               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0654n.06

                                       Case No. 16-1338

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                Dec 06, 2016
                                                                            DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE WESTERN DISTRICT OF
CARLOS VANCE WATTS,                                )       MICHIGAN
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )

       BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges.

       SUTTON, Circuit Judge. Carlos Watts pleaded guilty to drug and firearms charges and

was sentenced to 156 months’ imprisonment under the terms of a binding plea agreement. The

Sentencing Commission later retroactively amended and reduced the guidelines range applicable

to his drug conviction. Watts moved for a sentence reduction in light of that amendment. The

district court denied his motion on the ground that it lacked the authority to reduce a sentence

based on a binding plea agreement rather than the guidelines. Because the 156-month sentence

in Watts’s plea agreement is not expressly based on the guidelines, we agree and affirm.

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

range that has subsequently been lowered by the Sentencing Commission.” But a sentence

imposed under a mandatory plea agreement, see Fed. R. Crim. P. 11(c)(1)(C), may be reduced in

light of a guidelines amendment “only when that guideline range is explicitly referenced in a plea

agreement.” United States v. McNeese, 819 F.3d 922, 927 (6th Cir. 2016) (emphasis in original)
Case No. 16-1338
United States v. Watts
(quotation omitted). That rule derives from Justice Sotomayor’s controlling concurrence in

Freeman v. United States, which held that sentences in Rule 11(c)(1)(C) agreements are

generally “based on” the agreements themselves rather than the guidelines, except where an

agreement “expressly uses a Guidelines sentencing range . . . to establish the term of

imprisonment.” 564 U.S. 522, 534 (2011) (Sotomayor, J., concurring); see McNeese, 819 F.3d at

927.

       This plea agreement does not explicitly refer to any guidelines range, and Watts is thus

ineligible for a sentence reduction under § 3582(c). The agreement, in relevant part, explains

that the parties “agree to a sentence of 156 months’ imprisonment . . . [after] independent

evaluation of the time, risks, and potential outcomes associated with a trial. Both parties have

also independently concluded, after referencing the United States Sentencing Guidelines and

potential litigation associated with their application, that the agreed-upon term of imprisonment

is substantively reasonable.” R. 47 at 7. The agreement does not provide, as the Freeman

agreement did, that Watts was to be sentenced within any particular guidelines range. See

Freeman, 564 U.S. at 542. Nor does it otherwise use a particular guidelines range as “the basis

for the specified term” of imprisonment. McNeese, 819 F.3d at 927; see Freeman 564 U.S. at

539. It says instead that a 156-month sentence was agreed to after the parties “independently

concluded” that not just the guidelines, but the costs and risks of trial as well, made this an

equitable sentence. That means that the sentence is explicitly based on “a whole range of

considerations,” R. 85 at 3, and does not “expressly use[]” any particular guidelines range.

Freeman, 564 U.S. at 539.

       Confirming the point is the reality that the parties never agreed on what the proper

guidelines range was. The presentence report calculated a guidelines range of 248–295 months.



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Case No. 16-1338
United States v. Watts
At the sentencing hearing, where the district court heard argument on the guidelines in order to

assess the reasonableness of the agreement, Watts objected to three of the enhancements in the

presentence report’s calculation. The government argued that two of those three enhancements,

for leadership in a conspiracy and obstruction of justice, were appropriate. The district court

sustained Watts’s objections to two of the three enhancements and eventually settled on a range

of 190–222 months before accepting that the agreement’s 156-month sentence was reasonable.

The parties cannot have agreed to a guidelines range they did not agree on, which means this

Rule 11(c)(1)(C) agreement cannot be “based on” the guidelines.

       Watts responds that he is eligible for a reduction under Freeman because the agreement

“repeatedly referenced the sentencing guidelines.” Appellant’s Br. 23. But general references to

the guidelines, which clarify that the parties and the court independently considered them, is not

the same as expressly using a particular “Guidelines sentencing range” to determine the

sentence. Freeman, 564 U.S. at 539 (emphasis added). The agreement’s references to the

guidelines show that the parties had not agreed on a guidelines range because they contemplated

an eventual dispute over the proper range at the sentencing hearing. There was no guideline

calculation worksheet attached to the agreement, as there was when we allowed a sentence

reduction in United States v. Smith, 658 F.3d 608, 613 (6th Cir. 2011). The agreement did not

cap the possible sentence at the top of a particular guidelines range or specify an “Agreed

Guideline Range,” as in United States v. Garrett, 758 F.3d 749, 751 (6th Cir. 2014). And Watts

received a specific term of imprisonment far below even the revised guidelines range. That

means his sentence is no more “based on” the guidelines than any sentence imposed under a Rule

11(c)(1)(C) agreement that does not depend on the guidelines themselves. Rather, his sentence is

“based on” the agreement itself. Watts is therefore ineligible for relief under § 3582(c).



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United States v. Watts
       For these reasons, we affirm.




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