PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-4429

_____________

UNITED STATES OF AMERICA

v.

KEVIN WEATHERSPOON

a/k/a FIFTY

a/k/a 50

KEVIN WEATHERSPOON,

Appellant

_____________

On Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. No. 3:05-cr-00176-013)

District Judge: Honorable James M. Munley

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Argued July 13, 2012

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Before: FUENTES, HARDIMAN and ROTH,

Circuit Judges
2

(Opinion Filed: October 10, 2012)

Frederick W. Ulrich, Esq. [ARGUED]

Office of Federal Public Defender

Suite 306

100 Chestnut Street

Harrisburg, PA 17101

James V. Wade, Esq.

Office of Federal Public Defender

Suite 306

100 Chestnut Street

Harrisburg, PA 17101

Counsel for Defendant-Appellant Kevin Weatherspoon

William S. Houser, Esq. [ARGUED]

Office of the United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Counsel for Appellee the United States of America
3

_____________

OPINION OF THE COURT

_____________

FUENTES, Circuit Judge.

For the second time, Kevin Weatherspoon seeks a 

reduction in his sentence for conspiring to distribute and 

possess with intent to distribute over 50 grams of cocaine 

base. In October 2006, he pled guilty and was sentenced to a 

120-month term of imprisonment pursuant to a binding plea 

agreement with the government. A few years later, the U.S. 

Sentencing Commission issued a retroactive amendment 

which reduced Weatherspoon‘s Guidelines range. We 

rejected Weatherspoon‘s first motion for a sentence reduction 

because he was sentenced pursuant to a binding plea 

agreement. In this motion, he argues that he is nevertheless

eligible for a reduction because under the Supreme Court‘s

recent decision in Freeman v. United States, 131 S. Ct. 2685 

(2011), the sentence contained in his plea agreement was 

―based on‖ the Sentencing Guidelines. We disagree, and we

will affirm the District Court‘s denial of his motion. 

I.

In May 2005, Kevin Weatherspoon was indicted by a 

federal grand jury for crimes relating to the distribution and 

possession of cocaine, cocaine base and marijuana. In lieu of 

trial, Weatherspoon pled guilty to one count of conspiracy to 

distribute and possess with intent to distribute cocaine base 

pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C)
4

plea agreement (a ―(C) plea agreement‖).

1

In that agreement, 

the parties agreed that Weatherspoon should receive a 

sentence of 120 months‘ imprisonment because that sentence 

was ―a reasonable sentence under the facts and circumstances 

of the case.‖ (Appendix (―App.‖) at 13-14.)

Weatherspoon‘s plea agreement contains only a few 

references to the Sentencing Guidelines. The agreement does 

not expressly state what the parties believed Weatherspoon‘s 

Guidelines range would be or if they used the Guidelines to 

determine that a 120-month term of imprisonment was the 

appropriate sentence. Nor does it provide his offense level or 

criminal history category. 

The agreement does, however, note that ―[t]he 

defendant . . . agrees that any legal and factual issues relating 

to the application of the Federal Sentencing Guidelines to the 

defendant‘s conduct, including facts that support any specific 

offense characteristic or other enhancement or adjustment and 

the appropriate sentence within the statutory maximum 

provided for by law, will be determined by the court at a 

sentencing hearing.‖ (App. at 12.) The (C) plea agreement

also makes certain recommendations relevant to the 

calculation of his offense level. Specifically, the parties 

agreed that for the purposes of sentencing, the court should:

 

1 Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure 

permits the parties to ―agree that a specific sentence or 

sentencing range is the appropriate disposition of the case, or 

that a particular provision of the Sentencing Guidelines, or 

policy statement, or sentencing factor does or does not apply 

(such a recommendation or request binds the court once the 

court accepts the plea agreement).‖ 
5

(1) attribute at least 500 grams but less than 1.5 kilograms of 

cocaine base to Weatherspoon; and (2) attribute at least 500 

grams but less than 1.5 kilograms of cocaine hydrochloride to 

him. Weatherspoon was also to receive a three-level 

reduction to his offense level because of his acceptance of 

responsibility. There is no mention in the agreement of his

use of a firearm or his role in the conspiracy. Nor did it 

indicate that the facts mentioned in the agreement were the 

only ones relevant to the calculation of his offense level. The 

agreement notes that his statutory maximum sentence was 20 

years‘ imprisonment.

2

Weatherspoon pled guilty on October 23, 2006. At 

his change of plea hearing, the government summarized the 

plea agreement. The prosecutor mentioned that 

Weatherspoon faced a maximum sentence of 20 years‘ 

imprisonment but did not mention what his applicable

Guidelines range was. The government also noted that the 

parties agreed that Weatherspoon should receive a 120-month 

sentence, but did not indicate any basis for that determination. 

The prosecutor did mention that ―the [g]overnment and 

defense have agreed to recommend a sentence in this . . . 

agreement that will likely be somewhat lower than the actual 

guideline[s] range, and that was in consideration of his appeal 

 

2

The plea agreement also contains a waiver of appeal 

provision. We need not consider its impact here, however,

because the government failed to raise the issue and thus it is 

waived. See United States v. Carrasco-De-Jesus, 589 F.3d 

22, 26 (1st Cir. 2009) (―Where, as here, the government‘s 

relinquishment of a known right relates to a waiver-of-appeal 

provision in a plea agreement, there is usually little reason to 

disregard that election.‖)
6

waiver, his timely guilty plea, et cetera.‖ (App. at 49-50.) 

After explaining Weatherspoon‘s rights to him, the District 

Court accepted Weatherspoon‘s guilty plea. 

For sentencing, the Probation Department prepared a 

pre-sentence report. Using the 2006 edition of the Guidelines 

manual, the Probation Officer, accepting the factual 

recommendations in the plea agreement, calculated 

Weatherspoon‘s base offense level as 36. She then added two 

additional points for Weatherspoon‘s possession of a firearm 

in furtherance of a drug offense under U.S.S.G. 

§ 2D1.1(b)(1), and three additional points for Weatherspoon‘s 

role as a supervisor in the organization, under U.S.S.G. 

§ 3B1.1(b). Finally, she subtracted three points for 

Weatherspoon‘s acceptance of responsibility, under U.S.S.G. 

§ 3E1.1(a), (b). Ultimately, the Probation Officer determined 

that Weatherspoon had a total offense level of 38. Because 

this was Weatherspoon‘s first offense, his criminal history 

category was I, corresponding to a Guidelines range of 235 to 

293 months. Due to the statutory maximum of 20 years,

however, the top of his Guidelines range was reduced to 240 

months.

The District Court sentenced Weatherspoon on 

February 15, 2007. At sentencing, the District Court did not

explicitly calculate or adopt a particular Guidelines range. 

Rather, after brief argument, it accepted the recommended

sentence of 120 months. It explained that in accepting that 

sentence, it took ―into consideration the presentence 

investigation report, the statements by [Weatherspoon‘s] 

lawyer and the seriousness of the charges.‖ (App. at 68.) The 

District Court also considered the applicable § 3553(a) 

factors, particularly the ―kinds of sentences that are available, 
7

and the advisory sentencing range and policies prescribed by 

the United States Sentencing Commission.‖ (App. at 68-69.)

On November 1, 2007, nine months after 

Weatherspoon‘s sentencing, the Sentencing Commission 

passed Amendment 706 to the Guidelines, which reduced the 

cocaine base equivalency. In March 2008, the amendment 

was made retroactive. The amendment effectively reduced

Weatherspoon‘s total offense level from 38 to 36, resulting in 

a reduction of his Guidelines range from 235–240 months to

188–235 months. 

Shortly after, Weatherspoon filed his first motion for a 

reduction in his sentence under 18 U.S.C. § 3582(c)(2), which

allows a court to reduce a defendant‘s sentence retroactively 

based on a change in the Guidelines. Weatherspoon

contended that since his 120-month sentence represented a 

49% reduction from the bottom of his then-Guidelines range, 

his sentence should be proportionately reduced to 96 months 

based on his new Guidelines range. The District Court denied 

that motion, finding that his sentence was still ―comparably 

less than the amended guideline range.‖ (App. at 92.) 

Weatherspoon appealed to this Court. We held that 

Weatherspoon was ineligible for a reduction because of his 

binding plea agreement. United States v. Weatherspoon, 338 

F. App‘x 143, 143 (3d Cir. 2009) (citing United States v. 

Sanchez, 562 F.3d 275, 282 (3d Cir. 2009)).3 The Supreme 

 

3

In Sanchez, we held that a defendant who pleads guilty 

pursuant to a (C) plea agreement receives a sentence that is 

―based on‖ the agreement and that such defendants are never 

eligible for 3582(c)(2) relief. 562 F.3d at 279-82.
8

Court denied Weatherspoon‘s petition for certiorari on 

November 30, 2009. Weatherspoon v. United States, 130 S. 

Ct. 768 (2009). 

Two years later, the United States Supreme Court 

issued its ruling in Freeman v. United States, --- U.S. --- , 131 

S. Ct. 2685 (2011). A plurality of the Court held that 

defendants who pled guilty to (C) plea agreements are eligible 

for relief under § 3582(c)(2) whenever the district court uses 

the Guidelines as a basis for accepting the agreement. Id. at 

2695. Justice Sotomayor concurred, finding that these 

defendants are only eligible when their plea agreements make 

clear that the parties used the Guidelines as a foundation for

the term of imprisonment set forth in the agreement. Id. at 

2697-98. Thus, five members of the Supreme Court 

concluded that defendants who pled guilty pursuant to (C) 

plea agreements could be eligible for relief, overruling our 

prior decision in Sanchez. 

Based on this change in the law, Weatherspoon filed a

second motion for a reduction in his sentence. The District 

Court denied that motion without reasoning and 

Weatherspoon filed a timely notice of appeal.

II. 

When the district court determines that a defendant is 

ineligible for relief under 18 U.S.C. § 3582(c)(2), our review 

is plenary. United States v. Sanchez, 562 F.3d 275, 277 (3d 

Cir. 2009), overruled on other grounds, Freeman, 131 S. Ct.

at 2685; see also United States v. Lawson, --- F.3d ---, 2012 

WL 2866265, at *1 (11th Cir. July 13, 2012). By contrast, 

when the district court determines that a defendant is eligible 
9

for relief but declines to reduce his sentence, our review is for 

an abuse of discretion. Sanchez, 562 F.3d at 278 n.4; see also 

United States v. Austin, 676 F.3d 924, 926-27 (9th Cir. 2012). 

A district court‘s authority to alter or amend a 

defendant‘s sentence is limited. Under the Sentencing 

Reform Act of 1984, a district court loses any continuing 

authority over a sentence once it has been imposed, see 18 

U.S.C. § 3582(c), subject to two general exceptions. First,

though not relevant here, a district court has the power to 

correct clerical or technical errors within 14 days of the entry 

of judgment. 18 U.S.C. § 3582(c)(1)(B); Fed R. Crim. P. 

35(a). Second, a district court has the power to amend a 

sentence, provided that it was based on a Guidelines range 

that has since been lowered. 18 U.S.C. § 3582(c)(2). Under 

§ 3582(c)(2)

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.
10

We must determine, as a threshold matter, whether 

Weatherspoon was eligible for relief under the statute. Our

review of this question is plenary. 

A.

On appeal, the government asserts for the first time

that § 3582(c)(2) only permits a defendant to file one motion

for a sentence reduction and that the District Court thus

lacked jurisdiction to consider Weatherspoon‘s second 

motion. See Appellee‘s Br. at 23. In the alternative, and also 

for the first time, the government argues that the Law of the 

Case Doctrine precludes review. See Appellee‘s Br. at 24. 

Though we ordinarily consider issues not raised before the 

district court to be waived, see Brenner v. Local 514, United 

Bhd. of Carpenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 

1991), we have an independent duty to assure ourselves that

we and the district court have jurisdiction. Farina v. Nokia, 

Inc., 625 F.3d 97, 109-110 (3d Cir. 2010). Thus, we will 

consider this argument only insofar as it implicates a district 

court‘s jurisdiction to adjudicate multiple § 3582(c)(2) 

motions. 

In a recent line of cases the Supreme Court has 

cautioned that federal courts should be reluctant to classify a 

statutory requirement as jurisdictional. See Animal Sci. 

Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 466 (3d 

Cir. 2011) (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 510, 

511 (2006)). Indeed, as only Congress may define a court‘s 

subject-matter jurisdiction, ―limits on the reach of federal 

statutes, even nontemporal ones, are only jurisdictional if 

Congress says so: when Congress does not rank a statutory 

limitation . . . as jurisdictional, courts should treat the 
11

restriction as nonjurisdictional in character.‖ Bowles v. 

Russell, 127 S. Ct. 2360, 2368 (2007) (quoting Arbaugh, 546 

U.S. at 516) (quotation marks omitted). 

Several of our sister circuits have held that 

§ 3582(c)(2) does not permit a district court to reconsider its 

prior ruling on a § 3582(c)(2) motion. See United States v. 

Randall, 666 F.3d 1238, 1242-43 (10th Cir. 2011); United 

States v. Redd, 630 F.3d 649, 651 (7th Cir. 2011); United 

States v. Goodwyn, 596 F.3d 233, 236 (4th Cir. 2010); United 

States v. Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir. 

1997). Some of these courts have done so because, while 

Congress did not specifically forbid successive motions, it did 

not specifically authorize them either. See Redd, 630 F.3d at 

651; Goodwyn, 596 F.3d at 236. 

Though our sister courts may be right that such 

silence, when read in light of the statute‘s purpose of 

restricting a district court‘s authority to revisit a criminal 

sentence, means that a defendant is only entitled to one bite at

the apple, it does not follow that this restriction goes to the 

subject matter jurisdiction of the district court. After all, a

rule derived from congressional silence does not support an 

inference that Congress has ―clearly stated‖ its intent to limit 

a district court‘s jurisdiction to one § 3582(c)(2) motion. See

Bowles, 127 S. Ct. at 2368; Animal Sci. Prods., Inc., 654 F.3d 

at 468 (applying the Arbaugh ―clearly states‖ test). Thus any 

restriction on the filing of successive § 3582(c)(2) motions is 

not a limitation on the district court‘s subject matter 

jurisdiction. 

Having assured ourselves that the District Court had 

subject matter jurisdiction to consider Weatherspoon‘s second 
12

§ 3582(c)(2) motion, we will not further consider the 

government‘s arguments that Weatherspoon was barred from 

filing a second § 3582(c)(2) motion based on the same 

Guidelines amendment. The government did not raise these 

arguments before the District Court and therefore they are 

waived. Brenner, 927 F.2d at 1298. 

B.

Our jurisdictional inquiry is not at an end, however. A 

district court only has the authority to consider whether a 

defendant should receive a reduction in his sentence under 

§ 3582(c)(2) when the defendant has been: (1) sentenced to a 

term of imprisonment based on a sentencing range that has

been subsequently lowered by the Sentencing Commission; 

and when such a reduction is (2) consistent with the 

applicable policy statements issued by the Sentencing 

Commission. 18 U.S.C. § 3582(c)(2); United States v. Doe, 

564 F.3d 305, 309 (3d Cir. 2009). Here, it is undisputed that 

Amendment 706 retroactively lowered Weatherspoon‘s 

Guidelines range and that reducing his sentence would be 

consistent with the Guidelines‘ policy statements. Thus, the 

only issue before us is whether Weatherspoon‘s 120-month 

sentence was ―based on‖ his Guidelines range. 

Our resolution of this issue is controlled by the 

framework established by Justice Sotomayor‘s concurrence in 

Freeman v. United States. See United States v. Thompson, 

682 F.3d 285, 289 (3d Cir. 2012) (determining that Justice 

Sotomayor‘s concurrence is the narrowest opinion and thus 

controls). In Freeman, the Court considered what a 

defendant‘s sentence was ―based on‖ for purposes of 18 
13

U.S.C. § 3582(c)(2) when that defendant pled guilty pursuant 

to a (C) plea agreement. 

To Justice Sotomayor, the sentence such a defendant 

receives is ―based on‖ the agreement itself, not on the district 

court‘s analysis or application of the sentencing Guidelines. 

Freeman, 131 S. Ct. at 2695. This is so because, at the time 

of sentencing, ―[t]he court may only accept or reject the 

agreement, and if it chooses to accept it, at sentencing the 

court may only impose the term of imprisonment the 

agreement calls for.‖ Id. Thus, any determination of whether 

a defendant‘s sentence is ―based on‖ the Guidelines turns 

solely on an examination of the four corners of the plea 

agreement. Id. at 2698 n.2 (―[T]o determine whether a 

sentence imposed pursuant to a (C) plea agreement was 

 ̳based on‘ a Guidelines sentencing range, the reviewing court 

must necessarily look to the agreement itself.‖); United States 

v. Dixon, --- F.3d ---, 2012 WL 2913732, at *3 (7th Cir. July

18, 2012) (―Under Justice Sotomayor‘s approach, a prisoner 

sentenced under a binding plea agreement is eligible for 

§ 3582(c)(2) relief only if the binding plea agreement itself 

expressly refers to and relies on a guideline sentencing 

range.‖). Any statements made by the District Court, the 

probation department, or counsel are irrelevant to this

analysis. 

Justice Sotomayor identified only two situations in 

which a defendant sentenced pursuant to a (C) plea agreement

could be eligible for a sentence reduction. Freeman, 131 S. 

Ct. at 2697-700; Dixon, 2012 WL 2913732, at *2. First, 

when the defendant‘s agreement ―call[s] for the defendant to 

be sentenced within a particular Guideline[s] sentencing 

range,‖ ―there can be no doubt that the term of imprisonment 
14

the court imposes is  ̳based on‘ the agreed-upon sentencing 

range.‖ Freeman, 131 S. Ct. at 2697. Second, when the

defendant‘s agreement ―provide[s] for a specific term of 

imprisonment—such as a number of months‖ the sentence is 

―based on‖ a Guidelines range when the agreement ―make[s]

clear‖ that the foundation for the agreed-upon sentence was 

the Guidelines. Id. In other words:

[a]s 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. Therefore, when a (C) 

agreement expressly uses a Guidelines 

sentencing range to establish the term of 

imprisonment, and that range is subsequently 

lowered by the Commission, the defendant is 

eligible for sentence reduction under 

§ 3582(c)(2).

Id. at 2697-98 (emphasis added). 

Thus, to be eligible for relief under 18 U.S.C. 

§ 3582(c)(2), a defendant who agrees to a specific term of 

imprisonment in a (C) plea agreement must show that his 

agreement both identifies a Guidelines range and

demonstrates a sufficient link between that range and the 

recommended sentence. See id.; Dixon, 2012 WL 2913732, 

at *3. Failure to meet either requirement is fatal to a 

defendant‘s § 3582(c)(2) motion.

Applying this framework, Justice Sotomayor 

concluded that William Freeman fell into the second category 
15

of defendants and was eligible for relief. Freeman agreed to 

plead guilty to multiple cocaine base possession and 

distribution charges pursuant to a (C) plea agreement that 

specified that a 106-month sentence was appropriate. The 

agreement stated that ―[b]oth parties have independently 

reviewed the Sentencing Guidelines applicable in this case 

and that Freeman agree[d] to have his sentence determined 

pursuant to the Sentencing Guidelines.‖ Id. at 2691 (internal 

quotation marks omitted). It also stated that his offense level 

was 19, ―as determined by the quantity of drugs and his 

acceptance of responsibility,‖ and that the parties anticipated

that Freeman would be assigned a criminal history category 

of IV. Id. at 2699. 

Because the agreement provided her with enough 

information to do so, Justice Sotomayor turned to the 

sentencing table in the Guidelines and determined that with 

an offense level of 19 and a criminal history category of IV,

Freeman‘s Guidelines range was 46 to 57 months. She then

compared this range to the agreed-upon 106-month sentence. 

Accounting for the 60-month mandatory minimum he faced 

on one of his other charges, Freeman was left with 46 months, 

exactly the bottom end of his Guidelines range. Nothing in 

the agreement stated that the parties agreed to 46 months 

because it was the bottom of his Guidelines range. However,

because the figures corresponded exactly, ―it [was] evident 

that Freeman‘s agreement employed the 46-month figure at 

the bottom end of this sentence range, in combination with 

the 60-month mandatory minimum,‖ and that his sentence 

was ―based on‖ the Guidelines under § 3582(c)(2). Id. at 

2700. 
16

Justice Sotomayor also addressed Freeman‘s eligibility

had he received a 53-month term of imprisonment, a sentence

that did not precisely conform to one end of his Guidelines 

range. See id. at 2700 n.9. The analysis, she concluded,

would remain the same: ―If the agreement itself made clear

that the parties arrived at the 53-month term of imprisonment 

by determining the sentencing range applicable to Freeman‘s 

offense and then halving the 106-month figure at its low end, 

he would have been eligible under § 3582(c)(2).‖ Id. (citing 

United States v. Franklin, 600 F.3d 893, 897 (7th Cir. 2010)). 

She also noted that ―if a (C) [plea] agreement does not 

contain any references to the Guidelines, . . . there is no way 

of knowing whether the agreement used a Guidelines 

sentencing range to establish the term of imprisonment.‖ Id. 

(internal quotation marks and citation omitted).

C.

In this case, the parties agreed in the (C) plea 

agreement that Weatherspoon should receive a fixed sentence 

of 120 months‘ imprisonment. Thus, Weatherspoon falls into 

Justice Sotomayor‘s second category — where the 

defendant‘s agreement calls for a specific term of 

imprisonment. Confining our analysis solely to the four 

corners of the plea agreement, we conclude that the 

agreement does not ―make clear‖ that the foundation of his

sentence was the Guidelines, because the agreement does not 

in any way identify or rely on Weatherspoon‘s Guidelines

range. In fact, the agreement is silent as to his range. 

Nowhere in the agreement does it explicitly state the range

the parties relied upon in determining his sentence. Nor does 

the agreement provide the necessary ingredients to calculate 

it. The Guidelines range can only be derived from a 
17

determination of a defendant‘s criminal history category and 

his offense level. Here, we are missing at least one-half of 

the equation. There are simply no statements or assertions of 

fact in the agreement that allow us to determine

Weatherspoon‘s criminal history category. 

Because his agreement does not explicitly state his 

Guidelines range, or his offense level and criminal history 

category, and because Weatherspoon cannot otherwise

demonstrate that his criminal history category is ―evident 

from the agreement itself,‖ we cannot conclude that the 

agreement identifies a Guidelines range. Thus, his claim fails 

under Freeman and his motion was properly denied. See

United States v. Austin, 676 F.3d 924, 930 (9th Cir. 2012). 

Our approach finds support in the recent decisions of 

our sister circuits. In United States v. Rivera-Martínez, 665

F.3d 344 (1st Cir. 2011), the First Circuit held that the 

defendant was not entitled to a reduction in his sentence 

under § 3582(c)(2). The defendant had pled guilty pursuant 

to a (C) plea agreement that ―stipulated that the defendant 

was accountable for over 1.5 kilograms of cocaine base.‖ Id.

at 345. After walking through adjustments to the Guidelines, 

the agreement specified that the defendant faced a total 

offense level of 37 but failed to mention anything about the 

defendant‘s criminal history category or his Guidelines range. 

Id. at 346. The court held that the defendant was ineligible 

for relief because, without an identified criminal history 

category or range, ―[t]the integers needed to trigger the 

exception carved out by Justice Sotomayor [were] not 

present.‖ Id. at 349. The Ninth Circuit came to a similar 

conclusion in United States v. Austin, 676 F.3d 924 (9th Cir. 

2012). It found § 3582(c)(2) relief unavailable to [the 
18

defendant] because, even though the agreement noted his 

offense level, the ―plea agreement d[id] not contain any 

information about [the defendant‘s] criminal history 

category.‖ 676 F.3d at 930. ―Without this information, 

Justice Sotomayor‘s sentence calculation exercise in Freeman

. . . [was] impossible.‖ Id. at 929. Thus, § 3582(c)(2) relief 

was unavailable. Id. 

Indeed, ours is a clearer case than those before either 

the Ninth or First Circuits. In both of those cases the 

agreements explicitly stated the defendants‘ total offense 

level but failed to mention their criminal history category. 

Austin, F.3d at 928; Rivera- Martínez, 665 F.3d at 346. We 

lack even that information, as Weatherspoon‘s agreement 

makes no mention of his offense level. Determining his 

Guidelines range from his plea agreement thus requires a 

particularly high degree of speculation, which runs contrary 

to the requirement that the Guidelines range must be clear 

from the agreement‘s face. As such, his sentence was not 

―based on‖ the Guidelines and the District Court lacked 

jurisdiction to reduce his sentence under 18 U.S.C. 

§ 3582(c)(2). 

IV.

The District Court‘s denial of Weatherspoon‘s motion 

for a reduction in his sentence pursuant to 18 U.S.C. 

§ 3582(c)(2) will be affirmed.