United States Court of Appeals

For the Eighth Circuit

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No. 12-1155

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Richard Lavern Hoskins

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Southern District of Iowa - Davenport

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 Submitted: September 17, 2012

Filed: October 15, 2012

[Unpublished]

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Before MELLOY, BEAM, and BENTON, Circuit Judges.

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PER CURIAM.

DefendantRichard Hoskins appeals the district court's denial of his motion for

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a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court rejected

The Honorable John A. Jarvey, United States District Judge for the Southern 1

District of Iowa.
Hoskins's claim that his sentence under a Federal Rule of Criminal Procedure

11(c)(1)(C) plea agreement was "based on" the crack-cocaine guidelines. We affirm.

I. 

Pursuant to a Rule 11(c)(1)(C) agreement, Hoskins pled guilty to conspiring

to manufacture, distribute, and possess with intent to distribute 50 grams or more of

cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Under

the agreement, Hoskins's sentence was "327 months imprisonment and a term of

supervised release for at least 10 years." 

For Hoskins to be eligible for a reduction in sentence, his sentence must be

"based on a sentencing range that has subsequently been lowered." 18 U.S.C. §

3582(c)(2). To determine whether the 327-month sentence was "based on" the crackcocaine guidelines, we must examine the various reasons for the sentence as stated

in the plea agreement. First, the plea agreement states that the "parties agree that this

sentence takes into account the cooperation already provided by the defendant." 

Next, the plea agreement states that the sentence is

based upon a consideration of the United States Sentencing Commission

Guidelines and the enhanced mandatory minimum that would usually

apply in this type of case and the statutes that apply to this offense and

federal criminal cases in general. The parties understand that the

provisions of the Sentencing Guidelines are advisory, not mandatory,

and the district court will consider them, along with the factors set forth

in Title 18, United StatesCode, Section 3553(a), in determining whether

to accept this plea agreement and impose the stipulated sentence. The

Sentencing Guidelines establish a sentencing range based upon factors

determined to be present in the case. . . .

The plea agreement then details various potentially applicable Guidelines

factors, including type and quantity of drugs involved, role in the offense, possession

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of a dangerous weapon, criminal history, acceptance of responsibility, and assistance

to the Government. The Government admitted that Hoskins provided substantial

assistance. Regarding every other listed Guidelines factor, the plea agreement states

that "the parties have reached no agreement" asto whether the factors are applicable.

The plea agreement also discusses Hoskins's prior drug convictions. While the

plea agreement makes no official finding on Hoskins's career-offender status under

United States Sentencing Guidelines § 4B1.1, the agreement does state that Hoskins

"admits that he has two prior felony drug convictions and may be a Career Offender

under § 4B1.1 of the Federal Sentencing Guidelines." Hoskins also admits that these

convictions placed him under 21 U.S.C. § 841(b)(1)(A), which mandates a life

sentence for individuals previously convicted of two drug felonies. However, under

the plea agreement, the Government agreed to consider only one of Hoskins's prior

felonies as part of sentencing.

The presentence investigation report (PSR) calculated a base offense level of

36 because Hoskins's offense involved at least 1.5 kilograms of cocaine base, but less

than 4.5 kilograms. After adjustments for role in the offense and acceptance of

responsibility, Hoskins's total offense level was 36, which produced a Guidelines

range of 324 to 405 months. The PSR found that Hoskins is a career offender, which

produced a Guidelines range of 262 to 327 months.

The district court approved the plea agreement and sentenced Hoskins to the 

327 months stipulated in the Rule 11(c)(1)(C) agreement. On December 16, 2011,

Hoskins filed a motion for reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). 

Hoskins asserted that he is eligible for a reduction pursuant to Freeman v. United

States, 131 S. Ct. 2685 (2011), because his sentence was "based on" a Guidelines

range subsequently lowered by the Sentencing Commission, the crack-cocaine

guidelines. SeeU.S. Sentencing Guidelines Manual, app. C, amend. 750 (2011). The

district court denied Hoskins's motion, finding that his sentence was not based on the

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crack-cocaine guidelines. The district court held that the stipulated sentence in the

agreement was not based on a Guidelines range, but instead on Hoskins's substantial

assistance to the Government and his desire to avoid a mandatory life sentence. 

Alternatively, the district court held that if the agreement was based on a Guidelines

range, it was based on the career-offender guidelines, which have not subsequently

been lowered. Hoskins now appeals.

II.

On appeal, Hoskins only argues that the district court incorrectly concluded

that his plea agreement was based on the career-offender guidelines and not the

crack-cocaine guidelines. "We review de novo the district court's authority to modify

a sentence under 18 U.S.C. § 3582(c)(2)." United States v. Tolliver, 570 F.3d 1062,

1065 (8th Cir. 2009).

In Freeman, the U.S. Supreme Court determined if, and when, a defendant who

entered into a Rule 11(c)(1)(C) agreement can move for a reduction in sentence under

18 U.S.C. § 3582(c)(2). 131 S. Ct. 2690. Four Justices held that Rule 11(c)(1)(C)

agreements are "based on" a Guidelines range and can be subject to a reduction in

sentence because district court judges are required to use the Guidelines as a range

when determining whether to accept an agreement. See id. at 2695. Justice

Sotomayor, who concurred in the judgment, affirmed the lower court on narrower

grounds. Id. Because Justice Sotomayor's opinion was decided on narrower grounds

than the plurality, we treat her opinion as the controlling authority. See, e.g., United

States v. Rubashkin, 655 F.3d 849, 865 (8th Cir. 2011) ("When there is no majority

opinion in a Supreme Court case, the holding of the [C]ourt may be viewed as that

position taken by those Members who concurred in the judgment on the narrowest

grounds." (citation and internal quotation marks omitted)).

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Justice Sotomayor held that the sentence in a Rule 11(c)(1)(C) agreement is

"'based on' the agreement itself." Freeman, 131 S. Ct. at 2696. According to Justice

Sotomayor, using the Guidelines as a "yardstick" when crafting a Rule 11(c)(1)(C)

agreement is not enough to make the agreement "based on" a particular Guidelines

sentencing range. Id. Instead, the Rule 11(c)(1)(C) agreement must "expressly use[]"

the subsequently lowered Guidelines range. Id. at 2698. Justice Sotomayor described

two circumstancesin which a sentence in a Rule 11(c)(1)(C) agreement is "based on"

a Guidelines range and eligible for a reduction in sentence: 1) the agreement states

that the defendant will be sentenced "within a particular Guidelines sentencing

range," or 2) the agreement calls for a "specific term of imprisonment — such as a

number of months — but also make[s] clear that the basis for the specified term is

a Guidelines sentencing range applicable to the offense to which the defendant

pleaded guilty." Id. at 2697 (emphasis added).

We agree with the district court's finding that Hoskins's plea agreement does

not expressly use the crack-cocaine guidelines. The agreement states that it "takes

into account" Hoskins cooperation. Further, the agreement refers to 21 U.S.C. §

841(b)(1)(A), which would mandate a life sentence for Hoskins without this Rule

11(c)(1)(C) agreement. While the agreement also discusses the Sentencing

Guidelines, these are only described as a factor, which does not "make clear" that the

basis for the sentence is the crack-cocaine guidelines. In fact, the crack-cocaine

guidelines range is not mentioned. Instead, Hoskins's 327-month sentence is at the

top of the career-offender range. Therefore, the plea agreement does not support

Hoskins's assertion that his 327-month sentence was based on a subsequently lowered

guideline range.

III.

For the foregoing reasons, we affirm the district court's judgment.

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