FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10001
Plaintiff-Appellant, D.C. No.
v. 2:05-cr-00269-
LORENZO AUSTIN, LKK-EFB-1
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted
March 12, 2012—San Francisco, California
Filed April 18, 2012
Before: J. Clifford Wallace, Dorothy W. Nelson, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
4273
UNITED STATES v. AUSTIN 4275
COUNSEL
Benjamin B. Wagner, United States Attorney, Samuel Wong,
Assistant United States Attorney, Sacramento, California, for
the plaintiff-appellant.
Daniel J. Broderick, Federal Defender, David M. Porter,
Assistant Federal Defender, Sacramento, California, for the
defendant-appellee.
OPINION
BEA, Circuit Judge:
Lorenzo Austin was sentenced to a seventeen-year prison
term pursuant to a plea agreement. Two years later, Austin
4276 UNITED STATES v. AUSTIN
filed a motion to reduce his sentence under 18 U.S.C.
§ 3582(c)(2), which the district court granted. While this case
was pending, the United States Supreme Court decided Free-
man v. United States, 131 S. Ct. 2685 (2011). We conclude
that Justice Sotomayor’s concurrence in Freeman controls
this case because Austin’s plea agreement was a Federal Rule
of Criminal Procedure 11(c)(1)(C) plea agreement (“(C)
agreement”). Applying her opinion, we hold that the district
court lacked jurisdiction to reduce Austin’s sentence because
the imposed seventeen-year sentence was “based on” the par-
ties’ plea agreement and not on “a sentencing range that has
subsequently been lowered by the Sentencing Commission.”
§ 3582(c)(2); see Freeman, 131 S. Ct. at 2697-98 (Sotomayor,
J., concurring).
I.
In 2005, Austin was charged by indictment with possession
with intent to distribute 50 grams or more of cocaine base in
violation of 21 U.S.C. § 841(a)(1); possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A)(i); and being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). The govern-
ment also filed an information charging Austin of having been
previously convicted of a felony drug offense. Austin entered
into a written plea agreement signed by Austin and the attor-
neys representing both sides. In the agreement, Austin agreed
to plead guilty to violating § 841(a)(1) (drug possession with
intent to distribute) and § 924(c)(1)(A)(i) (firearm possession
in furtherance of a drug trafficking crime). In exchange, the
government agreed to dismiss the § 922(g)(1) (felon in pos-
session of firearm) charge and to move to strike the informa-
tion. The plea agreement further stipulated that both parties
agreed to recommend a seventeen-year sentence to the district
judge. It also provided that it would be “null and void” if the
court did not accept Austin’s guilty pleas or failed to sentence
Austin to the agreed-to seventeen-year prison term. On Janu-
ary 23, 2007, the district court entered judgment pursuant to
UNITED STATES v. AUSTIN 4277
the plea agreement and sentenced Austin to the agreed-to
seventeen-year prison term.
On January 27, 2009, Austin filed a motion with the district
court to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2); the government opposed the motion. The dis-
trict court granted the motion holding that Austin’s sentence
was “based on” a sentencing range that had been subsequently
lowered by the Sentencing Commission. The district court
reduced Austin’s sentence from seventeen years to fifteen
years. The government appealed the district court’s order
granting Austin’s § 3582(c)(2) motion. We reverse.
II.
“We review de novo whether a district court has jurisdic-
tion to resentence a defendant under 18 U.S.C.
§ 3582[(c)(2)].” United States v. Leniear, 574 F.3d 668, 672
(9th Cir. 2009) (citation omitted). Once jurisdiction is estab-
lished, however, the district court’s decision whether to
reduce a sentence under § 3582(c)(2) is reviewed for abuse of
discretion. United States v. Colson, 573 F.3d 915, 916 (9th
Cir. 2009).
III.
[1] In general, federal courts lack jurisdiction to “modify
a term of imprisonment once it has been imposed.” § 3582(c).
However, § 3582(c)(2) provides a narrow exception:
[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 fac-
tors set forth in section 3553(a) to the extent that
they are applicable, if such a reduction is consistent
with applicable policy statements . . . .
4278 UNITED STATES v. AUSTIN
§ 3582(c)(2) (emphasis added).
In a fragmented opinion, the United States Supreme Court
recently addressed the application of § 3582(c)(2) to sen-
tences imposed pursuant to a (C) agreement. The issue before
the Court was whether a sentence imposed pursuant to a (C)
agreement can be nevertheless “based on” a sentencing range
within the meaning of § 3582(c)(2).1 If not, then any sentence
imposed pursuant to such an agreement would be ineligible
for a § 3582(c)(2) sentence reduction.
[2] This issue arises because of the binding nature of (C)
agreements and their corresponding procedural requirements.
(C) agreements are one of the three types of plea agreements
specified by Rule 11(c)(1).2 Under a (C) agreement, if the
defendant pleads guilty, the government may “agree that a
specific sentence or sentencing range is the appropriate dispo-
sition of the case,” and “such a recommendation or request
binds the court once the court accepts the plea agreement.”
Fed. R. Crim. P. 11(c)(1)(C). Additionally, a court consider-
ing a (C) agreement may only “accept the agreement, reject
it, or defer a decision until the court has reviewed the presen-
tence report.” Rule 11(c)(3)(A). If the court accepts the agree-
ment, “the agreed disposition will be included in the
judgment.” Rule 11(c)(4). If the court rejects it, the defendant
must be advised that “the court is not required to follow the
1
In United States v. Bride, 581 F.3d 888, 891 n.5 (9th Cir. 2009), we
declined to reach this issue.
2
The Advisory Committee Notes state that former “Rule 11(e)(1) speci-
fies three types of plea agreements, namely, those in which the attorney
for the government might [¶ ] (A) move for dismissal of other charges; or
[¶ ] (B) make a recommendation, or agree not to oppose the defendant’s
request, for a particular sentence, with the understanding that such a rec-
ommendation or request shall not be binding upon the court; or [¶ ] (C)
agree that a specific sentence is the appropriate disposition of the case.”
Fed. R. Crim. P. 11 advisory committee’s notes (1979 Amendments), 18
U.S.C. app. Fed. R. Crim. P. 11 (2006 ed.) (In 2002, Rule 11 was reorga-
nized and old subdivision (e)(1) is now found at subdivision (c)(1).).
UNITED STATES v. AUSTIN 4279
plea agreement” and must be given “an opportunity to with-
draw the plea.” Rule 11(c)(5)(B).
In Freeman, a four-justice plurality and Justice Sotomayor,
concurring in the judgment, concluded that a sentence
imposed pursuant to a (C) agreement does not preclude eligi-
bility for § 3582(c)(2) relief. Freeman, 131 S. Ct. at 2693
(plurality opinion); id. at 2695 (Sotomayor, J., concurring).
Justice Sotomayor’s concurrence is the controlling opinion
because it reached this conclusion on the “narrowest
grounds.” See Marks v. United States, 430 U.S. 188, 193 (1977).3
Justice Sotomayor reasoned that the binding nature of a (C)
agreement makes the agreement itself the “foundation for the
term of imprisonment to which the defendant is sentenced.”
Freeman, 131 S. Ct. at 2696 (Sotomayor, J., concurring).
Accordingly, the term of imprisonment imposed pursuant to
a (C) agreement is “dictated by the terms of the agreement
entered into by the parties, not the judge’s [Sentencing]
Guidelines calculation.” Id. Thus, she concluded that “the
term of imprisonment . . . is, for purposes of § 3582(c)(2),
‘based on’ the agreement itself,” and “the mere fact that the
parties . . . may have considered the Guidelines in the course
of their negotiations does not empower the court under
§ 3582(c)(2) to reduce the term of imprisonment they ulti-
mately agreed upon.” Id. at 2696-97. In general, this would
bar a defendant whose sentence was imposed pursuant to a
(C) agreement from seeking a sentence reduction under
§ 3582(c)(2). But Justice Sotomayor carved out two excep-
tions where a sentence imposed pursuant to a (C) agreement
is nevertheless “based on” a Sentencing Guidelines range. Id.
at 2697-98.
3
Three other circuits agree that Justice Sotomayor’s concurrence con-
trols. See United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir.
2011); United States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011); United
States v. Brown, 653 F.3d 337, 340 & n.1 (4th Cir. 2011).
4280 UNITED STATES v. AUSTIN
The first exception is when a (C) agreement itself “call[s]
for the defendant to be sentenced within a particular Guide-
lines sentencing range,” which the court then accepts. Id. at
2697. This exception does not apply here because Austin’s
plea agreement contained a specific term and makes no men-
tion of a particular sentencing range.
[3] The second exception, which Austin argues is applica-
ble here, provides:
[A] plea agreement might provide for a specific term
of imprisonment—such as a number of months—but
also make clear that the basis for the specified term
is a Guidelines sentencing range applicable to the
offense to which the defendant pleaded guilty. As
long as that sentencing range is evident from the
agreement itself, for purposes of § 3582(c)(2) the
term of imprisonment imposed by the court in accor-
dance with that agreement is “based on” that range.
Therefore, when a (C) agreement expressly uses a
Guidelines sentencing range to establish the term of
imprisonment, and that range is subsequently low-
ered by the Commission, the defendant is eligible for
sentence reduction under § 3582(c)(2).
Id. at 2697-98 (emphasis added).
Application of this standard in Freeman itself is illustrative.
The plea agreement in Freeman stated that “Freeman ‘agrees
to have his sentence determined pursuant to the Sentencing
Guidelines,’ . . . and that 106 months is the total term of
imprisonment to be imposed.” Id. at 2699. The agreement
anticipated that Freeman would face 60 months for his guilty
plea to possessing a firearm in furtherance of a drug-
trafficking crime under 18 U.S.C. § 924(c)(1)(A), which was
the mandatory minimum sentence and was to be served con-
secutively to any other sentence imposed. Id. The agreement
also “set[ ] Freeman’s offense level at 19, as determined by
UNITED STATES v. AUSTIN 4281
the quantity of drugs and his acceptance of responsibility, and
state[d] that the parties anticipate a criminal history category
of IV.” Id. Justice Sotomayor then applied the Sentencing
Guidelines to this information to produce a sentencing range
of 46 to 57 months for Freeman’s non-firearm crimes, includ-
ing possessing with intent to distribute cocaine base. Id. From
this result, she concluded that it was “evident that Freeman’s
agreement employed the 46-month figure at the bottom end of
[the] sentencing range, in combination with the 60-month
mandatory minimum sentence under § 924(c)(1)(A), to estab-
lish his 106-month term.” Id. at 2700. Therefore, Freeman’s
term of imprisonment was “based on” a Guidelines sentencing
range. Id.4
In this case, Austin first argues that the plea agreement
entered into was not a (C) agreement and thus, Freeman does
not apply. He argues that it was a Rule 11(c)(1)(B) plea agree-
ment (“(B) agreement”) because the agreement states that the
parties will “recommend” a seventeen-year sentence to the
court.5 We disagree. First, even under a (C) agreement, the
Federal Rules of Criminal Procedure recognize that the
agreed-to sentence is only a “recommendation or request” that
4
Three other circuits have published opinions applying Justice Sotomay-
or’s test to determine whether a defendant is eligible for sentence reduc-
tion under § 3258(c)(2). See Rivera-Martinez, 665 F.3d at 349-50 (1st Cir.
2011) (ineligible where plea agreement contained an offense level, but did
not identify any Guidelines sentencing range nor a criminal history cate-
gory); Brown, 653 F.3d at 338, 340 (4th Cir. 2011) (ineligible where plea
agreement, although specifying a sentence range, “[did] not expressly use
a Guidelines sentencing range”); cf. Smith, 658 F.3d at 613 (6th Cir. 2011)
(eligible for sentence reduction where plea agreement had an attached
worksheet detailing Guidelines sentencing calculations performed by the
parties).
5
Rule 11(c)(1)(B) provides that if the defendant pleads guilty, the gov-
ernment may “recommend, or agree not to oppose the defendant’s request,
that a particular sentence or sentencing range is appropriate or that a par-
ticular provision of the Sentencing Guidelines, or policy statement, or sen-
tencing factor does or does not apply,” and “such a recommendation or
request does not bind the court.”
4282 UNITED STATES v. AUSTIN
the court may accept or reject. Rule 11(c)(1)(C), (3)(A).
Therefore, the fact that the plea agreement uses the word “rec-
ommend” does not prove that the agreement was a (B) agree-
ment. Additionally, Austin was not advised that he had no
right to withdraw his guilty plea if the court rejected the rec-
ommendation, as required when a court accepts a (B) agree-
ment. Rule 11(c)(3)(B).6 Moreover, Austin’s plea agreement
provided that it would be “null and void” if the court failed
to accept Austin’s pleas or failed to sentence Austin to the
agreed-to seventeen years. Although this language alone is
not determinative, it evidences the parties’ expressed intent to
have Austin’s pleas withdrawn in the event the court did not
sentence him to seventeen years, which is consistent with a
(C) agreement and inconsistent with a (B) agreement. Lastly,
when the court accepts a (C) agreement, the court must
inform the defendant that the “agreed disposition will be
included in the judgment.” Rule 11(c)(4). The parties here
specifically requested that the judge “follow the plea agree-
ment,” which the court ultimately did, as is reflected in the
judgment. For these reasons, we conclude Austin was sen-
tenced pursuant to a (C) agreement, not a (B) agreement.
[4] We now turn to that agreement. Looking only to the
terms of the agreement, they provide no indication of a partic-
ular Guidelines sentencing range applicable to Austin’s
offenses. The agreement simply provides for a specific term
of seventeen years. Therefore, for Austin to be eligible for a
sentence reduction, he would have to qualify under the second
6
Rule 11(c)(3)(B) provides: “To the extent the plea agreement is [a (B)
agreement], the court must advise the defendant that [he] has no right to
withdraw the plea if the court does not follow the recommendation or
request.” In comparison, Rule 11(c)(3)(A) provides: “To the extent that
the plea agreement is a [(C) agreement], the court may accept the agree-
ment, reject it, or defer a decision until the court has reviewed the presen-
tence report.” If the court rejects a (C) agreement, the court “must” advise
the defendant “on the record and in open court” that “the court is not
required to follow the plea agreement and give the defendant an opportu-
nity to withdraw the plea.” Rule 11(c)(5).
UNITED STATES v. AUSTIN 4283
exception outlined by Justice Sotomayor. In other words, a
Guidelines sentencing range must be “evident from the agree-
ment itself” or it must “expressly use” a Guidelines range.
Neither situation obtains. No sentencing range appears on the
face of the plea agreement that could have formed the basis
for the specific term of seventeen years. The terms of the
agreement do not “make clear,” Freeman, 131 S. Ct. at 2697
(Sotomayor, J., concurring), that any particular Guidelines
range was “employed,” id. at 2700. For instance, unlike Free-
man, the plea agreement does not contain any information
about Austin’s criminal history category. Without this infor-
mation, Justice Sotomayor’s sentence calculation exercise in
Freeman, which used an offense level and a criminal history
category, is impossible. See Rivera-Martinez, 665 F.3d at 349.
Austin attempts to direct our attention to the district court’s
independent Guidelines calculations. Although the agreement
acknowledges the court’s duty independently to consult the
Sentencing Guidelines, under Justice Sotomayor’s approach,
it is the terms of the (C) agreement that dictate, not the
judge’s separate calculations. Freeman, 131 S. Ct. at 2696;
see Brown, 653 F.3d at 340 (“The fact that district court con-
sulted the Guidelines in establishing [defendant’s] specific
sentence is irrelevant.”). Therefore, Austin’s sentence was
based on his plea agreement and not on a Sentencing Guide-
lines range.
IV.
[5] Because Austin’s sentence was based on a binding (C)
agreement and was not based on a Sentencing Guidelines
range, the district court lacked jurisdiction to modify Austin’s
sentence under § 3582(c)(2). Accordingly, the district court’s
order granting Austin’s motion to reduce his sentence is
REVERSED and the reduced sentence is VACATED. This
case is remanded to reinstate the original sentence of seven-
teen years.