McKEOWN, Circuit Judge:
Congress has provided a limited mechanism for defendants to shave time off their sentences when the Sentencing Commission amends the Sentencing Guidelines with retroactive effect. In recent years, the Commission amended the Guidelines to reduce the potential time served by defendants convicted of certain drug crimes. After one of these amendments came into effect, Antonio Rodriguez-Soriano asked the district court to shorten his sentence, but the court declined to do so. We affirm because the district court properly determined that Rodriguez-Soriano's original sentence was not actually "based on" a subsequently lowered guideline range, so he is ineligible for a sentence reduction.
In 2005, Rodriguez-Soriano pled guilty to possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Because of the amount of drugs involved, his base offense level was 32 and his total offense level was 29. See U.S.S.G. § 2D1.1(c). Although the guideline range was 97-121 months due to his criminal history, his guideline sentence was a mandatory term of life imprisonment because of two prior convictions for felony drug offenses. See 21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 5G1.1(b).
Before sentencing, the government filed a motion pursuant to 18 U.S.C. § 3553(e) and § 5K1.1 of the Guidelines. This motion permitted the district court to sentence Rodriguez-Soriano below the mandatory life term. 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. The district court granted the motion and imposed a sentence of 300 months.
In November 2014, Amendment 782 to the Guidelines became effective, lowering by two levels the base offense level calculated under § 2D1.1(c) for certain drug types and quantities. In Rodriguez-Soriano's case, his offense level dropped from 32 to 30. On that basis, he moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court denied the motion, determining that Rodriguez-Soriano was ineligible for a reduction because his sentence was not "based on" his guideline
Under federal sentencing law, a district court generally "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). This baseline rule is subject to an important exception: a district court may reduce a sentence based on a guideline range that is later lowered by the Sentencing Commission. Id. § 3582(c)(2).
In deciding whether to reduce a sentence under § 3582(c)(2), a district court first determines a defendant's eligibility for a reduction. Dillon v. United States, 560 U.S. 817, 827, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). If a defendant is eligible, the court must then consider the factors in 18 U.S.C. § 3553(a) and assess whether the requested reduction is warranted. Dillon, 560 U.S. at 827, 130 S.Ct. 2683.
This appeal involves only the first step — the question of eligibility. Under this step, a defendant must show (1) that his sentence was "based on" a guideline range that has since been lowered, and (2) that the reduction he seeks is "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). These two statutory requirements are distinct, and the defendant must satisfy both to be eligible for a reduction. In re Sealed Case, 722 F.3d 361, 364-68 (D.C. Cir. 2013).
The meaning of the statutory phrase "based on" was the subject of a divided court in Freeman v. United States, 564 U.S. 522, 525-26, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), in which the Supreme Court considered whether a sentence is "based on" a guideline range when a defendant is sentenced following a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). Parsing the conflicting Freeman opinions is essential to understanding our circuit's interpretation of the phrase "based on."
A four-justice plurality in Freeman reasoned that a sentence imposed following a Rule 11(c)(1)(C) plea agreement may be "based on" a guideline range. In the plurality's view, a district court may reduce a sentence "to whatever extent" the subsequently lowered guideline range "was a relevant part of the analytic framework the judge used to determine the sentence." Freeman, 564 U.S. at 530, 131 S.Ct. 2685. To explain this view, the plurality began by noting that district courts "must exercise discretion to impose an appropriate sentence" in every case and that "[t]his discretion, in turn, is framed by the Guidelines." Id. at 525, 131 S.Ct. 2685. The plurality then concluded that § 3582(c)(2) permits sentence reductions "[w]here the decision to impose a sentence is based on a range later subject to retroactive amendment,"
Put differently, the plurality reasoned that § 3582(c)(2) relief is available to defendants imprisoned "pursuant to sentences that would not have been imposed but for a since-rejected, excessive range." Id. (emphasis added). The plurality's analysis therefore requires a connection between the sentence imposed and the subsequently lowered guideline range — a connection beyond the district court's mere calculation of the guideline range or the fact that its discretion is always "framed by the Guidelines" to some extent. See id. at 525, 131 S.Ct. 2685. Accordingly, § 3582(c)(2) "calls for an inquiry into the reasons for a judge's sentence." Id. at 533, 131 S.Ct. 2685 (emphasis added).
The plurality then applied its approach by reviewing the transcript from the sentencing hearing in that case. This review showed that the defendant's sentence was in fact "based on" the relevant guideline range because the district court not only calculated the range but also noted that the sentence imposed fell within the range and expressed independent judgment that the sentence was appropriate in light of that range. Id. at 530-31, 131 S.Ct. 2685. As a consequence, the defendant was eligible for a reduction because his sentence was "based on" a subsequently lowered guideline range. Id. at 531, 131 S.Ct. 2685.
Justice Sotomayor concurred in the judgment but took a different approach. She maintained that a sentence imposed following a Rule 11(c)(1)(C) plea agreement is "based on" the agreement itself — rather than on the court's guideline calculation — but she claimed a defendant could still be eligible for a reduction if the agreement expressly incorporated the relevant guideline range. Id. at 535-36, 538-39, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment). By contrast, the four-justice dissent asserted that a defendant sentenced following a Rule 11(c)(1)(C) plea agreement can never be eligible for a sentence reduction because the sentence will always be "based on" the plea agreement itself. Id. at 544, 131 S.Ct. 2685 (Roberts, C.J., dissenting).
Although our circuit initially followed Justice Sotomayor's reasoning, United States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012), we changed course in United States v. Davis, 825 F.3d 1014, 1016-17 (9th Cir. 2016) (en banc). Because there was no rationale common to a majority of the justices in Freeman, we were bound only by the result and so adopted the plurality's more persuasive analysis. Davis, 825 F.3d at 1016-17.
Key to our determination was the view that Justice Sotomayor's concurrence is not a "logical subset" of the plurality's reasoning. Id. at 1022 (applying Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)). Although the plurality's approach superficially seems to apply more broadly, we concluded that it is narrower in certain respects. Id. at 1023. To illustrate the point, we cited two examples where Justice Sotomayor's rationale would allow a sentence reduction but the plurality's would not. Id. These examples demonstrated that the plurality focused on what the district court actually used as a basis for the sentence. If the guideline range "played no role" in the district court's determination of the appropriate sentence, the sentence would not be "based on" that range. See id. (citation omitted). In other words, if the district court decides to impose a particular sentence "for reasons unrelated to the guideline range," the defendant is ineligible for a reduction because his sentence was not
Having adopted the plurality's approach, we looked to the transcript from the sentencing hearing to determine whether Davis's sentence was "based on" the relevant guideline range. Id. at 1027. The record showed that the district court initially calculated the range and, after reflecting on the evidence presented, determined that the sentence (which fell within the range) was "fair and reasonable." Id. We also noted that the plea agreement itself mentioned the guideline range and several factors that could affect that range. Id. We therefore concluded that Davis was eligible for a sentence reduction because his sentence was based on the guideline range. Id. at 1028.
With this background in mind, we turn to Rodriguez-Soriano's appeal. He argues that his sentence was "based on" the guideline range subsequently lowered by Amendment 782. The government agrees and urges us to reverse the district court. The parties believe Rodriguez-Soriano is eligible for a reduction due to a different amendment to the Sentencing Guidelines, Amendment 780, which endorses reductions for some defendants who provided substantial assistance.
This is, admittedly, an unusual situation with both the government and the defendant urging us to remand. At the time they filed their briefs, the parties did not have the benefit of our en banc decision in Davis. There is, however, a crucial flaw in their argument — the parties disregard the requirement that the district court consider what "role," if any, the relevant guideline range played in determining Rodriguez-Soriano's original sentence. Davis, 825 F.3d at 1023 (citation omitted); see also Freeman, 564 U.S. at 526, 131 S.Ct. 2685 (explaining that § 3852(c)(2) provides relief if a sentence "would not have been imposed but for a since-rejected, excessive range"). This oversight ignores § 3582(c)(2)'s limited scope: under this subsection, a district court may reduce a sentence only "to whatever extent" the range "was a relevant part of the analytic framework the judge used to determine the sentence." Freeman, 564 U.S. at 530, 131 S.Ct. 2685. Thus, to determine Rodriguez-Soriano's eligibility for a reduction, we must review the record to see if his sentence was in fact "based on" the guideline range lowered by Amendment 782. See id. at 533, 131 S.Ct. 2685 ("[§ 3582(c)(2)] calls for an inquiry into the reasons for a judge's sentence....").
The district court began the sentencing hearing with an obligatory calculation of Rodriguez-Soriano's guideline range but never mentioned that range again after concluding it was trumped by the mandatory life term. See Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The court then granted the government's motion, deviated below the mandatory life term, and imposed a sentence of 300 months.
Reviewing the hearing transcript reveals how and why the district court settled on a 300-month sentence. The government recommended 240 months, which it engineered by making a hypothetical six-level downward departure from the offense level for a mandatory life term. The court then calculated the hypothetical guideline range implicit in the government's recommendation as being 235-293 months. Finally, the court settled on a 300-month sentence, which, though higher than the government's recommendation, "reflect[ed] a downward departure from the life sentence pursuant to" the government's motion.
The parties essentially argue that the "based on" requirement is no requirement at all. They would read this phrase out of the statute since an initial guideline calculation is always required. Gall, 552 U.S. at 49, 128 S.Ct. 586. They assume that, under the Freeman plurality's logic, the fact that the district court initially calculated Rodriguez-Soriano's guideline range means that his original sentence was necessarily "based on" that range.
Under § 3582(c)(2), defendants do not "always" qualify for a sentence reduction simply because they are sentenced. Id. Rather, defendants are eligible only "when" the sentence was in fact "based on" the subsequently lowered guideline range. See id. at 1017 (quoting Freeman, 564 U.S. at 534, 131 S.Ct. 2685). This rule flows from the statute's plain language and adheres to the overall scheme of federal sentencing, in which § 3582(c)(2) has a "narrow scope" and "applies only to a limited class of prisoners — namely, those whose sentence was based on a sentencing range subsequently lowered by the Commission." Dillon, 560 U.S. at 825-26, 130 S.Ct. 2683; accord id. at 826, 130 S.Ct. 2683 ("Congress intended to authorize only a limited adjustment to an otherwise final
The parties' invocation of Amendment 780
Rodriguez-Soriano's guideline range of 97-121 months would be different following Amendments 780 and 782. Amendment 782 would lower his base offense level from 32 to 30, thereby decreasing his total offense level from 29 to 27. Given his criminal history, his amended guideline range would drop to 78-97 months. In light of Amendment 780 and § 1B1.10(c), then, Rodriguez-Soriano's "applicable guideline range" would be lowered due to Amendment 782. Crucially, though, this inquiry goes only to the second requirement under § 3582(c)(2) — whether the sentence reduction Rodriguez-Soriano requests is "consistent with applicable policy statements." It does not resolve whether, as a threshold matter, his original sentence was "based on" the guideline range the district court initially calculated. For that determination, we look to Davis. Because the initial guideline range was not relevant in determining Rodriguez-Soriano's sentence, he is ineligible for a reduction under § 3582(c)(2). Had the circumstances of sentencing been different, Rodriguez-Soriano may have benefited from Amendment 782. But in the end, as the district court made clear, his sentence was not "based on" the guideline range.
U.S.S.G. Supplement to Appendix C, Amendment 780.