PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GREGORY D. JORDAN, Defendant - Appellant. No. 16-3084

________________ _________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 2:08-CR-20117-JWL-1)

________________ _________________ Daniel T. Hansmeier, Appellate Chief (M elody Brannon, Federal Public Defender, and Carl Folsom, III, Assistant Fede ral Public Defender, with him on the briefs), Office of the Federal Public Defender, Topeka, Kansas, for Defendant-Appellant. Jared S. Maag, Assistant Unite d States Attorney (Thomas E. Beall, Acting United States Attorney, with hi m on the brief), Topeka, Kansas, for Plaintiff-Appellee.

________________ _________________ Before LUCERO and BACHARACH , Circuit Judges. *

* The Honorable Neil Gorsuch heard oral argument but did not participate in this Opinion. The practice of this court permits the remaining judges to act as a quorum in resolving the appeal. See 28 U. S.C. § 46(d); see also United States v. Wiles, 106 F.3d 1516, 1516 n* ( 10th Cir. 1997) (noting this court allows remaining judges to act as a quorum to resolve an a ppeal); Murray v. Nat’l Broad. Co., 35 F.3d 45, 48 (2d Cir. 1994) (remaining two judges of original three-judge panel may decide petition for rehearing without third judge). FILED United States Court of Appeals Tenth Circuit 

### April 18, 2017
Elisabeth A. Shumaker Clerk of Court________________ _________________ LUCERO , Circuit Judge.

________________ _________________ Under 18 U.S.C. § 3582(c)(2 ), a district court may reduce a defendant’s term of imprisonment if it was “based on a sent encing range that has subsequently been lowered by the Sentencing Co mmission.” This appeal re quires us to address the “based on” requirement of § 3582(c)(2) in the context of a Fed. R. Crim. P. 11(c)(1)(C) plea agreement. Defendant Gregory Jordan was sent enced to 168 months’ imprisonment pursuant to a Rule 11(c)(1)(C ) agreement that proposed a base offense level of 31 and a Guidelines range of 135 to 168 months . The district court accepted the plea agreement, despite a discre pancy between the parties’ agreed-upon sentencing range and the range calculated by the district cour t. After both ranges were subsequently lowered by the Sentencing Commission, Jo rdan moved for a reduced sentence under § 3582(c)(2). The district court denied re lief, concluding that Jordan’s sentence was not “based on” the Guidelines and he was t hus ineligible for a sentence reduction. We hold, to the contrary, th at Jordan’s sentence was “bas ed on” the Guidelines for purposes of § 3582(c)(2). Accordingly, he is eligible for relief. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand.
I In 2009, Jordan entered a Fed. R. Crim. P. 11(c)(1)(C) plea agreement, pleading guilty to one count of conspiracy to possess with the intent to distribute five3 kilograms or more of cocaine, in violati on of 21 U.S.C. §§ 841( a)(1), (b)(1)(A)(ii), and 846, and 18 U.S.C. § 2. The agreemen t proposed a Guidelines offense level of 31, for a sentencing range of 135 to 168 m onths’ imprisonment. The agreement also stated that the parties were “of the belief that the propos ed sentencing range [did] not offend the now advisory sentencing guidelin es,” and that “because [the] proposed sentence [was] sought pursuant to Fed. R. Crim. P. 11(c)(1)(C ), the parties [were] not requesting imposition of an a dvisory guideline sentence.” At a change of plea hearing, the prosecu tor affirmed that th e parties’ agreedupon offense level “fairly and accurately represent[ ed]” Jordan’s particular offense, “pursuant to a plea with accep tance of responsibility coming into play.” She further indicated her belief that Jo rdan had a criminal history category of III, resulting in a Guidelines range of 135 to 16 8 months. The court accepte d Jordan’s guilty plea, but reserved judgment on the plea agreement pending review of the presentence investigation report (“PSR”). In the PSR, there was a notable change from the plea agreement: it assessed a total offense level of 33, fo r a sentencing range of 168 to 210 months’ imprisonment. This range was calculated based on a crim inal history category of III and a finding that Jordan had conspired to possess and distribute fifteen kilograms of cocaine, resulting in a base offense level of 34. The PSR then added a two-point enhancement for possession of firearms and a th ree-level reduction for acceptance of responsibility. Neither pa rty objected to the PSR.4 At sentencing, the district court adopted the PSR in full, but also accepted the parties’ plea agreement. A “small disp arity” was acknowledged by the court between the sentencing range proposed in the agre ement “and what the guidelines strictly applied would allow.” The court th en imposed a sentence of 168 months’ imprisonment, reasoning that such a term wa s at “the low end of what the guideline range would otherwise have been,” which it described as “an impor tant factor.” It also noted that the plea agreement and PSR differed as to the quantity of cocaine used in the calculations, and it agreed with the PSR’s asse ssment of fifteen kilograms rather than the agr eement’s apparent assessment of ten kilograms. Final judgment was entered in October 2009. On November 1, 2014, Guidelines Ame ndments 782 and 788 went into effect, retroactively lowering the base offense levels for certai n drug quantities. The base offense level for fifteen kilograms of co caine was reduced fro m 34 to 32, and the base offense level for ten kilograms of cocaine was reduced from 32 to 30. See U.S.S.G. § 2D1.1(c)(4) & (5) (Drug Quantity Table) (2014). Jordan subsequently filed a motion for a sentence reduction u nder 18 U.S.C. § 3582( c)(2), requesting a new sentence of 135 months. That motion wa s dismissed for lack of jurisdiction on the ground that Jordan was ineligible for a sentence re duction because his sentence was “based on” the parties’ plea agreement and not th e Sentencing Guidelines. Jordan timely appealed.5 II We review de novo the district court’s dismissal for lack of jurisdiction under § 3582(c). United States v. Graham, 704 F. 3d 1275, 1277 (10th Cir. 2013). Federal courts generally lack the authority to “m odify a term of imprisonment once it has been imposed.” § 3582(c). However, § 358 2(c)(2) permits a dist rict court to reduce a defendant’s sentence if it was “based on a sentencing ra nge that has subsequently been lowered by the Sentencing Commiss ion” and such a reduction would be “consistent with applicable policy statements issued by the Sentencing Commission.” Under those policy statements, a court ma y reduce a defendant’s sentence if “the guideline range applicable to that defenda nt has subsequently been lowered as a result of an amendment to the Guidelines Manual.” U. S.S.G. § 1B1.10(a)(1). Our first step in determining whethe r Jordan is eligib le for a sentence reduction is considering whether his senten ce was “based on” a subsequently lowered Guidelines range. Because Jordan was sentenced und er a Rule 11(c)(1)(C) plea agreement, our analysis is directed by the Supreme C ourt’s fragmented decision in Freeman v. United States, 564 U.S. 522 (20 11). Pursuant to Justice Sotomayor’s controlling concurrence, 1 a term of imprisonment im posed under a Rule 11(c)(1)(C)

1 This circuit has previously determined that Justice Soto mayor’s concurrence offers the narrowest grounds for the C ourt’s decision and therefore controls. Graham, 704 F.3d at 1278. Jordan suggests this court s hould revisit that conclusion in light of recent decisions by the Ninth a nd D.C. Circuits adop ting the plurality’s approach in Freeman. See United States v. Davis, 825 F.3d 1014, 1026 (9th Cir. 2016); United States v. E pps, 707 F.3d 337, 350-51 (D.C. Cir. 2013). However, “[w]e are bound by the precedent of prior pane ls absent en banc reconsideration or a6 plea agreement is “based on” the Guidelines if the agreem ent either “call[s] for the defendant to be sentenced within a part icular Guidelines se ntencing range,” or “provide[s] for a specific term of imprisonm ent . . . [and] make[s] clear that the basis for the specified term is a Guidelines sentence range app licable to the offense to which the defendant pleaded guilty.” Fr eeman, 564 U.S. at 538- 39 (Sotomayor, J., concurring in judgment). Applying Freeman, the district court conc luded that Jordan’s sentence was not “based on” the Guidelines—and that he wa s consequently ineligible for a sentence reduction—for three reasons: (1) the plea agreement does not contain a “clear link” between the agreed-upon sentencing range and the Guidelines; (2) the agreement disclaims any connection to the Guidelines; and (3) the agreed-upon range was lower than the range applicable to Jordan as calculated by the PSR. We disagree and conclude that Jordan’s sent ence was “based on” the Guidelines with in the meaning of § 3582(c)(2). A If a Rule 11(c)(1)(C) agreemen t calls for a defendant to be sentenced within a particular Guidelines sent encing range, “the district court’s acceptance of the agreement obligates the court to sentence the defendant acco rdingly, and there can be no doubt that the term of im prisonment the court imposes is ‘based on’ the agreedupon sentencing range within the meaning of § 3582(c)(2).” Freeman, 564 U.S.

superseding contrary decision by the Suprem e Court.” In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per curiam).7 at 538. Jordan’s plea agreem ent stated: “The parties pr opose, as an appropriate disposition of the case, asse ssing a Guideline offense le vel of 31, for a sentencing range of 135 months to 168 months in prison . . . .” This pro posed range plainly contemplates a sentence “bas ed on” a particular Guide lines sentencing range and bound the district court upon its acceptance of the parties’ plea agreement. See United States v. Leonard, 844 F.3d 102, 111 (2d Cir. 2016) (“[W]hen an 11(c)(1)(C) agreement thus expressly uses the Guidelines to identif y the agreed-upon sentencing range, a district court’s acceptance of the agreement and its imposition of the agreedupon sentence satisfies the ‘based on’ requirement of § 3582(c)(2).”). Both the government and the district c ourt suggest that the sentencing range in Jordan’s plea agreement cannot be linked to the Guidelines b ecause the agreement omits any reference to his criminal hist ory category. But this omission is not dispositive. Because the terms of the agreement are clear that the proposed sentencing range comes from the Guide lines, there is no need for additional information. Moreover, Just ice Sotomayor’s concurrence c ontemplates that even if an agreement proposes a specif ic sentence rather than a ra nge, the omission of certain sentencing variables does not necessarily preclude a court from holding that the stipulated sentence was based on the Guide lines. See Freeman, 546 U.S. at 542-43. Freeman’s plea agreement, which called for a 106-month sentence, specified his offense level and criminal hi story category but not the a pplicable sentencing range. Id. Justice Sotomayor expressl y rejected the dissent’s conten tion that, in light of that missing information, there was no way of knowing that the proposed sentence was8 “based on” the Guidelin es. Id. Looking to the Guidelines’ senten cing table, she used the offense level and criminal history cate gory in the plea to identify the applicable sentencing range and conclude d it was “evident” that the agreement arrived at its proposed sentence using the Guidelines. Id. We do not need to conduct a similar an alysis in this cas e because Jordan’s agreement calls for a senten cing range rather than a sp ecific term of imprisonment; thus, the connection to the Guid elines is more apparent. However, we note that even if we were compelled to conduct such an analysis, the plea agreement contains sufficient information for us to confirm that the agre ed-upon sentencing range was based on the Guidelines. An offense level of 31 and a Guidelines range of 135 to 168 months correspond to a criminal history category of III. Th is is consistent with the PSR’s determination of Jordan’s criminal history category, as well as the parties’ representations at the change of plea hearing. It is ther efore “evident” that the plea agreement, and Jordan’s subsequent sent ence, was based on a Guidelines sentencing
range. 2 The district court reached the opposite conclusion after identifying cases in which the omission of particular sent encing variables from a plea agreement

2 We further reject the government’s c ontention that the plea agreement was required to specify the drug quantity attribut able to Jordan. Ag ain, the parties’ sentencing calculations are supported by the sentencing factors identified in the plea agreement, as well as the agreement’s factual basis, which suggests a finding that Jordan conspired to obtain ten kilograms of cocaine. At the time of Jordan’s sentencing, that quantity of cocaine corresponded to a base offense level of 32. See U.S.S.G. § 2D1.1(c)(4) (2008). After the parties’ agreed-upon two-level increase for possession of a firearm and three-level reduction for acceptance of responsibility, Jordan’s total offense leve l would be 31, as reflecte d in the plea agreement.9 precluded a determination that the defendant’s sentence wa s based on the Guidelines. However, those cases invol ved plea agreements proposi ng a specific term of imprisonment rather than a Guidelines sentencing range. Accordingly, those authorities do not control the outcome of this case. Moreover, they are distinguishable from Freeman in that the parties’ plea agreements stipulated to a sentence without providing either the a pplicable Guidelines range or enough additional information, such as criminal history category or offense level, to make “evident” that the agr eements were based on the Guidelin es. See, e.g., United States v. Jones, 634 F. App’x 64 9, 651-53 (10th Cir. 2015) ( unpublished) (plea agreement stipulated to 105-month sentence without st ating sentencing range or criminal history category); Graham, 704 F.3d at 1278-79, 12 78 n.5 (plea agreement not reduced to writing and merely stipulated to 25-year se ntence); United States v. Austin, 676 F.3d 924, 930 (9th Cir. 2012) (plea agreement pr ovided for 17-year term without including sentencing range or criminal history cate gory), overruled on othe r grounds by Davis, 825 F.3d at 1022; United Stat es v. Rivera-Martinez, 66 5 F.3d 344, 345-46, 349-50 (1st Cir. 2011) (plea agreement imposed 240-month sentence but said nothing about sentencing range or crimin al history category).
B Our conclusion that Jordan was se ntenced based on the Guidelines for purposes of § 3582(c)(2) is not altered by a provision in the pl ea agreement stating that the parties are not requesting imposition of an advisory Guide lines sentence. In interpreting a plea agreement, we must consider the agreement as a whole and10 construe it in a manner refl ecting what the defendant re asonably unders tood when he entered the plea. See United States v. Ve ri, 108 F.3d 1311, 1313 -14 (10th Cir. 1997) (disregarding provision that ran contrary to meaning of plea agreement “[w]hen read from beginning to end”). Considering Jordan ’s agreement as a whole, we conclude that its inclusion of both a disclaimer of reliance on the Guide lines and an express reference to a Guidelines sentencing range renders the agreement ambiguous. Because ambiguities in plea agreements are construed against the government, see United States v. Guzman, 318 F.3d 1191, 1195 (10th Cir. 2003), the mere presence of the disclaimer provision is not conclusive. Other cases addressing the effect of similar disclaimer provisions are distinguishable because they involved pl ea agreements stipulating to specific sentences without reference to a Guidelines range. T hus, because the link between the stipulated sentence and the Guidelines was so mewhat more tenuous, the disclaimer provision did not creat e the same ambiguity that it does in this case. See, e.g., United States v. Dozal, 644 F. App’ x 851, 853 (10th Cir. 2016) (unpublished); United States v. Falcon-Sanchez, 622 F. App’x 766, 76 7 (10th Cir. 2015) (unpublished); United States v. Price, 627 F. App’x 738, 741-42 (10th Cir. 2015) (unpublished). Further, none of these case s concluded that the disclaimer provision is dispositive of a defendant’s eligibility fo r § 3582(c) relief; in stead, each correctly treated the presence of the di sclaimer as merely one fact or to be considered in determining whether the stipulated sent ence was based on th e Guidelines.11 C The final issue is whether a sentencing ra nge proposed in a plea agreement can be “based on” the Guidelines if that range differs fr om the one calculated by the district court. In this case, the district court adopt ed the PSR, which calculated Jordan’s sentencing range as 168 to 210 months. In contra st, Jordan’s plea agreement provided for a range of 135 to 1 68 months. Relying on this discrepancy, the government argues, and the district court agreed, that the sentencing range used in the plea agreement was not the range “applicable to” Jo rdan’s offense, and that consequently, Jordan was not senten ced “based on” th e Guidelines. As stated supra, a defendant is eligib le for a § 3582(c)(2) sentence reduction if two requirements are satisfied: (1) th e original sentence is “based on” a subsequently-lowered Guidelin es range; and (2) a reduction would be consistent with the applicable policy statem ent, which permits a reducti on if “the guideline range applicable to” the defendant has been lo wered. U.S.S.G. § 1B1.10(a)(1). The commentary to § 1B1.10(a) further define s the “applicable guideline range” as “the guideline range that corresponds to the offe nse level and criminal history category [determined by the district court] . . . befo re consideration of any departure provision . . . or . . . variance.” § 1B1.10 cmt. n.1(A). The gov ernment conflates these two prongs, arguing that the “bas ed on” requirement can only be satisfied in the Rule 11(c)(1)(C) context if the defe ndant’s sentence is “based on” a Guidelines range that is also “applicable to” his offense. We disagree that these two inquiries must necessarily be the same.12 In cases that did not involve Rule 11(c)(1 )(C) agreements, this court has stated that the phrases “based on” and “applicable to” reflect th e same inquiry for purposes of § 3582(c)(2). See United States v. Darton, 595 F.3d 1191, 1194 (10th Cir. 2010); United States v. Dryden, 563 F.3d 1168, 11 70-71 (10th Cir. 2009). Yet the Rule 11(c)(1)(C) context is unique. As Justice So tomayor explained in Freeman, “it is the parties’ agreement that contro ls in the (C) agreem ent context.” 564 U.S. at 542 n.8. Thus, “even if the District Court had calcula ted the range differently than the parties, [a defendant] would still be eligible for re sentencing as long as the parties’ chosen range was one that was subsequently lowe red by the Sentencing Commission.” Id. (citation, quotation, and ellipsis omitted). 3 Relying on this statement in Freeman, both the Second and the Sixth Circuits have held that a term of imprisonment imposed pursuant to a Rule 11(c)(1)(C) plea agreement can be “based on” the Guidelines for purposes of § 3582(c)(2), even if the parties’ agreed-upon sentencing range differs from the range calculated by the district court. See Leonard, 844 F.3d at 111-12; Un ited States v. Smith, 658 F.3d 608, 612-13 (6th Cir. 2011). We agree. 4 Despite the discrepancy in this case between the

3 We note that the issue presented in th is case was not before the Court in Freeman because there was no discrepancy between the district court’s sentencing calculations and the sentence proposed by the parties. See id. at 527 (plurality op.).

4 In United States v. White, 765 F.3d 12 40 (10th Cir. 2014) , we reaffirmed Darton and Dryden post-Freeman. Id. at 1248-49. But as in both Darton and Dryden, White did not involve a Rule 11(c)(1)(C) plea ag reement, and the decision makes clear that it is a ffirming the prior cases only in the non-Rule 11(c)(1)(C) context. Id. at 1249 (“In so holding, we note that every circuit to consider Freeman’s effect on its non-(c)(1)(C) ‘based on’ jurisprudence has agreed .” (emphasis added)).13 parties’ agreed-upon sentencing range and the range calculat ed by the district court, we conclude that Jordan sa tisfies the “based on” require ment of § 3582(c)(2) because his plea agreement expressly propos es a Guidelines sentencing range. 5
III We also conclude that the second requirement for § 3582(c)(2) eligibility— that a sentence reduction be consistent with the applicable polic y statement, which requires a showing that the Guidelines range “applicab le to” Jordan has been lowered—is met. In so holding, we need not determine whether the range “applicable to” Jordan is the range proposed in the partie s’ plea agreement or the one calculated by the PSR, because both ra nges were subsequently lowered by Amendment 782 to the Guidelines . In addition, neither pa rty has specifically briefed the issue, and Jordan appears to concede that the “applicable” range is the range calculated by the district c ourt. His § 3582(c)(2) motion requests a reduced sentence of 135 months—the low end of the PSR’s proposed range, as subsequently amended. And he asks us to adopt the reasoning of Leonard, which held that the range Notably, the issue in White was whether a defendant was sentenced “based on” a subsequently-lowered Guidelines range for purposes of a § 3582(c) reduction when he was subject to a mandatory minimum se ntence but the district court relied on the Guidelines to apply a discretionary upward variance. Id. at 1241, 1245. Accordingly, the conclusion in White, that a defendant’s sentence is “based on” the range produced under a correct Guidelines calculation and prior to any discretionary departures, was intended to cl arify only that a defendant is not eligible for a sentence reduction if the Guidelines were relied upon solely to calculate a discretionary upward departure. It ther efore does not control our analysis in this case.

5 Because we have determined that the sentencing range in the parties’ plea agreement was “based on” th e Guidelines, we do not addr ess Jordan’s alternative argument that he was sentenced based on th e sentencing range identified in the PSR.14 “applicable to” the defendant was the range independently calculated by the district court before acceptance of the pl ea agreement. See 844 F.3d at 116. 6 Accordingly, for purposes of determining the extent of the sentence reduction for which Jordan is eligible on remand, we assume without de ciding that the approach in Leonard is correct and that the Guidelines range app licable to Jordan’s offense is the range identified in the PSR, as s ubsequently lowered by Amendment 782. But see Smith, 658 F.3d at 613 (concluding prior to the § 1B1.10 commentary di scussed in Leonard that the Guidelines range “a pplicable to” the defendant wa s the range provided in the plea agreement). In making this assumption, we reject th e suggestion that Jordan is ineligible for relief simply because his applicable Guidelines range, as amended, is identical to the agreed-upon range under which he was originally sentenced. This may affect the district court’s ultimate dete rmination as to whether Jord an is entitled to a sentence

6 In determining that the “applicable” range for purposes of the Guidelines policy statement is the range independently calculated by the district court, not the range agreed upon by the parties, the Se cond Circuit relied on the post-Freeman commentary to § 1B1.10, discussed supra. See Leonard, 844 F.3d at 112-17. Citing this commentary, Leonard concluded that “when a district court accepts an 11(c)(1)(C) sentence or sentencing range that is lower than its ca lculated Guidelines range, what the court effectively does is gran t a departure or variance.” Id. at 113. The Second Circuit affirmed the authority of courts to grant such a variance, while stating that the acceptance of a parties’ pl ea agreement “does not transform the lower agreed-upon range into the applicable Guidelines range.” Id. at 113-14. Accordingly, although both the 97-to-1 21-month sentencing range in the plea agreement and the 121-to-151-month range cal culated by the district court in Leonard were subsequently lowered by Guidelines Amendments, the dist rict court was only authorized to reduce Leonard ’s sentence to the low end of the latter range, as amended—i.e., the range “applicable to” his offense. Id. at 116.15 reduction; however, as long as Jordan could receive a lower sentence under the amended Guidelines, this fact does not bear on the court’s jurisdiction to hear Jordan’s motion in the first instance. Se e Freeman, 564 U.S. at 541 (“[I]n cases where the Government believe s that even the limited se ntence reduction authorized by § 3582(c)(2) and USSG § 1B1.10 improperl y benefits the defendant, it can argue to the district court that th e court should not exercise it s discretion under the statute to reduce the sentence.”); Leonard, 844 F.3d at 116 (“[W]e do not know what weight the district court gave the in itial applicable Guidelines ra nge in granting the variance reflected in the parties’ agr eed-to lower range. Thus, we ca nnot be certain that if the district court were presente d with a lower applicable ra nge equal to the agreed-to range, it would not sentence at the lower end of the range.”).
IV For the foregoing reasons, the district court’s dismissal of Jordan’s § 3582(c)(2) motion is REVERSED . We REMAND to the district court to determine whether, consistent with the principles anno unced herein, Jordan should receive a reduced sentence unde r 18 U.S.C. § 3582(c)(2).