NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0068n.06
No. 16-5205
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 26, 2017
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
v. ) On Appeal from the United States
) District Court for the Western
MARIO SEYMOUR, ) District of Tennessee
)
Defendant-Appellant. )
)
_________________________________/ )
Before: GUY, CLAY, GRIFFIN, Circuit Judges
RALPH B. GUY, JR., Circuit Judge. Defendant, Mario Seymour, appeals the
district court’s order denying his motion for reduction of sentence. We affirm.
I.
Defendant pleaded guilty to conspiring to manufacture and distribute cocaine base,
cocaine, and marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846. The plea agreement
called for a sentence of 151 months. Defendant’s presentence report (PSR) calculated his
offense level as 36 and his criminal history category as II, for a guidelines range of 210 to
262 months. The parties stipulated an offense level of 32. The district court “utiliz[ed]
the sentencing guidelines as advisory” to arrive at an offense level of 34 and a guidelines
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range of 168 to 210 months. The district court accepted the plea agreement, finding that
it “provide[d] a[n] appropriate sentence,” and sentenced defendant to 151 months’
imprisonment.
The United States Sentencing Commission retroactively amended U.S.S.G.
§ 2D1.1(c), which specifies offense levels for drug quantities, in November 2014. U.S.
Sentencing Guidelines Manual, Supplement to Appendix C, Amendment 782 (2014).
Defendant moved to reduce his sentence under 18 U.S.C. § 3582(c) in light of
Amendment 782. The district court denied the motion. It wrote that under the revised
guidelines, defendant’s range would be 168 to 210 months – “lower [sic – higher] than
the imposed sentence of 151 months” – and thus “not . . . appropriate pursuant to
U.S.S.G. § 1B1.10(b)(2)(A) because the term of imprisonment cannot be less than the
minimum of the amended guideline range without a reduction pursuant to § 5K1.1[.]”
Defendant appealed.
II.
Although we generally review a district court’s decision to modify a sentence
under § 3582 for an abuse of discretion, where the district court finds a defendant
ineligible for a reduction under § 3582, we review that determination de novo. United
States v. Valentine, 694 F.3d 665, 669 (6th Cir. 2012).
III.
A district court may modify an imposed term of imprisonment where it sentenced
a defendant based on a sentencing range the Sentencing Commission subsequently
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lowered. 18 U.S.C. § 3582(c)(2). The district court may reduce the sentence, after
considering the applicable 18 U.S.C. § 3553 factors, only “if such a reduction is
consistent with applicable policy statements issued by the Sentencing Commission.” Id.
In considering a reduction, the district court follows Dillon’s two-step inquiry: “A court
must first determine that a reduction is consistent with [U.S.S.G.] § 1B1.10 before it may
consider whether the authorized reduction is warranted, either in whole or in part,
according to the factors set forth in § 3553(a).” Dillon v. United States, 560 U.S. 817,
826 (2010); accord Valentine, 694 F.3d at 669.
The Supreme Court has ruled – albeit fractiously – that district courts may reduce
at least some sentences imposed pursuant to plea agreements. Freeman v. United States,
564 U.S. 522, 530 (2011). The plurality opinion held that an agreed-upon sentence in a
plea agreement “does not discharge the district court’s independent obligation to exercise
its discretion” to find “that such sentence is an appropriate sentence within the applicable
guideline range or, if not, that the sentence departs from the applicable guideline range
for justifiable reasons.” Id. at 529. Accordingly, the plurality held, any plea agreement
sentence a district court accepts is inherently “based on the Guidelines” and may be
reduced under § 3582. Id. at 529-30; see also U.S.S.G. § 6B1.2(c) (a district court may
accept a plea agreement sentence only if it is within the guideline range or justifiably
outside it).
Justice Sotomayor’s concurrence, however, “provid[es] the framework that
governs the [§ 3582 eligibility] inquiry” in this circuit. United States v. McNeese, 819
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F.3d 922, 927 (6th Cir. 2016). This approach looks solely to the terms of the plea
agreement, and permits a § 3582 reduction only where the agreement “call[s] for the
defendant to be sentenced within a particular Guidelines sentencing range” or “provide[s]
for a specific term of imprisonment . . . [and] make[s] clear that the basis for the specified
term is a Guidelines sentencing range applicable to the offense to which the defendant
pleaded guilty.” Freeman, 564 U.S. at 538-39 (Sotomayor, J., concurring).
Applying this approach, we have “unequivocally held that [a] defendant’s
sentence – for purposes of [§ 3582(c)(2)] – is based on a guideline range only when that
guideline range is explicitly referenced in a plea agreement.” McNeese, 819 F.3d at 927
(internal quotations omitted). Defendant’s plea agreement makes no reference to his
guideline range or any aspect of the sentencing guidelines other than a brief stipulation
for drug quantity. This stipulated gross base offense level of 32 is not an explicit
reference to the guideline range or the sentencing guidelines. Indeed, the stipulated
offense level is different from defendant’s calculated Total Offense Level of 36. And,
unlike in Freeman, defendant here did not “agree[] to have his sentence determined
pursuant to the Sentencing Guidelines.” Freeman, 564 U.S. at 542 (Sotomayor, J.,
concurring). Far from being based on a guideline range, the plea agreement merely
states, “The parties agree that an appropriate sentence in th[is] case is 151 months.”
We cannot accept defendant’s argument that a guideline range “led directly to [his
plea agreement] sentence” without an explicit reference to a guideline range in the plea
agreement. To do so would require us to engage in a “free-ranging search through the
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parties’ negotiating history in search of a Guidelines sentencing range that might have
been relevant,” in direct contravention of McNeese and Freeman. McNeese, 819 F.3d at
928 (quoting Freeman, 564 U.S. at 538 (Sotomayor, J., concurring)).
Because the plea agreement did not base defendant’s sentence on a guideline
range, the district court lacked authority to modify it. See 18 U.S.C. § 3582(c)(2). The
district court therefore properly denied defendant’s motion for reduction of sentence.
AFFIRMED.