United States v. Leonard

1
15‐2232‐cr
United States v. Leonard
In the
United States Court of Appeals
For the Second Circuit
________________
August Term, 2016
(Argued: September 2, 2016 Decided: December 14, 2016)
Docket No. 15‐2232‐cr
________________
U NITED S TATES OF AMERICA,
Appellee,
—v.—
JAMAHL LEONARD,
Defendant‐Appellant.
________________
Before:
R AGGI, C HIN, D RONEY , Circuit Judges.
________________
On appeal from a final order entered in the United States District Court for
the Western District of New York (Larimer, J.), defendant challenges the
determination that he is ineligible for a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2) because, although a retroactive amendment to the Sentencing

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Guidelines range lowered the 121‐to‐151‐month Guidelines range identified by
the district court at defendant’s initial sentencing, the amended 97‐to‐121‐month
range was not lower than the 97‐to‐121‐month range agreed to by the parties
pursuant to Fed. R. Crim. P. 11(c)(1)(C), which the district court accepted and
within which it sentenced defendant to a 114‐month prison term. Defendant
argues that the agreed‐upon range, which was itself based on the Guidelines,
albeit calculated differently from the district court, became his applicable range
for purposes of determining § 3582(c)(2) eligibility. We conclude that
defendant’s applicable Guidelines range as defined by U.S.S.G. § 1B1.10(a) is the
121‐to‐151‐month range identified by the district court before accepting the
parties’ 11(c)(1)(C) agreement. Because that range was lowered by Guidelines
amendment to 97 to 121 months, however, defendant is eligible for a reduction in
his 114‐month sentence, but to no lower than 97 months.
V ACATED AND R EMANDED.
________________
B RUCE R. B RYAN, Esq., Syracuse, New York, for Defendant‐Appellant.
F RANK T. PIMENTEL, Assistant United States Attorney, for William J.
Hochul, Jr., United States Attorney for the Western District of
New York, Buffalo, New York, for Appellee.
________________

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R EENA R AGGI, Circuit Judge:
Defendant Jamahl Leonard was convicted in 2008 in the United States
District Court for the Western District of New York (David G. Larimer, Judge),
after pleading guilty to conspiracies to distribute 100 or more kilograms of
marijuana, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846; and to launder the proceeds of
that illegal trafficking, see 18 U.S.C. § 1956(h). Presently incarcerated, serving a
114‐month prison term, Leonard appeals from a final order entered by the same
court on June 15, 2015, which concluded that he was ineligible for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2). The court reasoned that, although a
post‐conviction, retroactive amendment to the Sentencing Guidelines had
lowered the 121‐to‐151‐month Guidelines range identified by the court at
Leonard’s initial sentencing, the amended 97‐to‐121‐month range was not lower
than the 97‐to‐121‐month range agreed to by the parties in their plea agreement
under Fed. R. Crim. P. 11(c)(1)(C). Leonard challenges this conclusion, arguing
that, once the district court accepted his 11(c)(1)(C) plea agreement, the
sentencing range specified therein became his “applicable” range for purposes of
determining § 3582(c)(2) eligibility. And because the amendment lowered that

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range to 78 to 97 months, Leonard maintains he is eligible for a sentence
reduction to that extent.
The government defends the district court’s ineligibility determination,
maintaining that (1) Leonard’s sentence was “based on” his 11(c)(1)(C)
agreement, not the Sentencing Guidelines as required by § 3582(c)(2); and, (2) in
any event, Leonard’s 114‐month sentence is within the now‐amended applicable
range, (a) precluding a finding that his applicable range was lowered by a
subsequent amendment as required by U.S.S.G. § 1B1.10(a)(1), or (b) at least
rendering any ineligibility error in this case harmless.
Neither party’s argument is completely persuasive. Contrary to the
government, we conclude that Leonard is eligible for a § 3582(c)(2) sentence
reduction because his original sentence was “based on” the Sentencing
Guidelines as that statutory phrase has been construed by the five justices in the
majority in Freeman v. United States, 564 U.S. 522, 525 (2011) (plurality opinion);
id. at 534 (Sotomayor, J., concurring in the judgment). At the same time,
however, we conclude that the extent of the reduction for which Leonard is
eligible is narrower than he urges because his “applicable” Guidelines range, as
defined by U.S.S.G. § 1B1.10 cmt. n.1(A), was the 121‐to‐151‐month range

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calculated by the district court before accepting what was effectively a
downward variance to the 97‐to‐121‐month range prescribed in the parties’
11(c)(1)(C) agreement. Because the relevant Guidelines amendment reduced
Leonard’s originally applicable 121‐to‐151‐month range to a 97‐to‐121‐month
range, Leonard is eligible for a reduction of his 114‐month sentence, but to no
less than 97 months’ incarceration, the low end of the amended range. See
U.S.S.G § 1B1.10(b)(2)(A). Whether to grant any reduction is, of course, a matter
entrusted to the district court’s discretion. See United States v. Christie, 736 F.3d
191, 194–95 (2d Cir. 2013). Nevertheless, because we conclude that Leonard is at
least eligible for such a reduction, we vacate the challenged order and remand
for the district court to decide whether or not to exercise its reduction discretion
in this case.
I. Background
A. Leonard Pleads Guilty Pursuant to a Rule 11(c)(1)(C) Agreement
On May 23, 2008, Leonard pleaded guilty to conspiring to distribute “at
least 700 but less than 1,000 kilograms of marijuana,” and to laundering the
proceeds of that criminal activity in an amount “more than $30,000 but less than
$70,000.” App’x 9–10. In a written plea agreement, Leonard and the prosecution

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noted their agreement to certain Sentencing Guidelines calculations, specifically,
to a base offense level of 30 with a three‐level upward adjustment for
aggravating role and a three‐level downward adjustment for acceptance of
responsibility. With further agreement to a criminal history category of I, the
parties’ calculations yielded a “guideline sentencing range” of 97 to 121 months’
imprisonment. Id. at 13. Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties
agreed that Leonard should be sentenced within this Guidelines range and that,
if the district court were to reject that part of the plea agreement, “defendant
shall then be afforded the opportunity to withdraw the plea of guilty.” App’x 13.1
1 Fed. R. Crim. P. 11(c)(1)(C) states in pertinent part as follows:
If the defendant pleads guilty . . . , the plea agreement may specify
that an attorney for the government will: . . . (C) agree 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 (such a
recommendation or request binds the court once the court accepts
the plea agreement).
A court “may accept [an 11(c)(1)(C)] agreement, reject it, or defer a decision until
the court has reviewed the presentence report.” Id. 11(c)(3)(A). If a court rejects
such an agreement, however, it must “give the defendant an opportunity to
withdraw the plea.” Id. 11(c)(5)(B).

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B. Sentencing
Prior to sentencing, the district court received a Presentence Investigation
Report (“PSR”) from the Probation Department (“Probation”), which calculated
Leonard’s Sentencing Guidelines range at 151 to 188 months rather than the 97‐
to‐121‐month range referenced in the parties’ 11(c)(1)(C) agreement. While
Probation agreed that Leonard’s base offense level was 30 and that he was
entitled to a three‐level reduction for acceptance of responsibility, it
recommended a two‐level increase for possession of firearms by a co‐conspirator,
and a four‐ (rather than three‐) level increase for Leonard’s organizing role.
Further, because Leonard had committed the crimes of conviction while under
conditional discharge from an earlier conviction, Probation calculated his
criminal history category at II rather than I.
At sentencing, the district court rejected the recommended firearms
enhancement, but adopted the four‐point role enhancement, as well as the higher
criminal history category to yield a Guidelines range of 121 to 151 months.
While the district court acknowledged that the parties had “some issue” with
these enhancements, it reiterated its conclusion that “the guidelines are as I
indicated, 121 to 151” months. App’x 94. Nevertheless, it stated that it was

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“prepared to accept” the parties’ 11(c)(1)(C) agreement and to sentence Leonard
“within the range of 97 to 121 months” identified therein, which it deemed
“sufficient in my view, but not greater than necessary, to meet [statutory]
sentencing objectives.” Id. at 94–95. Accordingly, the district court sentenced
Leonard to 114 months’ imprisonment, four years’ supervised release, a $2,500
fine, and a $200 special assessment.
C. Amendments to Applicable Guidelines Range
Almost six years after Leonard’s sentencing, the United States Sentencing
Commission issued two relevant Guidelines amendments. Amendment 782,
which took effect in 2014, amended the Drug Quantity Table in U.S.S.G. § 2D1.1
to reduce the offense levels associated with certain controlled substances crimes
by two levels. See U.S.S.G., Supp. to App. C, Amend. 782. Thus, the base offense
level for the quantity of marijuana involved in Leonard’s drug crime of
conviction was reduced from 30 to 28. See id. § 2D1.1(c)(6). Amendment 788,
which also took effect in 2014, provided for retroactive application of
Amendment 782. See id. at Supp. to App. C, Amend. 788.

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D. Motion To Reduce Sentence
On May 11, 2015, Leonard invoked the two aforementioned amendments
to move pro se for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).2 The
district court denied the motion on June 15, 2015, concluding that Leonard was
ineligible for a sentence reduction. The court reasoned that, although it had
“determined the applicable Guidelines range to be 121‐151 months,” and the
amendments had reduced that range to 97 to 121 months, it had in fact sentenced
Leonard within the latter range pursuant to the plea agreement, such that
Amendment 782 “[did] not have the effect of lowering the defendant’s applicable
guideline range.” App’x 191; see U.S.S.G. § 1B1.10(a)(2)(B).
2 That statute states as follows:
[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 pursuant to 28 U.S.C.
994(o), upon motion of the defendant . . . , the court may reduce the
term of imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if such a
reduction is consistent with applicable policy statements issued by
the Sentencing Commission.
18 U.S.C. § 3582(c)(2).

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Leonard timely appealed from the decision.3
II. Discussion
A. Standard of Review
Where, as here, a defendant seeks a sentence reduction based on a
retroactive Guidelines amendment, a district court must determine (1) whether
the defendant is eligible for a reduction pursuant to 18 U.S.C. § 3582(c)(2), and (2)
whether a reduction is warranted in light of the factors listed in 18 U.S.C.
§ 3553(a). See Dillon v. United States, 560 U.S. 817, 826 (2010). Because the initial
eligibility question—the only one here at issue—depends on statutory
interpretation, our review is de novo. See United States v. Williams, 551 F.3d 182,
185 (2d Cir. 2009).
B. Leonard’s Eligibility for a Sentence Reduction
Congress has pronounced a convicted defendant eligible for a sentence
reduction if (1) he “has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered,” and (2) “such a reduction
is consistent with applicable policy statements issued by the Sentencing
3 In his plea agreement, Leonard waived the right to appeal or collaterally attack
any component of a sentence falling within or below the 97‐to‐121‐month range
agreed to by the parties. Because the government does not argue that this waiver
forecloses the instant appeal, we do not here consider that question.

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Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added). The pertinent policy
statement conditions reduction eligibility on “the guideline range applicable to
that defendant ha[ving] subsequently been lowered as a result of an amendment
to the Guidelines Manual listed in subsection (d).” U.S.S.G. § 1B1.10(a)(1)
(emphasis added). Thus, two requirements must be satisfied for a defendant to
be eligible for a sentence reduction: (1) the original sentence must have been
“based on” the Sentencing Guidelines, and (2) the amendment must have
lowered the Guidelines range “applicable to” the defendant at the time of the
original sentencing. See United States v. Pleasant, 704 F.3d 808, 810–11 (9th Cir.
2013) (observing that “applicable to” language from policy statement and “based
on” language from statute require “separate analysis”);4 see also United States v.
Martinez, 572 F.3d 82, 84 (2d Cir. 2009) (holding defendant convicted of crack
conspiracy ineligible for sentence reduction based on amendment lowering
4 Insofar as Pleasant relied on United States v. Austin, 676 F.3d 924 (9th Cir. 2012),
in identifying Justice Sotomayor’s concurring opinion in Freeman v. United States,
564 U.S. 522 (2011), as controlling, Austin has now been overruled by United
States v. Davis, 825 F.3d 1014, 1022 (9th Cir. 2016) (en banc), thus abrogating that
part of Pleasant. We discuss Freeman and Davis further infra at Part II.B.1. We
here note only that the parts of Pleasant cited in this opinion appear unaffected by
Davis. In any event, we would reach the conclusions stated herein even without
support from Pleasant.

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crack Guidelines because Guidelines applicable to defendant’s sentence were
those pertaining to career offenders, which were not lowered).
1. Leonard’s Sentence Was “Based On” a Subsequently Lowered
Guidelines Range
In deciding whether Leonard’s 114‐month sentence was “based on” a
subsequently lowered Guidelines range, we are guided by the Supreme Court’s
ruling in Freeman v. United States, 564 U.S. 522. In that case, the Court considered
whether a sentence imposed pursuant to a 11(c)(1)(C) agreement could ever be
said to have been “based on” on the Sentencing Guidelines for purposes of
§ 3582(c)(2). Five Justices answered that question in the affirmative, but for
different reasons. The four‐member plurality reasoned that because “the
Guidelines must be consulted, in the regular course” of imposing any sentence,
including a sentence identified in an 11(c)(1)(C) agreement, an 11(c)(1)(C)
sentence was “likely to be based on the Guidelines.” Id. at 525, 534 (plurality
opinion, Kennedy, J., joined by Ginsburg, Breyer, Kagan, JJ.) (explaining that
U.S.S.G. § 6B1.2 requires district judge to evaluate recommended sentence in
light of defendant’s applicable Guidelines range before accepting 11(c)(1)(C)
agreement, see id. at 529–30). Five Justices specifically rejected this view,
concluding that an 11(c)(1)(C) sentence is based not on the Sentencing Guidelines

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but on the parties’ plea agreement. See id. at 534 (Sotomayor, J., concurring in the
judgment); id. at 545 (Roberts, C.J., dissenting, joined by Scalia, Thomas, Alito,
JJ.). This led the dissenters to conclude that 11(c)(1)(C) sentences were
categorically ineligible for § 3582(c)(2) reductions. See id. at 547–48 (Roberts, C.J.,
dissenting). Justice Sotomayor, however, joined in the plurality’s favorable
eligibility determination, explaining that “if [an 11(c)(1)(C)] agreement expressly
uses a Guidelines sentencing range applicable to the charged offense to establish
the term of imprisonment, and that range is subsequently lowered by the United
States Sentencing Commission, the term of imprisonment is ‘based on’ the range
employed and the defendant is eligible for sentence reduction under
§ 3582(c)(2).” Id. at 534 (Sotomayor, J., concurring in the judgment). The
concurrence’s reasoning, as applied in Freeman, created little practical tension
with the plurality because the sentencing range identified by the parties in their
11(c)(1)(C) agreement was the Guidelines range calculated by the district court,
and the defendant agreed to have his sentence determined pursuant to the
Sentencing Guidelines. See id. at 527–28 (plurality opinion); id. at 542–44
(Sotomayor, J., concurring in the judgment).

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This case is different. Although Leonard and the prosecutors agreed to an
11(c)(1)(C) sentence based on their Sentencing Guidelines calculation, that
calculation yielded a lower range than the applicable range identified by the
district court. Thus, we must consider whether the controlling rationale for
decision in Freeman supports Leonard’s claim that his sentence, although
imposed pursuant to that agreed‐to lower range, was nevertheless “based on”
the Guidelines for purposes of a § 3582(c)(2) reduction.
Generally, “[w]hen a fragmented [Supreme] Court decides a case and no
single rationale explaining the result enjoys the assent of five Justices, the
holding of the Court may be viewed as that position taken by those Members
who concurred in the judgment[] on the narrowest grounds.” Marks v. United
States, 430 U.S. 188, 193 (1977) (internal quotation marks omitted). This Court
has not identified in a published opinion which Freeman rationale is controlling.
We have only assumed the controlling effect of Justice Sotomayor’s concurring
opinion in a number of our unpublished summary orders. See, e.g., United States
v. Howell, 541 F. App’x 13, 14 (2d Cir. 2013); United States v. Kinsey, 533 F. App’x
36, 37–38 (2d Cir. 2013). The parties appear to urge that conclusion here. The
matter gives some pause, however, because the one point uniting eight members

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of the Court in Freeman is their rejection of Justice Sotomayor’s rationale for
decision. See Freeman v. United States, 564 U.S. at 532–34 (plurality opinion)
(observing that concurrence, by shifting focus of “based on” inquiry from
reasons for judge’s sentence to terms of parties’ plea agreement, risks arbitrary
and disparate identification of defendants eligible for reductions from 11(c)(1)(C)
sentences); id. at 544 (Roberts., C.J., dissenting) (agreeing with plurality that
concurring opinion’s approach is “arbitrary and unworkable”).
Further, our sister circuits have divided in identifying Freeman’s
controlling rationale. In published decisions, eight courts of appeals have
recognized Justice Sotomayor’s concurring opinion as the narrower and,
therefore, controlling, rationale for decision. See United States v. Benitez, 822 F.3d
807, 811 (5th Cir. 2016); United States v. Graham, 704 F.3d 1275, 1278 (10th Cir.
2013); United States v. Browne, 698 F.3d 1042, 1045–46 (8th Cir. 2012); United States
v. Dixon, 687 F.3d 356, 359–60 (7th Cir. 2012); United States v. Thompson, 682 F.3d
285, 290 (3rd Cir. 2012); 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 (4th Cir. 2011). A ninth court has done so summarily.
See United States v. Cover, 491 F. App’x 87, 89 (11th Cir. 2012). Only one of these

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courts, however, reached that conclusion in circumstances akin to those
presented here, that is, an 11(c)(1)(C) agreement to a Guidelines range that turns
out to be lower than the applicable range calculated by the district court. See
United States v. Smith, 658 F.3d at 611. Meanwhile, two courts of appeals—one
sitting en banc—have observed that Justice Sotomayor’s rationale for decision in
Freeman is not necessarily narrower than that of the plurality and, therefore,
declined to accord it controlling effect. See United States v. Davis, 825 F.3d 1014,
1023 (9th Cir. 2016) (en banc) (concluding that Freeman “plurality opinion is
actually the narrower one in certain respects”); United States v. Epps, 707 F.3d 337,
350 & n.8 (D.C. Cir. 2013) (suggesting that two rationales for decision are
incompatible insofar as focus of plurality’s inquiry is judge and focus of
concurrence’s inquiry is parties).5 According to these two courts, only the
5 In concluding that the rationale for decision of the Freeman concurrence was not
necessarily narrower than that of the plurality, the D.C. and Ninth Circuits
hypothesized a scenario in which an 11(c)(1)(C) agreement provided for a
particular Guidelines range to apply and a sentence at the bottom of that range to
be imposed, only to have the district court, while accepting the agreement,
conclude that the agreed‐to range did not pertain at all because the career
offender range was applicable.
Using Justice Sotomayor’s standard, if the sentencing range used by
the parties is subsequently reduced, the defendant would be eligible

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Freeman result—“that § 3582(c)(2) relief is not invariably barred when a sentence
was imposed pursuant to a Rule 11(c)(1)(C) plea agreement”—is binding, United
States v. Epps, 707 F.3d at 351, leaving lower courts free to follow the more
persuasive rationale for that result, which both courts decided is that of the
plurality opinion, see id.; accord United States v. Davis, 825 F.3d at 1026.
We need not here decide which of the Freeman rationales for decision is
the narrower, or which is more persuasive, because we conclude that Leonard’s
114‐month sentence is properly recognized as “based on” the Sentencing
Guidelines under the reasoning of either the plurality or the concurrence.
To explain, we begin with the plurality, which recognized that even
11(c)(1)(C) sentences that varied from the Guidelines range calculated by the
district court could be “based on the Guidelines”: “Even where the judge varies”
for a sentence reduction because the plea agreement was accepted
and provided for a stipulated sentence based on a subsequently
reduced range—according to Justice Sotomayor, eligibility is
determined based on the agreement. The plurality, however, would
find this defendant ineligible because the range that the parties
agreed to played no role in the court’s determination that this was
an appropriate sentence, despite the fact that the court imposed the
agreed‐upon term of imprisonment.
United States v. Epps, 707 F.3d at 350 n.8 (internal quotation marks omitted);
accord United States v. Davis, 825 F.3d at 1023.

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below the recommended Guidelines range, “if the judge uses the sentencing
range as the beginning point to explain the decision to deviate from it, then the
Guidelines are in a real sense a basis for the sentence.” Freeman v. United States,
564 U.S. at 529 (plurality opinion). This reasoning appears to recognize the
possibility that a sentence can be “based on” the Guidelines even if departing or
varying from the applicable Guidelines range.
That describes this case. The district court here began its consideration of
Leonard’s sentence by independently calculating his applicable Guidelines
range, adopting certain recommendations by Probation (as to role) and rejecting
others (as to firearms possession), without regard to the parties’ 11(c)(1)(C)
agreement. Only after thus identifying the applicable Guidelines range and then
considering it together with “all the factors under [18 U.S.C.] Section 3553(a)” did
the court effectively decide to vary from the Guidelines and to sentence Leonard
within the lower range agreed to by the parties. App’x 94; see United States v.
Kuhlman, 711 F.3d 1321, 1325 (11th Cir. 2013) (characterizing acceptance of
parties’ agreed‐to below‐Guidelines sentence as “effectively a . . . downward
variance” from Guidelines); United States v. Pleasant, 704 F.3d at 812 (viewing
imposition of below‐Guidelines sentence pursuant to plea agreement as

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equivalent of downward variance). In explaining its acceptance of the 11(c)(1)(C)
agreement, the district court referenced the parties’ agreement, but relied in the
main on reasoning that would inform a sentence in any event, specifically, that
the agreed upon range was “sufficient in my view, but not greater than
necessary, to meet those [§ 3553(a)] sentencing objectives.” App’x 94–95; see 18
U.S.C. § 3553(a) (requiring court to impose “sentence sufficient, but not greater
than necessary, to comply with the purposes set forth in . . . this subsection”);
Kimbrough v. United States, 552 U.S. 85, 101 (2007) (recognizing “overarching”
statutory obligation, even within Guidelines regimen, to impose sentence
“sufficient, but not greater than necessary, to accomplish the goals of sentencing”
(internal quotation marks omitted)). The court then proceeded to explain in
some detail—spanning seven pages of transcript—how the § 3553(a) factors, as
applied specifically to Leonard, warranted a sentence of 114 months’
incarceration. See App’x 105–12.
On this record, we conclude that, under the Freeman plurality’s rationale
for decision, Leonard’s sentence was “based on” the Sentencing Guidelines
because the district court used his Guidelines range as “the beginning point” for

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its sentencing analysis, even though ultimately deciding to vary below that
applicable range. Freeman v. United States, 564 U.S. at 529 (plurality opinion).
Turning to Justice Sotomayor’s concurrence, its rationale for decision
focused not on the sentencing judge’s consideration of the Guidelines but on the
terms of the parties’ agreement. See id. at 536–37 (Sotomayor, J., concurring in
the judgment) (rejecting idea that district courts could “reduce a term of
imprisonment [pursuant to § 3582(c)(2)] simply because the court itself
considered the Guidelines”). It concluded that, if an 11(c)(1)(C) agreement
“call[ed] for the defendant to be sentenced within a particular Guidelines
sentencing range,” and the district court accepted the agreement, thereby
obligating it “to sentence the defendant accordingly,” then “there can be no
doubt that the term of imprisonment the court imposes is ‘based on’ the agreed‐
upon sentencing range within the meaning of § 3582(c)(2).” Id. at 538. Justice
Sotomayor reached the same conclusion with respect to 11(c)(1)(C) agreements
providing for a specific term of imprisonment if they made clear “that the basis
for the specified term is a Guidelines sentencing range applicable to the offense
to which the defendant pleaded guilty.” Id. at 539.

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This case falls within the concurrence’s first category. In their 11(c)(1)(C)
agreement, the parties here not only called for Leonard to be sentenced within
the Guidelines range of 97 to 121 months, but also detailed the Guidelines
calculation producing that range, identifying the particular Guidelines providing
for a base offense level of 30, see U.S.S.G. § 2D1.1(a)(3), (c)(5); a three‐level
upward adjustment for aggravating role, see id. § 3B1.1(b); and a three‐level
downward adjustment for acceptance of responsibility, see id. § 3E1.1(a), (b); as
well as identifying the Guidelines criminal history category of I. See App’x 11–
14. Under the concurrence’s reasoning, when an 11(c)(1)(C) agreement thus
expressly uses the Guidelines to identify the agreed‐upon sentencing range, a
district court’s acceptance of the agreement and its imposition of the agreed‐
upon sentence satisfies the “based on” requirement of § 3582(c)(2).
Further, under the concurrence’s rationale for decision, no different
conclusion is warranted because, in the agreement, the parties acknowledged
that the district court was “not bound by the Sentencing Guidelines.” Id. at 11.
Whatever options were available to the district court before it accepted the
parties’ agreement, the Freeman concurrence specifically states that, once the
court indicated acceptance, it was “obligate[d] . . . to sentence the defendant

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accordingly,” that is, according to the agreed‐upon Guidelines calculation, so
that its sentence was “‘based on’ the agreed‐upon [Guidelines] sentencing
range.” Freeman v. United States, 564 U.S. at 538 (Sotomayor, J., concurring in the
judgment).
A question arises, however, as to whether the concurrence’s rationale
supports that “based on” conclusion even where, as here, the Guidelines
sentencing range agreed to by the parties is not the Guidelines range
independently calculated by the district court. In short, can a miscalculated
range be deemed “based on” the Guidelines for purposes of § 3582(c)(2)? The
Freeman dissenters posed that question as a challenge to the concurrence’s
reasoning. See id. at 550–51 (Roberts, C.J., dissenting). Justice Sotomayor,
however, did not hesitate to answer in the affirmative: “Because it is the parties’
agreement that controls in the [11(c)(1)](C) agreement context, . . . even if the
District Court had calculated the range differently than the parties, . . . Freeman
would still be eligible for resentencing, as long as the parties’ chosen range was
one that was subsequently lowered by the Sentencing Commission.” Id. at 542
n.8 (Sotomayor, J., concurring in the judgment) (alterations and internal
quotation marks omitted). The dissenters characterized the answer as

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“surprising” given that “the governing Guidelines provision specifies that a
defendant is only eligible for sentence reduction if the amended Guideline has
‘the effect of lowering the defendant’s applicable guideline range’—presumably
the correct applicable guideline range.” Id. at 551 (Roberts, C.J., dissenting)
(emphasis in original) (quoting U.S.S.G. § 1B1.10(a)(2)(B)).
Because the district court in Freeman did not calculate defendant’s
applicable Guidelines range differently from the parties, these exchanges about a
circumstance not before the Court can be viewed as dicta. See United States v.
Santos, 553 U.S. 507, 523 (2008) (stating that “speculations” as to “a case that is
not before” the Court are “the purest of dicta”). Further, as we explain infra at
Part II.B.2., a post‐Freeman amendment to § 1B1.10(a) commentary clarifies how a
defendant’s applicable Guidelines range is to be calculated. We need not here
decide whether or how this clarification might prompt the Supreme Court, and
Justice Sotomayor in particular, to refine their analysis of the “based on”
requirement for § 3582(c)(2) relief. We conclude only that Justice Sotomayor, like
her plurality colleagues, reasoned that sentences not within the Guidelines range
calculated by the district court could be “based on” the Guidelines for purposes
of § 3582(c)(2).

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Thus, although the Freeman concurrence and plurality employ different
rationales for decision, under either, Leonard’s 114‐month sentence is properly
understood to be “based on” the Sentencing Guidelines even though the parties
calculated those Guidelines in their 11(c)(1)(C) agreement differently than did
the district court. Thus, Leonard satisfies the first eligibility requirement for a
§ 3582(c)(2) sentence reduction.
2. The Guidelines Range “Applicable To” Leonard Was
Lowered by Amendment from 121 to 151 Months to 97 to 121
Months
Although Leonard’s sentence is “based on” the Guidelines, he is only
eligible for a sentence reduction to the extent “the guideline range applicable to
[him] has subsequently been lowered as a result of an amendment to the
Guidelines.” U.S.S.G. § 1B1.10(a)(1) (emphasis added); see id. § 1B1.10(b)(1)
(stating that “whether, and to what extent” defendant’s sentence may be reduced
is determined by amended applicable Guidelines range); United States v. Pleasant,
704 F.3d at 812 (denying § 3582(c)(2) relief to defendant because, although he
satisfied statute’s “based on” requirement, crack Guidelines amendment did not
lower career offender Guidelines “applicable to” him). The parties here agree
that Amendment 782 lowered the Guidelines ranges for most drug crimes,

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including Leonard’s. They dispute, however, what Guidelines range was
“applicable to” Leonard when he was sentenced.
Leonard argues that his initial applicable range was 97 to 121 months, the
range specified in his 11(c)(1)(C) agreement, which the district court accepted.
Because Amendment 782 lowered that range to 78 to 97 months, Leonard
submits he is eligible for a reduction to that extent.
The government maintains that Leonard’s applicable Guidelines range
was 121 to 151 months, the range calculated by the district court before accepting
the parties’ agreement. It argues that because Amendment 782 lowered that
range to 97 to 121 months—the range within which Leonard was sentenced
pursuant to his 11(c)(1)(C) agreement—he is not entitled to any further
reduction.
We agree that Leonard’s applicable Guidelines range was 121 to 151
months, but we do not agree that he is ineligible for any reduction from his 114‐
month sentence. That applicable range having been lowered to 97 to 121 months,
the district court—in its discretion—could reduce Leonard’s sentence to
anywhere from 97 to 113 months. Thus, Leonard is at least eligible for a sentence
reduction to that extent.

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To explain our conclusion, we begin with the commentary to § 1B1.10,
which explicitly defines the “applicable guideline range” that must be lowered to
allow for a § 3582(c)(2) reduction as “the guideline range that corresponds to the
offense level and criminal history category determined pursuant to § 1B1.1(a),
which is determined before consideration of any departure provision in the
Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A). Two parts of
this definition defeat Leonard’s argument that the 97‐to‐121‐month range agreed
to by the parties in their 11(c)(1)(C) agreement became his “applicable” range
when the district court accepted the agreement.
First, § 1B1.1(a), referenced in the above‐quoted definition, states that
“[t]he court shall determine the kinds of sentence and the guideline range as set
forth in the guidelines,” whereupon it proceeds to specify the order in which a
court is to apply various Guidelines provisions. Id. § 1B1.1(a) (emphases added).
In short, the highlighted language plainly assigns responsibility for determining
the applicable Guidelines range to “the court,” not the parties, and requires the
court to make that determination “as set forth in the guidelines,” not by reference
to the parties’ agreement. Id.

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Second, and more compelling, the quoted definition states that the
“applicable guideline range” is identified “before consideration of any departure
. . . or any variance.” Id. § 1B1.10 cmt. n.1(A). The Sentencing Commission
explained that it added this language to the Guidelines commentary to resolve a
circuit split on the issue of whether the applicable Guidelines range is
determined before or after any departure or variance. See id. at App. C, Vol. III,
Amend. 759, at 421. The definition makes plain that it is determined before. Our
court has acknowledged as much in abrogating our own precedent at odds with
the commentary definition. See United States v. Steele, 714 F.3d 751, 754 (2d Cir.
2013) (observing that definition makes clear that “‘applicable’ amended
Guidelines range . . . does not incorporate any Guidelines ‘departures’” or
variances, thus abrogating United States v. Rivera, 662 F.3d 166 (2d Cir. 2011)
(using sentencing range calculated after departure in determining defendant’s
eligibility for § 3582(c)(2) reduction)); see also United States v. Garrett, 758 F.3d 749,
753 (6th Cir. 2014) (stating that applicable Guidelines range is produced “after a
correct determination of the defendant’s total offense level and criminal history
category but prior to any discretionary departures” (emphasis in original)).

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As we have already explained, when a district court accepts an 11(c)(1)(C)
sentence or sentencing range that is lower than its calculated Guidelines range,
what the court effectively does is grant a departure or variance. See supra Part
II.B.1. There is no doubt as to the court’s authority to do so. But that does not
transform the lower agreed‐upon range into the applicable Guidelines range. As
the commentary to § 1B1.10 makes plain, the “applicable guideline range” for
purposes of determining a defendant’s eligibility for a § 3582(c)(2) reduction is
always that determined by the court as set forth in the Guidelines, without
regard to the parties’ agreement to a different calculation, and before the exercise
of any departure or variance discretion. See United States v. Pleasant, 704 F.3d at
811–12.
That conclusion is reinforced by U.S.S.G. § 6B1.2(c), which states that “the
court may accept” an 11(c)(1)(C) agreement if the sentence agreed to therein is
either (1) “within the applicable guideline range” or (2) “outside the applicable
guideline range for justifiable reasons.” U.S.S.G. § 6B1.2(c)(1), (2) (policy
statement). The second option plainly recognizes that an 11(c)(1)(C) sentence or
sentencing range may not fall within or equate to the “applicable guideline
range” as that term is defined in the commentary to § 1B1.10 and identified

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pursuant to § 1B1.1(a). See generally Brown v. Gardner, 513 U.S. 115, 118 (1994)
(presuming that “given term is used to mean the same thing throughout a
statute”); accord United States v. Steele, 714 F.3d at 754 n.2 (applying principle to
Guidelines). Thus, although § 6B1.2(c) approves 11(c)(1)(C) sentences “outside
the applicable guideline range for justifiable reasons,” it does not thereby
transform “the applicable guideline range” to whatever the parties agree to in
their 11(c)(1)(C) agreement. It simply recognizes, as we have here, the court’s
authority to impose 11(c)(1)(C) sentences that depart or vary from the applicable
Guidelines range. See United States v. Pleasant, 704 F.3d at 812.
Leonard maintains that the Freeman concurrence compels a different
conclusion insofar as it states that, in the context of 11(c)(1)(C) sentences, “it is
the parties’ agreement that controls,” so that “even if the District Court had
calculated the range differently than the parties, [defendant] would still be
eligible for resentencing, as long as the parties’ chosen range was one that was
subsequently . . . lowered by the Sentencing Commission.” Freeman v. United States,
564 U.S. at 542 n.8 (Sotomayor, J., concurring in the judgment) (emphasis added);
see also United States v. Smith, 658 F.3d at 613 (holding that agreed‐to range was
applicable because Freeman makes clear that “where the parties have entered into

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30
a Rule 11(c)(1)(C) plea agreement that is based on the Sentencing Guidelines, the
applicable Guidelines range for purposes of § 3582(c) is the one provided in the
plea agreement”). We are not persuaded that Freeman compels the result
Leonard urges.
First, Freeman did not have to decide what constitutes the applicable
sentencing range for purposes of a § 3582(c)(2) reduction. The defendant’s
agreed‐upon 11(c)(1)(C) sentence was there within the Guidelines range
calculated by the district court, and there was no question that that range had
been lowered by retroactive amendment. See Freeman v. United States, 564 U.S. at
527–28 (plurality opinion). Thus, the only question for decision was whether
such an 11(c)(1)(C) sentence could be deemed “based on” the Guidelines as
required for a § 3582(c)(2) reduction. A majority answered that question in the
affirmative, see id. at 526 (plurality opinion); id. at 534 (Sotomayor, J., concurring
in the judgment); a minority in the negative, see id. at 544 (Roberts, C.J.,
dissenting).
In these circumstances, whatever authority the Freeman concurring opinion
commands under Marks v. United States, 430 U.S. at 193, with respect to
identifying 11(c)(1)(C) sentences “based on” the Guidelines, that authority would

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not extend to identifying the Guidelines range “applicable to” a defendant when
the district court calculates that range differently from the parties in their
11(c)(1)(C) agreement. The concurrence’s “even if” conclusion about such a
circumstance—not then before the Court—is at best dictum. See United States v.
Martino, 664 F.2d 860, 872–73 (2d Cir. 1981) (construing “narrowest grounds”
under Marks test as “ground that is most nearly confined to the precise fact
situation before the Court, rather than to a ground that states more general
rules”). To the extent Leonard invokes such dictum to extend reasoning
unanimously rejected by all other members of the Court, we understandably
hesitate. See Freeman v. United States, 564 U.S. at 532–34 (plurality opinion); id. at
544 (Roberts, C.J., dissenting). In any event, there is a second, compelling reason
for rejecting Leonard’s “applicable to” argument.
Specifically, the construction Leonard infers from the Freeman concurrence
is now at odds with a subsequent amendment to the Guidelines that explicitly
defines the “applicable” range that must be lowered for a party to be eligible for
a § 3582(c)(2) reduction. See U.S.S.G. § 1B1.10 cmt. n.1(A). As already discussed,
that definition provides for the court to calculate the applicable range according
to the Sentencing Manual. See supra Part II.B.2. It does not contemplate that the

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parties will themselves identify the applicable Guidelines range, much less that
they will do so differently than the district court. Nor does that definition permit
a departure or variance—which is effectively what the court grants when it
accepts an 11(c)(1)(C) agreement specifying a lower Guidelines range than that
calculated by the district court—to reduce the applicable Guidelines range.
Rather, the commentary defines the “applicable guideline range” as “the
guideline range that corresponds to the offense level and criminal history
category determined pursuant to § 1B1.1(a)”—that is, by “the court . . . as set
forth in the Guidelines,” U.S.S.G. § 1B1.1(a)—“which is determined before
consideration of any departure . . . or variance,” id. § 1B1.10 cmt. n.1(A)
(emphasis added).
Because this definition was added to the Guidelines on November 1, 2011,
id. at App. C, Vol. III, Amend. 759, at 421, some four months after the Freeman
decision, it supersedes any contrary understanding of the “applicable”
Guidelines range that Leonard might urge from dictum in the concurring
opinion. See Stinson v. United States, 508 U.S. 36, 46 (1993) (holding that “prior
judicial constructions of a particular guideline cannot prevent the Commission
from adopting a conflicting interpretation”). Moreover, because 18 U.S.C. §

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3582(c)(2) expressly incorporates the Guidelines, the definition now binds the
courts in assessing eligibility for a sentence reduction. See generally Dillon v.
United States, 560 U.S. at 828 (holding that Sixth Amendment does not require
treating § 1B1.10 requirements for § 3582(c)(2) sentence reduction as merely
advisory).
To the extent the decision we reach today differs from that in United States
v. McCall, 649 F. App’x 114 (2d Cir. 2016), we note, first, that McCall is a summary
order and, therefore, does not preclude this panel from further considering the
issues there addressed. See Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696,
702 n.4 (2d Cir. 2009).6
Second, McCall is distinguishable from this case in that, like in Freeman, the
parties’ arguments there focused on whether the defendant’s sentence was
“based on” the Guidelines. See Brief for Appellant McCall at 5–6, Brief for
6 McCall was sentenced pursuant to an 11(c)(1)(C) agreement to a prison term of
108 months, which derived from the parties’ calculation of an anticipated 108‐to‐
135‐month Guidelines range. At sentencing, the parties and the district court
agreed that the Guidelines calculations underlying the agreement were
erroneous and that defendant’s applicable Guidelines range was 121 to 151
months. Nevertheless, relying on the Freeman concurrence, this court determined
that McCall was eligible for a § 3582(c)(2) sentence reduction based on the
lowering of the agreed‐to 108‐to‐135‐month range to an 87‐to‐108‐month range.
See United States v. McCall, 649 F. App’x at 116–17.

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34
Appellee United States at 9–12, United States v. McCall, 649 F. App’x 114 (2d Cir.
2016) (No. 15–1814). The United States did not argue that, if defendant’s
sentence was based on the Guidelines, his applicable range was the one
calculated by the district court rather than the lower range agreed to by the
parties. See Brief for Appellee United States at 9–12, United States v. McCall, 649
F. App’x 114 (2d Cir. 2016) (No. 15‐1814) (arguing principally that 11(c)(1)(C)
agreement did not sufficiently tether agreed‐upon sentence to Guidelines, as
required to be “based on” Guidelines under Freeman concurrence). Nor did any
party call to the court’s attention the intervening definitional amendment to the
Guidelines, expressly stating that the “applicable” sentencing range is to be
determined “pursuant to 1B1.1(a),” and “before consideration of any departure
provision . . . or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A). That definition
does not contemplate recognizing a lower Guidelines range identified in parties’
11(c)(1)(C) agreement as the applicable range. Thus, the McCall panel accepted
the whole of the Freeman concurrence’s footnote 8 without distinguishing the
“based on” and “applicable to” requirements for a § 3582(c)(2) sentence
reduction.

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Accordingly, while Freeman signals that the 97‐to‐121‐month range in
Leonard’s 11(c)(1)(C) agreement was “based on” the Guidelines, commentary to
the Guidelines now instructs that Leonard’s “applicable” Guidelines range was
121 to 151 months, as calculated by the district court pursuant to § 1B1.1(a) and
before it accepted an 11(c)(1)(C) agreement, effectively granting a variance.
Because that applicable range was retroactively lowered by Amendments 782
and 788 to 97 to 121 months, Leonard is eligible for a sentence reduction, but
only to the extent of that range, in short, to between 97 and 113 months. We thus
vacate the challenged order and remand for the district court to consider whether
to exercise its reduction discretion. See United States v. Mock, 612 F.3d 133, 137
(2d Cir. 2010) (holding that, where defendant is eligible for sentence reduction,
district court may reduce sentence “in its discretion” (internal quotation marks
omitted)).
In urging against vacatur and remand, the government argues that any
error in the district court’s understanding of Leonard’s eligibility for a
§ 3582(c)(2) reduction was necessarily harmless because, “having already used” a
97‐to‐121‐month sentencing range—pursuant to the parties’ 11(c)(1)(C)
agreement—to determine an appropriate sentence, “it is beyond cavil that the

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district court would have imposed the same 114‐month sentence” in the exercise
of its § 3582(c)(2) discretion. Appellee’s Br. 15; see United States v. Mock, 612 F.3d
at 137. The argument is not without some force, but the urged conclusion is not
certain. Cf. United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (stating that
procedural error in sentencing is harmless only where “record indicates clearly
that the district court would have imposed the same sentence in any event”
(internal quotation marks omitted)). That is because we do not know what
weight the district court gave the initial applicable Guidelines range in granting
the variance reflected in the parties’ agreed‐to lower range. Thus, we cannot be
certain that if the district court were presented with a lower applicable range
equal to the agreed‐to range, it would not sentence at the lower end of the range.
See United States v. Feldman, 647 F.3d 450, 459–60 (2d Cir. 2011) (“[B]ecause the
correct Guidelines range is the starting point and the initial benchmark for
federal sentences, we cannot lightly assume that [a different range calculation]
would not affect the sentence.” (citation and internal quotation marks omitted)).
In any event, a district court exercises its reduction discretion only “after
considering the factors set forth in section 3553(a) to the extent they are
applicable.” 18 U.S.C. § 3582(c)(2); see Dillon v. United States, 560 U.S. at 824–25;

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United States v. Christie, 736 F.3d at 195 (observing that district court must
“consider any applicable § 3553(a) factors and determine whether, in its
discretion, the reduction . . . is warranted . . . under the particular circumstances
of the case” (internal quotation marks omitted)). Because this consideration can
be informed by post‐sentencing behavior, see U.S.S.G. § 1B1.10 cmt. n.1(B)(iii), the
§ 3553(a) factors may present differently on remand and be accorded different
weights than at the initial sentence. In these circumstances, we cannot assume
that just because the district judge, on weighing the § 3553(a) factors at the
original sentencing, granted an agreed‐to variance within the very range to
which the applicable range has now been lowered by amendment, the district
court would not exercise its discretion to grant any further reduction within the
available 97‐to‐113‐month frame.
We express no view as to how the district court should exercise its
discretion. We conclude only that Leonard is eligible for a § 3582(c)(2) reduction
of his 114‐month sentence to a term not less than 97 months.

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III. Conclusion
To summarize, we conclude as follows:
1. To be eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2), a
defendant must satisfactorily demonstrate (a) that his sentence was “based on”
the Sentencing Guidelines, and (b) that his “applicable” Guidelines range was
lowered by a subsequent retroactive amendment.
2. Because (a) the district court considered the Guidelines in accepting
the parties’ 11(c)(1)(C) plea agreement, and (b) the parties calculated the
sentencing range specified in that agreement using the Sentencing Guidelines,
Leonard’s sentence within that range is properly deemed “based on” the
Guidelines under the reasoning of both the plurality and concurring opinions in
Freeman v. United States, 564 U.S. 522, see id. at 525 (plurality opinion); id. at 534
(Sotomayor, J., concurring in the judgment), notwithstanding the fact that the
district court, before accepting the agreement, had calculated the defendant’s
applicable Guidelines range differently.
3. While an 11(c)(1)(C) sentencing range that is lower than the district
court’s applicable Guidelines calculation can be recognized as “based on” the
Guidelines under Freeman, such an agreed‐to range does not thereby become the

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“applicable” range for purposes of § 3582(c)(2). A post‐Freeman amendment to
Guidelines commentary now clarifies that the “applicable” Guidelines range is
one determined (a) by the court according to the Guidelines Manual, not by the
parties’ agreement; and (b) “before consideration of any departure . . . or any
variance,” such as would be granted pursuant to an 11(c)(1)(C) agreement that
contemplates a lower Guidelines range than that calculated by the district court.
See U.S.S.G. § 1B1.10 cmt. n.1(A).
4. Leonard’s initial “applicable” Guidelines range was 121 to 151
months, as determined by the district court before it accepted the parties’
11(c)(1)(C) agreement specifying a 97‐to‐121‐month range. Because that
applicable range was retroactively amended to 97 to 121 months, Leonard is at
least eligible for a reduction in his 114‐month Guidelines‐based sentence, but not
to any term lower than 97 months, with the ultimate decision whether to grant
any reduction committed to the discretion of the district court.
Accordingly, the final order of the district court holding Leonard ineligible
for a § 3582(c)(2) reduction is VACATED, and the case is REMANDED for
further proceedings consistent with this opinion.

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