United States v. Gilmore, 2016 U.S. App. LEXIS 20468

Jeremy Gilmore was convicted in 2009 of conspiracy to distribute methamphetamine and, because of two prior drug felonies, originally received a mandatory life sentence.
On collateral review under 28 U.S.C. § 2255 the district court found ineffective assistance of counsel and ordered the parties to meet and confer on a remedy.
The parties agreed a fair remedy was a written sentencing agreement whereby Gilmore would admit guilt in exchange for the government’s recommendation of a 168‑month sentence (designed to mirror the guideline range that would have applied with effective counsel). The district court accepted the agreement and resentenced him to 168 months.
In 2014 the Sentencing Commission made Amendment 782 retroactive, lowering certain offense levels in U.S.S.G. § 2D1.1 by two levels. Gilmore moved under 18 U.S.C. § 3582(c)(2) to reduce his 168‑month sentence to 135 months (the new guideline low end).
The district court dismissed the § 3582(c)(2) motion for lack of jurisdiction, concluding the sentence was not "based on" a guidelines range as required for § 3582(c)(2) relief, relying on Freeman. Gilmore appealed.
The Tenth Circuit affirmed, holding the resentencing agreement functioned like a Rule 11(c)(1)(C) agreement and the imposed term was not "based on" an applicable Guidelines range eligible for amendment relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gilmore’s 168‑month sentence is "based on" a Guidelines sentencing range for purposes of 18 U.S.C. § 3582(c)(2) (entitling him to Amendment 782 relief)	Gilmore: the 168‑month term mirrored the low end of the Guidelines range (total offense level 32, CHC IV), so his sentence was "based on" that range and should be reduced to reflect Amendment 782.	Government: the sentence was imposed pursuant to the parties’ sentencing agreement entered after § 2255 relief, not "based on" a Guidelines range that was later lowered; so § 3582(c)(2) relief is unavailable.	Court: affirmed dismissal — the term was not "based on" a Guidelines range for § 3582(c)(2) purposes because the parties’ agreement (like a Rule 11(c)(1)(C) agreement) controlled the term.

Freeman v. United States, 564 U.S. 522 (Sup. Ct. 2011) (concurrence analyzing when an agreed sentence is "based on" Guidelines range)
Marks v. United States, 430 U.S. 188 (1977) (Marks rule for identifying controlling opinion in fractured decisions)
United States v. Graham, 704 F.3d 1275 (10th Cir. 2013) (applies Freeman and Marks to § 3582(c)(2) context)
United States v. Williams, 575 F.3d 1075 (10th Cir. 2009) (standard of review and § 3582(c) authority)
Lafler v. Cooper, 566 U.S. 156 (2012) (discussion of proper Sixth Amendment remedies for ineffective assistance)