NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 16a0654n.06
Case No. 16

- 1338 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff

- Appellee ,

v. CARLOS VANCE WATTS,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: GIBBONS, SUTTON, and WHITE, Circuit Judges. SUTTON, Circuit Judge. Carlos Watts pleaded guilty to drug and firearms charges and
was sentenced to 156 months ’ imprisonment under the terms of a binding p lea agreement. The Sentencing Commission later retroactively amended and reduced the guidelines range applicable to his drug conviction. Watts moved for a sentence reduction in light of that amendment. The
district court denied his motion on the ground that it lacked the authority to reduce a sentence based on a binding plea agreement rathe r than the guidelines. Because the 156

- month sentence in Watts’s plea agreement is not expressly based on the guidelines, we agree and affirm. 18 U.S.C. § 3582(c) aut horizes district courts to reduce sentences “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” But a sentence imposed under a mandatory plea agreement, see Fed. R. Cr im . P. 11(c)(1)(C), may be reduced in light o f a guidelines amendment “ only when that guideline range is explicitly referenced in a plea agreement.” United States v. McNeese , 819 F.3d 922, 927 (6th Cir. 2016) (emphasis in original)Case No. 16

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United States v. Watts

2 (quotation omitted)

. That rule derives from Justice Sotomayor’s cont rolling concurrence in
Freeman v. United States , which held that sentences in Rule 11(c)(1)(C) agreements are generally “based on” the agreements themselves rather than the guidelines, except where an agreement “ expressly uses a Guidelines sentencing range

. . . to establish the term of imprisonment.” 564 U.S. 522, 534 (2011) (Sotomayor, J., concurring); see McNeese , 819 F.3d at
927. This plea agreement does not explicitly refer to any guidelines range, and Watts is thus ineligible for a sentence reduction under § 3582(c). The agreement, in relevant part, explains that the parties “ agr ee to a sentence of 156 months’ imprisonment

. . . [after] independent evaluation of the time, risks, and potential outcomes associated with a trial. Both parties have
also independently concluded, after referencing the United States Sentencing Guidelines and potential litigation associated with their application, that the agreed

- upon term of imprisonment is substantively reasonable. ” R. 47 at 7. The agreement does not prov ide , as the Freeman agreement did, that Watts was to be sentenced within any particular guidelines range. See
Freeman , 564 U.S. at 542. Nor does it otherwise use a particular guidelines range as “the basis for the specified term” of imprisonment. McNees e , 819 F.3d at 927; see Freeman 564 U.S. at
539. I t says instead that a 156

- month sentence was agreed to after the parties “independently concluded” that not just the guidelines, but the costs and risks of trial as well , made this an equitable sentence. That means that the sentence is explicitly based on “a whole range of considerations,” R. 85 at 3, and does not “expressly use [] ” any particular guidelines range.
Freeman , 564 U.S. at 539. Confirming t he point is the reality that the parties never agree d on what the proper guidelines range was . T he presentence r eport calculated a guidelines range of 248

– 295 months.Case No. 16

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United States v. Watts

3 At the sentencing hearing, where the district court heard argument on the guidelines in order to assess the reasonableness of the agreement, Watts objected to three of the enh ancements in the presentence report’s calculation . The government argued that two of those three enhancements, for leadership in a conspiracy and obstruction of justice, were appropriate. T he district court
sustained Wat ts’s objections to two of the three enhancements and eventually settled on a range of 190

– 222 months before accepting that the agreement’s 156

- month sentence was reasonable

. The parties cannot have agreed to a guidelines range they did not agree on , which means this Rule 11(c)(1)(C) agreement cannot be “based on” the guidelines.
Watts responds that he is eligible for a reduction under Freeman because the agreement “repeatedly refer enced the sentencing guidelines. ” Appellant ’s Br. 23 . But general references to the guidelines, which clarify that the parties and the court independently considered them, is not the same as expressly using a particular “ G uidelines sentencing range ” to determine the

sentence. Freeman , 564 U.S. at 539 (emp hasis added)

. T he agreement’s references to the guidelines show that the parties had n o t agreed on a guidelines range because they contemplated

an eventual dispute over the proper range at the sentencing hearing. There was no guideline
calculation worksh eet attached to the agreement, as there was when we allowed a sentence
reduction in United States v. Smith , 658 F.3d 608, 613 (6th Cir. 2011). The agreement did not cap the possible sentence at the top of a particular guidelines range or specify an “Agree d Guideline Range , ” as in United States v. Garrett , 758 F.3d 749, 75 1 (6th Cir. 2014). And Watts received a specific term of imprisonment far below even the revised guidelines range. That
means his sentence is no more “based on” the guidelines th an any sentence imposed under a Rule 11(c)(1)(C) agreement that does not depend on the guidelines themselves

. Rather, h is sentence is “based on” the agreement itself. Watts is therefore ineligib le for relief under § 3582(c).Case No. 16

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United States v. Watts

4 For these reasons, we affirm

.