                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                   UNITED STATES COURT OF APPEALS December 28, 2015
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 15-3156
                                                          (D. Kan.)
 TRISTAN LUSTER,                              (D.C. No. 2:06-CR-20056-KHV-9)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.



      After examining the briefs and the appellate record, this court has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

Accordingly, the case is ordered submitted without oral argument.

      In 2008, Appellant Tristan Luster pleaded guilty to distribution of cocaine,

in violation of 21 U.S.C. § 841(a)(1). In the written plea agreement, the parties



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
proposed a 180-month term of incarceration followed by not less than six years of

supervised release. The agreement states the parties’ belief “that the proposed

sentence does not offend the now advisory sentencing guidelines,” but that they

“are not requesting imposition of an advisory guideline sentence.” See Fed. R.

Crim. P. 11(c)(1)(C) (permitting a plea agreement to specify “that a specific

sentence . . . is the appropriate disposition of the case”).

      The district court held a change of plea hearing on November 1, 2007. The

court deferred judgment and ordered the preparation of a Presentence

Investigation Report. On January 7, 2008, Luster filed a pro se motion seeking to

withdraw his plea. The motion was denied. On April 9, 2008, he filed a

counseled motion to withdraw his guilty plea. That motion was also denied.

      Luster’s sentencing hearing was held on May 19, 2008. At the start of the

hearing, the district court acknowledged the plea agreement was entered into

pursuant to Rule 11(c)(1)(C). The court heard argument from the parties, both of

whom urged the court to accept the plea agreement and impose the 180-month

term of imprisonment set out in the agreement. After the parties concluded their

arguments, the court accepted the plea agreement and sentenced Luster to 180

months’ incarceration. See id. (providing a “specific sentence” contained in a

Rule 11(c)(1)(C) plea agreement “binds the court once the court accepts the plea

agreement”).




                                          -2-
      The district court’s judgment was docketed on May 21, 2008. Several

months later, Luster filed a motion pursuant to 28 U.S.C. § 2255 asking the

district court to vacate his conviction and sentence. His motion was denied and

this court refused to issue a certificate of appealability. United States v. Luster,

346 F. App’x 353, 355 (10th Cir. 2009) (concluding alleged errors in the

calculation of Luster’s guidelines sentence were not relevant to his decision to

plead guilty because he did not receive a guidelines sentence).

      In 2014, Luster moved to modify his 180-month sentence under 18 U.S.C.

§ 3582(c)(2), which permits a district court to modify a defendant’s sentence if

his advisory guidelines range has been lowered by an amendment to the

Sentencing Guidelines. Luster argued Guidelines Amendment 782 reduced his

advisory guidelines range from 188-235 months to 151-168 months. See USSG

Guidelines Manual app. C, amend. 782 (reducing by two levels the base offense

level assigned to certain drug trafficking offenses). He requested that his

sentence be reduced to 151 months. The district court denied the motion,

concluding it lacked authority to modify Luster’s sentence because he was

originally sentenced pursuant to a binding plea agreement and, thus, Amendment

782 had no effect on his sentence. Luster brought this appeal after the district

court denied his motion for reconsideration.

      This court reviews a district court’s denial of a § 3582(c)(2) motion for

abuse of discretion. United States v. Sharkey, 543 F.3d 1236, 1238 (10th Cir.

                                          -3-
2008). In the course of that review, we apply a de novo standard to the district

court’s interpretation of a statute or the Guidelines. Id.

      Section 3582(c)(2) gives a district court the power to modify a defendant’s

term of imprisonment only if the defendant was originally sentenced “based on a

sentencing range that has subsequently been lowered by the Sentencing

Commission.” The Supreme Court recently held that a sentence imposed pursuant

to Rule 11(c)(1)(C) is based on the Guidelines only when the plea agreement

“expressly uses a Guidelines sentencing range applicable to the charged offense to

establish the term of imprisonment.” Freeman v. United States, 131 S. Ct. 2685,

2695 (2011) (Sotomayor, J., concurring); United States v. Graham, 704 F.3d

1275, 1278 (10th Cir. 2013) (concluding Justice Sotomayor’s concurring opinion

“represents the Court’s holding” in Freeman). Because the plea agreement

between Luster and the Government provided for a specific term of imprisonment,

Luster’s sentence is based on a guidelines range only if that range “is evident

from the agreement itself” and the plea agreement “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.” Freeman, 131 S. Ct. at 2697 (Sotomayor, J.,

concurring).

      The 180-month term of imprisonment set out in Luster’s plea agreement

was not based on a guidelines range that “is evident from the agreement itself.”

The agreement states the parties believed the 180-month sentence was “consistent

                                          -4-
with the sentencing factors of 18 U.S.C. § 3553(a).” It does not contain any

calculation of an advisory guidelines range or any statement that the proposed

sentence was based on any guidelines range. Freeman, 131 S. Ct. at 2698

(Sotomayor, J., concurring) (holding a sentence is not based on the Guidelines

unless the plea agreement itself “expressly uses a Guidelines sentencing range to

establish the term of imprisonment”). According to the plain language of the

agreement, the proposed sentence was “sought pursuant to Fed. R. Crim. P.

11(c)(1)(C)” and the parties did “not request[] imposition of an advisory guideline

sentence.”

      Luster nevertheless argues the district court actually sentenced him based

on the Sentencing Guidelines and not the Rule 11(c)(1)(C) plea agreement. His

argument is based on miscellaneous statements the district court made during the

sentencing hearing and on the original statement of reasons appended to the

judgment. This argument cannot survive in light of the plain language of the plea

agreement and the Court’s holding in Freeman. The terms of the plea agreement,

including the 180-month sentence, were accepted in full by the district court when

the court stated at the conclusion of the hearing that it did “accept the Plea

Agreement, and the plea under Rule 11(c)(1)(C).” A district court is bound by the

sentence proposed in a Rule 11(c)(1)(C) plea agreement once it accepts the

agreement. United States v. Catrell, 774 F.3d 666, 670 (10th Cir. 2014). Further,




                                          -5-
as we have already stated, the plea agreement specifically requested that Luster

not be sentenced in accordance with any applicable guidelines range.

       Having reviewed the plea agreement, the entire sentencing transcript, and

the district court’s statement of reasons, this court is convinced the foundation for

the 180-month sentence was the parties’ Rule 11(c)(1)(C) agreement and not the

Guidelines. See Freeman, 131 S. Ct. at 2695 (Sotomayor, J., concurring) (“[I]n

applying § 3582(c)(2) a court must discern the foundation for the term of

imprisonment imposed by the sentencing judge.”); see also Luster, 346 F. App’x

at 355 (holding Luster’s sentence was not affected in any way by his advisory

guidelines calculation). Any seemingly contradictory statements made by the

district court have been taken out of context by Luster or do not affect our

analysis because they are mere references to the Guidelines. Freeman, 131 S. Ct.

at 2697 (Sotomayor, J., concurring) (“[T]he 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 . . . .”). Likewise, the original

statement of reasons does not control our decision because it conflicts with the

unambiguous terms of the plea agreement which the Supreme Court has held must

drive our analysis. 1

       1
       Because the district court’s amendment of the statement of reasons does
not affect our conclusion that the foundation of Luster’s sentence was the Rule
                                                                     (continued...)

                                         -6-
      The terms of the plea agreement clearly set out a specific term of

imprisonment and do not tether that term to any guidelines range. The oral

sentence pronounced by the district court unambiguously imposes sentence

pursuant to that Rule 11(c)(1)(C) agreement. See United States v. Villano, 816

F.2d 1448, 1450-51 (10th Cir. 1987) (“It is a firmly established and settled

principle of federal criminal law that an orally pronounced sentence controls over

a judgment and commitment order when the two conflict.”).

      The district court’s judgment is affirmed.

                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




      1
       (...continued)
11(c)(1)(C) plea agreement, his challenge to that amendment is moot.

                                         -7-
