In Re: Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 18, 2013 Decided July 2, 2013

No. 12-3012

IN RE: SEALED CASE

_____

Appeal from the United States District Court
for the District of Columbia
(No. 1:99-cr-00265-01)
______

Before: GARLAND, Chief Judge, and ROGERS and
GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Recent amendments to the
United States Sentencing Guidelines provisions that apply to
crack cocaine convictions have triggered a wave of motions
under 18 U.S.C. § 3582(c)(2). That statute allows prisoners
whose sentences were based on guideline ranges that have
since been lowered to petition the district courts for earlier
release. See Dillon v. United States, __ U.S. __, 130 S. Ct.
2683, 2690 (2010). This appeal asks whether a crack offender
sentenced below an otherwise applicable statutory mandatory
minimum because he provided substantial assistance to law
enforcement is eligible for a sentence reduction under
§ 3582(c)(2). We hold that he is.
 2
I

In February 2000, the appellant pled guilty to possession
with intent to distribute fifty grams or more of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). Because he
had been convicted of a prior felony drug offense, he faced a
statutory mandatory minimum prison term of twenty years. 21
U.S.C. § 841(b)(1)(A) (2006) (amended 2011).

The appellant subsequently provided substantial
assistance in the prosecution of another case, and in return, the
government filed a motion under 18 U.S.C. § 3553(e) and
§ 5K1.1 of the Guidelines, authorizing the district court to set
his sentence below the mandatory minimum and the guideline
range. See 18 U.S.C. § 3553(e) (“Upon motion of the
Government, the court shall have the authority to impose a
sentence below a level established by statute as a minimum
sentence so as to reflect a defendant’s substantial assistance in
the investigation or prosecution of another person who has
committed an offense.”); U.S. Sentencing Guidelines Manual
§ 5K1.1 [hereinafter U.S.S.G.] (“Upon motion of the
government stating that the defendant has provided substantial
assistance . . . the court may depart from the guidelines.”).

At sentencing on May 12, 2000, the district court granted
the government’s substantial assistance motion and heard
argument on the nature, scope, and timeliness of the
appellant’s assistance. The court then sentenced him to 135
months’ imprisonment, explaining:

The guideline range, if there had not been the
mandatory minimum, would have been the 151 to 188
[months] based on the offense level and the category,
which is in category 6, an offense level 29.
 3
I will do somewhat of a reduction, not only from
the 20 years, looking to what he would have had [with]
the mandatory minimums, and then some reduction
from what he would have gotten without the mandatory
minimums, and I would do a sentence of 135 months,
which I think is fair in the context of the record and
what’s involved in the particular case.

Tr. 5/12/2000, at 32-33. Because the appellant did not begin
serving this sentence until he had served out a separate
sentence handed down by the D.C. Superior Court, he remains
in prison today.

In 2007, the United States Sentencing Commission
adopted Amendment 706, reducing the disparity between
sentences for powder and crack cocaine offenses by lowering
the offense levels associated with given quantities of crack.
U.S.S.G. app. C, amend. 706 (Nov. 1, 2007). The Commission
subsequently made Amendment 706 retroactive, allowing
prisoners sentenced before its passage to petition for earlier
release. Id. amend. 713 (Mar. 3, 2008). On June 24, 2009, the
appellant sought to take advantage of the amendment and
moved for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2), which provides:

[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 . . . 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).
 4
While the appellant’s motion was pending, the
Commission adopted Amendment 750, which further reduced
offense levels for crack crimes. U.S.S.G. supp. app. C, amend.
750 (effective Nov. 1, 2011). As with Amendment 706, the
Commission made Amendment 750 retroactive. Id. amend.
759 (effective Nov. 1, 2011). On October 4, 2011, the appellant
filed a second § 3582(c)(2) motion, which incorporated and
subsumed his first, seeking the benefit of Amendment 750.
Under that amendment, his offense level has been lowered
from 29 to 23, yielding an amended guideline range of 92 to
115 months. The appellant therefore requested that the district
court reduce his sentence to 92 months, the low end of the
amended guideline range. Reducing his sentence to 92 months
would result in his immediate release from prison.

The district court denied the appellant’s motion, holding
that the policy statement found at § 1B1.10 of the Guidelines
Manual governing § 3582(c)(2) proceedings barred a prisoner
who had been subject to a mandatory minimum from taking
advantage of a retroactive amendment that lowered his
guideline range. Tr. 1/18/2012, at 6-8.

The appellant argues the district court erred and that he is
eligible for a sentence reduction. We have jurisdiction over his
appeal under 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291.
Because the issues involved present questions of law only, our
review is de novo. See United States v. Berry, 618 F.3d 13, 16
(D.C. Cir. 2010).

II

A prisoner seeking a sentence reduction under
§ 3582(c)(2) must show that his sentence was “based on” a
guideline range that has since been lowered by the Sentencing
Commission, and that the reduction he seeks comports with
 5
U.S.S.G. § 1B1.10. 18 U.S.C. § 3582(c)(2); see also Berry,
618 F.3d at 16.

A

In United States v. Epps, this court held that the plurality
opinion in Freeman v. United States, __ U.S. __, 131 S. Ct.
2685 (2011), guides our determination whether a sentence was
“based on” a subsequently-lowered range. 707 F.3d 337, 351
(D.C. Cir. 2013). The prisoner in Freeman sought a reduction
in a sentence that was a condition of a plea agreement he had
entered pursuant to Fed. R. Crim. P. 11(c)(1)(C). A
four-Justice plurality took a broad view of the matter and
reasoned that a sentence is “based on” a guideline range “to
whatever extent” that range “was a relevant part of the analytic
framework the judge used to determine the sentence or to
approve the agreement.” Freeman, 131 S. Ct. at 2692-93
(plurality opinion). Using that approach, a sentence that
emerges from a Rule 11(c)(1)(C) plea agreement is always
eligible for a subsequent reduction because “[t]he Guidelines
require the district judge to give due consideration to the
relevant sentencing range, even if the defendant and prosecutor
recommend a specific sentence as a condition of the guilty
plea.” Id. at 2692.

Justice Sotomayor concurred in the plurality’s judgment
but took a narrower view of the eligibility of Rule 11(c)(1)(C)
sentences for reductions. She argued that the “term of
imprisonment imposed by the sentencing judge [in the Rule
11(c)(1)(C) context] is dictated by the terms of the agreement
entered into by the parties, not the judge’s Guidelines
calculation.” Id. at 2696 (Sotomayor, J., concurring). She
would have held that a sentence imposed pursuant to a Rule
11(c)(1)(C) agreement is eligible for a reduction only where
the agreement “expressly uses a Guidelines sentencing range
 6
applicable to the charged offense to establish the term of
imprisonment.” Id. at 2695.

The divergence between the approaches of the plurality
and Justice Sotomayor left the Court without a majority
opinion. The rule in Marks v. United States provides that
“[w]hen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices,
the holding of the Court may be viewed as that position taken
by those Members who concurred in the judgments on the
narrowest grounds.” 430 U.S. 188, 193 (1977) (citation and
internal quotation marks omitted). Every other circuit to
consider the meaning of § 3582(c)(2)’s “based on”
requirement has felt bound by Justice Sotomayor’s opinion.
See United States v. Duvall, 705 F.3d 479, 483 n.1 (D.C. Cir.
2013) (listing cases). But we read Marks differently and
announced in Epps that we would follow the plurality’s view.
Under our precedent in King v. Palmer, 950 F.2d 771 (D.C.
Cir. 1991) (en banc), the rule in Marks applies only where the
narrowest opinion in a splintered decision “‘represent[s] a
common denominator of the Court’s reasoning; it must
embody a position implicitly approved by at least five Justices
who support the judgment.’” Epps, 707 F.3d at 348 (quoting
King, 950 F.2d at 781) (emphasis in Epps). No position in
Freeman garnered the support of a majority of the court,
binding us only to the result, “namely that § 3582(c)(2) relief is
not invariably barred when a sentence was imposed pursuant to
a Rule 11(c)(1)(C) plea agreement.” Id. at 351. We adopted the
plurality’s broader view, persuaded that it would reduce the
disparities in sentencing that the statute was designed to
correct. Id. at 351-52.

Under Epps, it is clear that the appellant’s sentence was
“based on” a subsequently-lowered range. Crucially, the
district court explained during § 3582(c)(2) proceedings that,
 7
as a result of granting the government’s § 3553(e) motion, the
appellant’s guideline range was the basis for his sentence
because his mandatory minimum “no longer applied.” See Tr.
1/18/2012, at 5. At sentencing, the court announced that it
would “do somewhat of a reduction, not only from” the
mandatory minimum, but also a further reduction from “what
he would have gotten without the mandatory minimums.” Tr.
5/12/2000, at 32-33. In other words, a further reduction from
the guideline range. After taking that reduction, the court
arrived at a sentence of 135 months. Id. The record leaves no
doubt that the appellant’s guideline range was “a relevant part
of the analytic framework” used in the district court’s
sentencing calculus, and that his sentence was therefore “based
on” his guideline range. 1

Relying on our decision in United States v. Cook, 594 F.3d
883 (D.C. Cir. 2010), the government argues that the
appellant’s sentence was not “based on” the guideline range,
but on his mandatory minimum. Cook is easily distinguished.
Unlike the appellant, the defendant in Cook faced a mandatory
minimum but did not provide substantial assistance to law
enforcement; therefore, the government made no § 3553(e)
motion, and he was actually sentenced to the mandatory
minimum. Id. at 885. Although the Guidelines require a
sentencing court to calculate, as a matter of course, a guideline
range before determining whether a mandatory minimum
applies, we concluded in Cook that this routine and required

1
Even if the Freeman concurrence were controlling, it would
be unlikely to affect our analysis in this case. Justice Sotomayor did
not disagree with the plurality’s general interpretation of
§ 3582(c)(2); her disagreement was limited to the specific context of
“binding” Rule 11(c)(1)(C) plea agreements. See Freeman, 131 S.
Ct. at 2695 (“Sentencing under [Rule 11(c)(1)(C)] agreements . . . is
different.”).
 8
calculation did not mean that the defendant was sentenced
“based on” his guideline range. Id. at 887. The mandatory
minimum “trumped” and “rendered irrelevant” the guideline
range, which played no role in “determin[ing] the defendant’s
sentence.” Id. at 888. Where a defendant actually receives a
mandatory minimum sentence, as he did in Cook, the sentence
is not “based on” his guideline range, and he is ineligible for
§ 3582(c)(2) relief. By contrast, in this case, granting the
§ 3553(e) motion freed the district court to use the guideline
range and disregard the mandatory minimum. In Cook, the
guideline range was calculated, as required, but was never a
factor in arriving at the sentence; in our case, the appellant’s
guideline range was the very basis for his sentence.

As the Freeman plurality observed, the Commission
“determined that [the crack Guidelines] were flawed, and
therefore that sentences that relied on them ought to be
reexamined.” 131 S. Ct. at 2694. It is clear to us that the
sentencing court relied on the appellant’s “flawed” guideline
range in this case, opening the door to “reexamin[ation]” of his
sentence in a § 3582(c)(2) proceeding.

B

Having demonstrated that his sentence was “based on” a
subsequently-lowered guideline range, the appellant must also
show that the sentence reduction he seeks is consistent with
U.S.S.G. § 1B1.10, the policy statement governing
§ 3582(c)(2) proceedings. See Dillon, 130 S. Ct. at 2691
(holding that the policy statement is binding on the courts in
“determin[ing a] prisoner’s eligibility for a sentence
modification and the extent of the reduction authorized”); see
also Berry, 618 F.3d at 17 (observing that a defendant’s
“eligibility turns on whether a reduction is consistent with the
Guidelines policy statement”). Under § 1B1.10, a defendant is
 9
eligible for a sentence reduction if “the guideline range
applicable to the defendant has subsequently been lowered as a
result of an amendment to the Guidelines Manual” that the
Commission has determined should apply retroactively.
U.S.S.G. § 1B1.10(a)(1). For our purposes, this requirement
largely tracks the language of the statute and is satisfied by
facts discussed in the previous section: the appellant’s original
guideline range, 151 to 188 months, has since been reduced by
Amendment 750. But the policy statement imposes an
additional requirement. It bars a defendant from receiving a
reduction where the relevant Guidelines amendment does not
have “the effect of lowering the defendant’s applicable
guideline range” because another Guidelines or statutory
provision prevents it from doing so. Id. § 1B1.10(a)(2)(B).

According to the government, the appellant’s mandatory
minimum prevents Amendment 750 from having “the effect of
lowering” his guideline range. The government relies
principally upon commentary to the policy statement, which
provides that “the operation of . . . a statutory mandatory
minimum term of imprisonment” prevents a retroactive
amendment that otherwise applies to a defendant from having
“the effect of lowering the defendant’s applicable guideline
range.” Id. § 1B1.10, cmt.1(A). The district court relied upon
this language to hold that it could not grant the appellant a
reduction.

The government and the district court would both be
correct if the appellant had been subject to the twenty-year
mandatory minimum when he was sentenced. The mandatory
minimum would have prevented Amendment 750 from
lowering the appellant’s guideline range, because of the way
the Guidelines treat the interaction between a defendant’s
guideline range and any statutory minimum the court must
apply. A sentencing court calculates a guideline range using
 10
the “Application Instructions” at § 1B1.1 of the Guidelines
Manual. See Berry, 618 F.3d at 14. That provision has eight
steps. The first five steps produce the defendant’s offense
level. U.S.S.G. §§ 1B1.1(a)(1)-(5). At the sixth step, the court
finds the defendant’s criminal history category. Id.
§ 1B1.1(a)(6). And at step seven the court “[d]etermine[s] the
guideline range . . . that corresponds to the offense level and
criminal history category determined above.” Id.
§ 1B1.1(a)(7); see also Berry, 618 F.3d at 18 (explaining that
the sentencing court calculates the guideline range applicable
to a defendant at the seventh step of § 1B1.1(a)). Once the
guideline range has been determined, the district court asks at
step eight whether it is subject to any “sentencing
requirements” from Chapter Five of the Guidelines, as well as
“options related to probation, imprisonment, supervision
conditions, fines, and restitution.” Id. § 1B1.1(a)(8). Those
“sentencing requirements” include statutory mandatory
minimums. See id. § 5G1.1. And, “[w]here a statutorily
required minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b).
In other words, where the mandatory minimum calls for a
sentence longer than anything in the guideline range, the
statute replaces the guideline range and becomes the guideline
sentence. With the guideline range supplanted, the defendant
cannot receive the benefit of an amendment that lowers that
range.

The Commission allows courts to reduce sentences only
where the amended, lower guideline range would have made a
difference in the original sentencing. But where a defendant
faced a mandatory minimum that trumped his original
guideline range, the lowering of that range would have had no
effect on the sentence received. Cf. United States v. Glover,
686 F.3d 1203, 1206 (11th Cir. 2012) (“[Section 3582(c)(2)]
 11
gives the defendant an opportunity to receive the same
sentence he would have received if the guidelines that applied
at the time of his sentencing had been the same as the
guidelines that applied after the amendment.”).

In this case, however, the appellant’s sentencing involved
an additional variable. The government’s substantial assistance
motion under 18 U.S.C. § 3553(e) “waived” the statutory
minimum and permitted the district court to impose a lower
sentence based on the appellant’s applicable guideline range.
See U.S.S.G. § 2D1.1 cmt.23 (explaining that a mandatory
minimum may be “‘waived’ and a lower sentence imposed”
based upon a defendant’s substantial assistance); see also
United States v. Auld, 321 F.3d 861, 866 (9th Cir. 2003)
(observing that under § 3553(e), “the mandatory nature of the
statutory minimum is dispensed with”). Because of the
government’s substantial assistance motion, no mandatory
minimum was at work when the district court sentenced the
appellant. And without the bar of the mandatory minimum, no
provision kept Amendment 750 from having “the effect of
lowering” the appellant’s applicable guideline range, leaving
the appellant eligible under the policy statement to pursue a
sentence reduction.

C

The government maintains that § 3582(c)(2) relief is never
available to those who avoided a mandatory minimum
sentence because of their substantial assistance. See Appellee’s
Br. at 8; Tr. 4/18/2013 at 18. That categorical position has been
upheld by other circuits. See United States v. Glover, 686 F.3d
1203 (11th Cir. 2012); United States v. Roa-Medina, 607 F.3d
255 (1st Cir. 2010); United States v. Carter, 595 F.3d 575 (5th
Cir. 2010); United States v. Monroe, 580 F.3d 552 (7th Cir.
2009); United States v. Jackson, 577 F.3d 1032 (9th Cir. 2009);
 12
United States v. Johnson, 564 F.3d 419 (6th Cir. 2009); United
States v. Byers, 561 F.3d 825 (8th Cir. 2009); United States v.
Hood, 556 F.3d 226 (4th Cir. 2009); United States v. Williams,
551 F.3d 182 (2d Cir. 2009). But see United States v. Savani,
__ F.3d __, 2013 WL 2462941 (3d Cir. Jun. 10, 2013)
(holding, on rule of lenity grounds, that § 1B1.10 is ambiguous
and § 3553(e) defendants are eligible for sentence reductions).

Several of these other courts have held that § 3553(e)
defendants were sentenced “based on” their mandatory
minimums, not their subsequently-lowered guideline ranges,
despite the fact that sentencing courts used the defendants’
guideline ranges after granting § 3553(e) motions. See, e.g.,
Roa-Medina, 607 F.3d at 259-60; Hood, 556 F.3d at 235-36.
But these courts lacked Freeman’s guidance that a defendant’s
sentence is “based on” a subsequently-lowered guideline range
“to whatever extent” that range “was a relevant part of the
analytic framework the judge used to determine the
sentence . . . .” Freeman, 131 S. Ct. at 2692-93 (plurality
opinion). In at least two additional cases, sentencing courts
explicitly stated that they were not relying upon defendants’
guideline ranges to determine the extent of substantial
assistance departures. See Jackson, 577 F.3d at 1035-36;
Williams, 551 F.3d at 186.

Likewise, to the extent these courts held that sentence
reductions for § 3553(e) defendants are never consistent with
§ 1B1.10, their reasoning proceeded from the flawed premise
that these defendants’ “applicable guideline ranges” are their
mandatory minimum “guideline sentences,” which
amendments to the Guidelines cannot lower. See, e.g., Hood,
556 F.3d at 234-35 (“[T]he only ‘guideline range
applicable’ . . . was the statutorily mandated ‘guideline
sentence’ . . . .”); see also Glover, 686 F.3d at 1204-05;
Johnson, 564 F.3d at 423.
 13
The government has advanced the same argument here,
relying upon U.S.S.G. § 5G1.1(b), which, as we have seen,
provides that a defendant’s “statutorily required minimum
sentence shall be [his] guideline sentence.” U.S.S.G.
§ 5G1.1(b). According to the government, a mandatory
minimum “guideline sentence” does not just defeat a
defendant’s “applicable guideline range”; it becomes the
defendant’s applicable guideline range. Cf. Glover, 686 F.3d at
1204 (“Because the statutory mandatory minimum sentence
was greater than the otherwise applicable guidelines range, the
statutory mandatory minimum of life imprisonment became
the guidelines range of life in prison.”). This distinction is
significant. According to the government, § 3553(e) did not
“waive” the mandatory minimum so that no “guideline
sentence” trumped the appellant’s applicable guideline range.
Instead, the government argues, § 3553(e) authorized the
sentencing court to depart below the appellant’s mandatory
minimum “guideline sentence,” which was also his applicable
guideline range.

We reject the government’s argument because it runs
counter to the plain language of the Guidelines. The
Commission defines “applicable guideline range” as “the
guideline range that corresponds to the offense level and
criminal history category determined pursuant to 1B1.1(a),
which is determined before consideration of any departure
provision in the Guidelines Manual or any variance.” U.S.S.G.
§ 1B1.10, cmt.1(A). A sentencing court uses a defendant’s
offense level and criminal history category to find a guideline
range at step seven of the Application Instructions, see id.
§ 1B1.1(a)(7), prior to determining whether a mandatory
minimum applies at step eight. See id. § 1B1.1(a)(8). The
appellant’s twenty-year mandatory minimum cannot
“correspond to” his offense level and criminal history category
under the Guidelines because it is a creature of statute,
 14
unaffected by those variables. See Savani, 2013 WL 2462941,
at *5 n.5 (“A defendant is not assigned a new offense level or
criminal history category by operation of the mandatory
minimum. Rather, the guideline range that is applicable to that
offense level and criminal history category is simply trumped
by the mandatory minimum . . . .”).

The government’s argument also clashes with the text of
§ 5G1.1, which by its own terms distinguishes between an
“applicable guideline range” and a “guideline sentence.” See
U.S.S.G. § 5G1.1(b) (“Where a statutorily required minimum
sentence is greater than the maximum of the applicable
guideline range, the statutorily required minimum sentence
shall be the guideline sentence.”); see also Berry, 618 F.3d at
18 (“Chapter 5 of the Guidelines repeatedly uses ‘applicable
guideline range’ to describe the guideline range resulting from
application of steps [one] through [seven] of the Guidelines’
Application Instructions in § 1B1.1.”). Section 5G1.1
juxtaposes the terms “applicable guideline range” and
“statutorily required minimum sentence” in several examples
to illustrate how a mandatory minimum can either restrict or
trump a defendant’s applicable guideline range. U.S.S.G.
§ 5G1.1, cmt. The mandatory minimum, in other words, acts
upon the already-determined “applicable guideline range”; it
does not become the guideline range. The policy statement
does not foreclose § 3553(e) defendants from receiving
reductions on that basis. 2

2
In a recent decision, the Third Circuit overruled its own
precedent and became the first appeals court to hold that § 1B1.10
does not categorically block § 3553(e) defendants from receiving
sentence reductions. Savani, 2013 WL 2462941, at *1. But it did so
by applying the rule of lenity, after concluding that the Guidelines
are ambiguous as to whether a defendant’s “applicable guideline
range” includes his mandatory minimum, and that the defendant
should get the benefit of that ambiguity. Id. at *9. A concurring
 15
Indeed, elsewhere the policy statement implicitly confirms
that § 3553(e) defendants may be eligible for sentence
reductions. U.S.S.G. § 1B1.10(b) states that the maximum
reduction a defendant may receive is a reduction to the low end
of his new, post-amendment guideline range, unless he was
sentenced below his applicable guideline range pursuant to one
of several government motions that may be filed to reward
substantial assistance. U.S.S.G. § 1B1.10(b)(2)(B). Those
motions, according to the Guidelines commentary, are
U.S.S.G. § 5K1.1, Fed. R. Crim. P. 35(b), and 18 U.S.C.
§ 3553(e). Id. § 1B1.10, cmt.3. The Commission, in other
words, clearly anticipated that some prisoners who received
sentences lower than their mandatory minimums thanks to
§ 3553(e) motions would nevertheless be eligible for sentence
reductions. Cf. Savani, 2013 WL 2462941, at *7 (observing
that this section of the commentary “appears to contemplate
that a defendant who was sentenced below his applicable
mandatory minimum because he received a § 3553(e)
reduction for substantial assistance, might be eligible for a
sentencing reduction”).

III

Because the district court has authority to reduce the
appellant’s sentence, we remand for further § 3582(c)(2)
proceedings.

Of course, the appellant’s eligibility for a reduction does
not entitle him to a lower sentence. “[W]hether, and to what
extent, a reduction . . . is warranted,” U.S.S.G. § 1B1.10(b)(1),

member of the Savani panel would not have resorted to the rule of
lenity, because it “could not be clearer” from the definition of the
term in § 1B1.10 that a defendant’s “applicable guideline range” is
determined without reference to any mandatory minimum. Id. at *11
(Fuentes, J., concurring).
 16
are decisions left to the discretion of the district court, as
guided by the policy statement and the sentencing factors listed
at 18 U.S.C. § 3553(a). See U.S.S.G. § 1B1.10(b); 18 U.S.C.
§ 3582(c)(2) (providing that “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”). 3 As the
Freeman plurality observed:

What is at stake in this case is a defendant’s eligibility
for relief, not the extent of that relief. Indeed, even
where a defendant is permitted to seek a reduction, the
district judge may conclude that a reduction would be
inappropriate. District judges have a continuing
professional commitment, based on scholarship and
accumulated experience, to a consistent sentencing
policy. They can rely on the frameworks they have
devised to determine whether and to what extent a
sentence reduction is warranted in any particular case.

131 S. Ct. at 2694 (plurality opinion). With that in mind, we
remand so that the district court may consider whether the facts
of the appellant’s case warrant a reduced sentence.

3
“Section 3553(a) provides that a ‘court shall impose a
sentence sufficient, but not greater than necessary, to comply with
the purposes set forth in paragraph (2) of this subsection,’ and it
enumerates several factors a court ‘shall consider’ in determining an
appropriate sentence, including ‘the nature and circumstances of the
offense and the history and characteristics of the defendant.’” Dillon,
130 S. Ct. at 2688 n.2 (quoting 18 U.S.C. § 3553(a)(1)).
 17
IV

For the foregoing reasons, we reverse and remand to the
district court for further proceedings consistent with this
opinion.

So ordered.