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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11

- 4120

_____________

UNITED STATES OF AMERICA

v.

COLBERT THOMPSON, Appellant

_______________

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTR ICT OF PENNSYLVANIA (D.C. Crim. Action No. 02

- 140) District Judge: Honorable Sean J. McLaughlin

_______________

Argued April 26, 2012

_______________2 Before: GREENAWAY, JR., ROTH, and TASHIMA

, *
Circuit Judges

.

( Opinion Filed : June 19, 2012 )

Lisa B. Freela nd, Federal Public Defender (argued) Renee D. Pietropaolo, Assistant Federal Public Defender 1500 Liberty Center 1001 Liberty Avenue Pittsburgh, PA 15222 Counsel for Appellant

Rebecca Ross Haywood, Assistant U.S. Attorney (argued) David J. Hickton, Unite d States Attorney 700 Grant Street, Suite 4000 Pittsburgh, PA 15219 Counsel for Appellee

_______________

OPINION

________________

TASHIMA, Circuit Judge

.

* Honorable A. Wallace Tashima, Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation.3 Colbert Thompson pled guilty to distribution of fewer than five grams of crack cocaine, but his se ntencing range was ultimately calculated based on his classification as a career offender. After the United States Sentencing Commission issued a retroactive amendment to the Sentencing Guidelines
that lowered the base offense levels for crack cocaine off enses, Thompson moved to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). He conceded, however, that United States v.

Mateo , 560 F.3d 152 (3d Cir. 2009), foreclosed his argument, and the District Court denied the motion. On appeal, Thompson

reques ts that the panel reconsider Mateo in light of Freeman v.
United States , 131 S. Ct. 2685 (2011). We conclude that Mateo remains good law and therefore will affirm.

I

In 2002, Thompson was indicted on two counts, and pled guilty to one, of distributing fe wer than five grams of crack
cocaine in violation of 21 U.S.C. § 841(a)(1). Because Thompson had two prior felony convictions, he qualified for
treatment as a career offender under the Guidelines. See U.S. Sentencing Guidelines Manual ( “ U.S.S.G. ” ) § 4B1. 1 (2002). 1

1 T he Presentence Investigation Report (“PSR”)
used the 2002 edition of the Guidelines Manual

B the version in effect at the time of Thompson’s conviction

B to calculate Thompson’s Guidelines range. Except where noted otherwise,
that is the edition used in t his opinion.4 This was consequential. The Guideline for career offenders has its own sentencing ranges, with offense levels determined by reference to the statutory maximum sentences
authorized for various offenses of conviction. See id. If the
career of fender offense level “ is greater than the offense level otherwise applicable, the offense level from the [career offender] table . . . shall apply. ” Id. § 4B1.1(b). In Thompson ’ s case, the career offender offense level was much greater than the
offense l evel “ otherwise applicable ”

B that is, the offense level for distribution of fewer than five grams of crack cocaine. As calculated by the Probation Office in its PSR, Thompson ’ s crack cocaine offense yielded a base offense level of 20, see id. § 2D1.1(a)( 3), (c)(10); his career offender offense level was 32,
see id. § 4B1.1(b)(3) (listing an offense level of 32 for offenses with a statutory maximum of 20 years ’ imprisonment); 21
U.S.C. § 841(b)(1)(C) (providing for a 20

- year maximum for the
crack cocaine o ffense to which Thompson pled guilty). Thus, in effect, Thompson ’ s career offender offense level made his crack
cocaine base offense level irrelevant.

The career offender designation altered Thompson ’ s Guidelines range in another respect, too. Accordin g to the PSR, Thompson ’ s prior criminal convictions resulted in a criminal history score of 12 and a criminal history category of V. See U.S.S.G. ch. 5, pt. A (sentencing table). But, as a career offender, Thompson was assigned a criminal history categor y of

VI. See id. § 4B1.1(b) (mandating a criminal history category of VI for career criminals).

Based on a total offense level of 29 2

2 Thompson’s base offense level of 32 was reduced by three levels to reflect his acceptance of responsibility. See and a criminal5 history category of VI, Thompson ’ s Guidelines range was
determined to be 151 to 188 months ’ imprisonment. See id. ch. 5, pt. A (sentencing table). Had Thompson not been classified as a career offender, his Guidelines range would have been 46 to
57 months. See id.

At sentencing, Thompson ’ s counsel requested a downward departure on the ground that the caree r offender designation over

- represented his prior record. The District Court denied that request and sentenced Thompson to 151 months in prison, the bottom of the career offender range. Thompson appealed. This Court affirmed the District Court ’ s designa tion of Thompson as a career criminal and otherwise dismissed the appeal. United States v. Thompson , 88 F. App ’ x 480 (3d Cir. 2004).

In 2008, the Sentencing Commission retroactively
reduced the base offense levels for crack cocaine offenses. See
U.S.S. G. app. C, amend. 706 (Nov. 2010) (effective Nov. 1, 2007) (adjusting Guidelines); id. amend. 713 (effective Mar. 3, 2008) (making Amendment 706 retroactive). The following year, in Mateo , we considered whether a crack cocaine offender
sentenced as a care er offender was eligible for a sentence
reduction based on the recent Guidelines amendment to crack
cocaine offense levels. We concluded that he was not. Mateo

, 560 F.3d at 156. To be eligible for a reduction in sentence
pursuant to § 3582(c)(2), a defe ndant must have “ been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing
Commission . . . . ” 18 U.S.C. § 3582(c)(2). That means, we

U.S.S.G. § 3E1.1(a).6 said, that a § 3582(c)(2) reduction is available only if the
Guidelines amendment has “ the effect of lowering the sentencing range actually used at sentencing. ” Mateo , 560 F.3d at 155 (internal quotation marks omitted) (emphasis added).
The crack cocaine amendment had no effect on Mateo ’ s sentencing range: i t altered the calculation of the base offense level for his crack cocaine offense, but not the calculation of the career offender Guidelines range actually used to compute his Guidelines sentence. Accordingly, we held that § 3582(c)(2)
relief was unavaila ble to Mateo. Id. at 156.

In 2011, the Supreme Court decided Freeman , a case concerning the availability of § 3582(c)(2) relief based on the
crack cocaine amendment to the Guidelines. After Freeman was decided, Thompson filed a motion to reduce his sent ence under § 3582(c)(2). He conceded that Mateo foreclosed his motion, but argued that Mateo should be revisited in light of

Freeman . Bound by Mateo , the District Court denied Thompson ’ s motion. This timely appeal followed.

II

The District Court had ju risdiction pursuant to 18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. § 1291. The single issue in this case

B whether, given Freeman

, we should overrule Mateo

B is a question of law over which we exercise plenary review. United Stat es v. Flemming , 617 F.3d 252, 257 (3d Cir. 2010).

III

Thompson concedes that Mateo controls this case. As in

Mateo , Thompson was convicted of a crack cocaine offense; as there, Thompson ’ s sentencing range was ultimately calculated7 based on his status as a career offender rather than as a crack cocaine offender. Thompson asks us to reconsider Mateo because, he contends, both the plurality and concurring opinions
in Freeman “ called Mateo ’ s narrow interpretat ion of the statutory meaning of ‘ based on ’ into q uestion. ” We do not

agree.

In Freeman , the defendant had entered a guilty plea pursuant to a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). Freeman , 131 S. Ct. at 2691. Such an agreement allows the parties to bind the district cou rt to a

pre

- agreed sentence if the court accepts the plea. See Fed. R. Crim. P. 11(c)(1)(C) (a sentence or sentencing range

“ recommendation or request [under this provision] binds the court once the court accepts the plea agreement ” ). The question
in Fre eman was whether a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement can be “ based on ” a sentencing range within the meaning of § 3582(c)(2). Freeman , 131 S. Ct.
at 2691.

The question divided the Court. Justice Kennedy, writing
for four Ju stices, delivered the judgment of the Court that a defendant can be eligible for such relief. Id. at 2690 (Kennedy, J.). But the plurality ’ s rationale differed markedly from that of Justice Sotomayor, who concurred in the judgment and supplied
the necess ary fifth vote. See id. at 2695 (Sotomayor, J., concurring). Justice Kennedy wrote that a sentence imposed pursuant to a binding Rule 11(c)(1)(C) agreement is still “ based

on ” a Guidelines sentencing range, as long as “ the sentencing range in question wa s a relevant part of the analytic framework the judge used to determine the sentence or to approve the
agreement. ” Id. at 2692

- 93 (Kennedy, J.). Even in the context of a Rule 11(c)(1)(C) agreement, the defendant ’ s Guidelines8 range matters: it informs th e judge ’ s “ decision to accept the plea, ” a decision that entails “ impos[ing] the recommended

sentence. ” Id. at 2690; see id. at 2692 (stating that the relevant Guidelines policy statement “ forbids the district judge to accept an 11(c)(1)(C) agreement with out first evaluating the recommended sentence in light of the defendant ’ s applicable sentencing range ” ). Justice Kennedy concluded that “ the district court has authority to entertain § 3582(c)(2) motions when sentences are imposed in light of the Guidelin es, even if the defendant enters into an 11(c)(1)(C) agreement. ” Id. at 2693.

Justice Sotomayor took a different approach. In her view, “ the term of imprisonment imposed by a district court pursuant to an agreement authorized by Federal Rule of
Criminal Procedure 11(c)(1)(C) . . . is ‘ based on ’ the agreement itself, not on the judge ’ s calculation of the Sentencing
Guidelines. ” Id. at 2695 (Sotomayor, J., concurring). But she identified two exceptions: (1) where the plea agreement itself

“ call[s] for th e defendant to be sentenced within a particular Guidelines sentencing range, ” or (2) where it makes 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 2697 . Because Freeman ’ s plea agreement clearly stated
that his sentence would be “ determined pursuant to the Sentencing Guidelines, ” and recommended a sentence that was

“ evident[ly] ” based on the figure at the bottom end of Freeman ’ s Guidelines range, his ple a agreement satisfied an exception to Justice Sotomayor ’ s general rule. Id. at 2699

- 2700. She therefore concurred in the judgment. Id.9 IV

As a three

- judge panel we are, of course, obliged to follow prior decisions of our Court, except “ when the prior decision conflicts with a Supreme Court decision. ” United
States v. Tann , 577 F.3d 533, 541 (3d Cir. 2009). To determine
whether Mateo conflicts with Freeman in any respect, we must first decide which opinion in Freeman controls.

In a splintered Suprem e Court decision where “ 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 judgments on the narrowest grounds. ” Marks v. United States , 430 U.S. 188, 193 (1977) (internal quotation marks and citations omitted). The
standard established in Marks is designed “ to promote predictability in the law by ensuring lower court adherence to Supreme Court precedent. ” Jackson v. Danberg , 594 F.3d 210, 220 (3d Cir. 2010) (internal quotation marks omitted). Its objective is “ that, whenever possible, there be a single legal standard for the lower courts to apply in similar cases and that this standard, when properly applied, produce results with which a majority of the Justices in the case articulating the standard would agree. ” Id. (internal quotation marks omitted). Even so,
Marks applies only “ where one opinion can be meaningfully regarded as ‘ narrower ’ than another and can represent a

commo n denominator of the Court ’ s reasoning. ” Berwind Corp.
v. Comm ’ r of Soc. Sec. , 307 F.3d 222, 234 (3d Cir. 2002) (internal quotation marks and citation omitted).10 Applying these principles, in Jackson , we concluded that

“ the Marks framework applies where one opinion is clearly

‘ narrower ’ than another, that is, where one opinion would always lead to the same result that a broader opinion would
reach. ” Jackson , 594 F.3d at 222. Justice Sotomayor ’ s concurrence in Freeman conforms to that description. “ [T]h e [ Freeman ] plurality would surely agree that in every case in
which a defendant ’ s [Rule 11(c)(1)(C)] plea agreement satisfies the criteria for Justice Sotomayor ’ s exception by expressly using a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, the sentencing judge ’ s decision to accept that sentence is based on the guidelines. ”
United States v. Rivera

- Martinez , 665 F.3d 344, 348 (1st Cir. 2011) (internal citation, quotation marks, and alterations omitted). The converse, however, is not true; sentences imposed pursuant to Rule 11(c)(1)(C) plea agreements will frequently be eligible for § 3582(c)(2) sentence reductions under Justice Kennedy ’ s framework, but ineligible for reductions under Justice Sotomayor ’ s

.
We therefore conclude, as has every other circuit to consider the question, that, because Justice Sotomayor ’ s opinion is narrower than Justice Kennedy ’ s, it expresses the holding of
the Court. See United States v. Austin , 676 F.3d 924, 926 (9th
Cir. 20 12); Rivera

- Martinez , 665 F.3d at 345; United States v.

Brown , 653 F.3d 337, 340 n.1 (4th Cir. 2011); United States v.
Smith , 658 F.3d 608, 611 (6th Cir. 2011); United States v. White

, 429 F. App ’ x 43, 47 (2d Cir. 2011) (unpublished).11 V

Having decided th at Justice Sotomayor ’ s concurrence is the opinion that binds us, we have little difficulty concluding
that Mateo ’ s interpretation and application of § 3582(c)(2) is consistent with it. Section 3582(c)(2) authorizes a sentence
reduction if the defendant wa s sentenced “ based on a sentencing range that has subsequently been lowered by the Sentencing
Commission. ” 18 U.S.C. § 3582(c)(2). In her concurrence, Justice Sotomayor parsed this rule into two parts: first, the
sentence must be “ based on ” a Guidelines range; second, a
Guidelines amendment must have the “ effect of lowering ” that Guidelines range. See Freeman , 131 S. Ct. at 2700 (Sotomayor, J., concurring) (internal quotation marks omitted).

Thompson argues that Freeman ’ s and Mateo ’ s analyses
of the fi rst part cannot be squared. We disagree; the two decisions simply addressed different questions about that
condition for relief. Freeman dealt with one interpretive question: whether a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement can be “ based on ” a sentencing range at all. See id. Mateo addressed another: whether a
sentence can be “ based on ” a sentencing range other than the range actually used at sentencing.

In evaluating this question in Mateo , we examined the phrase “ based on a s entencing range ” in its context. See Mateo

, 560 F.3d at 155. We decided that “ the term ‘ sentencing range ’ clearly contemplates the end result of the overall guideline calculus, not the series of tentative results reached at various interim steps in the p erformance of that calculus. ” Id. (quoting
United States v. Caraballo , 552 F.3d 6, 10 (1st Cir. 2008) (alterations omitted)). Therefore the salient sentencing range
was the one “ actually used at sentencing. ” Id. (internal12 quotation marks omitted). To m eet the first condition of § 3582(c)(2), a defendant ’ s sentence must be based on the actual, calculated Guidelines range upon which the district court relied at sentencing. 3

Our reading of § 3582(c)(2) in Mateo is fully consistent with Justice Sotomayor ’ s understanding that a sentence “ based

on ” a Guidelines sentencing range is one where the “ range serves as the basis or foundation for the term of imprisonment. ”
See Freeman , 131 S. Ct. at 2695 (Sotomayor, J., concurring). Justice Sotomayor did not sugge st that more than one Guidelines range could serve as the “ basis or foundation ” of the sentence, and the range that fits her definition best is the one at the end of
the court ’ s Guidelines calculation, not one of its “ tentative
results ” along the way. 4

3 Thompson’s counsel asserted at oral argument that

Mateo conflated its analysis of the two conditions. That is not so. We did say in Mateo that, “pursuant to the statute, if an amended guideline does not have the effect of lowering the sentencing range actually used at sentencing, the defendant’s sentence was not based on that range within the intendment of
the statute.” Mateo , 560 F.3d at 155 (internal quotation marks omitted). But all we meant by this was the rather obvious proposition that, if an amendment does not lower the Guidelines range used at sentencing, the sentence cannot have been based

on a “sentencing range that has subsequently been lowered by the Sentencing Commission.” Thompson’s real objection is to

Mateo ’s defining the term “sentencing range” as “the end result of the overall guideline calculus.” Freeman does not call that
definition into doubt.

4 In a Rule 28(j) letter submitted after oral argument,13 In sum, Justice Sotomayor ’ s opinion provides no reason
to overrule Mateo

. Mateo therefore remains binding on this panel, and it requires that we affirm the District Court ’ s denial
of § 3582(c)(2) relief. 5

Thompson contends that the recently

- decided case of United
States v. Jackson , 2012 WL 1592624 (6th Cir. May 8, 2012), supports his contention that Freeman should be read as overruling Mat eo . In Jackson , the Sixth Circuit held that a sentence can be “based on” more than one guidelines sentencing range. In that case the District Court departed downward from the career offender range and further commented that the disparity between crack co caine and powder cocaine offense levels was “untenable” and “really doesn’t have any empirical support,” id. at *2, and “reveal[ed] that Jackson’s sentence was plainly ‘based on,’ at least in part, the crack guidelines,” i d. at *3. Assuming without decidi ng that Jackson was correctly decided, it has no bearing on this case. Here, there was no downward departure

B nothing to signal that the District Court had imposed a sentence based on anything other than the applicable career offender sentencing range.

5 Thompson also relies on Justice Kennedy’s plurality opinion, as well as on Justice Sotomayor’s concurrence. But even if the plurality opinion controlled, Thompson would not prevail. Justice Kennedy said that “ § 3582(c)(2) modification proceedings” shoul d be available “to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement,” but he recognized that the sentencing range was “relevant” only if it h ad an effect on the sentence.

Freeman , 131 S. Ct. at 2692

- 93; id. at 2692 (stating that the14 point of § 3582(c)(2) is to “isolate whatever marginal effect the
since

- rejected Guidelines range had on the defendant’s sentence”). Here, the crack cocaine Guide lines range had no effect on Thompson’s sentence. The calculation of Thompson’s range may have begun with the relevant crack cocaine offense level, but that preliminary step lost all significance once Thompson was designated as a career offender and the c areer offender base offense level was applied. Where the starting point of the sentencing analysis leads to a dead end, it might in some semantic sense be a “part” of the analytic framework used to determine the sentence, but it is not a relevant part.

T hompson argues that 18 U.S.C. § 3553(a)(4)(A) made the crack cocaine base offense level relevant, by requiring the sentencing judge to consider the Guidelines range which would have applied had Thompson not been a career offender. We disagree. Section 35 53(a)(4)(A) does nothing more than instruct the sentencing judge to consider the calculated Guidelines range
for that defendant

B which was arrived at here without reference
to the crack cocaine base offense level. See United States v.
Ausburn , 502 F.3d 3 13, 327 n.27 (3d Cir. 2007) (describing § 3553(a)(4) as requiring the sentencing judge to consider the “applicable sentencing range”); see also 18 U.S.C. § 3553(b)(1) (“the court shall impose a sentence of the kind, and within the range, referred to in sub section (a)(4) unless” it finds that certain circumstances warrant departure from it).15 CONCLUSION

For the foregoing reasons, we will af firm the order of the District Court denying Thompson ’ s motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2).