United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 1, 2012 Decided January 25, 2013

No. 10-3091

UNITED STATES OF AMERICA,

APPELLEE

v.

DAVID A. DUVALL, ALSO KNOWN AS TONE,

APPELLANT

Consolidated with 11-3114

Appeals from the United States District Court

for the District of Columbia

(No. 1:09-cr-00236-RCL-1)

Sylvia Royce, appointed by the court, argued the cause 

and filed the briefs for appellant. 

Stratton C. Strand, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Ronald C. 

Machen Jr., U.S. Attorney, and Elizabeth Trosman, 

Chrisellen R. Kolb, and Courtney Spivey, Assistant U.S. 

Attorneys.
2

Before: GARLAND and KAVANAUGH, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge

KAVANAUGH.

Opinion concurring in the judgment filed by Senior 

Circuit Judge WILLIAMS.

KAVANAUGH, Circuit Judge: From 2007 to 2009, 

David Duvall and others distributed large quantities of 

powder cocaine to mid-level drug dealers, who then cooked 

the cocaine into crack and sold it. In late 2009, Duvall was

arrested and indicted for conspiracy to distribute crack 

cocaine. 

Duvall pled guilty pursuant to a Rule 11(c)(1)(C) plea 

agreement. A Rule 11(c)(1)(C) plea agreement generally 

specifies an agreed-upon sentence or sentencing range. Here, 

the District Court accepted the plea agreement and sentenced 

Duvall to 14 years’ imprisonment, as the agreement required.

On appeal, Duvall primarily argues that he is entitled to a 

sentence reduction because the advisory U.S. Sentencing 

Guidelines governing crack-related offenses were 

retroactively lowered after he was sentenced. Federal law 

allows sentence reductions when a defendant “has been 

sentenced to a term of imprisonment based on a sentencing 

range that has subsequently been lowered by the Sentencing 

Commission.” 18 U.S.C. § 3582(c)(2). Here, however, 

Duvall’s sentence was not based on a Guidelines sentencing 

range, but was instead based on a plea agreement made under 

Federal Rule of Criminal Procedure 11(c)(1)(C) – that is, the

plea agreement that provided for his 14-year sentence. See 

Freeman v. United States, 131 S. Ct. 2685, 2695-700 (2011)

(opinion of Sotomayor, J.). In this case, therefore, the 
3

Sentencing Commission’s change to the crack Guidelines 

sentencing ranges does not make Duvall eligible for a 

sentence reduction under Section 3582(c)(2).

Duvall also raises a choice-of-counsel argument, which 

we find meritless.

We therefore affirm the judgment of the District Court.

I

From at least August 2007 until his arrest in September 

2009, David Duvall and his associates supplied large 

quantities of powder cocaine to mid-level street dealers in the 

Washington, D.C., area. The dealers then cooked the cocaine 

into crack and sold it. 

After Duvall was arrested and indicted, the Government 

notified the District Court that Duvall’s record contained two 

prior drug convictions. As a result, Duvall would face a 

mandatory life sentence if found guilty at trial. 

Duvall hired two attorneys to represent him. His 

attorneys negotiated with the Government, and the parties 

ultimately reached a plea agreement that avoided a possible

life sentence. The agreement expressly listed an agreed-upon 

sentence of 15 years’ imprisonment for conspiracy to 

distribute crack cocaine – far lower than the mandatory life 

sentence that Duvall would have received had he been 

convicted at trial. The plea agreement was negotiated 

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

which allows plea agreements conditioned on a specific 

sentence or sentencing range. If the district court accepts a 

Rule 11(c)(1)(C) plea agreement, the court must impose the 

sentence listed in the plea agreement. If the district court does 

not accept the plea agreement (for example, because of the 
4

court’s concerns about the agreed-upon sentence), the

defendant is free to withdraw his plea.

The District Court accepted Duvall’s guilty plea on April 

21, 2010. When Duvall entered his plea, the Court asked if he 

was “satisfied with the services” of his attorneys. Plea Entry 

Tr. 24, Apr. 21, 2010. Duvall answered “no,” but he said that 

he still wanted to proceed with the plea. Id. at 24, 30.

After the plea hearing but before sentencing, the District 

Court received a letter from Duvall raising concerns about the 

effectiveness of his counsel. Duvall wrote that his “Sixth 

Amendment Right” to “effective assistance of [counsel] in 

criminal prosecution” was being violated because, among 

other things, he was promised discovery and a private 

investigator, but received none, and one of his attorneys was 

on the verge of being disbarred. Duvall App. 30. 

To address Duvall’s concerns, the District Court quickly 

convened a status conference that took place on May 3, 2010. 

At the conference, Duvall reiterated his grievances and noted 

that, due to his mistrust of counsel, he didn’t “fully 

understand” if he was “facing life or not.” Status Conference 

Tr. 4, May 3, 2010. He wanted to plead guilty only if a 

conviction would truly trigger a mandatory life sentence. And 

he wasn’t sure he was truly facing a mandatory life sentence 

if convicted at trial. 

The Court asked if Duvall had “any money left to hire 

another lawyer.” Id. at 6. Duvall replied that he did not. 

Duvall’s attorneys withdrew, and the Court then appointed a 

new attorney to assist Duvall and to help Duvall determine 

whether he should withdraw his plea. 

The new counsel advised Duvall that he was, in fact, 

facing a mandatory life sentence if convicted at trial. The 
5

new counsel also convinced the Government to reduce 

Duvall’s agreed-upon sentence from 15 years to 14 years. 

At sentencing on September 10, 2010, after being invited 

to speak, Duvall expressed no objections to the plea 

agreement or to his new counsel. The District Court then 

sentenced Duvall to 14 years’ imprisonment. 

About a year later, effective November 1, 2011, the U.S. 

Sentencing Commission permanently reduced the sentencing 

levels for certain crack-related offenses. See U.S.

SENTENCING GUIDELINES MANUAL app. C, amend. 750 

(2011). In addition, the Commission made those reductions 

retroactive. Id. amend. 759. 

Based on those new Guidelines, Duvall filed a motion to 

reduce his sentence. The District Court denied the motion. 

The Court found that Duvall’s sentence was based on the Rule 

11(c)(1)(C) plea agreement, not on the now-reduced 

Guidelines sentencing range, as is required for a sentence 

reduction under 18 U.S.C. § 3582(c)(2). 

II

On appeal, Duvall contends that the District Court did not 

give him sufficient time to hire a new attorney of his choice, 

using his own means, between the May 2010 status 

conference – when Duvall jettisoned his original attorneys –

and the September 2010 sentencing. Because he did not raise 

this argument in the District Court, we review it only for plain 

error. The argument is meritless in light of (i) the four-month 

stretch between counsel’s withdrawal and sentencing – a 

period in which Duvall could have hired a different attorney if 

he had the desire and means to do so; and (ii) the District 

Court’s patient and careful handling of Duvall’s stated 

concerns with his initial attorneys, including the Court’s 
6

assignment of new counsel who assisted Duvall. Put simply, 

the District Court did not in any way prevent Duvall from 

hiring his counsel of choice. There was no error, much less 

plain error. 

III

Duvall next argues that he is entitled to a sentence 

reduction because of the Sentencing Commission’s recent 

revision to the crack-cocaine Guidelines. 

Federal law allows a defendant to receive a sentence 

reduction when he “has been sentenced to a term of 

imprisonment based on a sentencing range that has 

subsequently been lowered by the Sentencing Commission.” 

18 U.S.C. § 3582(c)(2). About a year after Duvall was 

sentenced for conspiracy to distribute crack cocaine, the U.S. 

Sentencing Commission amended the advisory Sentencing 

Guidelines governing crack-related offenses and gave those 

amendments retroactive effect. See U.S. SENTENCING 

GUIDELINES MANUAL app. C, amend. 750 (2011) (effective 

Nov. 1, 2011) (adjusting Guidelines); id., amend. 759 

(effective Nov. 1, 2011) (making Amendment 750 

retroactive). 

Under the statute, Duvall is eligible for a sentence 

reduction if his sentence was “based on” a Guidelines 

sentencing range that was lowered by the crack-related

amendments to the Sentencing Guidelines. To determine 

whether Duvall’s sentence was based on a Guidelines

sentencing range, we must analyze the role of Duvall’s Rule 

11(c)(1)(C) plea agreement in sentencing.

Rule 11(c)(1)(C) plea agreements allow the prosecutor 

and the defendant to agree on a determinate sentence or 

sentencing range, which is then submitted to the judge for 
7

approval. See Fed. R. Crim. P. 11(c)(1)(C); United States v. 

Berry, 618 F.3d 13, 16 (D.C. Cir. 2010). If the judge accepts 

the agreement with the agreed-upon sentence, the judge may 

not impose a different sentence without allowing the 

defendant to withdraw his plea. See Fed. R. Crim. P. 

11(c)(5)(B). Before a Rule 11(c)(1)(C) plea agreement is

approved, moreover, the judge must calculate the applicable 

Guidelines sentencing range and consider the Guidelines. See 

18 U.S.C. § 3553(a)(4); U.S. SENTENCING GUIDELINES 

MANUAL § 6.B1.2(c). 

In cases involving Rule 11(c)(1)(C) plea agreements, it 

can be difficult to determine what the sentence is “based on” 

for purposes of the Section 3582(c)(2) sentence reduction

provision. Section 3582(c)(2) applies only if the sentence was 

based on a Guidelines sentencing range. Is the sentence in a 

Rule 11(c)(1)(C) case based on the plea agreement? Is it 

based on a Guidelines sentencing range? On both? 

The Supreme Court recently addressed that question in 

Freeman v. United States, 131 S. Ct. 2685 (2011). Freeman

was a splintered decision: Four Justices concluded that

sentences under Rule 11(c)(1)(C) plea agreements are “based 

on” the Guidelines sentencing range calculated by the judge; 

four Justices concluded that the sentences are “based on” the 

plea agreement, and not “based on” a Guidelines sentencing 

range; and Justice Sotomayor concluded that the sentences are

“based on” the plea agreement, but in a specific subset of 

cases are also “based on” a Guidelines sentencing range. See 

id.

For purposes of this appeal, both parties agree that Justice 

Sotomayor’s opinion controls our analysis in light of the 

Supreme Court’s decision in Marks v. United States, 430 U.S. 
8

188, 193 (1977).

1 Accordingly, we do not further address that 

question.

Justice Sotomayor’s opinion sets forth two possible ways

in which a Rule 11(c)(1)(C) plea agreement may be “based 

on” a Guidelines sentencing range, thereby making the 

defendant eligible for a sentence reduction under Section

3582(c)(2) if the relevant Guidelines sentencing range is later 

amended. 

First, the plea agreement may not provide for a specific 

term of imprisonment but instead may explicitly provide “for 

the defendant to be sentenced within a particular Guidelines 

sentencing range.” Freeman, 131 S. Ct. at 2697 (opinion of 

Sotomayor, J.). In that situation, the defendant has been

sentenced “based on” the specified Guidelines sentencing 

range for purposes of Section 3582(c)(2) and thus may be 

eligible for a sentence reduction if the relevant Guidelines

sentencing range is later amended. 

 1 The Government notes in its brief that every court of appeals 

to address the issue has found Justice Sotomayor’s Freeman 

opinion controlling under the principle of Marks v. United States. 

430 U.S. 188 (1977). Marks stated that “the holding of the Court 

may be viewed as that position taken by those Members who 

concurred in the judgment[]” based on the “narrowest grounds.” Id.

at 193 (internal quotation marks omitted). See United States v. 

Rivera-Martínez, 665 F.3d 344, 347-48 (1st Cir. 2011); United 

States v. White, 429 Fed. App’x 43, 47 (2d Cir. 2011) 

(unpublished); United States v. Thompson, 682 F.3d 285, 289-90 

(3d Cir. 2012); United States v. Brown, 653 F.3d 337, 340 & n.1 

(4th Cir. 2011); United States v. Smith, 658 F.3d 608, 611 (6th Cir. 

2011); United States v. Dixon, 687 F.3d 356, 359-60 (7th Cir. 

2012); United States v. Browne, 698 F.3d 1042, 1045 (8th Cir. 

2012); United States v. Austin, 676 F.3d 924, 927 (9th Cir. 2012); 

United States v. Lawson, 686 F.3d 1317, 1321 n.2 (11th Cir. 2012).
9

Second, the plea agreement may provide for a specific 

term of imprisonment but may still “make clear that the basis 

for the specified term is a Guidelines sentencing range 

applicable to the offense to which the defendant pleaded 

guilty.” Id. To fall into this category, the Guidelines 

sentencing range must be “evident from the agreement itself.” 

Id. at 2697-98. As we read Justice Sotomayor’s analysis in

Freeman, that situation may arise when the plea agreement 

(i) expressly specifies the Guidelines sentencing range and

makes clear that the Guidelines sentencing range was used by 

the parties to determine the agreed-upon sentence, id. at 2698,

or (ii) expressly specifies the Guidelines offense level and 

criminal history category and makes clear that the

corresponding Guidelines sentencing range was used by the 

parties to determine the agreed-upon sentence, id. at 2699-

700. In those circumstances, it can be “evident from the 

agreement itself” that the sentence is based on a Guidelines 

sentencing range for purposes of Section 3582(c)(2). Id. at 

2698. Other courts of appeals have similarly interpreted 

Freeman. See United States v. Austin, 676 F.3d 924, 930 (9th 

Cir. 2012); United States v. Rivera-Martínez, 665 F.3d 344, 

349 (1st Cir. 2011); United States v. Brown, 653 F.3d 337, 

340 (4th Cir. 2011).

In applying Justice Sotomayor’s opinion, there of course 

may be some close calls at the margins.

2

 But this case is not a 

 2 The Freeman analysis may prove difficult in some cases, but 

it is likely to be a relatively short-lived issue for the courts. At oral 

argument, the Assistant U.S. Attorney indicated that the U.S. 

Attorney’s Office now drafts Rule 11(c)(1)(C) plea agreements 

with an eye to avoiding later litigation on the Freeman issue. 

Doing so is consistent with Justice Sotomayor’s suggestion that 

parties draft future plea agreements to avoid this problem. See

Freeman, 131 S. Ct. at 2699. 
10

close call. Here, unlike in Freeman itself, Duvall’s plea

agreement neither expressly specified the Guidelines 

sentencing range nor expressly specified the offense level or 

criminal history category. The plea agreement simply stated

that the parties “agree that 180 months is the appropriate 

sentence for this offense.” Therefore, we do not even get to 

the separate question of whether the agreement made clear 

that the specified Guidelines range was used by the parties to 

determine the agreed-upon sentence. Applying Justice 

Sotomayor’s analysis in Freeman, we conclude that Duvall’s 

sentence was not based on a Guidelines sentencing range and 

that he therefore is not eligible for a sentence reduction under 

Section 3582(c)(2). 

* * *

We affirm the judgment of the District Court.

So ordered. 
WILLIAMS, Senior Circuit Judge, concurring in the 

judgment: 

I agree with the judgment of the court affirming the 

district court’s denial of Duvall’s motion to reduce his 

sentence under 18 U.S.C. § 3582(c)(2). I write separately to 

explain my disagreement with the proposition, agreed on by 

the parties and (quite understandably) accepted by my 

colleagues, that Justice Sotomayor’s opinion in Freeman v. 

United States, 131 S. Ct. 2685, 2695-700 (2011), controls the 

outcome in this and other cases involving the application of 

§ 3582(c)(2) to pleas under Rule 11(c)(1)(C) of the Federal 

Rules of Criminal Procedure. (As today’s opinion points out, 

every appellate court to have considered the question to date 

has agreed on that proposition. Maj. Op. at 8.) Once we 

reject the view that that opinion is controlling, it remains open 

to us to make an independent interpretation of § 3582(c)(2)’s 

“based on” language, and I believe such an interpretation 

would, without more, call for reversal of the district court. 

Our decision in United States v. Berry, 618 F.3d 13 (D.C. 

Cir. 2010), is something “more.” It appears to compel the 

same judgment as the court here reaches. I believe the court 

en banc should reconsider the holding in Berry. 

* * * 

 1. Reaching the issue of identifying any controlling 

Supreme Court authority. While our normal practice is to 

“decide only questions presented by the parties,” Greenlaw v. 

United States, 554 U.S. 237, 244 (2008) (internal citation 

omitted), we are “not limited to the particular legal theories 

advanced by the parties,” and we have discretion “to identify 

and apply the proper construction of governing law.” U.S. 
2

Nat’l Bank of Or. v. Indep. Ins. Agents, 508 U.S. 439, 446 

(1993) (internal citation omitted). There is good reason to 

exercise this discretion here. I do not believe United States 

courts should close the door on a man’s chance at release from 

prison on the basis of a framework (1) that eight out of nine 

justices of the Supreme Court have squarely rejected, and (2) 

that depends on the talismanic presence of special words in a 

plea agreement. Until Freeman, parties to Rule 11(c)(1)(C) 

agreements had no special reason to include these words, so 

their inclusion is completely random in relation to Congress’s 

purposes in enacting § 3582. The peculiarity of keeping 

prison doors closed on such a basis justifies exercising our 

discretion to consider the question the parties appear to take 

for granted: whether Justice Sotomayor’s opinion is indeed 

binding upon us. 

 2. Ascertaining a controlling viewpoint in splintered 

Supreme Court opinions. The leading Supreme Court decision 

on determining when two or more Supreme Court opinions 

can be patched together to create a controlling principle is 

Marks v. United States, 430 U.S. 188 (1977). Given our 

thorough interpretation of Marks in King v. Palmer, 950 F.2d 

771, 781 (D.C. Cir. 1991), I will jump directly to King, 

incorporating its references back to Marks. I should explain 

first that King appears susceptible of two readings, a “strong” 

one (yielding a relatively narrow view of when such patching 

is correct), and a “weak” one (yielding a somewhat broader 

view). Under both, the opinion of Justice Sotomayor is not 

controlling. I start with the strong reading, which appears to 

me to be correct. 

 The question in King was whether there was sufficient 

common ground between the plurality opinion and that of 

Justice O’Connor in Pennsylvania v. Delaware Valley 

Citizens’ Council for Clean Air, 483 U.S. 711 (1987) 

(“Delaware Valley II”), to control our decision about when if 
3

ever counsel should receive a contingency enhancement under 

a fee-shifting statute, in addition to the “lodestar” award 

computed by multiplying hours worked by a reasonable 

hourly fee. Four justices believed that contingency 

enhancements “should be reserved for exceptional cases,” id. 

at 728 (plurality opinion); four were at virtually the opposite 

end of the spectrum, believing that these enhancements would 

be “appropriate in most circumstances,” id. at 741 (Blackmun, 

J., dissenting). The ninth, Justice O’Connor, agreed with the 

dissenters that “Congress did not intend to foreclose 

consideration of contingency in setting a reasonable fee.” Id. 

at 731. Nonetheless, she joined the plurality in reversing the 

enhancement in Delaware II and specifically endorsed the 

plurality’s conclusion “that no enhancement for risk is 

appropriate unless the applicant can establish that without an 

adjustment for risk the prevailing party ‘would have faced 

substantial difficulties in finding counsel in the local or other 

relevant market.’” Id. (quoting plurality opinion at 733). 

Despite their common endorsement of the “substantial 

difficulties” test, however, we noted in King the challenges 

involved in finding common content between the plurality and 

Justice O’Connor under that test—“that is, determining just 

how ‘substantial’ the ‘difficulties’ in attracting counsel have 

to be, and how they must be proven.” King, 950 F.2d at 777. 

 In attempting to answer the last question, we reviewed 

cases involving the patching of fragmented opinions. The 

most prominent of these is Marks, which considered the 

earlier decision of A Book Named “John Cleland’s Memoirs 

of a Woman of Pleasure” v. Attorney General of 

Massachusetts, 383 U.S. 413 (1966) (“Memoirs”). There a 

plurality of three justices took the view that a book could be 

banned as obscenity if it is “utterly without redeeming social 

value,” whereas Justices Black and Douglas would have held 

categorically that obscenity could never be banned. 

Accordingly, “[b]ecause Justices Black and Douglas had to 
4

agree, as a logical consequence of their own position, with the 

plurality’s view that anything with redeeming social value is 

not obscene, the plurality of three in effect spoke for five 

justices: Marks’ ‘narrowest grounds’ approach yielded a 

logical result.” King, 950 F.2d at 781 (emphasis added). By 

contrast, Delaware Valley II was “not a case in which the 

concurrence posits a narrow test to which the plurality must 

necessarily agree as a logical consequence of its own, 

broader position.” Id. at 782 (emphasis added). 

 Applying this principle to the problem before us in King, 

we noted first that the question of the availability of a fee 

enhancement (the focus of the plurality opinion) was 

inseparable from the question of how to calculate such an 

enhancement (the virtually exclusive focus of Justice 

O’Connor’s opinion). Id. at 783. And here we found a gap 

between Justice O’Connor and the plurality: Justice 

O’Connor’s opinion focused solely on contingency 

enhancements payable in the market, with no ceiling, while 

the plurality analyzed the claim’s risk of not prevailing at trial 

and imposed a ceiling of one-third of the lodestar. Id. We 

concluded, “Because [Justice O’Connor’s] answer to [the] 

question [of how to calculate the enhancement] is so clearly at 

odds with that of the plurality, . . . we are left without a 

controlling opinion . . . .” Id. 

 Returning to the general principle, we drew a contrast 

with the situation in Arizona v. Fulminante, 499 U.S. 279 

(1991), which used two distinct majorities to arrive at a 

judgment, so that both constituted binding law. That, we said, 

was quite different from the situation “the Marks

methodology addresses, where there is no explicit majority 

agreement on all the analytically necessary portions of a 

Supreme Court opinion.” King, 950 F.2d at 784 (emphasis 

added). Obviously we saw our task as resolving whether one 
5

could find implicit “majority agreement on all the analytically 

necessary portions of a Supreme Court opinion.” 

 It seems quite obvious that there is no overlap at all 

between “the analytically necessary portions” of the 

plurality’s opinion in Freeman (which looks to the sentencing 

judge’s explicit or implicit reasoning) and that of Justice 

Sotomayor (which looks to the presence or absence of specific 

phrases in the plea agreement). Thus on the strong view of 

King Justice Sotomayor’s view cannot control in this circuit. 

 I now turn to the “weak” reading of King. The basis for 

such a reading would be disregard of the language cited above 

requiring agreement by the plurality with the other opinion “as 

a logical consequence of its own, broader position.” I can see 

no basis for such disregard, but it is conceivable that others 

employing legal reasoning could find a route to such a view. 

This weak reading would seem to require only that as a purely 

factual matter cases producing an outcome in favor of the 

defendant under Justice Sotomayor’s opinion would 

invariably yield an outcome in his favor under the plurality 

view. Even under that view, however, the conditions for 

coalescing the opinions of the Freeman plurality and of 

Justice Sotomayor are missing. 

In Freeman a four-justice plurality believed that 

§ 3581(c)(2) permitted a “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 determine the sentence or to approve the agreement.” 

Freeman, 131 S. Ct. at 2692-93 (plurality opinion). Four 

justices dissented, preferring a categorical bar for any 

§ 3582(c)(2) reduction following a Rule 11(c)(1)(C) 

agreement, arguing that the sentence was “based on” the plea, 

not on the Guidelines at all. Id. at 2701 (Roberts, C.J., 

dissenting). Justice Sotomayor, writing alone, rejected the 
6

dissent’s categorical rule, but regarded the statute as allowing 

a district court to revise a sentence when “a [Rule 11(c)(1)(C)] 

agreement expressly uses a Guidelines sentencing range 

applicable to the charged offense to establish the term of 

imprisonment,” id. at 2695, or when “a plea agreement [that] 

provide[s] for a specific term of imprisonment—such as a 

number of months—[] 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 

2697-98. 

 While a coincidence of result will doubtless be common 

between Justice Sotomayor’s opinion and the plurality’s, 

Justice Sotomayor’s opinion is not a subset of the plurality’s 

in Freeman. Below I describe a case where Justice 

Sotomayor would grant relief but the plurality would deny it. 

Suppose a defendant pleads guilty to distributing five 

kilograms of cocaine base (before adoption in 2008 of 

Amendment 706, reducing the penalties for crack). This puts 

his Guidelines base offense level at 36. See USSG § 2D1.1(c) 

(drug table at (2)) (as amended in 2007). Since he has 

accepted responsibility, he is entitled to a 3-point reduction of 

his offense level, to 33. See id. § 3E1.1. Suppose also that the 

defendant has been in and out of prison over the past 15 years 

as a result of five prior convictions for non-drug offenses, 

each resulting in imprisonment terms of more than 13 months. 

Suppose finally that two of these prior offenses were felony 

crimes of violence. This criminal history earns our 

hypothetical defendant 15 criminal history points, producing a 

criminal history category of VI. See id. § 4A1.1, § 5A (table). 

According to the Sentencing Table, an offense level of 33 and 

a criminal history level of VI yield a sentencing range of 235-

293 months. All this is duly recorded in the plea agreement, 

which further agrees on a sentence of 262 months and makes 
7

no mention of the career offender provisions of the 

Guidelines. 

Suppose now that the sentencing judge, in reviewing the 

plea agreement under Rule 11(c)(1)(C), disagrees with its 

approach. The judge reasons that the defendant’s two prior 

convictions for crimes of violence make the defendant a 

career offender, per USSG § 4B1.1(a). Since the maximum 

statutory sentence for the defendant’s crime is life, see 21 

U.S.C § 841(b)(1)(A)(iii), the judge determines that the 

defendant’s offense level is 37, and his criminal history 

category is VI (as it is for all career offenders under the 

Guidelines). See USSG § 4B1.1(b). The judge then 

ascertains that the defendant is entitled to a 3-point reduction 

for acceptance of guilt, which provides a final offense level of 

34. Id. The judge consults the table and determines that, 

contra the plea agreement, the defendant’s sentencing range 

should be 262-327 months. 

The sentencing judge could, at that point, reject the plea 

agreement because of its mode of calculation. But suppose he 

accepts it, as the agreed-on 262 months is within what he 

regards as the correct range. By doing so, he has imposed a 

sentence identical to that in the plea agreement, but seemingly 

based on a Guideline range that (as it turns out) was not 

lowered by Amendment 706 (or any other retroactive 

amendment). By contrast, the sentence in the plea agreement 

is explicitly traceable to a Guideline range that Amendment 

706 lowered. 

For this hypothetical, Justice Sotomayor would accept a 

§ 3582(c) reduction: the agreement’s sentence includes the 

magic words of a range and points directly to a subsequently 

amended Guideline. The generally more expansive plurality 

opinion, however, would apparently reject the reduction: the 

Guideline altered by Amendment 706 would not have been “a 
8

relevant part of the analytic framework the judge used to 

determine the sentence or to approve the agreement.” 

Freeman, 131 S. Ct. at 2692-93 (plurality opinion). 

Cases such as this will occur any time the parties to a 

Rule 11(c)(1)(C) agreement agree to ignore some aspect of an 

alleged offense that would trigger a mandatory minimum or a 

mandatory enhancement that the sentencing judge deems 

inappropriate to ignore, but the agreement yields an ultimate 

sentence that the judge regards as otherwise “sufficient, but 

not greater than necessary,” to achieve the goals of sentencing 

as required by 18 U.S.C. § 3553(a). 

3. “[B]ased on a sentencing range that has subsequently 

been lowered by the Sentencing Commission” interpreted

without controlling Supreme Court authority. In the absence 

of a binding Supreme Court opinion, we must determine when 

a sentence is “based on a sentencing range that has 

subsequently been lowered by the Sentencing Commission.” 

18 U.S.C. § 3582(c)(2). I think it fair to say that Congress’s 

concern in the choice of these words was not with “based on” 

but with the succeeding phrase—“a sentencing range that has 

subsequently been lowered by the Sentencing Commission.” 

It wanted to make clear that the district court’s sentence 

reduction authority was not to be all-purpose, but linked to a 

range that an amendment had “lowered.” Bearing that in 

mind, I would give the statutory language a natural reading, 

roughly tracking (but perhaps broader than) the Freeman 

plurality’s view. At least as a first approximation, it would 

embrace a sentence pursuant to a Rule 11(c)(1)(C) plea 

agreement if (1) the plea is to a charge governed by a 

Guideline subsequently amended pursuant to 28 U.S.C. 

§ 994(o); and (2) there is no trumping factor incorporated into 

the sentence (or the agreed-upon range, if the plea proceeds by 

that device, see Rule 11(c)(1)(C)), such as a mandatory 

minimum for use of weapons or career offender status, which 
9

trumping factor remains unaltered by the Guidelines 

amendment in question. Of course in a case where a sentence 

segment meets these criteria but is supplemented by a separate 

add-on for time that cannot run concurrently, see, e.g., 18 

U.S.C. § 924(c)(1)(A), § 3582(c)(2) would apply to the 

segment meeting the criteria. 

Such analysis corresponds with ordinary uses of the 

phrase “based on.” A sentence under these circumstances is 

“based on” the Guidelines just as West Side Story is based on 

Romeo & Juliet: the basis is not exclusive, but significant 

enough to justify use of the phrase by ordinary Englishspeaking persons. 

Passing this test, of course, would only get the defendant 

in the door of § 3582(c)(2); what happens next lies within the 

sound discretion of the district court. Consider for example a 

judge whose regular practice, for expressly stated reasons, has 

been to replace the once-prevailing crack-to-powder ratio of 

100-to-1 with a 1-to-1 ratio. United States v. Lewis, 623 F. 

Supp. 2d 42, 45-47 (D.D.C. 2009). Where the Guideline 

affecting the defendant’s sentence has simply been changed to 

a closer approximation of crack-powder identity (as has been 

typically true in the recent run of cases), it would make no 

sense for such a judge to make a further reduction. (Nor, of 

course, would it make sense for another judge who for some 

reason must rule on a proposed § 3582(c)(2) modification of a 

sentence imposed by such a judge.) 

4. The impact of our decision in Berry. Duvall’s 

agreement would pass the test formulated above. But for 

another problem, I would therefore reverse and remand the 

district court’s denial of the motion for reduction of his 

sentence (at least I would do so unless briefing on the matters 

discussed above, which I would have urged my colleagues to 

order, had persuaded me to modify the above views). Our 
10

precedent in United States v. Berry, 618 F.3d 13 (D.C. Cir. 

2010), however, directs the opposite result. There the 

defendant sought to gain the benefit of a § 3582(c)(2) 

reduction after a Rule 11(c)(1)(C) plea to a crack charge. The 

plea agreement stipulated a sentence of 168 months, although 

Berry was potentially subject to career offender status and a 

concomitant range of 262 to 327 months. Berry, 618 F.3d at 

15. Berry argued (in the proceeding under § 3582(c)(2)) that 

the sentence imposed reflected agreement on a sentencing 

range of 168 to 210 months, which followed from the crack 

quantity and other aspects of the offense—absent any role for 

career offender status. Id. at 16. The agreement itself did not 

explain how the parties had reached the term of 168 months, 

id., but the inference that they elected to disregard the 

potential career offender penalties is inescapable. 

Putting aside the “based on” language at issue here and in 

Berry itself, the Berry panel turned to other language in 

§ 3582(c)(2) which neither party had briefed—the clause 

allowing a reduction only if it “is consistent with applicable 

policy statements issued by the Sentencing Commission.” It 

then turned to USSG § 1B1.10(a)(2)(B), which says that a 

sentence reduction under § 3582(c)(2) is not authorized if the 

amendment “does not have the effect of lowering the 

defendant’s applicable guideline range.” This would seem to 

me merely a reformulation of the obvious meaning of 

§ 3582(c)(2)—that the amended Guideline in question must 

have been the source of the original sentence range. Without 

considering that possibility, the court held that the “applicable 

guideline range” under § 1B1.10(a)(2)(B) was the careeroffender range, which was potentially applicable but which 

the government had never asked the sentencing court to apply. 

618 F.3d at 17-18. 

The gist of Berry is then as follows: Notwithstanding that 

the government and defendant had agreed on a sentence that 
11

in no way relied on the career-offender provisions, and that 

the sentencing court had accepted that agreement, and that the 

parties had never litigated the applicability of the careeroffender provisions, the court of appeals brought those 

provisions into the case; the effect was to prevent the grant of 

a § 3582(c)(2) motion directed to a sentence that appeared to 

have been based on a match-up between a specific lateramended Guideline and the facts of the offense (apart from 

facts bringing the career-offender provisions into play, which 

the parties had agreed not to apply). I can find no warrant for 

that in the statute or the Guidelines. 

The Berry approach seems, moreover, to contradict the 

rule that a § 3582(c)(2) proceeding is not an occasion to 

correct sentencing errors unrelated to the amended guideline. 

Dillon v. United States, 130 S. Ct. 2683, 2693-94 (2010). It 

cannot be that Dillon applies only to thwart corrections that 

favor the defendant, but allows retroactive reconfigurations of 

the sentence actually imposed, to imagine a sentencing that 

might have occurred, a whole alternative universe, in order to 

deny relief for a defendant whose sentence was, by 

hypothesis, “based on” a retroactively amended guideline.1

 

Nevertheless, Berry is the law of the circuit. Because 

Duvall was potentially subject to a mandatory life sentence, 

his case is indistinguishable from Berry’s. We must therefore 

affirm the district court’s denial of his motion for a reduced 

sentence, and do likewise in future cases unless and until the 

court en banc should see fit to overturn Berry. 

 1

 Unless the defendant satisfied the “based on” requirement, 

or the court assumed in his favor that he did so, he would lose 

without regard to the provisions invoked by Berry.