                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0430n.06

                                         No. 15-6431
                                                                                     FILED
                                                                                Jul 28, 2016
                            UNITED STATES COURT OF APPEALS                 DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA                               )
                                                       )
       Plaintiff-Appellee                              )
                                                       )
v.                                                     )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
ROBERT D. BLAINE                                       )      COURT FOR THE WESTERN
                                                       )      DISTRICT OF KENTUCKY
       Defendant-Appellant                             )
                                                       )
                                                       )



BEFORE:       SUHRHEINRICH, ROGERS, and GRIFFIN, Circuit Judges.

       ROGERS, Circuit Judge.       In 2014, Robert Blaine pled guilty to distributing crack

cocaine. His plea agreement contained a provision stating that “a sentence of not more than

140 months is the appropriate disposition of this case.” The district court accepted the plea

agreement and sentenced Blaine to 115 months of imprisonment. In 2015, Blaine moved the

district court to reduce his sentence under 18 U.S.C. § 3582(c)(2), arguing that the parties had

based the 140-month cap on his sentence on the combination of Blaine’s criminal-history

category of VI and base offense level—as calculated under U.S.S.G. § 2D1.1—of 26. Blaine

contended that he was eligible for resentencing because § 2D1.1 was amended after his

sentencing hearing, and Blaine’s crimes under the amendment would have been set at a base

offense level of 24. The district court denied the motion and Blaine appeals. Because Blaine’s

plea agreement does not make it evident that his sentence was based on the Sentencing
No. 15-6431
United States v. Blaine

Guidelines, Blaine is ineligible for a sentence reduction. The district court therefore properly

denied Blaine’s motion.

       A grand jury indicted Blaine for trafficking cocaine base, commonly known as crack

cocaine, on three separate occasions in 2011, in violation of 21 U.S.C. § 841(a)(1),

841(b)(1)(B)(iii), and 841(b)(1)(C). The Government subsequently filed an information under

21 U.S.C. § 851 giving notice that Blaine had six prior convictions for felony drug offenses.

Under the statutory penalty provisions of 21 U.S.C. § 841(b)(1)(B), these convictions subjected

Blaine to a mandatory minimum sentence of ten years and a maximum sentence of life.

       In 2014, Blaine executed a written plea agreement pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(C), which “binds the [sentencing] court” to impose the agreed-upon sentence

“once the court accepts the plea agreement.” The plea agreement recounted Blaine’s agreement

to plead guilty to all counts of the indictment and acknowledgement that he had distributed a

total of 76.4 grams of cocaine base.        The Government promised to “[a]t the time of

sentencing . . . agree that a sentence of not more than 140 months is the appropriate disposition

of this case.” The plea agreement further stated that “[b]oth parties reserve for sentencing all

argument relating to the Sentencing Guidelines applicable to this case.”

       The Government also agreed to move to withdraw its § 851 notice of prior conviction at

the time of sentencing; without such notice the statutory penalty that Blaine would face ranged

from five to forty years. 21 U.S.C. § 841(b)(1)(B). In a supplement to the plea agreement, the

Government promised to “make a motion for downward departure of at least three levels

pursuant to [U.S.S.G.] § 5K1.1” to reward Blaine for assisting law enforcement.

       After Blaine and the Government executed the plea agreement, a probation officer

prepared a pre-sentence report in which she calculated Blaine’s sentencing range. The probation


                                               -2-
No. 15-6431
United States v. Blaine

officer observed that because the drugs that Blaine distributed weighed about 76.5 grams, Blaine

received a base offense level of 26 under § 2D1.1. U.S.S.G. § 2D1.1(c)(7) (Nov. 2013).

       The probation officer also observed that Blaine’s prior felony drug convictions made him

a career offender subject to a sentence enhancement under U.S.S.G. § 4B1.1(b). Because the

§ 851 notice was still in place when the pre-sentence report was prepared, the officer noted that

Blaine faced a statutory maximum penalty of life in prison. Under § 4B1.1(b)(1), Blaine’s

offense level was therefore enhanced to level 37. The probation officer concluded that Blaine

should receive a three-level adjustment for acceptance of responsibility pursuant to U.S.S.G.

§ 3E1.1(a)−(b), reducing Blaine’s total offense level to 34.

       The officer also observed that Blaine’s prior convictions resulted in 27 criminal history

points, which put him in a criminal history category of VI, even without the automatic category

of VI that he received as a career offender. With a base offense level of 34 and a criminal-

history category of VI, the sentencing range was 262 to 327 months of imprisonment. After the

Government withdrew its notice of Blaine’s prior convictions, Blaine’s statutory maximum

punishment was reduced from a life term to forty years, thus in turn reducing his career-offender

offense level by three levels, to 31. At offense level 31, Blaine was subject to a sentencing range

of 188 to 235 months of imprisonment. The probation officer observed that because the plea

agreement’s agreed-upon sentence of not more than 140 months of imprisonment was outside of

this range, if the court adopted the probation officer’s Guidelines calculation, “the [c]ourt may

need to consider giving [Blaine] an opportunity to withdraw from the guilty plea.”

       Blaine subsequently moved to withdraw his guilty plea, arguing that he had not

understood when he signed his plea agreement that he had agreed to be sentenced as a career

offender. At Blaine’s sentencing hearing, the district court, after questioning Blaine’s counsel,


                                                -3-
No. 15-6431
United States v. Blaine

concluded that Blaine had understood when he signed his plea agreement that although he

qualified as a career offender, his sentence would be “substantially less” than what he would

have received as a career offender without the plea agreement. The district court therefore

denied Blaine’s motion to withdraw his guilty plea.

       Once the sentencing phase of the hearing began, there was some disagreement about

whether the parties had meant to set Blaine’s base offense level at 26 when they capped his

punishment at 140 months. At a criminal-history category of VI, the sentencing range of 120 to

150 months for offense level 26—the base offense level that § 2D1.1 would assign to Blaine’s

crimes—could accommodate a term of 140 months, but so could the sentencing ranges

prescribed by offense levels 27 and 28.

       Blaine argued that his offense level should be 26. He contended that if the court granted

the Government’s motion to adopt a three-level reduction pursuant to § 5K1.1, his sentencing

range would be reduced to 92 to 115 months, the range for a defendant with an offense level of

23 and a criminal-history category of VI.

       The prosecutor, in contrast, took the position that the plea agreement gave the

Government “some flexibility in terms of how much of a downward departure [the Government]

would ask for.” According to the prosecutor, the quality of the information that Blaine had

provided to assist law enforcement “wasn’t that good,” and the prosecutor declined to

recommend that the court sentence Blaine to 92 months. Instead, the prosecutor asked the court

to use offense level 28 as a starting point for calculating Blaine’s sentence and then depart

downward three levels to offense level 25, yielding a sentencing range of 110 to 137 months.

The prosecutor recommended that the district court sentence Blaine to 132 months based on the

low quality of the information that Blaine had provided.


                                               -4-
No. 15-6431
United States v. Blaine

       The district court observed that a sentence of 132 months fell within the sentencing

ranges that were prescribed by offense levels 25, 26, and 27. The court reasoned that the

Government therefore did not appear to be complying with its promise to recommend a departure

of at least three levels. Deciding to give Blaine “the benefit of the doubt,” the court observed

that 140 months was within the sentencing range that Blaine would face if he were assigned an

offense level of 26. A three-level downward departure from an offense level of 26 “goes down

to a total offense level of 23, which has a range of 92 to 115 months.” After accepting Blaine’s

plea agreement, the court sentenced Blaine within that range, imposing a sentence of 115 months

of imprisonment.

       After Blaine’s sentencing hearing, Amendments 782 and 788 to the Sentencing

Guidelines, which retroactively lowered the base offense levels that § 2D1.1 assigned to the

crime of distributing crack cocaine, went into effect. U.S.S.G. Supp. App. C. Amend. 782, 788

(eff. Nov 1, 2014). Blaine subsequently filed a motion to reduce his sentence pursuant to

18 U.S.C. § 3582(c)(2), which allows a court to reduce a defendant’s sentence if (1) the

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

subsequently been lowered by the Sentencing Commission” and (2) “such a reduction is

consistent with the applicable policy statements issued by the Sentencing Commission.” The

applicable policy statement provides that a sentence reduction is permitted only when the

relevant amendment has “the effect of lowering the defendant’s applicable guideline range.”

U.S.S.G. § 1B1.10(a)(2).

       The district court denied Blaine’s motion. The district court concluded that because

Amendment 782 did not lower Blaine’s applicable Guidelines range, “the issue of whether the

binding agreement was based upon the [G]uidelines [was] not determinative of eligibility.” In so


                                              -5-
No. 15-6431
United States v. Blaine

holding, the district court reasoned that Amendment 782 did not lower the applicable Guidelines

range for career offenders. The district court observed that Blaine qualified as a career offender

“with a total offense level of 31, [a] criminal history category [of] VI, and [a] sentencing range

of 188-235 months’ imprisonment.”         The district court characterized Blaine’s 115-month

sentence as a departure to an offense level of 23. The district court concluded that therefore “[a]s

a [c]areer [o]ffender,” Blaine was not eligible for a sentence reduction. The district court also

stated that Blaine’s original 115-month sentence “remains sufficient but not greater than

necessary to satisfy the purposes of sentencing.”

       Blaine appeals the district court’s denial of his motion for a sentence reduction.

       We review de novo the district court’s conclusion that it lacked the authority to reduce

Blaine’s sentence under § 3582(c)(2). United States v. Payton, 617 F.3d 911, 913 (6th Cir.

2010). According to Justice Sotomayor’s narrower and therefore controlling opinion in Freeman

v. United States, in the Rule 11(c)(1)(C) agreement context, “[t]he term of imprisonment

imposed by the sentencing judge is dictated by the terms of the agreement entered into by the

parties, not the [sentencing] judge’s Guidelines calculation.”        564 U.S. 522, 536 (2011)

(Sotomayor, J., concurring in the judgment); United States v. McNeese, 819 F.3d 922, 927 (6th

Cir. 2016) (recognizing Justice Sotomayor’s opinion as controlling). Accordingly, “[f]or Justice

Sotomayor, a court must answer the question whether a sentence is ‘based on’ a Guidelines

sentencing range in Rule 11(c)(1)(C) cases by reference to the plea agreement, not the district

court’s reasons for accepting that agreement.” McNeese, 819 F.3d at 927 (citing Freeman,

564 U.S. at 534). Drawing on Justice Sotomayor’s statement that a sentence in such a case is

“based on” a Guidelines sentencing range “[a]s long as that sentencing range is evident from the

agreement itself,” Freeman, 564 U.S. at 539, Blaine contends that his sentence was based on


                                                -6-
No. 15-6431
United States v. Blaine

§ 2D1.1 even though his plea agreement did not explicitly refer to § 2D1.1 or a Guidelines

sentencing range.

       Blaine’s argument is foreclosed by our holding in United States v. McNeese.              In

McNeese, this court rejected the defendant’s argument that he could “show that his sentence was

‘based on’ a Guidelines range even though his plea agreement [did] not explicitly mention such a

range.” 819 F.3d at 927. In so holding, we explained:

       Applying Justice Sotomayor’s framework, we have unequivocally held that “[a]
       defendant’s sentence—for purposes of [§ 3582(c)(2) ]—is ‘based on a guideline
       range only when that guideline range is explicitly referenced in a plea
       agreement.’” United States v. Douglas, 606 Fed. Appx. 287, 289–90 (6th
       Cir.2015) (quoting [United States v.] Riley, 726 F.3d [756,] 760 [(6th Cir. 2013)]);
       accord United States v. Bridgewater, 539 Fed. Appx. 685, 688 (6th Cir. 2013)
       (per curiam); United States v. Collins, 520 Fed. Appx. 434, 435 (6th Cir. 2013)
       (per curiam). As that language suggests, the only cases in which we have found a
       Rule 11(c)(1)(C) sentence to be “based on” a Guidelines sentencing range have
       been those in which the plea agreement explicitly referenced a such a range. See
       United States v. Garrett, 758 F.3d 749, 755–56 (6th Cir. 2014); [United States v. ]
       Smith, 658 F.3d [608,] 613 [(6th Cir. 2011)]; United States v. Taylor, 427 Fed.
       Appx. 468, 469 (6th Cir. 2011) (per curiam).

Id. at 927−28. Since the defendant’s “plea agreement nowhere mention[ed] a sentencing range,”

we held that “our precedents prevent him from availing himself of § 3582(c)(2).” Id. at 928.

       Blaine’s argument that his sentence is based on § 2D1.1 fails for the same reason that the

defendant’s argument failed in McNeese: Blaine’s plea agreement does not explicitly refer to a

Guidelines sentencing range. As Blaine acknowledges, his plea agreement never explicitly

mentioned § 2D1.1 or any Guidelines sentencing range. Further, the agreement stated that

“[b]oth parties reserve for sentencing all argument relating to the Sentencing Guidelines

applicable in this case,” indicating that the parties may not have agreed to use the Guidelines as

the basis for calculating the 140-month cap on Blaine’s sentence. Accordingly, Blaine, like the

defendant in McNeese, is ineligible for relief under § 3582(c)(2).


                                                -7-
No. 15-6431
United States v. Blaine

       Blaine resists this result by arguing that his plea agreement made it evident that the

parties based the 140-month limitation on his sentence, at least in part, on § 2D1.1. To support

this argument, Blaine claims that his plea agreement “provided the necessary ingredients” to

calculate his base offense level and criminal-history category.        Blaine notes that his plea

agreement stated that he was responsible for distributing 76.4 grams of crack cocaine, which at

the time that Blaine was sentenced called for a base offense level of 26 under § 2D1.1. U.S.S.G.

§ 2D1.1(c)(7) (Nov. 2013). Further, the Government’s § 851 notice stated that Blaine had six

prior felony convictions, which called for a criminal-history category of VI. Blaine claims that

the plea agreement, by referring to the Government’s promise to withdraw this notice,

incorporated the information contained in the notice about Blaine’s prior drug felonies and

“effectively recognized that he would register at [a] criminal history category [of] VI.” Blaine

argues that the sentencing range of 120 to 150 months that he would face with an offense level of

26 and a criminal history category of VI was the only Guidelines sentencing range that “included

140 months within its span and conferred on [Blaine] the full benefit of the plea agreement’s

downward departure.” Blaine therefore contends that his plea agreement made it evident that the

parties had agreed to use § 2D1.1 as the basis for calculating his sentence.

       This argument fails because Blaine’s plea agreement does not provide us with the

necessary tools to calculate his sentencing range. Although we could derive the base offense

level that § 2D1.1 would assign to Blaine’s conduct by using the amount of crack cocaine

described in his plea agreement, the agreement contains no assertions of fact that would allow us

to determine Blaine’s criminal-history category. Further, we cannot look to the information

contained in the Government’s § 851 notice to calculate Blaine’s criminal-history category. This

is because “the Freeman concurrence explicitly warned that a ‘reviewing court must necessarily


                                                -8-
No. 15-6431
United States v. Blaine

look to the agreement itself,’ in order to avoid a ‘free-ranging search through the parties’

negotiating history in search of a Guidelines sentencing range that might have been relevant.’”

McNeese, 819 F.3d at 928 (quoting Freeman, 564 U.S. at 538, 539 n.2 (Sotomayor, J.,

concurring in the judgment)). Accordingly, we cannot use the six prior felony drug convictions

described in the Government’s § 851 notice to derive Blaine’s criminal-history category.

       Even if we were to rely on Blaine’s six prior felonies to calculate his criminal-history

category, Blaine’s plea agreement still would not make it evident that the parties had based

Blaine’s sentence on the Guidelines. This is because Blaine’s six prior felony drug convictions

made him a career offender subject not to the drug-trafficking offense levels set forth in § 2D1.1,

but to the much more severe career-offender offense levels set forth in § 4B1.1. As stated above,

Blaine’s plea agreement reserved the parties’ ability to raise arguments about the Sentencing

Guidelines applicable to this case at the time of Blaine’s sentencing hearing. Accordingly, we

cannot determine whether the parties decided to cap Blaine’s sentence at 140 months because

they agreed that the career-offender offense levels set forth in § 4B1.1 did not apply to Blaine or

because they concluded that the 140-month cap was proper for some other reason. Blaine’s plea

agreement therefore does not make it evident that his sentence was based on § 2D1.1.

       Blaine also argues that the parties’ and district court’s remarks at his sentencing hearing

support his position that his sentence was based on § 2D1.1. This argument lacks merit. It is

true that the district court, after discussing the plea agreement with the parties, appears to have

interpreted the plea agreement to call for a three-level departure from the Guidelines sentencing

range that § 2D1.1 prescribed for Blaine’s crimes. However, it is the plea agreement itself that

controls our determination of whether Blaine’s sentence was based on a Guidelines sentencing

range, not extrapolations from what the parties and the district court said or did at sentencing.


                                                -9-
No. 15-6431
United States v. Blaine

This is because “Justice Sotomayor in fact rejected the idea that courts can consider parol

evidence to ascertain whether the sentence in the plea agreement is based on the Guidelines.”

Smith, 658 F.3d at 612 (6th Cir. 2011) (citing Freeman, 564 U.S. at 538). As explained above,

Blaine’s plea agreement did not expressly use § 2D1.1 to establish his punishment, and thus is

not “based on” § 2D1.1. Blaine therefore is not eligible for resentencing under § 3582(c)(2).

       Our holding in United States v. Smith does not require a different result. In Smith, this

court held that the defendant’s 180-month sentence was based on the Sentencing Guidelines

because the parties had attached a worksheet to the defendant’s Rule 11(c)(1)(C) plea agreement

that set “forth in detail the parties’ calculation of the Guidelines range applicable to [the

defendant’s] offense and the sentence they ultimately agreed upon was within that range.”

658 F.3d at 613. In so holding, we explained that it was “doubtful that the parties selected 180

months based on some intuitive sense that this term of imprisonment would be an appropriate

disposition of the case.” Id. Instead, “a more reasonable assessment is that this sentence, which

is slightly above the bottom of the range [set forth in the parties’ worksheet], represents a trade-

off between [the defendant’s] minor criminal history and the seriousness of [his] drug trafficking

conspiracy.” Id. In contrast to plea agreement in Smith, Blaine’s plea agreement did not include

a worksheet that detailed the parties’ calculations of the Guidelines sentencing range applicable

to Blaine’s offenses. Indeed, the agreement explicitly preserved the parties’ ability to raise

arguments about the applicable Guidelines range at sentencing. Smith is therefore inapposite.

       The district court’s denial of Blaine’s motion for a sentence reduction must be upheld

because Blaine’s plea agreement does not make it evident that his sentence was based at least in

part on § 2D1.1. In denying Blaine’s motion, the district court accepted the argument, repeated

by the Government on appeal, that because Blaine’s applicable Guidelines range derived from


                                               -10-
No. 15-6431
United States v. Blaine

his status as a career offender, Blaine was not eligible for a sentence reduction. In light of our

conclusion that Blaine’s plea agreement does not make it evident that his sentence was based on

the Guidelines, we do not reach this issue. We also do not reach the issue of whether the district

court abused its discretion when the court denied Blaine’s motion on the alternative basis that his

115-month sentence satisfied the purposes of 18 U.S.C. § 3553(a).

       The judgment of the district court is affirmed.




                                               -11-
