Submitted: April 15, 2016
from United States District Court for the Southern District
of Iowa - Council Bluffs
LOKEN, BEAM, and SMITH, Circuit Judges.
Michael Bogdan appeals the denial of his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2).
"Section 3582(c)(2) provides that a court may reduce a
sentence of imprisonment 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." United States v.
Browne, 698 F.3d 1042, 1045 (8th Cir. 2012) (quotation
omitted), cert. denied, 133 S.Ct. 1616 (2013). The
district court ruled that Bogdan was ineligible for a
reduction because his sentence was based on a Federal Rule of
Criminal Procedure 11(c)(1)(C) plea agreement ("(C)
agreement"), not on a retroactively amended sentencing
guidelines range, as § 3582(c)(2) and U.S.S.G. §
1B1.10 require. Reviewing the determination of eligibility
for a § 3582(c)(2) sentence reduction de novo,
see Browne, 698 F.3d at 1045 (standard of review),
2010 (C) agreement, Bogdan pleaded guilty to conspiring to
distribute more than 500 grams of methamphetamine, stipulated
to a 240-month sentence, and acknowledged three prior felony
drug convictions. The government agreed to dismiss five
remaining counts in the indictment and to withdraw two of the
three prior convictions from the information it had filed
giving notice of prior convictions under 21 U.S.C. §
851. This reduced Bogdan's statutory mandatory minimum
sentence from life to twenty years (240 months) in prison.
See 21 U.S.C. § 841(b)(1)(A). Before
sentencing, the government moved to reduce the stipulated
240-month sentence based on Bodgan's substantial
assistance. See 18 U.S.C. § 3553(e). At
sentencing, the district court accepted the (C) agreement,
granted a 15% substantial assistance reduction, and sentenced
Bogdan to 204 months in prison.
2014, the Sentencing Commission adopted Amendment 782 to the
advisory guidelines, which retroactively reduced most drug
quantity base offense levels by two levels. See United
States v. Thomas, 775 F.3d 982, 982-83 (8th Cir. 2014).
In response, the United States Probation Office reported to
the district court that Bogdan appeared to be eligible for a
sentence reduction pursuant to § 3582(c)(2). The
district court denied a reduction, agreeing with the
government that Bogdan's sentence was based on his (C)
agreement, not on drug quantity, and therefore
"Amendment 782 has no impact on [his] sentence." On
appeal, Bogdan argues the district court erred in determining
that his (C) agreement sentence was not "based on"
an applicable guideline range that was lowered by Amendment
782. We disagree.
threshold question is whether, if we ignore the (C)
agreement, Bogdan would be eligible for a § 3582(c)(2)
reduction because Amendment 782 would have "the effect
of lowering [his] applicable guideline range." U.S.S.G.
§ 1B1.10(a)(2)(B). This question addresses the impact of
a statutory mandatory minimum sentence on § 3582(c)(2)
eligibility. In Golden v. United States, 709 F.3d
1229, 1231 (8th Cir.), cert. denied, 134 S.Ct. 639
(2013), where there was no (C) agreement, the defendant's
initial guidelines range was above the mandatory minimum
sentence, but the district court granted a substantial
assistance reduction and sentenced below the mandatory
minimum. We affirmed the denial of a further §
3582(c)(2) reduction, concluding that a subsequent guidelines
amendment cannot affect a statutory mandatory minimum
a conflict in the circuits on this issue, the Sentencing
Commission overruled Golden in Amendment 780 by
adding U.S.S.G. § 1B1.10(c). The Commission gave two
examples in Application Note 4. Both address situations in
which the initial guidelines range, as well as an applicable
mandatory minimum, apply and therefore affect the initial
sentencing determination -- where the range is above the
minimum, as in Golden, and where a mandatory minimum
becomes the bottom, but not the top, of the range. Here,
however, Bogdan asserts that the mandatory minimum was above
his entire guidelines range, a situation that would
seemingly be governed by Application Note 1(A) to U.S.S.G.
[A] reduction in the defendant's term of imprisonment is
not authorized under 18 U.S.C. § 3582(c)(2) . . . if . .
. an amendment listed in subsection (d) [such as Amendment
782] . . . does not have the effect of lowering the
defendant's applicable guideline range because of the
operation of another guideline or statutory provision
(e.g., a statutory mandatory minimum term of
inclined to agree with Fourth Circuit Chief Judge William
Traxler that, in this situation, the sentence would not be
based on a range the Sentencing Commission subsequently
lowered, "because it was not based on a sentencing
range in the first instance." United States v.
Williams, 808 F.3d 253, 264 (4th Cir. 2013) (Traxler,
C.J., dissenting). If that is correct, then our decision in
United States v. Moore, 734 F.3d 836, 838 (8th Cir.
2013), remains controlling precedent, and Bogdan is not
eligible for a § 3582(c)(2) reduction. But the
government has not argued this issue, so we will assume
without deciding that both Moore and Golden
were overruled by Amendment 780 and § 1B1.10(c).
Turning to the (C) agreement issue, in United States v.
Freeman, 131 S.Ct. 2685 (2011), a divided Supreme Court
resolved a conflict in the circuits concerning when a
sentence established by a court-approved (C) agreement is
"based on" a subsequently lowered sentencing range.
Justice Sotomayor's concurring opinion "is
controlling and represents the holding of the Court."
Browne, 698 F.3d at 1045. The opinion states that a
defendant whose sentence was imposed pursuant to a (C)
agreement is eligible for a § 3582(c)(2) reduction if
the (C) agreement "(1) 'calls for the defendant to
be sentenced within a particular Guidelines sentencing range,
' or (2) provides for a specific term of imprisonment and
'makes clear that the basis for the specified term is a
Guidelines sentencing range applicable to the offense to
which the defendant pleaded guilty.'" United
States v. Bailey, 820 F.3d 325, 329 (8th Cir. 2016),
quoting Freeman, 131 S.Ct. at 2697. "The focus
in determining eligibility for a § 3582(c)(2) sentence
reduction is on the contents of the written plea agreement
itself; the negotiations leading up to the final document do
not come into play." Browne, 698 F.3d at 1046.
argues he is eligible for a § 3582(c)(2) reduction
because his 240-month sentence "was clearly based on a
guidelines range" that was lowered by Amendment 782.
This requires a clear showing in the terms of the (C)
agreement that an applicable sentencing range was "the
basis for the specified term" of 240 months. After
reciting that Bogdan would be subject to a minimum statutory
term of life in prison without the (C) agreement because he
had two prior felony drug convictions, § 841(b)(1)(A),
the operative paragraph of the (C) agreement provided:
The parties stipulate that under the circumstances of this
case, taking into consideration [the § 3553(a)] factors;
in consideration of the Defendant's plea of guilty to the
major offense charged in the Superseding Indictment, the
Defendant's waiver of appeal and post-conviction review,
and the Defendant's waiver of a [§ 851] proceeding
regarding his prior felony drug convictions; and based on all
considerations contained in the plea agreement, the
appropriate sentence in this case is twenty (20) years
imprisonment, to be followed by a term of supervised release
of ten (10) years, and a $100.00 special assessment for the
Crime Victims Fund.
footnote explained that, "[t]o accomplish this
stipulated sentence, " the government would withdraw two
prior felony drug convictions from its § 851
information, leaving the third in effect. With only one prior
felony drug conviction, Bogdan's mandatory minimum
statutory sentence was 240 months, rather than life. §
841(b)(1)(A). Bogdan argues that the stipulated
240-month-sentence was "based on the applicable
guidelines range" because the PSR calculated his
original guidelines range as 188-235 ...