence is based on the guidelines.” Rivera-Martinez,
665 F.3d at 348. A more nuanced reading of both opinions
leads us to conclude that “there is no controlling opinion in
Freeman because the plurality and concurring opinions do not
share common reasoning whereby one analysis is a logical
subset of the other.” Epps, 707 F.3d at 350 (internal
quotation marks and citation omitted).

    Marks instructs us to consider the opinions only of “those
Members who concurred in the judgments on the narrowest
grounds” when deriving a rule from a fractured Supreme
Court decision. Marks, 430 U.S. at 193 (quoting Gregg v.
Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart,
Powell, & Stevens, JJ.) (emphasis added)). Nonetheless, we
acknowledge that the Supreme Court and our sister circuits
have considered dissenting opinions when interpreting
fragmented Supreme Court decisions. See, e.g., United States
v. Jacobsen, 466 U.S. 109, 115–17 (1984) (relying on a
dissenting opinion to derive the rule in Walter v. United
States, 447 U.S. 649 (1980)); Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 16–17 (1983) (holding
that Will v. Calvert Fire Insurance did not overrule the
“Colorado River test” because Will’s four dissenting Justices
agreed with the concurring opinion that the test remained in
                     UNITED STATES V. DAVIS                             23

effect); United States v. Donovan, 661 F.3d 174, 182 (3d Cir.
2011) (explaining that the court “looked to the votes of
dissenting Justices if they, combined with votes from
plurality or concurring opinions, establish a majority view on
the relevant issue”). Here, we assume but do not decide that
dissenting opinions may be considered in a Marks analysis.12

     Considering Chief Justice Roberts’s dissent would not
change our conclusion because we cannot derive any
common denominator by combining Freeman’s dissenting
opinion with either the plurality or concurring opinion. First,
no rule can be derived from the Freeman plurality and
dissenting opinions, as neither is a “logical subset” of the
other. Indeed, the plurality holding that “[e]ven when a
defendant enters into an 11(c)(1)(C) agreement, the judge’s
decision to accept the plea and impose the recommended
sentence is likely to be based on the Guidelines,” Freeman,
564 U.S. at 534 (plurality opinion) is diametrically opposed
to the dissent’s position that a sentence imposed under a Rule
11(c)(1)(C) agreement is never “based on” the Guidelines
because the agreement itself serves as the foundation for the
sentence imposed, id. at 544–45 (Roberts, C.J., dissenting).
In practical terms, this divergence means the dissent would
categorically find all defendants sentenced under a Rule
11(c)(1)(C) agreement ineligible for a sentence reduction,
while the plurality would permit a reduction in most cases.
Thus, the plurality and dissent “do not share common
reasoning whereby one analysis is a logical subset of the



 12
    We note that in King, the D.C. Circuit explicitly stated that it was not
“free to combine a dissent with a concurrence to form a Marks majority.”
King, 950 F.2d at 783. We emphasize here, however, that we do not
decide that issue.
24                UNITED STATES V. DAVIS

other.” Epps, 707 F.3d at 350 (internal quotation marks and
citation omitted).

    Second, Justice Sotomayor’s concurring opinion is not a
logical subset of the dissenting opinion, or vice versa. Again,
the dissent would categorically bar defendants sentenced
under Rule 11(c)(1)(C) agreements from seeking relief under
§ 3582(c)(2). Freeman, 564 U.S. at 544–45 (Roberts, C.J.,
dissenting). Justice Sotomayor, by contrast, would permit
sentence reductions in limited circumstances: if the Rule
11(c)(1)(C) agreement either 1) “call[s] for the defendant to
be sentenced within a particular Guidelines sentencing
range,” or 2) “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” and “that
sentencing range is evident from the agreement itself.” Id. at
538–39 (Sotomayor, J., concurring in the judgment). Despite
the dissent’s arguments to the contrary, these approaches
cannot be reconciled because Justice Sotomayor explicitly
“reject[ed] the categorical rule advanced by the Government
and endorsed by the dissent, which artificially divorces a
[Rule 11(c)(1)(C)] agreement from its express terms.” Id. at
539.     Indeed, in evaluating Freeman’s case, Justice
Sotomayor stated that “contrary to the dissent’s curious
suggestion that ‘there is no way of knowing what th[e]
sentence was based on,’” the basis for Freeman’s sentence
was evident from the Rule 11(c)(1)(C) agreement itself. Id.
at 542–43.

    The Freeman dissent is similarly critical of Justice
Sotomayor, describing her view that certain Rule 11(c)(1)(C)
defendants are eligible for relief as just “as mistaken as the
position of the plurality—and basically for the same reasons.”
Id. at 545 (Roberts, C.J., dissenting). Chief Justice Roberts
                  UNITED STATES V. DAVIS                    25

characterized her approach as “head-scratching,” id. at 547,
and likely to “foster confusion in an area in need of clarity,”
id. at 550. Neither opinion lays out the “common
denominator of the Court’s reasoning” because Justice
Sotomayor and the dissenters disagree on the fundamental
question of whether a defendant sentenced under a Rule
11(c)(1)(C) agreement can ever be eligible for a sentence
reduction under § 3582(c)(2). Simply put, no combination of
Freeman’s dissenting and concurring opinions yields a
binding rule that we must follow.

                             IV.

                              A.

    Given that no opinion in Freeman controls, we consider
which of the rationales set forth in the varying opinions is
most persuasive. Epps, 707 F.3d at 351. In so doing, we are
restricted only by the ultimate result in Freeman: that
defendants sentenced under Rule 11(c)(1)(C) agreements are
not categorically barred from seeking a sentence reduction
under § 3582(c)(2). We join the D.C. Circuit and adopt the
plurality’s rule: “Even when a defendant enters into an
11(c)(1)(C) agreement, the judge’s decision to accept the plea
and impose the recommended sentence is likely to be based
on the Guidelines; and when it is, the defendant should be
eligible to seek § 3582(c)(2) relief.” Freeman, 564 U.S. at
534 (plurality opinion).

    As the plurality explained, three critical sources support
this approach. First, “[f]ederal sentencing law requires the
district judge” to impose sentences that comply with “the
purposes of federal sentencing, in light of the Guidelines and
other § 3553(a) factors.” Id. at 529. Thus, by statute, a
26                UNITED STATES V. DAVIS

sentencing judge’s discretion is always framed by the
Guidelines.

    Second, Justice Kennedy looked to the district court’s
authority under Rule 11(c)(1)(C). Although the Rule
“permits the defendant and the prosecutor to agree on a
specific sentence,” it preserves “the district court’s
independent obligation to exercise its discretion” and review
the proposed sentence. Id. Because judges “use the
Guidelines range as the starting point,” they serve in a “real
sense [as] a basis for the sentence,” “[e]ven where the judge
varies from the recommended range.” Id.

    Third, the Guidelines policy statements that apply to Rule
11(c)(1)(C) plea agreements and § 3582(c)(2) motions
support the plurality’s approach. Once a district court accepts
a Rule 11(c)(1)(C) plea agreement, the parties’ recommended
sentence is binding on the court. As the Freeman plurality
noted, however, the applicable Guidelines policy statement
“forbids the district judge to accept an 11(c)(1)(C) agreement
without first evaluating the recommended sentence” under the
Guidelines. Id.; USSG § 6B1.2(c). Indeed, as the plurality
further noted, the commentary to the policy statement
instructs a sentencing court to accept the recommended
sentence only if it is an appropriate sentence within the
applicable Guidelines range or “departs . . . for justifiable
reasons.” Freeman, 564 U.S. at 529 (plurality opinion). The
Guidelines policy statement that applies to § 3582(c)(2)
motions likewise supports the plurality opinion. See USSG
§ 1B1.10(b)(1). As the plurality explained, § 1B1.10(b)(1)
directs the district judge “in modifying a sentence to
substitute only the retroactive amendment and then leave all
original Guidelines determinations in place.” Freeman,
564 U.S. at 530 (plurality opinion). The goal of the sentence
                    UNITED STATES V. DAVIS                           27

modification is to “isolate” the effect of the amended
Guideline while leaving undisturbed the other factors that
determined the sentence imposed. Id.13 This suggests that a
defendant should be eligible for a sentence reduction when
one factor in a defendant’s sentence was a “since-rejected
Guideline.” Id.

     Not only does the plurality approach best conform with
these relevant sources, but a “contrary focus on the parties’
intentions would contribute to the unwarranted disparity that
the [Sentencing Reform Act] was designed to reduce.” Epps,
707 F.3d at 351. In reducing the crack cocaine sentencing
range, Congress and the Sentencing Commission sought to
address “the urgent and compelling problem of crack-cocaine
sentences.” Freeman, 564 U.S. at 533 (plurality opinion)
(internal quotation marks omitted); supra at I.B. “Section
3582(c)(2) empowers district judges to correct sentences that
depend on frameworks,” like the one for crack cocaine, “that
later prove unjustified.” Freeman, 564 U.S. at 526 (plurality
opinion). Justice Sotomayor’s approach would “extend the
benefit of the Commission’s judgment only to an arbitrary
subset of defendants whose agreed sentences were accepted
in light of a since-rejected Guidelines range based on whether
their plea agreements refer to the Guidelines.” Id. at 533–34.


 13
    By preserving all Guidelines calculations other than the one that was
retroactively reduced, the policy statements in section 1B1.10(b)
substantially limit district court discretion when ruling on § 3582(c)(2)
motions. Freeman, 454 U.S. at 531–32 (plurality opinion). Further,
district courts cannot vary below the Guidelines in a § 3582(c)(2)
proceeding, as they can in an initial sentencing proceeding. Id.; USSG
§ 1B1.10(b)(2)(A). And, given the availability of appellate review, any
concern that the plurality’s approach will “upset the bargain struck
between prosecutor and defendant” is overstated. Freeman, 564 U.S. at
531 (plurality opinion).
28                UNITED STATES V. DAVIS

Thus, adoption of the concurring opinion would “undercut a
systemic solution” to a “systemic injustice.” Id. at 534. For
all these reasons, we adopt the approach of the Freeman
plurality opinion.

                              B.

    Applying the plurality’s approach, we hold that Davis is
eligible for relief under § 3582(c)(2) because the district
court’s “decision to accept the plea and impose the
recommended sentence” was “based on the Guidelines.”
Freeman, 564 U.S. at 534 (plurality opinion). Davis’s Rule
11(c)(1)(C) plea agreement was clearly rooted in the
Guidelines. First, it required the district judge to “determine
Defendant’s applicable Sentencing Guidelines range at the
time of the sentencing.” Second, the agreement stated that
the amount of crack cocaine for which Davis admitted direct
responsibility would yield a base offense level of 34 under
Guidelines § 2D1.1(c)(3).         Third, Davis’s agreement
explained that he qualified for a Guidelines increase under
§ 2D1.2 for proximity to a school zone and a Guidelines
reduction under § 3E1.1 for acceptance of responsibility.

    The district judge’s decision to reimpose the eighteen-
year sentence was also based on the Guidelines. During the
resentencing hearing, the district court recalculated Davis’s
total offense level at 36 and a Guidelines range of 188 to 235
months. Then, reflecting on all the evidence presented, the
court determined that the original eighteen-year
sentence—which, at 216 months, fell within the calculated
range—was “fair and reasonable” under the Guidelines.

   Taken together, the text of Davis’s plea agreement and the
judge’s statements during the sentencing hearing leave no
                     UNITED STATES V. DAVIS                            29

doubt that the sentence imposed was “based on” the
Guidelines. Thus, Davis is eligible for a sentence reduction
and all that remains for the district court is to make the
discretionary determination whether Davis should actually
receive a reduction under § 3582(c)(2) and the Guidelines’
related policy statements in section 1B1.10.14

                              Conclusion

    In sum, when applying Marks to a fractured Supreme
Court decision, we look to those opinions that concurred in
the judgment and determine whether one of those opinions
sets forth a rationale that is the logical subset of other,
broader opinions. When, however, no “common denominator
of the Court’s reasoning” exists, we are bound only by the
“specific result.”

    Applying that framework to Freeman, we conclude that,
contrary to our prior decision in Austin, Justice Sotomayor’s
concurrence is not the logical subset of the plurality opinion.
Nor can we extract a shared reasoning by including the
dissent in our analysis. Thus, we overrule Austin and adopt
the Freeman plurality approach as the most persuasive means
of analyzing sentence reductions in the context of Rule
11(c)(1)(C) plea agreements. Accordingly, we reverse the
district court’s determination that Davis is not eligible for a
sentence reduction and remand for reconsideration of whether

  14
     We emphasize that our decision merely removes the jurisdictional
hurdle that led the district court to deny Davis a resentencing hearing. On
remand, “[i]f the district court, based on its experience and informed
judgement, concludes the [Rule 11(c)(1)(C)] agreement led to a more
lenient sentence than would otherwise have been imposed, it can deny the
motion, for the statute permits but does not require the court to reduce a
sentence.” Freeman, 564 U.S. at 532 (plurality opinion).
30                UNITED STATES V. DAVIS

Davis should receive a sentence reduction under § 3582(c)(2)
and the Guidelines’ related policy statements.

     REVERSED and REMANDED.



CHRISTEN, Circuit Judge, joined by THOMAS, Chief
Judge, and TALLMAN, NGUYEN, and HURWITZ, Circuit
Judges, concurring:

    Freeman v. United States, 564 U.S. 522 (2011), addressed
an issue of grave importance to Davis and to countless other
prisoners in his position. The opinion issued today corrects
an error in our circuit’s interpretation of Freeman, but it also
represents a missed opportunity to straighten out our circuit’s
inconsistent applications of Marks v. United States, 430 U.S.
188 (1977).

    Marks specifically directs lower courts how to interpret
splintered Supreme Court decisions. Its rule tends to crop up
in the most contentious cases where, as here, the stakes are
significant. Freeman is important, but Marks has even
broader application to the wide spectrum of issues we decide.
I join in the court’s holding—as far as it goes—but it is
regrettable that our court articulates an incomplete
interpretation of Marks. Leaving this work unfinished will
surely result in continued uneven application of Marks within
our circuit.

    The rule announced in Marks appears simple at first
glance but it has proven to be confounding. See Grutter v.
Bollinger, 539 U.S. 306, 325 (2003) (noting Marks has
“baffled and divided the lower courts that have considered it”
                  UNITED STATES V. DAVIS                     31

(quoting Nichols v. United States, 511 U.S. 738, 746 (1994))).
The opinion issued today untangles part of the problem
because it decisively adopts a reasoning-based approach to
determine when splintered decisions produce binding
precedent. Under this approach, I agree that no binding rule
emerges from Freeman. I also agree that Justice Kennedy’s
plurality opinion is the best framework for analyzing motions
for sentence reduction in the context of Rule 11(c)(1)(C) plea
agreements.

    Unfortunately, we leave unanswered whether our court
will take into account dissenting opinions when applying
Marks. I join the majority because its holding is entirely
consistent with Marks: “[W]e look to those opinions that
concurred in the judgment and determine whether one of
those opinions sets forth a rationale that is the logical subset
of other, broader opinions.” But I disagree with the
majority’s assumption that we might be free to take
dissenting opinions into account in future Marks analyses.
Marks leaves some questions unanswered, but it plainly limits
our review to the opinions of “those Members [of the Court]
who concurred in the judgments.” Marks, 430 U.S. at 193
(emphasis added). Because I do not see that this language
leaves any room for our court to consider dissenting opinions,
I would go further than the majority does and expressly state
that dissents play no role in a Marks analysis. This is not to
say that dissents serve no purpose. They can and should be
read to provide context and a deeper understanding of the
Court’s decisions, but they do not inform our analysis of what
binding rule, if any, emerges from a fractured decision.

    The dissent points to National Mutual Insurance Co. v.
Tidewater Transfer Co., 337 U.S. 582 (1949), as support for
its view that dissenting opinions should be considered.
32                UNITED STATES V. DAVIS

Tidewater, of course, says nothing about how to interpret
fractured Supreme Court decisions, though it was a fractured
decision itself. In Tidewater, two concurring justices and
four dissenting justices relied on the rule that Congress lacks
authority to expand federal court subject matter jurisdiction
beyond that provided in Article III. See id. at 604–46. Our
dissenting colleague is correct that courts have universally
accepted this rule, but doing so does not require looking to
Tidewater’s dissenting opinions. Indeed, as recognized in
Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480
(1983), this rule pre-dates Tidewater by a long shot. See id.
at 491 (“This Court’s cases firmly establish that Congress
may not expand the jurisdiction of the federal courts beyond
the bounds established by the Constitution.” (citing Hodgson
v. Bowerbank, 3 L. Ed. 108 (1809); Kline v. Burke Constr.
Co., 260 U.S. 226, 234 (1923))); see also Seminole Tribe of
Fla. v. Florida, 517 U.S. 44, 65 (1996) (describing as
“fundamental” that “Congress could not expand the
jurisdiction of the federal courts beyond the bounds of Article
III” (citing Marbury v. Madison, 2 L. Ed. 60 (1803))).

    The Supreme Court at times looks to dissenting opinions
when interpreting its own splintered decisions. See United
States v. Jacobsen, 466 U.S. 109, 115 (1984); Moses H. Cone
Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 16–17
(1983). From this, the majority and dissent infer that we
might be free to do the same. But the way the Supreme Court
treats its own precedent says nothing about how lower courts
must apply it. Marks, not Jacobsen or Moses H. Cone, is the
Supreme Court authority that sets out the rule for lower courts
                     UNITED STATES V. DAVIS                           33

to follow.1 In my view, until the Supreme Court says
otherwise, Marks precludes us from considering dissenting
opinions.



BEA, Circuit Judge, dissenting:

    From its very first sentence, the majority unjustifiably
departs from not only our own, but also well-established
Supreme Court precedent. We correctly and squarely
resolved the questions presented by this case in United States
v. Austin, 676 F.3d 924 (9th Cir. 2011) until it was overruled
by today’s majority. In Austin, we considered whether a
judge had jurisdiction to modify a prisoner’s sentence under
18 U.S.C. § 3582(c)(2) (permitting modification of a term of
imprisonment where that term was “based on” a sentencing
range which was later reduced) if the prisoner was sentenced
pursuant to a Federal Rules of Criminal Procedure
(“F.R.C.P.”) 11(c)(1)(C) plea agreement (a “Rule 11(c)(1)(C)
agreement”) that did not expressly incorporate the since-




 1
   The dissent responds by pointing to the Supreme Court’s language in
Moses H. Cone: “[T]he [Fourth Circuit] Court of Appeals correctly
recognized that the four dissenting Justices and Justice BLACKMUN [in
Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978)] formed a
majority to require application of the Colorado River test.” Moses H.
Cone, 480 U.S. at 17. This was merely a recognition that, in Will, there
were not enough votes to undermine Colorado River Water Conservation
District v. United States, 424 U.S. 800 (1976). Thus, the controlling rule
the Fourth Circuit applied came from Colorado River, not Will. Moses H.
Cone does not direct lower courts to look to dissenting opinions when
divining a controlling rule from a fractured Supreme Court decision.
34                 UNITED STATES V. DAVIS

amended sentencing Guidelines.1 We noted that the Supreme
Court had spoken to this very question in Freeman v. United
States, 564 U.S. 522 (2011), where five Justices had voted to
permit a prisoner to seek sentence modification, but where no
single rationale had commanded a five-Justice majority. A
four-Justice plurality of those five Justices would always
permit a prisoner to seek sentence modification, under the
rationale that a judge’s approval of the plea agreement is
required to start with, and is necessarily “based on,” the
since-amended Guidelines. Justice Sotomayor, writing only
for herself, agreed that Freeman was entitled to seek
resentencing, but only because his plea agreement had
expressly incorporated the since-modified sentencing
Guidelines. A four-Justice dissent penned by Chief Justice
Roberts would find that Rule 11(c)(1)(C) agreements are
always purely contractual in nature and therefore never
“based on” the sentencing Guidelines. Given this 4-1-4 split,
we held in Austin that we were bound (under Marks v. United
States, 430 U.S. 188, 193 (1977)) to treat Justice Sotomayor’s
concurrence as the “holding” of the Freeman Court because
it was the “narrowest grounds” upon which to reach the
disposition that commanded a majority of the Court. See
Austin, 676 F.3d at 927–28.

    Our interpretation in Austin has garnered the support of
eight out of the nine Circuits which have interpreted
Freeman. See, e.g., United States v. Graham, 704 F.3d 1275,
1278 (10th Cir. 2013); United States v. Thompson, 714 F.3d
946, 949 (6th Cir. 2013); United States v. Browne, 698 F.3d
1042, 1045–47 (8th Cir. 2012); United States v.


 1
   A Rule 11(c)(1)(C) agreement may or may not specifically reference
applicable sentencing guidelines as the basis for the government’s
sentencing recommendation. See Fed. R. Crim. P. 11.
                     UNITED STATES V. DAVIS                             35

Weatherspoon, 696 F.3d 416, 422 (3rd Cir. 2012); United
States v. Dixon, 687 F.3d 356, 359–60 (7th Cir. 2012); United
States v. Austin, 676 F.3d 924, 927 (9th Cir. 2012); United
States v. Rivera-Martinez, 665 F.3d 344, 345 (1st Cir. 2011);
United States v. Brown, 653 F.3d 337 (4th Cir. 2011).2 The
sole outlier circuit: the D.C. Circuit in United States v. Epps,
707 F.3d 337 (D.C. Cir. 2013). Thus, the Majority today
rejects a widely accepted interpretation of Freeman in favor
of a highly criticized, outlier approach, thus accentuating a
Circuit split.

    I cannot subscribe to the Majority’s view. To start, the
Majority’s “logical subset” requirement is an invention of the
D.C. Circuit that finds no support in Marks or any other
Supreme Court precedent. The Majority’s “logical subset”
invention permits a concurring opinion to become the
precedential decision of the Court if, and only if, its reasoning
shares all points in common with another, broader opinion
that also reaches the majority result. Of course, the
concurring opinion may have fewer elements of the decision
than does the plurality opinion, but it may not have any
elements in conflict. See Maj. Op. at 15–16. This notion is
an invention in our circuit’s jurisprudence, though the
Majority tips its hat to the D.C. Circuit. See Maj. Op. at 5–6,
14. And even if there were a “logical subset” requirement as
defined by the Majority, the Majority misreads Justice
Kennedy’s plurality opinion to the extent it concludes that
there are circumstances in which Justice Sotomayor would
permit sentence modification but the Kennedy plurality


  2
     See also United States v. Banks, 770 F.3d 346, 351 (5th Cir. 2014)
(citing to Justice Sotomayor’s concurrence in Freeman and suggesting
that, were that case applicable, the Fifth Circuit would be bound by Justice
Sotomayor’s concurrence).
36                UNITED STATES V. DAVIS

would not. Finally, the Majority’s adoption of the Kennedy
plurality’s approach violates stare decisis because five
Justices in Freeman (a majority), all agreed that we look to
the plea agreement itself to determine whether a plea was
“based on” the since-modified sentencing Guidelines. Under
cases like National Mutual Insurance Co. v. Tidewater
Transfer Co., 377 U.S. 582 (1949), we are bound by holdings
that garner the support of a “majority” of the nine Justices on
the entire Court, even if that agreement derives in part from
votes from the dissent. Thus, the Majority flouts not only
Freeman, but also Supreme Court jurisprudence relating to
the binding effect of splintered Supreme Court opinions, as
well as this Court’s structural role as a federal intermediary
court.

                           I. Facts

    In 2005, Tyrone Davis pleaded guilty to possession with
intent to distribute crack cocaine pursuant to a Rule
11(c)(1)(C) plea agreement. In Davis’s case, the plea
agreement did not specifically mention any particular
sentencing Guideline. Nor did the plea agreement itself
calculate (or even contain sufficient facts with which to
calculate) Davis’s Guidelines range. True, it contained some
of the factors that would enable a Guidelines calculation. For
example, the parties stipulated to a base offense level of 34.
But the agreement failed to list a criminal history category or
adjustment determinations—both of which are essential to
calculate a sentencing range under the Guidelines. After
successive appeals to this Court on grounds no longer
relevant, the district court calculated a Guidelines range of
188–235 and approved the 216-month sentence in Davis’s
                     UNITED STATES V. DAVIS                           37

plea agreement.3 We affirmed. See United States v. Davis,
389 F. App’x 616 (9th Cir. 2010) (unpublished).

    Congress thereafter passed the Fair Sentencing Act of
2010, which increased the threshold amount of cocaine base
necessary to trigger an enhanced Guidelines range. Pub L.
111-220, §2(a), 124 Stat. 2372. Under the new Guidelines,
the amount of cocaine base that contributed to Davis’s
convictions would produce a Guidelines range of only
97–121 months (after inserting the calculations made by the
district court at Davis’s resentencing). Because Davis’ 216-
month sentence now falls much above that range, Davis
moved in September 2012 for resentencing under 18 U.S.C.
§ 3582(c)(2), relying on the amended Guidelines. Section
3582(c)(2) provides:




  3
    At Davis’s sentencing in May 2006, the district court calculated a
Guidelines range of 235–293 months (later reduced, on remand, to
188–235 months, as described below), relying in part on its own
determinations that Davis’s criminal history category was II and that
Davis deserved a 4-level leadership enhancement for his particular role in
the offenses. Although Davis’s stipulated sentence of 216 months (18
years) fell below the low end of the Guidelines range (235–293 months),
the district court accepted the sentence.

    David appealed, arguing that the district court miscalculated the
Guidelines range, and our panel reversed and remanded for resentencing.
United States v. Davis, 312 F. App’x 909, 912–13 (9th Cir. 2009)
(unpublished). On remand, the district court held an evidentiary hearing
about Davis’s role in the offense, and then calculated a new (lower)
Guidelines range of 188–235 months. The court then reimposed the same
216-month sentence as stipulated in the Rule 11(c)(1)(C) plea agreement.
On a second appeal, we affirmed. See United States v. Davis, 389 F.
App’x 616 (9th Cir. 2010) (unpublished).
38                   UNITED STATES V. DAVIS

         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 . . .
         the court may reduce the term of
         imprisonment, after considering the factors set
         forth in section 3553(a) to the extent that they
         are applicable, if such a reduction is
         consistent with applicable policy statements
         issued by the Sentencing Commission.

Id. (emphasis added). The district court properly denied the
motion, ruling that Davis’s 216-month sentence was “based
on” his plea agreement, not on the Guidelines range that had
since been lowered. The district court relied on our decision
in United States v. Austin, 676 F.3d 924, 927–28 (9th Cir.
2011), to hold that it lacked jurisdiction to review Davis’
sentence, which was adopted pursuant to a Rule 11(c)(1)(C)
agreement that did not reference any Guidelines range, and
therefore did not meet either of Justice Sotomayor’s
exceptions in Freeman.

   The original panel affirmed, citing Austin as the
controlling law of the circuit. United States v. Davis, No. 13-
30133, slip op. at 4–6.4 This case was successfully called en
banc to reconsider our prior determination that, under the

     4
      The panel engaged in a straight-forward application of Justice
Sotomayor’s binding concurrence in Freeman: First, the agreement did not
provide that Davis be sentenced within a particular Guideline range. Id.
at 6. Second, it did not expressly use a Guideline range that “was evident
from the agreement itself” to arrive at the 216-month term of
imprisonment. Id. Judge Berzon concurred in judgment, but urged us to
overrule Austin as wrongly decided. She viewed the decision to have
misapplied Marks to Freeman. Id. at 8–10 (Berzon, J., concurring).
                     UNITED STATES V. DAVIS                             39

methodology prescribed by Marks, Justice Sotomayor’s
concurrence in Freeman constitutes the binding “holding” of
that case.

                         II. Legal Analysis

                                    A.

    In Marks v. United States, the Supreme Court made clear
that even splintered determinations of our highest court are
binding on lower federal courts: “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 judgment on the narrowest grounds . . . .’”
Marks v. United States, 430 U.S. 188, 193 (1977) (reversing
the Sixth Circuit’s determination that Memoirs v.
Massachusetts, 383 U.S. 413 (1966), had no binding
precedential effect because it was a plurality opinion). At
issue in Marks was the precedential effect of Memoirs—an
earlier, splintered Supreme Court opinion. In Memoirs, a
three-Justice plurality had held that sexually explicit literature
was constitutionally protected unless it met the three-part
definition of obscenity set forth in Roth v. United States,
354 U.S. 476 (1957).5 See Marks, 430 U.S. at 193 (citing


   5
     The proper test, as enumerated by the three-Justice plurality, was
“whether to the average person, applying contemporary community
standards, the dominant theme of the material taken as a whole appeals to
prurient interest.’ . . . . Under this definition . . . three elements must
coalesce: it must be established that (a) the dominant theme of the material
taken as a whole appeals to a prurient interest in sex; (b) the material is
patently offensive because it affronts contemporary community standards
relating to the description or representation of sexual matters; and (c) the
material is utterly without redeeming social value.” A Book Named “John
40                  UNITED STATES V. DAVIS

Memoirs, 383 U.S. at 421). Justices Black and Douglas (both
writing separately) concurred in Memoirs on the broader
grounds that the First Amendment prohibits government
censorship of any “obscene” material. See Memoirs,
383 U.S. at 421, 424–33. Finally, Justice Stewart concurred
based on his somewhat different view that only “hard-core
pornography” may constitutionally be suppressed. Id. at 421
(citing his dissenting opinion in Mishkin v. State of N.Y.,
383 U.S. 502, 518 (1966)). In sum, six Justices agreed that
the material at issue in Memoirs was protected by the First
Amendment, but no five Justices agreed about the scope of
First Amendment protection for sexually explicit
material—nor about the proper reasoning to be employed to
reach that result. In this circumstance, Marks explained, the
three-Justice Memoirs plurality opinion, which applied the
Roth tests, “constituted the holding of the Court and provided
the governing standards,” because it was the “narrowest
grounds” for finding First Amendment protection. Marks,
430 U.S. at 193–94.

    The Majority today rejects the only application of Marks
to Freeman that is consistent with stare decisis in favor of a
widely-criticized approach endorsed by one panel in the D.C.
Circuit in United States v. Epps, 707 F.3d 337, 351 (D.C. Cir.
2013).6 The Majority holds that Marks produces a


Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Gen. of Com. of
Mass., 383 U.S. 413, 418 (1966).
  6
   In addition to being widely rejected by our sister circuits, Epps has
been criticized even within the D.C. Circuit. As Judge Kavanaugh
contended in United States v. Duvall, 740 F.3d 604 (D.C. Cir. 2013):

         Following Justice Sotomayor’s opinion with regard to
         the “based on” issue would produce results with which
                    UNITED STATES V. DAVIS                        41

“controlling” opinion only when the “narrowest grounds” in
a splintered opinion is “represent[s] a common denominator
of the Court’s reasoning,” meaning “the reasoning of a
narrower opinion fit[s] entirely into the circle drawn by a
broader opinion.” Maj. Op. at 15.

    The Majority’s adoption of a reasoning-based, “common
denominator” approach is fundamentally inconsistent with
Marks itself. In Memoirs, none of Justices Stewart, Black, or
Douglas agreed with the rule enumerated by the Justice
Brennan plurality (that the Court should apply the Roth test
to determine whether speech is constitutionally protected).
Thus, there was no “common denominator” in Memoirs, as
that term is defined by the Majority today. Yet, Marks
applied the three-Justice plurality opinion authored by Justice
Brennan. It is true, of course, that in every circumstances in
which the Brennan plurality would find speech protected
under the Roth obscenity test, Justices Black and Douglas
(who ascribe to the broader view that obscene speech is
always constitutionally protected) would agree with the
plurality’s result. But there is a distinction between


        a majority of the Supreme Court in Freeman would
        agree because—to put it in simple terms—“sometimes”
        is a middle ground between “always” and “never.” In
        other words, when Justice Sotomayor concludes that a
        plea agreement was based on the Guidelines, she would
        agree with the result reached under Justice Kennedy’s
        opinion for four Justices. When she concludes that a
        plea agreement was not based on the Guidelines, she
        would agree with the result reached under Chief Justice
        Roberts’s opinion for four Justices. But unlike every
        other court of appeals, Epps did not follow this
        commonsense approach to interpreting Freeman.

Id. at 612 (emphasis added).
42                   UNITED STATES V. DAVIS

agreement with a result and agreement with the reasoning
that leads one to adopt that result that appears to be lost on
my colleagues in the Majority. Indeed, the Majority’s own
reasoning supports only a votes-based reading of Marks:
Justice Brennan’s plurality opinion was the “narrowest
grounds” for the Court’s holding in Memoirs because it
would always produce a result with which at least five
Justices would agree.7


     7
      The Majority argues that their approach is not “fundamentally
inconsistent with Marks itself.” Maj. Op. at 15–16, n.7. This, because I
have not identified a subsequent Supreme Court case that has
unequivocally stated that Marks requires an unwavering focus on results.
But, as explained above, the Majority overlooks Marks itself. Under the
rule the Majority advances today, we would be unable to derive a
controlling rule from Memoirs, the earlier Supreme Court case with
respect to which the Court in Marks was called upon to give binding
effect. Yet that would be directly contrary to Marks’ holding that we can
derive a controlling rule from Memoirs.

     By the same token, the Majority’s rule would preclude us from
deriving a binding rule from Walter v. United States, 447 U.S. 649 (1980),
where five Justices voted that the government’s warrantless seizure of
contraband films and viewing of those films on a projector violated the
defendant’s Fourth Amendment right. Id. at 652, 657, 660–62. Two
Justices voted for this result on the grounds that the government’s act of
viewing the films expanded the scope of a private party’s earlier search,
which had consisted only of opening the package that contained the films.
Id. at 657. Three Justices voted for this result for a completely different
reason: that the government had exceeded its authority under the “plain
view” doctrine. Id. at 660–62. Thus, neither the approach adopted by the
plurality nor the approach advanced by the concurrence was a “logical
subset” of the other; and under the rule the Majority announces today, we
could discern no “controlling” rule in Walter.

     Yet such a conclusion is inconsistent with the Court’s holding, only
three years later in Jacobsen, that Walter did set forth a controlling rule:
the rule advanced by the two-Justice plurality. See United States v.
                     UNITED STATES V. DAVIS                             43

    This reading is also consistent with Marks’ dictate that
“the holding of the Court . . . [is] the position taken by those
Members who concurred in the judgment on the narrowest
grounds . . . .” Marks, 430 U.S. at 193 (emphasis added).
Marks’ emphasis on the Court’s “judgment” demonstrates
that it is the ultimate “vote” of five Justices that is important
in determining the binding effect of a splintered Supreme
Court opinion. 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.” United States v. Williams, 435 F.3d 1148,
1157 n.9 (9th Cir. 2006) (emphasis added). That is not to say,
of course, that the respective rationales of a splintered
Supreme Court decision are irrelevant. Consideration of
competing rationales is necessary to determine which would
consistently produce a result with which a majority of the
Court would agree. But the Majority’s reasoning-based
approach must be incorrect, because there was no common
reasoning in Memoirs, yet the Marks Court was nonetheless
able to derive from Memoirs a binding rule, which it applied
in Marks.




Jacobsen, 466 U.S. 109 (1984). The plurality’s view was the
“controlling” rule of Walter, because four Justices in dissent had also
voted for the plurality’s rule. Id. at 115–16 (“[A] majority” in Walter
“agree[d]” that “the legality of the governmental search must be tested by
the scope of the antecedent private search.”). Like in Marks, it was the
vote of a majority of Justices that counted. I need not belabor the point,
discussed more thoroughly infra, at pp. 52–56, here. Suffice it to say that,
as a federal intermediary court, we are not free to adopt a reasoning-based
approach to Marks—an approach plainly inconsistent with the facts and
holdings of Marks and later Supreme Court cases interpreting splintered
opinions—simply because the Court has not yet had occasion expressly to
reject that reasoning-based approach.
44                UNITED STATES V. DAVIS

    The Majority’s adoption of a “logical subset”
precondition to Marks applicability is plagued by the same
logical fallacy. King v. Palmer, the D.C. Circuit case on
which the Majority relied, justified its invention of a logical
subset requirement on the grounds that:

       Marks is problematic[] [i]f applied in
       situations where the various opinions
       supporting the judgment are mutually
       exclusive [because] Marks will turn a single
       opinion that lacks majority support into
       national law. When eight of nine Justices do
       not subscribe to a given approach to a legal
       question, it surely cannot be proper to endow
       that approach with controlling force . . . .”

King v. Palmer, 950 F.2d 771, 782 (D.C. Cir. 1991). Even
accepting, arguendo, the King court’s premise that a
concurring opinion should be given stare decisis effect only
when it consistently produces a result with which a majority
of the Court would agree, that, again, would support the
adoption of a rule that it is each Justice’s vote, and not his
reasoning, that counts under Marks. The King court’s
conclusion that Marks “works” only when a majority of
Justices “subscribe to a given approach to a legal question,”
such that “one opinion supporting the judgment . . . fit[s]
entirely within a broader circle drawn by the others,” id. at
782, simply does not follow from that court’s premise—or
from the many Supreme Court precedents interpreting and
applying Marks to splintered opinions over the last four
                     UNITED STATES V. DAVIS                             45

decades.8 Indeed, to require complete overlap between both
the result and the reasoning of Justices in the majority before
a binding rule can be discerned renders Marks a virtual
nullity. Agreement as to both the Court’s reasoning and its
result does not produce a concurring opinion—it produces a
“join.”

    And even if a reasoning-based approach to Marks were
not fundamentally incompatible with Marks itself, the idea
that a court’s holding, adopted by a majority of judges, must
have a rationale common throughout the majority is a novelty
to any branch of our government, including the judiciary.
Even our courts adhere to that most democratic of principles:
as to how to decide this case, the majority rules. People,
including legislators and judges, may vote for a result for a
variety of different reasons. That is how coalitions are
achieved and compromises made to reach results although the
distinct motives and thinking which produced the majority’s
result remain quite distinct.



 8
    The Supreme Court has never adopted a “logical subset” requirement
in its numerous applications of Marks over the past four decades. The
Supreme Court has on numerous occasions applied Marks to its own
decisions. See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2738 n.2 (2015)
(holding that a three-Justice plurality opinion constituted the “holding” of
the Court in Baze v. Rees, 553 U.S. 35 (2008), because Justices Scalia and
Thomas had concurred in the result reached by the plurality but on
“broader” grounds); Panetti v. Quarterman, 551 U.S. 930, 949 (2007)
(citing Marks and holding simply that “Justice Powell’s concurrence [in
Ford v. Wainwright, 477 U.S. 399 (1986)], . . . offered a more limited
holding. When there is no majority opinion, the narrower holding
controls.”). In neither of these cases did the Supreme Court state that the
controlling opinion must be a “logical subset” of the broader view that
produces the same result—it has only reiterated that the controlling
opinion is the one that relies on “narrower” grounds.
46                UNITED STATES V. DAVIS

     It is the result produced by majority vote that determines
the stare decisis effect of the judgment. That is because
whether the majority vote is produced by the adoption of one
rationale or two, the rule of law made—the decision—is
based on a rationale or rationales expected to remain the same
and produce the same result in the next applicable case. After
all, “stare decisis” means “to stand by things decided.”

                              B.

    A simple application of Marks’ methodology to Freeman
compels a finding that Justice Sotomayor’s concurrence is the
“holding” of Freeman. See United States v. Austin, 676 F.3d
924, 927–28 (9th Cir. 2012). Five members of the Court
agreed that Freeman—who had been sentenced pursuant to a
Rule 11(c)(1)(C) agreement—was eligible for sentencing
modification under 18 U.S.C. § 3582(c)(2), because his plea
agreement had been “based on” a subsequently modified
sentencing Guidelines range. Freeman v. U.S., 564 U.S. 522,
534, 544 (2011). Writing for a four-member plurality, Justice
Kennedy reasoned that a plea agreement is “based on”
applicable Guidelines whenever the sentencing judge at least
consulted those guidelines before approving the proposed
sentence—which, Justice Kennedy explained, the judge is
statutorily “required” to do in “every case.” See Freeman,
564 U.S. at 529 (plurality opinion).

    Concurring in result, Justice Sotomayor, a former district
court judge experienced in actual sentencing, reasoned that
plea agreements are sometimes based on sentencing
guidelines, but only when the agreement itself “expressly
uses a Guidelines sentencing range applicable to the charged
offense to establish the term of imprisonment,” or the
sentencing range is otherwise “evident from the agreement
                  UNITED STATES V. DAVIS                    47

itself.” Id. at 534, 539 (Sotomayor, J., concurring) (emphasis
added). Chief Justice Roberts, writing for the four dissenting
Justices, “agree[d] with Justice Sotomayor that ‘the term of
imprisonment imposed pursuant to a [Rule 11(c)(1)(C)]
agreement is . . . based on the agreement itself.’” Id. at 544
(Roberts, C.J., dissenting) (emphasis added) (internal
quotation marks omitted). However, the dissent would find
that plea agreements are a matter of contract and thus never
“based on” the sentencing Guidelines. Id. at 544–51
(Roberts, C.J., dissenting).

    Justice Sotomayor’s opinion is controlling because
“‘sometimes’ is the middle ground between ‘always’ and
‘never.’” See United States v. Duvall, 740 F.3d 604, 612
(D.C. Cir. 2013) (Kavanaugh, J., concurring in the denial of
rehearing en banc); see also supra, n.6. In circumstances in
which Justice Sotomayor would permit reduction of a prior
sentence, so too would the plurality (resulting in a five-
Justice majority). Where Justice Sotomayor’s criterion are
not met, she would find agreement in the four-Justice dissent
that the prisoner’s sentence is not “based on” the Guidelines
(which would also result in a five-Justice majority). Justice
Sotomayor’s approach therefore constitutes the “narrowest
grounds” for reaching a result that, in any circumstance, will
be consistent with the result that a majority of the Supreme
Court would reach under Freeman.

    Under Justice Sotomayor’s framework, Davis cannot seek
resentencing, because his plea agreement does not meet either
of her exceptions. It neither expressly cites, nor otherwise
manifests that it is predicated upon, any particular Guidelines
range. In fact, it omits several details (such as criminal
history, and adjustments) necessary even to calculate a
Guidelines range. Davis’s sentence is therefore not subject to
48                UNITED STATES V. DAVIS

modification under § 3582(c)(2). The district court correctly
determined that it lacked jurisdiction to resentence Davis, and
the panel should affirm on that basis.

    The Majority rejects this straight-forward approach on the
grounds that circumstances could arise in which Justice
Sotomayor would find a plea “based on” sentencing
guidelines, but the Kennedy plurality would not. The
Majority posits two hypotheticals, both of which assume
express agreement in a plea bargain that a particular
sentencing range applies (such that Justice Sotomayor would
find the plea agreement “based on” the sentencing
Guidelines, and subject to § 3582(c)(2) resentencing). See
Maj. Op. at 18–20. Both hypotheticals then posit that the
“sentencing court . . . might consider and reject the guideline
range used by the parties”—in one scenario because the judge
believed another range should apply, and, in the other, for
“policy” reasons. Id. The Majority suggests that in either of
these circumstances, the Freeman plurality would not find the
plea agreement “based on” the sentencing guidelines, and
thus would not grant relief.

    The Majority is simply incorrect. The very fact that the
sentencing judge in the Majority’s hypotheticals must reject
the Guidelines range recommended by the parties necessarily
presupposes that the judge’s analysis started with a
consideration of the Guidelines range recommended in the
plea agreement. Under the Kennedy plurality’s approach, this
consideration, at the inception of the sentencing, is enough to
entitle a defendant to seek resentencing—regardless of the
judge’s ultimate reasons for approving the plea agreement.
See Freeman, 564 U.S. at 529–30 (plurality opinion) (“[I]f
the judge uses the sentencing range as the beginning point to
explain the decision to deviate from it, then the Guidelines are
                 UNITED STATES V. DAVIS                   49

in a real sense a basis for the sentence.” (emphases added)).
The Majority recognizes as much on page 26 of its opinion,
wherein it quotes Justice Kennedy’s statement that “the
applicable Guidelines policy statement ‘forbids the district
judge to accept an 11(c)(1)(C) agreement without first
evaluating the recommended sentence’ under the Guidelines.”
Maj. Op. at 26 (quoting Freeman, 564 U.S. at 529, and USSG
§ 6B1.2(c)).

    The Majority criticizes my reading of Justice Kennedy’s
plurality opinion—a reading adopted by an overwhelming
majority of circuits—as “oversimplified.” In support of its
more limited reading, the Majority relies solely on Justice
Kennedy’s statement that a “recommended sentence is likely
to be based on the Guidelines.” Maj. Op. at 18 n.9 (quoting
Freeman, 564 U.S. at 534).

    But Justice Kennedy’s use of the word “likely” in one
sentence cannot be read in isolation. In the immediately
preceding paragraph, Justice Kennedy in fact rejects the
notion—advanced by the Majority—that his approach would
limit relief to only a “subset of defendants.” Freeman,
564 U.S. at 533–34 (“[When] [t]he Commission determine[s]
that [the] Guidelines [are] flawed, and therefore that
sentences that relied on them ought to be reexamined[,]
[t]here is no good reason to extend the benefit of the
Commission’s judgment only to an arbitrary subset of
defendants whose sentences were accepted in light of a since-
rejected Guidelines range based on whether their plea
agreements refer to the Guidelines.”). Indeed, Justice
Kennedy criticizes Justice Sotomayor’s approach because it
would fail to permit resentencing in all cases: “Congress
enacted § 3582(c)(2) to remedy systemic injustice, and the
approach outlined in [Justice Sotomayor’s] opinion
50                UNITED STATES V. DAVIS

concurring in the judgment would undercut a systemic
solution.” Id. at 534 (emphasis added).

     Nothing about Justice Kennedy’s opinion suggests any
exceptions. He notes that the “Guidelines require the district
judge to give due consideration to the relevant sentencing
range, even if the defendant and prosecutor recommend a
specific sentence as a condition of the guilty plea.” Id. at 530
(emphases added). He further reasons that “[f]ederal
sentencing law requires” the sentencing judge to look to the
Guidelines as “a framework or starting point” in “every case.”
Id. at 529. Thus, notwithstanding his use of the word “likely”
in one sentence, Justice Kennedy’s opinion is most
reasonably read as endorsing an approach under which a
defendant may “always” seek resentencing on the basis of
amended Guidelines. Certainly, for the reasons already stated
above, Justice Kennedy would permit a defendant to seek
resentencing in the examples given by the Majority.

    The Majority imbues far more meaning into Justice
Kennedy’s single use of the word “likely” than the rest of
Justice Kennedy’s plurality opinion can bear. It may be that
Justice Kennedy simply did not want to speak in absolutes.
That is, he declined to say, as a matter of empirical fact, that
a judge always consults the sentencing Guidelines, because
there is always the possibility that a judge could make a
mistake or fail to follow the law. But one thing is for sure:
Justice Kennedy does not even hint at a case in which the
sentencing judge could lawfully start sentencing with any
consideration other than the Guidelines, and the Majority has
not suggested any either. See 18 U.S.C. § 3553 (directing
that a “court, in determining the particular sentence to be
imposed, shall consider . . . the sentencing range established
for . . . the applicable category of offense committed by the
                  UNITED STATES V. DAVIS                     51

applicable category of defendant as set forth in the
guidelines” (emphasis added)); see also Gall v. United States,
552 U.S. 38, 49 (2007) (“[A] district court should begin all
sentencing proceedings by correctly calculating the applicable
Guidelines range. As a matter of administration and to secure
nationwide consistency, the Guidelines should be the starting
point and the initial benchmark.” (citing Rita v. United States,
551 U.S. 338, 347–48 (2007))).

    Indeed, the failure of a sentencing judge to start the
calculation of a sentence by considering the applicable
sentencing Guidelines is in itself grounds for reversal for
resentencing. See Gall, 552 U.S. at 51 (instructing that
appellate courts must “first ensure that the district court
committed no significant procedural error, such as failing to
calculate . . . the Guidelines range”); United States v. Denton,
611 F.3d 646, 651 (9th Cir. 2010) (explaining that “[a] failure
to calculate the correct advisory range constitutes procedural
error” justifying reversal and remand for resentencing);
United States v. Hammons, 558 F.3d 1100, 1106 (9th Cir.
2009) (holding that a sentencing court “committed plain error
by failing to . . . calculate the app[licable] guideline range”
and vacating and remanding for resentencing).

    The Majority’s contrary analysis appears to substitute the
Freeman plurality’s requirement that a trial judge “consider”
the Guidelines with its own innovation—that the trial judge
must base his ultimate acceptance of the plea agreement on
the Guidelines in order for a defendant to be entitled to seek
resentencing. See Maj. Op. at 18–20. But the latter is not the
test enumerated by Justice Kennedy in Freeman. Properly
read, Justice Kennedy’s opinion would unquestionably permit
resentencing in the hypotheticals offered by the Majority. See
id. Thus, even if the Majority were correct that Marks applies
52                    UNITED STATES V. DAVIS

only when one opinion is a “logical subset” of another, that
precondition would be met here.

                                    C.

    But even putting aside the “logical subset” issue, the
Majority still cannot reach its result consistent with basic
principles of stare decisis for the independent reason that we,
as a federal intermediate court, are bound by holdings upon
which five Justices of the Court agree—even if that
agreement derives in part from dissenting Justices. The
Supreme Court’s fragmented decision in National Mutual
Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582
(1949), is a famous illustration of this principle.9 Since


  9
     The question in Tidewater was whether Congress’s amendment to
28 U.S.C. § 1332 to permit citizens of the District of Columbia to be
characterized as “citizens of a state” for purposes of diversity jurisdiction
was constitutional under Article III. The problem in that case was that the
Supreme Court had previously addressed that same question (albeit in the
absence of a Congressional statute) and had interpreted Article III’s
reference to “citizens of a state” as not encompassing citizens of the
District of Columbia. See Hepburn & Dundas v. Ellzey, 6 U.S.
(2 Cranch.) 44 (1805); see also U.S. Const. art. III, § 2, cl. 1 (“Federal
courts will have jurisdiction over: . . . citizens of a state . . . .”).
Nevertheless, by a vote of 5 to 4, the Tidewater Court upheld the
constitutionality of a Congressional grant of diversity jurisdiction to
citizens of Washington D.C., though no five justices agreed on a rationale.

     Writing for a three-justice plurality, Justice Jackson voted to uphold
the statute under the rationale that Congress has the power to expand
Article III by statute and thereby to confer subject-matter jurisdiction on
bases not specified in Article III. See id. at 583–603. That is, Justice
Jackson would not disturb Hepburn’s interpretation of Article III; he
would simply hold that Congress may simply add a new basis for
jurisdiction that does not exist in Article III. In a concurrence, Justice
Rutledge, joined by Justice Murphy, strenuously disagreed that Congress
                      UNITED STATES V. DAVIS                             53

Tidewater, courts have universally accepted that Congress
may not expand the scope of subject-matter jurisdiction
conferred by Article III through passage of a Congressional
Act.10 Yet this rule can be divined only by combining a two-


had the power to expand Article III jurisdiction beyond the bases
enumerated in the Constitution. See id. at 604–17. Nevertheless, Justice
Rutledge would overrule Hepburn’s interpretation of Article III and would
reinterpret Article III’s reference to “citizen[s] of a state” as including
citizens of Washington D.C. See id. at 617–626. Justice Rutledge
reasoned that “nothing but naked precedent, . . . and the prestige of
[Justice] Marshall’s name, supports . . . [the] unjust and discriminatory
exclusion of District citizens from the federal courts. All of the reasons
of justice, convenience, and practicality . . . point to the conclusion that
[citizens of the District of Columbia] should enter freely and fully as other
citizens and even aliens do.” Id. at 617. The four remaining Justices
would have declined to overrule Hepburn; but they—like Justice
Rutledge—also vehemently rejected Justice Jackson’s suggestion that
Congress had the power to create subject-matter jurisdiction not
conferred by Article III. Thus, based on the rationale that the Court was
bound by Justice Marshall’s interpretation of Article III in Hepburn, and
that Congress lacked authority to expand Article III, the dissenting
Justices would have found the statute unconstitutional. See id. at 626–46.
In sum, six Justices agreed that Congress could not expand the scope of
subject-matter jurisdiction of Article III courts beyond that provided by
the Constitution. This view—which finds majority support only by
combining the views of two concurring and four dissenting justices—is
the governing rule. Tidewater therefore demonstrates that a “majority”
view of the Court that binds us as intermediate courts may be comprised
of dissenting and concurring justices, regardless of the quite obvious lack
of any “logical subset” between the views expressed by the concurring and
dissenting Justices.
 10
    See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 65 (1996)
(describing as “fundamental” the notion “that Congress could not expand
the jurisdiction of the federal courts beyond the bounds of Article III” and
overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) to the extent
it suggested otherwise); Rosmer v. Pfizer Inc., 263 F.3d 110, 120 n.5 (4th
Cir. 2001) (citing Tidewater for the proposition that “Congress cannot
54                    UNITED STATES V. DAVIS

Justice concurrence in Tidewater with a four-Justice dissent.
See id. at 604–46.

    United States v. Jacobsen, 466 U.S. 109 (1984), provides
a more recent example of the same rule. The question in
Jacobsen was the government’s authority to conduct a
warrantless search on the heels of a private search that
identified potential contraband. The Jacobsen Court
extracted the “controlling” legal standard from its prior
precedent in Walter v. United States, 447 U.S. 649 (1980), by
combining the opinion of the Walter Court (which garnered
only two votes) with the opinion of four dissenting Justices,
which it described as the “standard . . . adopted by the
majority of the Court in Walter . . . .” Id. at 116–17 & n.12
(emphasis added).

    In Walter, a private party had opened a package
containing films that, from the descriptions on the packaging,
the private party concluded were contraband. Walter v.
United States, 447 U.S. 649, 651–52 (1980). The government
seized the films and, without obtaining a warrant, screened
them from a projector. Id. at 652. Delivering the two-Justice
opinion of the Court, Justice Stevens reasoned that the
government had violated the defendant’s Fourth Amendment
rights by actually watching films because the private party’s
search had consisted only of opening the package that
contained the films. Id. at 657 (The FBI’s subsequent


confer jurisdiction on Article III courts by statute when Article III does not
authorize that jurisdiction.”); Lo Duca v. United States, 93 F.3d 1100,
1108 (2d Cir. 1996) (explaining that “[i]n Tidewater, . . . six Justices
reaffirmed the traditional view that federal courts are courts of limited
jurisdiction whose judicial powers are bounded by Article III,” a notion
that dates “as far back as Marbury v. Madison . . . .”).
                  UNITED STATES V. DAVIS                     55

screening of such films constituted an “expansion of the
search that had been conducted previously by the private
party.”); see also Jacobsen, 446 U.S. at 115–16 (quoting
Walter, 447 U.S. at 657 (Opinion of Stevens, J., joined by
Stewart, J.)). Three Justices in Walter concurred in the
judgment on the grounds that the government had exceeded
its authority under the “plain view” doctrine, but expressly
rejected the notion that the scope of one’s Fourth Amendment
right could be tethered to the scope of an antecedent private
search. Walter, 447 U.S. at 660–62 (White, J., concurring).
A four-Justice dissent agreed with Justice Stevens that the
legality of a governmental search depended on the scope of
the private party’s antecedent search, but would have found
no constitutional violation because “the FBI’s subsequent
viewing of the movies on a projector did not ‘change the
nature of the search’ and [thus] was not an additional search
subject to the warrant requirement.” Id. at 663–64
(Blackmum, J., dissenting); see also Jacobsen, 446 U.S. at
116.

    Presented with these competing views in Walter, the
Jacobsen Court (in a six-Justice opinion of the Court) held
that “a majority [in Walter] did agree on the appropriate
analysis of a governmental search which follows on the heels
of a private one. Two Justices [referring to Justices Stevens
and Stewart] . . . . [and] [f]our additional Justices [referring
to the dissent] were . . . of the view that the legality of the
governmental search must be tested by the scope of the
antecedent private search.” Jacobsen, 446 U.S. at 115–16.
The Majority opinion here simply cannot be squared with the
Court’s reading of Walter in Jacobsen. Jacobsen recognized
that the rule adopted by the two-Justice plurality in Walter
was the precedential holding of the Walter Court, because it
garnered the approval of six Justices (a majority) of the
56                   UNITED STATES V. DAVIS

Court. This was so even though the three-Justice concurrence
specifically rejected the plurality’s rationale, and thus neither
the plurality opinion nor the concurrence was a “logical
subset” of the other.

     Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp.,
460 U.S. 1 (1983) [hereinafter, “Memorial Hospital”]
provides yet another example. There, the Court considered
whether a lower court was bound to apply the Colorado River
test,11 notwithstanding that a four-Justice plurality in Will v.
Calvert Fire Insurance Co., 437 U.S. 655 (1978), had
purported to overrule it. Id. at 17. The Memorial Hospital
Court affirmed that the “Court of Appeals [had] correctly
recognized that the four dissenting Justices and Justice
Blackmum [who concurred in judgment in Will] formed a
majority to require application of the Colorado River test.”
Id. (emphases added). By holding that the Fourth Circuit had


     11
        Colorado River held that federal courts have discretion in
“exceptional” circumstances to stay federal court proceedings pending the
resolution of a parallel state court proceeding. See Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 813, 817–18 (1976)
(recognizing, however, that “[a]bstention from the exercise of federal
jurisdiction is the exception, not the rule”). The “Colorado River test”
refers to the list of factors courts consider in determining whether to
invoke this exceptional prudential abstention doctrine. These factors
include: (a) the extent to which the federal legislation pursuant to which
the federal suit is brought favors the state versus federal forum; (b) which
forum offers the “greatest experience and expertise” in the particular
subject-matter; (c) the “absence of any substantial progress in the federal-
court litigation”; (d) the extent to which the suit involves questions or
“rights governed by state law”; (e) “the geographical inconvenience of the
federal forum”; (f) “the desirability of avoiding piecemeal litigation”;
(g) “the order in which jurisdiction was obtained by the concurrent
forums”; and (h) “the Government’s previous willingness to litigate
similar suits in state court.” Memorial Hospital, 460 U.S. at 16.
                     UNITED STATES V. DAVIS                           57

“correctly recognized” that it was “require[d]” to apply the
Colorado River test by virtue of a five-Justice majority
comprised of four dissenting Justices and one concurring
Justice, id., the Supreme Court in Memorial Hospital
confirmed that its precedents relating to the consideration of
dissenting opinions do bind us as a federal intermediate court
(contrary to the suggestion of my concurring colleagues).

    The Majority is correct that the Justices in Freeman did
not agree on much. But a five-Justice majority (Justice
Sotomayor, plus the four dissenting Justices) did agree on one
point—that a sentence imposed under a Rule 11(c)(1)(C) plea
agreement is always “based on the [plea] agreement” itself.
See, e.g., Freeman, 564 U.S. at 534 (Sotomayor, J.,
concurring) (“[T]he term of imprisonment imposed by a
district court pursuant to an agreement authorized by Federal
Rule of Criminal Procedure 11(c)(1)(C) . . . agreement[] is
‘based on’ the agreement itself, not on the judge’s calculation
of the Sentencing Guidelines.”); see also id. at 544 (Roberts,
C.J., dissenting) (“I agree with Justice SOTOMAYOR 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.’” (quoting Justice
Sotomayor’s concurrence, id. at 534)). This was a holding
that received the vote of five Justices (a majority) of the
Court. Like the Fourth Circuit in Memorial Hospital, we are
bound by that holding.12

  12
      The Majority incorrectly suggests that Tidewater and its progeny
somehow support a reasoning-based approach to Marks. Maj. Op. at
15–16, n.7. But quite the opposite is true. In Tidewater, Justice Rutledge
(joined by Justice Murphy) held that Congress’ power to confer Article III
jurisdiction was limited to the bases enumerated in the Constitution. See
discussion supra, n.9. And four dissenting Justices expressly agreed with
that holding. Of course, Justice Rutledge and the four dissenting Justices
58                    UNITED STATES V. DAVIS




ultimately disagreed about whether Article III’s reference to “citizen[s] of
a state” should be understood as encompassing District of Columbia
citizens. This disagreement led the two factions of Justices to vote for
different case results. But all six Justices voted to hold that the
Constitution provided the starting point for the Court’s analysis; Congress
had no authority to add new bases for Article III jurisdiction by statute.
Tidewater and its progeny hold that we are bound by holdings from
splintered Court opinions that garner the five or more votes from the
Court.

     Consideration of dissenting opinions to derive the “narrowest
grounds” does not focus on the various reasonings as determinative of
results. Indeed, it is just the opposite. Consideration of dissenting
opinions is done not for the purpose of combining the rationales—an
impossible task, since they are contradictory—but for predicting the vote
(the result) which the dissenting opinions would add to the plurality
opinion’s votes for the next analogous case.

     It is not the contradictory rationales that combine in Tidewater to
result in a rule that “Congress may not expand the scope of subject-matter
jurisdiction conferred by Article III through passage of a Congressional
Act.” See supra, at pp. 52–54. It is the combined results of Justice
Rutledge’s and Justice Murphy’s votes in favor of such a rule, plus the
similar votes of the four dissenting Justices on that same issue that
established the rule.

     Seen from the other side of the case, it is the combination of the result
of the votes of the 3-member plurality that Congress had the power to so
expand subject-matter jurisdiction, with the 2-member concurrence, which
vehemently rejected such power, but found that Art. III itself was
originally intended to include D.C. citizens for purposes of establishing
diversity of citizenship jurisdiction, that established the rule.

    It was not a rule “derived by combining the ‘views’ or ‘rationales[s]’
of Tidewater’s concurrence and dissent.” Majority Op. 16, n.7. Just the
opposite. It was a rule derived from the votes of the Justices,
notwithstanding contradictory views or rationales used to explain the
votes.
                    UNITED STATES V. DAVIS                         59

    The Majority blatantly ignores Chief Justice Roberts’
express agreement with Justice Sotomayor and focuses only
on the disagreements between them. But of course there are
points on which they disagree; that is why there is both a
concurrence and a dissent in Freeman (just as there was
ample disagreement between the concurring and dissenting
Justices in Tidewater). But those disagreements do not
negate the fact that there are no sentence reductions which
Justice Sotomayor would deny that the four dissenting
Justices would not also deny. Where, as here, a plea
agreement contains no mention of either the sentencing
Guidelines or the criteria necessary to calculate the applicable
Guidelines range (Justice Sotomayor’s two exceptions), five
Justices in Freeman (Justices Sotomayor, Roberts, Scalia,
Thomas, and Alito) would always vote to deny the
defendant’s petition to seek resentencing. Under Marks, we
are bound by this result.

    In sum, the Majority makes a good case that “federal
sentencing law,” Rule 11(c)(1)(C), and the Guidelines’ policy
statements all support the view adopted by the Justice
Kennedy plurality in Freeman. See Maj. Op. at 25–26. And
these arguments may well be the basis for a future Supreme
Court opinion abrogating Freeman and adopting outright the
plurality opinion of Justice Kennedy. But that is the Court’s
province, not ours. As an intermediate federal court, we are
not free to disregard binding Supreme Court precedent simply
because we can think of a rule we like better. The purpose of
determining a “holding” is to apply stare decisis in decisions


    I note the Majority’s “logical subset” also cannot be squared with
Tidewater, as neither opinion in Tidewater was a logical subset of the
other, and yet we have derived a binding holding from that splintered
decision.
60               UNITED STATES V. DAVIS

by intermediate appellate courts. It is only by intermediate
courts following the holdings of the Supreme Court that one
can hope to have predictability of law—the Rule of
Law—from intermediate courts of appeal. While I may not
agree with Justice Sotomayor’s approach, I think Marks
constrains our discretion. The Majority today defies stare
decisis by adopting a contrary approach and result.

                         *    *   *

    For all of these reasons, we had it right in Austin, and I
respectfully dissent.
