source: Caselaw Access Project

author: REENA RAGGI, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Jamahl LEONARD, Defendant-Appellant.
    Docket No. 15-2232-cr
    August Term, 2016
    United States Court of Appeals, Second Circuit.
    Argued: September 2, 2016
    Decided: December 14, 2016

      Bruce R. Bryan, Esq., Syracuse, New York, for Defendant-Appellant.
    Frank: T. Pimentel, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellee.
    Before: RAGGI, CHIN, DRONEY, Circuit Judges.
   REENA RAGGI, Circuit Judge:

Defendant Jamahl Leonard was convicted in 2008 in the United States District Court for the Western District of New York (David G. Larimer, Judge), after pleading guilty to conspiracies to distribute 100 or more kilograms of marijuana, see 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846; and to launder the proceeds of that illegal trafficking, see 18 U.S.C. § 1956(h). Presently incarcerated, serving a 114-month prison term, Leonard appeals from a final order entered by the same court on June 15, 2015, which concluded that he was ineligible for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). The court reasoned that, although a post-conviction, retroactive amendment to the Sentencing Guidelines had lowered the 121-to-15Lmonth Guidelines range identified by the court at Leonard’s initial sentencing, the amended 97-to-121-month range was not lower than the 97-to-121-month range agreed to by the parties in their plea agreement under Fed. R. Crim. P. 11(c)(1)(C). Leonard challenges this conclusion, arguing that, once the district court accepted his 11(c)(1)(C) plea agreement, the sentencing range specified therein became his “applicable” range for purposes of determining § 3582(c)(2) eligibility. And because the amendment lowered that range to 78 to 97 months, Leonard maintains he is- eligible for a sentence reduction to that extent.

The government defends the district court’s ineligibility determination, maintaining that (1) Leonard’s sentence was “based on” his 11(c)(1)(C) agreement, not the Sentencing Guidelines as required by § 3582(c)(2); and, (2) in any event, Leonard’s 114-month sentence is within the now-amended applicable range, (a) precluding a finding that his applicable range was lowered by a subsequent amendment as required by U.S.S.G. § lB1.10(a)(l), or (b) at least rendering any ineligibility error in this case harmless.

Neither party’s argument is completely persuasive. Contrary to the government, we conclude that Leonard is eligible for a § 3582(c)(2) sentence reduction because his original sentence was “based on” the Sentencing Guidelines as that statutory phrase has been construed by the five justices in the majority in Freeman v. United States, 564 U.S. 522, 525, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011) (plurality opinion); id. at 534, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment). At the same time, however, we conclude that the extent of the reduction for which Leonard is eligible is narrower than he urges because his “applicable” Guidelines range, as defined by U.S.S.G. § 1B1.10 cmt. n.1(A), was the 121-to-151-month range calculated by the district court before accepting what was effectively a downward variance to the 97-to~121-month range prescribed in the parties’ 11(c)(1)(C) agreement. Because the relevant Guidelines amendment reduced Leonard’s originally applicáble 121-to-151-month range to a 97-to-121-month range, Leonard is eligible for a reduction of his 114-month sentence, but to no less than 97 months’ incarceration, the low end of the amended range. See U.S.S.G § lB1.10(b)(2)(A). Whether to grant any reduction is, of course, a matter entrusted to the district court’s discretion. See United States v. Christie, 736 F.3d 191, 194-95 (2d Cir. 2013). Nevertheless, because we conclude that Leonard is at least eligible for such a reduction, we vacate the challenged order and remand for the district court to decide whether or not to exercise its reduction discretion in this case.

I. Background

A. Leonard Pleads Guilty Pursuant to a Buie 11(c)(1)(C) Agreement

On May 23, 2008, Leonard pleaded guilty to conspiring to distribute “at least 700 but less than 1,000 kilograms of marijuana,” and to laundering the proceeds of that criminal activity in an amount “more than $30,000 but less than $70,000.” App’x 9-10. In a written plea agreement, Leonard and the prosecution noted their agreement to certain Sentencing Guidelines calculations, specifically, to a base offense level of 30 with a three-level upward adjustment for aggravating role and a three-level downward adjustment for acceptance of responsibility. With further agreement to a criminal history category of I, the parties’ calculations yielded a “guideline sentencing range” of 97 to 121 months’ imprisonment. Id. at 13. Pursuant to Fed. R. Crim. P. 11(c)(1)(C), the parties agreed that Leonard should be sentenced within this Guidelines range and that, if the district court were to reject that part of the plea agreement, “defendant shall then be afforded the opportunity to withdraw the plea of guilty.” App’x 13.

B. Sentencing

Prior to sentencing, the district court received a Presentence Investigation Report (“PSR”) from the Probation Department (“Probation”), which calculated Leonard’s Sentencing Guidelines range at 151 to 188 months rather than the 97-to-121-month range referenced in the parties’ 11(c)(1)(C) agreement. While Probation agreed that Leonard’s base offense level was 30 and that he was entitled to a three-level reduction for acceptance of responsibility, it recommended a two-level increase for possession of firearms by a co-conspirator, and a four- (rather than three-) level increase for Leonard’s organizing role. Further, because Leonard had committed the crimes of conviction while under conditional discharge from an earlier conviction, Probation calculated his criminal history category at II rather than I.

At sentencing, the district court rejected the recommended firearms enhancement, but adopted the four-point role enhancement, as well as the higher criminal history category to yield a Guidelines range of 121 to 151 months. While the district court acknowledged that the parties had “some issue” with these enhancements, it reiterated its conclusion that “the guidelines are as I indicated, 121 to 151” months. App’x 94. Nevertheless, .it stated that it was “prepared to accept” the parties’ 11(c)(1)(C) agreement and to sentence Leonard “within the range of 97 to 121 months” identified therein, which it deemed “sufficient in my view, but not greater than necessary, to meet [statutory] sentencing objectives.” Id. at 94-95. Accordingly, the district court sentenced Leonard to 114 months’ imprisonment, four years’ supervised release, a $2,500 fine, and a $200 special assessment.

C.' Amendments to Applicable Guidelines Range

Almost six years after Leonard’s sentencing, the United States Sentencing Commission issued two relevant Guidelines amendments. Amendment 782, which took effect in 2014, amended the Drug Quantity Table in U.S.S.G. § 2D1.1 to reduce the offense levels associated with certain controlled substances crimes by two levels. See U.S.S.G., Supp. to App. C, Amend. 782. Thus, the base offense level for the quantity of marijuana involved in Leonard’s drug crime of conviction was reduced from 30 to 28. See id. § 2D1.1(c)(6). Amendment 788, which also took effect in 2014, provided for retroactive application of Amendment 782. See id. at Supp. to App, C, Amend. 788.

D. Motion To Reduce Sentence

On May 11, 2015, Leonard invoked the two aforementioned amendments to move pro se for a sentence reduction pursuant to 18. U.S.C. § 3582(c)(2). The district court denied the motion on June 15, 2015, concluding that Leonard was.ineligible for a sentence reduction. The court reasoned that, although it had “determined the applicable Guidelines range to be 121-151 months,” and the amendments had reduced that range to 97 to 121 months, it had in fact sentenced Leonard within the latter range pursuant to the plea agreement, such that Amendment 782 “[did] not have the effect of lowering the defendant’s applicable guideline range.” App’x 191; see U.S.S.G. § 1B1.10(a)(2)(B).

Leonard timely appealed from the decision.

II. Discussion

A. Standard of Review

Where, as here, a defendant seeks a sentence reduction based on a retroactive Guidelines amendment, a district court must determine (1) whether the defendant is eligible for .a reduction pursuant to 18 U.S.C. § 3582(c)(2), and (2) whether a reduction is warranted in light of the factors listed in 18 U.S.C. § 3553(a). See Dillon v. United States, 560 U.S. 817, 826, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Because the initial eligibility question—the only one here at issue—depends on statutory interpretation, our review is de novo. See United States v. Williams, 551 F.3d 182, 185 (2d Cir. 2009).

B. Leonard’s Eligibility for a Sentence Reduction

Congress has pronounced a convicted defendant eligible for a sentence reduction if (1) he “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently beep lowered,” and (2) “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2) (emphasis added). The pertinent policy statement conditions reduction eligibility on “the guideline range applicable to that defendant halving] subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (d).” U.S.S.G. § 1B1.10(a)(l) (emphasis added). Thus, two requirements must be satisfied for a defendant to be eligible for a sentence reduction: (1) the original sentence must have been “based on” the Sentencing Guidelines, and (2) the amendment must have lowered the Guidelines range “applicable to” the defendant at the time of the original sentencing. See United States v. Pleasant, 704 F.3d 808, 810-11 (9th Cir. 2013) (observing that “applicable to” language from policy statement and “based on” language from statute require “separate analysis”); see also United States v. Martinez, 572 F.3d 82, 84 (2d Cir. 2009) (holding defendant convicted of crack conspiracy ineligible for sentence reduction based on- amendment lowering crack Guidelines because Guidelines applicable to defendant’s sentence were those pertaining to career, offenders, which were not lowered).

1. Leonard’s, Sentence Was “Based. On” a Subsequently Lowered Guidelines Range

In deciding whether-Leonard’s 114-month- sentence was “based on” a subsequently lowered Guidelines range, we are guided by the Supreme Court’s ruling in Freeman v. United States, 564 U.S. 522, 131 S.Ct. 2685. In that case, the Court considered whether a sentence imposed pursuant to a 11(c)(1)(C) agreement could ever be said to have been “based on” on the Sentencing Guidelines for purposes of § 3582(c)(2). Five Justices answered that question in the affirmative, but for different - reasons. The four-member plurality reasoned that -because “the Guidelines must be consulted, in the regular course” of imposing any sentence, including a sentence identified in an 11(c)(1)(C) agreement, an 11(c)(1)(C) sentence was “likely to be based on the Guidelines.” Id. at 525, 534; 131 S.Ct. 2685 (plurality opinion, Kennedy, J., joined by Ginsburg, Breyer, Kagan, JJ.) (explaining that U.S.S.G: § 6B1.2 requires district judge to evaluate recommended, sentence in light of defendant’s applicable Guidelines range before accepting 11(c)(1)(C) agreement, see id. at 529-30, 131 S.Ct. 2685). Five ’ Justices specifically rejected this view, concluding that an 11(c)(1)(C) sentence is based not on the Sentencing Guidelines but on the parties’ plea agreement. See id. at 534, 181 S.Ct. 2685 (Sotomayor, J., concurring in the judgment); id. at 545,131 S.Ct. 2685 (Roberts, C.J., dissenting, joined by Scalia, Thomas, Alito, JJ.). This led the dissenters to conclude that 11(c)(1)(C) sentences were categorically ineligible for § 3582(c)(2) reductions. See id. at 547-48, 131 S.Ct. 2685 (Roberts, C.J., dissenting). Justice Soto-mayor, however, joined in the plurality’s favorable eligibility determination, explaining that “if [an 11(c)(1)(C) ] agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment,. and that range is subsequently lowered by the United States Sentencing Commission, the term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sentence ■ reduction under § 3582(c)(2).” Id. at 534, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment). The concurrence’s reasoning, as applied in Freeman, created little practical tension with the plurality because the sentencing range identified by the parties in their 11(c)(1)(C) agreement was the Guidelines range calculated by the district court, and the defendant agreed to have his sentence determined pursuant to the Sentencing Guidelines. See id. at 527-28, 131 S.Ct. 2685 (plurality opinion); id. at 542—44, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment). . ' -

This case is different. Although Leonard and the prosecutors agreed to an 11(c)(1)(C) sentence based on their Sentencing Guidelines calculation, that calculation yielded a lower range than the applicable range identified by the district court. Thus, we must consider whether the controlling rationale for decision in Freeman supports Leonard’s claim that his sentence, although imposed pursuant to that agreed-to lower range, was nevertheless “based on” the Guidelines for purposes of a § 3582(c)(2) reduction.

Generally, “[w]hen a fragmented [Supreme] Court decides a case and no single rationale explaining the result énjoys 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, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotation marks omitted). This Court has not identified in a published opinion which Freeman rationale is controlling. We have only assumed the controlling effect of Justice Sotomayor’s concurring opinion in a number of our unpublished summary orders. See, e.g., United States v. Howell, 541 Fed.Appx. 13, 14 (2d Cir. 2013); United States v. Kinsey, 533 Fed.Appx. 36, 37-38 (2d Cir. 2013). The parties appear to urge that conclusion here. The matter gives some pause, however, because the one point uniting eight members of the Court in Freeman is their rejection of Justice Sotomayor’s rationale for decision. See Freeman v. United States, 564 U.S. at 532-34, 131 S.Ct. 2685 (plurality opinion) (observing that concurrence, by shifting focus of “based on” inquiry from reasons for judge’s sentence to terms of parties’ plea agreement, risks arbitrary and disparate identification of defendants eligible for reductions from 11(c)(1)(C) sentences); id. at 544, 131 S.Ct. 2685 (Roberts., C.J., dissenting) (agreeing with plurality that concurring opinion’s approach is “arbitrary and unworkable”).

Further, our sister circuits have divided in identifying Freeman’s controlling rationale. In published decisions, eight courts of appeals have recognized Justice Sotoma-yor’s concurring opinion as the narrower and, therefore, controlling, rationale for decision. See United States v. Benitez, 822 F.3d 807, 811 (5th Cir. 2016); 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. Thompson, 682 F.3d 285, 290 (3rd Cir. 2012); United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir. 2011); United States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011); United States v. Brown, 653 F.3d 337, 340 (4th Cir. 2011). A ninth court has done so summarily. See United States v. Cover, 491 Fed.Appx. 87, 89 (11th Cir. 2012). Only one of these courts, however, reached that conclusion in circumstances akin to those presented here, that is, an 11(c)(1)(C) agreement to a Guidelines range that turns out to be lower than the applicable range calculated by the district court. See United States v. Smith, 658 F.3d at 611. Meanwhile, two courts of appeals—one sitting en banc—have observed that Justice Sotomayor’s rationale for decision in Freeman is not necessarily narrower than that of the plurality and, therefore, declined to accord it controlling effect. See United States v. Davis, 825 F.3d 1014, 1023 (9th Cir. 2016) (en banc) (concluding that Freeman “plurality opinion is actually the narrower one in certain respects”); United States v. Epps, 707 F.3d 337, 350 & n.8 (D.C. Cir. 2013) (suggesting that two rationales for decision are incompatible insofar as focus of plurality’s inquiry is judge and focus of concurrence’s inquiry is parties). According to these two courts, only the Freeman result—“that § 3582(c)(2) relief is not invariably barred when a sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement”—is binding, United States v. Epps, 707 F.3d at 351, leaving lower courts free to follow the more persuasive rationale for that result, which both courts decided is that of the plurality opinion, see id.; accord United States v. Davis, 825 F.3d at 1026.

We need not here decide which of the Freeman rationales for decision is the narrower, or which is more persuasive, because we conclude that Leonard’s 114-month sentence is properly recognized as “based on” the Sentencing Guidelines under the reasoning of either the plurality or the concurrence.

To explain, we begin with the plurality, which recognized that even 11(c)(1)(C) sentences that varied from the Guidelines range calculated by the district court could be “based on the Guidelines”; “Even where the judge varies” below the recommended Guidelines range, “if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense a basis for the sentence.” Freeman v. United States, 564 U.S. at 529, 131 S.Ct. 2685 (plurality opinion). This reasoning appears to recognize the possibility that a sentence can be “based on” the Guidelines even if departing or varying from the applicable Guidelines range.

That describes this case. The district court here began its consideration of Leonard’s sentence by independently calculating his applicable Guidelines range, adopting certain recommendations by Probation (as to role) and rejecting others (as to firearms possession), without regard to the parties’ 11(c)(1)(C) agreement. Only after thus identifying the applicable Guidelines range and then considering it together with “all the factors under [18 U.S.C.] Section 3553(a)” did the court effectively decide to vary from the Guidelines and to sentence Leonard within the lower range agreed to by the parties. App’x 94; see United States v. Kuhlman, 711 F.3d 1321, 1325 (11th Cir. 2013) (characterizing acceptance of parties’ agreed-to below-Guidelines sentence as “effectively a ... downward variance” from Guidelines); United States v. Pleasant, 704 F.3d at 812 (viewing imposition of below-Guidelines sentence pursuant to plea agreement as equivalent of downward variance). In explaining its acceptance of the 11(c)(1)(C) agreement, the district court referenced the parties’ agreement, but relied in the main on reasoning that would inform a sentence in any event, specifically, that the agreed upon range was “sufficient in my view, but not greater than necessary, to meet those [§ 3553(a)] sentencing objectives.” App’x 94-95; see 18 U.S.C. § 3553(a) (requiring court to impose “sentence sufficient, but not-greater than necessary, to comply with the purposes set forth in this subsection”); Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (recognizing “overarching” statutory obligation, even within Guidelines regimen, to impose sentence “sufficient, but not greater than necessary, to accomplish the goals of sentencing” (internal quotation marks -omitted)). The court then proceeded to explain in some detail—spanning seven pages of transcript—how the § 3553(a) factors, as applied specifically to Leonard, warranted a sentence of 114 months* incarceration. See App’x 105-12.

On this record, we conclude that, under the Freeman plurality’s rationale for decision, Leonard’s sentence was “based on” the Sentencing Guidelines because the district court used his Guidelines range as “the beginning point” for its sentencing analysis, even though ultimately deciding to vary below that applicable range. Freeman v. United States, 564 U.S. at 529, 131 S.Ct. 2685 (plurality opinion).

Turning to Justice Sotomayor’s concurrence, its rationale for decision focused not on the sentencing judge’s consideration of the Guidelines but on the terms of the parties’ agreement. See id. at 536-37, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment) (rejecting idea that district courts could “reduce a term of imprisonment [pursuant to §. 3582(c)(2)] simply because the court itself considered the Guidelines”). It concluded that, if an 11(c)(1)(C) agreement “call[ed] for the defendant to be sentenced within a particular Guidelines sentencing range,” and the district court accepted the agreement, thereby obligating it “to sentence the defendant accordingly,” then “there can be no doubt that the term of imprisonment the court imposes is ‘based on’ the agreed-upon sentencing range within the meaning of § 3582(c)(2).” Id. at 538, 131 S.Ct. 2685. Justice Sotomayor reached the same conclusion with respect to 11(c)(1)(C) agreements providing for a specific term of imprisonment if they made clear “that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty.” Id. at 539, 131 S.Ct. 2685.

This case falls within the concurrence’s first category. In their 11(c)(1)(C) agreement, the parties here not only called for Leonard to be sentenced within the Guidelines range of 97 to 121 months, but also detailed the Guidelines calculation producing that range, identifying the particular Guidelines providing for a base offense level of 30, see U.S.S.G. § 2Dl.l(a)(3), (c)(5); a three-level upward adjustment for aggravating role, see id. § 3Bl.l(b); and a three-level downward adjustment for acceptance of responsibility, see id. § 3El.l(a), (b); as well as identifying the Guidelines criminal history category of I. See App’x 11-14. Under the concurrence’s reasoning, when an 11(c)(1)(C) agreement thus expressly uses the Guidelines to identify the agreed-upon sentencing range, a district court’s acceptance of the agreement and its imposition of the agreed-upon sentence satisfies the “based on” requirement of § 3582(c)(2).

Further, under the concurrence’s rationale for decision, no different conclusion is warranted because, in the agreement, the parties acknowledged that the district court was “not bound by the Sentencing Guidelines.” Id. at 11. Whatever options were available to the district court before it accepted the parties’ agreement, the Freeman, concurrence specifically states that, once the court indicated acceptance, it was “obligate[d] ... to sentence the defendant accordingly,” that is, according to the agreed-upon Guidelines calculation, so that its sentence was “ ‘based on’ the agreed-upon [Guidelines] sentencing range,” Freeman v. United States, 564 U.S. at 538, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment).

A question arises, however, as to whether the concurrence’s rationale supports that “based on” conclusion even where, as here, the Guidelines sentencing range agreed to by the parties is not the Guidelines range independently calculated by the district court. In short, can a miscalculated range be deemed “based on” the Guidelines for purposes of § 3582(c)(2)? The Freeman dissenters posed that question as a challenge to the concurrence’s reasoning. See id. at 550-r51,131 S;Ct. 2685 (Roberts, C.J., dissenting). Justice Sotoma-yor, however, did not hesitate to answer in the affirmative: “Because it is the parties’ agreement that controls in the [11(c)(1) ](C) agreement context, ... even if the District Court had calculated the range differently than the parties, ... Freeman would still be eligible for resen-tencing, as long as the parties’ chosen range was one that, was subsequently lowered by the Sentencing Commission.” Id. at 542, 131 S.Ct. 2685 n.8 (Sotomayor, J., concurring in the judgment) (alterations and internal quotation marks omitted). The dissenters characterized the answer as “surprising” given that “the governing Guidelines provision specifies that a defendant is only eligible for sentence reduction if the amended Guideline has ‘the effect of lowering the defendant’s applicable guideline range’—presumably the correct applicable guideline range.” Id. at 551,131 S.Ct. 2685 (Roberts, C.J., dissenting) (emphasis in original) (quoting U.S.S.G. § lB1.10(a)(2)(B)).

Because the district court in Freeman did not calculate defendant’s applicable Guidelines range differently from the parties, these exchanges about a circumstance not before the Court can be viewed as dicta. See United States v. Santos, 553 U.S. 507, 523, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (stating-that “speculations” as to “a case that is not before” the Court are “the purest of dicta”). Further, as we explain infra at Part H.B.2., a post-Freemcw amendment to § lB1.10(a) commentary clarifies how a defendant’s applicable Guidelines range is to be calculated. We need not here decide whether or how this clarification might prompt the Supreme Court, and Justice Sotomayor in particular, to refine their analysis of the “based on” requirement for § 3582(c)(2) relief. We conclude only that Justice Sotomayor, like her plurality colleagues, reasoned that sentences not within the Guidelines range calculated by the district court could be “based on” the Guidelines for purposes of § 3582(c)(2).

Thus, although the Freeman concurrence and plurality employ different rationales for decision, under either, Leonard’s 114-month sentence is properly understood to be “based on” the Sentencing Guidelines even though the parties calculated those Guidelines in their 11(c)(1)(C) agreement differently than did the district court. Thus, Leonard satisfies the first eligibility requirement for a § 3582(c)(2) sentence reduction.

2. The Guidelines Range “Applicable To” Leonard Was Lowered by Amendment from 121 to 151 Months to 97 to 121 Months

Although Leonard’s sentence is “based on” the Guidelines, he is only eligible for a sentence reduction to the extent “the guideline range applicable to [him] has subsequently been lowered as a result of an amendment to the Guidelines.” U.S.S.G. § 1B1.10(a)(1) (emphasis added); see id. § 1B1.10(b)(1) (stating that “whether, and to what extent” defendant’s sentence may be reduced is determined by amended applicable Guidelines range); United States v. Pleasant, 704 F.3d at 812 (denying § 3582(c)(2) relief to defendant because, although he satisfied statute’s “based on” requirement, crack Guidelines amendment did not lower career offender Guidelines “applicable to” him). The parties here agree that Amendment 782 lowered the Guidelines ranges for most drug crimes, including Leonard’s. They dispute, however, what Guidelines range was “applicable to” Leonard when he was sentenced.

Leonard argues that his initial applicable range was 97 to 121 months, the range specified in his 11(c)(1)(C) agreement, which the district court accepted. Because Amendment 782 lowered that range to 78 to 97 months, Leonard submits he is eligible for a reduction to that extent.

The government maintains that Leonard’s applicable Guidelines range was 121 to 151 months, the range calculated by the district court before accepting the parties’ agreement. It argues that because Amendment 782 lowered that range to 97 to 121 months—the range within which Leonard was sentenced pursuant to his 11(c)(1)(C) agreement—he is not entitled to any further reduction.

We agree that Leonard’s applicable Guidelines range was 121 to 151 months, but we do not agree that he is ineligible for any reduction from his 114-month sentence. That applicable range having been lowered to 97 to 121 months, the district court—in its discretion—could reduce Leonard’s sentence to anywhere from 97 to 113 months. Thus, Leonard is at least eligible for a sentence reduction to that extent.

To explain our conclusion, we begin with the commentary to § IB 1.10, which explicitly defines the “applicable guideline range” that must be lowered to allow for a § 3582(c)(2) reduction as “the guideline range that corresponds to the offense level and criminal history category determined pursuant to § lBl.l(a), which is determined before consideration of any departure provision in the Guidelines Manual or any variance.” U.S.S.G. § 1B1.10 cmt. n.l(A). Two parts of this definition defeat Leonard’s argument that the 97-to-121-month range agreed to by the parties in their 11(c)(1)(C) agreement became his “applicable” range when the district court accepted the agreement.

First, § lBl.l(a), referenced in the above-quoted definition, states that “[t]he court shall determine the kinds of sentence and the guideline range as set forth in the guidelines,” whereupon it proceeds to specify the order in' which a court is to apply various Guidelines provisions. Id. § lBl.l(a) (emphases added). In short, the highlighted language plainly assigns responsibility- for determining the applicable Guidelines range to “the court,” not the parties, and requires the court to make that determination “as set forth.in the guidelines,” not by reference to the parties’ agreement. Id.

Second, and more compelling, the quoted definition states that the “applicable guideline range” is identified “before consideration of any departure ... or' any variance.” Id. § 1B1.10 cmt. n.l(A). The Sentencing Commission explained that it added this language to the Guidelines commentary to resolve a circuit split on the issue of whether the applicable Guidelines range is determined before or after any departure or variance. See id. at App. C, Vol. Ill, Amend. 759, at 421. The definition makes plain that it is determined before. Our court has acknowledged as much in abrogating our own precedent at odds with the commentary definition. See United States v. Steele, 714 F.3d 751, 754 (2d Cir. 2013) (observing that definition makes clear that “ ‘applicable’ amended Guidelines range ... does not incorporate any Guidelines ‘departures’ ” or variances, thus abrogating United States v. Rivera, 662 F.3d 166 (2d Cir. 2011) (using sentencing range calculated after departure in determining defendant’s eligibility for § 3582(c)(2) reduction)); see also United States v. Garrett, 758 F.3d 749, 753 (6th Cir. 2014) (stating that applicable Guidelines range is produced “after a correct determination of the defendant’s total offense level and criminal history category but prior to any discretionary departures” (emphasis in original)).

As we have already explained, when a district court accepts an 11(c)(1)(C) sentence or sentencing range that is lower than its calculated Guidelines range, what the court effectively does is grant a departure or variance. See supra Part II. B.l. There is no doubt as to the court’s authority to do so. But that does not transform the lower agreed-upon range into the applicable Guidelines range. As the commentary to § 1B1.10 makes plain, the “applicable guideline range” for purposes of determining a defendant’s eligibility for a § 3582(c)(2) reduction is always that determined by the court as set forth in the Guidelines, without regard to the parties’ agreement to a different calculation, and before the exercise of any departure or variance discretion. See United States v. Pleasant, 704 F.3d at 811-12.

That conclusion is reinforced by U.S.S.G. § 6B1.2(c), which states that “the court may accept” an 11(c)(1)(C) agreement if the sentence agreed to therein is either (1) “within the applicable guideline range” or (2) “outside the applicable guideline range for justifiable reasons.” U.S.S.G. § 6B1.2(c)(l), (2) (policy statement). The second option plainly recognizes that an 11(c)(1)(C) sentence or sentencing range may not fall within or equate to the “applicable guideline range” as that term is defined in the commentary to § 1B1.10 and identified pursuant to § lBl.l(a). See generally Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) (presuming that “given term is used to mean the same thing throughout a statute”); accord United States v. Steele, 714 F.3d at 754 n.2 (applying principle to Guidelines). Thus, although § 6B 1.2(c) approves 11(c)(1)(C) sentences “outside the applicable guideline range for justifiable reasons,” it does not thereby transform “the applicable guideline range” to whatever the parties agree to in their 11(c)(1)(C) agreement. It simply recognizes, as we have here, the court’s authority to impose 11(c)(1)(C) sentences that depart or vary from the applicable Guidelines range. See United States v. Pleasant, 704 F.3d at 812,

Leonard maintains that the Freeman concurrence compels a different conclusion insofar as it states that, in the context of 11(c)(1)(C) sentences, “it is -the parties’ agreement that controls,” so that “even if the District Court had calculated the range differently than the parties, [defendant] would still be eligible for resentencing, as long as the parties’ chosen range was one that was • subsequently ... lowered by the Sentencing Commission.” Freeman v. United States, 564 U.S. at 542 n.8, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment) (emphasis added); see also United States v. Smith, 658 F.3d at 613 (holding that agreed-to range was applicable because Freeman makes clear that “where the parties have entered into a Rule 11(c)(1)(C) plea agreement that is based on the Sentencing Guidelines, the applicable Guidelines range for purposes of § 3582(c) is the one provided in the plea agreement”). We are not persuaded that Freeman compels the. result Leonard urges.

First, Freeman did not have to decide what constitutes the applicable sentencing range for purposes of a § 3582(c)(2) reduction. The defendant’s agreed-upon 11(c)(1)(C) sentence was there within the Guidelines range calculated by the district court, and there was no question that that range had been lowered by retroactive amendment. See Freeman v. United States, 564 U.S. at 527-28, 131 S.Ct. 2685 (plurality opinion). Thus, the only question for decision was whether such an 11(c)(1)(C) sentence could be deemed “based on” the Guidelines as required for a § 3582(c)(2) reduction. A majority answered that question in the affirmative, see id. at 526, 131 S.Ct. 2685 (plurality opinion); id. at 534, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment); a minority in the negative, see id. at 544, 131 S.Ct. 2685 (Roberts, C.J., dissenting).

In these circumstances, whatever authority the Freeman concurring opinion commands under Marks v. United States, 430 U.S. at 193, 97 S.Ct. 990, with respect to identifying 11(c)(1)(C) sentences “based on” the Guidelines, that authority would not extend to identifying the Guidelines range “applicable to” a defendant when the district court calculates that range differently from the parties in their 11(c)(1)(C) agreement. The concurrence’s “even if’ conclusion about such a circumstance—not then before the Court—is at best dictum. See United States v. Martino, 664 F.2d 860, 872-73 (2d Cir. 1981) (construing “narrowest grounds” under Marks test as “ground that is most nearly confined to the precise fact situation before the Court, rather than to a ground that states more general rules”). To the extent Leonard invokes such dictum .to extend reasoning unanimously rejected by all other members of the Court, we understandably hesitate. See Freeman v. United States, 564 U.S. at 532-34, 131 S.Ct. 2685 (plurality opinion); id. at 544, 131 S.Ct. 2685 (Roberts, C.J., dissenting). In any event, there is a second, compelling reason for rejecting Leonard’s “applicable to” argument.

Specifically, the construction Leonard infers from the Freeman concurrence is now at odds with a subsequent amendment to the Guidelines that explicitly defines the “applicable” range that must be lowered for a party to be eligible for a § 3582(c)(2) reduction. See U.S.S.G. § 1B1.10 cmt. n.l(A). As already discussed, that definition provides for the court to calculate the applicable range according to the Sentencing Manual. See supra Part II.B.2. It does not contemplate that the parties will themselves identify the applicable Guidelines range, much less that they will do so differently than the district court. Nor does that definition permit a departure or variance—which is effectively what the court grants when it accepts an 11(c)(1)(C) agreement specifying a lower Guidelines range than that calculated by the district court—to reduce the applicable Guidelines range. Rather, the commentary defines the “applicable guideline range” as “the guideline range that corresponds to the offense level and criminal history category determined pursuant to § 1B1.1(a)”—that is, by “the court ... as set forth in the Guidelines,” U.S.S.G. § IB 1.1 (a)—“which is determined before consideration of any departure ... or variance,” id. § 1B1.10 cmt. n.1(A) (emphasis added).

Because this definition was added to the Guidelines on November 1, 2011, id. at App. C, Vol. Ill, Amend. 759⅛ at 421, some four months after the Freeman decision, it supersedes any contrary understanding of the - “applicable” Guidelines range that Leonard might urge from dictum in the concurring opinion. See Stinson v. United States, 508 U.S. 36, 46, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (holding that “prior judicial constructions of a particular guideline cannot prevent the Commission from adopting a conflicting interpretation”). Moreover, because 18 U.S.C. § 3582(c)(2) expressly incorporates the Guidelines, the definition now binds the courts in assessing eligibility for a sentence reduction. See generally Dillon v. United States, 560 U.S. at 828, 130 S.Ct. 2683 (holding that Sixth Amendment does not require treating § 1B1.10 requirements for § 3582(c)(2) sentence reduction as merely advisory).

To the extent the decision we reach today differs from that in United States v. McCall, 649 Fed.Appx. 114 (2d Cir. 2016), we note, first, that McCall is a summary order and, therefore, does not preclude this panel from further considering the issues there addressed. See Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 702 n.4 (2d Cir. 2009).

Second, McCall is distinguishable from this case in that, like in Freeman, the parties’ arguments there focuséd on whether the defendant’s sentence was “based on” the Guidelines. See Brief for Appellant McCall at 5-6, Brief for Appellee United States at 9-12, United States v. McCall, 649 Fed.Appx. 114 (2d Cir. 2016) (No. 15-1814). The United States did not argue that, if defendant’s sentence was based on the- Guidelines, his applicable range was the one calculated by the district court, rather than the lower range agreed to by the parties. See Brief for Appellee United States at 9-12, United States v. McCall, 649 Fed.Appx. 114 (2d Cir. 2016) (No. 15-1814) (arguing principally that 11(c)(1)(C) agreement did not sufficiently tether agreed-upon sentence to Guidelines, as required to be “based on” Guidelines under Freeman concurrence). Nor did any party call to the court’s attention the intervening definitional amendment to the Guidelines, expressly stating that the “applicable” sentencing range is to be determined “pursuant to 1B1.1(a),” and “before consideration of any departure provision ... or any variance.” U.S.S.G. § 1B1.10 cmt. n.1(A). That definition does not contemplate recognizing a lower Guidelines range identified in parties’ 11(c)(1)(C) agreement as the applicable range. Thus, the McCall panel accepted the whole of the Freeman concurrence’s footnote 8 without distinguishing the “based on” and “applicable to” requirements for a § 3582(c)(2) sentence reduction.

Accordingly, while Freeman' signáis that the 97-to-121-month range in Leonard’s 11(c)(1)(C) agreement was “based on” the Guidelines, commentary to the Guidelines now instincts that Leonard’s “applicable” Guidelines range was 121 to 151 months, as calculated by the district court pursuant to § 1B1.1(a) and before it. accepted an 11(c)(1)(C) agreement, effectively granting a variance. Because that applicable. range was retroactively lowered by Amendments 782 and 788 to 97 to 121 months, Leonard is eligible for a sentence reduction, but only to the extent of that range, , in short, to between 97 and 113 months. We thus vacate the challenged order and remand for the district court to consider whether to exercise its reduction discretion. See United States v. Mock, 612 F.3d 133, 137 (2d Cir. 2010) (holding that, where defendant is eligible for sentence reduction, district court may reduce sentence “in its discretion” (internal quotation marks omitted)).

In urging against vacatur and remand, the government argues that any error in the district court’s understanding of Leonard’s eligibility for a § 3582(c)(2) reduction was necessarily harmless because, “having already used” a 97-to-121-month sentencing range—pursuant to the parties’ 11(c)(1)(C) agreement—to determine an appropriate sentence, “it is beyond cavil that the district court would have imposed the same 114-month sentence” in the exercise of its § 3582(c)(2) discretion. Appellee’s Br. 15; see United States v. Mock, 612 F.3d at 137. The argument is not without some force, but the urged conclusion is not certain. Cf. United States v. Jass, 569 F.3d 47, 68 (2d Cir. 2009) (stating that procedural error in sentencing is harmless only where “record indicates clearly that the district court would have imposed the same sentence in any event” (internal quotation marks omitted)). That is because we do not know what weight the district court gave the initial applicable Guidelines range in granting the variance reflected in the parties’ agreed-to lower range. Thus, we cannot be certain that if the district court were presented with a lower applicable range equal to the agreed-to range, it would not sentence at the lower end of the range. See United States v. Feldman, 647 F.3d 450, 459-60 (2d Cir. 2011) (“[Blecause the correct Guidelines, range is the starting point and the initial benchmark for federal sentences, we cannot lightly assume that [a different range calculation] would not affect the sentence.” (citation and internal quotation marks omitted)).

In any event, a district court exercises its reduction discretion only “after considering the factors set forth in section 3553(a) to the extent they are applicable.” 18 U.S.C. § 3582(c)(2); see Dillon v. United States, 560 U.S. at 824-25, 130 S.Ct. 2683; United States v. Christie, 736 F.3d at 195 (observing that district court must “consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction ... is warranted ... under the particular circumstances of the case” (internal quotation marks omitted)). Because this consideration can be informed by post-sentencing behavior, see U.S.S.G. § 1B1.10 cmt. n.1(B)(iii), the § 3553(a) factors may present differently on remand and be accorded different weights than at the initial sentence. In these circumstances, we cannot assume that just because the district judge, on weighing the § 3553(a) factors at the original sentenc: ing, granted an agreed-to variance within the very range to which the applicable range has now been lowered by amendment, the district court would not exercise its discretion to grant any further reduction within the available 97-to-113-month frame.

We express no view as to how the district court should exercise its discretion. We conclude only that Leonard is eligible for a § 3582(c)(2) reduction of his 114-month sentence to a term not less than 97 months.

III. Conclusion

To summarize, we conclude as follows:

1. To be eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2), a defendant must satisfactorily demonstrate (a) that his sentence was “based on” the Sentencing Guidelines, and (b) that his “applicable” Guidelines range was lowered by a subsequent retroactive amendment.

2. Because (a) the district court considered the Guidelines in accepting the parties’ 11(c)(1)(C) plea agreement, and (b) the parties calculated the sentencing range specified in that agreement using the Sentencing Guidelines, Leonard’s sentence within that range is properly deemed “based on” the Guidelines under the reasoning of both the plurality and concurring opinions in Freeman v. United States, 564 U.S. 522, 131 S.Ct. 2685, 180 L.Ed.2d 519, see id. at 525, 131 S.Ct. 2685 (plurality opinion); id. at 534, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment), notwithstanding the fact that the district court, before accepting the agreement, had calculated the defendant’s applicable Guidelines range differently.

3. While an 11(c)(1)(C) sentencing range that is lower than the district court’s applicable, Guidelines calculation can be recognized as “based on” the Guidelines under Freeman, such an agreed-to range does not thereby become the “applicable” range for purposes of § 3582(c)(2). A post-Freeman amendment to Guidelines commentary now clarifies that the “applicable” Guidelines range is one determined (a) by the court according to the Guidelines Manual, not by the parties’ agreement; and (b) “before consideration of any departure ... or any variance,” such as would be granted pursuant to an 11(c)(1)(C) agreement that contemplates a lower Guidelines range than that calculated by the district court. See U.S.S.G. § 1B1.10 cmt. n.l(A).

4. Leonard’s initial “applicable” Guidelines range was 121 to 151 months, as determined by the district court before it accepted the parties’ 11(c)(1)(C) agreement specifying a 97-to-121-month range. Because that applicable range was retroactively amended to 97 to 121 months, Leonard is at least eligible for a reduction in- his 114-month Guidelines-based sentence, but not to any term lower than 97 months, with the ultimate decision whether to grant any reduction committed to the discretion of the district court.

Accordingly, the final order of the district court holding Leonard ineligible for a § 3582(c)(2) reduction is VACATED, and the case is REMANDED for further proceedings consistent with this opinion.

      . Fed. R. Crim. P. 11(c)(1)(C) states in pertinent part as follows:
      If the defendant pleads guilty ..., the plea agreement may specify that an attorney for the government will: ... (C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).
      A court "may accept [an 11(c)(1)(C)] agreement, reject it, or defer a decision until the court has reviewed the presentence report.” Id. 11(c)(3)(A). If a court rejects such an agreement, however, it must “give the defendant an opportunity to withdraw the plea.” Id. 11(c)(5)(B).

      . That statute states as follows:
      [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 pursuant to 28 U.S.C. 994(o), upon motion of the defendant ..., 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.
      18 U.S.C. § 3582(c)(2).

      . In his plea agreement, Leonard waived the right to appeal or collaterally attack any component of a sentence falling within or below the 97-to-121-month range agreed to by the parties. Because the government does not argue that this waiver forecloses the instant appeal, we do not here consider that question.

      . Insofar as Pleasant relied on United States v. Austin, 676 F.3d 924 (9th Cir. 2012), in identifying Justice Sotomayor’s concurring opinion in Freeman v. United States, 564 U.S. 522, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), as controlling, Austin has now been overruled by United States v. Davis, 825 F.3d 1014, 1022 (9th Cir. 2016) (en banc), thus abrogating that part of Pleasant. We discuss Freeman and Davis further infra at Part II.B.l. We here note only that the parts of Pleasant cited in this opinion appear unaffected by Davis, In any event, we would reach the conclusions stated herein even without support from Pleasant.

      . In concluding that the rationale for decision of the Freeman concurrence was not necessarily narrower than that of the plurality, the D.C. and Ninth Circuits hypothesized a scenario in which an 11(c)(1)(C) agreement provided for a particular Guidelines range to apply and a sentence at the bottom of that range to be imposed, only to have the district court, while accepting the agreement, conclude that the agreed-to range did not pertain at all because the career offender range was applicable.
      Using Justice Sotomayor’s standard, if the sentencing range used by the parties is subsequently reduced, the defendant would be eligible for a sentence reduction because the plea agreement was accepted and provided for a stipulated sentence based on a subsequently reduced range—according to Justice Sotomayor, eligibility is determined based on the agreement. The plurality, however, would find this defendant ineligible because the range that the parties agreed to played no role in the court's determination that this was an appropriate sentence, despite the fact, that the court imposed the agreed-upon term of imprisonment.

        United States v. Epps, 707 F.3d at 350 n.8 (internal quotation marks omitted); accord United States v. Davis, 825 F.3d at 1023.

      . McCall was sentenced pursuant to an 11(c)(1)(C) agreement to a prison term of 108 months, which derived from the parties’ calculation of an anticipated 108-to-135-month Guidelines range. At sentencing, the parties and the district court agreed that the Guidelines calculations underlying the agreement were erroneous and that defendant’s applicable Guidelines range was 121 to 151 months. Nevertheless, relying on the Freeman concurrence, this court determined that McCall was eligible for a § 3582(c)(2) sentence reduction based on the lowering of the agreed-to 108-to-135-month range to an 87-to-108-month range. See United States v. McCall, 649 Fed. Appx. at 116-17.


author: RESTANI, Judge:

text:
    UNITED STATES of America, Appellee, v. Charles HUGGINS, aka Sealed Défendant 1, Defendant-Appellant, Christopher Butchko, Defendant, Anne Thomas, Defendant.

    No. 15-1676-cr
    August Term 2016
    United States Court of Appeals, Second Circuit.
    Argued: September 28, 2016
    Decided: December 19, 2016

      JONATHAN T. SAVELLA (Marc Fer-nich, on the brief), Law Office of Marc Fernich, New York, New York, for Defendant-Appellant.
    EDWARD IMPERATORE, Assistant United States Attorney (Karl Metzner, Assistant United States Attorney; Preet Bharara, United States Attorney, on the brief), Southern District of New York, New York, New York, for Appellee.
    Before: WINTER and CABRANES, Circuit Judges, and RESTANI, Judge.

       The Clerk of Court is directed to amend the official caption as set forth above.

       The Honorable Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation.

   RESTANI, Judge:

Defendant-Appellant Charles Huggins (“Huggins”) was convicted on May 14, 2015, after a two-week jury trial in the United States District Court for the Southern District of New York (Sidney H. Stein, Judge) for wire fraud and conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349. The district court sentenced him to 120 months in prison, entered an order of forfeiture in the amount of $2.4 million, and ordered restitution in the amount of $2.4 million.

On appeal, Huggins argues that his conviction was improper because the indictment lacked specificity and failed to inform him of the nature and cause of the accusations against him in violation of the Fifth and Sixth Amendments of the United States Constitution. Huggins also argues that the district court incorrectly applied sentencing enhancements based on a loss figure of $8.1 million, gross receipts from a financial institution in excess of $1 million, and abuse of a position of trust. In addition, he brings an ineffective assistance of counsel claim.

In a summary order published contemporaneously with this opinion, we affirm the district court’s judgments on the indictment and sentencing enhancement for a loss figure of $8.1 million, and decline to resolve Huggins’s ineffective assistance of counsel claim at this time. For the reasons set forth below, we conclude that the district court erred in applying the two sentencing enhancements for receiving gross receipts in excess of $1 million from a financial institution pursuant to U.S.S.G. § 2Bl.l(b)(16)(A) and for abuse of a position of trust pursuant to U.S.S.G. § 3B1.3.

BACKGROUND

In the early 2000s, Huggins ran sham oil companies—he promised investors he would use their money to make a profit in West African oil, but in fact simply pocketed the money. (See Trial Tr. 352) Beginning in the mid-to-late 2000s, Huggins began running sham diamond and gold mining companies—JYork Industries Inc. (“JYork”) and Urogo Inc. (“Urogo”). (Id. 73, 77, 354, PSR ¶8) Huggins informed investors that their investments in JYork would be used to acquire diamonds and gold in Sierra Leone, and that investments in Urogo would be used to acquire the same in Liberia. (Trial Tr. 354, 437) Huggins convinced dozens of investors to invest in these companies, establishing friendships with at least two of the investors. (A:246-48; Trial Tr. 72, 743) In total, Huggins received approximately $2.4 million from investors for JYork and Urogo. (Gov’t Br. at Add. 41-42) Including the receipts attributable to the sham oil companies from the early 2000s, Huggins received approximately $8.1 million from investors. (A:235, 246-48) The investors sent this money to JYork and Urogo accounts at Bank of America in New York. (Trial Tr. 374-75) Huggins withdrew money from these accounts by ATM, wire transfer, or by having his assistant, Anne Thomas, cash checks. (See id. 387-89, 874-75)

Although Huggins told investors that JYork and Urogo would use their money to acquire diamonds and gold' in Sierra Leone and Liberia, Huggins used practically none of the investors’ money to do so. (See Trial Tr. 437-39) Instead, Huggins used the money for a wide variety of personal expenses, including rent payment and other personal bills, distributions to family members and friends, meals at expensive restaurants, the purchase of a Mercedes car, and gifts for a young-actress. (Trial Tr. 394-95, 417, 437-39, 445) The government filed. an indictment against Huggins on March 6, 2013. (Indictment, DE 15) The superseding indictment, filed on September 4, 2014, alleged two counts: wire fraud under 18 U.S.C. § 1343, and conspiracy to commit wire fraud under 18 U.S.C. § 1349. (Superseding Indictment, DE 248)

On May 14, 2015, after a two-week jury trial, Huggins was found guilty on both counts. At sentencing, the district court found Huggins’s base offense level to be 7. (Sentencing Tr. 24, DE 358) The government recommended that all of the relevant sentencing enhancements be applied to Huggins. The district court applied these enhancements to calculate the Guidelines range, including: (1) a twenty-level enhancement for a loss figure of $7,000,001 or greater under U.S.S.G. § 2Bl.l(b)(l)(K) (2014); (2) a two-level enhancement for deriving over $1 million in gross receipts from a financial institution as a result of the offense under U.S.S.G. § 2Bl.l(b)(16)(A); and (3) a two-level sentencing enhancement based on abuse of a position of public or private trust under U.S.S.G. § 3B1.3. (Id.) The district court concluded the total offense level to be 39⅛ which when combined with Huggins’s criminal history category of I, yielded a Guidelines range of 262 to 327 months. (Id. at 28)

The district court determined that the range “is greater than necessary to meet the ends of the criminal justice system” and considered Huggins’s age of sixty-nine years old at the time of sentencing. (Id. at 33) Accordingly, it sentenced Huggins to 120 months on each count to run concurrently. (Id. at 27, 33)

JURISDICTION

The district court had original jurisdiction over this case under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291. Both parties agree that our Court has jurisdiction over this appeal.

DISCUSSION

I. Financial Institution Enhancement

We review the district court’s application of the enhancement under U.S.S.G. § 2B1.1(b)(16)(A) de novo. See, e.g., United States v. Conca, 635 F.3d 55, 62 (2d Cir. 2011). U.S.S.G. § 2B1.1(b)(16)(A) provides for a two-level sentencing enhancement if “the defendant derived more than $1,000,000 in gross receipts from one or more financial institutions as a result of the offense[.]” “ ‘Gross receipts from the offense’ includes all property,- real or personal, tangible or intangible, which is obtained directly or indirectly as a result of such offense.” U.S.S.G. § 2B1.1 cmt. n.l2(B). Huggins argues that withdrawals of money from his companies’ Bank of'America accounts by ATM, check, and wire transfer did not trigger this enhancement on the grounds that routine withdrawals from a bank account are not “derived” from “a financial' institution.” (Huggins Br. at 33-34; Huggins Reply Br. at 15) The government contends that the passage of money through a financial institution, even when individual investors are the primary source, is enough to trigger this enhancement. (Gov’t Br. at 45-46) We disagree.

Our analysis begins with the text of the enhancement. United States v. Young, 811 F.3d 592, 601 (2d Cir. 2016). The financial institution enhancement applies only if the defendant’s derivation of gross receipts from a -financial institution is “as a result of the offense.” When a defendant derives gross receipts from a financial institution at which he has an account, whether by ATM, check, or wire transfer, he does so simply as a result of having sufficient funds in his account, not “as a result of the offense.” In this sense, a financial institution acted as little more than a conduit of funds as opposed to being the victim who lost funds as a result of the fraud. The Guidelines provide -no basis to enhance penalties for a defendant who stores his fraudulent proceeds in a financial institution before withdrawing, while allowing a defendant who avoids' use of a financial institution to receive' a lesser punishment.

Our precedents focus on whether the financial institution suffers some type of loss or liability in providing the requisite funds. Indeed, no case in this Circuit has applied this enhancement where a financial institution did not suffer some type of loss or liability. See, e.g., United States v. Goldstein, 442 F.3d 777, 779-81, 785-86 (2d Cir. 2006) (applying the enhancement for stealing banking and credit card information); United States v. Khedr, 343 F.3d 96, 98-99, 100-02 (2d Cir. 2003) (fraudulently obtaining car loans); United States v. Savin, 349 F.3d 27, 30-39 (2d Cir. 2003) (stealing money from a foreign investment company); United States v. Millar, 79 F.3d 338, 340-42, 345-46 (2d Cir. 1996) (bank robbery).

Focusing on whether the financial institution suffers a loss or incurs liability comes from the enhancement’s requirement that the gross receipts be “derived ... from” a financial institution “as a result of the offense”, i.e., that the financial institution must suffer a loss or liability, (emphasis added) By stealing or fraudulently borrowing from a financial institution, the criminal is putting that institution’s financial safety and soundness at risk. The sentencing enhancement thereby penalizes the criminal for this reckless behavior. That was the theory behind the 1989 Act creating this enhancement. Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub. L. No. 101-73, § 961, 103 Stat. 183, 501 (1989). For example, when a defendant fraudulently obtains a mortgage or car loan and fails to pay the money back, the financial institution suffers a loss. By contrast, when a defendant simply withdraws money he deposited in a bank, the financial institution is not incurring any meaningful new liability nor is the criminal leveraging the financial institution’s balance sheet to support criminal activity.

Here, Huggins derived the funds for his fraudulent companies from individual investors, not Bank of America. The bank did not incur a meaningful loss or liability when Huggins withdrew money from his companies’ accounts because investors had deposited this money in his companies’ accounts. Applying the enhancement to all cases where a defendant merely withdraws money from his own bank account at a financial institution cuts too broadly and is inconsistent with the primary purpose of the enhancement, i.e., to penalize an individual for placing a financial institution at risk by borrowing or stealing funds to support criminal activity.

Accordingly, we conclude that Huggins did not derive more than $1,000,000 in gross receipts from a financial institution as a result of his offense within the meaning of § 2Bl.l(b)(16)(A).

II. Abuse of Private Trust Enhancement

Whether Huggins occupied and abused a position of private trust is a legal question that we review de novo. United States v. Jolly, 102 F.3d 46, 48 (2d Cir. 1996). Huggins argues the district court improperly applied a two-level sentencing enhancement based on abuse of a position of private trust under U.S.S.G. § 3B1.3. (Huggins Br. at 34-36) He argues that he did not occupy a position of trust, that he was simply a salesman who had no discretionary authority over the victims’ financial assets and who engaged in typical commercial transactions. (Id.) The government contends that Huggins occupied a position of private trust because he personally solicited funds from investors and held himself out as the companies’ leader with .discretion over the use of funds. (Gov’t Br. at 39-43; Gov’t July 7, 2016 28(5) Letter, EOF No. 86-1) Upon review of the record, we conclude that Huggins did not occupy a position of trust within the meaning of U.S.S.G. § 3B1.3.

U.S.S.G. § 3B1.3 applies a two-level sentencing enhancement “[i]f the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense[.]” The Guidelines Commentary explains that:

“Public or private trust” refers to a position of public or private trust characterized by professional or managerial discretion (i.e., substantial discretionary judgment that is ordinarily given considerable deference). Persons holding such positions ordinarily are subject to significantly less supervision than employees whose responsibilities are primarily non-discretionary in nature. For this adjustment to apply, the position of public or private trust must have contributed in some significant way to facilitating the commission or concealment of the offense (e.g., by making the detection of the offense or the defendant’s responsibility for the offense more difficult).

U.S.S.G. § 3B1.3 cmt. n.3. Under United States v. Thorn, this abuse of trust enhancement involves a two-prong analysis: (1) whether the defendant occupied a position of trust from the victim’s perspective and (2) whether that abuse of trust “significantly facilitated the commission or concealment of the offense.” 446 F.3d 378, 388 (2d Cir. 2006). Here, we need not analyze the second prong because Huggins did not occupy a “position of trust.”

We have repeatedly held that a “position of trust” is held by one who was accorded discretion by the victim and abused a position of fiduciary or quasi-fiduciary status. “Whether a position is one of ‘trust’ within the meaning of § 3B1.3 is to be viewed from the perspective of the offense victims[.]” United States v. Wright, 160 F.3d 906, 910 (2d Cir.1998). A victim’s view of a position as one of trust must, of course, be objectively reasonable. United States v. Santoro, 302 F.3d 76, 82 (2d Cir. 2002). A purely arm’s-length contractual relationship between the defendant and the victims does not create a position of trust. See Jolly, 102 F.3d at 48 (“[T]he abuse of trust enhancement applies only where the defendant has abused discretionary authority entrusted to the defendant by the victim.”); Wright, 160 F.3d at 911. Instead, “an abuse of trust enhancement must involve a fiduciary-like relationship that goes beyond ‘simply the reliance of the victim on the misleading statements or conduct of the defendant.’” United States v. Ntshona, 156 F.3d 318, 320 (2d Cir. 1998) (quoting Jolly, 102 F.3d at 49).

The government does not direct us to any evidence that Huggins held a fiduciary-like relationship with his victims. Unlike other cases where the defendant served as a financial adviser or had discretionary authority for the victim’s financial portfolio, Huggins was merely a salesman for an investment scheme. See United States v. Rivernider, 828 F.3d 91, 114 (2d Cir. 2016) (affirming abuse of trust enhancement where defendant “functioned essentially as an investment advisor for a number of victims”); United States v. Hirsch, 239 F.3d 221, 228 (2d Cir. 2001) (explaining that investment advisors are “entrusted with the discretionary authority to manage the assets of his or her clients” (quoting United States v. Queen, 4 F.3d 925, 929 (10th Cir. 1993))). He contracted at arm’s-length with his victims for the sole purpose of soliciting funds for his purported West African mining ventures. (Trial Tr. 51, 196, 202, 315, 377-78, 752, 1176, 1236-37, 1304). In the case of one victim, Huggins even worked with the victim’s financial advisor—who had the fiduciary relationship with the client, (Huggins Br. at 11-12). The fact that Huggins was a friend of at least two investors is part and parcel of being a salesman. By itself, personal friendship is not evidence that the victims viewed Huggins as occupying a fiduciary-like position that conferred trust over their financial matters. Santoro, 302 F.3d at 82. The district court relied heavily on the fact that Huggins occupied a managerial role that afforded him the freedom to commit a difficult-to-deteet wrong. Although he was the principal organizer of the scheme, it would be double counting for the U.S.S.G. § 3B1.3 enhancement to capture all organizers of fraudulent schemes. Every small-scale fraud led by a single person would qualify for this enhancement because he or she was the principal organizer, irrespective of whether the organizer was acting in a fiduciary-like capacity or held a position of trust.

Our holding in Jolly is precisely on point. In that case, the defendant was president of a company formed to sell computer hardware and software. He raised loans .from investors and sent false statements to them, but the company existed only on paper and the money was used to pay for the defendant’s personal expenses. Jolly, 102 F.3d at 47-48. The district court applied the private trust enhancement and we reversed on appeal: “[T]he lenders’ trust in [the defendant] was simply their reliance on his representations about [his company’s] ongoing business and the appearance created by the repayments. Such reliance is the hope of every defendant who engages in fraud.” Id. at 49. Huggins’s involvement with his investors was no more extensive than Jolly’s contact with his customers. Mere reliance on false statements does not qualify for this enhancement.

This case is distinguished from Hirsch, where the defendant “developed ‘personal relationships with his clients wherein they relied on and trusted him,’” supporting the conclusion that the defendant occupied a position of trust. 239 F.3d at 228. In Hirsch, however, the defendant acted as an investment advisor on behalf of his victims. Id. at 227. Although a friendship between the defendant and victim may be- some evidence that the defendant occupies a position of trust, friendship with victims alone does not trigger the enhancement. Unlike in Hirsch, nothing in the record here suggests that Huggins acted as an investment advisor or broker, that is, an individual who typically “is entrusted .with the discretionary authority to manage the assets of his or her clients through the application of specialized knowledge.” Hirsch, 239 F.3d at 228 (citation omitted). Huggins simply purported to invest the victims’ money in his mining ventures through arm’s-length contracts. It would not be accurate to impute such discretionary authority to a mere salesman. See Wright, 160 F.3d at 910 (“[I]n connection with a fraud offense, a defendant who merely procures loans to his company does not hold a position of trust vis-a-vis the lenders.”).

If the enhancement were to apply here, the enhancement would apply in virtually all fraud cases where a fraud victim relies on a defendant’s false statements. Jolly, 102 F.3d at 49. Such a broad reading would transform this abuse-of-trust enhancement into á vehicle for double counting, relying on a necessary element of the crime as a basis for applying the enhancement. “The trust in short is a specific offense characteristic of fraud, and a Section 3B1.3 enhancement is inappropriate.... Such reliance is the hope of every defendant who engages in fraud.” Id. Although Huggins breached his victims’ trust by using their money for personal gain, he did not occupy a position of trust within the meaning of § 3B1.3.

CONCLUSION

The financial institution and abuse of trust sentencing enhancements under U.S.S.G. §§ 2Bl.l(b)(16)(A) and 3B1.3 were. intended as additional penalties for particularly reckless behavior. They should not be read so broadly as to apply to every instance in which a fraud offense is committed, Nor should prosecutors recommend the maximum possible sentencing enhancements without reference to the defendant’s particular conduct. In particular, prosecutors should acknowledge in their briefs when no caselaw supports their position, as in the financial institution enhancement, or where considerable caselaw weighs against it, as in the abuse of trust enhancement. For the reasons stated above, we hold that the sentencing court erred in applying the sentencing enhancements under U.S.S.G. §§ 2Bl.1(b)(16)(A) and 3B1.3 in a manner that was plainly inconsistent with our precedents. We VACATE the district court’s sentence and REMAND to the district court for resentencing. Huggins’s judgment of conviction and the district court’s application of other sentencing enhancements, as discussed in the summary order filed contemporaneously with this opinion, however, are AFFIRMED.

      . "Trial Tr.” can be found at the trial court docket entry ("DE") numbers 283-301. The pagination refers to the original numbering found on the top right hand of the page.

      . All references to the Guidelines refer to the 2014 version, as those are the provisions governing Huggins’s May 2015 sentence.

      . The government argued at oral argument that “plain error” review should apply because, although Huggins objected to the financial institution enhancement before the district court, he did not raise a specific rationale for the objection. The government did not cite legal authority for this proposition, and, indeed, our precedent is to the contrary. United States v. Sprei, 145 F.3d 528, 533 (2d Cir. 1998) is instructive:
      Rule 51 of the Federal Rules of Criminal Procedure governs objections made to sentencing orders. ... In interpreting Rule 51, we have emphasized that "[a]n objection is adequate which fairly alerts the court and opposing counsel to the nature of the claim." United States v. Rodriguez-Gonzalez, 899 F.2d 177, 180 (2d Cir. 1990). Our precedents demonstrate that to communicate the "nature” of a claim, a party does not have to present precise or detailed legal arguments. See, e.g., United States v. Shumard, 120 F.3d 339, 340 n.1 (2d Cir. 1997) (finding that the government’s request that the district court "consider” a two-level adjustment for defrauding more than one victim was sufficient to preserve argument on appeal that the district court had erred in calculating the number of victims without regard for "relevant conduct” in addition to the actual offense of conviction)[.] (second alteration in original).
      Given the facts of this case, the objection adequately conveyed the nature of the issue.

      . Both parties agree that Bank of America falls within the definition of a "financial institution.” Indeed, the definition is broadly defined to capture virtually all regulated entities and could be applied in a wide range of cases:
      [A]ny institution described in 18 U.S.C. § 20; § 656, § 657, § 1005, § 1006, § 1007, or § 1014; any state or' foreign bank, trust company, credit union,' insur-anee company, investment company, mutual fund, savings (building and loan) association, union or employee pension fund; any health, medical, or hospital insurance association; brokers and dealers registered, or required to be registered, with the Securities and Exchange Commission; futures commodity merchants and commodity pool operators registered, or required to be registered, with the Commodity Futures Trading Commission; and any similar entity, whether or not insured by the federal government. ‘Union or employee pension fund’ and ‘any ’health, medical, or hospital insurance association,’ primarily include large pension funds that serve many persons (e.g., pension funds of large national and international organizations, unions, and corporations doing substantial interstate business), and associations that undertake to provide pension, disability, or other benefits (e.g., medical or hospitalization insurance) to large numbers of persons. U.S.S.G. § 2B1.1 app. n.l.

      . Prior to 2001, .U.S.S.G. § 2F1.1(b)(8)(B) provided a four-level enhancement if the offense “affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense.”

      . The only other circuit to consider how to determine whether funds are derived from a financial institution concluded that the enhancement applies when a financial institution "was the source of the $1 million in gross receipts." United States v. Stinson, 734 F.3d 180, 183-86 (3d Cir. 2013) (finding financial institution not the source of gross receipts of fraud scheme). In so concluding, the court stated that "[a] financial institution is a source- of a defendant’s gross receipts if it owns the funds. Hence, a financial institution is a source of the gross receipts when it exercises dominion and control over the funds and has unrestrained discretion to alienate the funds.” ⅛ This articulation of the standard is problematic, however, because normally a financial institution exercises dominion and control over funds deposited in customer accounts. See Shaw v. United States, No. 15-5991, — U.S. —, 137 S.Ct. 462, 466-67, 196 L.Ed.2d 373, 2016 WL 7182235, at *3 (U.S. Dec. 12, 2016). For the reasons explained above, we focus on the loss or liability incurred by the financial institution.
      The Supreme Court considered a.related situation in Shaw, where it concluded that a defendant “defraud[s] a financial institution” under 18 U.S.C. § 1344(1) by stealing money in which a bank has property rights, even if the bank ultimately does not suffer a monetary loss. Id. at 466-67, 2016 WL 7182235 at *3 (defendant taking money in another depositor's account). Because the enhancement, unlike the statute in Shaw, only applies when the gross receipts are "derived ... from” a financial institution "as a result of the offense”, control of an account containing the depositor’s own ill-gotten gains is insufficient to trigger the enhancement’s application. '

      . At oral argument, the government requested the court to review the district court's application of this enhancement for clear error. However, Huggins is not arguing that the district court applied the enhancement based on erroneous facts, but that the facts are legally insufficient to constitute a position of private trust. (See Huggins Br. at 34-36) Thus, we apply de novo review.


author: JON 0. NEWMAN, Circuit Judge:

text:
    AMERICAN CIVIL LIBERTIES UNION, American Civil Liberties Union Foundation, Plaintiffs-Appellants-Cross-Appellees, v. UNITED STATES DEPARTMENT OF JUSTICE, including its component the Office of Legal Counsel, United States Department of Defense, including its component U.S. Special Operations Command, Central Intelligence Agency, Defendants-Appellees-Cross-Appellants.
    Docket Nos. 15-2956(L), 15-3122(XAP)
    August Term 2016
    United States Court of Appeals, Second Circuit.
    Argued: October 25, 2016
    Decided: December 20, 2016

      Brett Max Kaufman, New York, NY (Jameel Jaffer, Hina Shamsi, Matthew Spurlock, American Civil Liberties Union Foundation, New York, NY, Colin Wicker, Dorsey & Whitney LLP, Minneapolis, MN, on the brief), for Plaintiffs-Appellants-Cross-Appellees.
    Sarah S. Normand, Asst. U.S. Atty., New York, NY (Preet Bharara, U.S. Atty., New York, NY, Benjamin C. Mizer, Principal Deputy Asst. Atty. General, Matthew M. Collette, Sharon Swingle, Civil Division, U.S. Dep’t of Justice, Washington, DC, on the brief), for Defendants-Appellees-Cross-Appellants.
    Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.
   JON 0. NEWMAN, Circuit Judge:

This is the third appellate round of a case brought under the Freedom of Information Act (“FOIA”). The case began in February 2012 to challenge responses to FOIA requests made in October 2011 to the Office of Legal Counsel (“OLC”) of the Department of Justice (“DOJ”), the Central Intelligence Agency (“CIA”), and the Department of Defense (“DOD”). The requests were made by the American Civil Liberties Union and the American Civil Liberties Foundation (collectively “ACLU”). The requests were also made by The New York Times and two of its reporters, but they are not parties in the pending appeal.

ACLU appeals and DOJ cross-appeals from the July 23, 2015, judgment of the District Court for the Southern District of New York (Colleen McMahon, now-Chief Judge). That judgment ruled that OLC, CIA, and DOD were entitled to withhold from disclosure a number of documents concerning- drone strikes—lethal attacks by unmanned aircraft. The judgment also ruled that OLC must disclose all or portions of four documents and CIA must disclose all or- portions of three documents concerning such strikes. ACLU has narrowed its request to 59 documents, including the seven documents ordered disclosed in full or in part. ACLU’s appeal challenges the District Court’s ruling to the extent it upheld nondisclosure of 52 documents, and the Government’s cross-appeal challenges the ruling to the extent it ordered disclosure, in whole or in part, of seven documents.

We conclude that none of the 52 withheld documents must be disclosed, and that the seven documents ordered disclosed may also be withheld. We therefore affirm on the appeal, reverse on the cross-appeal, and remand for entry of a revised judgment.

Litigation history. Our first encounter with this litigation concerned consolidated appeals from the January 24, 2013, judgment of the District Court, dismissing on motion for summary judgment two consolidated suits, one brought by The New York Times and two of its reporters and another brought by- ACLU. See New York Times Co. v. U.S. Dep’t of Justice, 915 F.Supp.2d 508 (S.D.N.Y. 2013), modified by 2013 WL 238928 (S.D.N.Y. Jan. 22, 2013). On those consolidated appeals, we ordered disclosure of a redacted version of the “OLC-DOD Memorandum,” a 41-page document, prepared by OLC, arguing the legal justification for the drone strikes that killed Anwar al-Awlaki, Samir Khan, and al-Awlaki’s son, Abdulrahman al-Awlaki. See New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100, 124 (Conclusion ¶ 1) (2d Cir. 2014) (revised opinion) (“NYTimes I”). All three victims were United States citizens, either by birth or naturalization. Pertinent to the pending appeal, NYTimes I also ordered:

• OLC to disclose some, of the titles and descriptions of documents listed on its Vaughn index, id. (Conclusion ¶ 2);

• OLC to submit various legal memoran-da to the District Court for “in camera inspection and determination of waiver of privileges and appropriate redaction,” id. (Conclusion ¶ 3) (italics added); and

• CIA and DOD to submit Vaughn indi-ces to the District Court for “in camera inspection and determination of appropriate disclosure and appropriate redaction,” id. (Conclusion ¶ 5).

In response to the Government’s petition for rehearing of NYTimes I, we made a slight revision of that opinion, made slight further redactions of the OLC-DOD Memorandum, and permitted the Government to withhold from disclosure the titles and descriptions of some documents listed on the OLC Vaughn index, confirming a withholding authorized by an order issued May 28, 2014. See New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 97, 99 (2d Cir. 2014) (first opinion on Government’s petition for rehearing of NYTimes I). We also bifurcated for later decision the Government’s request for permission to withhold from disclosure additional titles and descriptions of documents listed on the OLC Vaughn index. See id. at 98-99.

Later, completing our ruling on the Government’s petition for rehearing, we permitted the Government to withhold from disclosure ,the titles and descriptions of additional documents listed on the OLC Vaughn index and the titles of other documents listed on that index. See New York Times Co. v. U.S. Dep’t of Justice, 758 F.3d 436, 441 (2d Cir. 2014) (second opinion on Government’s petition for rehearing of NYTimes I). We also ordered DOJ to make public its previously classified OLC Vaughn index, as permissibly redacted. See id. With the Government’s petition for rehearing completely adjudicated, the District Court was left with the task, as directed in NYTimes I, to consider in camera whether several undisclosed OLC documents, sought in the original FOIA requests, should be disclosed. See NYTimes I, 756 F.3d at 124 (Conclusion ¶ 3).

On remand, the District Court ruled that ten of eleven OLC documents, identified in an affidavit of an OLC official, could be withheld from disclosure. See No. 1:11-cv-09336-CM, Dkt. No, 52 (Oct. 31, 2014), The District Court rejected the Government’s request to redact three paragraphs from its opinion. See id., Dkt. No. 51. The Court certified its rulings for immediate appeal under Rule 54(b) of the Federal Rules of Civil Procedure. See id. Dkt. No. 52.

Those rulings precipitated the second appellate round of this litigation. We ruled that the ten identified documents could be withheld. See New York Times Co. v. U.S. Dep’t of Justice, 806 F.3d 682, 690-91 (2d Cir. 2015) (“NYTimes II”). We also ruled that the District Court could make public, except for a few words, the three paragraphs of its opinion the Government had sought to keep undisclosed. See id. Finally, we upheld, the Government’s request to redact a small portion of the transcript of the Government’s ex parte and in camera oral argument before this Court. See id.

NYTimes II left for the District Court the laborious task of examining the numerous OLC, CIA, and DOD documents that the Government claimed were exempt from disclosure. The Government had identified the OLC documents in its OLC Vaughn index, which was originally classified. NYTimes I ordered a redacted version of that index disclosed. 756 F.3d at 124 (Conclusion ¶ 2). The Government had identified the CIA and DOD documents in its classified CIA and DOD Vaughn indices. NYTimes I had ordered preparation of those indices and their consideration by the District Court in camera for determination of appropriate disclosure and redaction. Id. (Conclusion ¶ 5).

Undertaking this task, the District Court examined the documents listed on the OLC, CIA, and DOD Vaughn indices. In a sealed unredacted draft opinion filed on May. 13, .2015, and superseded by a sealed unredacted final opinion filed on June 23, 2015, the District Court required disclosure of redacted versions of three OLC documents, OLC 46, OLC 144, and OLC 145; the complete text of OLC 50; the complete text of Tab C to CIA 59; and redacted versions of CIA 109 and CIA 113. See ACLU v. U.S. Dep’t of Justice, No. 12 Civ. 794(CM), 2015 WL 4470192, at *13-14, *23, *27, *39, *42-43, *45 (S.D.N.Y. July 16,2015) (redacted opinion).

In its redacted opinion, the District Court identified six facts, Nos. 1-5 and 7, that it ruled (with one slight qualification of No. 7 not material to this appeal) had been officially acknowledged. See id. *4-5. The. Court also identified a seventh fact (No, 6), see id. at *5, for consideration by this Court as to whether it had been officially acknowledged, see id. at *6. The District Court ruled that the six acknowledged facts must be disclosed “to the extent that these specific facts appear in documents on the Agencies’ Indices and can be segregated from other, properly exempt information.” Id. at *5. The Court stated that disclosure of these six facts is “[a]pplicable to [a]ll [documents,” id. at *2, but qualified that statement to make clear that the disclosure requirement does not apply to any document reviewed by the Court in camera, “because the [C]ourt took those facts into account when reviewing the document,” id. at *15. With the exception of the seven documents ordered to be disclosed, the District Court ruled that all other requested documents need not be disclosed.

With respect to the six facts, the District Court ordered OLC, CIA, and DOD to make a “segregability review” of each document that the Court had not reviewed in camera and then represent either that the six facts had not been officially acknowledged, or, if so acknowledged, • that the facts cannot reasonably be segregated from information exempt from disclosure. See id. at *6-7. The Government responded with classified declarations from OLC, CIA, and DOD, which contended that segregation of all six facts could not be made. [CSA 492, 516, 544] On July 16, 2015, the District Court issued an order agreeing with the agencies’ contention. See No. l:12-cv-00794-CM, Dkt. No. 129 (July 16, 2015).

Uncertain .as to the status of three documents—CIA 61, CIA 96, and DOD 1, this Court requested the Government to produce. them ex parte for o.ur in camera inspection. No. 15-2956, Dkt. No. 166 (2d Cir. Oct. 21, 2016). We have examined them.

The District Court’s ruling that 52 documents should be withheld and that all or part of seven documents should be disclosed is now fully submitted for our review.

Discussion

Although the history of this litigation is regrettably complicated, disposition of the pending appeal and cross-appeal is fairly straightforward. In general, continued withholding of documents challenged on ACLU’s appeal and reversal of the District Court’s disclosure rulings challenged on the Government’s cross-appeal are warranted either because disclosure would reveal information that should remain secret or because the documents are predecisional drafts protected by FOIA Exemption 5. See Brennan Center for Justice v. U.S. Dep’t of Justice, 697 F.3d 184, 206-07 (2d Cir. 2012); Lahr v. National Transportation Safety Board, 569 F.3d 964, 981-84 (9th Cir. 2009); Abdelfattah v. U.S. Dep’t of Homeland Security, 488 F.3d 178, 183-84 (3d Cir. 2007).

ACLU’s appeal. We appreciate the difficulty ACLU encounters in challenging the District Court’s decision to withhold from disclosure 62 documents. ACLU has not seen either the documents or the redacted portions of the District Court’s opinion explaining the Court’s reasons.

Having carefully considered each of these documents, we conclude that each of the District Court’s withholding decisions was correct. The documents are protected by one or more FOIA exemptions and no waiver of secrecy has occurred with respect to any of them. Our ruling does not turn on the issue of so-called “working law,” an issue contested by ACLU.

The seven facts. At oral argument, it became clear that the issue as to the seven facts identified by the District Court in its July 16, 2015 opinion was whether the Government was asserting the right to withhold any documents because these facts were contained in them. To assist in resolving that issue the District Court directed the relevant agencies to make a segregability review to determine if the six acknowledged facts could be segregated from protected portions of the documents in which they are contained. As explained above, the District Court ruled that the agencies’ submissions persuasively showed that segregation could not be made. We agree with that ruling. No further consideration of these six facts is needed.

With regard to the seventh fact, which the District Court left for our consideration, we conclude that it is unnecessary for the resolution of this appeal to determine whether it has been officially acknowledged. The Government did not assert the right to withhold any of the documents at issue in this appeal on the ground that those documents contained the seventh fact. Accordingly, even if we were to conclude that the Government publicly acknowledged the seventh fact, we would not order disclosure of any document on that basis. No further consideration of the seventh fact is required.

Government’s cross-appeal. The seven documents ordered disclosed by the District Court require individual consideration.

OLC 46: This document, ordered disclosed in redacted'form, is an informal memo, attempting to summarize a meeting at which legal advice was discussed; Indicating the preliminary nature of the memo, the agency staff member who prepared it asked the recipients to correct anything that the writer had tried to summarize. The document is predecisional under Exemption 6 and therefore need not be disclosed.

OLC 60: This document is a draft of two paragraphs that the document preparer suggested might be included in the DOJ White Paper, the document, first leaked and then officially disclosed, which provided a brief legal justification for drone strikes. See NYTimes I, 756 F.3d at 110. Ultimately, the two paragraphs were not included in the White Paper. The District Court considered the two paragraphs similar to the legal advice contained in the White Paper and the OLC-DOD Memorandum, as to which privileges had been waived by disclosure. We acknowledge some similarities, but agree with the Government that the document is demonstrably a draft. ACLU previously explained that it is not seeking “drafts in this litigation,” and stated that “[i]f the Court determines that [the description of OLC 50 as a draft is] accurate, [then it] no longer seeks th[at] document.” Reply Br. for ACLU at 17 n.ll. Accordingly, because OLC is a draft protected by Exemption 5 as predeci-sional and no longer sought by ACLU, OLC 50 neéd not be disclosed.

OLC 144: This document, ordered disclosed in part, is a set of suggested talking points concerning the legal basis for drone strikes. We agree with the Government that the document is predecisional and need not be disclosed. Government officials do not lose the protection of Exemption 5 by considering informally how to present a legal analysis.

OLC 145: This is an internal outline of classified facts and some fragmentary discussion of legal advice, prepared in connection with the drafting of legal advice. Although the District Court properly redacted portions of the document, the remainder is also entitled to remain protected as predecisional under Exemption 5. The document need not be disclosed.

CIA 59 tab C: This is a draft of a proposed op-ed article that suggested some ways of explaining the Government’s legal reasoning in support of drone strikes. It was never published. Although it reveals some of the unnamed writer’s thinking about legal justification for drone strikes, it is a draft and for that reason predeci-sional. It need not be disclosed.

CIA 109 and CIA 113: These documents, which the District Court disclosed in part, are informal and preliminary. The second is unsigned and undated. Despite the re-dactions, some phrases entitled to secrecy remain. Although both appear to have been written after the action they comment on, they are nonetheless predecisional with respect to the formulation of a policy or a clear legal position. Neither document need be disclosed.

Conclusion

Chief Judge McMahon ably performed the burdensome task of examining scores of documents in this protracted litigation, which now appears to be concluded. Despite our slight disagreement with her assessment of a few of these documents, we appreciate her diligence and the helpful explanations in her sealed opinion.

On ACLU’s appeal, the judgment is affirmed; on the Government’s cross-appeal, the judgment is reversed; the case is remanded for entry of a revised judgment.

      . OLC 46, 50, 144, and 145.

      . CIA 59 tab C, 109, and 113.

      . OLC 1, 2, 8, 9, 46, 50, 64, 65, 66, 70, 71, 73, 75, 76, 83, 84, 90, 91, 95, 144, and 145; CIA 2, 3, 12, 15, 33, 34, 35, 36, 45, 59 tab C, 61, 62, 78, 94, 95, 96, 105, 106, 107, 109, 110, 111, 112, 113, 117, 118, 119, 120, 123, 124, 140, and 142; DOD 1, 31, 38, 39, 46, and .55.

      . A Vaughn index is a list of documents, identified by number, title, and description, that a Government agency determines are responsive to an FOIA request. The index states the one or more FOIA exemptions that the agency claims justify withholding each document. The term derives from Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).

      . The District Court explained in its July 17, 2015, order concluding the litigation that the June 23, 2015, opinion "completely superseded” the Court’s May 13, 2015, draft opinion. The July 17, 2015, order slightly amended the June 23, 2015, unredacted opinion and also reported that a redacted version of the June 23, 2015, opinion had been filed "yesterday,” i.e., July 16, 2015. SPA 162-64.

      . Both the District Court's June 23, 2015, draft opinion and its July 16, 2015, revised opinion identified this OLC document as No. 50. See SPA 58, 59. However, the District Court’s July 17, 2015, order, recapitulating its rulings, see SPA 164, and the judgment, see SPA 166, identified the document as No. 150. The Government's brief identified the document as No. 50. See Br. for Government at 60-62..
      We are satisfied that 50 is the correct number and that 150 is a typographical error, This is clear from the description of the document in the District Court's draft and revised opinion and the fact that there is no OLC No. 150.

      . After an inquiry from this Court, see No. 15-2956, Dkt. 136 (2d Cir. Aug. 30, 2016), a response from the District Court, see No. 1:12-CV-00794-CM, Dkt. No. 142 (Oct. 20, 2016), and a further inquiry from this Court, see No. 15-2956, Dkt. No. 168 (2d Cir. Oct. 21, 2016),- the District Court confirmed this conclusion, see No, l:12-cv-00794-CM, Dkt. No. 144 (Oct, 21, 2016),