PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 09-7561
JAMES RODERCK BROWN, a/k/a JB,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(1:04-cr-00087-IMK-1)
Argued: September 21, 2010
Decided: August 9, 2011
Before WILKINSON, SHEDD, and DUNCAN,
Circuit Judges.
Reversed by published opinion. Judge Shedd wrote the opin-
ion in which Judge Wilkinson and Judge Duncan joined.
COUNSEL
ARGUED: Shawn Angus Morgan, OFFICE OF THE
UNITED STATES ATTORNEY, Clarksburg, West Virginia,
for Appellant. Brian Joseph Kornbrath, Federal Public
Defender, Clarksburg, West Virginia, for Appellee. ON
2 UNITED STATES v. BROWN
BRIEF: Sharon L. Potter, United States Attorney, Wheeling,
West Virginia, for Appellee.
OPINION
SHEDD, Circuit Judge:
The United States appeals the district court’s grant of
James Brown’s motion for a reduced sentence pursuant to 18
U.S.C. § 3582(c)(2). The Government argues that the district
court lacked the authority to grant such relief because
Brown’s sentence was not "based on" a sentencing range that
was subsequently lowered but, rather, on his plea agreement
entered pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C). In light of the Supreme Court’s recent opinion,
Freeman v. United States, 564 U.S. ___ (2011), we agree with
the Government and reverse the order of the district court.
I.
On January 21, 2005, Brown pled guilty to maintaining a
place at his residence for the purpose of manufacturing, dis-
tributing, and using cocaine base, also known as crack, in vio-
lation of 21 U.S.C. § 856(a)(1). Brown entered a plea
agreement under Federal Rule of Criminal Procedure
11(c)(1)(C). The plea agreement provides that:
The United States and the defendant agree, pursuant
to Rule 11(c)(1)(C) of the Federal Rules of Criminal
Procedure, that the appropriate sentence in this case
is incarceration for not less than 180 months and not
more than 240 months. The defendant understands
that should the Court, after consideration of the cir-
cumstances surrounding this case, accept this plea
agreement that the Court will not have the discretion
to sentence him to less than 180 months. This agree-
UNITED STATES v. BROWN 3
ment is made by the government in consideration of
the defendant’s plea of guilty thereby relieving the
government of its burden of proof on Count Two.
This agreement is made by the defendant in consid-
eration of the government’s declination to pursue a
mandatory life sentence on Count One under the pro-
visions of Title 21, United States Code, §§ 841(b)(1)
and 851(a).
(J.A. 18 (emphasis added).) On June 9, 2005, after reviewing
the applicable Sentencing Guidelines range, the district court
sentenced Brown to a 210 month term of imprisonment in
accordance with the terms of the plea agreement.
On May 22, 2009, Brown filed a motion for a reduced sen-
tence pursuant to 18 U.S.C. § 3582(c)(2) based on the United
States Sentencing Commission’s 2007 retroactive crack
cocaine amendments. The district court granted Brown’s
motion and reduced his sentence to 180 months. The Govern-
ment appealed, contending that the district court lacked the
authority to modify Brown’s sentence entered under a Rule
11(c)(1)(C) plea agreement. Following oral argument, the
Supreme Court granted certiorari in Freeman v. United States,
564 U.S. ___ (2011), to answer this same question, and we
held our opinion in abeyance pending the Supreme Court
decision.
II.
A district court has the authority to reduce a previously
imposed term of imprisonment "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). At issue
in this case is whether a sentence imposed pursuant to a Rule
11(c)(1)(C) plea agreement is "based on" a sentencing range.
A Rule 11(c)(1)(C) plea agreement may stipulate that "a spe-
cific sentence or sentencing range is the appropriate disposi-
4 UNITED STATES v. BROWN
tion of the case, or that a particular provision of the
Sentencing Guidelines, or policy statement, or sentencing fac-
tor does or does not apply[.]" Fed. R. Crim. P. 11(c)(1)(C).
"[S]uch a recommendation or request binds the court once the
court accepts the plea agreement." Id.
In Freeman, the Supreme Court faced the same question
presented here and responded by delivering a fractured opin-
ion. A plurality of the Court concluded that a district court can
always grant § 3582(c)(2) relief to a defendant who enters
into a Rule 11(c)(1)(C) plea agreement. In contrast, a four-
Justice dissent determined that a district court can never grant
§ 3582(c)(2) relief to such defendants because their sentences
are based, not on a sentencing range, but on their plea agree-
ments. Finally, in a concurring opinion, Justice Sotomayor
decided that district courts can sometimes grant § 3582(c)(2)
relief to a defendant who enters a Rule 11(c)(1)(C) plea agree-
ment.
Justice Sotomayor agreed with the dissent that a sentence
imposed pursuant to a Rule 11(c)(1)(C) plea agreement is
based on the agreement and, therefore, § 3582(c)(2) relief is
usually not available. The fact that a judge may consult the
Sentencing Guidelines when deciding whether to accept a
Rule 11(c)(1)(C) plea agreement is irrelevant. "[P]lea bargain-
ing necessarily occurs in the shadow of the sentencing scheme
to which the defendant would otherwise be subject. The term
of imprisonment imposed by the district court, however, is not
‘based on’ those background negotiations; instead . . . it is
based on the binding agreement produced by those negotia-
tions." Freeman, slip op. at 5 (Sotomayor, J., concur-
ring)(internal citations omitted). However, Justice Sotomayor
established an exception to this general rule — where the plea
agreement itself expressly refers to and relies upon a Guide-
lines sentencing range. This limited exception is defined as
follows:
[I]f a (C) agreement expressly uses a Guidelines sen-
tencing range applicable to the charged offense to
UNITED STATES v. BROWN 5
establish the term of imprisonment, and that range is
subsequently lowered by the United States Sentenc-
ing Commission, the term of imprisonment is "based
on" the range employed and the defendant is eligible
for sentence reduction under § 3582(c)(2).
Freeman, slip op. at 1 (Sotomayor, J., concurring). Under the
fragmented opinion, Justice Sotomayor’s rationale becomes
the Court’s holding.1
III.
Applying Justice Sotomayor’s test, we believe the district
court lacked the authority to grant Brown § 3582 relief.
Brown’s Rule 11(c)(1)(C) plea agreement does not expressly
use a Guidelines sentencing range to establish his term of impris-
onment.2 His plea agreement simply states that "the appropri-
ate sentence in this case is incarceration for not less than 180
months and not more than 240 months." (J.A. 18.) The fact
that the district court consulted the Guidelines in establishing
Brown’s specific sentence is irrelevant. See Freeman, slip op.
1
"It is well established, under Marks v. United States, 430 U.S. 188, 97
S.Ct. 990, 51 L.Ed.2d 260 (1977), that when a decision of the Court lacks
a majority opinion, the opinion of the Justices concurring in the judgment
on the ‘narrowest grounds’ is to be regarded as the Court’s holding." A.T.
Massey Coal Co. v. Massanari, 305 F.3d 226, 236 (4th Cir. 2002). In our
view, under the Marks rule, Justice Sotomayor’s concurrence is the
Court’s holding in Freeman because it is the narrowest opinion that "em-
bodies a position implicitly approved by at least five Justices who support
the judgment." Id. Every Justice who joined in the plurality opinion would
agree with Justice Sotomayor that "when a (C) agreement expressly uses
a Guidelines sentencing range to establish the term of imprisonment, and
that range is subsequently lowered by the Commission, the defendant is
eligible for sentence reduction under § 3582(c)(2)." Freeman, slip op. at
6 (Sotomayor, J., concurring).
2
In contrast, the relevant plea agreement in Freeman explicitly calcu-
lated the applicable Guidelines range and states that "[Freeman] agrees to
have his sentence determined pursuant to the Sentencing Guidelines."
Freeman, slip op. at 4.
6 UNITED STATES v. BROWN
at 5 (Sotomayor, J., concurring). Therefore, Brown’s plea
agreement does not satisfy the limited exception recognized
in Justice Sotomayor’s concurrence. Consequently, the plea
agreement itself "is the foundation for the term of imprison-
ment" imposed, and the district court lacked the authority
under § 3582(c)(2) to grant Brown’s motion for a reduced
sentence. Freeman, slip op. at 2 (Sotomayor, J., concurring).
IV.
For the foregoing reasons, we reverse the district court’s
order granting Brown’s motion for a reduced sentence.
REVERSED