               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0565n.06

                                       Case No. 16-5176

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                FILED
UNITED STATES OF AMERICA,                         )                        Oct 11, 2016
                                                                      DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiff-Appellant,                       )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE MIDDLE DISTRICT OF
TODD BRYANT,                                      )       TENNESSEE
                                                  )
       Defendant-Appellee.                        )
                                                  )
                                                  )

       BEFORE: SUTTON and STRANCH, Circuit Judges; and STEEH, District Judge*

       SUTTON, Circuit Judge. Todd Bryant was charged with conspiracy to distribute large

quantities of cocaine and marijuana, and an undetermined amount of ecstasy. As part of a plea

agreement, Bryant pleaded guilty only to the marijuana offense and accepted a 71-month

sentence. Nearly two years after Bryant took the plea, Amendment 782 to the Sentencing

Guidelines retroactively reduced the sentencing ranges for federal drug trafficking crimes.

Bryant asked the district court to reduce his sentence under Amendment 782, and the district

court obliged. But because Bryant explicitly waived the right to challenge his sentence under

§ 3582(c) in his plea agreement, and because Bryant’s sentence was set by the plea agreement

and not the Guidelines, the district court lacked authority to reduce Bryant’s sentence. We must

reverse.
*The Honorable George Caram Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.
Case No. 16-5176
United States v. Bryant
       In July 2012, a grand jury charged Todd Bryant with conspiracy to distribute five

kilograms or more of cocaine, 280 grams or more of crack cocaine, 100 kilograms or more of

marijuana, and an unspecified quantity of ecstasy. A year later, he pleaded guilty to the lesser

included marijuana offense and accepted a sentence of 71 months in prison followed by five

years of supervised release. Bryant and the government entered into the plea agreement under

Rule 11(c)(1)(C), which authorizes plea agreements to provide “that a specific sentence or

sentencing range is the appropriate disposition of the case.” Bryant’s plea agreement noted that,

because this was a Rule 11(c)(1)(C) agreement, any “sentencing guideline calculations are moot,

and . . . the sentence agreed to herein is an appropriate sentence.” R. 1458 at 11. The agreement

also contained a “[w]aiver of [a]ppellate [r]ights,” in which Bryant “knowingly waive[d] the

right to challenge [the sentence] in any collateral attack, including, but not limited to, a motion

brought pursuant to 28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. § 3582(c).” Id. at 13

(emphasis added). The district court accepted the plea and imposed the agreed-upon sentence.

       In 2014, the Sentencing Commission issued Amendment 782 to the Sentencing

Guidelines, which retroactively lowered by two levels all of the offense levels assigned by the

Guidelines’ drug quantity table. See U.S.S.G. § 2D1.1, 1B1.10(d). Under the amendment,

Bryant’s appropriate sentencing range would be 57 to 71 months.

       18 U.S.C. § 3582(c)(2) authorizes district courts to reduce sentences “based on a

sentencing rage that has subsequently been lowered by the [Sentencing] Commission.” Bryant

filed a motion under the statute, asking to reduce his sentence to the statutory minimum of 60

months. See 21 U.S.C § 841(b)(1)(B) The district court granted the motion, finding that

Bryant’s waiver of appellate rights was ineffective because a § 3582(c) motion is not a




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United States v. Bryant
“collateral attack,” and that Bryant was eligible for a reduction because his sentence was based

on the Guidelines rather than the plea agreement. R. 1779 at 2. We disagree on both counts.

       Waiver. The district court lacked authority to grant Bryant’s motion because he waived

the right to challenge his sentence under § 3582(c) in the plea agreement. The agreement could

not be clearer. It states that Bryant “knowingly waives the right to challenge th[e] agreed

sentence in any collateral attack, including . . . a motion brought pursuant to . . . 18 U.S.C.

§ 3582(c).” This case begins, and arguably should end, there.

       Bryant nonetheless attempts to find ambiguity in the waiver. His efforts fall short. In

interpreting plea agreements, as in interpreting any other contract or a statute, the specific

governs the general. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,

2070–71 (2012); 11 Williston on Contracts § 32:10 (4th ed. 2016).            The language of the

agreement, which could not be more specific, tells us just what to do here.           It makes no

difference that some might say that § 3582(c)(2) motions for a sentence reduction are not

technically “collateral attack[s]” on an original sentence. See United States v. Goodloe, 388 F.

App’x 500, 503 (6th Cir. 2010).       Whether or not the waiver properly classified § 3582(c)

motions is irrelevant to today’s proceeding. The fact remains that the agreement expressly

forbids Bryant from bringing a § 3582(c) motion, however one chooses to characterize such a

motion.

       Our colleague raises two alternative readings, one similar to Bryant’s, one that goes

beyond it. The key answer to both arguments is that it does not suffice to identify an ambiguity

in the abstract. In asserting ambiguity in a contract or a statute, the claimant must show two

competing interpretations, both of which are plausible on their own. TMW Enters., Inc. v. Fed.

Ins. Co., 619 F.3d 574, 580 (6th Cir. 2010). That is not the case with either proposal.



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Case No. 16-5176
United States v. Bryant
       Both readings rely on a narrow view of what qualifies as a “collateral attack”—only

challenges to the legality of the original sentence, not those that bring an independent ground for

reduction to the court’s attention. One way to accommodate that view, urged by Bryant, would

be to read his § 3582(c) waiver out of the agreement on the ground that no challenge under

§ 3582(c) is a true collateral attack. But it is not plausible to give maximum effect to an

ambiguous general term at the expense of a specific, explicit one.

       The second proposal runs in the other direction. It says that “collateral attack” is the

more specific phrase, and thus that Bryant reserved the right to bring non-collateral challenges to

his sentence under § 3582(c). This would be a permissible reading if § 3582(c) authorized

challenges that meet the proposed specific definition of “collateral.” But it does not. The dissent

points to § 3582(c)(1)(B), but a defendant cannot attack his sentence under that provision.

It instead authorizes a district court to modify a sentence after a defendant successfully attacks

the sentence through one of three other motions: a collateral attack under § 2255, a direct attack

under § 2106, or a Rule 35 motion to correct a clerical error in the sentence or reduce the

sentence for substantial assistance. See United States v. Ross, 245 F.3d 577, 586 (6th Cir. 2001).

All of which leads us where we started: The only plausible interpretation of the plea agreement

is that Bryant waived his right to bring a § 3582(c) motion.

       Nor is it a fair reading of the agreement to construe the general statement at the end of the

agreement that “[Bryant’s] compliance with each part of this Plea Agreement extends until such

time as he is sentenced” to nullify the detailed waiver of later appellate rights. The whole point

of an appellate waiver is to bind Bryant after sentencing.

       Eligibility. Bryant argues that, even if he waived his right to bring a § 3582(c) motion,

the district court had authority to reduce his sentence “on its own motion,” making any error



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Case No. 16-5176
United States v. Bryant
harmless. 18 U.S.C. § 3582(c)(2). Even if a district court could nullify a waiver in this way

(a point we need not decide), the court had no authority to do so here because, under Freeman v.

United States, 564 U.S. 522 (2011), Bryant remains ineligible for a sentence reduction.

       Freeman was a plurality decision, and we have held that Justice Sotomayor’s

concurrence in Freeman is, as the narrowest grounds for the decision, the controlling opinion.

United States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011); see Marks v. United States, 430 U.S.

188, 193 (1977). Justice Sotomayor concluded that sentences imposed in accordance with Rule

11(c)(1)(C) agreements are generally “based on” the agreements themselves rather than the

Guidelines, and thus cannot be reduced under § 3582(c). Freeman, 564 U.S. at 534. But when,

as in Freeman’s case, an agreement “expressly uses a Guidelines sentencing range to establish

the term of imprisonment . . . [the sentence] is ‘based on’ the range employed” and the defendant

may be eligible for a sentence reduction under § 3582(c)(2). Id. (emphasis added).

       That did not happen here. The plea agreement expressly disclaims any reliance on the

Guidelines. “[T]he parties,” it says, “agree that the sentencing guideline calculations are moot,

and that the sentence agreed to herein is an appropriate sentence.” R. 1458 at 11. The language

of the agreement once again resolves the matter.       Because Bryant’s plea agreement never

mentions a sentencing range and disavows any reliance on the Guidelines, he cannot seek relief

under § 3582(c)(2). See United States v. McNeese, 819 F.3d 922, 927–28 (6th Cir. 2016).

       Bryant counters that the plea agreement “provided enough building blocks” to

demonstrate that his 71-month sentence was based on the Guidelines. Appellee’s Br. 21. But

simply referring to the facts relevant to determining an offense level, without making the

offense-level determination, does not constitute an express use of a Guidelines range, as




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United States v. Bryant
Freeman requires. What’s more, the agreement makes no reference to Bryant’s criminal history,

which, along with the offense level, is one of the inputs in calculating a sentencing range.

       Nor does it matter that it “seem[ed] clear” to the district court “that the anticipated

sentencing range was a part of the negotiation of the agreement in this case.” R. 1779 at 2. As

Justice Sotomayor noted, “the mere fact that the parties to a [Rule 11(c)(1)(C)] agreement may

have considered the Guidelines in the course of their negotiations does not empower the court

under § 3582(c)(2) to reduce the term of imprisonment they ultimately agreed upon.” Freeman,

564 U.S. at 537. Because a defendant’s sentence is only “based on” the Guidelines when the

agreement explicitly references a Guidelines range, McNeese, 819 F.3d at 927, there was no need

for the district court to conduct “a free-ranging search through the parties’ negotiating history.”

Freeman, 564 U.S. at 538.

       Bryant’s final argument is that this court’s repeated holdings that Justice Sotomayor’s

Freeman concurrence is controlling are mistaken, and that we should conclude instead that there

is no controlling opinion in Freeman. As Bryant to his credit recognizes, however, this panel

lacks the power to make such a departure from our precedent.

       For these reasons, we reverse.




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Case No. 16-5176
United States v. Bryant
         STRANCH, Circuit Judge, concurring in part and dissenting in part. I write separately

because I disagree with the majority’s conclusion that Bryant waived his right to seek a sentence

reduction. The lead opinion asserts that the plea agreement “could not be clearer.” (Maj. Op. 3)

I disagree. The plea agreement states that Bryant “knowingly waive[d] the right to challenge

[his] sentence in any collateral attack, including, but not limited to, a motion brought pursuant to

28 U.S.C. § 2255 and/or § 2241, and/or 18 U.S.C. § 3582(c).” The parties appear to agree that a

motion for sentence reduction under § 3582(c) is not properly considered a “collateral attack.”

Despite this apparent contradiction in the wording of the plea agreement, the majority concludes

that “the language . . . could not be more specific.” (Maj. Op. 3) I find the language of the plea

agreement to be ambiguous and therefore respectfully dissent from the determination that Bryant

waived his right to move for a sentence reduction.

         Plea agreements are “contractual in nature” but also “implicate[] concerns in addition to

those pertaining to the formation and interpretation of commercial contracts between private

parties.” United States v. Randolph, 230 F.3d 243, 249 (6th Cir. 2000) (quoting United States v.

Johnson, 979 F.2d 396, 399 (6th Cir. 1992)). A defendant’s “underlying right of contract is

constitutional,” therefore “both constitutional and supervisory concerns require holding the

government to a greater degree of responsibility than the defendant . . . for imprecisions or

ambiguities in the plea agreements.” Id.; see also United States v. Bowman, 634 F.3d 357, 360

(6th Cir. 2011). In Randolph, the defendant entered a plea agreement for conspiracy charges in

Texas.    Id. at 247.     After entering the plea agreement, prosecutors in Texas notified law

enforcement in Tennessee of the conspiracy and “provided them with all the information

obtained as a result of the Texan investigation.” Id. Even though the express terms of the plea

agreement provided that Randolph would not be further prosecuted on the matter in Texas, we



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Case No. 16-5176
United States v. Bryant
vacated the conviction in Tennessee because Randolph “was in no way informed as to the

illusory nature of the government’s promise.” Id. at 251. The “exigencies of due process and the

operation of the fundamental canons of contract construction compel us to the conclusion that

Randolph’s prosecution in Tennessee was entirely barred by the plea agreement he entered into

in . . . Texas.” Id.

        In a similar fashion, concerns for Bryant’s constitutional rights must guide our

interpretation of the plea agreement in this case. Constitutional rights may be surrendered in a

plea agreement “if that waiver was made knowingly and voluntarily.” United States v. Wilson,

438 F.3d 672, 673 (6th Cir. 2006). But defendants do not waive a constitutional right through a

plea agreement that is ambiguous on the matter. United States v. Jones, 569 F.3d 569, 573 (6th

Cir. 2009).

        In this case, Bryant waived the right to challenge his sentence “in any collateral attack.”

That language is followed by references to three statutes that spell out post-conviction

procedures: 1) § 2255 (providing for collateral attack on federal sentence); 2) § 2241 (providing

for collateral attack through writ of habeas corpus); and 3) § 3582(c) (providing for modification

of imposed term of imprisonment).        Section 3582(c) allows a court to modify a term of

imprisonment in specified circumstances, including “to the extent otherwise expressly permitted

by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” § 3582(c)(1)(B). Rule 35

allows a court to correct a clear error within fourteen days of sentencing or to reduce a sentence

on a government motion for substantial assistance in investigating or prosecuting another person.

FED. R. CRIM. P. 35. Presumably, the provision in § 3582(c)(1)(B) authorizes modification

“expressly permitted” by the other statutes, § 2255 and § 2241, listed in the plea agreement.




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Case No. 16-5176
United States v. Bryant
       The majority opinion concludes that a waiver of the right to move for a sentence

reduction under § 3582(c) is more specific than a general waiver of “any collateral attack.” (Maj.

Op. 3) However, another way to read the provision is that “any collateral attack” includes

motions under § 2255 (collateral attack), § 2241 (collateral attack), and § 3582(c)(1)(B)

(providing courts with authority to modify sentences permitted by statute or rules).         This

alternative reading of the provision does not reach a motion under § 3582(c)(2), which is based

on a subsequent change in a sentencing range and is not a collateral attack. See United States v.

Goodloe, 388 F. App’x 500, 503 (6th Cir. 2010). Under this reading, Bryant has not waived his

right to bring a motion for a sentence reduction under § 3582(c)(2).

       The ambiguity of the waiver provision—combined with constitutional concerns that

direct us to read plea agreements against the Government—require that we reach the merits of

Bryant’s appeal. I therefore respectfully dissent from the determination that Bryant waived his

right to bring a motion for a sentence reduction under § 3582(c)(2).

       On the merits, I agree with the majority that Bryant’s plea agreement was not “based on”

the Guidelines as required by Freeman v. United States, 564 U.S. 522 (2011), and United States

v. McNeese, 819 F.3d 922 (6th Cir. 2016), the latter of which was decided after the district court

ruled on Bryant’s motion. I therefore concur in the judgment.




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