BOGGS, Circuit Judge.
After entering into a Rule 11(c)(1)(C) plea agreement with the government, Malcolm Garrett pleaded guilty to one count of conspiracy to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(iii). The district court sentenced Garrett to 151 months of imprisonment, which was the bottom end of his guideline range as calculated in his PSR and agreed to by the parties in Garrett's plea agreement. Garrett argues that he is eligible for resentencing under 18 U.S.C. § 3582(c)(2) because his original sentence was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission" and because a reduction would be "consistent with applicable policy statements
Garrett's plea agreement contains one section pertaining to the calculation of his guideline range ("Sentencing Guidelines") and another section pertaining to his sentence ("Sentence"). The Sentencing Guidelines section identifies an "Agreed Guideline Range" of 151-188 months. It further provides that if the district court finds a) that Garrett's criminal history category is higher or lower than that arrived at in the agreement or b) that the offense level should be higher for certain specified reasons (e.g., obstruction of justice following his plea), and the change results in a new guideline range, "the higher or lower guideline range becomes the agreed [guideline] range." Certain other district-court findings would "not authorize a corresponding increase in the agreed range," such as a finding that Garrett was an armed career criminal. The Sentence section of the agreement discusses limitations on the sentence to be imposed by the district court. Under the agreement, Garrett's sentence could not exceed the top of the agreed-upon sentencing-guideline range (188 months in the absence of any permitted modifications). And, in keeping with applicable law, the parties acknowledged the district court's obligation to impose a mandatory minimum sentence of 120 months.
At sentencing, the district court explained the sentence that it imposed, in relevant part, as follows:
In summary, the plea agreement provided for a guideline range of 151-188 months, and the district court sentenced Garrett to 151 months after a) agreeing that the range provided in the agreement "should be applied," b) nevertheless finding "that the disparity [between the guidelines for crack and powder cocaine] should be one to one" and arriving at a range of 41-51 months on that basis, c) finding that the mandatory minimum of 120 months trumped that range, and d) imposing a "variance," for purposes of deterrence, adding 31 months on top of the mandatory minimum to bring the sentence back up to "the minimum that was agreed upon by the parties."
On March 12, 2012, Garrett moved the district court for a sentence reduction under 18 U.S.C. § 3582(c)(2), relying on Amendment 750, as amended by Amendment 759, to the Sentencing Guidelines. Amendment 750 lowered the guideline ranges applicable to crack-cocaine offenses, and Amendment 759 made parts of Amendment 750 available for retroactive application to defendants sentenced under the prior regime. The district court denied the motion on the ground that the court had "applied a guidelines range of 120 months," which range had not been lowered by Amendment 750.
18 U.S.C. § 3582(c)(2) provides that a court may modify a defendant's sentence "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 ... if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."
There are thus two questions — first, whether Garrett's sentence was "based on" a sentencing range that was subsequently lowered by the Sentencing Commission, and second, whether a reduction would be consistent with the Sentencing Commission's policy statements. Because the second question is more straightforward, we address it first.
The question is whether a reduction in Garrett's sentence would be consistent with the Sentencing Commission's policy statements. The government argues that the district court applied a guideline range of "120 months, which represented the statutory mandatory minimum sentence at the time," and that Amendment 750 did not lower that range. Appellee's Br. at 4. As a result, the government contends that a sentence reduction would be inconsistent with the Sentencing Commission's policy statement at § 1B1.10(a)(2)(B) of the Guidelines, which provides: "A reduction in the defendant's term of imprisonment is not consistent with this policy statement" if the relevant amendment "does not have the effect of lowering the defendant's applicable guideline range."
The government is correct that Amendment 750 did not and could not lower the statutory mandatory minimum sentence. But the question is whether it lowered
Here, the plea agreement stated that, under the Guidelines, Garrett's total offense level and criminal history category combined to produce a guideline range of 151-188 months. The district court agreed with that calculation. The district court thereafter decided to actually apply a different range for policy reasons — i.e., it applied what it believed was the proper range for powder-cocaine offenses, rather than the range actually applicable to Garrett's crack-cocaine offense under the Guidelines. That decision should probably be characterized as a "variance" from the Guidelines, since it was not provided for under the Guidelines. But even if it may in some way be considered a "departure" under the Guidelines, any departure would have no effect on Garrett's "applicable guideline range," which is the range "that applied before the sentencing court decided to depart or vary." Pembrook, 609 F.3d at 384-85. The "applicable guideline range" is not discretionary, and it does not vary from one court to another. The "applicable guideline range" under the Guidelines certainly cannot be changed by a policy disagreement with the Guidelines. And the application of the 120-month mandatory minimum, even if considered a part of the process of calculating Garrett's applicable guideline range, would have had no effect on that range, since 120 months is below the bottom end of Garrett's "applicable guideline range" of 151-188 months. See U.S.S.G. § 5G1.1.
The question, then, is whether Amendment 750 had the effect of lowering Garrett's applicable guideline range, and the answer is yes. Garrett's applicable guideline range, as stated in his plea agreement, was based on a total offense level of 29 and a criminal history category of VI. In his motion for a sentence reduction, Garrett contended, and the government does not appear to dispute, that applying Amendment 750 would reduce his total offense level to 25. That reduction would have the effect of lowering his applicable guideline range to 110-137 months before application of the mandatory minimum, and to 120-137 months after applying the minimum. Whether the minimum is included as part of the "applicable guideline range" or not, it is clear that Amendment 750 would "have the effect of lowering" Garrett's "applicable guideline range" from its original level, prior to the amendment, of 151-188 months.
The more difficult question is whether Garrett's actual sentence was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Here, the question is not how Garrett's guideline range was or should have been calculated; rather, the question is whether the sentence actually
In the government's view, Garrett's sentence was not actually based on a sentencing range that was subsequently lowered by the Commission; rather, it was based on a different guideline range — namely, that for powder cocaine — and the application of a mandatory minimum on top of that range, to move it up to a "range" of 120 months. The sentence was further enhanced 31 months for deterrence purposes. This view has significant support in the language that the district court used at sentencing to explain its sentence. On the other hand, it would seem to entail the implausible inference that the district court arrived at a sentence of 151 months by sheer coincidence — i.e. that the court would have arrived at the same sentence even had the sentence not represented what the court termed "the minimum that was agreed upon by the parties in their Rule 11 Plea Agreement, namely, 151 months." For his part, Garrett emphasizes the fact that the plea agreement employed the crack-cocaine guideline range, which the district court initially "accepted," and the fact that the court ultimately said that it was imposing, and did impose, a sentence at the bottom end of that range.
In support of his position, Garrett cites Freeman v. United States, ___ U.S. ___, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), a 4-1-4 decision with a controlling concurrence by Justice Sotomayor. For the reasons explained below, that case appears to render the debate about "what the district court actually said and did" moot in the context of a Rule 11(c)(1)(C) plea agreement. Cf. United States v. Hameed, 614 F.3d 259, 264 (6th Cir.2010) ("In determining whether a sentence was `based on' a subsequently lowered guideline range in a plain-meaning sense of the words, we must consider whether the original sentence was, in fact, `based on' such a range; that is, we look to what the district court actually said and did at the original sentencing." (citations and quotation marks omitted)). Freeman addressed the question under what circumstances, if any, a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement may be said to have been "based on" a sentencing range subsequently lowered by the Sentencing Commission, for purposes of § 3582(c)(2). Freeman, 131 S.Ct. at 2690.; see also United States v. Bridgewater, 539 Fed. Appx. 685, 688 (6th Cir.2013). Although Justice Sotomayor agreed with the plurality that, "in the normal course[,] the district judge's calculation of the Guidelines range ... will serve as the basis for the term of imprisonment imposed," she held that "[s]entencing under [Rule 11(c)(1)](C) agreements" was "different." Freeman, 131 S.Ct. at 2695 (Sotomayor, J., concurring). The concurrence continued:
The upshot of Justice Sotomayor's concurrence appears to be that, in the Rule 11(c)(1)(C) context, what the sentencing judge said and did is largely irrelevant; instead, what matters is "the agreement itself." "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 accordance with that agreement is `based on' that range." Id. at 2697-98 (Sotomayor, J., concurring). That holding is reiterated later in the opinion: "When a(C) agreement explicitly employs a particular Guidelines sentencing range to establish the term of imprisonment, the agreement itself demonstrates the parties' intent that the imposed term of imprisonment will be based on that range, as required for sentence reduction under the statute." Id. at 2698 (Sotomayor, J., concurring). In other words, we apply a basic syllogism: if the sentence is based on a plea agreement, and the plea agreement relies on a given sentencing range, then the sentence is based on that range. The reason the syllogism holds true is that, under Rule 11(c)(1)(C), when the parties "agree that a specific sentence or sentencing range is the appropriate disposition of the case," that "recommendation or request binds the court once the court accepts the plea agreement." See Fed.R.Crim.P. 11(c)(1)(C).
If we take the district court at its word, the court does not appear to have based Garrett's sentence on the crack-cocaine guidelines. But, as mentioned, the Freeman concurrence appears to instruct us that, in the Rule 11 context, the district court's purported basis for its decision is irrelevant. Instead, the concurrence appears to instruct us that, in the Rule 11 context, we cannot conclude that the district court based its sentence on anything other than the plea agreement itself. See Freeman, 131 S.Ct. at 2695 (Sotomayor, J., concurring) ("In short, the term of imprisonment imposed pursuant to a(C) agreement is, for purposes of § 3582(c)(2), `based on' the agreement itself.").
The question, then, is what sentencing range, if any, was "evident" from or "employ[ed]" by the agreement to "establish" the term of imprisonment to be imposed. Garrett's plea agreement with the government discusses two different ranges. First, it discusses the parties' agreement as to the appropriate calculation of Garrett's guideline range (¶ 2B of the agreement): "There are no sentencing guideline disputes. Except as provided below, defendant's guideline range is 151-188 months, as set forth in the attached worksheets." Second, it discusses the parties' agreement as to the range within which the district court must actually sentence Garrett:
But the government is wrong to assume that Garrett's sentence was therefore not "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." The range on which the sentence was immediately and directly based (120-188 months) was itself "based on a sentencing range that has subsequently been lowered by the Sentencing Commission" (151-188 months). It follows that the sentence was based, at least in part (and there is no requirement that the lowered guideline range be the entire basis for the sentence), on the 151-to-188-month range. One reasonable way to answer the question whether the sentence was "based on" the subsequently lowered guideline range is to ask whether the sentence — or more directly, the agreed — upon disposition in the plea agreement — would likely have been different had the guideline, as amended, been in place at the time of sentencing. The answer is yes. The upper bound of the sentencing range was the upper bound of the guideline range — 188 months — which was subsequently lowered by the Sentencing Commission when it reduced the total offense level for Garrett's offense by 4 levels. This decrease would have yielded a reduced upper bound of 137 months.
Freeman requires such a reading. In Freeman, the parties stipulated to a sentence of 106 months, at the bottom end of a range (106-117 months) that was "based on" a combination of the subsequently lowered guideline range (46-57 months) and a mandatory minimum 60-month sentence on another charge, to be served consecutively, that would ultimately have been incorporated within that range. See Joint Appendix in Freeman v. United States, 2010 WL 4928891, 26a (U.S.2010) ("At the time of sentencing, the United States will... agree that a sentence of 106 months' incarceration is the appropriate disposition of this case."). In other words, the agreed-upon disposition — 106 months — was "based on" a guideline range of 46-57
To summarize, under Freeman, when a defendant's sentence follows from a Rule 11(c)(1)(C) plea agreement, the district court is bound by that agreement if it accepts it, and the defendant's sentence is therefore "based on" that agreement. More specifically, under Rule 11(c)(1)(C), the defendant's sentence is based on any agreement "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." See Fed.R.Crim.P. 11(c)(1)(C). In such a case, for the defendant to be eligible for a sentence reduction under § 3582(c)(2), the agreement must "employ[] a particular Guidelines sentencing range to establish the term of imprisonment." Freeman, 131 S.Ct. at 2698 (Sotomayor, J., concurring).
Here, Garrett's sentence was based on a Rule 11(c)(1)(C) plea agreement in which the parties agreed on a sentence between 120 and 188 months. That agreement "employ[ed] a particular Guidelines sentencing range" — 151 to 188 months — "to establish the term of imprisonment" by capping Garrett's sentence such that it could not exceed the upper end of that guideline range. The range was subsequently lowered by the Sentencing Commission. Therefore, Garrett's sentence was "based on a sentencing range that has subsequently been lowered by the Sentencing Commission."
The second question was whether a sentence reduction would be "consistent with applicable policy statements issued by the Sentencing Commission." See 18 U.S.C. § 3582(c)(2). As explained earlier, a reduction is not consistent with the Commission's applicable policy statements if the amendment in question — here, Amendment 750 — "does not have the effect of lowering the defendant's applicable guideline range." U.S.S.G. § 1B1.10(a)(2)(B). Garrett's applicable guideline range was 151-188 months, and Amendment 750 had the effect of lowering that range to 110-137 months before applying the mandatory minimum, and to 120-137 months after applying the minimum. A reduction in Garrett's sentence would therefore not be inconsistent with the Commission's applicable policy statements.
Garrett's sentence thus satisfies the requirements of § 3582(c)(2). The district court's decision to the contrary is therefore REVERSED and the case is REMANDED for further proceedings.