                              In the

United States Court of Appeals
                 For the Seventh Circuit

No. 11-3802

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

R ICKY D IXON,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 1:99-cr-00545—John W. Darrah, Judge.



      A RGUED M ARCH 28, 2012—D ECIDED JULY 18, 2012




  Before M ANION, S YKES, and H AMILTON, Circuit Judges.
  H AMILTON, Circuit Judge. Ricky Dixon is serving a
sentence for conspiracy to distribute crack cocaine.
The district court denied his motion for a reduced
sentence pursuant to 18 U.S.C. § 3582(c)(2) based on retro-
active changes to the crack cocaine sentencing guide-
lines. The district court held that it lacked the authority
to grant Dixon the relief he sought because his sen-
tence was based not on a sentencing range that was
2                                                    No. 11-3802

subsequently lowered retroactively, but was instead
based on his binding plea agreement. In light of the
Supreme Court’s several opinions in Freeman v. United
States, 564 U.S. ___, 131 S. Ct. 2685 (2011), we must affirm.
   Dixon pled guilty to conspiracy to possess crack cocaine
with the intent to distribute it. He was sentenced in
November 2001 pursuant to a binding plea agreement.
(It was governed by the provision that was then codified
as Federal Rule of Criminal Procedure 11(e)(1)(C) but
was later moved without substantive change to Rule
11(c)(1)(C).) Dixon and the government agreed “that the
sentence imposed by the Court shall include a term of
imprisonment in the custody of the Bureau of Prisons
for at least fifteen but no more than twenty years.” Ac-
cepting the parties’ agreement, the district court sen-
tenced Dixon to fifteen years and ten months in prison.1



1
   A binding plea agreement may stipulate that “a specific
sentence or sentencing range is the appropriate disposition of
the case, or that a particular provision of the Sentencing Guide-
lines, or policy statement, or sentencing factor does or does not
apply.” Fed. R. Crim. P. 11(c)(1)(C). Once the court accepts the
plea agreement, “such a recommendation or request binds
the court.” Id. A court considering a binding plea agreement
has only three options: “accept the agreement, reject it, or
defer a decision until the court has reviewed the presentence
report.” Fed. R. Crim. P. 11(c)(3)(A). If the court accepts the
agreement, “the agreed disposition will be included in the
judgment.” Fed. R. Crim. P. 11(c)(4). If the court rejects it, the
defendant must be advised that “the court is not required
                                                     (continued...)
No. 11-3802                                               3

  Ten years later, in November 2011, Dixon filed a
motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2), Amendment 750 to the Sentencing Guide-
lines, and U.S.S.G. § 1B1.10. The district court denied
his motion, concluding that Dixon’s sentence was based
on his binding plea agreement rather than on a
Guideline sentencing range that had been lowered. As
a result, Dixon was not legally eligible for a sentence
reduction. Dixon appeals. We review de novo a district
court’s determination of whether a sentence is legally
eligible for a discretionary reduction under § 3582(c)(2).
See United States v. Johnson, 571 F.3d 716, 717 (7th Cir.
2009); accord, United States v. Rivera, 662 F.3d 166, 170
(2d Cir. 2011) (even though a ruling granting or denying
an eligible offender’s request for a reduction under
§ 3582(c)(2) is reviewed for abuse of discretion, an order
declaring an offender legally ineligible for a reduction
is reviewed de novo); United States v. Fanfan, 558 F.3d 105,
106-07 (1st Cir. 2009) (same); United States v. Melvin, 556
F.3d 1190, 1191 (11th Cir. 2009) (applying de novo
review to scope of authority).
  The Sentencing Commission issued a policy state-
ment, effective November 1, 2011, that made retroactive
the terms of Amendment 748, which had lowered the
offense levels for most crack cocaine offenses. U.S.S.G.
§ 1B1.10(c); U.S.S.G. Appx. C., Amend. 750 (Part A). The



1
  (...continued)
to follow the plea agreement” and must be given an oppor-
tunity to withdraw the plea. Fed. R. Crim. P. 11(c)(5)(B).
4                                               No. 11-3802

Commission’s exercise of this authority triggered an
exception to the general rule that sentencing courts are
not authorized to modify sentences after they are im-
posed. The precise phrasing of the statutory exception
is critical for the issue presented here: a district court
may exercise this authority “in the case of 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) (emphasis added). The question is whether
Dixon’s sentence, which was imposed pursuant to a
binding plea agreement, was “based on” a subsequently
reduced sentencing range or whether it was instead
based on the agreement itself, distinct from the guide-
line range.
  In Freeman v. United States, 564 U.S. ___, 131 S. Ct. 2685
(2011), the Supreme Court faced this question and split
four to one to four. Four Justices concluded: “Even when
a defendant enters into an 11(c)(1)(C) agreement, the
judge’s decision to accept the plea and impose the recom-
mended sentence is likely to be based on the Guidelines;
and when it is, the defendant should be eligible to seek
§ 3582(c)(2) relief.” Id. at 2695 (Kennedy, J.). For those
Justices, in other words, a binding plea agreement will
nearly always be based on the applicable Guidelines, so
that the resulting sentence will essentially always be based
on the applicable Guidelines and eligible for relief under
§ 3582(c)(2). Four dissenting Justices took the opposite
view, concluding that a district court never has authority
to grant § 3582(c)(2) relief to defendants sentenced
under a binding plea agreement. Those Justices reasoned
No. 11-3802                                              5

that such a defendant’s sentence is based not on a Guide-
line sentencing range but on the plea agreement. 131 S. Ct.
at 2700-01 (Roberts, C.J., dissenting). In a separate
opinion concurring in the judgment authorizing relief to
petitioner Freeman, Justice Sotomayor concluded that
district courts sometimes have authority to grant
§ 3582(c)(2) relief to a defendant who enters a binding
plea agreement, and sometimes do not, depending on
the specific language of the written plea agreement. 131
S. Ct. at 2695 (Sotomayor, J., concurring in the judgment).
   Justice Sotomayor agreed with the dissent that a sen-
tence imposed pursuant to a binding plea agreement
is based on the agreement so that relief under § 3582(c)(2)
is usually not available. The binding plea agreement is
the foundation of the term of imprisonment, and “at the
moment of sentencing, the court simply implements
the terms of the agreement it has already accepted.” Id. at
2696. In this view, the fact that a judge may consult
the Sentencing Guidelines when deciding whether to
accept a binding plea agreement is irrelevant. “[P]lea
bargaining necessarily occurs in the shadow of the sen-
tencing scheme to which the defendant would otherwise
be subject. . . . The term of imprisonment imposed by
the district court, however, is not ‘based on’ those back-
ground negotiations; instead . . . it is based on the
binding agreement produced by those negotiations.” Id.
at 2697 (internal citations omitted).
  Justice Sotomayor concluded, however, that there
should be two limited exceptions to this general rule. One
applied to Freeman, so she voted to grant relief in that
6                                               No. 11-3802

specific case. The first exception is when a binding plea
agreement itself “call[s] for the defendant to be sentenced
within a particular Guidelines sentencing range,” which
the court then accepts. Id. at 2697. In such a case, “there
can be no doubt that the term of imprisonment the court
imposes is ‘based on’ the agreed-upon sentencing
range within the meaning of § 3582(c)(2).” Id. Under the
second exception:
    a plea agreement might provide for a specific term
    of imprisonment — such as a number of months — but
    also make clear that the basis for the specified term
    is a Guidelines sentencing range applicable to the
    offense to which the defendant pleaded guilty. As
    long as that sentencing range is evident from the
    agreement itself, for purposes of § 3582(c)(2) the term
    of imprisonment imposed by the court in accordance
    with that agreement is “based on” that range.
Id. at 2697-98. In Freeman, this second exception applied.
Freeman’s binding plea agreement expressly used the
Guidelines to establish the term of imprisonment, so
Justice Sotomayor concurred in the plurality’s judgment
that the district court had authority to reduce his sen-
tence. See id. at 2699-2700.
  When a majority of the justices do not agree on a
single rationale for deciding a case, “the holding of the
Court may be viewed as that position taken by those
Members who concurred in the judgments on the nar-
rowest grounds.” Marks v. United States, 430 U.S. 188, 193
(1977); quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15
(1976) (opinion of Stewart, Powell, and Stevens, JJ.). Marks
No. 11-3802                                                 7

is easy to apply here. Even though eight Justices
disagreed with Justice Sotomayor’s approach and
believed it would produce arbitrary and unworkable
results, see 131 S. Ct. at 2694-95 (plurality), 2703-04 (dis-
sent), her reasoning provided the narrowest, most case-
specific basis for deciding Freeman. Her approach there-
fore states the controlling law. See United States v.
Austin, 676 F.3d 924, 927-28 (9th Cir. 2012) (applying
Marks to treat Justice Sotomayor’s concurring opinion in
Freeman as controlling authority); United States v. Rivera-
Martínez, 665 F.3d 344, 348 (1st Cir. 2011) (same), petition
for cert. filed (March 19, 2012) (No. 11-10759); United States
v. Smith, 658 F.3d 608, 611 (6th Cir. 2011) (same); United
States v. Brown, 653 F.3d 337, 340 n.1 (4th Cir. 2011) (same).
Thus, the operative question in determining whether
Dixon is eligible for a sentence reduction is whether his
plea agreement expressly uses a Guidelines sentencing
range to establish his term of imprisonment. It does not,
and under Justice Sotomayor’s controlling rationale, he
is not eligible.
  Under Justice Sotomayor’s approach, a prisoner sen-
tenced under a binding plea agreement is eligible for
§ 3582(c)(2) relief only if the binding plea agreement
itself expressly refers to and relies on a guideline sen-
tencing range. Dixon’s written plea agreement provided
that “the parties have agreed that the sentence imposed
by the Court shall include a term of imprisonment in
the custody of the Bureau of Prisons for at least fifteen
but no more than twenty years.” Because there was no
specific reference to a Guideline range, Dixon’s agree-
ment does not qualify for Justice Sotomayor’s first excep-
8                                               No. 11-3802

tion. To qualify under her second exception, his agree-
ment either would have had to “expressly use” a Guide-
line range or a Guidelines sentencing range would have
to be “evident from the agreement itself.” No Guideline
range appears in the written terms of the plea agree-
ment that could have formed the basis for the fifteen
to twenty year sentencing range. Nevertheless, the agree-
ment sets forth information about Dixon’s offense level
(37) and criminal history category (VI). The Guideline
range for offense level 37 and criminal history category VI
is 360 months to life in prison. That much is evident
from the agreement itself. Unlike the plea agreement in
Freeman, though, Dixon’s plea agreement did not
expressly link the offense level and criminal history to
the much lower agreed sentence range — fifteen to
twenty years’ imprisonment. In short, the written terms
of the agreement itself do not “make clear” that any
particular Guidelines range was “employed.” See
Freeman, 131 S. Ct. at 2697, 2700 (Sotomayor, J., concurring
in the judgment).
  Instead, the link between the Guidelines and the range
under the binding plea agreement came from the pros-
ecutor’s oral statements at the sentencing hearing.
Dixon argues that those statements show beyond rea-
sonable doubt that, although a Guidelines range is not
expressly stated in the written agreement, the imprison-
ment range agreed to by the parties was based on the
Guidelines. The agreed range was from one-half to two-
thirds of the bottom of the applicable Guideline
range, with the reduction based on Dixon’s substantial
assistance to the government. See U.S.S.G. § 5K1.1 (down-
No. 11-3802                                              9

ward departure for substantial assistance). At the sen-
tencing hearing, the prosecutor advised the court
that Dixon had provided helpful and truthful informa-
tion relating to several ongoing investigations and had
assisted the government in securing the cooperation of
other individuals still on the street, ultimately making “a
strong recommendation for a downward departure in
this case.” The prosecutor explained more specifically
the terms of the parties’ agreement as providing a de-
parture for substantial assistance: “In terms of some
additional guidance for Your Honor. The range, the 15- to
20-year range is a half to a third off. That’s the spread.”
Nov. 2, 2001 Tr. at 18-19. The judge sentenced Dixon to
190 months, saying that was “close to the low end of the
agreement.” Id. at 24. For present purposes, these oral
statements tie the range in the binding plea agreement
directly to the applicable Guideline range: the parties
agreed that Dixon’s sentence should be one-half to two-
thirds of the low end of his applicable Guideline range.
  If the written agreement itself had said what the pros-
ecutor told the court, that Dixon should receive a
discount of one-third to one-half from the bottom of
the applicable Guideline range, then under Justice
Sotomayor’s opinion, the district court could have exer-
cised its discretion to decide to grant or deny relief
to Dixon. See 131 S. Ct. at 2700 n.9. But are such oral
statements sufficient to allow § 3582(c)(2) relief under
Justice Sotomayor’s approach in Freeman? As we read
the opinion, we think the answer is no.
  The Sixth Circuit recently considered this question
from the opposite perspective, whether oral statements
10                                              No. 11-3802

could contradict a written plea agreement’s reliance on
a Guideline range, and said no. In United States v. Smith,
658 F.3d 608, 612-13 (6th Cir. 2011), the Sixth Circuit held
that the defendant was eligible for sentence reduction
based on the worksheet attached to the plea agreement
detailing the parties’ Guideline calculations. The govern-
ment had opposed the defendant’s sentence reduction
motion by arguing that statements made by defendant’s
trial counsel in objecting to the probation officer’s cal-
culation of the Guideline range were an “admission” that
the defendant’s binding plea agreement was not based on
the Guidelines, contrary to a Guidelines worksheet the
parties had attached to the agreement. The court rea-
soned that Justice Sotomayor had rejected the idea that
courts can consider parol evidence to ascertain whether
the sentence in the plea agreement was based on the
Guidelines. Id. at 613, quoting Freeman, 131 S. Ct. at 2697
(“I therefore cannot agree with Freeman that § 3582(c)(2)
calls upon district courts to engage in a free-ranging
search through the parties’ negotiating history in search
of a Guidelines sentencing range that might have been
relevant to the agreement or the court’s acceptance of
it.”). Consequently, the Sixth Circuit found that Smith’s
counsel’s “after-the-fact statements about the basis for
the plea agreement” were not relevant to Smith’s eligi-
bility for a sentence reduction. 658 F.3d at 613.
  In this case, it is the defendant who seeks to rely on
the oral statements. The prosecutor’s oral statements in
Dixon’s sentencing hearing informed the court of the
parties’ negotiations that resulted in the binding plea
No. 11-3802                                                11

agreement for a one-third to one-half discount from the
bottom of the applicable Guideline range. It is hard to
believe that these assurances were not relevant, per-
haps even decisive, in the judge’s decision to accept
the binding plea agreement. Nevertheless, Justice
Sotomayor’s controlling opinion in Freeman addressed
this possibility and rejected reliance on the parties’ negoti-
ations and oral explanations beyond the scope of
the written agreement itself.
  All that matters is whether the parties’ binding plea
agreement was expressly based on the Sentencing Guide-
lines, not whether the Guidelines informed the parties’
decision to enter into the agreement or whether the
Guidelines informed the court’s decision to accept the
agreement. See, e.g., Rivera-Martínez, 665 F.3d at 349-50
(defendant ineligible where plea agreement contained
an offense level but did not identify any Guidelines
sentencing range or a criminal history category); Brown,
653 F.3d at 340 (defendant ineligible where plea agree-
ment, although specifying a range of possible terms of
imprisonment, did not “expressly use a Guidelines sen-
tencing range to establish his term of imprisonment”).
Dixon’s binding plea agreement contained an offense
level and criminal history category sufficient to
determine that the applicable Guideline range was 360
months to life in prison. The written agreement then
provided for a binding range of 180 to 240 months in
prison. The written agreement therefore did not expressly
base the agreed sentence on a Guideline range in the
written agreement itself. Pursuant to Justice Sotomayor’s
controlling opinion in Freeman, we find ourselves con-
12                                         No. 11-3802

strained to conclude that Dixon’s sentence was not
“based on” a subsequently-reduced Sentencing Guide-
line range. Accordingly, Dixon is not eligible for a
sentence reduction under § 3582(c)(2). The judgment of
the district court is
                                            A FFIRMED.




                        7-18-12
