                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0563n.06

                                          No. 16-1029

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                               Oct 05, 2016
UNITED STATES OF AMERICA,                               )
                                                                          DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
                                                               ON APPEAL FROM THE
              v.                                        )
                                                               UNITED STATES DISTRICT
                                                        )
                                                               COURT FOR THE EASTERN
ROLAND LEE ANDERSON,                                    )
                                                               DISTRICT OF MICHIGAN
                                                        )
       Defendant-Appellant.                             )
                                                        )



BEFORE: GRIFFIN, WHITE, and DONALD, Circuit Judges.

       GRIFFIN, Circuit Judge.

       This case presents a narrow question: whether defendant’s ten-year statutory maximum

sentence—a product of a Rule 11(c)(1)(C) plea agreement—was “based on” a sentencing range

that the United States Sentencing Commission has subsequently lowered so that the district court

could modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court held that it was

not and denied defendant’s motion to modify his sentence. We agree and therefore affirm.

                                               I.

       A grand jury indicted Roland Anderson with three counts of drug trafficking

(benzylpiperazine, ecstasy, and marijuana) and two counts of being a felon in possession of a

firearm.   Pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement,

Anderson pleaded guilty to one count of distribution of marijuana in violation of 21 U.S.C.
No. 16-1029
United States v. Anderson


§ 841(a)(1), and one count of being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g). In exchange, the government agreed to dismiss the remaining charges. Anderson

agreed that had he been convicted of the two other drug distribution charges, his Guidelines

range “would have been 188 to 235 months (with a statutory maximum term of imprisonment of

30 years).”

       The plea agreement discussed the parties’ stipulation as to Anderson’s Guidelines range:

“[t]here are no sentencing guideline disputes” and “defendant’s guideline range is 100-120

months, as set forth on the attached worksheets.” The worksheets reflect the parties’ calculations

that defendant’s total offense level was 24 and his criminal history category was IV (but then

adjusted upward to VI because he was a career offender). Importantly, the worksheets show the

parties agreed defendant’s felon in possession count generated the higher of the offense levels

between the two counts: 26 for that count as compared to 18 for the marijuana distribution

count. The parties grouped the two counts together for a combined adjusted offense level of 27

and applied a three-point adjustment for acceptance of responsibility, resulting in a total offense

level of 24. The sentencing table produced a 100-to-125 months Guidelines range, and the upper

bound was reduced to 120 months as both counts had 120-month statutory maximums.

       While the plea agreement acknowledged that the district court would “impose a sentence

pursuant to 18 U.S.C. § 3553, and in so doing must consider the sentencing guideline range,” it

expressly stated the parties agreed to a specified term of imprisonment—the statutory maximum

of 120 months:

       However, pursuant to this plea agreement between the government and
       defendant, the parties specifically request that the Court impose a sentence of
       120 months (10 years), the statutory maximum. . . . Pursuant to Federal Rule
       of Criminal Procedure 11(c)(1)(C) the parties agree that a sentence of one
       hundred twenty months (10 years) is an appropriate disposition of this case and

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       that the Court can and should sentence the defendant at the top of the [agreed
       upon] advisory guideline range . . . and sentence the defendant to the statutory
       maximum term of imprisonment of 120 months (10 years).

       At sentencing, the district court considered the probation officer’s presentence report,

which calculated Anderson’s total offense level differently. Specifically, the probation officer

found that the parties under-calculated defendant’s attributable drug quantities under U.S.S.G.

§ 2D1.1(c)(7), which upon correction resulted in a base offense level for his marijuana

distribution count of 26 (not 18 as calculated by the parties). She also concluded Anderson’s

felon in possession count embodied conduct treatable as a specific offense characteristic to his

marijuana distribution count under U.S.S.G. § 3D1.2(c), thus adding two levels and resulting in

an adjusted offense level of 28. Upon application of a three-point reduction for acceptance of

responsibility, the probation officer concluded defendant’s total offense level was 25. This

resulted in the higher Guidelines range of 110-to-137 months (again, capped at the 120-month

statutory maximum). The district court accepted the probation officer’s report without change

and without objection.      It then followed the plea agreement and sentenced defendant to

120 months’ imprisonment.

       Following the Sentencing Commission’s subsequent reduction of U.S.S.G. § 2D1.1’s

drug quantity table with Amendment 782, Anderson moved to reduce his sentence pursuant to

18 U.S.C. § 3582.     The district court denied the motion, reasoning the plea agreement

unambiguously required a 120-month sentence:

       [T]he Rule 11 Agreement is not ambiguous. I think it’s very, very clear. . . . It
       was an agreement between the parties, and the parties knew and certainly could
       contemplate that if he didn’t [enter into a plea agreement] and went to trial, or
       didn’t agree that it was going to be a substantially larger guideline range[,] . . .
       the question is whether or not he’s bound by the Rule 11 and the 10-year
       minimum mandatory. I think he is. I think that was the agreement, that was what
       was contemplated, that was the plea arrangement that he accepted and that the

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          Government offered. And for those reasons, the Court believes that it should be
          the 10 years and, therefore, the Court will deny the motion.

Defendant appeals, arguing his sentence was “based on a sentencing range that has subsequently

been lowered by the Sentencing Commission” under 18 U.S.C. § 3582(c)(2), and therefore he is

eligible for a reduction in his sentence.

                                                  II.

          18 U.S.C. § 3582(c)(2) provides a district court with limited authority to reduce a

prisoner’s sentence:

          The court may not modify a term of imprisonment once it has been imposed
          except that . . . 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.

Although we ordinarily review a district court’s denial of a § 3582(c)(2) motion for abuse of

discretion, when a district court, as here, concludes it “‘lacks the authority to reduce a

defendant’s sentence under the statute,’ our review is de novo.” United States v. McNeese, 819

F.3d 922, 925 (6th Cir. 2016) (quoting United States v. Payton, 617 F.3d 911, 912–13 (6th Cir.

2012)).

                                                 III.

          We have held that Justice Sotomayor’s concurring opinion in Freeman v. United States,

564 U.S. 522, 534 (2011), “provid[es] the framework that governs the inquiry into whether a

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




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McNeese, 819 F.3d at 927 (collecting authorities).1 In Justice Sotomayor’s view, “whether a

particular term of imprisonment is ‘based on’ a Guidelines sentencing range” depends upon

“whether that range serves as the basis or foundation for the term of imprisonment.” 564 U.S. at

535 (Sotomayor, J., concurring). She stressed that sentencing pursuant to a Rule 11(c) plea

agreement is “different” from sentencing in the normal course—if the court accepts the plea

agreement, “the court may only impose the term of imprisonment the agreement calls for.” Id.

In this context, therefore, Justice Sotomayor concluded, “it is the binding plea agreement that is

the foundation for the term of imprisonment to which the defendant is sentenced. . . . The term

of imprisonment imposed by the sentencing judge is dictated by the terms of the agreement

entered into by the parties, not the judge’s Guidelines calculation.        In short, the term of

imprisonment imposed pursuant to a (C) agreement is, for purposes of § 3582(c)(2), ‘based on’

the agreement itself.” Id. at 535–36 (emphasis added).

       Under Justice Sotomayor’s controlling opinion, a prisoner is eligible for § 3582(c) relief

upon application of a “basic syllogism: if the sentence is based on a plea agreement, and the plea

agreement relies on a given sentencing range, then the sentence is based on that range.” United

States v. Garrett, 758 F.3d 749, 755 (6th Cir. 2014). “Put differently, the question is whether [a

defendant]’s original sentence would have been different had the guideline, as amended, been in


       1
         There is a developing circuit split on whether Justice Sotomayor’s concurring opinion is
controlling under Marks v. United States, 430 U.S. 188 (1977). Most recently, for example, the
Ninth Circuit agreed with the D.C. Circuit’s opinion in United States v. Epps, 707 F.3d 337
(D.C. Cir. 2013), and held that there is no binding opinion in Freeman. See United States v.
Davis, 825 F.3d 1014, 1022–26 & n.11 (9th Cir. 2016) (en banc) (distinguishing cases from other
circuits, including our own in United States v. Smith, 658 F.3d 608 (6th Cir. 2011)). Here, the
parties agree Justice Sotomayor’s concurring opinion governs, and even if they did not, it is well-
established that a panel of this court may not overrule a prior published decision absent en banc
review or an intervening and binding change in the state of the law. See Bennett v. MIS Corp.,
607 F.3d 1076, 1095 (6th Cir. 2010).
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place at the time he was originally sentenced.” Id. at 754. Justice Sotomayor’s concurrence

provides two scenarios in which this is true.

       First, if the agreement “call[s] for the defendant to be sentenced within a particular

Guidelines sentencing range, . . . the district court’s acceptance of the agreement obligates the

court to sentence the defendant accordingly, and there can be no doubt that the term of

imprisonment the court imposes is ‘based on’ the agreed-upon sentencing range within the

meaning of § 3582(c)(2).” Freeman, 564 S. Ct. at 538 (Sotomayor, J., concurring). Second, “a

plea agreement might provide for a specific term of imprisonment—such as a number of

months—but also make clear that the basis for the specified term is a Guidelines sentencing

range applicable to the offense to which the defendant pleaded guilty. As long as that sentencing

range is evident from the agreement itself, for purposes of § 3582(c)(2) the term of imprisonment

imposed by the court in accordance with that agreement is ‘based on’ that range.” Id. at 539.

       Given that his plea agreement called not for a sentence within a particular range, but

rather for a specified term, Anderson contains his argument to Justice Sotomayor’s second

scenario. He notes, for example, that “the text of the agreement itself and the attached guidelines

worksheet make clear that the parties calculated an applicable range of 100 to 120 months, based

on [the drug quantity table in] § 2D1.1, and anticipated that Anderson would be sentenced within

that range to 120 months.” Anderson thus concludes this case is analogous to our decision in

Smith, where the parties also attached a Guidelines worksheet reflecting the parties’ Guidelines

agreement (168 to 210 months), and stipulated to a specific term of imprisonment within those

Guidelines (180 months). 658 F.3d at 610. Under those circumstances, we had

       little hesitation in concluding that the plea agreement in this case is ‘based on’ the
       Sentencing Guidelines. . . . It is doubtful that the parties selected 180 months
       based on some intuitive sense that this term of imprisonment would be an

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        appropriate disposition of the case. Rather, a more reasonable assessment is that
        this sentence, which is slightly above the bottom of the range, represent[ed] a
        trade-off between Smith’s minor criminal history and the seriousness of the drug
        trafficking conspiracy, with the nature of the offense receiving more weight in the
        parties’ agreement.

Id. at 613.

        The government contends Smith is distinguishable. For one, “a plea agreement must

‘make clear’ that the basis for the specified term is the referenced Guidelines sentencing range.”

McNeese, 819 F.3d at 929 (quoting Freeman, 564 U.S. at 539 (Sotomayor, J., concurring))

(brackets omitted). Put differently, there must be a connection between the Guidelines range and

the sentence: “a defendant’s sentence is ‘based on’ a guideline range only when that guideline

range is explicitly referenced in a plea agreement and expressly relied upon to determine a

defendant’s sentence.” United States v. Riley, 726 F.3d 756, 760 (6th Cir. 2013) (emphasis

added). Whether Anderson has established such a link is debatable. After all, a statutory

maximum remains the same even if Amendment 782 reduces the upper bound of a Guidelines

range. Moreover, the mere reference to a Guidelines range in a plea agreement is never enough

to qualify for a reduced sentence as we expect the government and a defendant to negotiate plea

agreements “in the shadow of the sentencing scheme.” Freeman, 564 U.S. at 537 (Sotomayor,

J., concurring). And one of our sister circuits has expressly rejected such a link. See United

States v. Sylvester, 510 F. App’x 137, 144–46 (3d Cir. 2013); see also United States v. Bogdan,

— F.3d —, No. 15-2990, 2016 WL 4524494, at *3 (8th Cir. Aug. 30, 2016) (stating in dicta that

“[t]he more logical interpretation would be that the (C) agreement was based on the mandatory

minimum, not on a guidelines range”). But we need not answer this debate as the facts dictate a

more narrow outcome.



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       Justice Sotomayor’s controlling opinion mandates that courts focus on the language of

the plea agreement to determine a defendant’s eligibility for a sentence modification: “When a

(C) agreement explicitly employs a particular Guidelines sentencing range to establish the term

of imprisonment, the agreement itself demonstrates the parties’ intent that the imposed term of

imprisonment will be based on that range, as required for sentence reduction under the statute.”

Freeman, 564 U.S. at 540 (Sotomayor, J., concurring). Even assuming the parties’ agreement as

to the maximum statutory sentence could be construed as being “based on” a Guidelines

sentencing range, the plea agreement here “makes clear” the agreed upon sentence was based

upon defendant’s firearm conviction, not his marijuana distribution conviction. The worksheets

incorporated into the plea agreement reflect the parties’ conclusion that Anderson’s highest

offense level conviction—and thus the one driving his combined adjusted offense level of 27 and

total offense level of 24—was his felon in possession conviction. Stated in the converse, the

worksheets incorporated into Anderson’s plea agreement shows § 2D1.1’s drug quantity table

played no role in the parties’ Guidelines calculations. Given that Anderson’s plea agreement

“makes clear” that his agreed-upon sentence was “based on” a sentencing range that has not been

subsequently lowered by the Sentencing Commission, the district court correctly determined it

could not modify Anderson’s sentence. See, e.g., Riley, 726 F.3d at 760–61.

                                                IV.

       For these reasons, we affirm the district court.




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