United States v. Tyrone Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-30133

Plaintiff-Appellee,

D.C. No.

v. 3:04-cr-05350-RBL-2

TYRONE DAVIS,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted En Banc September 10, 2015

San Francisco, California

Filed June 13, 2016

Before: Sidney R. Thomas, Chief Judge and William A.

Fletcher, Richard A. Paez, Richard C. Tallman, Johnnie B.

Rawlinson, Consuelo M. Callahan, Carlos T. Bea, Morgan

Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz and

John B. Owens, Circuit Judges.

Opinion by Judge Paez;

Concurrence by Judge Christen;

Dissent by Judge Bea

2 UNITED STATES V. DAVIS

SUMMARY*

Criminal Law

The en banc court reversed the district court’s

determination that Tyrone Davis is not eligible for a sentence

reduction under 18 U.S.C. § 3582(c)(2), and remanded for

reconsideration of whether Davis should receive a reduction

under § 3582(c)(2) and the Guidelines’ related policy

statements.

Revisiting Freeman v. United States, 564 U.S. 522

(2011), which addressed whether a defendant sentenced

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

plea agreement is eligible for a sentence reduction under

§ 3582(c)(2), and this court’s application of Marks v. United

States, 430 U.S. 188 (1977), to fractured Supreme Court

opinions, the en banc court held that where no rationale

common to a majority of the Justices can be identified, only

the result is binding. In so holding, the en banc court joined

the D.C. Circuit, which concluded that Freeman lacks a

controlling opinion “because the plurality and concurring

opinions do not share common reasoning whereby one

analysis is a logical subset of the other.” Bound only by

Freeman’s specific result, the en banc court adopted the

plurality opinion’s approach, which holds that “[e]ven when

a defendant enters into an 11(c)(1)(C) agreement, the judge’s

decision to accept the plea and impose the recommended

sentence is likely to be based on the Guidelines; and when it

is, the defendant should be eligible to seek § 3582(c)(2)

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. DAVIS 3

relief.” Adopting and applying the plurality approach, the en

banc court overruled United States v. Austin, 676 F.3d 924

(9th Cir. 2012), which held that Justice Sotomayor’s

concurring opinion was controlling, and concluded that Davis

is eligible to seek a sentence reduction under § 3582(c)(2).

Judge Christen, joined by Chief Judge Thomas, and

Judges Tallman, Nguyen, and Hurwitz, concurred. She

joined in the en banc court’s holding as far as it goes, but

disagreed with the majority’s assumption that a court might

be free to take dissenting opinions into account in future

Marks analyses of what binding rule, if any, emerges from a

fractured Supreme Court decision.

Dissenting, Judge Bea wrote that the majority’s “logical

subset” requirement finds no support in Marks or any other

Supreme Court precedent; that even if there were such a

requirement, the majority misreads Justice Kennedy’s

plurality opinion to the extent it concludes that there are

circumstances in which Justice Sotomayor would permit

sentence modification but the Kennedy plurality would not;

and that the majority’s adoption of the Kennedy plurality’s

approach violates stare decisis because five Justices in

Freeman agreed that a court looks to the plea agreement itself

to determine whether a plea was “based on” since-modified

sentencing Guidelines.

4 UNITED STATES V. DAVIS

COUNSEL

Nathaniel Garrett (argued), San Francisco, California; Anna

M. Tolin, Kirkland, Washington, for Defendant-Appellant.

Michael S. Morgan (argued), Assistant United States

Attorney; Jenny A. Durkan, United States Attorney; United

States Attorney’s Office, Western District of Washington,

Seattle, Washington; for Plaintiff-Appellee.

Nancy L. Talner, ACLU-WA Foundation, Seattle,

Washington; Michael Filipovic, Federal Public Defender for

the Western District of Washington, Seattle, Washington;

Theresa M. DeMonte and Andrew R.W. Hughes, Calfo

Harrigan Leyh & Eakes LLP, Seattle, Washington; Suzanne

Lee Elliott, Co-Chair, WACDL Amicus Committee, Seattle,

Washington; for Amici Curiae ACLU-WA, Federal Public

Defender for the Western District of Washington, and

WACDL.

UNITED STATES V. DAVIS 5

OPINION

PAEZ, Circuit Judge:

In this case, we must consider how to interpret the

Supreme Court’s fractured opinion in Freeman v. United

States, which addressed whether a defendant sentenced

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

plea agreement is eligible for a sentence reduction under

18 U.S.C. § 3582(c)(2). 564 U.S. 522 (2011). Although a

majority of the Court held that in such cases defendants

remain eligible for relief under § 3582(c)(2), the plurality and

concurring opinions did not agree on a single rationale.

Citing Marks v. United States, 430 U.S. 188 (1977), which

provides guidance on interpreting fractured Supreme Court

opinions, we held in United States v. Austin that Justice

Sotomayor’s concurring opinion was controlling, as it

represented the narrowest grounds on which a majority of the

justices agreed. See 676 F.3d 924 (9th Cir. 2012). Applying

Justice Sotomayor’s approach, the district court denied

Appellant Tyrone Davis’s (“Davis”) motion for a sentence

reduction, ruling that his sentence was based on a Rule

11(c)(1)(C) plea agreement and not a “sentencing range that

has subsequently been lowered by the Sentencing

Commission” as required by § 3582(c)(2).

Revisiting Freeman and our application of Marks to

fractured Supreme Court opinions, we hold that where we can

identify no rationale common to a majority of the Justices, we

are bound only by the result. In so holding, we join the D.C.

Circuit, which concluded that Freeman lacks a controlling

opinion “because the plurality and concurring opinions do not

share common reasoning whereby one analysis is a logical

subset of the other.” United States v. Epps, 707 F.3d 337,

6 UNITED STATES V. DAVIS

350 (D.C. Cir. 2013) (internal quotation marks and citation

omitted). Bound only by Freeman’s specific result, the D.C.

Circuit adopted the plurality opinion’s approach, which holds

that “[e]ven when a defendant enters into an 11(c)(1)(C)

agreement, the judge’s decision to accept the plea and impose

the recommended sentence is likely to be based on the

Guidelines; and when it is, the defendant should be eligible

to seek § 3582(c)(2) relief.” Freeman, 564 U.S. at 534

(plurality opinion). We also adopt this approach and overrule

Austin. Applying the plurality approach, we conclude that

Davis is eligible to seek a sentence reduction under

§ 3582(c)(2). We therefore reverse the district court’s denial

of Davis’s motion and remand for a determination of whether

Davis should receive a reduction in his sentence.

I.

A.

In 2005, pursuant to a plea agreement entered into under

Rule 11(c)(1)(C), Davis pled guilty to a series of counts

related to distribution of cocaine base, or “crack cocaine.”1

In his plea agreement, Davis admitted his offense conduct

involved at least 170.5 grams of crack cocaine. Given the

quantity of crack cocaine for which Davis accepted direct

responsibility, the parties agreed that Davis’s base offense

level was 34 under United States Sentencing Guidelines

1

Davis pled guilty to the following offenses alleged in the Third

Superseding Indictment: conspiracy to distribute cocaine base in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 1); distribution

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

860 (Counts 10 and 11); and possession with intent to distribute cocaine

base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts 12

and 13).

UNITED STATES V. DAVIS 7

(“USSG”) § 2D1.1(c)(3) (Nov. 2005) and that the appropriate

prison sentence would be eighteen years. The plea agreement

acknowledged that under Rule 11(c)(1)(C), the district court

had discretion to accept or reject the proposed agreement and

recommended sentence. If the district court accepted the

agreement, then under Rule 11(c)(1)(C) the recommended

sentence would be binding on the court. On the other hand,

if the court rejected the recommended sentence, the parties

could withdraw from the agreement.

At sentencing in 2006, the district court calculated

Davis’s total offense level as 37 with a Criminal History

Category II, resulting in a Guidelines range of 235 to 293

months. The court accepted the Rule 11(c)(1)(C) plea

agreement and imposed the recommended eighteen-year

(216-month) sentence. We reversed and remanded, holding

that the district court had erred in its determination of Davis’s

criminal history category and in its imposition of an

“organizer or leader” enhancement. United States v. Davis,

312 F. App’x 909, 911–14 (9th Cir. 2009). At Davis’s

resentencing in 2009, the district court calculated his total

offense level as 36 with a Criminal History Category I,

resulting in a Guidelines range of 188 to 235 months. The

court reimposed the plea agreement’s recommended eighteen-

year (216-month) sentence, finding it “fair and reasonable”

under the Guidelines. We affirmed. United States v. Davis,

389 F. App’x 616 (9th Cir. 2010).

B.

When Davis pled guilty, the Guidelines punished

defendants far more harshly for crack cocaine offenses than

for powder cocaine offenses. A defendant responsible for one

gram of crack cocaine faced the same Guidelines sentence as

8 UNITED STATES V. DAVIS

a defendant responsible for one hundred grams of powder

cocaine. This 100:1 ratio was roundly criticized for its

racially disparate effects. See, e.g., Kimbrough v. United

States, 552 U.S. 85, 98 (2007) (citing the Sentencing

Commission’s finding that the “severe sentences required by

the 100-to-1 ratio are imposed primarily upon black

offenders”) (internal quotation marks omitted). As a 2006

survey by the Substance Abuse and Mental Health Services

Administration showed, whites formed the biggest group of

crack cocaine users in absolute numbers,2 but African

Americans were disproportionately arrested and convicted for

crack cocaine offenses. A 2007 report by the Sentencing

Commission documented that when Davis was sentenced in

2006, 81.8% of federal crack cocaine offenders were African

American. U.S. Sentencing Commission, Report to

Congress: Cocaine and Federal Sentencing Policy at 15

(2007) (“2007 Report”). Moreover, in a series of reports to

Congress, the Sentencing Commission warned that the “data

no longer support” the assumption that crack cocaine is more

harmful than powder cocaine. Kimbrough, 552 U.S. at 97–98

(quoting U.S. Sentencing Commission, Report to Congress:

Cocaine and Federal Sentencing Policy at 96 (2002); also

citing the 2007 Report); see also United States v. Baptist,

2

Results from the Substance Abuse and Mental Health Services

Administration’s National Survey on Drug Use and Health from 2006

show that 3.3% of whites report ever using crack cocaine compared with

5.4% of African Americans. Thus, in absolute numbers, white crack

cocaine users far outnumber African-American crack cocaine users.

Quick Table: Ever Used Crack BY Race and Ethnicity, National

Survey on Drug Use and Health, 2006, available at

https://www.icpsr.umich.edu/icpsrweb/NAHDAP/series/00064/studies

(follow “National Survey on Drug Use and Health, 2006”; then follow

“Quick Tables, Drug Use: Entire Sample”; then follow “Crack Use”’; then

select “Race and Ethnicity”; and generate table).

UNITED STATES V. DAVIS 9

646 F.3d 1225, 1226, 1228 n.1 (9th Cir. 2011) (per curiam).

Citing the “urgent and compelling” problems raised by the

overly punitive crack sentencing scheme, the Sentencing

Commission repeatedly called on Congress to reduce the

100:1 ratio. See, e.g., 2007 Report at 8–9. Federal judges

and Department of Justice officials likewise joined the chorus

of voices demanding reform. See, e.g., United States v. Then,

56 F.3d 464, 467 (2d Cir. 1995) (Calabresi, J., concurring)

(“The unfavorable and disproportionate impact that the 100-

to-1 crack/cocaine sentencing ratio has on members of

minority groups is deeply troubling.”); Remarks of

Attorney General Eric Holder, D.C. Court of Appeals

Judicial Conference (June 19, 2009), available at

http://www.justice.gov/opa/speech/attorney-general-eric-

holder-dc-court-appeals-judicial-conference (“It is the view

of this Administration that the 100-to-1 crack-powder

sentencing ratio is simply wrong. It is plainly unjust to hand

down wildly disparate prison sentences for materially similar

crimes.”).

In 2010, Congress responded by passing the Fair

Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010),

which dramatically reduced the sentencing ratio to 18:1. The

Fair Sentencing Act also gave the Sentencing Commission

“emergency authority” to “make such conforming

amendments to the Federal sentencing guidelines.” Id. § 8.

The Sentencing Commission responded by issuing amended

Guidelines reflecting the new 18:1 ratio3 and made the

3

See U.S. Sentencing Guidelines Manual app. C, Amend. 748 (U.S.

Sentencing Comm’n 2010) (adjusting Guidelines temporarily); id. at

Amend. 750 (2011) (making adjustment permanent).

10 UNITED STATES V. DAVIS

changes retroactive4 for all defendants who have “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).

C.

In 2012, Davis filed a pro se motion under § 3582(c)(2)

seeking a retroactive reduction of his sentence in light of the

amended Guidelines.5 Before the Fair Sentencing Act, the

stipulated amount of 170.5 grams of crack cocaine in Davis’s

Rule 11(c)(1)(C) plea agreement resulted in a base offense

level of 34. After the dramatic reduction in the sentencing

ratio, that same amount yielded a base offense level of 28.

USSG § 2D1.1(c)(6) (2011). Davis argued that he was

eligible for a sentence modification under § 3582(c)(2)

because his sentence was “based on” the Guidelines.

4

Id. at Amend. 759 (making Amendment 750 retroactive).

5

Section 3582(c)(2) permits a district court to

modify a term 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 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.

UNITED STATES V. DAVIS 11

The district court denied the motion, holding that it lacked

jurisdiction to modify Davis’s sentence because it was “based

on” the Rule 11(c)(1)(C) plea agreement, not the Guidelines.

In so ruling, the district court concluded that it was bound by

Justice Sotomayor’s concurring opinion in Freeman. Davis

appealed for a third time. A three-judge panel affirmed,

relying on Austin. United States v. Davis, 776 F.3d 1088 (9th

Cir. 2015). We granted rehearing en banc. United States v.

Davis, 795 F.3d 1188 (9th Cir. 2015).6

II.

A.

In Freeman v. United States, the Supreme Court

considered whether a defendant sentenced under a Rule

11(c)(1)(C) agreement may be eligible for a sentence

reduction under § 3582(c)(2). 564 U.S. 522 (2011). Five

justices ultimately agreed that Freeman was eligible for a

reduction, but no rationale commanded a majority of the

Court.

A four-justice plurality held that “[e]ven when a

defendant enters into an 11(c)(1)(C) agreement, the judge’s

decision to accept the plea and impose the recommended

sentence is likely to be based on the Guidelines; and when it

is, the defendant should be eligible to seek § 3582(c)(2)

relief.” Id. at 534 (plurality opinion). Writing for the

plurality, Justice Kennedy explained that this approach was

6

Whether a district court has jurisdiction to modify a defendant’s

sentence under 18 U.S.C. § 3582(c)(2) is a legal question that we review

de novo. United States v. Paulk, 569 F.3d 1094, 1095 (9th Cir. 2009) (per

curiam).

12 UNITED STATES V. DAVIS

consistent with the “text and purpose” of the Sentencing

Reform Act, Rule 11(c)(1)(C), and the binding Guidelines

policy statements in sections 6B1.2 and 1B1.10 relating to

Rule 11(c)(1)(C) and § 3582(c)(2). Id. at 530.

In a dissenting opinion by Chief Justice Roberts, four

Justices took the contrary position that a sentence imposed

under a Rule 11(c)(1)(C) agreement is never “based on” the

Guidelines because the agreement itself serves as the

foundation for the sentence imposed. Id. at 544 (Roberts,

C.J., dissenting).

Concurring only in the judgment, Justice Sotomayor

staked out yet a third position. Justice Sotomayor argued that

a sentence imposed under a Rule 11(c)(1)(C) agreement is

generally based on the agreement, not the Guidelines, but

rejected the dissent’s categorical bar to relief for all

defendants sentenced under such agreements. Id. at 534

(Sotomayor, J., concurring in the judgment). Justice

Sotomayor concluded that district courts have jurisdiction to

consider a sentence reduction in at least two circumstances:

when the Rule 11(c)(1)(C) agreement either 1) “call[s] for the

defendant to be sentenced within a particular Guidelines

sentencing range,” or 2) “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” and “that

sentencing range is evident from the agreement itself.” Id. at

538–39.

To say that Freeman divided the Court would be an

understatement. Not only did the plurality and dissenting

opinions take opposite positions, but both also strongly

criticized Justice Sotomayor’s concurrence. The plurality

warned that the “consequences of [the concurrence’s]

UNITED STATES V. DAVIS 13

erroneous rule would be significant,” id. at 533 (plurality

opinion), while the dissent complained that Justice

Sotomayor’s approach would “foster confusion in an area in

need of clarity,” id. at 550 (Roberts, C.J., dissenting). The

dissenting opinion accurately stated that the plurality and

concurrence “agree on very little except the judgment.” Id.

at 544 (Roberts, C.J., dissenting). Thus, the 4-1-4 Freeman

Court did not articulate a clear path forward for analysis of

sentence-reduction requests by defendants sentenced under

Rule 11(c)(1)(C) agreements.

B.

1.

In Marks v. United States, the Supreme Court explained

that “[w]hen a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five

Justices, the holding of the Court may be viewed as that

position taken by those Members who concurred in the

judgments on the narrowest grounds.” 430 U.S. 188, 193

(1977) (internal quotation marks and citation omitted). In the

nearly forty years since Marks, lower courts have struggled

to divine what the Supreme Court meant by “the narrowest

grounds.” Indeed, the Court has acknowledged that the

Marks inquiry at times has “baffled and divided the lower

courts that have considered it,” Nichols v. United States,

511 U.S. 738, 746 (1994), and that the “test is more easily

stated than applied.” Grutter v. Bollinger, 539 U.S. 306, 325

(2003) (quoting Nichols, 511 U.S. at 745–46). In the face of

this confusion, two main approaches have emerged: one

focusing on the reasoning of the various opinions and the

other on the ultimate results.

14 UNITED STATES V. DAVIS

The D.C. Circuit has offered a clear example of the first

approach. In King v. Palmer, the court explained:

Marks is workable—one opinion can be

meaningfully regarded as “narrower” than

another—only when one opinion is a logical

subset of other, broader opinions. In essence,

the narrowest opinion must represent a

common denominator of the Court’s

reasoning; it must embody a position

implicitly approved by at least five Justices

who support the judgment.

950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). The D.C.

Circuit reaffirmed this approach in Epps, describing Marks as

applicable only when “the concurrence posits a narrow test to

which the plurality must necessarily agree as a logical

consequence of its own, broader position.” 707 F.3d at 348

(emphasis omitted) (quoting King, 950 F.2d at 782).

The second approach looks to results rather than

reasoning. It defines the narrowest ground as the rule that

“would necessarily produce results with which a majority of

the Justices from the controlling case would agree.” See, e.g.,

Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682,

694–97 (3d Cir. 1991) (finding that Justice O’Connor’s

concurring opinions controlled the fractured decisions in

Webster v. Reproductive Health Services, 492 U.S. 490

(1989), and Hodgson v. Minnesota, 497 U.S. 417 (1990),

because a majority of justices in each case would have agreed

with her result), aff’d in part, rev’d in part, 505 U.S. 833

(1992).

UNITED STATES V. DAVIS 15

2.

Our cases interpreting Marks have not been a model of

clarity. On one occasion, we cited the “results” language

described above. See United States v. Williams, 435 F.3d

1148, 1157 n.9 (9th Cir. 2006) (explaining that a concurrence

is controlling under Marks if it “would affect a narrower

range of cases than that of the plurality”). Nonetheless, in

Williams and other decisions applying Marks to a fractured

Supreme Court decision, we analyzed whether the reasoning

of a narrower opinion fit entirely into the circle drawn by a

broader opinion in order to derive a rule. Our most recent

decision to address Marks explicitly employed the

“reasoning” approach. Lair v. Bullock, 697 F.3d 1200 (9th

Cir. 2012). In Lair, we approvingly cited King and held that

the Marks standard applies only “where one opinion can be

meaningfully regarded as narrower than another and can

represent a common denominator of the Court’s reasoning.”

Id. at 1205 (quoting United States v. Rodriguez–Preciado,

399 F.3d 1118, 1140 (9th Cir.), amended by 416 F.3d 939

(9th Cir. 2005)). Unless “the narrowest opinion is actually

the logical subset of other broader opinions, . . . the only

binding aspect of a splintered decision is its specific result.”

Id. (internal quotation marks and citation omitted).

To foster clarity, we explicitly adopt the reasoning-based

approach to applying Marks. This approach is not only

consistent with our most recent caselaw, see Lair, 697 F.3d

1200, but also makes the most sense.7 A fractured Supreme

7

This approach is not “fundamentally inconsistent with Marks itself.”

Dissent at 41, 42 n.7. Marks never defined the “narrowest grounds,” and

the dissent identifies no subsequent Supreme Court case that has offered

an explanation or clarification of Marks as requiring an unwavering focus

16 UNITED STATES V. DAVIS

Court decision should only bind the federal courts of appeal

when a majority of the Justices agree upon a single

underlying rationale and one opinion can reasonably be

described as a logical subset of the other. When no single

rationale commands a majority of the Court, only the specific

result is binding on lower federal courts.

on results. The difficult task of interpreting Marks has been left to the

courts of appeal. See, e.g., King, 950 F.2d at 781; Lair, 697 F.3d at 1205;

United States v. Johnson, 467 F.3d 56, 62–64 (1st Cir. 2006).

More importantly, Marks cannot be viewed in isolation. In

subsequent cases interpreting fractured Supreme Court decisions, the

Court has frequently focused on reasoning, rather than results. Indeed, the

dissent recognizes as much when it argues that Marks requires

consideration of dissenting opinions. Dissent at 52–57, 52–53 n.9

(describing the various opinions in the fractured Tidewater National

Mutual Insurance Co. v. Tidewater Transfer Co., 377 U.S. 582 (1949),

decision). As the dissent states, “[s]ince Tidewater, courts have

universally accepted that Congress may not expand the scope of subject-

matter jurisdiction conferred by Article III through passage of a

Congressional Act,” even though that rule could only be derived by

combining the “views” or “rationale[s]” of Tidewater’s concurrence and

dissent. Dissent at 52–54; 52–53 n.9. Thus, even the dissent

acknowledges that the Supreme Court and lower courts have employed a

reasoning-based approach to analyzing prior fractured Supreme Court

decisions. A results approach cannot explain the governing rule that

emerged from Tidewater.

Similarly, the dissent mischaracterizes United States v. Jacobsen,

466 U.S. 109 (1984), as employing a results-based approach. Dissent 42

n.7. In our view, the rule that “the legality of the government search must

be tested by the scope of the antecedent private search,” id. at 115–16,

represents a common reasoning shared by the dissenting and plurality

opinions, not a result or outcome on which they agree. The dissent’s own

cases therefore contradict its assertion that a reasoning-based approach is

an “invention” of the Ninth and D.C. Circuits. Dissent at 34–35, 44–45.

UNITED STATES V. DAVIS 17

III.

Applying Marks, as clarified above, to Freeman, we

overrule our holding in Austin that Justice Sotomayor’s

concurrence controls.8 Instead, we adopt the analysis of the

D.C. Circuit in Epps that there was no common denominator

in Freeman “because the plurality and concurring opinions do

not share common reasoning whereby one analysis is a

logical subset of the other.” Epps, 707 F.3d at 350 (internal

quotation marks and citation omitted).

8

Following the adoption of the Fair Sentencing Act, we have issued, in

addition to Austin, two opinions that discuss sentence modifications under

§ 3582(c)(2) and that bear mentioning here.

First, in United States v. Bride, we held that a defendant who was

sentenced under a Rule 11(c)(1)(C) agreement could not seek a sentence

reduction because his sentence was not “based on a sentencing range that

had been subsequently lowered by the Sentencing Commission.”

581 F.3d 888, 889 (9th Cir. 2009). We explicitly stated, however, that we

did not “reach the issue of whether § 3582(c)(2) relief is necessarily

precluded when the district court imposes a sentence pursuant to a Rule

11(c)(1)(C) plea agreement.” Id. at 891 n.5. Austin distinguished Bride

on this basis. Austin, 676 F.3d at 927 n.1. Nonetheless, to the extent

Bride conflicts with our opinion today, it is overruled.

Second, in United States v. Pleasant, we cited Austin for the

proposition that Justice Sotomayor’s Freeman concurrence controls, and

held that the defendant was eligible for a sentence reduction because his

Rule 11(c)(1)(C) plea agreement fell under one of her two exceptions.

704 F.3d 808, 811 (9th Cir. 2013). Although the thrust of the Pleasant

opinion focused on the separate question of whether a sentence reduction

would be “consistent” with the Guidelines, we determined that Pleasant

satisfied the threshold eligibility determination. Id. at 811–12. As with

Bride, to the extent Pleasant’s interpretation of Freeman is inconsistent

with this opinion, it is overruled.

18 UNITED STATES V. DAVIS

Justice Sotomayor’s concurrence cannot reasonably be

described as a logical subset of Justice Kennedy’s plurality

opinion. The Freeman plurality explicitly rejected the

concurrence’s reasoning, in particular its underlying premise

that a sentence imposed under a Rule 11(c)(1)(C) agreement

is “based on” the parties’ agreement, not the Guidelines.

564 U.S. at 529 (plurality opinion); Id. at 535–36

(Sotomayor, J., concurring in the judgment). Even in setting

out the circumstances in which she would find a defendant

sentenced under a Rule 11(c)(1)(C) agreement eligible for

relief, Justice Sotomayor focused on the role the parties’

Guidelines calculations play in crafting a Rule 11(c)(1)(C)

agreement. Id. at 538–39. By contrast, the plurality focuses

on the role of the judge’s Guidelines calculations in deciding

whether to accept or reject the agreement. Id. at 529

(plurality opinion). This fundamental divergence in

reasoning is enough to demonstrate that Justice Sotomayor’s

rationale is not controlling Supreme Court law. Although in

Freeman these divergent approaches led to the same result,

the D.C. Circuit properly recognized that “the set of cases

where the defendant prevails under the concurrence is not

always nestled within the set of cases where the defendant

prevails under the plurality . . . .” Epps, 707 F.3d at 351.

Two examples from Epps are instructive.9 First consider

9

The dissent criticizes these examples, dissent at 47–49, but its analysis

is oversimplified in suggesting that the plurality would always allow a

sentence modification in a Rule 11(c)(1)(C) agreement. If the plurality

intended such a rule, it could easily have explicitly said so. Instead,

Justice Kennedy wrote “[e]ven when a defendant enters into an

11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose

the recommended sentence is likely to be based on the Guidelines.”

Freeman, 564 U.S. at 534 (plurality opinion) (emphasis added). Likely is

not the same as always. Similarly, the plurality wrote that a “district

UNITED STATES V. DAVIS 19

the following scenario:

[T]he parties may state in the plea agreement

that a particular range applies and agree to a

sentence at the bottom of that range, but the

district court may not agree that the range

determined by the parties applies, finding for

example that the career offender range is

applicable instead, but notwithstanding this

finding accept the plea because it is to a term

that is acceptable to the court for reasons

unrelated to the guideline range determined by

the parties.

Id. at 350 n.8. Justice Sotomayor would allow a sentence

reduction in this example because the agreement explicitly

“call[s] for the defendant to be sentenced within a particular

Guidelines sentencing range.” Freeman, 564 U.S. at 538

(Sotomayor, J., concurring in the judgment). The plurality,

on the other hand, “would find [Freeman] ineligible because

the range that the parties agreed to played no role in the

judge’s decision to impose a sentence may therefore be based on the

Guidelines even if the defendant agrees to plead guilty under Rule

11(c)(1)(C).” Id. at 526 (emphasis added). That is different than saying

that a Rule 11(c)(1)(C) sentence is always based on the Guidelines.

Nor did Justice Kennedy explicitly reject the idea “that his approach

would limit relief to only a ‘subset of defendants,”’ as the dissent claims.

Dissent at 49. Rather, in the passage the dissent cites, the plurality

rejected Justice Sotomoyor’s approach because of the arbitrariness of

allowing sentence reductions only for those defendants whose plea

agreements refer to the Guidelines. Freeman, 564 U.S. at 532–33

(plurality opinion). Justice Kennedy never said he disagreed with Justice

Sotomayor because her approach would “fail to permit resentencing in all

cases.” Dissent at 49.

20 UNITED STATES V. DAVIS

court’s determination that this was an appropriate sentence,

despite the fact that the court imposed the agreed-upon term

of imprisonment.” Epps, 707 F.3d at 350 n.8. Thus, the

plurality opinion is actually the narrower one in certain

respects.

A second example produces a similar result:

The sentencing court . . . might consider and

reject the guideline range used by the parties,

not because the court finds that a different

guidelines range (such as the career offender

range) applies, but because, having considered

the applicable guidelines range, the court

rejects it as a matter of policy and selects its

sentence without regard to it.

Id. Here again, if the court decides “for reasons unrelated to

the guidelines range to impose the sentence the parties agreed

upon,” the defendant would be eligible for a reduction under

Justice Sotomayor’s approach but not under the plurality’s.

Id.

These examples make clear that the plurality and

concurring opinions cannot be explained by a diagram in

which a circle representing the reasoning of Justice

Sotomayor’s opinion sits neatly within a circle representing

the reasoning of the plurality opinion. Because both opinions

would allow sentence reductions in situations where the other

UNITED STATES V. DAVIS 21

would not, Justice Sotomayor’s concurrence is not the

“narrowest grounds” envisioned by Marks.10

We recognize that, with the exception of the D.C. Circuit,

every other circuit that has considered the issue has adopted

Justice Sotomayor’s concurrence as the controlling opinion

in Freeman. But we do not find those opinions convincing.

Most engage with Marks only superficially, quoting its

language with no analysis. See, e.g., United States v.

Graham, 704 F.3d 1275, 1278 (10th Cir. 2013); United States

v. Browne, 698 F.3d 1042, 1045–46 (8th Cir. 2012); United

States v. Dixon, 687 F.3d 356, 359–60 (7th Cir. 2012); United

States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011).11 Given

their lack of meaningful analysis, these opinions lack

persuasive force.

Those few cases that do discuss how Marks should apply

to Freeman mistakenly conclude that although the “gap

between the plurality and the concurrence is wide, [ ] it is still

possible to tease out a common denominator.” United States

10

We emphasize that this results-oriented approach is used only to

highlight the lack of a shared reasoning between Freeman’s plurality and

concurring opinions. Our primary focus remains on the text of the two

opinions, rather than on their application to hypothetical cases.

11

For example, the Tenth Circuit quoted the Marks “narrowest grounds”

test and then summarily agreed with the district court that “[a]pplying this

rule,” Justice Sotomayor’s concurrence controls. Graham, 704 F.3d at

1278. Similarly, the Sixth Circuit concluded that “Justice Sotomayor’s

opinion is the narrowest ground for the Court’s decision and thus

represents the Court’s holding in Freeman” without citing Marks. Smith,

658 F.3d at 611. The Second Circuit has considered the issue only in an

unpublished summary order. United States v. White, 429 F. App’x 43, 47

(2d Cir. 2011) (finding that Justice Sotomayor’s concurrence is

controlling).

22 UNITED STATES V. DAVIS

v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir. 2011); see

also United States v. Thompson, 682 F.3d 285, 289–90 (3d

Cir. 2012). Not so. As the examples above demonstrate,

there are some circumstances where defendants would be

eligible for relief under Justice Sotomayor’s approach but not

under the plurality’s. We therefore cannot agree with the

First Circuit’s assertion that the “plurality would surely agree

that in every case in which a defendant’s C-type plea

agreement satisfies the criteria for Justice Sotomayor’s

exception . . . the sentencing judge’s decision to accept that

sentence is based on the guidelines.” Rivera-Martinez,

665 F.3d at 348. A more nuanced reading of both opinions

leads us to conclude that “there is no controlling opinion in

Freeman because the plurality and concurring opinions do not

share common reasoning whereby one analysis is a logical

subset of the other.” Epps, 707 F.3d at 350 (internal

quotation marks and citation omitted).

Marks instructs us to consider the opinions only of “those

Members who concurred in the judgments on the narrowest

grounds” when deriving a rule from a fractured Supreme

Court decision. Marks, 430 U.S. at 193 (quoting Gregg v.

Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart,

Powell, & Stevens, JJ.) (emphasis added)). Nonetheless, we

acknowledge that the Supreme Court and our sister circuits

have considered dissenting opinions when interpreting

fragmented Supreme Court decisions. See, e.g., United States

v. Jacobsen, 466 U.S. 109, 115–17 (1984) (relying on a

dissenting opinion to derive the rule in Walter v. United

States, 447 U.S. 649 (1980)); Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 16–17 (1983) (holding

that Will v. Calvert Fire Insurance did not overrule the

“Colorado River test” because Will’s four dissenting Justices

agreed with the concurring opinion that the test remained in

UNITED STATES V. DAVIS 23

effect); United States v. Donovan, 661 F.3d 174, 182 (3d Cir.

2011) (explaining that the court “looked to the votes of

dissenting Justices if they, combined with votes from

plurality or concurring opinions, establish a majority view on

the relevant issue”). Here, we assume but do not decide that

dissenting opinions may be considered in a Marks analysis.12

Considering Chief Justice Roberts’s dissent would not

change our conclusion because we cannot derive any

common denominator by combining Freeman’s dissenting

opinion with either the plurality or concurring opinion. First,

no rule can be derived from the Freeman plurality and

dissenting opinions, as neither is a “logical subset” of the

other. Indeed, the plurality holding that “[e]ven when a

defendant enters into an 11(c)(1)(C) agreement, the judge’s

decision to accept the plea and impose the recommended

sentence is likely to be based on the Guidelines,” Freeman,

564 U.S. at 534 (plurality opinion) is diametrically opposed

to the dissent’s position that a sentence imposed under a Rule

11(c)(1)(C) agreement is never “based on” the Guidelines

because the agreement itself serves as the foundation for the

sentence imposed, id. at 544–45 (Roberts, C.J., dissenting).

In practical terms, this divergence means the dissent would

categorically find all defendants sentenced under a Rule

11(c)(1)(C) agreement ineligible for a sentence reduction,

while the plurality would permit a reduction in most cases.

Thus, the plurality and dissent “do not share common

reasoning whereby one analysis is a logical subset of the

12

We note that in King, the D.C. Circuit explicitly stated that it was not

“free to combine a dissent with a concurrence to form a Marks majority.”

King, 950 F.2d at 783. We emphasize here, however, that we do not

decide that issue.

24 UNITED STATES V. DAVIS

other.” Epps, 707 F.3d at 350 (internal quotation marks and

citation omitted).

Second, Justice Sotomayor’s concurring opinion is not a

logical subset of the dissenting opinion, or vice versa. Again,

the dissent would categorically bar defendants sentenced

under Rule 11(c)(1)(C) agreements from seeking relief under

§ 3582(c)(2). Freeman, 564 U.S. at 544–45 (Roberts, C.J.,

dissenting). Justice Sotomayor, by contrast, would permit

sentence reductions in limited circumstances: if the Rule

11(c)(1)(C) agreement either 1) “call[s] for the defendant to

be sentenced within a particular Guidelines sentencing

range,” or 2) “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” and “that

sentencing range is evident from the agreement itself.” Id. at

538–39 (Sotomayor, J., concurring in the judgment). Despite

the dissent’s arguments to the contrary, these approaches

cannot be reconciled because Justice Sotomayor explicitly

“reject[ed] the categorical rule advanced by the Government

and endorsed by the dissent, which artificially divorces a

[Rule 11(c)(1)(C)] agreement from its express terms.” Id. at

539. Indeed, in evaluating Freeman’s case, Justice

Sotomayor stated that “contrary to the dissent’s curious

suggestion that ‘there is no way of knowing what th[e]

sentence was based on,’” the basis for Freeman’s sentence

was evident from the Rule 11(c)(1)(C) agreement itself. Id.

at 542–43.

The Freeman dissent is similarly critical of Justice

Sotomayor, describing her view that certain Rule 11(c)(1)(C)

defendants are eligible for relief as just “as mistaken as the

position of the plurality—and basically for the same reasons.”

Id. at 545 (Roberts, C.J., dissenting). Chief Justice Roberts

UNITED STATES V. DAVIS 25

characterized her approach as “head-scratching,” id. at 547,

and likely to “foster confusion in an area in need of clarity,”

id. at 550. Neither opinion lays out the “common

denominator of the Court’s reasoning” because Justice

Sotomayor and the dissenters disagree on the fundamental

question of whether a defendant sentenced under a Rule

11(c)(1)(C) agreement can ever be eligible for a sentence

reduction under § 3582(c)(2). Simply put, no combination of

Freeman’s dissenting and concurring opinions yields a

binding rule that we must follow.

IV.

A.

Given that no opinion in Freeman controls, we consider

which of the rationales set forth in the varying opinions is

most persuasive. Epps, 707 F.3d at 351. In so doing, we are

restricted only by the ultimate result in Freeman: that

defendants sentenced under Rule 11(c)(1)(C) agreements are

not categorically barred from seeking a sentence reduction

under § 3582(c)(2). We join the D.C. Circuit and adopt the

plurality’s rule: “Even when a defendant enters into an

11(c)(1)(C) agreement, the judge’s decision to accept the plea

and impose the recommended sentence is likely to be based

on the Guidelines; and when it is, the defendant should be

eligible to seek § 3582(c)(2) relief.” Freeman, 564 U.S. at

534 (plurality opinion).

As the plurality explained, three critical sources support

this approach. First, “[f]ederal sentencing law requires the

district judge” to impose sentences that comply with “the

purposes of federal sentencing, in light of the Guidelines and

other § 3553(a) factors.” Id. at 529. Thus, by statute, a

26 UNITED STATES V. DAVIS

sentencing judge’s discretion is always framed by the

Guidelines.

Second, Justice Kennedy looked to the district court’s

authority under Rule 11(c)(1)(C). Although the Rule

“permits the defendant and the prosecutor to agree on a

specific sentence,” it preserves “the district court’s

independent obligation to exercise its discretion” and review

the proposed sentence. Id. Because judges “use the

Guidelines range as the starting point,” they serve in a “real

sense [as] a basis for the sentence,” “[e]ven where the judge

varies from the recommended range.” Id.

Third, the Guidelines policy statements that apply to Rule

11(c)(1)(C) plea agreements and § 3582(c)(2) motions

support the plurality’s approach. Once a district court accepts

a Rule 11(c)(1)(C) plea agreement, the parties’ recommended

sentence is binding on the court. As the Freeman plurality

noted, however, the applicable Guidelines policy statement

“forbids the district judge to accept an 11(c)(1)(C) agreement

without first evaluating the recommended sentence” under the

Guidelines. Id.; USSG § 6B1.2(c). Indeed, as the plurality

further noted, the commentary to the policy statement

instructs a sentencing court to accept the recommended

sentence only if it is an appropriate sentence within the

applicable Guidelines range or “departs . . . for justifiable

reasons.” Freeman, 564 U.S. at 529 (plurality opinion). The

Guidelines policy statement that applies to § 3582(c)(2)

motions likewise supports the plurality opinion. See USSG

§ 1B1.10(b)(1). As the plurality explained, § 1B1.10(b)(1)

directs the district judge “in modifying a sentence to

substitute only the retroactive amendment and then leave all

original Guidelines determinations in place.” Freeman,

564 U.S. at 530 (plurality opinion). The goal of the sentence

UNITED STATES V. DAVIS 27

modification is to “isolate” the effect of the amended

Guideline while leaving undisturbed the other factors that

determined the sentence imposed. Id.13 This suggests that a

defendant should be eligible for a sentence reduction when

one factor in a defendant’s sentence was a “since-rejected

Guideline.” Id.

Not only does the plurality approach best conform with

these relevant sources, but a “contrary focus on the parties’

intentions would contribute to the unwarranted disparity that

the [Sentencing Reform Act] was designed to reduce.” Epps,

707 F.3d at 351. In reducing the crack cocaine sentencing

range, Congress and the Sentencing Commission sought to

address “the urgent and compelling problem of crack-cocaine

sentences.” Freeman, 564 U.S. at 533 (plurality opinion)

(internal quotation marks omitted); supra at I.B. “Section

3582(c)(2) empowers district judges to correct sentences that

depend on frameworks,” like the one for crack cocaine, “that

later prove unjustified.” Freeman, 564 U.S. at 526 (plurality

opinion). Justice Sotomayor’s approach would “extend the

benefit of the Commission’s judgment only to an arbitrary

subset of defendants whose agreed sentences were accepted

in light of a since-rejected Guidelines range based on whether

their plea agreements refer to the Guidelines.” Id. at 533–34.

13

By preserving all Guidelines calculations other than the one that was

retroactively reduced, the policy statements in section 1B1.10(b)

substantially limit district court discretion when ruling on § 3582(c)(2)

motions. Freeman, 454 U.S. at 531–32 (plurality opinion). Further,

district courts cannot vary below the Guidelines in a § 3582(c)(2)

proceeding, as they can in an initial sentencing proceeding. Id.; USSG

§ 1B1.10(b)(2)(A). And, given the availability of appellate review, any

concern that the plurality’s approach will “upset the bargain struck

between prosecutor and defendant” is overstated. Freeman, 564 U.S. at

531 (plurality opinion).

28 UNITED STATES V. DAVIS

Thus, adoption of the concurring opinion would “undercut a

systemic solution” to a “systemic injustice.” Id. at 534. For

all these reasons, we adopt the approach of the Freeman

plurality opinion.

B.

Applying the plurality’s approach, we hold that Davis is

eligible for relief under § 3582(c)(2) because the district

court’s “decision to accept the plea and impose the

recommended sentence” was “based on the Guidelines.”

Freeman, 564 U.S. at 534 (plurality opinion). Davis’s Rule

11(c)(1)(C) plea agreement was clearly rooted in the

Guidelines. First, it required the district judge to “determine

Defendant’s applicable Sentencing Guidelines range at the

time of the sentencing.” Second, the agreement stated that

the amount of crack cocaine for which Davis admitted direct

responsibility would yield a base offense level of 34 under

Guidelines § 2D1.1(c)(3). Third, Davis’s agreement

explained that he qualified for a Guidelines increase under

§ 2D1.2 for proximity to a school zone and a Guidelines

reduction under § 3E1.1 for acceptance of responsibility.

The district judge’s decision to reimpose the eighteen-

year sentence was also based on the Guidelines. During the

resentencing hearing, the district court recalculated Davis’s

total offense level at 36 and a Guidelines range of 188 to 235

months. Then, reflecting on all the evidence presented, the

court determined that the original eighteen-year

sentence—which, at 216 months, fell within the calculated

range—was “fair and reasonable” under the Guidelines.

Taken together, the text of Davis’s plea agreement and the

judge’s statements during the sentencing hearing leave no

UNITED STATES V. DAVIS 29

doubt that the sentence imposed was “based on” the

Guidelines. Thus, Davis is eligible for a sentence reduction

and all that remains for the district court is to make the

discretionary determination whether Davis should actually

receive a reduction under § 3582(c)(2) and the Guidelines’

related policy statements in section 1B1.10.14

Conclusion

In sum, when applying Marks to a fractured Supreme

Court decision, we look to those opinions that concurred in

the judgment and determine whether one of those opinions

sets forth a rationale that is the logical subset of other,

broader opinions. When, however, no “common denominator

of the Court’s reasoning” exists, we are bound only by the

“specific result.”

Applying that framework to Freeman, we conclude that,

contrary to our prior decision in Austin, Justice Sotomayor’s

concurrence is not the logical subset of the plurality opinion.

Nor can we extract a shared reasoning by including the

dissent in our analysis. Thus, we overrule Austin and adopt

the Freeman plurality approach as the most persuasive means

of analyzing sentence reductions in the context of Rule

11(c)(1)(C) plea agreements. Accordingly, we reverse the

district court’s determination that Davis is not eligible for a

sentence reduction and remand for reconsideration of whether

14

We emphasize that our decision merely removes the jurisdictional

hurdle that led the district court to deny Davis a resentencing hearing. On

remand, “[i]f the district court, based on its experience and informed

judgement, concludes the [Rule 11(c)(1)(C)] agreement led to a more

lenient sentence than would otherwise have been imposed, it can deny the

motion, for the statute permits but does not require the court to reduce a

sentence.” Freeman, 564 U.S. at 532 (plurality opinion).

30 UNITED STATES V. DAVIS

Davis should receive a sentence reduction under § 3582(c)(2)

and the Guidelines’ related policy statements.

REVERSED and REMANDED.

CHRISTEN, Circuit Judge, joined by THOMAS, Chief

Judge, and TALLMAN, NGUYEN, and HURWITZ, Circuit

Judges, concurring:

Freeman v. United States, 564 U.S. 522 (2011), addressed

an issue of grave importance to Davis and to countless other

prisoners in his position. The opinion issued today corrects

an error in our circuit’s interpretation of Freeman, but it also

represents a missed opportunity to straighten out our circuit’s

inconsistent applications of Marks v. United States, 430 U.S.

188 (1977).

Marks specifically directs lower courts how to interpret

splintered Supreme Court decisions. Its rule tends to crop up

in the most contentious cases where, as here, the stakes are

significant. Freeman is important, but Marks has even

broader application to the wide spectrum of issues we decide.

I join in the court’s holding—as far as it goes—but it is

regrettable that our court articulates an incomplete

interpretation of Marks. Leaving this work unfinished will

surely result in continued uneven application of Marks within

our circuit.

The rule announced in Marks appears simple at first

glance but it has proven to be confounding. See Grutter v.

Bollinger, 539 U.S. 306, 325 (2003) (noting Marks has

“baffled and divided the lower courts that have considered it”

UNITED STATES V. DAVIS 31

(quoting Nichols v. United States, 511 U.S. 738, 746 (1994))).

The opinion issued today untangles part of the problem

because it decisively adopts a reasoning-based approach to

determine when splintered decisions produce binding

precedent. Under this approach, I agree that no binding rule

emerges from Freeman. I also agree that Justice Kennedy’s

plurality opinion is the best framework for analyzing motions

for sentence reduction in the context of Rule 11(c)(1)(C) plea

agreements.

Unfortunately, we leave unanswered whether our court

will take into account dissenting opinions when applying

Marks. I join the majority because its holding is entirely

consistent with Marks: “[W]e look to those opinions that

concurred in the judgment and determine whether one of

those opinions sets forth a rationale that is the logical subset

of other, broader opinions.” But I disagree with the

majority’s assumption that we might be free to take

dissenting opinions into account in future Marks analyses.

Marks leaves some questions unanswered, but it plainly limits

our review to the opinions of “those Members [of the Court]

who concurred in the judgments.” Marks, 430 U.S. at 193

(emphasis added). Because I do not see that this language

leaves any room for our court to consider dissenting opinions,

I would go further than the majority does and expressly state

that dissents play no role in a Marks analysis. This is not to

say that dissents serve no purpose. They can and should be

read to provide context and a deeper understanding of the

Court’s decisions, but they do not inform our analysis of what

binding rule, if any, emerges from a fractured decision.

The dissent points to National Mutual Insurance Co. v.

Tidewater Transfer Co., 337 U.S. 582 (1949), as support for

its view that dissenting opinions should be considered.

32 UNITED STATES V. DAVIS

Tidewater, of course, says nothing about how to interpret

fractured Supreme Court decisions, though it was a fractured

decision itself. In Tidewater, two concurring justices and

four dissenting justices relied on the rule that Congress lacks

authority to expand federal court subject matter jurisdiction

beyond that provided in Article III. See id. at 604–46. Our

dissenting colleague is correct that courts have universally

accepted this rule, but doing so does not require looking to

Tidewater’s dissenting opinions. Indeed, as recognized in

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480

(1983), this rule pre-dates Tidewater by a long shot. See id.

at 491 (“This Court’s cases firmly establish that Congress

may not expand the jurisdiction of the federal courts beyond

the bounds established by the Constitution.” (citing Hodgson

v. Bowerbank, 3 L. Ed. 108 (1809); Kline v. Burke Constr.

Co., 260 U.S. 226, 234 (1923))); see also Seminole Tribe of

Fla. v. Florida, 517 U.S. 44, 65 (1996) (describing as

“fundamental” that “Congress could not expand the

jurisdiction of the federal courts beyond the bounds of Article

III” (citing Marbury v. Madison, 2 L. Ed. 60 (1803))).

The Supreme Court at times looks to dissenting opinions

when interpreting its own splintered decisions. See United

States v. Jacobsen, 466 U.S. 109, 115 (1984); Moses H. Cone

Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 16–17

(1983). From this, the majority and dissent infer that we

might be free to do the same. But the way the Supreme Court

treats its own precedent says nothing about how lower courts

must apply it. Marks, not Jacobsen or Moses H. Cone, is the

Supreme Court authority that sets out the rule for lower courts

UNITED STATES V. DAVIS 33

to follow.1 In my view, until the Supreme Court says

otherwise, Marks precludes us from considering dissenting

opinions.

BEA, Circuit Judge, dissenting:

From its very first sentence, the majority unjustifiably

departs from not only our own, but also well-established

Supreme Court precedent. We correctly and squarely

resolved the questions presented by this case in United States

v. Austin, 676 F.3d 924 (9th Cir. 2011) until it was overruled

by today’s majority. In Austin, we considered whether a

judge had jurisdiction to modify a prisoner’s sentence under

18 U.S.C. § 3582(c)(2) (permitting modification of a term of

imprisonment where that term was “based on” a sentencing

range which was later reduced) if the prisoner was sentenced

pursuant to a Federal Rules of Criminal Procedure

(“F.R.C.P.”) 11(c)(1)(C) plea agreement (a “Rule 11(c)(1)(C)

agreement”) that did not expressly incorporate the since-

1

The dissent responds by pointing to the Supreme Court’s language in

Moses H. Cone: “[T]he [Fourth Circuit] Court of Appeals correctly

recognized that the four dissenting Justices and Justice BLACKMUN [in

Will v. Calvert Fire Insurance Co., 437 U.S. 655 (1978)] formed a

majority to require application of the Colorado River test.” Moses H.

Cone, 480 U.S. at 17. This was merely a recognition that, in Will, there

were not enough votes to undermine Colorado River Water Conservation

District v. United States, 424 U.S. 800 (1976). Thus, the controlling rule

the Fourth Circuit applied came from Colorado River, not Will. Moses H.

Cone does not direct lower courts to look to dissenting opinions when

divining a controlling rule from a fractured Supreme Court decision.

34 UNITED STATES V. DAVIS

amended sentencing Guidelines.1 We noted that the Supreme

Court had spoken to this very question in Freeman v. United

States, 564 U.S. 522 (2011), where five Justices had voted to

permit a prisoner to seek sentence modification, but where no

single rationale had commanded a five-Justice majority. A

four-Justice plurality of those five Justices would always

permit a prisoner to seek sentence modification, under the

rationale that a judge’s approval of the plea agreement is

required to start with, and is necessarily “based on,” the

since-amended Guidelines. Justice Sotomayor, writing only

for herself, agreed that Freeman was entitled to seek

resentencing, but only because his plea agreement had

expressly incorporated the since-modified sentencing

Guidelines. A four-Justice dissent penned by Chief Justice

Roberts would find that Rule 11(c)(1)(C) agreements are

always purely contractual in nature and therefore never

“based on” the sentencing Guidelines. Given this 4-1-4 split,

we held in Austin that we were bound (under Marks v. United

States, 430 U.S. 188, 193 (1977)) to treat Justice Sotomayor’s

concurrence as the “holding” of the Freeman Court because

it was the “narrowest grounds” upon which to reach the

disposition that commanded a majority of the Court. See

Austin, 676 F.3d at 927–28.

Our interpretation in Austin has garnered the support of

eight out of the nine Circuits which have interpreted

Freeman. See, e.g., United States v. Graham, 704 F.3d 1275,

1278 (10th Cir. 2013); United States v. Thompson, 714 F.3d

946, 949 (6th Cir. 2013); United States v. Browne, 698 F.3d

1042, 1045–47 (8th Cir. 2012); United States v.

1

A Rule 11(c)(1)(C) agreement may or may not specifically reference

applicable sentencing guidelines as the basis for the government’s

sentencing recommendation. See Fed. R. Crim. P. 11.

UNITED STATES V. DAVIS 35

Weatherspoon, 696 F.3d 416, 422 (3rd Cir. 2012); United

States v. Dixon, 687 F.3d 356, 359–60 (7th Cir. 2012); United

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

States v. Rivera-Martinez, 665 F.3d 344, 345 (1st Cir. 2011);

United States v. Brown, 653 F.3d 337 (4th Cir. 2011).2 The

sole outlier circuit: the D.C. Circuit in United States v. Epps,

707 F.3d 337 (D.C. Cir. 2013). Thus, the Majority today

rejects a widely accepted interpretation of Freeman in favor

of a highly criticized, outlier approach, thus accentuating a

Circuit split.

I cannot subscribe to the Majority’s view. To start, the

Majority’s “logical subset” requirement is an invention of the

D.C. Circuit that finds no support in Marks or any other

Supreme Court precedent. The Majority’s “logical subset”

invention permits a concurring opinion to become the

precedential decision of the Court if, and only if, its reasoning

shares all points in common with another, broader opinion

that also reaches the majority result. Of course, the

concurring opinion may have fewer elements of the decision

than does the plurality opinion, but it may not have any

elements in conflict. See Maj. Op. at 15–16. This notion is

an invention in our circuit’s jurisprudence, though the

Majority tips its hat to the D.C. Circuit. See Maj. Op. at 5–6,

14. And even if there were a “logical subset” requirement as

defined by the Majority, the Majority misreads Justice

Kennedy’s plurality opinion to the extent it concludes that

there are circumstances in which Justice Sotomayor would

permit sentence modification but the Kennedy plurality

2

See also United States v. Banks, 770 F.3d 346, 351 (5th Cir. 2014)

(citing to Justice Sotomayor’s concurrence in Freeman and suggesting

that, were that case applicable, the Fifth Circuit would be bound by Justice

Sotomayor’s concurrence).

36 UNITED STATES V. DAVIS

would not. Finally, the Majority’s adoption of the Kennedy

plurality’s approach violates stare decisis because five

Justices in Freeman (a majority), all agreed that we look to

the plea agreement itself to determine whether a plea was

“based on” the since-modified sentencing Guidelines. Under

cases like National Mutual Insurance Co. v. Tidewater

Transfer Co., 377 U.S. 582 (1949), we are bound by holdings

that garner the support of a “majority” of the nine Justices on

the entire Court, even if that agreement derives in part from

votes from the dissent. Thus, the Majority flouts not only

Freeman, but also Supreme Court jurisprudence relating to

the binding effect of splintered Supreme Court opinions, as

well as this Court’s structural role as a federal intermediary

court.

I. Facts

In 2005, Tyrone Davis pleaded guilty to possession with

intent to distribute crack cocaine pursuant to a Rule

11(c)(1)(C) plea agreement. In Davis’s case, the plea

agreement did not specifically mention any particular

sentencing Guideline. Nor did the plea agreement itself

calculate (or even contain sufficient facts with which to

calculate) Davis’s Guidelines range. True, it contained some

of the factors that would enable a Guidelines calculation. For

example, the parties stipulated to a base offense level of 34.

But the agreement failed to list a criminal history category or

adjustment determinations—both of which are essential to

calculate a sentencing range under the Guidelines. After

successive appeals to this Court on grounds no longer

relevant, the district court calculated a Guidelines range of

188–235 and approved the 216-month sentence in Davis’s

UNITED STATES V. DAVIS 37

plea agreement.3 We affirmed. See United States v. Davis,

389 F. App’x 616 (9th Cir. 2010) (unpublished).

Congress thereafter passed the Fair Sentencing Act of

2010, which increased the threshold amount of cocaine base

necessary to trigger an enhanced Guidelines range. Pub L.

111-220, §2(a), 124 Stat. 2372. Under the new Guidelines,

the amount of cocaine base that contributed to Davis’s

convictions would produce a Guidelines range of only

97–121 months (after inserting the calculations made by the

district court at Davis’s resentencing). Because Davis’ 216-

month sentence now falls much above that range, Davis

moved in September 2012 for resentencing under 18 U.S.C.

§ 3582(c)(2), relying on the amended Guidelines. Section

3582(c)(2) provides:

3

At Davis’s sentencing in May 2006, the district court calculated a

Guidelines range of 235–293 months (later reduced, on remand, to

188–235 months, as described below), relying in part on its own

determinations that Davis’s criminal history category was II and that

Davis deserved a 4-level leadership enhancement for his particular role in

the offenses. Although Davis’s stipulated sentence of 216 months (18

years) fell below the low end of the Guidelines range (235–293 months),

the district court accepted the sentence.

David appealed, arguing that the district court miscalculated the

Guidelines range, and our panel reversed and remanded for resentencing.

United States v. Davis, 312 F. App’x 909, 912–13 (9th Cir. 2009)

(unpublished). On remand, the district court held an evidentiary hearing

about Davis’s role in the offense, and then calculated a new (lower)

Guidelines range of 188–235 months. The court then reimposed the same

216-month sentence as stipulated in the Rule 11(c)(1)(C) plea agreement.

On a second appeal, we affirmed. See United States v. Davis, 389 F.

App’x 616 (9th Cir. 2010) (unpublished).

38 UNITED STATES V. DAVIS

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 . . .

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.

Id. (emphasis added). The district court properly denied the

motion, ruling that Davis’s 216-month sentence was “based

on” his plea agreement, not on the Guidelines range that had

since been lowered. The district court relied on our decision

in United States v. Austin, 676 F.3d 924, 927–28 (9th Cir.

2011), to hold that it lacked jurisdiction to review Davis’

sentence, which was adopted pursuant to a Rule 11(c)(1)(C)

agreement that did not reference any Guidelines range, and

therefore did not meet either of Justice Sotomayor’s

exceptions in Freeman.

The original panel affirmed, citing Austin as the

controlling law of the circuit. United States v. Davis, No. 13-

30133, slip op. at 4–6.4 This case was successfully called en

banc to reconsider our prior determination that, under the

4

The panel engaged in a straight-forward application of Justice

Sotomayor’s binding concurrence in Freeman: First, the agreement did not

provide that Davis be sentenced within a particular Guideline range. Id.

at 6. Second, it did not expressly use a Guideline range that “was evident

from the agreement itself” to arrive at the 216-month term of

imprisonment. Id. Judge Berzon concurred in judgment, but urged us to

overrule Austin as wrongly decided. She viewed the decision to have

misapplied Marks to Freeman. Id. at 8–10 (Berzon, J., concurring).

UNITED STATES V. DAVIS 39

methodology prescribed by Marks, Justice Sotomayor’s

concurrence in Freeman constitutes the binding “holding” of

that case.

II. Legal Analysis

A.

In Marks v. United States, the Supreme Court made clear

that even splintered determinations of our highest court are

binding on lower federal courts: “When a fragmented Court

decides a case and no single rationale explaining the result

enjoys the assent of five Justices, ‘the holding of the Court

may be viewed as that position taken by those Members who

concurred in the judgment on the narrowest grounds . . . .’”

Marks v. United States, 430 U.S. 188, 193 (1977) (reversing

the Sixth Circuit’s determination that Memoirs v.

Massachusetts, 383 U.S. 413 (1966), had no binding

precedential effect because it was a plurality opinion). At

issue in Marks was the precedential effect of Memoirs—an

earlier, splintered Supreme Court opinion. In Memoirs, a

three-Justice plurality had held that sexually explicit literature

was constitutionally protected unless it met the three-part

definition of obscenity set forth in Roth v. United States,

354 U.S. 476 (1957).5 See Marks, 430 U.S. at 193 (citing

5

The proper test, as enumerated by the three-Justice plurality, was

“whether to the average person, applying contemporary community

standards, the dominant theme of the material taken as a whole appeals to

prurient interest.’ . . . . Under this definition . . . three elements must

coalesce: it must be established that (a) the dominant theme of the material

taken as a whole appeals to a prurient interest in sex; (b) the material is

patently offensive because it affronts contemporary community standards

relating to the description or representation of sexual matters; and (c) the

material is utterly without redeeming social value.” A Book Named “John

40 UNITED STATES V. DAVIS

Memoirs, 383 U.S. at 421). Justices Black and Douglas (both

writing separately) concurred in Memoirs on the broader

grounds that the First Amendment prohibits government

censorship of any “obscene” material. See Memoirs,

383 U.S. at 421, 424–33. Finally, Justice Stewart concurred

based on his somewhat different view that only “hard-core

pornography” may constitutionally be suppressed. Id. at 421

(citing his dissenting opinion in Mishkin v. State of N.Y.,

383 U.S. 502, 518 (1966)). In sum, six Justices agreed that

the material at issue in Memoirs was protected by the First

Amendment, but no five Justices agreed about the scope of

First Amendment protection for sexually explicit

material—nor about the proper reasoning to be employed to

reach that result. In this circumstance, Marks explained, the

three-Justice Memoirs plurality opinion, which applied the

Roth tests, “constituted the holding of the Court and provided

the governing standards,” because it was the “narrowest

grounds” for finding First Amendment protection. Marks,

430 U.S. at 193–94.

The Majority today rejects the only application of Marks

to Freeman that is consistent with stare decisis in favor of a

widely-criticized approach endorsed by one panel in the D.C.

Circuit in United States v. Epps, 707 F.3d 337, 351 (D.C. Cir.

2013).6 The Majority holds that Marks produces a

Cleland’s Memoirs of a Woman of Pleasure” v. Attorney Gen. of Com. of

Mass., 383 U.S. 413, 418 (1966).

6

In addition to being widely rejected by our sister circuits, Epps has

been criticized even within the D.C. Circuit. As Judge Kavanaugh

contended in United States v. Duvall, 740 F.3d 604 (D.C. Cir. 2013):

Following Justice Sotomayor’s opinion with regard to

the “based on” issue would produce results with which

UNITED STATES V. DAVIS 41

“controlling” opinion only when the “narrowest grounds” in

a splintered opinion is “represent[s] a common denominator

of the Court’s reasoning,” meaning “the reasoning of a

narrower opinion fit[s] entirely into the circle drawn by a

broader opinion.” Maj. Op. at 15.

The Majority’s adoption of a reasoning-based, “common

denominator” approach is fundamentally inconsistent with

Marks itself. In Memoirs, none of Justices Stewart, Black, or

Douglas agreed with the rule enumerated by the Justice

Brennan plurality (that the Court should apply the Roth test

to determine whether speech is constitutionally protected).

Thus, there was no “common denominator” in Memoirs, as

that term is defined by the Majority today. Yet, Marks

applied the three-Justice plurality opinion authored by Justice

Brennan. It is true, of course, that in every circumstances in

which the Brennan plurality would find speech protected

under the Roth obscenity test, Justices Black and Douglas

(who ascribe to the broader view that obscene speech is

always constitutionally protected) would agree with the

plurality’s result. But there is a distinction between

a majority of the Supreme Court in Freeman would

agree because—to put it in simple terms—“sometimes”

is a middle ground between “always” and “never.” In

other words, when Justice Sotomayor concludes that a

plea agreement was based on the Guidelines, she would

agree with the result reached under Justice Kennedy’s

opinion for four Justices. When she concludes that a

plea agreement was not based on the Guidelines, she

would agree with the result reached under Chief Justice

Roberts’s opinion for four Justices. But unlike every

other court of appeals, Epps did not follow this

commonsense approach to interpreting Freeman.

Id. at 612 (emphasis added).

42 UNITED STATES V. DAVIS

agreement with a result and agreement with the reasoning

that leads one to adopt that result that appears to be lost on

my colleagues in the Majority. Indeed, the Majority’s own

reasoning supports only a votes-based reading of Marks:

Justice Brennan’s plurality opinion was the “narrowest

grounds” for the Court’s holding in Memoirs because it

would always produce a result with which at least five

Justices would agree.7

7

The Majority argues that their approach is not “fundamentally

inconsistent with Marks itself.” Maj. Op. at 15–16, n.7. This, because I

have not identified a subsequent Supreme Court case that has

unequivocally stated that Marks requires an unwavering focus on results.

But, as explained above, the Majority overlooks Marks itself. Under the

rule the Majority advances today, we would be unable to derive a

controlling rule from Memoirs, the earlier Supreme Court case with

respect to which the Court in Marks was called upon to give binding

effect. Yet that would be directly contrary to Marks’ holding that we can

derive a controlling rule from Memoirs.

By the same token, the Majority’s rule would preclude us from

deriving a binding rule from Walter v. United States, 447 U.S. 649 (1980),

where five Justices voted that the government’s warrantless seizure of

contraband films and viewing of those films on a projector violated the

defendant’s Fourth Amendment right. Id. at 652, 657, 660–62. Two

Justices voted for this result on the grounds that the government’s act of

viewing the films expanded the scope of a private party’s earlier search,

which had consisted only of opening the package that contained the films.

Id. at 657. Three Justices voted for this result for a completely different

reason: that the government had exceeded its authority under the “plain

view” doctrine. Id. at 660–62. Thus, neither the approach adopted by the

plurality nor the approach advanced by the concurrence was a “logical

subset” of the other; and under the rule the Majority announces today, we

could discern no “controlling” rule in Walter.

Yet such a conclusion is inconsistent with the Court’s holding, only

three years later in Jacobsen, that Walter did set forth a controlling rule:

the rule advanced by the two-Justice plurality. See United States v.

UNITED STATES V. DAVIS 43

This reading is also consistent with Marks’ dictate that

“the holding of the Court . . . [is] the position taken by those

Members who concurred in the judgment on the narrowest

grounds . . . .” Marks, 430 U.S. at 193 (emphasis added).

Marks’ emphasis on the Court’s “judgment” demonstrates

that it is the ultimate “vote” of five Justices that is important

in determining the binding effect of a splintered Supreme

Court opinion. That is, Marks requires us to find a “legal

standard which, when applied, will necessarily produce

results with which a majority of the Court from that case

would agree.” United States v. Williams, 435 F.3d 1148,

1157 n.9 (9th Cir. 2006) (emphasis added). That is not to say,

of course, that the respective rationales of a splintered

Supreme Court decision are irrelevant. Consideration of

competing rationales is necessary to determine which would

consistently produce a result with which a majority of the

Court would agree. But the Majority’s reasoning-based

approach must be incorrect, because there was no common

reasoning in Memoirs, yet the Marks Court was nonetheless

able to derive from Memoirs a binding rule, which it applied

in Marks.

Jacobsen, 466 U.S. 109 (1984). The plurality’s view was the

“controlling” rule of Walter, because four Justices in dissent had also

voted for the plurality’s rule. Id. at 115–16 (“[A] majority” in Walter

“agree[d]” that “the legality of the governmental search must be tested by

the scope of the antecedent private search.”). Like in Marks, it was the

vote of a majority of Justices that counted. I need not belabor the point,

discussed more thoroughly infra, at pp. 52–56, here. Suffice it to say that,

as a federal intermediary court, we are not free to adopt a reasoning-based

approach to Marks—an approach plainly inconsistent with the facts and

holdings of Marks and later Supreme Court cases interpreting splintered

opinions—simply because the Court has not yet had occasion expressly to

reject that reasoning-based approach.

44 UNITED STATES V. DAVIS

The Majority’s adoption of a “logical subset”

precondition to Marks applicability is plagued by the same

logical fallacy. King v. Palmer, the D.C. Circuit case on

which the Majority relied, justified its invention of a logical

subset requirement on the grounds that:

Marks is problematic[] [i]f applied in

situations where the various opinions

supporting the judgment are mutually

exclusive [because] Marks will turn a single

opinion that lacks majority support into

national law. When eight of nine Justices do

not subscribe to a given approach to a legal

question, it surely cannot be proper to endow

that approach with controlling force . . . .”

King v. Palmer, 950 F.2d 771, 782 (D.C. Cir. 1991). Even

accepting, arguendo, the King court’s premise that a

concurring opinion should be given stare decisis effect only

when it consistently produces a result with which a majority

of the Court would agree, that, again, would support the

adoption of a rule that it is each Justice’s vote, and not his

reasoning, that counts under Marks. The King court’s

conclusion that Marks “works” only when a majority of

Justices “subscribe to a given approach to a legal question,”

such that “one opinion supporting the judgment . . . fit[s]

entirely within a broader circle drawn by the others,” id. at

782, simply does not follow from that court’s premise—or

from the many Supreme Court precedents interpreting and

applying Marks to splintered opinions over the last four

UNITED STATES V. DAVIS 45

decades.8 Indeed, to require complete overlap between both

the result and the reasoning of Justices in the majority before

a binding rule can be discerned renders Marks a virtual

nullity. Agreement as to both the Court’s reasoning and its

result does not produce a concurring opinion—it produces a

“join.”

And even if a reasoning-based approach to Marks were

not fundamentally incompatible with Marks itself, the idea

that a court’s holding, adopted by a majority of judges, must

have a rationale common throughout the majority is a novelty

to any branch of our government, including the judiciary.

Even our courts adhere to that most democratic of principles:

as to how to decide this case, the majority rules. People,

including legislators and judges, may vote for a result for a

variety of different reasons. That is how coalitions are

achieved and compromises made to reach results although the

distinct motives and thinking which produced the majority’s

result remain quite distinct.

8

The Supreme Court has never adopted a “logical subset” requirement

in its numerous applications of Marks over the past four decades. The

Supreme Court has on numerous occasions applied Marks to its own

decisions. See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2738 n.2 (2015)

(holding that a three-Justice plurality opinion constituted the “holding” of

the Court in Baze v. Rees, 553 U.S. 35 (2008), because Justices Scalia and

Thomas had concurred in the result reached by the plurality but on

“broader” grounds); Panetti v. Quarterman, 551 U.S. 930, 949 (2007)

(citing Marks and holding simply that “Justice Powell’s concurrence [in

Ford v. Wainwright, 477 U.S. 399 (1986)], . . . offered a more limited

holding. When there is no majority opinion, the narrower holding

controls.”). In neither of these cases did the Supreme Court state that the

controlling opinion must be a “logical subset” of the broader view that

produces the same result—it has only reiterated that the controlling

opinion is the one that relies on “narrower” grounds.

46 UNITED STATES V. DAVIS

It is the result produced by majority vote that determines

the stare decisis effect of the judgment. That is because

whether the majority vote is produced by the adoption of one

rationale or two, the rule of law made—the decision—is

based on a rationale or rationales expected to remain the same

and produce the same result in the next applicable case. After

all, “stare decisis” means “to stand by things decided.”

B.

A simple application of Marks’ methodology to Freeman

compels a finding that Justice Sotomayor’s concurrence is the

“holding” of Freeman. See United States v. Austin, 676 F.3d

924, 927–28 (9th Cir. 2012). Five members of the Court

agreed that Freeman—who had been sentenced pursuant to a

Rule 11(c)(1)(C) agreement—was eligible for sentencing

modification under 18 U.S.C. § 3582(c)(2), because his plea

agreement had been “based on” a subsequently modified

sentencing Guidelines range. Freeman v. U.S., 564 U.S. 522,

534, 544 (2011). Writing for a four-member plurality, Justice

Kennedy reasoned that a plea agreement is “based on”

applicable Guidelines whenever the sentencing judge at least

consulted those guidelines before approving the proposed

sentence—which, Justice Kennedy explained, the judge is

statutorily “required” to do in “every case.” See Freeman,

564 U.S. at 529 (plurality opinion).

Concurring in result, Justice Sotomayor, a former district

court judge experienced in actual sentencing, reasoned that

plea agreements are sometimes based on sentencing

guidelines, but only when the agreement itself “expressly

uses a Guidelines sentencing range applicable to the charged

offense to establish the term of imprisonment,” or the

sentencing range is otherwise “evident from the agreement

UNITED STATES V. DAVIS 47

itself.” Id. at 534, 539 (Sotomayor, J., concurring) (emphasis

added). Chief Justice Roberts, writing for the four dissenting

Justices, “agree[d] with Justice Sotomayor that ‘the term of

imprisonment imposed pursuant to a [Rule 11(c)(1)(C)]

agreement is . . . based on the agreement itself.’” Id. at 544

(Roberts, C.J., dissenting) (emphasis added) (internal

quotation marks omitted). However, the dissent would find

that plea agreements are a matter of contract and thus never

“based on” the sentencing Guidelines. Id. at 544–51

(Roberts, C.J., dissenting).

Justice Sotomayor’s opinion is controlling because

“‘sometimes’ is the middle ground between ‘always’ and

‘never.’” See United States v. Duvall, 740 F.3d 604, 612

(D.C. Cir. 2013) (Kavanaugh, J., concurring in the denial of

rehearing en banc); see also supra, n.6. In circumstances in

which Justice Sotomayor would permit reduction of a prior

sentence, so too would the plurality (resulting in a five-

Justice majority). Where Justice Sotomayor’s criterion are

not met, she would find agreement in the four-Justice dissent

that the prisoner’s sentence is not “based on” the Guidelines

(which would also result in a five-Justice majority). Justice

Sotomayor’s approach therefore constitutes the “narrowest

grounds” for reaching a result that, in any circumstance, will

be consistent with the result that a majority of the Supreme

Court would reach under Freeman.

Under Justice Sotomayor’s framework, Davis cannot seek

resentencing, because his plea agreement does not meet either

of her exceptions. It neither expressly cites, nor otherwise

manifests that it is predicated upon, any particular Guidelines

range. In fact, it omits several details (such as criminal

history, and adjustments) necessary even to calculate a

Guidelines range. Davis’s sentence is therefore not subject to

48 UNITED STATES V. DAVIS

modification under § 3582(c)(2). The district court correctly

determined that it lacked jurisdiction to resentence Davis, and

the panel should affirm on that basis.

The Majority rejects this straight-forward approach on the

grounds that circumstances could arise in which Justice

Sotomayor would find a plea “based on” sentencing

guidelines, but the Kennedy plurality would not. The

Majority posits two hypotheticals, both of which assume

express agreement in a plea bargain that a particular

sentencing range applies (such that Justice Sotomayor would

find the plea agreement “based on” the sentencing

Guidelines, and subject to § 3582(c)(2) resentencing). See

Maj. Op. at 18–20. Both hypotheticals then posit that the

“sentencing court . . . might consider and reject the guideline

range used by the parties”—in one scenario because the judge

believed another range should apply, and, in the other, for

“policy” reasons. Id. The Majority suggests that in either of

these circumstances, the Freeman plurality would not find the

plea agreement “based on” the sentencing guidelines, and

thus would not grant relief.

The Majority is simply incorrect. The very fact that the

sentencing judge in the Majority’s hypotheticals must reject

the Guidelines range recommended by the parties necessarily

presupposes that the judge’s analysis started with a

consideration of the Guidelines range recommended in the

plea agreement. Under the Kennedy plurality’s approach, this

consideration, at the inception of the sentencing, is enough to

entitle a defendant to seek resentencing—regardless of the

judge’s ultimate reasons for approving the plea agreement.

See Freeman, 564 U.S. at 529–30 (plurality opinion) (“[I]f

the judge uses the sentencing range as the beginning point to

explain the decision to deviate from it, then the Guidelines are

UNITED STATES V. DAVIS 49

in a real sense a basis for the sentence.” (emphases added)).

The Majority recognizes as much on page 26 of its opinion,

wherein it quotes Justice Kennedy’s statement that “the

applicable Guidelines policy statement ‘forbids the district

judge to accept an 11(c)(1)(C) agreement without first

evaluating the recommended sentence’ under the Guidelines.”

Maj. Op. at 26 (quoting Freeman, 564 U.S. at 529, and USSG

§ 6B1.2(c)).

The Majority criticizes my reading of Justice Kennedy’s

plurality opinion—a reading adopted by an overwhelming

majority of circuits—as “oversimplified.” In support of its

more limited reading, the Majority relies solely on Justice

Kennedy’s statement that a “recommended sentence is likely

to be based on the Guidelines.” Maj. Op. at 18 n.9 (quoting

Freeman, 564 U.S. at 534).

But Justice Kennedy’s use of the word “likely” in one

sentence cannot be read in isolation. In the immediately

preceding paragraph, Justice Kennedy in fact rejects the

notion—advanced by the Majority—that his approach would

limit relief to only a “subset of defendants.” Freeman,

564 U.S. at 533–34 (“[When] [t]he Commission determine[s]

that [the] Guidelines [are] flawed, and therefore that

sentences that relied on them ought to be reexamined[,]

[t]here is no good reason to extend the benefit of the

Commission’s judgment only to an arbitrary subset of

defendants whose sentences were accepted in light of a since-

rejected Guidelines range based on whether their plea

agreements refer to the Guidelines.”). Indeed, Justice

Kennedy criticizes Justice Sotomayor’s approach because it

would fail to permit resentencing in all cases: “Congress

enacted § 3582(c)(2) to remedy systemic injustice, and the

approach outlined in [Justice Sotomayor’s] opinion

50 UNITED STATES V. DAVIS

concurring in the judgment would undercut a systemic

solution.” Id. at 534 (emphasis added).

Nothing about Justice Kennedy’s opinion suggests any

exceptions. He notes that the “Guidelines require the district

judge to give due consideration to the relevant sentencing

range, even if the defendant and prosecutor recommend a

specific sentence as a condition of the guilty plea.” Id. at 530

(emphases added). He further reasons that “[f]ederal

sentencing law requires” the sentencing judge to look to the

Guidelines as “a framework or starting point” in “every case.”

Id. at 529. Thus, notwithstanding his use of the word “likely”

in one sentence, Justice Kennedy’s opinion is most

reasonably read as endorsing an approach under which a

defendant may “always” seek resentencing on the basis of

amended Guidelines. Certainly, for the reasons already stated

above, Justice Kennedy would permit a defendant to seek

resentencing in the examples given by the Majority.

The Majority imbues far more meaning into Justice

Kennedy’s single use of the word “likely” than the rest of

Justice Kennedy’s plurality opinion can bear. It may be that

Justice Kennedy simply did not want to speak in absolutes.

That is, he declined to say, as a matter of empirical fact, that

a judge always consults the sentencing Guidelines, because

there is always the possibility that a judge could make a

mistake or fail to follow the law. But one thing is for sure:

Justice Kennedy does not even hint at a case in which the

sentencing judge could lawfully start sentencing with any

consideration other than the Guidelines, and the Majority has

not suggested any either. See 18 U.S.C. § 3553 (directing

that a “court, in determining the particular sentence to be

imposed, shall consider . . . the sentencing range established

for . . . the applicable category of offense committed by the

UNITED STATES V. DAVIS 51

applicable category of defendant as set forth in the

guidelines” (emphasis added)); see also Gall v. United States,

552 U.S. 38, 49 (2007) (“[A] district court should begin all

sentencing proceedings by correctly calculating the applicable

Guidelines range. As a matter of administration and to secure

nationwide consistency, the Guidelines should be the starting

point and the initial benchmark.” (citing Rita v. United States,

551 U.S. 338, 347–48 (2007))).

Indeed, the failure of a sentencing judge to start the

calculation of a sentence by considering the applicable

sentencing Guidelines is in itself grounds for reversal for

resentencing. See Gall, 552 U.S. at 51 (instructing that

appellate courts must “first ensure that the district court

committed no significant procedural error, such as failing to

calculate . . . the Guidelines range”); United States v. Denton,

611 F.3d 646, 651 (9th Cir. 2010) (explaining that “[a] failure

to calculate the correct advisory range constitutes procedural

error” justifying reversal and remand for resentencing);

United States v. Hammons, 558 F.3d 1100, 1106 (9th Cir.

2009) (holding that a sentencing court “committed plain error

by failing to . . . calculate the app[licable] guideline range”

and vacating and remanding for resentencing).

The Majority’s contrary analysis appears to substitute the

Freeman plurality’s requirement that a trial judge “consider”

the Guidelines with its own innovation—that the trial judge

must base his ultimate acceptance of the plea agreement on

the Guidelines in order for a defendant to be entitled to seek

resentencing. See Maj. Op. at 18–20. But the latter is not the

test enumerated by Justice Kennedy in Freeman. Properly

read, Justice Kennedy’s opinion would unquestionably permit

resentencing in the hypotheticals offered by the Majority. See

id. Thus, even if the Majority were correct that Marks applies

52 UNITED STATES V. DAVIS

only when one opinion is a “logical subset” of another, that

precondition would be met here.

C.

But even putting aside the “logical subset” issue, the

Majority still cannot reach its result consistent with basic

principles of stare decisis for the independent reason that we,

as a federal intermediate court, are bound by holdings upon

which five Justices of the Court agree—even if that

agreement derives in part from dissenting Justices. The

Supreme Court’s fragmented decision in National Mutual

Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582

(1949), is a famous illustration of this principle.9 Since

9

The question in Tidewater was whether Congress’s amendment to

28 U.S.C. § 1332 to permit citizens of the District of Columbia to be

characterized as “citizens of a state” for purposes of diversity jurisdiction

was constitutional under Article III. The problem in that case was that the

Supreme Court had previously addressed that same question (albeit in the

absence of a Congressional statute) and had interpreted Article III’s

reference to “citizens of a state” as not encompassing citizens of the

District of Columbia. See Hepburn & Dundas v. Ellzey, 6 U.S.

(2 Cranch.) 44 (1805); see also U.S. Const. art. III, § 2, cl. 1 (“Federal

courts will have jurisdiction over: . . . citizens of a state . . . .”).

Nevertheless, by a vote of 5 to 4, the Tidewater Court upheld the

constitutionality of a Congressional grant of diversity jurisdiction to

citizens of Washington D.C., though no five justices agreed on a rationale.

Writing for a three-justice plurality, Justice Jackson voted to uphold

the statute under the rationale that Congress has the power to expand

Article III by statute and thereby to confer subject-matter jurisdiction on

bases not specified in Article III. See id. at 583–603. That is, Justice

Jackson would not disturb Hepburn’s interpretation of Article III; he

would simply hold that Congress may simply add a new basis for

jurisdiction that does not exist in Article III. In a concurrence, Justice

Rutledge, joined by Justice Murphy, strenuously disagreed that Congress

UNITED STATES V. DAVIS 53

Tidewater, courts have universally accepted that Congress

may not expand the scope of subject-matter jurisdiction

conferred by Article III through passage of a Congressional

Act.10 Yet this rule can be divined only by combining a two-

had the power to expand Article III jurisdiction beyond the bases

enumerated in the Constitution. See id. at 604–17. Nevertheless, Justice

Rutledge would overrule Hepburn’s interpretation of Article III and would

reinterpret Article III’s reference to “citizen[s] of a state” as including

citizens of Washington D.C. See id. at 617–626. Justice Rutledge

reasoned that “nothing but naked precedent, . . . and the prestige of

[Justice] Marshall’s name, supports . . . [the] unjust and discriminatory

exclusion of District citizens from the federal courts. All of the reasons

of justice, convenience, and practicality . . . point to the conclusion that

[citizens of the District of Columbia] should enter freely and fully as other

citizens and even aliens do.” Id. at 617. The four remaining Justices

would have declined to overrule Hepburn; but they—like Justice

Rutledge—also vehemently rejected Justice Jackson’s suggestion that

Congress had the power to create subject-matter jurisdiction not

conferred by Article III. Thus, based on the rationale that the Court was

bound by Justice Marshall’s interpretation of Article III in Hepburn, and

that Congress lacked authority to expand Article III, the dissenting

Justices would have found the statute unconstitutional. See id. at 626–46.

In sum, six Justices agreed that Congress could not expand the scope of

subject-matter jurisdiction of Article III courts beyond that provided by

the Constitution. This view—which finds majority support only by

combining the views of two concurring and four dissenting justices—is

the governing rule. Tidewater therefore demonstrates that a “majority”

view of the Court that binds us as intermediate courts may be comprised

of dissenting and concurring justices, regardless of the quite obvious lack

of any “logical subset” between the views expressed by the concurring and

dissenting Justices.

10

See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 65 (1996)

(describing as “fundamental” the notion “that Congress could not expand

the jurisdiction of the federal courts beyond the bounds of Article III” and

overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) to the extent

it suggested otherwise); Rosmer v. Pfizer Inc., 263 F.3d 110, 120 n.5 (4th

Cir. 2001) (citing Tidewater for the proposition that “Congress cannot

54 UNITED STATES V. DAVIS

Justice concurrence in Tidewater with a four-Justice dissent.

See id. at 604–46.

United States v. Jacobsen, 466 U.S. 109 (1984), provides

a more recent example of the same rule. The question in

Jacobsen was the government’s authority to conduct a

warrantless search on the heels of a private search that

identified potential contraband. The Jacobsen Court

extracted the “controlling” legal standard from its prior

precedent in Walter v. United States, 447 U.S. 649 (1980), by

combining the opinion of the Walter Court (which garnered

only two votes) with the opinion of four dissenting Justices,

which it described as the “standard . . . adopted by the

majority of the Court in Walter . . . .” Id. at 116–17 & n.12

(emphasis added).

In Walter, a private party had opened a package

containing films that, from the descriptions on the packaging,

the private party concluded were contraband. Walter v.

United States, 447 U.S. 649, 651–52 (1980). The government

seized the films and, without obtaining a warrant, screened

them from a projector. Id. at 652. Delivering the two-Justice

opinion of the Court, Justice Stevens reasoned that the

government had violated the defendant’s Fourth Amendment

rights by actually watching films because the private party’s

search had consisted only of opening the package that

contained the films. Id. at 657 (The FBI’s subsequent

confer jurisdiction on Article III courts by statute when Article III does not

authorize that jurisdiction.”); Lo Duca v. United States, 93 F.3d 1100,

1108 (2d Cir. 1996) (explaining that “[i]n Tidewater, . . . six Justices

reaffirmed the traditional view that federal courts are courts of limited

jurisdiction whose judicial powers are bounded by Article III,” a notion

that dates “as far back as Marbury v. Madison . . . .”).

UNITED STATES V. DAVIS 55

screening of such films constituted an “expansion of the

search that had been conducted previously by the private

party.”); see also Jacobsen, 446 U.S. at 115–16 (quoting

Walter, 447 U.S. at 657 (Opinion of Stevens, J., joined by

Stewart, J.)). Three Justices in Walter concurred in the

judgment on the grounds that the government had exceeded

its authority under the “plain view” doctrine, but expressly

rejected the notion that the scope of one’s Fourth Amendment

right could be tethered to the scope of an antecedent private

search. Walter, 447 U.S. at 660–62 (White, J., concurring).

A four-Justice dissent agreed with Justice Stevens that the

legality of a governmental search depended on the scope of

the private party’s antecedent search, but would have found

no constitutional violation because “the FBI’s subsequent

viewing of the movies on a projector did not ‘change the

nature of the search’ and [thus] was not an additional search

subject to the warrant requirement.” Id. at 663–64

(Blackmum, J., dissenting); see also Jacobsen, 446 U.S. at

116.

Presented with these competing views in Walter, the

Jacobsen Court (in a six-Justice opinion of the Court) held

that “a majority [in Walter] did agree on the appropriate

analysis of a governmental search which follows on the heels

of a private one. Two Justices [referring to Justices Stevens

and Stewart] . . . . [and] [f]our additional Justices [referring

to the dissent] were . . . of the view that the legality of the

governmental search must be tested by the scope of the

antecedent private search.” Jacobsen, 446 U.S. at 115–16.

The Majority opinion here simply cannot be squared with the

Court’s reading of Walter in Jacobsen. Jacobsen recognized

that the rule adopted by the two-Justice plurality in Walter

was the precedential holding of the Walter Court, because it

garnered the approval of six Justices (a majority) of the

56 UNITED STATES V. DAVIS

Court. This was so even though the three-Justice concurrence

specifically rejected the plurality’s rationale, and thus neither

the plurality opinion nor the concurrence was a “logical

subset” of the other.

Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp.,

460 U.S. 1 (1983) [hereinafter, “Memorial Hospital”]

provides yet another example. There, the Court considered

whether a lower court was bound to apply the Colorado River

test,11 notwithstanding that a four-Justice plurality in Will v.

Calvert Fire Insurance Co., 437 U.S. 655 (1978), had

purported to overrule it. Id. at 17. The Memorial Hospital

Court affirmed that the “Court of Appeals [had] correctly

recognized that the four dissenting Justices and Justice

Blackmum [who concurred in judgment in Will] formed a

majority to require application of the Colorado River test.”

Id. (emphases added). By holding that the Fourth Circuit had

11

Colorado River held that federal courts have discretion in

“exceptional” circumstances to stay federal court proceedings pending the

resolution of a parallel state court proceeding. See Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 813, 817–18 (1976)

(recognizing, however, that “[a]bstention from the exercise of federal

jurisdiction is the exception, not the rule”). The “Colorado River test”

refers to the list of factors courts consider in determining whether to

invoke this exceptional prudential abstention doctrine. These factors

include: (a) the extent to which the federal legislation pursuant to which

the federal suit is brought favors the state versus federal forum; (b) which

forum offers the “greatest experience and expertise” in the particular

subject-matter; (c) the “absence of any substantial progress in the federal-

court litigation”; (d) the extent to which the suit involves questions or

“rights governed by state law”; (e) “the geographical inconvenience of the

federal forum”; (f) “the desirability of avoiding piecemeal litigation”;

(g) “the order in which jurisdiction was obtained by the concurrent

forums”; and (h) “the Government’s previous willingness to litigate

similar suits in state court.” Memorial Hospital, 460 U.S. at 16.

UNITED STATES V. DAVIS 57

“correctly recognized” that it was “require[d]” to apply the

Colorado River test by virtue of a five-Justice majority

comprised of four dissenting Justices and one concurring

Justice, id., the Supreme Court in Memorial Hospital

confirmed that its precedents relating to the consideration of

dissenting opinions do bind us as a federal intermediate court

(contrary to the suggestion of my concurring colleagues).

The Majority is correct that the Justices in Freeman did

not agree on much. But a five-Justice majority (Justice

Sotomayor, plus the four dissenting Justices) did agree on one

point—that a sentence imposed under a Rule 11(c)(1)(C) plea

agreement is always “based on the [plea] agreement” itself.

See, e.g., Freeman, 564 U.S. at 534 (Sotomayor, J.,

concurring) (“[T]he term of imprisonment imposed by a

district court pursuant to an agreement authorized by Federal

Rule of Criminal Procedure 11(c)(1)(C) . . . agreement[] is

‘based on’ the agreement itself, not on the judge’s calculation

of the Sentencing Guidelines.”); see also id. at 544 (Roberts,

C.J., dissenting) (“I agree with Justice SOTOMAYOR that

‘the term of imprisonment imposed pursuant to a [Rule

11(c)(1)(C)] agreement is, for purposes of § 3582(c)(2),

“based on” the agreement itself.’” (quoting Justice

Sotomayor’s concurrence, id. at 534)). This was a holding

that received the vote of five Justices (a majority) of the

Court. Like the Fourth Circuit in Memorial Hospital, we are

bound by that holding.12

12

The Majority incorrectly suggests that Tidewater and its progeny

somehow support a reasoning-based approach to Marks. Maj. Op. at

15–16, n.7. But quite the opposite is true. In Tidewater, Justice Rutledge

(joined by Justice Murphy) held that Congress’ power to confer Article III

jurisdiction was limited to the bases enumerated in the Constitution. See

discussion supra, n.9. And four dissenting Justices expressly agreed with

that holding. Of course, Justice Rutledge and the four dissenting Justices

58 UNITED STATES V. DAVIS

ultimately disagreed about whether Article III’s reference to “citizen[s] of

a state” should be understood as encompassing District of Columbia

citizens. This disagreement led the two factions of Justices to vote for

different case results. But all six Justices voted to hold that the

Constitution provided the starting point for the Court’s analysis; Congress

had no authority to add new bases for Article III jurisdiction by statute.

Tidewater and its progeny hold that we are bound by holdings from

splintered Court opinions that garner the five or more votes from the

Court.

Consideration of dissenting opinions to derive the “narrowest

grounds” does not focus on the various reasonings as determinative of

results. Indeed, it is just the opposite. Consideration of dissenting

opinions is done not for the purpose of combining the rationales—an

impossible task, since they are contradictory—but for predicting the vote

(the result) which the dissenting opinions would add to the plurality

opinion’s votes for the next analogous case.

It is not the contradictory rationales that combine in Tidewater to

result in a rule that “Congress may not expand the scope of subject-matter

jurisdiction conferred by Article III through passage of a Congressional

Act.” See supra, at pp. 52–54. It is the combined results of Justice

Rutledge’s and Justice Murphy’s votes in favor of such a rule, plus the

similar votes of the four dissenting Justices on that same issue that

established the rule.

Seen from the other side of the case, it is the combination of the result

of the votes of the 3-member plurality that Congress had the power to so

expand subject-matter jurisdiction, with the 2-member concurrence, which

vehemently rejected such power, but found that Art. III itself was

originally intended to include D.C. citizens for purposes of establishing

diversity of citizenship jurisdiction, that established the rule.

It was not a rule “derived by combining the ‘views’ or ‘rationales[s]’

of Tidewater’s concurrence and dissent.” Majority Op. 16, n.7. Just the

opposite. It was a rule derived from the votes of the Justices,

notwithstanding contradictory views or rationales used to explain the

votes.

UNITED STATES V. DAVIS 59

The Majority blatantly ignores Chief Justice Roberts’

express agreement with Justice Sotomayor and focuses only

on the disagreements between them. But of course there are

points on which they disagree; that is why there is both a

concurrence and a dissent in Freeman (just as there was

ample disagreement between the concurring and dissenting

Justices in Tidewater). But those disagreements do not

negate the fact that there are no sentence reductions which

Justice Sotomayor would deny that the four dissenting

Justices would not also deny. Where, as here, a plea

agreement contains no mention of either the sentencing

Guidelines or the criteria necessary to calculate the applicable

Guidelines range (Justice Sotomayor’s two exceptions), five

Justices in Freeman (Justices Sotomayor, Roberts, Scalia,

Thomas, and Alito) would always vote to deny the

defendant’s petition to seek resentencing. Under Marks, we

are bound by this result.

In sum, the Majority makes a good case that “federal

sentencing law,” Rule 11(c)(1)(C), and the Guidelines’ policy

statements all support the view adopted by the Justice

Kennedy plurality in Freeman. See Maj. Op. at 25–26. And

these arguments may well be the basis for a future Supreme

Court opinion abrogating Freeman and adopting outright the

plurality opinion of Justice Kennedy. But that is the Court’s

province, not ours. As an intermediate federal court, we are

not free to disregard binding Supreme Court precedent simply

because we can think of a rule we like better. The purpose of

determining a “holding” is to apply stare decisis in decisions

I note the Majority’s “logical subset” also cannot be squared with

Tidewater, as neither opinion in Tidewater was a logical subset of the

other, and yet we have derived a binding holding from that splintered

decision.

60 UNITED STATES V. DAVIS

by intermediate appellate courts. It is only by intermediate

courts following the holdings of the Supreme Court that one

can hope to have predictability of law—the Rule of

Law—from intermediate courts of appeal. While I may not

agree with Justice Sotomayor’s approach, I think Marks

constrains our discretion. The Majority today defies stare

decisis by adopting a contrary approach and result.

* * *

For all of these reasons, we had it right in Austin, and I

respectfully dissent.