1 15-3097-cr United States v. Gonzalez UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 23 rd day of February, tw o thousand seventeen. PRESENT: REENA RAGGI, RAYMOND J. LOHIER, JR. CHRISTOPHER F. DRONEY, Circuit Judges

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---------------------------- ---------------------------- -------------- UNITED STATES OF AMERICA, Appellee , v. No. 15-3097-cr FRANCISCO GONZALEZ, Defendant-Appellant

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---------------------------- ---------------------------- -------------- FOR APPELLANT: Francisco Gonzalez, pro se , Lewisburg, Pennsylvania. FOR APPELLEE: Monica J. Richar ds, Assistant United States Attorney, for James P. Kennedy, Jr., Acting United States Attorney for the Western District of New York, Buffalo, New York. Appeal from a final order of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge ).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the final order entered on September 14, 2015, is VACATED, and the case is REMANDED fo r further proceedings. Defendant Francisco Gonzalez is presen tly serving a 101-month prison sentence imposed after he pleaded guilty to cocaine and firearms crimes pursuant to Fed. R. Crim. P. 11(c)(1)(C). See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 922(g)(1). He here appeals,

pro se , from the denial of a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. Amendment 782 on the ground that he was ineligible. We review de novo a defendant’s ineligibility for a § 3582(c)(2) sentence reduction. See United States v. Leonard , 844 F.3d 102, 106–07 (2d Cir. 2016). In so doing, we assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our deci sion to vacate and remand. A convicted defendant is 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 c onsistent with applicab le policy statements issued by the Sentencing Commission.” 18 U. S.C. § 3582(c)(2). The pertinent policy statement conditions reduction e ligibility on “the guideline range applicable to that defendant ha[ving] subsequently been lowe red as a result of an amendment to the Guidelines Manual listed in subsection (d).” U.S.S.G. § 1B1.10(a)(1). Thus, 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 lo wered the Guidelines range3 ‘applicable to’ the defendant at the time of the original sentencing.” United States v. Leonard , 844 F.3d at 107. 1. “Based On” Although Gonzalez was sentenced above the 78-to-97-month Guidelines range calculated by the district court (and the 63-to-78-month range referenced in his 11(c)(1)(C) agreement), we concl ude for the reasons stated in United States v. Leonard , 844 F.3d at 107–12, that his 101-month senten ce was “based on” the Guidelines as that requirement was construed by ju stices in the majority in Freeman v. United States , 564 U.S. 522 (2011). The Freeman plurality held that, where a dist rict court accepts an 11(c)(1)(C) agreement, “§ 3582(c)(2) modification proc eedings should be ava ilable to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to . . . approve the agreement.” Freeman v. United States , 564 U.S. at 530. “[I]f the judge uses the [calculated] sentencing range as the beginni ng point to explain th e decision to deviate from it, then the Guid elines are in a real sense a basis for the sentence.” Id. at 529. Here, the district court independently calc ulated Gonzalez’s app licable Guidelines range before agreeing to the pa rties’ stipulated sentence of 101 months, explaining that such an upward departure was “reasonable and understandable” to reflect criminal “conduct for which [Gonzalez was] not going to be prosecuted.” App’ x Sched. D. at 11; see United States v. Leonard , 844 F.3d at 109–10 (stating that Freeman plurality “appear[ed] to recognize the possi bility that a sentence can be ‘based on’ th e Guidelines4 even if departing or varying from the applicable Gu idelines range”). In sum, it was only after explicitly considering the applicable Gu idelines range in c onjunction with the 18 U.S.C. § 3553(a) factors that the district court imposed the ag reed-upon 11(c)(1)(C) sentence. On this record, we conclude that, under the Freeman plurality’s rationale for decision, Gonzalez’s sentence wa s “based on” th e Guidelines. See Freeman v. United States , 564 U.S. at 534 (stating th at “judge’s decision to accept the [11(c)(1)(C)] plea and impose the recommended sentence is likely to be based on the Guidelines”). The district court’s statement that th e difference between its own Guidelines calculation and that in the plea agreement was “not goi ng to make any difference whatsoever” warrants no different conclusion. App’x Sched. D. at 10. This statement can be read simply as an observation that “b ased on” its Guidelines calculation, it deemed the agreed-upon sentence an appr opriate departure in light of other § 3553(a) factors. The Freeman concurrence identifies the partie s’ 11(c)(1)(C) agreement, rather than the district court’s Guid elines calculation, as critical to the “based on” analysis. See Freeman v. United States , 564 U.S. at 539 (Sotomay or, J., concurring in the judgment) (stating that defenda nt is eligible for relief wh ere plea agreement “make[s] clear that the basis for the sp ecified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty”). Th e concurrence stated that its reasoning was not limited to sentences within a specified Guidelines range, but also applied to departures that were determ ined by reference to the Guidelines. See id. at 543 n.9; United States v. Leonard , 844 F.3d at 110. In Gonzal ez’s plea agreement, the parties detailed a Guidelines calculation for both counts of the information before5 agreeing that “an upward de parture and non-Guidelines sentence [of 101 months’ imprisonment] pursuant to Guidelines § 5K2. 21 (dismissed and uncharged conduct) is appropriate.” App’x Sched. C. at 9. This language makes clear that the basis for the agreed-upon sentence was the identified Guidelines range, with an upward departure specifically authorized by the Guidelines. In urging otherwise, the government suggest s that the stipulated above-Guidelines sentence is based at least in part on its agreement not to f ile a prior-felony information pursuant to 21 U.S.C. § 851. While the agre ement represents that no such information will be filed, it makes no mention of that fo rbearance as a senten cing factor. Only U.S.S.G. § 5K2.21 is cited to support the departure. We do not understand the Freeman concurrence to support looking beyond this ground. See Freeman v. United States , 564 U.S. at 538 (Sotomayor, J., concurring in th e judgment) (rejecting id ea that “§ 3582(c)(2) calls upon district courts to engage in a free-ranging search through the parties’ negotiating history”). The government’s se parate contention that the agreed-upon sentence represented a reduction from potential mandatory minimums fails for the same

reason. Accordingly, we conclude that Gonzalez’s sentence was “based on” a Guidelines sentencing range as that requireme nt has been construed in the Freeman plurality and concurring opinions. 2. “Applicable To” Where a defendant pleads guilty pursuan t to an 11(c)(1)(C) agreement, his applicable Guidelines range for purposes of determining § 3582(c)(2 ) eligibility is “that6 determined by the court as set forth in the Guidelines, without rega rd to the parties’ agreement to a different calculation, and before the exercise of any departure or variance discretion.” United States v. Leonard , 844 F.3d at 113. Th e district court here determined that Gonzalez’s applicable Gu idelines range was 78 to 97 months’ imprisonment. Amendment 782 lowered that range to 63 to 78 months. See U.S.S.G., Supp. to App. C., Amend. 782 (Nov. 2014). Because Gonzalez was sentenced to a term of imprisonment based on a subsequently lowered sentenci ng range and because the s ubsequent amendment lowered his applicable Guidelines range, he is eligible for a sentence reduction under § 3582(c)(2). We are, therefore, obliged to vacate the challenged orde r of denial and to remand the case. In doing so, however, we note th at even if a defendant is eligible for a sentence reduction, it remains w ithin the discretion of the di strict court to determine whether such a reduction is warranted un der the circumstances of the case. See Dillon v. United States , 560 U.S. 817, 826–27 (2010). We ta ke no position as to whether such a reduction is warranted in this particular case , or, if warranted, the appropriate extent of a reduction. See id. ; United States v. Borden , 564 F.3d 100, 104 (2d Cir. 2009). 3. Conclusion We have considered the parties’ remaini ng arguments and conclude that they are without merit. Accordingly, the order of the district court is VACATED, and the case is REMANDED for further proceedings. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court