                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2990
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                              Joseph Michael Bogdan

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Southern District of Iowa - Council Bluffs
                                 ____________

                             Submitted: April 15, 2016
                              Filed: August 30, 2016
                                  ____________

Before LOKEN, BEAM, and SMITH, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

      Joseph Michael Bogdan appeals the denial of his motion for a sentence
reduction under 18 U.S.C. § 3582(c)(2). “Section 3582(c)(2) provides that a court
may reduce a sentence of imprisonment in the case of a defendant who has been
sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.” United States v.
Browne, 698 F.3d 1042, 1045 (8th Cir. 2012) (quotation omitted), cert. denied, 133
S. Ct. 1616 (2013). The district court1 ruled that Bogdan was ineligible for a
reduction because his sentence was based on a Federal Rule of Criminal Procedure
11(c)(1)(C) plea agreement (“(C) agreement”), not on a retroactively amended
sentencing guidelines range, as § 3582(c)(2) and U.S.S.G. § 1B1.10 require.
Reviewing the determination of eligibility for a § 3582(c)(2) sentence reduction de
novo, see Browne, 698 F.3d at 1045 (standard of review), we affirm.

       In his 2010 (C) agreement, Bogdan pleaded guilty to conspiring to distribute
more than 500 grams of methamphetamine, stipulated to a 240-month sentence, and
acknowledged three prior felony drug convictions. The government agreed to dismiss
five remaining counts in the indictment and to withdraw two of the three prior
convictions from the information it had filed giving notice of prior convictions under
21 U.S.C. § 851. This reduced Bogdan’s statutory mandatory minimum sentence
from life to twenty years (240 months) in prison. See 21 U.S.C. § 841(b)(1)(A).
Before sentencing, the government moved to reduce the stipulated 240-month
sentence based on Bodgan’s substantial assistance. See 18 U.S.C. § 3553(e). At
sentencing, the district court accepted the (C) agreement, granted a 15% substantial
assistance reduction, and sentenced Bogdan to 204 months in prison.

       In 2014, the Sentencing Commission adopted Amendment 782 to the advisory
guidelines, which retroactively reduced most drug quantity base offense levels by two
levels. See United States v. Thomas, 775 F.3d 982, 982-83 (8th Cir. 2014). In
response, the United States Probation Office reported to the district court that Bogdan
appeared to be eligible for a sentence reduction pursuant to § 3582(c)(2). The district
court denied a reduction, agreeing with the government that Bogdan’s sentence was
based on his (C) agreement, not on drug quantity, and therefore “Amendment 782 has
no impact on [his] sentence.” On appeal, Bogdan argues the district court erred in


      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.

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determining that his (C) agreement sentence was not “based on” an applicable
guideline range that was lowered by Amendment 782. We disagree.

       1. A threshold question is whether, if we ignore the (C) agreement, Bogdan
would be eligible for a § 3582(c)(2) reduction because Amendment 782 would have
“the effect of lowering [his] applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B).
This question addresses the impact of a statutory mandatory minimum sentence on
§ 3582(c)(2) eligibility. In Golden v. United States, 709 F.3d 1229, 1231 (8th Cir.),
cert. denied, 134 S. Ct. 639 (2013), where there was no (C) agreement, the
defendant’s initial guidelines range was above the mandatory minimum sentence, but
the district court granted a substantial assistance reduction and sentenced below the
mandatory minimum. We affirmed the denial of a further § 3582(c)(2) reduction,
concluding that a subsequent guidelines amendment cannot affect a statutory
mandatory minimum sentence.

      Resolving a conflict in the circuits on this issue, the Sentencing Commission
overruled Golden in Amendment 780 by adding U.S.S.G. § 1B1.10(c). The
Commission gave two examples in Application Note 4. Both address situations in
which the initial guidelines range, as well as an applicable mandatory minimum,
apply and therefore affect the initial sentencing determination -- where the range is
above the minimum, as in Golden, and where a mandatory minimum becomes the
bottom, but not the top, of the range. Here, however, Bogdan asserts that the
mandatory minimum was above his entire guidelines range, a situation that would
seemingly be governed by Application Note 1(A) to U.S.S.G. § 1B1.10:

      [A] reduction in the defendant’s term of imprisonment is not authorized
      under 18 U.S.C. § 3582(c)(2) . . . if . . . an amendment listed in
      subsection (d) [such as Amendment 782] . . . does not have the effect of
      lowering the defendant’s applicable guideline range because of the
      operation of another guideline or statutory provision (e.g., a statutory
      mandatory minimum term of imprisonment).

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We are inclined to agree with Fourth Circuit Chief Judge William Traxler that, in this
situation, the sentence would not be based on a range the Sentencing Commission
subsequently lowered, “because it was not based on a sentencing range in the first
instance.” United States v. Williams, 808 F.3d 253, 264 (4th Cir. 2013) (Traxler,
C.J., dissenting). If that is correct, then our decision in United States v. Moore, 734
F.3d 836, 838 (8th Cir. 2013), remains controlling precedent, and Bogdan is not
eligible for a § 3582(c)(2) reduction. But the government has not argued this issue,
so we will assume without deciding that both Moore and Golden were overruled by
Amendment 780 and § 1B1.10(c).

        2. Turning to the (C) agreement issue, in United States v. Freeman, 131 S. Ct.
2685 (2011), a divided Supreme Court resolved a conflict in the circuits concerning
when a sentence established by a court-approved (C) agreement is “based on” a
subsequently lowered sentencing range. Justice Sotomayor’s concurring opinion “is
controlling and represents the holding of the Court.” Browne, 698 F.3d at 1045. The
opinion states that a defendant whose sentence was imposed pursuant to a (C)
agreement is eligible for a § 3582(c)(2) reduction if the (C) agreement “(1) ‘calls for
the defendant to be sentenced within a particular Guidelines sentencing range,’ or (2)
provides for a specific term of imprisonment and ‘makes clear that the basis for the
specified term is a Guidelines sentencing range applicable to the offense to which the
defendant pleaded guilty.’” United States v. Bailey, 820 F.3d 325, 329 (8th Cir.
2016), quoting Freeman, 131 S. Ct. at 2697. “The focus in determining eligibility for
a § 3582(c)(2) sentence reduction is on the contents of the written plea agreement
itself; the negotiations leading up to the final document do not come into play.”
Browne, 698 F.3d at 1046.

      Bogdan argues he is eligible for a § 3582(c)(2) reduction because his 240-
month sentence “was clearly based on a guidelines range” that was lowered by
Amendment 782. This requires a clear showing in the terms of the (C) agreement that
an applicable sentencing range was “the basis for the specified term” of 240 months.

                                         -4-
After reciting that Bogdan would be subject to a minimum statutory term of life in
prison without the (C) agreement because he had two prior felony drug convictions,
§ 841(b)(1)(A), the operative paragraph of the (C) agreement provided:

      The parties stipulate that under the circumstances of this case, taking
      into consideration [the § 3553(a)] factors; in consideration of the
      Defendant’s plea of guilty to the major offense charged in the
      Superseding Indictment, the Defendant’s waiver of appeal and post-
      conviction review, and the Defendant’s waiver of a [§ 851] proceeding
      regarding his prior felony drug convictions; and based on all
      considerations contained in the plea agreement, the appropriate sentence
      in this case is twenty (20) years imprisonment, to be followed by a term
      of supervised release of ten (10) years, and a $100.00 special assessment
      for the Crime Victims Fund.

A footnote explained that, “[t]o accomplish this stipulated sentence,” the government
would withdraw two prior felony drug convictions from its § 851 information,
leaving the third in effect. With only one prior felony drug conviction, Bogdan’s
mandatory minimum statutory sentence was 240 months, rather than life.
§ 841(b)(1)(A). Bogdan argues that the stipulated 240-month-sentence was “based
on the applicable guidelines range” because the PSR calculated his original
guidelines range as 188-235 months, and the statutory mandatory minimum sentence
became his applicable guideline range under U.S.S.G. § 5G1.1(b).

       We are not inclined to agree that a (C) agreement “make[s] clear that the basis
for the specified term” is an applicable guidelines range under Freeman merely
because the agreement expressly adopts a statutory mandatory minimum sentence that
becomes a guidelines “range” artificially established by § 5G1.1(b). The more logical
interpretation would be that the (C) agreement was based on the mandatory minimum,
not on a guidelines range. But we need not decide that question in this case because
Bogdan’s contention is factually flawed. His (C) agreement neither recited an
applicable guidelines range of 188-235 months, nor recited facts sufficient to

                                         -5-
determine that this was the applicable range. To take an obvious example of why the
agreement did not permit determination of the applicable range asserted by Bogdan,
his prior drug felony convictions surely warranted career offender enhancements
(which do not require filing of a § 851 information), likely producing a guidelines
range that would be, in whole or in part, above the 240-month mandatory minimum.
In these circumstances, it “is not evident from the [(C)] agreement itself” that the
applicable guidelines range determined the term specified in the (C) agreement, as
Freeman requires. United States v. Long, 757 F.3d 762, 764 (8th Cir. 2014)
(quotation omitted), cert. denied, 135 S. Ct. 991 (2015); accord United States v.
Johnson, 697 F.3d 1190, 1191 (8th Cir. 2012), cert. denied, 133 S. Ct. 2014 (2013).

       Bogdan further points to a section of the (C) agreement titled “Sentencing
Considerations,” which recites that, without a (C) agreement, “[should a sentence
pursuant to the advisory [guidelines] be available, the sentence to be imposed would
be solely within the District Court’s discretion,” giving due consideration to factors
that establish an advisory sentencing range, including facts included in the (C)
agreement’s Stipulation of Facts. However, this was nothing more than a provision
showing that the parties understood what would happen without the (C) agreement.
Such a provision does not show that the (C) agreement “explicitly employ[ed] a
particular Guidelines sentencing range to establish the term of imprisonment.”
Browne, 698 F.3d at 1046, quoting Freeman, 131 S. Ct. at 2698; accord Bailey, 820
F.3d at 327-28; United States v. Logan, 710 F.3d 856, 859 (8th Cir. 2013).

      We affirm the Order of the district court dated August 19, 2015, denying
Joseph Bogdan’s motion for a § 3582(c)(2) sentence reduction.
                    ______________________________




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