Dеfendant Jamahl Leonard was convicted in 2008 in the United States District Court for the Western District of New York (David G. Larimer, Judge), after pleading guilty to conspiracies to distribute 100 or more kilograms of marijuana, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846; and to launder the proceeds of that illegal trafficking, see 18 U.S.C. § 1956(h). Presently incarcerated, serving a 114-month prison term, Leonard appeals from a final order entered by the same court on June 15, 2015, which concluded that he was ineligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). The court reasoned that, although a post-conviction, retroactive amendment to the Sentencing Guidelines had lowered the 121-to-15Lmonth Guidelines range identified by the court at Leonard’s initial sentencing, the amended 97-to-121-month range was not lower than the 97-to-121-month range agreed to by the parties in their plea agreement under Fed. R. Crim. P. 11(c)(1)(C). Leonard challenges this conclusion, аrguing that, once the district court accepted his 11(c)(1)(C) plea agreement, the sentencing range specified therein became his “applicable” range for purposes of determining § 3582(c)(2) eligibility. And because the amendment lowered that range to 78 to 97 months, Leonard maintains he is- eligible for a sentence reduction to that extent.
The government defends the district court’s ineligibility determination, maintaining that (1) Leonard’s sentence was “based on” his 11(c)(1)(C) agreement, not the Sentencing Guidelines as required by § 3582(c)(2); and, (2) in any event, Leonard’s 114-month sentence is within the now-amended applicable range, (a) precluding a finding that his applicable range was lowered by a subsequent amendment as required by U.S.S.G. § lB1.10(a)(l), or (b) at least rendering any ineligibility error in this case harmless.
Neither party’s argument is completely persuasive. Contrary to the government, we conclude that Leonard is eligible for a § 3582(c)(2) sentence reduction because his original sentence was “based on” the Sentencing Guidelines as that statutory phrase has been construed by the five justices in the majority in
Freeman v. United States,
I. Background
A. Leonard Pleads Guilty Pursuant to a Buie 11(c)(1)(C) Agreement
On May 23, 2008, Leonard pleaded guilty to conspiring to distribute “at least 700 but less than 1,000 kilograms of marijuana,” and to laundering the proceeds of that criminal activity in an amount “more than $30,000 but less than $70,000.” App’x 9-10. In a written plea agreement, Leonard and the prosecution noted their agreement to certain Sentencing Guidelines calculations, specifically, to a base offense level of 30 with a three-level upward adjustment for aggravating role and a three-level downward adjustment for acceptance of responsibility. With further agreement to a criminal history category of I, the parties’ calculations yielded a “guideline sentencing range” of 97 to 121 months’ imprisonment. Id. at 13. Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties agreed that Leonard should be sentenced within this Guidelines range and that, if the district court were to reject that part of the plea agreement, “defendant shall then be afforded the opportunity to withdraw the plea of guilty.” App’x 13. 1
B. Sentencing
Prior to sentencing, the district court received a Presentence Investigation Report (“PSR”) from the Probation Department (“Probation”), which calculated Leonard’s Sentencing Guidelines range at 151 to 188 months rather than the 97-to-121-month range referenced in the parties’ 11(c)(1)(C) agreement. While Probation agreed that Leonard’s base offense level was 30 and that he was entitled to a three-level reduction for acceptance of responsibility, it recommended a two-level increase for possession of firearms by a co-conspirator, and a four- (rather than three-) level increase for Leonard’s organizing role. Further, because Leonard had committed the crimes of conviction while under conditional discharge from an earlier conviction, Probation calculated his criminal history category at II rather than I.
At sentencing, the district court rejected the recommended firearms enhancement, but adopted the four-point role enhance
C.' Amendments to Applicable Guidelines Range
Almost six years after Leonard’s sentencing, the United States Sentencing Commission issued two relevant Guidelines amendments. Amendment 782, which took effect in 2014, amended the Drug Quantity Table in U.S.S.G. § 2D1.1 to reduce the offense levels associated with certain controlled substances crimes by two levels. See U.S.S.G., Supp. to App. C, Amend. 782. Thus, the base offense level for the quantity of marijuana involved in Leonard’s drug crime of conviction was reduced from 30 to 28. See id. § 2D1.1(c)(6). Amendment 788, which also took effect in 2014, provided for retroactive application of Amendment 782. See id. at Supp. to App, C, Amend. 788.
D. Motion To Reduce Sentence
On May 11, 2015, Leonard invoked the two aforementioned amendments to move pro se for a sentence reduction pursuant to 18. U.S.C. § 3582(c)(2). 2 The district court denied the motion on June 15, 2015, concluding that Leonard was.ineligible for a sentence reduction. The court reasoned that, although it had “determined the applicable Guidelines range to be 121-151 months,” and the amendments had reduced that range to 97 to 121 months, it had in fact sentenced Leonard within the latter range pursuant to the plea agreement, such that Amendment 782 “[did] not have the effect of lowering the defendant’s applicable guideline range.” App’x 191; see U.S.S.G. § 1B1.10(a)(2)(B).
Leonard timely appealed from the decision. 3
II. Discussion
A. Standard of Review
Where, as here, a defendant seeks a sentence reduction based on a retroactive Guidelines аmendment, a district court must determine (1) whether the defendant is eligible for .a reduction pursuant to 18 U.S.C. § 3582(c)(2), and (2) whether a reduction is warranted in light of the factors listed in 18 U.S.C. § 3553(a).
See Dillon v. United States,
B. Leonard’s Eligibility for a Sentence Reduction
Congress has pronounced a convicted defendant eligible for a sentence reduction if (1) he “has been sentenced to a term of imprisonment
based on
a sentencing range that has subsequently beep lowered,” and (2) “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added). The pertinent policy statement conditions reduction eligibility on “the guideline range
applicable to
that defendant halving] subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (d).” U.S.S.G. § 1B1.10(a)(l) (emphasis added). Thus, two requirements must be satisfied for a defendant to bе eligible for a sentence reduction: (1) the original sentence must have been “based on” the Sentencing Guidelines, and (2) the amendment must have lowered the Guidelines range “applicable to” the defendant at the time of the original sentencing.
See United States v. Pleasant,
1. Leonard’s, Sentence Was “Based. On” a Subsequently Lowered Guidelines Range
In deciding whether-Leonard’s 114-month- sentence was “based on” a subsequently lowered Guidelines rangе, we are guided by the Supreme Court’s ruling in
Freeman v. United States,
This case is different. Although Leonard and the prosecutors agreed to an 11(c)(1)(C) sentence based on their Sentencing Guidelines calculation, that calculation yielded a lower range than the applicable range identified by the district court. Thus, we must consider whether the controlling rationale for decision in Freeman supports Leonard’s claim that his sentence, although imposed pursuant to that agreed-to lower range, was nevertheless “based on” the Guidelines for purposes of a § 3582(c)(2) reduction.
Generally, “[w]hen a fragmented [Supreme] Court decides a case and no single rationale explaining the result énjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Mеmbers who concurred in the judgment[ ] on the narrowest grounds.”
Marks v. United States,
Further, our sister circuits have divided in identifying
Freeman’s
controlling rationale. In published decisions, eight courts of appeals have recognized Justice Sotoma-yor’s concurring opinion as the narrower and, therefore, controlling, rationale for decision.
See United States v. Benitez,
We need not here decide which of the Freeman rationales for decision is the narrower, or which is more persuasive, because we conclude that Leonard’s 114-month sentence is properly recognized as “based on” the Sentencing Guidelines under the reasoning of either the plurality or the concurrence.
To explain, we begin with the plurality, which recognized that even 11(c)(1)(C) sentences that varied from the Guidelines range calculated by the district court could be “based on the Guidelines”; “Even where the judge varies” below the recommended Guidelines range, “if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense a basis for the sentence.”
Freeman v. United States,
That describes this case. The district court here began its consideration of Leonard’s sentence by independently calculating his applicable Guidelines range, adopting certain recommendations by Probation (as to role) and rejecting others (as to firearms possession), without regard to the parties’ 11(c)(1)(C) agreement. Only after thus identifying the applicable Guidelines range and then considering it together with “all the factors under [18 U.S.C.] Section 3553(a)” did the court effectively decide to vary from the Guidelines and to sentence Leonard within the lower range agreed to by the parties. App’x 94;
see United States v. Kuhlman,
On this record, we conclude that, under the
Freeman
plurality’s rationale for decision, Leonard’s sentence was “based on” the Sentencing Guidelines because the district court used his Guidelines range as “the beginning point” for its sentencing analysis, even though ultimately deciding to vary below that applicable range.
Freeman v. United States,
Turning to Justice Sotomayor’s concurrence, its rationale for decision focused not on the sentencing judge’s consideration of the Guidelines but on the terms of the parties’ agreement.
See id.
at 536-37,
Further, under the concurrence’s rationale for decision, no different conclusion is warranted because, in the agreement, the parties acknowledged that the district court was “not bound by the Sentencing Guidelines.”
Id.
at 11. Whatever options were available to the district court before it accepted the parties’ agreement, the
Freeman,
concurrence specifically states that, once the court indicated acceptance, it was “obligate[d] ... to sentence the defendant accordingly,” that is, according to the agreed-upon Guidelines calculation, so that its sentence was “ ‘based on’ the agreed-upon [Guidelines] sentencing range,”
Freeman v. United States,
A question arises, however, as to whether the concurrence’s rationale supports that “based on” conclusion even where, as here, the Guidelines sentencing range agreed to by the parties is not the Guidelines range independently calculated by the district court. In short, can a miscalculated range be deemed “based on” the Guidelines for purposes of § 3582(c)(2)? The
Freeman
dissenters posed that question as a challenge to the concurrence’s reasoning.
See id.
at 550-r51,131 S;Ct. 2685 (Roberts, C.J., dissenting). Justice Sotoma-yor, however, did not hesitate to answer in the affirmative: “Because it is the parties’ agreement that controls in the [11(c)(1) ](C) agreement context, ... even if the District Court had calculated the range differently than the parties, ... Freeman would still be eligible for resen-tencing, as long as the parties’ chosen range was one that, was subsequently lowered by the Sentencing Commission.”
Id.
at 542,
Because the district court in
Freeman
did not calculate defendant’s applicable Guidelines range differently from the parties, these exchanges about a circumstance not before the Court can be viewed as
dicta. See United States v. Santos,
Thus, although the Freeman concurrence and plurality employ different rationales for decision, under either, Leonard’s 114-month sentence is properly understood to be “based on” the Sentencing Guidelines even though the parties calculated those Guidelines in their 11(c)(1)(C) agreement differently than did the district court. Thus, Leonard satisfies the first eligibility requirement for a § 3582(c)(2) sentence reduction.
2. The Guidelines Range “Applicable To” Leonard Was Lowered by Amendment from 121 to 151 Months to 97 to 121 Months
Although Leonard’s sentence is “based on” the Guidelines, he is only eligible fоr a sentence reduction to the extent “the guideline range
applicable to
[him] has subsequently been lowered as a result of an amendment to the Guidelines.” U.S.S.G. § 1B1.10(a)(1) (emphasis added);
see id.
§ 1B1.10(b)(1) (stating that “whether, and to what extent” defendant’s sentence may be reduced is determined by amended applicable Guidelines range);
United States v. Pleasant,
Leonard argues that his initial applicable range was 97 to 121 months, the range specified in his 11(c)(1)(C) agreement, which the district court accepted. Becausе Amendment 782 lowered that range to 78 to 97 months, Leonard submits he is eligible for a reduction to that extent.
The government maintains that Leonard’s applicable Guidelines range was 121 to 151 months, the range calculated by the district court before accepting the parties’ agreement. It argues that because Amendment 782 lowered that range to 97 to 121 months—the range within which Leonard was sentenced pursuant to his 11(c)(1)(C) agreement—he is not entitled to any further reduction.
We agree that Leonard’s applicable Guidelines range was 121 to 151 months, but we do not agree that he is ineligible for any reduction from his 114-month sentence. That applicable range having been lowered to 97 to 121 months, the district court—in its discretion—could reduce Leonard’s sentence to anywhere from 97 to 113 months. Thus, Leonard is at least eligible for a sentence reduction to that extent.
To explаin our conclusion, we begin with the commentary to § IB 1.10, which explicitly defines the “applicable guideline range” that must be lowered to allow for a § 3582(c)(2) reduction as “the guideline range that corresponds to the offense level and criminal history category determined pursuant to § lBl.l(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.l(A). Two parts of this definition defeat Leonard’s argument that the 97-to-121-month range agreed to by the parties in their 11(c)(1)(C) agreement became his
First, § lBl.l(a), referenced in the above-quoted definition, states that “[t]he court shall determine the kinds of sentence and the guideline range as set forth in the guidelines,” whereupon it proceeds to specify the order in' which a court is to apply various Guidelines provisions. Id. § lBl.l(a) (emphases added). In short, the highlighted language plainly assigns responsibility- for determining the applicable Guidelines range to “the court,” not the parties, and requires the court to make that determination “as set forth.in the guidelines,” not by reference to the parties’ agreement. Id.
Second, and more compelling, the quoted definition states that the “applicable guideline range” is identified “before consideration of any departure ... or' any variance.”
Id.
§ 1B1.10 cmt. n.l(A). The Sentencing Commission explained that it added this language to the Guidelines commentary to resolve a circuit split on the issue of whether the applicable Guidelines range is determined before or after any departure or variance.
See id.
at App. C, Vol. Ill, Amend. 759, at 421. The definition makes plain that it is determined before. Our court has acknowledged as much in abrogating our own precedent at odds with the commentary definition.
See United States v. Steele,
As we have already explained, when a district court accepts an 11(c)(1)(C) sentence or sentencing range that is lower than its calculated Guidelines range, what the court effectively does is grant a departure or variance.
See supra
Part II. B.l. There is no doubt as to the court’s authority to do so. But that does not transform the lower agreed-upon range into the applicable Guidelines range. As the commentary to § 1B1.10 makes plain, the “applicable guideline range” for purposes of determining a defendant’s eligibility for a § 3582(c)(2) reduction is always that determined by the court as set forth in the Guidelines, without regard to the parties’ agreement to a different calculation, and before the exercise of any departure or variance discretion.
See United States v. Pleasant,
That conclusion is reinforced by U.S.S.G. § 6B1.2(c), which states that “the court may accept” an 11(c)(1)(C) agreement if the sentence agreed to therein is either (1) “within the applicable guideline range” or (2) “outside the applicable guideline range for justifiable reasons.” U.S.S.G. § 6B1.2(c)(l), (2) (policy statement). The second option plainly recognizes that an 11(c)(1)(C) sentence or sentencing range may
not
fall within or equate to the “applicable guideline range” as that term is defined in the commentary to § 1B1.10 and identified pursuant to § lBl.l(a).
See generally Brown v. Gardner,
Leonard maintains that the
Freeman
concurrence compels a different conclusion insofar as it states that, in the context of 11(c)(1)(C) sentences, “it is -the parties’ agreement that controls,” so that “even if the District Court had calculated the range differently than the parties, [defendant] would still be eligible for resentencing, as
long as the parties’ chosen range was one that was • subsequently ... lowered by the Sentencing Commission.” Freeman v. United States,
First,
Freeman
did not have to decide what constitutes the applicable sentencing range for purposes of a § 3582(c)(2) reduction. The defendant’s agreed-upon 11(c)(1)(C) sentence was there within the Guidelines range calculated by the district court, and there was no question that that range had been lowered by retroactive amendment.
See Freeman v. United States,
In these circumstances, whatever authority the
Freeman
concurring opinion commands under
Marks v. United States,
Specifically, the construction Leonard infers from the
Freeman
concurrence is now at odds with a subsequent amendment to the Guidelines that explicitly defines the “applicable” range that must be lowered for a party to be eligible for a § 3582(c)(2) reduction.
See
U.S.S.G. § 1B1.10 cmt.
Because this definition was added to the Guidelines on November 1, 2011,
id.
at App. C, Vol. Ill, Amend. 759⅛ at 421, some four months after the
Freeman
decision, it supersedes any contrary understanding of the - “applicable” Guidelines range that Leonard might urge from
dictum
in the concurring opinion.
See Stinson v. United States,
To the extent the decision we reach today differs from that in
United States v. McCall,
Second,
McCall
is distinguishable from this case in that, like in
Freeman,
the parties’ arguments there focuséd on whether the defendant’s sentence was “based on” the Guidelines.
See
Brief for Appellant McCall at 5-6, Brief for Appellee United States at 9-12,
United States v. McCall,
Accordingly, while
Freeman'
signáis that the 97-to-121-month range in Leonard’s 11(c)(1)(C) agreement was “based on” the Guidelines, commentary to the Guidelines now instincts that Leonard’s “applicable” Guidelines range was 121 to 151 months, as calculated by the district court pursuant to § 1B1.1(a) and
before
it. accepted an 11(c)(1)(C) agreement, effectively granting a variance. Because
that
applicable. range was retroactively lowered by Amendments 782 and 788 to 97 to 121 months, Leonard is eligible for a sentence reduction, but only to the extent of that range, , in short, to between 97 and 113 months. We thus vacate the challenged order and remand for the district court to consider whether to exercise its reduction discretion.
See United States v. Mock,
In urging against vacatur and remand, the government argues that any error in the district court’s understanding of Leonard’s eligibility for a § 3582(c)(2) reduction was necessarily harmless because, “having already used” a 97-to-121-month sentencing range—pursuant to the parties’ 11(c)(1)(C) agreement—to determine an appropriate sentence, “it is beyond cavil that the district court would have imposed the same 114-month sentence” in the exercise of its § 3582(c)(2) discretion. Appellee’s Br. 15;
see United States v. Mock,
In any event, a district court exercises its reduction discretion only “after considering the factors set forth in section 3553(a) to the extent they are applicable.” 18 U.S.C. § 3582(c)(2);
see Dillon v. United States,
We express no view as to how the district court should exercise its discretion. We conclude only that Leonard is eligible for a § 3582(c)(2) reduction of his 114-month sentence to a term not less than 97 months.
III. Conclusion
To summarize, we conclude as follows:
1. To be eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2), a defendant must satisfactorily demonstrate (a) that his sentence was “based on” the Sentencing Guidelines, and (b) that his “applicable” Guidelines range was lowered by a subsequent retroactive amendment.
2. Because (a) the district court considered the Guidelines in accepting the parties’ 11(c)(1)(C) plea agreement, and (b) the parties calculated the sentencing range specified in that agreement using the Sentencing Guidelines, Leonard’s sentence within that range is properly deemed “based on” the Guidelines under the reasoning of both the plurality and concurring opinions in
Freeman v. United States,
3. While an 11(c)(1)(C) sentencing range that is lower than the district court’s applicable, Guidelines calculation can be recognized as “based on” the Guidelines under Freeman, such an agreed-to range does not thereby become the “applicable” range for purposes of § 3582(c)(2). A post- Freeman amendment to Guidelines commentary now clarifies that the “applicable” Guidelines range is one determined (a) by the court according to the Guidelines Manuаl, not by the parties’ agreement; and (b) “before consideration of any departure ... or any variance,” such as would be granted pursuant to an 11(c)(1)(C) agreement that contemplates a lower Guidelines range than that calculated by the district court. See U.S.S.G. § 1B1.10 cmt. n.l(A).
4. Leonard’s initial “applicable” Guidelines range was 121 to 151 months, as determined by the district court before it accepted the parties’ 11(c)(1)(C) agreement specifying a 97-to-121-month range. Because that applicable range was retroactively amended to 97 to 121 months, Leonard is at least eligible for a reduction in- his 114-month Guidelines-based sentence, but not to any term lower than 97 months, with the ultimate decision whether to grant any reduction committed to the discretion of the district court.
Accordingly, the final order of the district court holding Leonard ineligible for a § 3582(c)(2) reduction is VACATED, and the case is REMANDED for furthеr proceedings consistent with this opinion.
Notes
. Fed. R. Crim. P. 11(c)(1)(C) states in pertinent part as follows:
If the defendant pleads guilty ..., the plea agreement may specify that an attorney for the government will: ... (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).
A court "may accept [an 11(c)(1)(C)] agreement, reject it, or defer a decision until the court has reviewed the presentence report.” Id. 11(c)(3)(A). If a court rejects such an agreement, however, it must “give the defendant an opportunity to withdraw the plea.” Id. 11(c)(5)(B).
. That statute states as follows:
[I]n 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 pursuant to 28 U.S.C. 994(o), upon motion of the defendant ..., the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
. In his plea agreement, Leonard waived the right to appeal or collaterally attack any component of a sentence falling within or below the 97-to-121-month range agreed to by the parties. Because the government does not argue that this waiver forecloses the instant appeal, we do not here consider that question.
. Insofar as
Pleasant
relied on
United States v. Austin,
. In concluding that the rationale for decision of the Freeman concurrence was not necessarily narrower than that of the plurality, the D.C. and Ninth Circuits hypothesized a scenario in which an 11(c)(1)(C) agreement provided for a particular Guidelines range to apply and a sentence at the bottom of that range to be imposed, only to have the district court, while accepting the agreement, conclude that the agreed-to range did not pertain at all because the career offender range was applicable.
Using Justice Sotomayor’s standard, if the sentencing range used by the parties is subsequently reduced, the defendant would be eligible for a sentence reduction because the plea agreement was accepted and provided for a stipulated sentenсe based on a subsequently reduced range—according to Justice Sotomayor, eligibility is determined based on the agreement. The plurality, however, would find this defendant ineligible because the range that the parties agreed to played no role in the court's determination that this was an appropriate sentence, despite the fact, that the court imposed the agreed-upon term of imprisonment.
United States v. Epps,
. McCall was sentenced pursuant to an 11(c)(1)(C) agreement to a prison term of 108 months, which derived from the parties’ calculation of an anticipated 108-to-135-month Guidelines range. At sentencing, the parties and the district court agreed that the Guidelines calculations underlying the agreement were erroneous and that defendant’s applicable Guidelines range was 121 to 151 months. Nevertheless, relying on the
Freeman
concurrence, this court determined that McCall was eligible for a § 3582(c)(2) sentence reduction based on the lowering of the agreed-to 108-to-135-month range to an 87-to-108-month range.
See United States v. McCall,