NOT RECOMMENDED FOR PUBLICATION

File Name: 16a0563n.06

No. 16-1029

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROLAND LEE ANDERSON,

Defendant-Appellant.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF MICHIGAN

BEFORE: GRIFFIN, WHITE, and DONALD, Circuit Judges.

GRIFFIN, Circuit Judge.

This case presents a narrow question: whether defendant’s ten-year statutory maximum 

sentence—a product of a Rule 11(c)(1)(C) plea agreement—was “based on” a sentencing range 

that the United States Sentencing Commission has subsequently lowered so that the district court 

could modify his sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court held that it was 

not and denied defendant’s motion to modify his sentence. We agree and therefore affirm.

I.

A grand jury indicted Roland Anderson with three counts of drug trafficking 

(benzylpiperazine, ecstasy, and marijuana) and two counts of being a felon in possession of a 

firearm. Pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, 

Anderson pleaded guilty to one count of distribution of marijuana in violation of 21 U.S.C. 
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§ 841(a)(1), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. 

§ 922(g). In exchange, the government agreed to dismiss the remaining charges. Anderson 

agreed that had he been convicted of the two other drug distribution charges, his Guidelines

range “would have been 188 to 235 months (with a statutory maximum term of imprisonment of 

30 years).” 

The plea agreement discussed the parties’ stipulation as to Anderson’s Guidelines range: 

“[t]here are no sentencing guideline disputes” and “defendant’s guideline range is 100-120 

months, as set forth on the attached worksheets.” The worksheets reflect the parties’ calculations 

that defendant’s total offense level was 24 and his criminal history category was IV (but then 

adjusted upward to VI because he was a career offender). Importantly, the worksheets show the 

parties agreed defendant’s felon in possession count generated the higher of the offense levels 

between the two counts: 26 for that count as compared to 18 for the marijuana distribution 

count. The parties grouped the two counts together for a combined adjusted offense level of 27 

and applied a three-point adjustment for acceptance of responsibility, resulting in a total offense 

level of 24. The sentencing table produced a 100-to-125 months Guidelines range, and the upper 

bound was reduced to 120 months as both counts had 120-month statutory maximums. 

While the plea agreement acknowledged that the district court would “impose a sentence 

pursuant to 18 U.S.C. § 3553, and in so doing must consider the sentencing guideline range,” it 

expressly stated the parties agreed to a specified term of imprisonment—the statutory maximum 

of 120 months: 

However, pursuant to this plea agreement between the government and 

defendant, the parties specifically request that the Court impose a sentence of 

120 months (10 years), the statutory maximum. . . . Pursuant to Federal Rule 

of Criminal Procedure 11(c)(1)(C) the parties agree that a sentence of one 

hundred twenty months (10 years) is an appropriate disposition of this case and 
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that the Court can and should sentence the defendant at the top of the [agreed 

upon] advisory guideline range . . . and sentence the defendant to the statutory 

maximum term of imprisonment of 120 months (10 years). 

At sentencing, the district court considered the probation officer’s presentence report, 

which calculated Anderson’s total offense level differently. Specifically, the probation officer 

found that the parties under-calculated defendant’s attributable drug quantities under U.S.S.G. 

§ 2D1.1(c)(7), which upon correction resulted in a base offense level for his marijuana 

distribution count of 26 (not 18 as calculated by the parties). She also concluded Anderson’s 

felon in possession count embodied conduct treatable as a specific offense characteristic to his 

marijuana distribution count under U.S.S.G. § 3D1.2(c), thus adding two levels and resulting in 

an adjusted offense level of 28. Upon application of a three-point reduction for acceptance of 

responsibility, the probation officer concluded defendant’s total offense level was 25. This 

resulted in the higher Guidelines range of 110-to-137 months (again, capped at the 120-month 

statutory maximum). The district court accepted the probation officer’s report without change

and without objection. It then followed the plea agreement and sentenced defendant to 

120 months’ imprisonment. 

Following the Sentencing Commission’s subsequent reduction of U.S.S.G. § 2D1.1’s 

drug quantity table with Amendment 782, Anderson moved to reduce his sentence pursuant to 

18 U.S.C. § 3582. The district court denied the motion, reasoning the plea agreement 

unambiguously required a 120-month sentence: 

[T]he Rule 11 Agreement is not ambiguous. I think it’s very, very clear. . . . It 

was an agreement between the parties, and the parties knew and certainly could 

contemplate that if he didn’t [enter into a plea agreement] and went to trial, or 

didn’t agree that it was going to be a substantially larger guideline range[,] . . . 

the question is whether or not he’s bound by the Rule 11 and the 10-year 

minimum mandatory. I think he is. I think that was the agreement, that was what 

was contemplated, that was the plea arrangement that he accepted and that the 
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Government offered. And for those reasons, the Court believes that it should be 

the 10 years and, therefore, the Court will deny the motion. 

Defendant appeals, arguing his sentence was “based on a sentencing range that has subsequently 

been lowered by the Sentencing Commission” under 18 U.S.C. § 3582(c)(2), and therefore he is 

eligible for a reduction in his sentence. 

II.

18 U.S.C. § 3582(c)(2) provides a district court with limited authority to reduce a 

prisoner’s sentence: 

The court may not modify a term of imprisonment once it has been imposed 

except that . . . in 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 or the Director of the Bureau of Prisons, or on its own motion, 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. 

Although we ordinarily review a district court’s denial of a § 3582(c)(2) motion for abuse of 

discretion, when a district court, as here, concludes it “‘lacks the authority to reduce a 

defendant’s sentence under the statute,’ our review is de novo.” United States v. McNeese, 819 

F.3d 922, 925 (6th Cir. 2016) (quoting United States v. Payton, 617 F.3d 911, 912–13 (6th Cir. 

2012)). 

III.

We have held that Justice Sotomayor’s concurring opinion in Freeman v. United States, 

564 U.S. 522, 534 (2011), “provid[es] the framework that governs the inquiry into whether a 

defendant sentenced pursuant to a Rule 11(c)(1) agreement qualifies for § 3582(c)(2) relief.” 
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McNeese, 819 F.3d at 927 (collecting authorities).

1

In Justice Sotomayor’s view, “whether a 

particular term of imprisonment is ‘based on’ a Guidelines sentencing range” depends upon 

“whether that range serves as the basis or foundation for the term of imprisonment.” 564 U.S. at 

535 (Sotomayor, J., concurring). She stressed that sentencing pursuant to a Rule 11(c) plea 

agreement is “different” from sentencing in the normal course—if the court accepts the plea 

agreement, “the court may only impose the term of imprisonment the agreement calls for.” Id. 

In this context, therefore, Justice Sotomayor concluded, “it is the binding plea agreement that is 

the foundation for the term of imprisonment to which the defendant is sentenced. . . . The term 

of imprisonment imposed by the sentencing judge is dictated by the terms of the agreement 

entered into by the parties, not the judge’s Guidelines calculation. In short, the term of 

imprisonment imposed pursuant to a (C) agreement is, for purposes of § 3582(c)(2), ‘based on’

the agreement itself.” Id. at 535–36 (emphasis added). 

Under Justice Sotomayor’s controlling opinion, a prisoner is eligible for § 3582(c) relief 

upon application of a “basic syllogism: if the sentence is based on a plea agreement, and the plea 

agreement relies on a given sentencing range, then the sentence is based on that range.” United 

States v. Garrett, 758 F.3d 749, 755 (6th Cir. 2014). “Put differently, the question is whether [a 

defendant]’s original sentence would have been different had the guideline, as amended, been in 

 

1

There is a developing circuit split on whether Justice Sotomayor’s concurring opinion is 

controlling under Marks v. United States, 430 U.S. 188 (1977). Most recently, for example, the 

Ninth Circuit agreed with the D.C. Circuit’s opinion in United States v. Epps, 707 F.3d 337 

(D.C. Cir. 2013), and held that there is no binding opinion in Freeman. See United States v. 

Davis, 825 F.3d 1014, 1022–26 & n.11 (9th Cir. 2016) (en banc) (distinguishing cases from other 

circuits, including our own in United States v. Smith, 658 F.3d 608 (6th Cir. 2011)). Here, the 

parties agree Justice Sotomayor’s concurring opinion governs, and even if they did not, it is wellestablished that a panel of this court may not overrule a prior published decision absent en banc 

review or an intervening and binding change in the state of the law. See Bennett v. MIS Corp., 

607 F.3d 1076, 1095 (6th Cir. 2010). 
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place at the time he was originally sentenced.” Id. at 754. Justice Sotomayor’s concurrence 

provides two scenarios in which this is true. 

First, if the agreement “call[s] for the defendant to be sentenced within a particular 

Guidelines sentencing range, . . . the district court’s acceptance of the agreement obligates the 

court to sentence the defendant accordingly, and 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).” Freeman, 564 S. Ct. at 538 (Sotomayor, J., concurring). Second, “a 

plea agreement might provide for a specific term of imprisonment—such as a number of 

months—but also make clear that the basis for the specified term is a Guidelines sentencing 

range applicable to the offense to which the defendant pleaded guilty. As long as that sentencing 

range is evident from the agreement itself, for purposes of § 3582(c)(2) the term of imprisonment 

imposed by the court in accordance with that agreement is ‘based on’ that range.” Id. at 539.

Given that his plea agreement called not for a sentence within a particular range, but

rather for a specified term, Anderson contains his argument to Justice Sotomayor’s second

scenario. He notes, for example, that “the text of the agreement itself and the attached guidelines 

worksheet make clear that the parties calculated an applicable range of 100 to 120 months, based 

on [the drug quantity table in] § 2D1.1, and anticipated that Anderson would be sentenced within 

that range to 120 months.” Anderson thus concludes this case is analogous to our decision in 

Smith, where the parties also attached a Guidelines worksheet reflecting the parties’ Guidelines 

agreement (168 to 210 months), and stipulated to a specific term of imprisonment within those 

Guidelines (180 months). 658 F.3d at 610. Under those circumstances, we had 

little hesitation in concluding that the plea agreement in this case is ‘based on’ the 

Sentencing Guidelines. . . . It is doubtful that the parties selected 180 months 

based on some intuitive sense that this term of imprisonment would be an 
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appropriate disposition of the case. Rather, a more reasonable assessment is that 

this sentence, which is slightly above the bottom of the range, represent[ed] a 

trade-off between Smith’s minor criminal history and the seriousness of the drug 

trafficking conspiracy, with the nature of the offense receiving more weight in the 

parties’ agreement. 

Id. at 613. 

The government contends Smith is distinguishable. For one, “a plea agreement must 

‘make clear’ that the basis for the specified term is the referenced Guidelines sentencing range.” 

McNeese, 819 F.3d at 929 (quoting Freeman, 564 U.S. at 539 (Sotomayor, J., concurring)) 

(brackets omitted). Put differently, there must be a connection between the Guidelines range and 

the sentence: “a defendant’s sentence is ‘based on’ a guideline range only when that guideline 

range is explicitly referenced in a plea agreement and expressly relied upon to determine a 

defendant’s sentence.” United States v. Riley, 726 F.3d 756, 760 (6th Cir. 2013) (emphasis 

added). Whether Anderson has established such a link is debatable. After all, a statutory 

maximum remains the same even if Amendment 782 reduces the upper bound of a Guidelines

range. Moreover, the mere reference to a Guidelines range in a plea agreement is never enough 

to qualify for a reduced sentence as we expect the government and a defendant to negotiate plea 

agreements “in the shadow of the sentencing scheme.” Freeman, 564 U.S. at 537 (Sotomayor, 

J., concurring). And one of our sister circuits has expressly rejected such a link. See United 

States v. Sylvester, 510 F. App’x 137, 144–46 (3d Cir. 2013); see also United States v. Bogdan, 

— F.3d —, No. 15-2990, 2016 WL 4524494, at *3 (8th Cir. Aug. 30, 2016) (stating in dicta that 

“[t]he more logical interpretation would be that the (C) agreement was based on the mandatory 

minimum, not on a guidelines range”). But we need not answer this debate as the facts dictate a 

more narrow outcome. 
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Justice Sotomayor’s controlling opinion mandates that courts focus on the language of 

the plea agreement to determine a defendant’s eligibility for a sentence modification: “When a 

(C) agreement explicitly employs a particular Guidelines sentencing range to establish the term 

of imprisonment, the agreement itself demonstrates the parties’ intent that the imposed term of 

imprisonment will be based on that range, as required for sentence reduction under the statute.” 

Freeman, 564 U.S. at 540 (Sotomayor, J., concurring). Even assuming the parties’ agreement as 

to the maximum statutory sentence could be construed as being “based on” a Guidelines 

sentencing range, the plea agreement here “makes clear” the agreed upon sentence was based 

upon defendant’s firearm conviction, not his marijuana distribution conviction. The worksheets 

incorporated into the plea agreement reflect the parties’ conclusion that Anderson’s highest 

offense level conviction—and thus the one driving his combined adjusted offense level of 27 and 

total offense level of 24—was his felon in possession conviction. Stated in the converse, the 

worksheets incorporated into Anderson’s plea agreement shows § 2D1.1’s drug quantity table 

played no role in the parties’ Guidelines calculations. Given that Anderson’s plea agreement 

“makes clear” that his agreed-upon sentence was “based on” a sentencing range that has not been 

subsequently lowered by the Sentencing Commission, the district court correctly determined it 

could not modify Anderson’s sentence. See, e.g., Riley, 726 F.3d at 760–61. 

IV.

For these reasons, we affirm the district court.