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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TENIAH TERCERO, Defendant-Appellant. No. 12-10404 D.C. No. 3:09-CR-00102-RS-3 OPINION Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding Submitted October 7, 2013* San Francisco, California Filed October 31, 2013 Before: Dorothy W. Nelson, Milan D. Smith, Jr., and Sandra S. Ikuta, Circuit Judges. Op
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  FOR PUBLICATION UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT U  NITED S TATES OF A MERICA ,  Plaintiff-Appellee ,v.T ENIAH T ERCERO ,  Defendant-Appellant  . No. 12-10404D.C. No.3:09-CR-00102-RS-3OPINIONAppeal from the United States District Courtfor the Northern District of CaliforniaRichard Seeborg, District Judge, PresidingSubmitted October 7, 2013 * San Francisco, CaliforniaFiled October 31, 2013Before: Dorothy W. Nelson, Milan D. Smith, Jr.,and Sandra S. Ikuta, Circuit Judges.Opinion by Judge D.W. Nelson   *  The panel unanimously concludes this case is suitable for decisionwithout oral argument. See  Fed. R. App. P. 34(a)(2).  U  NITED S TATES V .   T ERCERO 2 SUMMARY ** Criminal Law The panel affirmed the district court’s decision grantingin part and denying in part a motion for reduction of sentenceunder 18 U.S.C. § 3582(c)(2) following enactment of the Fair Sentencing Act. The panel held that the defendant did not waive her rightto appeal the reduced sentence. The panel also held thatalthough the defendant expressly waived her right to bring a§ 3582(c)(2) motion in her plea agreement, the governmentdid not argue at the resentencing hearing that the defendanthad waived that right and thus cannot rely on that provisionto argue that the appeal is not properly before this court.The panel was unpersuaded that Congress intended theFair Sentencing Act to implement the retroactive reduction of sentencing ranges for crack cocaine offenses in a particular way, much less one that conflicts with U.S.S.G. § 1B1.10, asrevised by the Sentencing Commission to prohibit courtsfrom reducing a defendant’s term of imprisonment under § 3582(c)(2) to a term that is less than the minimum of theamended guideline range.The panel rejected the defendant’s contention that thiscourt need not comply with § 1B1.10, which the SupremeCourt in  Dhillon v. United States , considering an earlier version of § 1B1.10, held is binding on courts. The panel   **  This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  U  NITED S TATES V .   T ERCERO 3observed that the district court correctly followed the two-step procedure reiterated in  Dhillon . The panel rejected the defendant’s contentions that therevised § 1B1.10 conflicts with the purpose of the SentencingGuidelines, conflicts with the statute that authorized theCommission to apply amendments retroactively, and isarbitrary and capricious under the Administrative ProceduresAct. COUNSEL Mark Rosenbush, San Francisco, California, for Defendant-Appellant.Suzanne B. Miles, Assistant United States Attorney, Officeof the United States Attorney, San Francisco, California, for Plaintiff-Appellee. OPINION D.W. NELSON, Senior Circuit Judge:Teniah Tercero appeals the district court’s decisiongranting in part and denying in part her motion to reduce her sentence under 18 U.S.C. § 3582(c)(2) following theenactment of the Fair Sentencing Act. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and weaffirm.  U  NITED S TATES V .   T ERCERO 4 I.Background Tercero’s appeal concerns the retroactive application of the Fair Sentencing Act (“FSA”) and the related amendedSentencing Guidelines ranges for offenses involving crack cocaine. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372; U.S. Sentencing Guidelines Manual app.C, amends. 748, 750 (2010).The government indicted Tercero on two counts:conspiracy to distribute crack cocaine and distribution of crack cocaine. Tercero pled guilty to a single count of  possession with intent to distribute methamphetamine, asalleged in the information, in exchange for the dismissal of the charges in the indictment. The parties stipulated that, for the purposes of sentencing, Tercero possessed 115.8 grams of crack cocaine and 4.36 grams of methamphetamine, resultingin an adjusted offense level of 25. The parties agreed,however, that Tercero could argue for a sentence as low as 72months. Tercero agreed to waive “any right . . . to appeal anyaspect of [her] sentence,” as well as any right to file anycollateral attack on her conviction or sentence, such as byfiling motion under 18 U.S.C. § 3582.The district court found that the applicable SentencingGuidelines range was 84 to 105 months based on a criminalhistory category of 4 and a total offense level of 25. Thecourt then considered the factors set forth in 18 U.S.C.§ 3553(a), finding that Tercero played a minor role in theconspiracy. While Tercero knew that she was committing aserious offense, she neither created nor organized it, thus, thedistrict court concluded that her minor role made “her conduct less serious than a mechanical application of theguidelines would suggest.” Accordingly, the court found that
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