                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1155
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                               Richard Lavern Hoskins

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                           Submitted: September 17, 2012
                              Filed: October 15, 2012
                                   [Unpublished]
                                  ____________

Before MELLOY, BEAM, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.

      Defendant Richard Hoskins appeals the district court's1 denial of his motion for
a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court rejected


      1
       The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
Hoskins's claim that his sentence under a Federal Rule of Criminal Procedure
11(c)(1)(C) plea agreement was "based on" the crack-cocaine guidelines. We affirm.

                                           I.

      Pursuant to a Rule 11(c)(1)(C) agreement, Hoskins pled guilty to conspiring
to manufacture, distribute, and possess with intent to distribute 50 grams or more of
cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Under
the agreement, Hoskins's sentence was "327 months imprisonment and a term of
supervised release for at least 10 years."

       For Hoskins to be eligible for a reduction in sentence, his sentence must be
"based on a sentencing range that has subsequently been lowered." 18 U.S.C. §
3582(c)(2). To determine whether the 327-month sentence was "based on" the crack-
cocaine guidelines, we must examine the various reasons for the sentence as stated
in the plea agreement. First, the plea agreement states that the "parties agree that this
sentence takes into account the cooperation already provided by the defendant."
Next, the plea agreement states that the sentence is

      based upon a consideration of the United States Sentencing Commission
      Guidelines and the enhanced mandatory minimum that would usually
      apply in this type of case and the statutes that apply to this offense and
      federal criminal cases in general. The parties understand that the
      provisions of the Sentencing Guidelines are advisory, not mandatory,
      and the district court will consider them, along with the factors set forth
      in Title 18, United States Code, Section 3553(a), in determining whether
      to accept this plea agreement and impose the stipulated sentence. The
      Sentencing Guidelines establish a sentencing range based upon factors
      determined to be present in the case. . . .

       The plea agreement then details various potentially applicable Guidelines
factors, including type and quantity of drugs involved, role in the offense, possession

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of a dangerous weapon, criminal history, acceptance of responsibility, and assistance
to the Government. The Government admitted that Hoskins provided substantial
assistance. Regarding every other listed Guidelines factor, the plea agreement states
that "the parties have reached no agreement" as to whether the factors are applicable.

       The plea agreement also discusses Hoskins's prior drug convictions. While the
plea agreement makes no official finding on Hoskins's career-offender status under
United States Sentencing Guidelines § 4B1.1, the agreement does state that Hoskins
"admits that he has two prior felony drug convictions and may be a Career Offender
under § 4B1.1 of the Federal Sentencing Guidelines." Hoskins also admits that these
convictions placed him under 21 U.S.C. § 841(b)(1)(A), which mandates a life
sentence for individuals previously convicted of two drug felonies. However, under
the plea agreement, the Government agreed to consider only one of Hoskins's prior
felonies as part of sentencing.

      The presentence investigation report (PSR) calculated a base offense level of
36 because Hoskins's offense involved at least 1.5 kilograms of cocaine base, but less
than 4.5 kilograms. After adjustments for role in the offense and acceptance of
responsibility, Hoskins's total offense level was 36, which produced a Guidelines
range of 324 to 405 months. The PSR found that Hoskins is a career offender, which
produced a Guidelines range of 262 to 327 months.

       The district court approved the plea agreement and sentenced Hoskins to the
327 months stipulated in the Rule 11(c)(1)(C) agreement. On December 16, 2011,
Hoskins filed a motion for reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2).
Hoskins asserted that he is eligible for a reduction pursuant to Freeman v. United
States, 131 S. Ct. 2685 (2011), because his sentence was "based on" a Guidelines
range subsequently lowered by the Sentencing Commission, the crack-cocaine
guidelines. See U.S. Sentencing Guidelines Manual, app. C, amend. 750 (2011). The
district court denied Hoskins's motion, finding that his sentence was not based on the

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crack-cocaine guidelines. The district court held that the stipulated sentence in the
agreement was not based on a Guidelines range, but instead on Hoskins's substantial
assistance to the Government and his desire to avoid a mandatory life sentence.
Alternatively, the district court held that if the agreement was based on a Guidelines
range, it was based on the career-offender guidelines, which have not subsequently
been lowered. Hoskins now appeals.

                                          II.

       On appeal, Hoskins only argues that the district court incorrectly concluded
that his plea agreement was based on the career-offender guidelines and not the
crack-cocaine guidelines. "We review de novo the district court's authority to modify
a sentence under 18 U.S.C. § 3582(c)(2)." United States v. Tolliver, 570 F.3d 1062,
1065 (8th Cir. 2009).

       In Freeman, the U.S. Supreme Court determined if, and when, a defendant who
entered into a Rule 11(c)(1)(C) agreement can move for a reduction in sentence under
18 U.S.C. § 3582(c)(2). 131 S. Ct. 2690. Four Justices held that Rule 11(c)(1)(C)
agreements are "based on" a Guidelines range and can be subject to a reduction in
sentence because district court judges are required to use the Guidelines as a range
when determining whether to accept an agreement. See id. at 2695. Justice
Sotomayor, who concurred in the judgment, affirmed the lower court on narrower
grounds. Id. Because Justice Sotomayor's opinion was decided on narrower grounds
than the plurality, we treat her opinion as the controlling authority. See, e.g., United
States v. Rubashkin, 655 F.3d 849, 865 (8th Cir. 2011) ("When there is no majority
opinion in a Supreme Court case, the holding of the [C]ourt may be viewed as that
position taken by those Members who concurred in the judgment on the narrowest
grounds." (citation and internal quotation marks omitted)).




                                          -4-
       Justice Sotomayor held that the sentence in a Rule 11(c)(1)(C) agreement is
"'based on' the agreement itself." Freeman, 131 S. Ct. at 2696. According to Justice
Sotomayor, using the Guidelines as a "yardstick" when crafting a Rule 11(c)(1)(C)
agreement is not enough to make the agreement "based on" a particular Guidelines
sentencing range. Id. Instead, the Rule 11(c)(1)(C) agreement must "expressly use[]"
the subsequently lowered Guidelines range. Id. at 2698. Justice Sotomayor described
two circumstances in which a sentence in a Rule 11(c)(1)(C) agreement is "based on"
a Guidelines range and eligible for a reduction in sentence: 1) the agreement states
that the defendant will be sentenced "within a particular Guidelines sentencing
range," or 2) the agreement calls for a "specific term of imprisonment — such as a
number of months — but also 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." Id. at 2697 (emphasis added).

      We agree with the district court's finding that Hoskins's plea agreement does
not expressly use the crack-cocaine guidelines. The agreement states that it "takes
into account" Hoskins cooperation. Further, the agreement refers to 21 U.S.C. §
841(b)(1)(A), which would mandate a life sentence for Hoskins without this Rule
11(c)(1)(C) agreement. While the agreement also discusses the Sentencing
Guidelines, these are only described as a factor, which does not "make clear" that the
basis for the sentence is the crack-cocaine guidelines. In fact, the crack-cocaine
guidelines range is not mentioned. Instead, Hoskins's 327-month sentence is at the
top of the career-offender range. Therefore, the plea agreement does not support
Hoskins's assertion that his 327-month sentence was based on a subsequently lowered
guideline range.

                                         III.

      For the foregoing reasons, we affirm the district court's judgment.
                      ______________________________

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