                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3823
                         ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Calvin Tyrone Bailey, Jr.

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: January 11, 2016
                               Filed: April 11, 2016
                                    [Published]
                                  ____________

Before MURPHY, SMITH, and BENTON, Circuit Judges.
                           ____________

PER CURIAM.

       Calvin Bailey, Jr. was charged with conspiring to possess with intent to
distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846.
Bailey entered a guilty plea pursuant to a plea agreement under Rule 11(c)(1)(C) of
the Federal Rules of Criminal Procedure, which the district court1 accepted.
Subsequently, the United States Sentencing Commission reduced the drug quantity
base offense levels by two. Seeking this two-level reduction, Bailey moved for a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). The district court denied
Bailey's motion. We affirm.

                                    I. Background
       Bailey was charged in a one-count indictment, along with nine other
individuals, with conspiring to possess with intent to distribute more than 50 grams
of cocaine base. After several of Bailey's codefendants pleaded guilty, Bailey entered
a guilty plea pursuant to a Rule 11(c)(1)(C) plea agreement. In agreeing to a sentence
of 96 months' imprisonment, the parties stipulated the following:

      A. The parties agree that the base offense level is 16 pursuant to
      U.S.S.G. § 2D1.1(c)([12]).

      B. The parties agree that the amount of controlled substance is between
      2.8 grams but less than 5.6 grams of cocaine base.

      C. The defendant is eligible for a 2 point reduction for acceptance of
      responsibility unless the defendant takes any action between the entry of
      the guilty plea and imposition of the sentence that is inconsistent with
      acceptance of responsibility. If the offense level is 16 or greater, the
      determination of whether the defendant is eligible for a third point
      reduction for acceptance of responsibility will be made by the United
      States at the time of sentencing.

      D. The parties stipulate that no other enhancements or reductions under
      Section 2D1.1 or Chapter 3 of the Guidelines apply.




      1
       The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.

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      E. The defendant agrees and stipulates that he specifically waives any
      and all challenges to the searches, seizures, arrests and statements that
      have taken place as of the date of the execution of this plea agreement by
      the defendant in this investigation by any entity, and in any forum where
      the offense may be pursued and/or forfeiture may be sought.

       The district court reviewed the terms of the plea agreement with Bailey and
made sure that Bailey understood them. By working out a Rule 11(c)(1)(C) plea
agreement, Bailey reduced his term of imprisonment by approximately six years.2 The
district court accepted the plea agreement.

       In response to the congressional directive in 28 U.S.C. § 994(g),3 the United
States Sentencing Commission adopted Amendment 782. The amendment reduced by
two the offense levels in the drug quantity tables at U.S.S.G. §§ 2D1.1 and 2D1.11.
The Sentencing Commission recognized that Amendment 782 would have far-
reaching effects. It estimated that 46,000 offenders could potentially benefit from
retroactive application of the amendment, and it calculated that the average sentence
would be reduced by approximately 18 percent. See U.S.S.G. supp. to app. C amend.
782 at 87 (U.S. Sentencing Comm'n 2014). Shortly after Amendment 782 went into
effect, Bailey filed a pro se motion for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2). The district court denied the motion, concluding that Bailey's sentence


      2
        At the time that the parties entered the plea agreement, the presentence
investigation report (PSIR) was not complete. Once completed, it calculated Bailey's
Guidelines range as 168 to 210 months' imprisonment based on an offense level of 30.
As a career offender, Bailey's offense level was 32. The Guidelines provide for a two-
level reduction of the offense level for acceptance of responsibility.
      3
       In promulgating guidelines, "[t]he [United States Sentencing]
Commission . . . shall take into account the nature and capacity of the penal,
correctional, and other facilities and services available . . . . The sentencing
guidelines . . . shall be formulated to minimize the likelihood that the Federal prison
population will exceed the capacity of the Federal prisons . . . ." 28 U.S.C. § 994(g).

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was not based on the Guidelines. Because Bailey's plea agreement did not expressly
use a Guidelines sentencing range for the offense, the district court held that his term
of imprisonment was not based on a sentencing range that the Sentencing Commission
had lowered.

                                     II. Discussion
       On appeal, Bailey argues that the district court erred because his "plea
agreement is explicitly based, in part, on a Guidelines provision that was subsequently
lowered by Amendment 782." We review de novo a district court's legal conclusion
that a sentence is ineligible for modification under 18 U.S.C. § 3582(c)(2). United
States v. Scurlark, 560 F.3d 839, 841 (8th Cir. 2009).

       Where a defendant's "term of imprisonment [is] based on a sentencing range
that has subsequently been lowered by the Sentencing Commission . . . , the court may
reduce the term of imprisonment." 18 U.S.C. § 3582(c)(2). Because the Sentencing
Commission lowered the Guidelines range for cocaine base offenses, Bailey would
be eligible for a sentence reduction if his sentence were "based on" the Guidelines.
Bailey's sentence, however, is not derived expressly from a Guidelines calculation but
results from negotiated exchanges intended to avoid the full brunt of a career-offender
enhancement.

       In Freeman v. United States, 131 S. Ct. 2685 (2011), the Supreme Court
addressed whether a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement
can be reduced under 18 U.S.C. § 3582(c)(2). Justice Sotomayor's concurring opinion
in Freeman is controlling. See United States v. Browne, 698 F.3d 1042, 1045 (8th Cir.
2012) ("It is Justice Sotomayor's concurring opinion in Freeman that is controlling
and represents the holding of the Court"); United States v. Thompson, 682 F.3d 285,
290 (3rd Cir. 2012) ("We therefore conclude, as has every other circuit to consider the
question, that, because Justice Sotomayor's opinion [in Freeman] is narrower than
Justice Kennedy's, it expresses the holding of the Court." (citations omitted)); cf.

                                          -4-
Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (holding of the Court is the position
taken by member who concurs in the judgment on the narrowest grounds).

      In Freeman, Justice Sotomayor concluded that

      if a [Rule 11(c)(1)](C) agreement expressly uses a Guidelines sentencing
      range applicable to the charged offense to establish the term of
      imprisonment, and that range is subsequently lowered by the United
      States Sentencing Commission, the term of imprisonment is "based on"
      the range employed and the defendant is eligible for sentence reduction
      under § 3582(c)(2).

131 S. Ct. at 2695 (Sotomayor, J., concurring). A sentence is "based on" a Guidelines
range if "that range serves as the basis or foundation for the [sentence]." Id. Strictly
speaking, the plea agreement itself is the foundation for a sentence in the Rule
11(c)(1)(C) context. Id. at 2696. Yet, a sentence imposed pursuant to such an
agreement may still be reduced under § 3582(c)(2) where the agreement (1) "call[s]
for the defendant to be sentenced within a particular Guidelines sentencing range," or
(2) provides for a specific term of imprisonment and "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." Id. at 2697. If the plea agreement "does not indicate the
parties' intent to base the term of imprisonment on a particular Guidelines range
subsequently lowered by the [Sentencing] Commission, then § 3582(c)(2) simply does
not apply." Id. at 2698 n.5.

       The language of Bailey's plea agreement determines the applicability of
§ 3582(c)(2). Bailey's plea agreement stipulates that the base offense level is 16
pursuant to U.S.S.G. § 2D1.1(c)(12); the amount of cocaine base is between 2.8 grams
but less than 5.6 grams; Bailey is eligible for a two-level reduction for acceptance of
responsibility; and no other enhancements or reductions under § 2D1.1 or Chapter 3



                                          -5-
of the Guidelines apply. The parties then agreed to a sentence of 96 months'
imprisonment.

       This plea agreement clearly fails to fit the first category of cases that Justice
Sotomayor determined are "based on" the Guidelines—the plea agreement does not
expressly use a particular Guidelines sentencing range. Looking to the second
category, Bailey's plea agreement also comes up short, though the distance is less. The
agreement sets forth a specific term of 96 months' imprisonment. The agreement
stipulates that the base offense level is 16 and that Bailey is eligible for a two-level
reduction for acceptance of responsibility. Because the PSIR had not been completed
at the time the parties entered into the plea agreement, Bailey's criminal history
category and career-offender status remained undetermined. Bailey, however,
anticipated a criminal history category of VI. Under the Guidelines, an offense level
of 14 and criminal history category of VI yields a sentencing range of 37 to 46
months' imprisonment. But, if Bailey were a career offender, as the government
anticipated and as the PSIR later determined, his base offense level would be 32.
Taking into account the two-level reduction for acceptance of responsibility, Bailey's
offense level would be 30, with a Guidelines range of 168 to 210 months'
imprisonment.

       The language of the plea agreement does not "make clear" how the 96-month
sentence was calculated or ultimately chosen. The 96-month sentence does not fall
within the lower Guidelines range that the stipulated facts would yield. Nor does it fall
within the higher Guidelines range under which Bailey would be sentenced as a career
offender. As Bailey acknowledges, the plea agreement indicates that it was the product
of a negotiation between two potentially applicable ranges: a higher range as a career
offender (168 to 210 months) and the explicitly referenced lower range (37 to 46
months). The plea agreement reflects the reality that "plea bargaining necessarily
occurs in the shadow of the sentencing scheme to which the defendant would
otherwise be subject." See Freeman, 131 S. Ct. at 2697 (Sotomayor, J., concurring).

                                          -6-
It does not, however, "make clear that the basis for the specified term is a Guidelines
sentencing range applicable to the offense to which the defendant pleaded guilty." See
id. (emphasis added). Applying Freeman, we conclude that Bailey is not entitled to
a sentence reduction under Amendment 782.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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