United States of America v. JOSE LUIS HERNANDEZ -MARTINEZ , AKA Efigenio Aispuro-Aispuro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
J OSE LUIS HERNANDEZ -M ARTINEZ ,
AKA Efigenio Aispuro-Aispuro,
Defendant-Appellant.
No. 15-30309
D.C. No.
3:98-cr-00572-
MO-8
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EFIGENIO AISPURO-AISPURO, AKA
Jose Luis Hernandez-Martinez,
Defendant-Appellant.
No. 15-30310
D.C. No.
3:06-cr-00274-
MO-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEJANDRO RENTERIA-SANTANA ,
Defendant-Appellant.
No. 15-30315
D.C. No.
3:10-cr-00250-
MO-1

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2 UNITED STATES V. HERNANDEZ -M ARTINEZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BARTOLO F AVELA GONZALES , AKA
Bartolo, AKA Gordo, AKA Jose
Everando Sanchez-Avendano, AKA
Jose Martin Verdugo,
Defendant-Appellant.
No. 15-30347
D.C. No.
3:06-cr-00233-
MO-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
J OSE GARCIA-ZAMBRANO ,
Defendant-Appellant.
No. 15-30351
D.C. No.
3:11-cr-00467-
MO-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWIN M AGANA -SOLIS , AKA
Manuel Cardenas-Landa, AKA
Roberto Lopez-Delgado, AKA
Meno,
Defendant-Appellant.
No. 15-30352
D.C. No.
3:11-cr-00467-
MO-8

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UNITED STATES V. HERNANDEZ -M ARTINEZ 3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DIEGO BERMUDEZ -ORTIZ ,
Defendant-Appellant.
No. 15-30353
D.C. No.
3:11-cr-00467-
MO-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OBDULIO ALVARADO -PONCE ,
Defendant-Appellant.
No. 16-30000
D.C. No.
3:12-cr-00442-
MO-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KAO FEY SAECHAO , AKA
Doughboy,
Defendant-Appellant.
No. 16-30170
D.C. No.
3:11-cr-00096-
MO-1

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4 UNITED STATES V. HERNANDEZ -M ARTINEZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANGEL RAMIREZ -ARROYO,
Defendant-Appellant.
No. 16-30199
D.C. No.
3:08-cr-00228-
MO-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANKY ENRIQUE ALVARADO-
GOMEZ ,
Defendant-Appellant.
No. 16-30294
D.C. No.
3:08-cr-00294-
MO-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSCAR FRANCISCO M ACIAS -OVALLE ,
AKA Tijuana,
Defendant-Appellant.
No. 17-30013
D.C. No.
3:08-cr-00228-
MO-1
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief Judge, Presiding

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UNITED STATES V. HERNANDEZ -M ARTINEZ 5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS PULIDO -AGUILAR,
Defendant-Appellant.
No. 15-30354
D.C. No.
3:10-cr-00142-
KI-1
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
J OSE CARRANZA GONZALEZ ,
Defendant-Appellant.
No. 15-30377
D.C. No.
3:12-cr-00154-
SI-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALEKSANDER GORBATENKO ,
Defendant-Appellant.
No. 15-30385
D.C. No.
3:10-cr-00396-
SI-1

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6 UNITED STATES V. HERNANDEZ -M ARTINEZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OMAR PEREZ -M EDINA ,
Defendant-Appellant.
No. 16-30004
D.C. No.
3:12-cr-00660-
SI-1
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDUARDO B OCANEGRA -M OSQUEDA ,
Defendant-Appellant.
No. 15-30383
D.C. No.
6:11-cr-60135-
AA-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERTO C ERVANTES -E STEVA, AKA
Victor Antonio Cervantes,
Defendant-Appellant.
No. 15-30391
D.C. No.
6:12-cr-00400-
AA-1
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding

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UNITED STATES V. HERNANDEZ -M ARTINEZ 7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
J ULIAN ALARCON CASTANEDA ,
Defendant-Appellant.
No. 16-30040
D.C. No.
3:11-cr-00412-
BR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SERGIO AGUILAR-SAHAGUN ,
Defendant-Appellant.
No. 16-30041
D.C. No.
3:10-cr-00311-
BR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PABLO B ARAJAS LOPEZ ,
Defendant-Appellant.
No. 16-30090
D.C. No.
3:07-cr-00050-
BR-5
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding

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8 UNITED STATES V. HERNANDEZ -M ARTINEZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
M OISES LOPEZ -PRADO ,
Defendant-Appellant.
No. 16-30089
D.C. No.
3:10-cr-00510-
JO-3
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCISCO J AVIER CARDENAS -
CORONEL ,
Defendant-Appellant.
No. 16-30162
D.C. No.
3:12-cr-00227-
HZ-1
OPINION
Appeals from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted March 7, 2019
Portland, Oregon
Filed August 13, 2019

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UNITED STATES V. HERNANDEZ -M ARTINEZ 9
Before: Susan P. Graber and Marsha S. Berzon, Circuit
Judges, and Eduardo C. Robreno,* District Judge.
Opinion by Judge Berzon
SUMMARY**
Criminal Law
The panel affirmed the district court’s denials of twenty-
three defendants’ motions pursuant to 18 U.S.C.
§ 3582(c)(2) for sentence reductions based on retroactive
Sentencing Guidelines Amendment 782, which revised the
Guidelines’ drug quantity table by reducing the base offense
level for most drugs and quantities by two levels.
The district courts denied the motions, concluding that
the defendants were categorically ineligible in light of
U.S.S.G. § 1B1.10(b)(2)(A), which generally prohibits a
sentence reduction if the original term of imprisonment is
below the lower end of the amended Guidelines range. The
district courts further concluded that the defendants were not
eligible for relief under the limited exception set forth in
U.S.S.G. § 1B1.10(b)(2)(B), which applies when a
defendant’s original term of imprisonment was below the
Guidelines range because of a reduction for substantial
assistance to authorities and a § 3582(c)(2) sentence
* The Honorable Eduardo C. Robreno, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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10 UNITED STATES V. HERNANDEZ -M ARTINEZ
reduction would be comparably below the amended
Guidelines range.
The panel rejected the defendants’ argument that United
States v. Padilla-Diaz, 862 F.3d 856 (9th Cir. 2017)—which
upheld § 1B1.10(b)(2), including its limited exception for
substantial assistance departures, as consistent with both the
governing statutes and constitutional requirements—is
irreconcilable with the Supreme Court’s later decision in
Hughes v. United States, 138 S. Ct. 1765 (2018). The panel
explained that Hughes considered an entirely different issue,
when it held that a sentence imposed pursuant to a Fed. R.
Crim. P. 11(c)(1)(C) plea agreement is “based on” the
defendant’s Guidelines so long as that range was part of the
framework the district court relied on in imposing the
sentence or accepting the agreement. Because the
intervening decision in Hughes is not in conflict with
Padilla-Diaz, the panel concluded that it was bound by
Padilla-Diaz’s conclusion regarding the interplay between
the Guidelines policy statement contained in § 1B1.10(b)(2)
and § 3582(c)(2).
COUNSEL
Stephen R. Sady (argued), Chief Deputy Federal Public
Defender; Elizabeth G. Daily, Assistant Federal Public
Defender; Office of the Federal Public Defender, Portland,
Oregon; Rosalind M. Lee, Rosalind Manson Lee LLC,
Eugene, Oregon; for Defendants-Appellants.
Kelly A. Zusman (argued), Appellate Chief; Billy J.
Williams, United States Attorney; United States Attorney’s
Office, Portland, Oregon; for Plaintiff-Appellee.

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UNITED STATES V. HERNANDEZ -M ARTINEZ 11
OPINION
BERZON, Circuit Judge:
These consolidated appeals were brought by defendants
seeking to reduce their sentences for drug-related crimes.
They invoke 18 U.S.C. § 3582(c)(2), which allows a court to
reduce in certain circumstances a previously imposed
sentence, and contend that the Supreme Court’s recent
interpretation of § 3582(c)(2) in Hughes v. United States,
138 S. Ct. 1765 (2018), requires that their motions for
resentencing be granted, Ninth Circuit precedent to the
contrary notwithstanding. See United States v. Padilla-Diaz,
862 F.3d 856 (9th Cir. 2017).
We conclude that Padilla-Diaz and Hughes are fully
compatible. As Padilla-Diaz remains binding precedent, we
affirm the district courts’ denials of defendants’ motions to
receive sentence reductions pursuant to 18 U.S.C.
§ 3582(c)(2).
I
A
We begin with a brief overview of the statutory
framework governing sentence reduction proceedings.
Ordinarily, a federal court “may not modify a term of
imprisonment once it has been imposed.” See 18 U.S.C.
§ 3582(c). Congress has provided narrow exceptions to this
proscription, including one based on changes to the United
States Sentencing Guidelines (“Guidelines”): “A court may
modify a defendant’s term of imprisonment if the defendant
was ‘sentenced . . . based on a sentencing range that has
subsequently been lowered’ pursuant to a retroactive
amendment to the U.S. Sentencing Guidelines.” United

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12 UNITED STATES V. HERNANDEZ -M ARTINEZ
States v. Rodriguez, 921 F.3d 1149, 1153 (9th Cir. 2019)
(quoting 18 U.S.C. § 3582(c)).
Where the “based on” requirement is met, § 3582(c)(2)
establishes a two-step inquiry for sentence reduction
proceedings.1 At the first step, the district court decides
eligibility for sentence reduction by determining whether “a
reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” Id.; see also Dillon
v. United States, 560 U.S. 817, 826 (2010). The policy
statement applicable to § 3582(c)(2), United States
Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.10,
authorizes a sentence reduction if, but only if, the retroactive
amendment has the “effect of lowering the defendant’s
applicable [G]uideline[s] range.” U.S.S.G.
§ 1B1.10(a)(2)(B). Applying this policy statement, a district
court determines whether the Guidelines range is lowered by
calculating the “amended [G]uideline[s] range that would
have been applicable to the defendant if the [relevant
amendment] to the [G]uidelines . . . had been in effect at the
time the defendant was sentenced.” Id. at § 1B1.10(b)(1).
But that determination may not be the end of a district
court’s inquiry into eligibility for sentence reduction.
Another provision of the policy statement—the one of
principal relevance here—generally prohibits sentence
reduction if the original term of imprisonment is below the
lower end of the amended Guidelines range. See id.
1 There is no dispute in this case that the original sentences were
“based on a sentencing range that has subsequently been lowered by the
U.S. Sentencing Commission,” and so qualify for sentence reduction in
that respect. 18 U.S.C. § 3582(c)(2).

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UNITED STATES V. HERNANDEZ -M ARTINEZ 13
§ 1B1.10(b)(2)(A).2 The only exception to this limitation is
where the defendant’s original term of imprisonment was
below the Guidelines range because of a reduction for
substantial assistance to authorities and a § 3582(c)(2)
sentence reduction would be comparably below the amended
Guidelines range. See id. at § 1B1.10(b)(2)(B).
The second step of the § 3582(c)(2) inquiry applies to
defendants determined eligible for sentence reduction. The
court considers the 18 U.S.C. § 3553(a) factors and
determines whether “the authorized reduction is warranted,
either in whole or in part, according to the factors.” Dillon,
560 U.S. at 826; see also 18 U.S.C. § 3582(c)(2). But the
“court’s consideration of the § 3553(a) factors may not
2 Section 1B1.10(b)(2) reads in full:
(A) Limitation.–Except as provided in subdivision
(B), the court shall not reduce the defendant’s term of
imprisonment under 18 U.S.C. § 3582(c)(2) and this
policy statement to a term that is less than the
minimum of the amended guideline range determined
under subdivision (1) of this subsection.
(B) Exception for Substantial Assistance.–If the term
of imprisonment imposed was less than the term of
imprisonment provided by the guideline range
applicable to the defendant at the time of sentencing
pursuant to a government motion to reflect the
defendant’s substantial assistance to authorities, a
reduction comparably less than the amended guideline
range determined under subdivision (1) of this
subsection may be appropriate.
(C) Prohibition.–In no event may the reduced term of
imprisonment be less than the term of imprisonment
the defendant has already served.

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14 UNITED STATES V. HERNANDEZ -M ARTINEZ
‘serve to transform the proceedings under § 3582(c)(2) into
plenary resentencing proceedings.’” Rodriguez, 921 F.3d
at 1154 (quoting Dillon, 560 U.S. at 827).3
B
Each of the twenty-three defendants in these
consolidated cases was convicted of one or more drug-
related offenses. The defendants’ original terms of
imprisonment were therefore calculated according to the
Guidelines’ drug quantity table, which determines the base
offense level for drug-related offenses according to drug
type and weight. In 2014, the U.S. Sentencing Commission
adopted Amendment 782, which revised the Guidelines’
drug quantity table by reducing the base offense level for
most drugs and quantities by two levels. See U.S.S.G. supp.
app. C amend. 782 (Nov. 1, 2014); U.S.S.G. § 2D1.1(c).
Amendment 782 was later made retroactive for defendants,
including those in this consolidated proceeding, who had
been sentenced before the adoption of the Amendment.
U.S.S.G. supp. app. C amend. 788 (Nov. 1, 2014).
Invoking Amendment 782, each defendant filed a
§ 3582(c)(2) motion to reduce his sentence. The assigned
district courts denied the sentence reduction motions,
concluding that the defendants were categorically ineligible
under § 1B1.10(b)(2)(A) because downward variances or
departures at the time of sentencing had resulted in original
terms of imprisonment below the amended Guidelines
range. The district courts further concluded that the
3 This second step of the § 3582(c)(2) inquiry is not pertinent here.
The only question on appeal is whether the district courts correctly
determined that the defendants were ineligible for sentence reduction
under § 1B1.10(b)(2)(A).

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UNITED STATES V. HERNANDEZ -M ARTINEZ 15
defendants were not eligible for § 1B1.10(b)(2)(B)’s limited
exception, as their downward variances or departures had
not been based on substantial assistance to authorities.
Defendants appealed.
We review for abuse of discretion a district court’s
decision on a § 3582(c)(2) sentence reduction motion.
United States v. Dunn, 728 F.3d 1151, 1155 (9th Cir. 2013).
“A district court may abuse its discretion if it does not apply
the correct law or if it rests its decision on a clearly erroneous
finding of material fact.” United States v. Sprague, 135 F.3d
1301, 1304 (9th Cir. 1998) (quoting United States v.
Plainbull, 957 F.2d 724, 725 (9th Cir. 1992)).
II
A
Padilla-Diaz upheld § 1B1.10(b)(2), including its
limited exception for substantial assistance departures, as
consistent with both the governing statutes and
constitutional requirements. 862 F.3d at 860–63.
Defendants’ principal argument is that we are not bound by
Padilla-Diaz because the decision in that case is
irreconcilable with the Supreme Court’s later decision in
Hughes v. United States. See Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (holding that the “issues decided by
the higher court” are controlling when “the relevant court of
last resort . . . undercut the theory or reasoning underlying
the prior circuit precedent in such a way that the cases are
clearly irreconcilable”).
To guide our inquiry as to whether Padilla-Diaz and
Hughes are reconcilable we begin by examining an earlier
Supreme Court decision, Dillon, 560 U.S. 817. Dillon set
forth the framework for reviewing motions for sentence

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16 UNITED STATES V. HERNANDEZ -M ARTINEZ
reduction and explained the role policy statements serve in
§3582(c)(2) proceedings. We then examine Padilla-Diaz
and Hughes in light of Dillon.
Dillon considered whether § 1B1.10, the policy
statement that ordinarily includes the prohibition on
reducing a sentence to a term below the amended Guidelines
range, is advisory under United States v. Booker, 543 U.S.
220 (2005). In Booker, the Court held that the Guidelines are
advisory in sentencing proceedings and so do not trigger the
Sixth Amendment issues that arise under a mandatory
sentencing regime. Id. at 243–44. The defendant in Dillon
contended that Booker’s reasoning as to general sentencing
proceedings applies with equal force to § 3582(c)(2)
sentence reduction proceedings, such that § 1B1.10 is
advisory only. 560 U.S. at 825.
Dillon, rejecting that argument, held that § 1B1.10 is
binding in § 3582(c)(2) proceedings. Id. at 825–31. The
Court reasoned that “sentence-modification proceedings
authorized by § 3582(c)(2) are not constitutionally
compelled,” and so do not implicate the Sixth Amendment
concerns present in Booker. Id. at 828. In distinguishing
§ 3582(c)(2) proceedings from the sentencing proceedings
in Booker, Dillon emphasized that Ҥ 3582(c)(2) represents
a congressional act of lenity intended to give prisoners the
benefit of later enacted adjustments to the judgments
reflected in the Guidelines.” Id.
The distinction Dillon drew between general sentencing
proceedings and § 3582(c)(2) sentence reduction
proceedings informed our holding in Padilla-Diaz. The
Padilla-Diaz defendants each had been accorded downward
departures or variances at their original sentencings, with the
result that their terms of imprisonment were below the later-
amended Guidelines range. 862 F.3d at 859. The departures

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UNITED STATES V. HERNANDEZ -M ARTINEZ 17
or variances were not based on substantial assistance to
authorities. See id. As the defendants’ original sentences
made them categorically ineligible for sentence reduction
under § 1B1.10(b)(2)(A), the district courts refused to
consider any reduction. The defendants in Padilla-Diaz
raised two challenges relevant to our inquiry here.
First, the Padilla-Diaz defendants argued that U.S.S.G.
§ 1B1.10(b)(2)(A) conflicts with 28 U.S.C. § 991(b), the
statute granting the U.S. Sentencing Commission broad
authority over the promulgation of Guidelines amendments.
They contended that § 991(b)(1)(B) granted the U.S.
Sentencing Commission the authority to “‘establish
sentencing policies and practices’ that ‘avoid[] unwarranted
sentencing disparities among defendants,’” id. at 860
(quoting 28 U.S.C. § 991(b)), and that U.S.S.G.
§ 1B1.10(b)(2)(A) generated such disparities by
“nullif[ying] departures and variances from the
[G]uideline[s] range.” Id. at 861. We acknowledged in
Padilla-Diaz that § 1B1.10(b)(2)(A) occasionally does lead
to anomalous results but held that § 1B1.10(b)(2)(A) and
§ 991(b) were not in conflict. Id. Padilla-Diaz reasoned that
§ 991(b) was a statement of the U.S. Sentencing
Commission’s overall purposes and goals, not a specific
directive requiring strict conformance such that
§ 1B1.10(b)(2)(A) could run afoul of it.4 Relying on Dillon,
4 United States v. Tercero, 734 F.3d 979 (9th Cir. 2013), addressed
an issue similar to the statutory question posed in Padilla-Diaz. In
Tercero, the district court reduced the defendant’s sentence to a term at
the lower end of the amended Guidelines range but denied the
defendant’s request for a further downward departure. Id. at 981. The
district court concluded that § 1B1.10(b)(2)(A) prohibited any further
reduction. Id. Among other matters, the defendant argued that § 1B1.10
conflicts with the Guidelines’ purpose of instituting an “effective, fair
sentencing system, with honest, uniform and proportionate sentences,”

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18 UNITED STATES V. HERNANDEZ -M ARTINEZ
Padilla-Diaz also noted that a § 3582(c)(2) sentence
reduction, as an act of lenity, is “not constrained” by general
sentencing policies, such as maintaining uniformity and
avoiding unwarranted disparities. Id. (citing Dillon, 560 U.S.
at 828).
Second, the defendants in Padilla-Diaz argued that
§ 1B1.10(b)(2)(A) violated the Fifth Amendment’s
guarantee of equal protection because it “irrationally
den[ied] sentence reductions to offenders who received
lower sentences while granting them to those who originally
received higher sentences.” Id. at 862. The government
offered two justifications for the Guidelines policy
statement’s disparate treatment of the two groups of
defendants: Making defendants’ substantial assistance the
only factor considered (1) simplifies sentence reduction
proceedings, and (2) encourages defendants to cooperate
with the government. Id. Acknowledging, once again, that
§ 1B1.10(b)(2)(A) “will sometimes produce unequal and
arguably unfair results,” Padilla-Diaz held that the sentence
reduction limitation survived rational basis review on the
basis of those two justifications. Id.
The following year, the Supreme Court decided Hughes.
The question considered in Hughes was entirely different
from those addressed in Padilla-Diaz.
Hughes considered for a second time an issue that had
been before the Court several years earlier, in Freeman v.
because it prohibited the court from reducing her sentence further in light
of her minor role in the offense. Id. at 983 (internal quotation marks
omitted). We rejected the argument, concluding that the district court
considered fairness in the original sentencing by considering the
18 U.S.C. § 3553(a) factors then. Id.

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UNITED STATES V. HERNANDEZ -M ARTINEZ 19
United States, 564 U.S. 522 (2011): Is a defendant who
enters into a Federal Rule of Criminal Procedure 11(c)(1)(C)
plea agreement (“Type-C agreement”) eligible for
§ 3582(c)(2) sentence reduction upon the enactment of a
retroactive amendment to the Guidelines?5 Specifically, the
issue in Hughes was whether a Type-C agreement is “based
on a sentencing range that has subsequently been lowered,”
such that a defendant is eligible for sentence reduction under
§ 3582(c)(2). See 138 S. Ct. at 1773 (emphasis added).6
Hughes held that a “sentence imposed pursuant to a Type–C
agreement is ‘based on’ the defendant’s Guidelines range so
long as that range was part of the framework the district court
relied on in imposing the sentence or accepting the
5 In Freeman, no opinion or rationale commanded a majority of the
Court and the federal circuits split in their application of the divided
disposition. Invoking Marks v. United States, 430 U.S. 188 (1977), and
its direction to adopt the “narrowest” opinion, eight circuits adopted the
reasoning in Justice Sotomayor’s concurrence, where she concurred only
in the judgment and concluded that Type-C agreements are usually
“based on” the agreements themselves, not the Guidelines. See Freeman,
564 U.S. at 535–36 (Sotomayor, J., concurring); Hughes, 138 S. Ct. at
1771. Two circuits, including our court, adopted the plurality opinion,
which concluded that a defendant who pleaded guilty under a Type-C
agreement may be eligible for sentence reduction if the term is “based
on” a later-amended Guidelines range. See Freeman, 564 U.S. at 526;
Hughes, 138 S. Ct. at 1771.
6 In a Type-C agreement, the government and defendant stipulate to
a “specific sentence or sentencing range” or the applicability or
inapplicability of “a particular provision of the Sentencing Guidelines,
or policy statement, or sentencing factor.” Fed. R. Crim. P. 11(c)(1)(C).
The district court must approve a Type-C agreement. A court may accept
such an agreement only if it is either “within the applicable
[G]uideline[s] range” or outside the Guidelines range with “justifiable
reasons . . . set forth with specificity.” U.S.S.G. § 6B1.2(c). Once the
court accepts a Type-C agreement, it is binding on the court. See Fed. R.
Crim. P. 11(c)(1)(C).

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20 UNITED STATES V. HERNANDEZ -M ARTINEZ
agreement.” Id. at 1775. Hughes’s original sentence was not
below the amended Guidelines range, and Hughes did not
consider at all the import of § 1B1.10(b)(2)(A), id. at 1774,
the provision limiting sentence reductions to the lowest term
recommended by the revised Guidelines range.
B
Our case law is clear as to the effect of intervening law
on prior circuit precedent: “[W]here the reasoning or theory
of our prior circuit authority is clearly irreconcilable with the
reasoning or theory of intervening higher authority, a three-
judge panel should consider itself bound by the later and
controlling authority, and should reject the prior circuit
opinion as having been effectively overruled.” Gammie,
335 F.3d at 893.
Defendants contend that Padilla-Diaz and Hughes are
clearly irreconcilable in two respects. First, defendants argue
that Hughes rejected Padilla-Diaz’s premise that general
sentencing policies do not constrain § 3582(c)(2) sentence
reduction proceedings. As support for this argument,
defendants point to several passages in Hughes in which the
Court discussed the central purpose of the Sentencing
Reform Act and two of its key sentencing policies—
uniformity and avoiding unwarranted sentencing disparities.
But Hughes did not conclude that general sentencing
policies constrain § 3582(c)(2) proceedings. Although
Hughes referenced the sentencing goals of uniformity and
avoiding unwarranted disparities, it did so primarily to
highlight the sentencing disparities among courts in different
federal circuits stemming from the Court’s fractured opinion
in Freeman. See Hughes, 138 S. Ct. at 1774–75; see also id.
at 1779 (Sotomayor, J., concurring). Additionally, in
discussing the Sentencing Reform Act’s uniformity goal,

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UNITED STATES V. HERNANDEZ -M ARTINEZ 21
Hughes highlighted that the Act’s purpose was furthered by
interpreting § 3582(c)(2) as applying to any type of plea
agreement “based on” the Guidelines, including Type-C
agreements. Id. at 1776 (majority opinion). Nothing in
Hughes addressed inter-defendant sentencing uniformity
more generally, much less the sentence reduction limitation
at issue here. Moreover, nothing in Hughes upended the
Court’s statement in Dillon that § 3582(c)(2) sentence
reduction proceedings are acts of lenity, see 560 U.S. at 828,
or Padilla-Diaz’s reasoning, based on Dillon, that such
proceedings are therefore not ordinarily constrained by
general sentencing policies, see 862 F.3d at 861.
Second, defendants contend that the relevant policy
statement, § 1B1.10(b)(2)(A), conflicts with § 3582(c)(2) as
interpreted in Hughes, as well as in Koons v. United States,
138 S. Ct. 1783 (2018), and that Padilla-Diaz misunderstood
the scope of § 3582(c)(2). Specifically, defendants interpret
Hughes and Koons, as requiring sentence reduction under
§ 3582(c)(2) for every term of imprisonment “based on” the
Guidelines and argue that policy statements, such as
§ 1B1.10(b)(2)(A), may not limit the reduction of sentences
for otherwise statutorily eligible terms of imprisonment.
That argument is unpersuasive.
For starters, the statute expressly permits the U.S.
Sentencing Commission to delineate sentence reduction
eligibility through policy statements. Section 3582(c)(2)
reads:
[I]n 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

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22 UNITED STATES V. HERNANDEZ -M ARTINEZ
set forth in section 3553(a) . . . , if such a
reduction is consistent with applicable policy
statements issued by the Sentencing
Commission.
(emphasis added). Given that the statute’s plain text requires
consideration of applicable policy statements, 18 U.S.C.
§ 3582(c)(2) and the Guidelines policy statement,
§ 1B1.10(b)(2)(A), are not in conflict. Instead, pursuant to
the statutory mandate, § 3582(c)(2) and applicable policy
statements work in concert to determine eligibility for
sentence reduction.7 Nothing in Hughes suggests otherwise.
Defendants’ invocation of Koons is as misplaced as its
reliance on Hughes. The defendants in Koons did not satisfy
§ 3582(c)(2)’s “based on” requirement because their
sentences were based on mandatory minimums and
substantial assistance to authorities. They maintained that
they were nonetheless eligible for sentence reduction
because the applicable Guidelines policy statement,
§ 1B1.10(c), contemplated reductions for defendants in their
position.8 Koons, 138 S. Ct. at 1790. In rejecting that
argument, Koons concluded that a “policy statement cannot
alter § 3582(c)(2), which applies only when a sentence was
7 We are not suggesting that any eligibility restriction in a policy
statement would be valid. There could, for example, be policy statements
applicable to sentence reduction proceedings that are invalid because
inconsistent with a statutory provision other than § 3582(c)(2).
8 Section 1B1.10(c) provides that, if the defendant provided
substantial assistance to authorities and on that basis the court could
impose a term of imprisonment below the mandatory minimum, the term
of imprisonment should be determined without regard to U.S.S.G.
§ 5G1.1 (Sentencing on a Single Count of Conviction) or U.S.S.G.
§ 5G1.2 (Sentencing on Multiple Counts of Conviction).

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UNITED STATES V. HERNANDEZ -M ARTINEZ 23
‘based on’ a subsequently lowered range.” Id. Koons
explained that “[t]he Sentencing Commission may limit the
application of its retroactive Guidelines amendments
through its ‘applicable policy statements.’ But policy
statements cannot make a defendant eligible when
§ 3582(c)(2) makes him ineligible.” Id. (internal citations
omitted) (quoting Dillon, 560 U.S. at 824–26).
Defendants argue here that the inverse of the reasoning
in Koons is also true—that is, policy statements cannot
render a defendant ineligible if they are otherwise eligible
under § 3582(c)(2)’s “based on” requirement. As noted
previously, § 3582(c)(2) commands otherwise; it permits
policy statements to render a defendant ineligible for
sentence reduction. In other words, the statute permits a
sentence reduction when both of the following conditions are
true—(A) the original term was “based on” a sentencing
range that is later reduced; and (B) the reduction is consistent
with the U.S. Sentencing Commission’s policy statements.
The problem in Koons was that (A) was not true; the problem
here is that (B) is not true. Again, Koons explicitly
recognized the second limitation, stating that “[t]he
Sentencing Commission may limit the application of its
retroactive Guidelines amendments through its ‘applicable
policy statements.’” Id.
In sum, the intervening decision in Hughes (as well as
the opinion in Koons) is not in conflict with Padilla-Diaz.
We are therefore bound by Padilla-Diaz’s conclusion
regarding the interplay between the Guidelines policy
statement contained in § 1B1.10(b)(2) and § 3582(c)(2).

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24 UNITED STATES V. HERNANDEZ -M ARTINEZ
III
As Padilla-Diaz remains binding circuit precedent,
defendants’ various arguments on appeal are foreclosed.9
We affirm the district courts’ denials of the motions for
sentence reduction under § 3582(c)(2).
AFFIRMED.
9 Defendants also argue for reconsideration of the equal protection
argument raised in Padilla-Diaz. Because Padilla-Diaz already rejected
the argument, see 862 F.3d at 862, and remains binding circuit precedent,
defendants’ equal protection argument is also foreclosed.

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