                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                    No. 09-2391
                                  _______________

                          UNITED STATES OF AMERICA

                                           v.

                                ROBERT CARRIGAN,

                                                Appellant

                                  _______________

                    On Appeal from the United States District Court
                       For the Middle District of Pennsylvania
                    (D.C. Criminal Action No. 3-04-cr-00250-003)
                     District Judge: Honorable James M. Munley
                                  _______________

                                On Remand from the
                          Supreme Court of the United States
                                  August 1, 2011
                                 _______________

              Before: SLOVITER, AMBRO, and SMITH, Circuit Judges

                            (Opinion filed: October 5, 2011)
                                  _______________

                                     OPINION
                                  _______________

PER CURIAM

      The Supreme Court has vacated our Order granting the Government’s motion for

summary action and remanded for us to reconsider Robert Carrigan’s appeal in light of
the Court’s recent decision in Freeman v. United States, 131 S. Ct. 2685 (2011). See

Carrigan v. United States, No. 10-6258, 2011 WL 2535077 (June 28, 2011).

       Carrigan was arrested and charged with conspiracy to distribute in excess of 50

grams of cocaine base (“crack”) and 500 grams of cocaine, in violation of 21 U.S.C.

§ 846. In November 2005, he entered into a plea agreement with the Government

pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). The plea agreement, which

was based on the Federal Sentencing Guidelines in effect at the time, recommended a

sentence of 110 months as well as a minimum fine and a special assessment of $100. The

parties stipulated that Carrigan was classified as a career offender under § 4B1.1 of the

Sentencing Guidelines, resulting in a base offense level of 34 and a criminal history

category of VI. The District Court reviewed the plea agreement, conducted a sufficient

plea colloquy, and on February 16, 2006 entered judgment pursuant to the plea

agreement.

       Effective November 1, 2007, the United States Sentencing Commission lowered

the sentencing ranges of cases involving cocaine base by two levels. See U.S. Sentencing

Guidelines Manual Supp. App. C, Amdt. 706. With another amendment effective March

2008, the Commission made that reduction in Guidelines sentences retroactive. See id.

Amdt. 713.

       Carrigan thereafter moved the District Court for reconsideration of his sentence,

which was based in part on a conspiracy to distribute cocaine base, under 18 U.S.C.

§ 3582(c)(2). That section permits sentencing courts to reduce prior sentences whose

ranges have subsequently been lowered by the Sentencing Commission. The

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Commission’s two-level reduction in cocaine base offenses would have lowered

Carrigan’s minimum sentence. However, Carrigan conceded that his 110-month sentence

would remain within the range established by the revised Guidelines.

       In April 2009, the District Court denied Carrigan’s motion. Its Order noted that

the 110-month sentence had been imposed under a plea agreement pursuant to Rule

11(c)(1)(C). We had recently held that defendants whose sentences were based on plea

agreements under Rule 11 were not eligible for sentencing reductions under § 3582(c)(2).

United States v. Sanchez, 562 F.3d 275, 279 (3d Cir. 2009). Carrigan appealed, and the

Government moved for summary action. Following our precedent in Sanchez, we

granted the Government’s motion in an order dated June 10, 2010.

       Carrigan appealed this Order to the Supreme Court, which granted certiorari,

vacated the order in light of its opinion in Freeman, and remanded to our Court. In that

case, the Supreme Court rejected our holding in Sanchez that Rule 11 plea agreements

foreclosed motions for sentence reductions pursuant to § 3582(c)(2). When “the judge’s

decision to accept the plea and impose the recommended sentence is . . . based on the

Guidelines,” the Freeman plurality wrote, “the defendant should be eligible to seek

§ 3582(c)(2) relief.” 131 S. Ct. at 2695.

       On receiving the Supreme Court’s opinion, we asked the parties to file

simultaneous memoranda regarding the effect of the Court’s decision on the merits of

Carrigan’s appeal. Both parties recognize that the District Court’s approval of the plea

agreement in this case was based on the Guidelines then in effect. Therefore, at a



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minimum, Freeman counsels that we remand this matter to the District Court so that it

can reconsider Carrigan’s sentence.

       Carrigan further urges us to reduce his sentence to 92 months, which he calculates

would be his minimum sentence under the revised Guidelines. We decline that

invitation. Freeman authorizes district courts to review motions under § 3582(c)(2)

notwithstanding Rule 11 plea agreements, but it does not compel those courts or our

Court to reduce sentences to their new Guidelines minimums. This is a matter more

appropriately to be decided by the District Court. We therefore allow the District Court

the opportunity to consider the issue in the first instance.

       Accordingly, we vacate the order of the District Court and remand for

consideration in light of the Supreme Court’s opinion in Freeman.




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