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 State s District Court For the Middle District of Pennsylvania ( D.C. No. 3:05

- cr

- 00176

- 013 )
District Judge: Honorable James M. Munley

_____________

Argued July 13 , 2012

_____________

Before: FUENTES

, HARDIMAN and ROTH

,

Circuit Judges2 (Opinion Filed: Octob er 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
Scranto n, PA 18503

Counsel for Appellee the United States of America3 _____________

OPINION OF THE COURT

_____________

FUENTES, Circuit Judge

.

For the second time, Kevin Weatherspoon seeks a reduction in his sentence for conspiring to distribute and

posse ss with intent to distribute over 50 grams of cocaine
base. In October 2006, h e 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 nevertheles s 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 Di strict 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 a nd 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
Guideline s 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 fa cts 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 ag reement also make s 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

perm its 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 recomme ndation 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 ba se to Weatherspoon ; and (2) attribute at least 500 grams but less than 1.5 kilograms o f 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 m ention 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 maxim um senten ce was 20 years‘ imprisonment

. 2

Weatherspoon pled guilty on October 23, 2006. At his change of plea hearing, the government summarized the plea agreement. T he prosecutor mentioned that Weatherspoon faced a maximum sentence of 20 years‘ impri sonment but did not mention what his applicable
Guideline s 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 menti on 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, t he 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 P ro bation O fficer , 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). Ult imately, t he P robation O fficer determined

t hat 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

. D ue to the statutor y maxim um of 20 years, however, the top of his G uideline s 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 G uideline s r ange. Rather, after brief argument, it accepted the recommend ed
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 seri ousness 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, t he amendment
was made retroa ctive. The amendment effectively reduced Weatherspoon‘s total offense level from 38 to 36, resulting in

a reduction of his G uideline s range from 235

– 240 months to
188

– 235 months.

Shortly after

, Weatherspoon filed his first motion for a
reduction in hi s 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 s ince his 120

- month sentence represented a
49% reducti on from the bottom of his t hen

- G uideline s 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. W e 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. Uni ted States

, --- U.S.

--- , 131
S. Ct. 2685 (2011). A plurality of the Cou rt held that defendants who ple d guilty to (C) plea agreement s are eligible
for relief under § 3582(c)(2) whenever the d istrict c ourt 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 agreement s 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. T he 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). B y contrast, when the district court determines that a defendant is eligible9 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 c ourt‘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), s ubject 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 G uideline s 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
sentencin g 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

cons idering 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 W e mus t determine

, as a threshold matter

, whether
Weath ersp oon was eligible for relief under the statute. O ur 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.
Thou gh 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 d istrict 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, a s 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
l imitation . . . as jurisdictional, court s should treat the11 restriction as nonjurisdictional in character.‖ Bowles v. Russell , 127 S. Ct. 2360, 2368 (2007) (quoting Arbaugh , 546
U.S. at 5 16 ) (quotation marks omitted)

.

Several of our s ister circuits have h eld 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 authori ze 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

, mean s 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 der ived from c ongressional silence does not sup port an inference that Con gress 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 second12 § 3582(c)(2) motion, w e 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 re duction in his sentence under § 3582(c)(2) when the defendant ha s been : (1) sentenced to a term of imprisonment based on a sentencing range that has
been subsequently lowere d by the Sentencing Commission;
and when such a reduction is (2) consistent with the applicable policy statements issue d by the Sentencing
Commissi on. 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
Guideline s range and that reducing his sentence would b e consistent with the Guideline s ‘ pol icy statements. Thus, the only issue before us is whether Weatherspoon‘s 120

- month
sentence was ―based on‖ his Guideline s range.

Our resolution of this issue is controlled by the
framework es tablished by Justice Sotomayor‘s concurrence in

Freeman v. Un ited 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 consider ed what a defendant ‘s sentence was ―based on‖ for pu rposes of 1813 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 th e s entencing 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 th e 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 purs uant 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 p lea agreement is eligible for § 3582(c)(2) relief only if the binding plea agreement itself expressly refers to and relies on a gu ideline sentencing range.‖). Any statements made by the District Court , th e 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 269 7

- 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 imp risonment14 the court imposes is  ̳based on‘ t he 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 agre ement itself, for purposes of § 3582(c)(2) the term of imprisonment imposed by the court in accor dance 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, t o be eligib le 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 id entifies a Guideline s 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 frame work, Justice Sotomayor
concluded that William Freeman fell into the second category15 of defendants and was eligible for relief. Freeman agreed to ple a d guilty to multiple cocaine base possession and distribution charges pursuant to a (C) plea agreement th at 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 Sente ncing 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 Fre e man 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 Guideline s and determined that with

a n offense level of 19 and a criminal hist ory category of IV,
Freeman‘s G uideline s range was 46 to 57 months. She then compared this range to the agreed

- upon 106

- month sentence. Accounting for the 60

- m onth mandator y minimum he faced
on one of his other charges, Freeman was left with 46 months,

e xactly the bottom end of his Guideline s range. Nothing in the agreement stated that the parties agreed to 46 months
because it was the bottom of his Guideline s range. However

, because the figures corresponded exactly, ―it [was] evident that Freeman‘s agr eement 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 Fre eman ‘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 w ould have been eligible under § 3582(c)(2).‖ Id. (citing
United St ates 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 , t he parties agreed in the (C) plea
agreement that Weatherspoon should receive a fixed sente nce of 120 months‘ imprisonment. T hus

, Weatherspoon falls into

J ustice 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 foundati on of his

sent ence was the Guidelines

, because the agreement does not in any way identify or rely on Weatherspoon‘s Guideline s
range. In fact, t he agreement is silent as to his range. Nowhere in the agreement do es it explicitly state the range the partie s relied upon in determining his sentence

. Nor does the agreement provide the necessary ingredients to calculate
it

. The Guideline s range can only be derived from a17 determination of a defendant‘s criminal history category and
his offense level. Here, w e are mis sing at least one

- half of the equation

. T here 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
Guideline s ra nge , 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 re duction 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,
th e a greement specified that the defendant faced a total offense level of 37 but failed to mention anything about the defendant‘s criminal history cate gory or his Guideline s range. Id. at 346. The court held that the defendant was ineligible
for relief because

, without an identifi ed criminal history category or range, ― [t] the integers needed to trigger the exception carved out by Justice Sotomayor [wer e] 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 [the18 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.

In deed, ours is a clearer case tha n those before either
the Ninth or First Circuits. In both of those cases the
agreement s explicitly state d the defendant s ‘ total offense
level but failed to mention their cri minal history category.

Austin , F.3d at 928; Rivera

- Martínez , 665 F.3d at 346. W e lack even that information

, as Weatherspoon‘s agreement
makes no mention of his offense level

. D etermining his
Guideline s range from his plea agreement thus requires a

pa rticularly high degree of speculation, which runs contrary

to the requirement that the Guideline s 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 h is sentence under 18 U.S.C. § 3582(c)(2).

IV.

The District Court‘s denial of Weatherspoon‘s motion
for a reduction in his s entence pursuant to 18 U.S.C. § 3582(c)(2) will be affirmed.