            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 17a0068n.06

                                       No. 16-5205

                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                                                                                FILED
                                                                          Jan 26, 2017
UNITED STATES OF AMERICA,                         )                   DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )     On Appeal from the United States
                                                  )     District Court for the Western
MARIO SEYMOUR,                                    )     District of Tennessee
                                                  )
       Defendant-Appellant.                       )
                                                  )
_________________________________/                )

Before: GUY, CLAY, GRIFFIN, Circuit Judges

       RALPH B. GUY, JR., Circuit Judge. Defendant, Mario Seymour, appeals the

district court’s order denying his motion for reduction of sentence. We affirm.

                                             I.

       Defendant pleaded guilty to conspiring to manufacture and distribute cocaine base,

cocaine, and marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846. The plea agreement

called for a sentence of 151 months. Defendant’s presentence report (PSR) calculated his

offense level as 36 and his criminal history category as II, for a guidelines range of 210 to

262 months. The parties stipulated an offense level of 32. The district court “utiliz[ed]

the sentencing guidelines as advisory” to arrive at an offense level of 34 and a guidelines
Case No. 16-5205                                                                      2
United States v. Seymour

range of 168 to 210 months. The district court accepted the plea agreement, finding that

it “provide[d] a[n] appropriate sentence,” and sentenced defendant to 151 months’

imprisonment.

       The United States Sentencing Commission retroactively amended U.S.S.G.

§ 2D1.1(c), which specifies offense levels for drug quantities, in November 2014. U.S.

Sentencing Guidelines Manual, Supplement to Appendix C, Amendment 782 (2014).

Defendant moved to reduce his sentence under 18 U.S.C. § 3582(c) in light of

Amendment 782. The district court denied the motion. It wrote that under the revised

guidelines, defendant’s range would be 168 to 210 months – “lower [sic – higher] than

the imposed sentence of 151 months” – and thus “not . . . appropriate pursuant to

U.S.S.G. § 1B1.10(b)(2)(A) because the term of imprisonment cannot be less than the

minimum of the amended guideline range without a reduction pursuant to § 5K1.1[.]”

Defendant appealed.

                                            II.

       Although we generally review a district court’s decision to modify a sentence

under § 3582 for an abuse of discretion, where the district court finds a defendant

ineligible for a reduction under § 3582, we review that determination de novo. United

States v. Valentine, 694 F.3d 665, 669 (6th Cir. 2012).

                                           III.

       A district court may modify an imposed term of imprisonment where it sentenced

a defendant based on a sentencing range the Sentencing Commission subsequently
Case No. 16-5205                                                                          3
United States v. Seymour

lowered. 18 U.S.C. § 3582(c)(2). The district court may reduce the sentence, after

considering the applicable 18 U.S.C. § 3553 factors, only “if such a reduction is

consistent with applicable policy statements issued by the Sentencing Commission.” Id.

In considering a reduction, the district court follows Dillon’s two-step inquiry: “A court

must first determine that a reduction is consistent with [U.S.S.G.] § 1B1.10 before it may

consider whether the authorized reduction is warranted, either in whole or in part,

according to the factors set forth in § 3553(a).” Dillon v. United States, 560 U.S. 817,

826 (2010); accord Valentine, 694 F.3d at 669.

       The Supreme Court has ruled – albeit fractiously – that district courts may reduce

at least some sentences imposed pursuant to plea agreements. Freeman v. United States,

564 U.S. 522, 530 (2011). The plurality opinion held that an agreed-upon sentence in a

plea agreement “does not discharge the district court’s independent obligation to exercise

its discretion” to find “that such sentence is an appropriate sentence within the applicable

guideline range or, if not, that the sentence departs from the applicable guideline range

for justifiable reasons.” Id. at 529. Accordingly, the plurality held, any plea agreement

sentence a district court accepts is inherently “based on the Guidelines” and may be

reduced under § 3582. Id. at 529-30; see also U.S.S.G. § 6B1.2(c) (a district court may

accept a plea agreement sentence only if it is within the guideline range or justifiably

outside it).

       Justice Sotomayor’s concurrence, however, “provid[es] the framework that

governs the [§ 3582 eligibility] inquiry” in this circuit. United States v. McNeese, 819
Case No. 16-5205                                                                            4
United States v. Seymour

F.3d 922, 927 (6th Cir. 2016). This approach looks solely to the terms of the plea

agreement, and permits a § 3582 reduction only where the agreement “call[s] for the

defendant to be sentenced within a particular Guidelines sentencing range” or “provide[s]

for a specific term of imprisonment . . . [and] 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.” Freeman, 564 U.S. at 538-39 (Sotomayor, J., concurring).

       Applying this approach, we have “unequivocally held that [a] defendant’s

sentence – for purposes of [§ 3582(c)(2)] – is based on a guideline range only when that

guideline range is explicitly referenced in a plea agreement.” McNeese, 819 F.3d at 927

(internal quotations omitted). Defendant’s plea agreement makes no reference to his

guideline range or any aspect of the sentencing guidelines other than a brief stipulation

for drug quantity. This stipulated gross base offense level of 32 is not an explicit

reference to the guideline range or the sentencing guidelines. Indeed, the stipulated

offense level is different from defendant’s calculated Total Offense Level of 36. And,

unlike in Freeman, defendant here did not “agree[] to have his sentence determined

pursuant to the Sentencing Guidelines.” Freeman, 564 U.S. at 542 (Sotomayor, J.,

concurring). Far from being based on a guideline range, the plea agreement merely

states, “The parties agree that an appropriate sentence in th[is] case is 151 months.”

       We cannot accept defendant’s argument that a guideline range “led directly to [his

plea agreement] sentence” without an explicit reference to a guideline range in the plea

agreement. To do so would require us to engage in a “free-ranging search through the
Case No. 16-5205                                                                         5
United States v. Seymour

parties’ negotiating history in search of a Guidelines sentencing range that might have

been relevant,” in direct contravention of McNeese and Freeman. McNeese, 819 F.3d at

928 (quoting Freeman, 564 U.S. at 538 (Sotomayor, J., concurring)).

       Because the plea agreement did not base defendant’s sentence on a guideline

range, the district court lacked authority to modify it. See 18 U.S.C. § 3582(c)(2). The

district court therefore properly denied defendant’s motion for reduction of sentence.

       AFFIRMED.
