 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 11, 2012             Decided February 12, 2013

                         No. 11-3002

                UNITED STATES OF AMERICA,
                        APPELLEE

                               v.

                RICARDO EUGENE EPPS,
      ALSO KNOWN AS MAN, ALSO KNOWN AS FAT MAN,
                     APPELLANT


         Appeal from the United States District Court
                 for the District of Columbia
                    (No. 1:99-cr-00175-1)


       Mary Manning Petras, Assistant Federal Public
Defender, argued the cause for appellant. With her on the briefs
was A.J. Kramer, Federal Public Defender.

        Bernard J. Apperson III, Assistant U.S. Attorney, argued
the cause for appellee. On the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Roy W. McLeese III, James S. Sweeney, and
Elizabeth H. Danello, Assistant U.S. Attorneys. Sarah Chasson
and Elizabeth Trosman, Assistant U.S. Attorneys, entered
appearances.

      Before: ROGERS and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
                                2

       Opinion for the Court by Circuit Judge ROGERS and
Senior Circuit Judge WILLIAMS.

       Dissenting opinion by Circuit Judge BROWN.

         ROGERS, Circuit Judge and WILLIAMS, Senior Circuit
Judge: In Freeman v. United States, 131 S. Ct. 2685 (2011), the
Supreme Court held that the district court is not categorically
barred from reducing a defendant’s sentence under 18 U.S.C.
§ 3582(c)(2) where the defendant entered into a plea agreement
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).
The decision was splintered, however, with the plurality and
concurring opinions adopting different reasoning. Prior to
Freeman, the district court denied Ricardo Epps’ § 3582(c)(2)
motion for a reduction of his Rule 11(c)(1)(C) sentence. United
States v. Epps, 756 F. Supp. 2d 88 (D.D.C. 2010). Epps appeals,
contending that there is no controlling opinion in Freeman and
that because the district court (as well as the Rule 11(c)(1)(C)
agreement) relied upon the crack-cocaine Guidelines range
when determining whether to accept the stipulated sentence, his
sentence was imposed “based on” the Guidelines range and the
district court was authorized under § 3582(c)(2) to reconsider
and reduce his sentence in light of the Sentencing Commission’s
reduction of the sentencing range applicable to him. For the
following reasons, we reverse and remand the case to the district
court.

                                I.

        On October 29, 1999, Epps was sentenced to 188
months’ imprisonment for violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(iii), and 846 and, in view of the quantity of illegal
drugs for which he was responsible, to five years’ supervised
release, see id. § 841(b)(1)(A)(viii). Epps had entered a Rule
                                 3

11(c)(1)(C) plea agreement.1 The district court accepted Epps’
plea, ordered a presentence investigation, and stated that it
would determine whether to accept the stipulated 188 month
sentence upon reviewing the presentence report. Tr. Aug. 6,
1999 at 11–12.

         At the sentencing hearing, upon reviewing the
presentence report, the district court recalculated the Guidelines
sentencing range applicable to Epps. Tr. Oct. 29, 1999 at 12–13.
 Rejecting a two-level addition to the base level offense for
possession of a firearm, the district court calculated the offense
level at 35. Id. With a criminal history category of III, Epps’
Guidelines sentencing range was 210 to 260 months. The
prosecutor joined defense counsel in seeking a downward
departure from the Guidelines range to 188 months, explaining
their agreement to that term was a way to avoid the need to
litigate disputes regarding the Guidelines calculations. Id. at
6–8. The district court agreed to depart from the Guidelines
range and sentenced Epps to 188 months’ imprisonment. Id. at
14. At the time, the district court expressed concern about the
disparity between the Guidelines sentencing range for crack and
powder cocaine offenses, noting that Epps’ sentence would have



        1
            Rule 11(c)(1)(C) provides that, if the parties reach
agreement on a plea, the plea agreement may specify that an attorney
for the government will:

        agree that a specific sentence or sentencing range is the
        appropriate disposition of the case, or that a particular
        provision of the Sentencing Guidelines, or policy statement,
        or sentencing factor does or does not apply (such a
        recommendation or request binds the court once the court
        accepts the plea agreement).

FED. R. CRIM. P. 11(c)(1)(C) (emphasis added).
                                 4

been “substantially less” if his offense had involved powder
rather than crack cocaine. See id. at 11, 14.

        On October 16, 2008, Epps filed a motion to reduce his
sentence pursuant to 18 U.S.C. § 3582(c)(2)2 in light of the
Sentencing Commission’s amendments to the crack cocaine
Guidelines in November 2007 and March 2008, see U.S.S.G.
(2011), Supp. to App. C, Amend. 706, 711, which the
Commission in 2008 made retroactive, id. at Amend. 713, 716.
Applying the amendments would reduce Epps’ offense level to
33 and the applicable Guidelines sentencing range to 168 to 210
months. The government opposed the motion on the ground that
Epps’ sentence was based on the 188 months stipulated in his
Rule 11(c)(1)(C) plea agreement, not on the Guidelines range
that was applicable to him. Epps responded that because his
sentence and the stipulated range were calculated in relation to,
and therefore “based on,” a Guidelines range that was
subsequently reduced, § 3582(c)(2) authorized the district court
to reduce his sentence. The district court denied Epps’ motion.
See Epps, 756 F. Supp. 2d at 89. Epps appealed on January 4,
2011; on January 11, 2011, this court held his appeal in


       2
           Section 3582(c)(2) provides:

       [I]n 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.

18 U.S.C. § 3582(c)(2) (emphasis added).
                                  5

abeyance pending the Supreme Court’s decision in Freeman,
where the stated question was “whether a defendant is ineligible
for a sentence reduction under 18 U.S.C. § 3582(c)(2) solely
because the district court accepted a Rule 11(c)(1)(C) plea
agreement.” Pet. for Writ of Cert., Freeman, 131 S. Ct. 2685
(No. 09-10245).

                                  II.

        As a threshold matter, the government maintains, on
three grounds, that this court lacks jurisdiction now that Epps
has completed his period of imprisonment and commenced his
five-year term of supervisory release that is mandatory.3 Epps
responds that his appeal is not moot because its resolution could
affect his term of supervised release in view of 18 U.S.C.
§ 3583(e)(1), which provides that a district court “may . . .
terminate a term of supervised release and discharge the
defendant released at any time after the expiration of one year of
supervised release . . . if it is satisfied that such action is
warranted by the conduct of the defendant released and the
interest of justice.” We conclude, notwithstanding Epps’ release
from incarceration while his appeal was pending and the
commencement of his term of supervised release, that we have
jurisdiction.

         1. Because 21 U.S.C. § 841(b)(1)(A) mandates five
years’ supervised release, the government maintains there is no
relief this court could order, even if it agrees with the merits of
Epps’ motion, because the district court “has no authority to
reduce [Epps’] term of supervised release.” Appellee’s Supp.
Br. at 7.


        3
           On October 11, 2012, upon determining that Epps had been
released by the Bureau of Prisons on May 11, 2012, the court ordered
the parties to file supplemental briefs on whether this appeal is moot.
                                6

        Before § 841 was amended in 2002, the circuits were
split on the relationship between two provisions prescribing the
terms of supervised release for overlapping categories of
felonies. In 18 U.S.C. § 3583(b)(2), Congress stated that
“[e]xcept as otherwise provided, the authorized terms of
supervised release are . . . for a Class C or Class D felony, not
more than three years.” But in 21 U.S.C. § 841(b)(1)(A)(1994),
which applied to Epps at the time of his Rule 11(c)(1)(C) plea
agreement, Congress described the appropriate term of
supervised release as follows: “Any sentence under this
subparagraph shall . . . impose a term of supervised release of at
least 5 years in addition to such term of imprisonment.” This
led courts to take conflicting views on which statutory provision
prevailed when both were applicable to a defendant being
sentenced. Compare, e.g., United States v. Kelly, 974 F.2d 22,
24 (5th Cir. 1992) (three years is the maximum term), with
United States v. Garcia, 112 F.3d 395, 397–98 (9th Cir. 1997)
(term of supervised release can be greater than three years). In
2002, Congress resolved the uncertainty between § 3583's
ceiling and § 841's floor in favor of § 841, rendering
§ 841(b)(1)(A) to read: “Notwithstanding section 3583 of Title
18, any sentence under this subparagraph shall . . . impose a
term of supervised release of at least 5 years in addition to such
term of imprisonment.” Id. (emphasis added). In United States
v. Johnson, 331 F.3d 962, 967 n.4 (D.C. Cir. 2003), this court
noted both the circuit split and that after the 2002 amendment
the term of supervised release for a § 841 conviction can exceed
three years, see also H. R. CONF. REP. NO. 107-685, at 188–89
(2002).

        The government’s position that Congress’s clarification
of the § 3583/§ 841 conflict removed the district court’s
discretion in determining the length of Epps’ term of supervised
release assumes (without discussion) that the 2002 amendment
to § 841 was retroactive. Yet “the presumption against
                                     7

retroactive legislation is deeply rooted in our jurisprudence, and
embodies a legal doctrine centuries older than our Republic.”
Landgraf v. USI Film Products, 511 U.S. 244, 265 (1994).
Indeed, the Court recently reiterated its commitment to the
“deeply rooted presumption against retroactive legislation” in
Vartelas v. Holder, 132 S. Ct. 1479, 1484 (2012). In Justice
Story’s classic formulation, an act is impermissibly retroactive
“when such application would . . . ‘attac[h] a new disability, in
respect to transactions or considerations already past.’” Id. at
1486–87 (quoting Soc’y for Propagation of Gospel v. Wheeler,
22 F. Cas. 756, 767 (1814)). Although deriving from
constitutional principles including the Ex Post Facto Clause, the
Contract Clause, and the Due Process Clause of the Fifth
Amendment, see id. at 1486, the operative principle is one of
interpretation: where the statutory text is ambiguous courts
presume that Congress did not intend retroactive application in
the sense defined by Justice Story, see Landgraf, 511 U.S. at
280.

        The § 3583/§ 841 clash was unresolved in this circuit at
the time of the 2002 amendment to § 841. The Supreme Court,
however, as it noted in Vartelas, had applied the principle
against retroactivity in INS v. St. Cyr, 533 U.S. 289 (2001), to
justify a prospective-only interpretation of a statute that
replaced a discretionary decision with an automatic negative.4

         4
            In St. Cyr, a lawful permanent resident had pleaded guilty
to a criminal charge that made him deportable. Under the immigration
law then in effect, he would have been eligible to apply for a waiver
of deportation, but his removal proceeding commenced after Congress
withdrew such dispensation. 533 U.S. at 292. The Supreme Court
held that disallowance of discretionary waivers “attaches a new
disability, in respect to transactions or considerations already past,” id.
at 321 (internal quotation marks omitted), observing that aliens
“almost certainly relied upon th[e] likelihood [of receiving
discretionary relief] in deciding [to] forgo their right to a trial,” id. at
                                  8

132 S. Ct. at 1491–92. Here too, by resolving the conflict
between discretion under § 3583 and its absence under § 841,
and uncertainty in this circuit as to which controlled, Congress
in 2002 “attac[hed] a new disability in respect to transactions or
considerations already past.” The 2002 amendment should
accordingly be interpreted as prospective only.

        In Johnson, 331 F.3d at 967 n.4, this court did not wade
into the circuit split to harmonize the apparent conflict between
the statutes before 2002, nor has it subsequently done so; we
need not do so now. The government’s reliance on United
States v. Lafayette, 585 F.3d 435 (D.C. Cir. 2009), for the
proposition that this court has already decided that the five-year
term of supervised release is mandatory is misplaced. Although
Lafayette was sentenced and resentenced under § 841 prior to
the 2002 amendment, the court neither addressed the
problematic retroactivity questions with respect to the
appropriate term of supervised release nor acknowledged the
circuit split; the parties’ briefs did not refer to the split. See
Brief of Appellant, United States v. Lafayette, 2008 WL
6742228 (focusing on “the inaccurate and unlawful calculation”
of defendant’s prison sentence as leading to erroneous term of
supervised release); Brief of Appellee, United States v.
Lafayette, 2009 WL 2633676 (focusing on distinction between
supervised release term and imprisonment term). Here, as in
Lafayette, the issue of resolving the pre-2002 amendment circuit
split regarding the proper interpretation of § 841 and its
relationship to § 3583 has not been briefed, and the question can
be determined by the district court when it addresses Epps’
pending § 3583 motion, see Appellant’s Supp. Br. at 2–3, or
some successor motion. The point is simply that the 2002


325. Because applying the withdrawal of waiver would have “obvious
and severe retroactive effect” and Congress had not made its intention
clear, the Court held the amendment applied prospectively only. Id.
at 325–26 & n.55.
                                 9

amendment’s prospective application means that reduction of
Epps’ term of imprisonment would, as he maintains, enhance
his prospect for securing a similar reduction in his term of
supervised release because the district court’s discretion in
determining the length of his supervised release is unaffected by
the 2002 amendment. See U.S.S.G. § 1B1.10.

        2. Under 18 U.S.C. § 3583(e)(1), “[t]he district court
may . . . terminate a term of supervised release and discharge
the defendant released at any time after the expiration one year
of supervised release.” The government notes that Epps has yet
to complete one year of his supervised release term. Nothing
in the text of § 3583(e), however, prevents a defendant from
moving for a § 3583(e)(1) termination prior to the completion
of his first year. Indeed, the provision is ambiguous as to
whether it limits when the district court might act on that
motion; it requires only that the effect of any termination begin
“after the expiration [of] one year of supervised release.” 18
U.S.C. § 3583(e)(1).

        Additionally, 18 U.S.C. § 3583(e)(2) provides an avenue
by which the district court “may modify, reduce, or enlarge the
conditions of supervised release, at any time prior to the
expiration or termination of the term of supervised release.” Id.
(emphasis added). While Epps has moved for a § 3583(e)(1)
termination, see Appellant’s Supp. Br. at 2, nothing prevents
him from moving, in the alternative, for a reduction pursuant to
§ 3583(e)(2). The only temporal restriction associated there is
that the judicial action must occur, logically, prior to the term’s
termination or expiration. Epps is obviously within that term.

       3. In our unpublished opinion in United States v. Bundy,
391 F. App’x 886 (D.C. Cir. 2010), the court stated, as the
government notes, that the prospect of reduction of the
defendant’s term of supervised release “is so speculative that
any decision on the merits [of his claim to a reduced prison
                               10

term] would be merely advisory and not in keeping with Article
III’s restriction of power to live cases or controversies.” Id. at
887 (citing Burkey v. Marberry, 556 F.3d 142, 149 (3d Cir.
2009)) (internal quotation marks omitted). Bundy is not binding
here. “Although our circuit does not have a local rule directly
on point, . . . unpublished dispositions should not strictly bind
panels of the court . . . [and] do not constrain a panel of the
court from reaching a contrary conclusion in published opinion
after full consideration of the issue.” In re Grant, 635 F.3d
1227, 1232 (D.C. Cir. 2011).

        More substantively, that Epps over-served his sentence
— as we must assume for jurisdictional arguments, see Am.
Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) —
is of paramount importance to whether he should continue
under supervised release for five years. In Bundy the court
relied on Burkey for the proposition that challenges such as
Epps’ are necessarily moot upon a defendant’s release from
prison. Burkey, in turn, purports to apply Supreme Court
precedents on the extent to which courts will presume
“collateral consequences” in comparable cases. The cases
considered in Burkey are not comparable. In Sibron v. New
York, 392 U.S. 40 (1968), the (alternative) holding was that a
defendant’s challenge to his conviction is not mooted by his
release; the prospect that the conviction would have “collateral
consequences,” such as impeachment of his character in a later
criminal trial, was sufficient. Id. at 54–56. En route to this
conclusion the Court summarized Pollard v. United States, 352
U.S. 354 (1957), as a case where “the Court abandoned all
inquiry into the actual existence of specific collateral
consequences and in effect presumed that they existed.” Sibron,
392 U.S. at 55. Then, in Lane v. Williams, 455 U.S. 624 (1982),
the Court declined to apply Sibron in a case where the
defendant challenged imposition of a mandatory parole term (on
the ground that he had not been warned of this consequence of
pleading guilty) that had expired by the time of the district
                               11

court’s final ruling. Finding no generally applicable legal
consequences from the expired parole term, the Court held the
case was moot, although it observed that if the defendant had
challenged the guilty plea itself, release from the parole would
not have mooted the case. Id. at 633. Similarly, in Spencer v.
Kemna, 523 U.S. 1 (1998), where the defendant challenged
parole revocation and was released from the renewed
incarceration (his term of imprisonment having expired) before
the district court ruled, the Court refused to presume collateral
consequences from the parole revocation (or, necessarily, from
its invalidation), and found the defendant’s attempted showing
of an actual likelihood of consequences too weak to support
justiciability. See id. at 985–86.

        Epps’ case does not fit precisely into either the Sibron
or the Lane-Spencer paradigm. Unlike in Sibron, Epps is not
challenging his conviction; he is merely claiming the benefit of
an opportunity to have his sentence retroactively reduced. But,
because his five-year term of supervised release is still
unserved, and because of the relationship between a prison
sentence and supervised release (notwithstanding United States
v. Johnson, 529 U.S. 53 (2000)), there seems to be a very
substantial likelihood that a ruling that Epps’ incarceration
should have been shorter would influence the district court’s
readiness to reduce his term of supervised release. Epps’
circumstances thus differ from those examined in Lane and in
Spencer.

        At least two courts of appeals clearly regard the
enhanced prospects for a reduced term of supervised release
under § 3583 as adequate to hold non-moot a released
prisoner’s claim to a lesser period of incarceration: the Second
Circuit in Levine v. Apker, 455 F.3d 71, 76–77 (2d Cir. 2006),
held that the prospect renders non-moot a released prisoner’s
challenge to a Bureau of Prisons regulation cutting off his
change of placement in a half-way house, while the Ninth
                                12

Circuit in Mujahid v. Daniels, 413 F.3d 991, 993–95 (9th Cir.
2005), viewed the prospect to render non-moot a prisoner’s
attack on the Bureau’s “good time” regulations. Similarly, the
Fourth Circuit held in Townes v. Jarvis, 577 F.3d 543, 546-49
& n.3 (4th Cir. 2009), relying on Levine and Mujahid, that a
prisoner’s challenge to a finding of parole ineligibility was not
moot due to the likelihood that a favorable ruling would yield
a reduction in ongoing parole. Against these cases, Burkey’s
assertion that “[w]here . . . the appellant is attacking a sentence
that has already been served, collateral consequences will not be
presumed, but must be proven,” 556 F.3d at 148, is overbroad
and suggests a failure to focus on the distinctive features of the
cases on which it relied.

        This court has not yet weighed in on the subject of
whether a defendant’s motion for a sentence reduction under
§ 3582(c)(2) is rendered moot upon completion of his term of
imprisonment (beyond our unpublished treatment in Bundy), but
the logic of Levine and Mujahid seems far more persuasive than
that of Burkey. Our conclusion that Epps is eligible for a
reduced sentence under § 3582(c)(2), if it led to an actual
sentence reduction, would necessarily inform the district court’s
evaluation of a motion for termination or reduction of his term
of supervised release under § 3583(e)(1) or (e)(2). We note the
Supreme Court in Johnson identified relief under § 3583(e)(1)
or (e)(2) as potential means for addressing the injustice of a
prisoner’s being incarcerated beyond the proper expiration of
his prison term. 529 U.S. at 60.

        Our dissenting colleague argues that we “conflate[] two
separate issues: whether Epps should have been allowed to
pursue § 3582(c)(2) relief, and whether he actually spent too
much time in prison,” and that it is only “the latter that would
be relevant to a district court deciding whether to modify the
term of Epps’ supervised release.” Dissent Op. at 2. This is a
false distinction. Epps’ claim is not the almost metaphysical
                               13

issue of whether he has “spent too much time in prison.” He
claims instead that the sentence is excessive in the sense that,
but for the matter of timing, he would be legally entitled under
§ 3582(c)(2) to have the district court consider the application
to him of the Sentencing Commission’s decision to retroactively
reduce the crack-powder distinction. He is entitled to have that
question answered.

                              III.

         In Freeman v. United States, 131 S. Ct. 2685 (2011), the
Supreme Court addressed whether defendants sentenced in
accordance with a Rule 11(c)(1)(C) plea agreement may be
eligible for a reduction of sentence under § 3582(c)(2). A four
Justice plurality held that “the text and purpose of the three
relevant sources — the statute [i.e., the Sentencing Reform
Act], the Rule, and the governing policy statements — require
the conclusion that the district court has authority to entertain
§ 3582(c)(2) motions when sentences are imposed in light of the
Guidelines, even if the defendant enters into an 11(c)(1)(C)
agreement.” Id. at 2693 (Kennedy, J., joined by Ginsburg,
Breyer, and Kagan, JJ.). “In every case the judge must exercise
discretion to impose an appropriate sentence. This discretion,
in turn, is framed by the Guidelines.” Id. at 2960. Rejecting the
interpretation of the four Justices in dissent that a Rule
11(c)(1)(C) sentence is based only on the plea agreement and
not the Guidelines, see id. at 2701 (Roberts, C.J., joined by
Scalia, Thomas, and Alito, J.J., dissenting), the plurality
explained that concern about upsetting the bargain struck
between the defendant and the prosecutor “has nothing to do
with whether a sentence is ‘based on’ the Guidelines under
§ 3582(c)(2).” Id. at 2963. Further, such concern was
“overstated” because “[r]etroactive reductions to sentencing
ranges are infrequent, so the problem will not arise often,” and
“[m]ore important, the district court’s authority under
                                   14

§ 3582(c)(2) is subject to significant constraints, constraints that
can be enforced by appellate review.” Id.5

        Notably, the plurality veered from the approach adopted
by the concurring opinion of Justice Sotomayor — requiring
the plea agreement itself to contemplate sentence reduction —
on the ground that “[t]he statute . . . calls for an inquiry into
the reasons for a judge’s sentence, not the reasons that
motivated or informed the parties,” noting that “[t]he parties
cannot by contract upset an otherwise-final sentence.” Id. at


        5
           The plurality explained that “the governing policy statement
confirms that the [district] court’s acceptance [of the Rule 11(c)(1)(C)
plea agreement] is itself based on the Guidelines.” Freeman, 131 S.
Ct. at 2692. The commentary to § 6B1.2 instructs that the district
court may accept the plea “only if the court is satisfied either that such
sentence is an appropriate sentence within the applicable guideline
range or, if not, that the sentence departs from the applicable guideline
range for justifiable reasons.” Id. (quoting U.S.S.G. § 6B1.2
commentary). Allowing the district court under § 3582(c)(2) “to
revisit a prior sentence to whatever extent the sentencing range in
question was a relevant part of the analytic framework the judge used
to determine the sentence or to approve the agreement,” the plurality
concluded, “is the only rule consistent with the government policy
statement . . . that rests on the premise that a Guideline range may be
one of the many factors that determine the sentence imposed.” Id. at
2692-93. The plurality also found support for its approach in the
policy statement that applies to § 3582(c)(2) motions, which placed
“considerable limits on district court discretion,” id. at 2693: U.S.S.G.
§ 1B1.10 instructs that the district court may “modify[] a sentence to
substitute only the retroactive amendment,” Freeman, 131 S. Ct. at
2692 (quoting policy statement), thus “isolating whatever marginal
effect the since-rejected Guideline had on the defendant’s sentence,”
id. Also, under § 1B1.10(b)(2), below-Guidelines modifications are
forbidden in § 3582(c)(2) proceedings, except where the original
sentence was a downward departure. Id. at 2693; see also id. (citing
§ 1B1.10, comment n).
                                   15

2694. Discussing the concurrence’s approach, the plurality
emphasized that “the consequences of this erroneous rule would
be significant. By allowing modification only when the terms
of the agreement contemplate it, the proposed rule would permit
the very disparities the Sentencing Reform Act seeks to
eliminate.”6 Id. The plurality thus construed § 3582(c)(2) to
contribute to reducing sentencing disparities “by ensuring that
district courts may adjust sentences imposed pursuant to a range
that the Commission concludes are too severe, out of step with
the seriousness of the crime and the sentencing ranges of
analogous offenses, and inconsistent with the Act’s purposes.”
Id. It cited the crack-cocaine range as “a prime example of an
unwarranted disparity that § 3582(c)(2) is designed to cure.” Id.

        In sum, the plurality held that “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 2695. “Even where
the judge varies from the recommended range . . . if the judge
uses the sentencing range as the beginning point to explain the
decision to deviate from it, then the Guidelines are in a real
sense a basis for the sentence.”7 Id. at 2692.


        6
           The dissenting justices, like the plurality, concluded that
examination of the parties’ intent is largely irrelevant to the inquiry of
whether a Rule 11(c)(1)(C) agreement was “based on” the Guidelines
and “agree[d] with the plurality that the approach of the concurrence
to determining when a Rule 11(c)(1)(C) sentence may be reduced is
arbitrary and unworkable.” Freeman, 131 S. Ct. at 2700–01 (Roberts,
C. J., joined by Scalia, Thomas, Alito, JJ., dissenting).
        7
           Some circuit courts of appeals have concluded, because the
district court is required to use the Sentencing Guidelines as a baseline
for evaluating plea agreements, see Gall v. United States, 552 U.S. 38,
50–51 (2007); Rita v. United States, 551 U.S. 338, 348 (2007);
                                  16

       In contrast, the concurring opinion adopted a different
approach:

                [I]f 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 . . . the term of imprisonment is “based
                on” the range employed and the defendant is
                eligible for sentence reduction under
                § 3582(c)(2).

Freeman, 131 S. Ct. at 2695 (Sotomayor, J., concurring). This
is so because a term of imprisonment imposed pursuant to a
Rule 11(c)(1)(C) agreement is “‘based on’ the agreement itself,
not on the judge’s calculations of the Sentencing Guidelines.”
Id. Thus, the district court has jurisdiction to consider a
sentence reduction pursuant to § 3582(c)(2) only if the Rule
11(c)(1)(C) plea agreement either (1) explicitly “call[s] for the
defendant to be sentenced within a particular Guidelines 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 2697.

                               A.
       Due to the fragmented nature of the Supreme Court’s
holding in Freeman, it is not immediately obvious whether the
Court set a standard for evaluating whether sentences pursuant


U.S.S.G. § 6B1.2, that the logic of the plurality’s approach is “that a
district court can always grant § 3582(c)(2) relief to a defendant who
enters a Rule 11(c)(1)(C) plea agreement.” United States v. Brown,
653 F.3d 337, 339 (4th Cir. 2011); see also United States v. Rivera-
Martinez, 665 F.3d 344, 347 (1st Cir. 2011).
                                17

to Rule 11(c)(1)(C) agreements are eligible for § 3582(c)(2)
reductions that is controlling on lower courts, or, if it did, what
the precise contours of that standard are. In Marks v. United
States, 430 U.S. 188 (1977), the Supreme Court instructed:
“When a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices,
the holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the
narrowest grounds.” Id. at 193 (internal quotation omitted).
The Court has subsequently recognized that this seemingly-
simple rule is “more easily stated than applied,” noting that “the
Marks inquiry . . . has so obviously baffled and divided the
lower courts that have considered it” that it has created a
“degree of confusion” such that it is not always “useful to
pursue . . . to the utmost logical possibility.” Nichols v. United
States, 511 U.S. 738, 745–46 (1994); see also Grutter v.
Bollinger, 539 U.S. 306, 325 (2003). Parsing Freeman in light
of Marks is required to distill what impact that precedent has in
deciding Epps’ appeal.

        This court has interpreted Marks to mean that 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.”
King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)
(emphasis added). Stated differently, Marks applies when, for
example, “the concurrence posits a narrow test to which the
plurality must necessarily agree as a logical consequence of its
own, broader position.” Id. at 782 (emphasis added).

        In King, the en banc court addressed the question of
when counsel should receive a contingency enhancement under
a fee-shifting statute in addition to the “lodestar” award
computed by multiplying hours worked by a reasonable hourly
fee. Id. at 775. The court thus had to assess whether there was
sufficient common ground between the plurality opinion and the
                               18

concurring opinion in Pennsylvania v. Delaware Valley
Citizen’s Council for Clean Air, 483 U.S. 711 (1987)
(“Delaware Valley II”), to control its decision. See King, 950
F.2d at 775. In the splintered decision in Delaware Valley II,
the plurality concluded that contingency enhancements were
appropriate only in “exceptional cases.” 483 U.S. at 730
(White, J., joined by Rehnquist, C.J., Powell and Scalia, J.J.).
The concurring opinion, in contrast, concluded that “Congress
did not intend to foreclose consideration of contingency in
setting a reasonable fee,” agreeing with the dissent’s analysis on
this point and with respect to the view that “compensation for
contingency must be based on the difference in market
treatment of contingent fee cases as a class, rather than on an
assessment of the ‘riskiness’ of any particular case.” Id. at 731
(O’Connor, J., concurring in part and concurring in the
judgment)(emphasis in original). Nevertheless, the concurring
opinion agreed with the plurality that “no enhancement for risk
is appropriate unless the applicant can establish that without an
adjustment for risk the prevailing party ‘would have faced
substantial difficulties in finding counsel in the local or other
relevant market,’” id. at 733 (quoting plurality opinion at 731),
and concluded there was insufficient record evidence to justify
an enhancement, id. at 734.

        Analyzing the precedential force of Delaware Valley II,
the en banc court in King overruled a prior holding (and
portions of prior cases) that had treated the concurring opinion
as controlling under Marks. See King, 950 F.2d at 785. The en
banc court noted that this circuit had not previously “focused on
the fact that there are two analytically distinct questions
involved in awarding a contingency enhancement” if its prior
view of Delaware Valley II were perpetuated. Id. at 777.
Reexamining Delaware Valley II, the en banc court concluded:

               When . . . one opinion supporting the judgment
               does not fit entirely within a broader circle
                              19

               drawn by the others, Marks is problematic. If
               applied in situations where the various opinions
               supporting the judgment are mutually exclusive,
               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, no matter how persuasive it may be. The
               Court itself does not appear to apply Marks in
               cases of this type.

Id. at 782 (referencing Coolidge v. New Hampshire, 403 U.S.
443 (1971), as an example). In sum, “all the analytically
necessary portions of a Supreme Court opinion” must overlap
in rationale in order for a controlling opinion to be discerned
pursuant to Marks; if no such common rationale exists the
Supreme Court precedent is to be read only for its persuasive
force. Id. at 784. On the merits of whether an enhancement
was available, the en banc court concluded there was “no
practical middle ground between providing enhancements
routinely and not providing them at all,” and adopted a view
similar to that of the plurality in Delaware Valley II that
contingency enhancements were unavailable in this circuit,
noting that “a majority of the Supreme Court clearly agrees that
the question of attorney’s fees must not turn into major
litigation in itself.” Id.

        This court has not heretofore applied the Marks standard
articulated by the en banc court in King to the splintered
decision in Freeman. Most recently, the court applied the
concurring opinion of Justice Sotomayor in a similar case,
where a defendant, who had entered a Rule 11(c)(1)(C) plea
agreement, had filed a motion to reduce his sentence under
§ 3582(c)(2), and where the parties agreed that the concurring
opinion in Freeman controlled. In United States v. Duvall,
                                20

2013 WL 276016 (D.C. Cir., Jan. 25, 2013), the court affirmed
the district court’s decision that the defendant was ineligible for
§ 3582(c)(2) relief, stating: “For purposes of this appeal, both
parties agree that Justice Sotomayer’s opinion controls our
analysis in light of the Supreme Court’s decision in Marks v.
United States, 430 U.S. 188, 193 (1977). Accordingly, we do
not further address that question.” Id. at *4. The concurring
opinion discussed the en banc opinion in King, but concluded
relief was unavailable in light of United States v. Berry, 618
F.3d 13 (D.C. Cir. 2010). See Duvall, 2013 WL 276016 at *6-
11 (Williams, J., concurring in the judgment) (suggesting Berry
warrants en banc reconsideration). In other words, in Duvall,
because the parties agreed that Justice Sotomayor’s concurring
opinion controlled, the court had no occasion to reject
alternative arguments or to hold that the concurring opinion in
Freeman was controlling precedent. Absent such a holding
there is no law of the circuit to apply on that question. See
LaShawn A. v. Barry, 87 F.3d 1389 (D.C. Cir. 1996) (en banc).

        Under Marks then, we 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,” King, 950 F.2d at 781, of the
other. The plurality opinion rejects the concurring opinion’s
approach, stating its rationale is fundamentally incorrect
because § 3582(c)(2) “calls for an inquiry into the reasons for
a judge’s sentence, not the reasons that motivated or informed
the parties.” Freeman, 131 S. Ct. at 2694 (plurality opinion).
Although suggesting the approach in the concurring opinion is
an “intermediate position,” id., the plurality understands the
reasoning of the concurrence — that courts should examine the
intent of the parties to a Rule 11(c)(1)(C) agreement to
determine whether a sentence pursuant to such a plea is “based
on” the Guidelines — to be incompatible with its own because
the concurring opinion offers an analytically distinct rationale
to justify its approach. Indeed, eight of the nine Justices
                                21

rejected the framework of the concurring opinion, with the
dissent correctly predicting that it would “foster[] confusion in
a area in need of clarity,” 131 S. Ct. at 2704 (Roberts, C.J.,
joined by Scalia, Thomas, and Alito, J.J., dissenting), because
it initially examined what the district court judge did but then
“suddenly” shifted its focus to the parties’ intent, id. at 2702.
Thus the dissent “agree[d] with the plurality that the approach
of the concurrence . . . is arbitrary and unworkable.” Id. at
2700–01.

        We have previously noted that other courts of appeals
have held that the concurring opinion in Freeman, as the
narrower interpretation of “based on,” is the holding of the
Court. See Duvall, 2013 WL 276016; supra n.1. But these
courts, like the government here, see Appellee’s Br. at 21,
appear not to have considered circumstances where
§ 3582(c)(2) relief would be available under the concurring
opinion but not the plurality opinion.        Epps, referencing
acknowledgment of this possibility by the plurality in Freeman,
131 S. Ct. at 2694, offers examples where the concurring
opinion is not a subset of the plurality opinion. See Reply Br.
at 8-108; see also United States v. Duvall, 2013 WL 276016 at


       8
           As examples Epps suggests:

       For example, the 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. Using
       Justice Sotomayor’s standard, if the sentencing range used by
       the parties is subsequently reduced, the defendant would be
       eligible for a sentence reduction because the plea agreement
                                  22

*8-9 (Williams, J., concurring in the judgment) (offering
illustrative example where the concurring opinion is not a
subset of the plurality opinion). In other words, 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 as the Marks framework requires,
whether articulated as in King or in terms of “one opinion . . .
always lead[ing] to the same result that a broader opinion would
reach,” Jackson v. Danberg, 594 F.3d 210, 222 (3d Cir. 2010).




        was accepted and provided for a stipulated sentence based on
        a subsequently reduced range – according to Justice
        Sotomayor, eligibility is determined based on the agreement.
        The plurality, however, would find this defendant ineligible
        because the range that the parties agreed to played no role in
        the court’s determination that this was an appropriate
        sentence, despite the fact that the court imposed the agreed-
        upon term of imprisonment.

Reply Br. at 8-9. Another example Epps suggests is where:

        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. If under
        these circumstances the court decides for reasons unrelated to
        the guidelines range to impose the sentence the parties agreed
        upon, under the plurality’s analysis, the defendant would not
        be eligible even if the guideline range is later reduced. Under
        Justice Sotomayor’s analysis, however, the defendant would
        be eligible.

Id. at 9-10.
                               23

         In sum, while five Justices in Freeman agreed that the
district court is not categorically barred from reducing a
sentence under § 3582(c)(2) in Rule 11(c)(1)(C) cases, the
concurring opinion is not controlling in this circuit and the
question for the court, upon independent analysis of the statute,
is when a sentence is “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.”
We consider, then, which, if any, of the rationales in Freeman
is persuasive. Cf. King, 950 F.2d at 784. In so doing, we are
bound only by the result in Freeman, namely that § 3582(c)(2)
relief is not invariably barred when a sentence was imposed
pursuant to a Rule 11(c)(1)(C) plea agreement. See id.
(referencing Nat’l Mut. Ins. Co. v. Tidewater Transfer Co., 337
U.S. 582, 655 (1949) (Frankfurter, J., dissenting)).

                                B.
        Whether Epps is eligible for a § 3582(c)(2) reduction of
his sentence is a question of law, which this court reviews de
novo. See United States v. Cook, 594 F.3d 883, 886 (D.C. Cir.
2010). We conclude that the Freeman plurality’s interpretation,
looking to the Sentencing Reform Act, Rule 11(c)(1)(C), and
applicable Guidelines policies, is more persuasive than that of
the concurring opinion. The Sentencing Reform Act, which
seeks through Guidelines to frame the district court sentencing
discretion, requires, even under the advisory Guidelines
sentencing scheme, that the district court begin by calculating
the defendant’s sentence under the Guidelines. See Gall, 552
U.S. at 50–51. In light of the Act, Rule 11(c)(1)(C)’s
requirement for court approval, and the instructions in
applicable Guidelines policy statements, the plurality in
Freeman interpreted § 3582(c)(2) to mean that the focus, even
when there is a Rule 11(c)(1)(C) plea agreement, ought to be on
the reasons given by the district court for accepting the sentence
that it ultimately imposed, not on the parties’ agreement.
Freeman, 131 S. Ct at 2694 (plurality opinion). A contrary
focus on the parties’ intentions would contribute to the
                               24

unwarranted disparity that the Act was designed to reduce. Id.
The plurality thus reasonably viewed § 3582(c)(2) as a
mechanism for helping to reduce unwarranted sentencing
disparities, such as the crack-cocaine range. Id. at 2965; see
also Duvall, supra, at *9 (Williams, J., concurring) (suggesting
Congress’s concern was with the phrase — “a sentencing range
that has subsequently been lowered by the Sentencing
Commission” — in order “to make clear that the district court’s
sentence reduction authority was not to be all-purpose, but
linked to a range that an amendment had ‘lowered’”).

         Epps’ Rule 11(c)(1)(C) plea agreement repeatedly refers
to the Sentencing Guidelines as the basis for determining Epps’
sentence. Paragraph 8, for example, states that “the sentence in
this case will be imposed in accordance with” the Guidelines.
See Plea Agreement ¶ 8 (emphasis added). Although prior to
Freeman, this court held that the phrase “accordance with” is
ambiguous and insufficient alone to anchor the inference that a
sentence was determined by an otherwise-unspecified
Guidelines range, see Cook, 594 F.3d at 888, there is further
evidence in Epps’ case that the Guidelines formed the basis of
his sentence. For example, Paragraph 12 recites the parties’
agreement, applying the Guidelines, to depart downward from
the base level of the offense pursuant to Epps’ acceptance of
responsibility, id. ¶ 12; see U.S.S.G. § 3E1.1, and the district
court, prior to imposing Epps’ sentence, recalculated his
Guidelines range before granting a downward departure to the
188 months stipulated in the plea agreement. See Tr. Oct. 29,
1999, at 12–14. Additionally, in evaluating Epps’ plea
agreement, the district court stated that it considered the
sentence imposed “sufficient” “in view of the fact that the crack
cocaine guidelines are what they are.” Id. at 14 (emphasis
added). Thus, in departing downward from the Guidelines
sentencing range and explaining the basis for its departure, the
district court anchored the inference that Epps’ sentence, unlike
                               25

the sentence in Cook, was determined “based on” a specific
Guidelines range.

         The district court’s view that its findings were not
determinative of whether Epps’ sentence was “based on” the
Guidelines, see Epps, 756 F. Supp. 2d at 92–93, is persuasively
refuted by the Freeman plurality. To the extent Sentencing
Guidelines § 1B1.10 Application Note 5 advises that over-
serving a sentence is alone insufficient to warrant early
termination of supervised release, we recognize that the district
court is to consider many factors in ruling on a § 3582(c)(2)
motion and note only that over-serving a sentence is a strong
factor that, for the reasons explained above, is not necessarily
“too speculative” to have a substantial influence on remand.
Under the circumstances, upon “full consideration of the issue,”
Grant, 635 F.3d at 1232, nothing in this court’s precedent
requires adoption of a different approach. But cf. Berry, 618
F.3d at 46–47 (avoiding question of “when, if ever, a defendant
who enters a Rule 11(c)(1)(C) plea agreement is sentenced
‘based on a sentencing range’”); United States v. Heard, 359
F.3d 544, 548 (D.C. Cir. 2004) (dictum). Nor is there evidence
that statutory considerations trumped the applicable Guidelines
range in forming the basis of Epps’ sentence. Compare Cook,
594 F.3d at 883 (defendant ineligible for § 3582(c)(2) reduction
because sentence based on statutory mandatory minimum);
United States v. Tepper, 616 F.3d 583 (D.C. Cir. 2010) (same,
because sentence based on career offender status); Berry, 618
F.3d at 13 (same).

        To recap: The court has jurisdiction of Epps’ appeal
notwithstanding his release from incarceration and the
commencement of his term of supervised release. His appeal is
not moot because applying the amended version of the
supervisory release provision would be impermissibly
retroactive and, in not applying this amended provision, it
becomes likely that Epps’ term of supervisory release may be
                               26

impacted by the outcome of this appeal; it remains for the
district court to address the pre-amendment inter-circuit conflict
as to which of two provisions on supervisory release applies to
Epps in considering his pending motion to reduce his
supervisory term. In the absence of necessary overlap between
the reasoning of the plurality and concurring opinions in the
Supreme Court’s decision in Freeman to discern a narrower
opinion that constitutes binding precedent, see King, 950 F.2d
at 771 (interpreting Marks), Epps qualifies for relief under
§ 3582(c)(2). Accordingly, we reverse and remand the case to
the district court.
     BROWN, Circuit Judge, dissenting: Having been released
from prison, Epps can neither make good on the court’s
conclusion that he was eligible for a reduction in his sentence
under 18 U.S.C. § 3582(c)(2) nor credit any excess prison
time served against his term of supervised release, see United
States v. Johnson, 529 U.S. 53, 56–58 (2000). Realizing this,
the court attempts to evade the mootness doctrine by invoking
the collateral effects its holding might have in future
discretionary proceedings to reduce Epps’s terms of
supervised release. Because today’s decision fails to offer a
“more-than-speculative chance” of affecting Epps’s rights in
the future, I would dismiss his appeal as moot. Transwestern
Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990).

    A district court’s discretion to decide whether to
terminate a defendant’s supervised release period is broad: if,
having considered the sentencing factors listed in 18 U.S.C.
§ 3553(a), the court “is satisfied that” termination of
supervised release “is warranted by the conduct of the
defendant released and the interest of justice,” then the district
court may elect to do so. 18 U.S.C. § 3583(e)(1). But as we
previously concluded, “the inability to obtain a reduced
sentence on account of the completion of a prison term,
though potentially relevant, is only one of many factors
guiding the district court’s exercise of its discretion under
§ 3583(e)(1),” rendering a decision here merely advisory.
United States v. Bundy, 391 F. App’x 886, 887 (D.C. Cir.
2010) (per curiam) (internal citation omitted).

    Bundy may not bind us, but that does not mean its
reasoning is faulty. The collateral consequences of the court’s
decision inhabit the realm of the hypothetical: just as a
decision in Epps’s favor does not guarantee him relief under
§ 3583(e), neither would a decision reaching the opposite
conclusion have foreclosed it. Nor, for that matter, does the
court raise any argument Epps cannot make for himself.
What we have, then, is an opinion that neither forces a district
                               2
court to grant Epps a reduction in his supervised release
period nor offers him arguments that would otherwise be
unavailable to him. At most, the opinion lends Epps’s case
the clout of a judicial imprimatur—something a law review
article or op-ed by a well-respected jurist might similarly
accomplish. The court’s attempts to sidestep mootness rely
not on any precedential effect the opinion might have, but on
the mere fact that it endorses Epps’s analytical position. Cf.
Telecomms. Research & Action Ctr. v. FCC, 917 F.2d 585,
588 (D.C. Cir. 1990) (holding, in the administrative law
context, that a party may not predicate its Article III standing
on the content of an agency’s legal reasoning).

     By assuming its decision “would necessarily inform the
district court’s evaluation of a motion for termination or
reduction of his term of supervised release,” Maj. Op. 12, the
court conflates two separate issues: whether Epps should have
been allowed to pursue § 3582(c)(2) relief, and whether he
actually spent too much time in prison. The court decides the
former, but it is the latter that would be relevant to a district
court deciding whether to modify the term of Epps’s
supervised release. See Johnson, 529 U.S. at 60 (“There can
be no doubt that equitable considerations of great weight exist
when an individual is incarcerated beyond the proper
expiration of his prison term.”). And if Epps served an
excessive prison term, that is because his original sentence
was imposed when the sentencing guidelines for crack
cocaine were harsher than the Sentencing Commission now
deems appropriate; it does not turn on the availability of
§ 3582(c)(2) relief. True, had a district court reduced Epps’s
sentence, it would have remedied—or at least mitigated—his
injury, thereby obviating the basis for seeking subsequent
modification of his supervised release term. But now that
Epps has completed his prison term, whether he should have
had access to this procedural avenue is irrelevant to the
                              3
§ 3583(e) inquiry. That Epps had no previous opportunity to
reduce his sentence may have deprived him of a chance to
correct a punishment that was potentially excessive in light of
the amended sentencing guidelines. It is not, however, the
reason the punishment was or was not excessive. What is
instead important is the actual term of imprisonment served.
For the purpose of § 3583(e), it matters not that Epps was
erroneously denied recourse to a sentence reduction. Even if
Congress had never enacted § 3582(c)(2), Epps could still
invoke the sentencing guidelines’ later amendment as a reason
to reduce his term of supervised release. If the sentence he
served was too long, it was too long. Today’s decision in no
way changes that fact; any collateral effect its holding may
have is illusory.

    Because Epps’s release from prison renders ineffectual
any relief this Court might provide, his case is moot. See
Church of Scientology of Cal. v. United States, 506 U.S. 9, 12
(1992). I would therefore dismiss the appeal.
