          United States Court of Appeals
                     For the First Circuit


No. 15-1898

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         RAYMOND NEGRÓN,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Joseph A. DiClerico, U.S. District Judge]


                             Before

                  Torruella, Lynch, and Barron,
                         Circuit Judges.


     Bruce E. Kenna, on brief for appellant.
     Seth R. Aframe, Assistant United States Attorney, and Emily
Gray Rice, United States Attorney, on brief for appellee.



                       September 14, 2016
           TORRUELLA, Circuit Judge.          Defendant-Appellant Raymond

Negrón appeals the United States District Court for the District

of New Hampshire's decision to deny a retroactive reduction to his

sentence   pursuant    to   18    U.S.C.     § 3582(c)(2).         Negrón   had

previously entered into plea agreement pursuant to Federal Rule of

Criminal Procedure 11(c)(1)(C), which "bind[s] the district court

to a pre-agreed sentence if the court accepts the plea."                United

States v. Rivera-Martínez, 665 F.3d 344, 345 (1st Cir. 2011).

Under so-called C-type plea agreements, a defendant is eligible

for a sentence reduction based on a retroactive amendment to the

United States Sentencing Guidelines ("Guidelines") only if the

term of imprisonment specified in the agreement is "based on" a

Guidelines sentencing range.         We agree with the district court

that the proposed sentenced in Negrón's plea agreement failed to

meet this requirement and affirm.

                                      I.

           On August 22, 2012, a federal grand jury returned a nine-

count   indictment    against    Negrón. 1    Negrón   and   the    Government


1  Counts one through five charged Negrón with controlled substance
offenses in violation of 21 U.S.C. § 841(a)(1). Count six charged
Negrón with sale of a firearm to a prohibited person in violation
of 18 U.S.C. § 922(d).      Counts seven through nine related to
Negrón's possession of a Mossberg twenty gauge bolt action shotgun.
Negrón was charged with possession of an unregistered firearm, 26
U.S.C. §§ 5861(d), 5841, 5871; possession of a firearm with an
obliterated serial number, 18 U.S.C. § 922(k); and possession of
a short-barreled shotgun during and in relation to a drug

                                     -2-
subsequently reached a plea agreement in which Negrón pled guilty

to counts one through eight.       The Government dismissed count nine,

which carried a mandatory minimum consecutive sentence of 120

months' imprisonment.     See 18 U.S.C. § 924(c)(1)(B)(i).       Negrón's

plea agreement was made pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(C).         Under so-called C-type plea agreements,

"the parties bind the district court to a pre-agreed sentence if

the court accepts the plea."         Rivera-Martínez, 665 F.3d at 345.

Although the plea agreement did not state a base level offense,

applicable Guidelines range, or criminal history category ("CHC"),

the parties stipulated that Negrón would be sentenced to 144

months' imprisonment.

           The district court conducted a sentencing hearing on

June 13, 2013, and determined that Negrón had a total base offense

level of 25 and CHC of I, corresponding to a Guidelines range

sentence of 57 to 71 months' imprisonment.              Noting that the

stipulated sentence was "slightly over twice the high end of the

advisory   guideline,"    the     district   court   accepted   the   plea

agreement and imposed the stipulated sentence.

           In   2014,    the    United    States   Sentencing   Commission

retroactively reduced the base offense level for many drug offenses




trafficking crime, 18 U.S.C. § 924(c)(1)(B)(i).


                                    -3-
by two levels.       See U.S.S.G. § 1B1.10(a)(1); U.S.S.G. supplement

to app. C amend. 782 (Nov. 1, 2014); United States v. Vaughn, 806

F.3d 640, 643 (1st Cir. 2015).         Because several of his convictions

were for controlled substance offenses, Negrón subsequently filed

a motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2).

The   district     court    denied    Negrón's   motion,    concluding   that

Negrón's sentence was not based on a Guidelines sentencing range

affected by an amendment.         This timely appeal followed.

                                       II.

             A   district     court   performs   a   "two-step    inquiry"   in

determining whether a defendant is entitled to a sentence reduction

under § 3582(c)(2).         Dillon v. United States, 560 U.S. 817, 826

(2010).     First, the district court must determine whether any

applicable       Guidelines    amendments    apply     to   the   defendant's

sentence.    Id. at 826-27.      Second, if the district court concludes

the defendant is eligible for relief, it must weigh the sentencing

factors described in 18 U.S.C. § 3553(a) and determine whether a

reduction is warranted.         Id.    Here, the sole issue on appeal is

whether the district court properly applied our decision in Rivera-

Martínez, 665 F.3d at 344, to conclude that Negrón was ineligible

for relief.2      Although "[w]e review a district court's denial of


2  The district court stated that, if Negrón were legally eligible,
it would have reduced his sentence to 116 months' imprisonment.


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a motion for reduction of sentence under section 3582(c)(2) for

abuse of discretion," United States v. Caraballo, 552 F.3d 6, 8

(1st   Cir.    2008),    because    Negrón    contends    the    district    court

committed legal error, our review is effectively de novo, id. ("A

material error of law is perforce an abuse of discretion.").

              Courts    may   reduce   the    term   of   imprisonment      for    "a

defendant who has been sentenced to a term of imprisonment based

on a sentencing range that has subsequently been lowered by the

Sentencing Commission."            18 U.S.C. § 3582(c)(2).         The term of

imprisonment in a C-type plea agreement is "based on" a Guidelines

sentencing range in two scenarios: (1) when the agreement "calls

for a sentence within an identified sentencing range," Rivera-

Martínez, 665 F.3d at 348, and (2) when "the terms contained within

the four corners of the plea agreement," id. at 349, "make clear

that the basis for a specified term of imprisonment is a Guidelines

sentencing range applicable to the offense to which the defendant

pleaded guilty," id. at 348 (alterations omitted) (quoting Freeman

v.   United    States,    564   U.S.   522,    539   (2011)     (Sotomayor,       J.,

concurring)).3



3  We acknowledge that since we decided Rivera-Martínez, two other
circuits have concluded that Justice Sotomayor's concurrence is
not the narrowest opinion in Freeman v. United States and thus
nonbinding.   See United States v. Davis, __ F.3d __, 2016 WL
324504316 (9th Cir. June 13, 2016) (en banc); United States v.
Epps, 707 F.3d 337 (D.C. Cir. 2013). Nonetheless, we view Rivera-

                                       -5-
             Negrón acknowledges his term of imprisonment is not

within a specific Guidelines sentencing range, but argues that his

plea agreement fell into this second category.                  As in Rivera-

Martínez,     however,    Negrón's   plea     agreement       lacks   the    "two

essential coordinates" that show a Guidelines sentencing range

underpins the proposed sentence.           Id. at 349.        In that case, we

found that a C-type plea agreement that failed to specify a CHC

(despite specifying a base offense level) could not be considered

to be based on a Guidelines sentencing range.             Id.    Negrón's case

is even weaker because his plea agreement contains neither a base

offense level nor a CHC.         Absent either of these two essential

coordinates, we cannot conclude Negrón's plea agreement was based

on a Guidelines sentencing range.           Id.

             Nonetheless, Negrón contends that we can infer both

numbers from the four corners of his plea agreement.              With respect

to the base offense level, Negrón argues his plea agreement

contains all of the facts necessary to calculate this integer.

With respect to his CHC, Negrón claims this number was never

seriously contested, due to his relatively sparse criminal record,

and is obvious from his presentence report.            Finally, Negrón cites

the   fact   that   at   his   sentencing    hearing    the     district    court




Martínez as controlling Negrón's appeal.


                                     -6-
acknowledged that 144 months' imprisonment was equal to doubling

the high end of the applicable Guidelines range and "rounding [up

to] an even twelve-year sentence."             Negrón views this statement

as evidence that his plea agreement was based on a Guidelines

sentencing range.

            Negrón's      arguments   run    contrary     to     our   holding   in

Rivera-Martínez.       Under the Guidelines, a district court may

accept a C-type plea agreement only if the agreement stipulates a

sentence that is within the applicable Guidelines range or the

district court is satisfied that the sentence departs from the

Guidelines range "for justifiable reasons."               U.S.S.G. § 6B1.2(c).

In other words, even with C-type plea agreements, the district

court must calculate the defendant's base offense level and CHC to

determine   whether       the   sentence    negotiated    by     the   parties   is

acceptable.       Because we have rejected the view that all C-type

plea agreements may qualify for relief under § 3582(c)(2), we have

held that the fact that the district court "perform[ed] [Guidelines

calculations] before deciding whether to accept the agreement" is

insufficient to show that the stipulated sentence is based on a

Guidelines sentencing range.          Rivera-Martínez, 665 F.3d at 349.

            The    inclusion     of   admitted    facts     in    Negrón's   plea

agreement   does    not    necessarily      demonstrate    that    that   parties

intended to base his sentence on a particular base offense level.


                                       -7-
Rather, these facts merely helped the district court perform the

Guidelines analysis necessary to its review of the agreement.

Moreover, a sentencing court need not rely exclusively on the facts

listed    in    a    plea   agreement     when    performing        its    Guidelines

calculation to determine whether to accept the plea.                      The district

court and Negrón both relied on his presentence report -- a

document outside of the four corners of the plea agreement -- to

calculate his CHC.          We therefore reject Negrón's contention that

we can infer that he and the Government had a specific base offense

level in mind from the stipulated facts in his plea agreement.

               We also decline Negrón's invitation to find that his

plea   agreement      implicitly   referenced          his   CHC.     Although    the

"obviousness" of this integer may be an explanation for its absence

from the plea agreement, it is not the only one.                    The absence of

the CHC is equally consistent with the parties simply viewing other

factors    besides      Negrón's   Guidelines          range   as    important     to

determining his sentence.

               For   similar   reasons,    we    are    equally     unpersuaded    by

Negrón's argument that his plea agreement must have been based on

a Guidelines sentencing range because his stipulated sentence is

roughly double the high end of the Guidelines sentencing range.

We have recognized that the "term of imprisonment in a C-type plea

agreement will most often be negotiated by reference to the


                                        -8-
relevant guideline provisions" and interpreted § 3582(c)(2) as

requiring a stronger "linkage."               Id. (citing Freeman, 564 U.S. at

537).    Negrón's observation falls short.               Although the district

court    acknowledged       some    relationship       between    the        stipulated

sentence and the applicable Guidelines range, the district court

also factored into its analysis the fact that the Government had

agreed to dismiss count nine of Negrón's indictment, which carried

a    mandatory   minimum        consecutive         sentence     of     120     months'

imprisonment.         In    other    words,      non-Guidelines        factors      also

explained Negrón's proposed sentence.                Understanding the role the

Guidelines played vis-á-vis the dropped charge would require us to

"to supplement the [a]greement with . . . the parties' background

negotiations,"    something         Rivera-Martínez        forbids.           Id.      We

therefore    decline       to   accept    Negrón's     invitation       to     infer   a

Guidelines basis for his stipulated sentence.

            Finally, Negrón claims his stipulated sentence was based

on   a   Guidelines    sentencing        range   because    his       plea    agreement

contains    various    references        to   the   Guidelines        including     that

(1) the district court was required to consider the Guidelines in

an advisory capacity; (2) Negrón was aware that the Guidelines

were nonbinding; (3) the United States and the United States

Probation Office would advise the court of any inaccuracies in the

presentence report; and (4) the Government would not "oppose an


                                          -9-
appropriate reduction in [Negrón's] adjusted offense level, under

the advisory Sentencing Guidelines, based upon [Negrón's] prompt

recognition and affirmative acceptance of personal responsibility

for the offense."     These generic plea agreement statements are

insufficient to show that Negrón's term of imprisonment was based

on a Guidelines sentencing range because it is not "evident from

the agreement itself" that the "basis for the specified term [of

imprisonment] is a Guidelines sentencing range."       Freeman, 564

U.S. at 539 (Sotomayor, J., concurring).    They simply show that

the Guidelines would play some amorphous role in the parties'

negotiations and the district court's analysis of the plea.    This

falls short of the linkage Rivera-Martínez requires.

                               III.

          Because we cannot conclude that Negrón's sentence was

based on a Guidelines sentencing range, we agree with the district

court that he is not eligible for a sentencing reduction pursuant

to § 3582(c)(2).

          Affirmed.




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