United States v. Donnell Jehan , 876 F.3d 891 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1779
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONNELL JEHAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 04 CR 464 — Elaine E. Bucklo, Judge.
____________________
ARGUED NOVEMBER 14, 2017 — DECIDED NOVEMBER 28, 2017
____________________
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
PER CURIAM. Donnell Jehan appeals from the order deny-
ing his motion under 18 U.S.C. § 3582(c)(2) to reduce his
prison sentence for his role in a drug conspiracy. The district
court denied that motion on the ground that Jehan’s sentence
is based on a binding plea agreement, not on a Guidelines
range affected by an amendment to the Sentencing Guide-
lines. We affirm.
2 No. 17-1779
Between 1989 and 2004, Jehan rose through the ranks to
become one of three “kings” of the Black Disciples street gang
in Chicago. He provided powder cocaine, crack cocaine, and
heroin to the gang’s drug salesmen, meted out punishment to
lower-tier members, carried firearms, and ordered violence
against members of rival gangs. But his career as a gang
leader ended in May 2004 when federal authorities brought
charges against 47 members and associates of the Black Disci-
ples. Although aware he had been indicted for conspiracy to
distribute cocaine and heroin, 21 U.S.C. §§ 846, 841(a)(1),
Jehan fled and remained a fugitive until finally surrendering
in April 2008.
Jehan pleaded guilty. In his plea agreement, he acknowl-
edged responsibility for at least 1.5 kilograms of crack, 150 kil-
ograms of powder cocaine, and 30 kilograms of heroin. Using
the version of the drug-quantity table then in effect,
see U.S.S.G. § 2D1.1(c) (2007), the parties agreed to a base of-
fense level of 38 and calculated the anticipated range of im-
prisonment. With various adjustments, Jehan’s total offense
level was 43, and his criminal history category was I, yielding
a Guidelines range of life imprisonment.
Jehan’s plea agreement also provided that, if the govern-
ment elected to move for a downward departure for substan-
tial assistance, see U.S.S.G. § 5K1.1, a specific sentence would
apply: 300 months, or 25 years. This provision is governed by
Federal Rule of Criminal Procedure 11(c)(1)(C), which allows
a defendant and the government to specify a “specific sen-
tence or sentencing range” that will “bind the court” if ac-
cepted by the judge. In other words, the plea agreement, if ac-
cepted, contemplated two alternative outcomes: (1) 300
months if Jehan cooperated, and (2) life imprisonment if he
No. 17-1779 3
did not. The agreement further provided, however, that Jehan
might become eligible for a sentence reduction under Federal
Rule of Criminal Procedure 35(b) if he later assisted the gov-
ernment in a manner not “taken into account” already by the
existing agreement. The agreement also contains boilerplate
clauses waiving Jehan’s right to appeal or collaterally attack
his sentence but retaining his right to move “pursuant to Sen-
tencing Guideline § 1B1.10 and 18 U.S.C. § 3582(c) for a reduc-
tion of sentence as a result of an amendment to the Sentencing
Guidelines.”
The district judge accepted the plea agreement. At sen-
tencing, in December 2008, the government moved under
§ 5K1.1 for a downward departure, triggering the provision
governed by Rule 11(c)(1)(C). The judge granted that motion
and sentenced Jehan to the agreed term of 300 months.
Years later, in February 2015, the government moved un-
der Rule 35(b)(2)(C) to reduce Jehan’s sentence after someone
“associated with” Jehan provided information that led to the
arrest of three people. The government proposed a new sen-
tence of at least 240 months—a 20 percent reduction from
300 months. The district judge granted the motion.
Then in October 2016, Jehan moved through counsel to
further reduce his sentence under 18 U.S.C. § 3582(c)(2). He
relied on Amendment 782 to the Sentencing Guidelines,
which in 2014 lowered by 2 the base offense level for most
drug crimes. Jehan argued that the amendment would have
lowered his Guidelines range, and thus he should receive a
reduced prison term—he proposed 188 months. The district
judge denied Jehan’s motion, saying in a brief minute entry
that she lacked “authority” to reduce his sentence under Free-
man v. United States, 131 S. Ct. 2685 (2011), and United States
4 No. 17-1779
v. Ray, 598 F.3d 407 (7th Cir. 2010). Jehan has appealed that
decision.
DISCUSSION
Section 3582(c)(2) authorizes a district court to reduce a
sentence that is “based on a sentencing range that has subse-
quently been lowered by the Sentencing Commission.” (em-
phasis added). In 2011 the Supreme Court held—without a
majority opinion—that defendants who enter into binding
plea agreements under Rule 11(c)(1)(C) may be, but are not
automatically, entitled to reductions under § 3582(c)(2). Free-
man, 131 S. Ct. at 2690. Eligibility depends on whether the
sentence agreed to under Rule 11(c)(1)(C) is actually “based
on” an amended Guidelines range. See id. The justices could
not reach a consensus, however, about how to determine
whether a sentence is “based on” the Guidelines. See id.
Justice Sotomayor, in a concurrence, concluded that a sen-
tence imposed in accordance with Rule 11(c)(1)(C) usually is
not “based on” the Guidelines, but on the agreement itself.
Freeman, 131 S. Ct. at 2696 (Sotomayor, J., concurring). Thus,
she explained, a defendant sentenced under a Rule 11(c)(1)(C)
agreement is eligible to seek a reduction under § 3582(c)(2)
only in two scenarios: first, if the plea agreement “call[s] for
the defendant to be sentenced within a particular Guidelines
sentencing range,” or, second, if the agreement provides a
specific term of imprisonment but “make[s] clear that the ba-
sis for the specified term is a Guidelines sentencing range ap-
plicable to the offense.” Id. at 2697 (Sotomayor, J., concurring).
We previously had used an approach similar to the one artic-
ulated by Justice Sotomayor, see Ray, 598 F.3d at 409–11 (cited
approvingly in Freeman, 131 S. Ct. at 2698 n.3 (Sotomayor, J.,
No. 17-1779 5
concurring)), and we have since expressly adopted Justice So-
tomayor’s approach, see United States v. Scott, 711 F.3d 784, 787
(7th Cir. 2013); United States v. Dixon, 687 F.3d 356, 359–60
(7th Cir. 2012). Accordingly what matters here is “whether the
parties’ binding plea agreement was expressly based on the
Sentencing Guidelines, not whether the Guidelines informed
the parties’ decision to enter into the agreement” or the dis-
trict judge’s decision to accept it. Dixon, 687 F.3d at 361; see
Ray, 598 F.3d at 410–11 (holding that defendant who enters
into Rule 11(c)(1)(C) agreement is not eligible for later reduc-
tion under § 3582(c)(2) unless “intent to modify is apparent at
the time of the agreement”).
Jehan’s lawyer contends that the second exception identi-
fied by Justice Sotomayor applies. The government counters
that Jehan’s plea agreement is almost identical to the one in
Dixon, which we held did not allow for a reduction under
§ 3582(c)(2). See Dixon, 687 F.3d at 360. But Jehan’s lawyer in-
sists that the many references to the Guidelines in his agree-
ment, as well as the term of 300 months itself, show that the
sentence is in fact “based on” the Guidelines. First, counsel
points out that the district judge was required to consider the
Guidelines when deciding whether to accept the plea agree-
ment, and that Jehan would have to accept a Guidelines-based
sentence if the judge rejected the agreed term of imprison-
ment. These references to the Guidelines, counsel contends,
mean that the 300-month sentence rests on the judge’s “deter-
mination—whether explicit or implicit—that the sentence
agreed upon is reasonable with respect to the Guidelines.”
But Justice Sotomayor (and the four members of the dissent)
already rejected this logic in Freeman, see 131 S. Ct. at 2695–96
(Sotomayor, J., concurring), 2701 (Roberts, C.J., dissenting).
Simply because the parties or the sentencing court considered
6 No. 17-1779
the Guidelines—even if they included information about the
Guidelines in the plea agreement—does not mean that the ne-
gotiated sentence is based on the Guidelines. See id. at 2695 (So-
tomayor, J., concurring); Dixon, 687 F.3d at 361–62.
Jehan’s lawyer, who did not represent Jehan in the under-
lying criminal case and played no part in negotiating the
agreement, also engages in rank speculation in trying to
demonstrate that the parties derived the 300-month sentence
from the Guidelines. Cf. Freeman, 131 S. Ct. at 2699–700 (So-
tomayor, J., concurring) (concluding that agreed sentence,
which equaled statutory minimum for one charge plus bot-
tom of Guidelines range for second charge, obviously was
based on the Guidelines). Counsel assumes that the
300-month sentence, which resulted from a downward depar-
ture under § 5K1.1, must represent a reduction of 3 offense
levels (from 43 to 40) since 300 months falls within the impris-
onment range for a total offense level of 40 and criminal his-
tory category I: 292 to 365 months. Thus, she argues, applying
the 2-level reduction from Amendment 782 would have
yielded an agreed sentence within the range for offense level
38 and criminal history category I: 235 to 293 months. She then
assumes that the parties would have chosen a sentence of 235
months (conveniently ignoring that the 300-month sentence
did not fall exactly at the bottom of Jehan’s supposedly “re-
duced” Guidelines range of 292 to 365 months). Counsel con-
tends further that the government still would have later
moved for a 20 percent reduction under Rule 35, leading to
the 188-month sentence Jehan now seeks.
Not only does this scenario lack support in the record (the
lawyer cites nothing to substantiate it), but it also ignores a
basic fact: a motion under § 5K1.1 does not “reduce” the total
No. 17-1779 7
offense level or the Guidelines range. Instead, “[u]nder the
Guidelines, a defendant has only one ‘applicable Guideline
range,’ and it is a range that the district court calculates before
granting any departures under Chapter 5 of the Guidelines.”
United States v. Guyton, 636 F.3d 316, 319 (7th Cir. 2011); see
United States v. Castillo, 695 F.3d 672, 675 (7th Cir. 2012) (“A de-
parture is a departure; it is a sentence above or below the ap-
plicable Guidelines range.”). Thus the choice of 300 months
instead of a life sentence does not establish an “offense-level
reduction” of the sort counsel posits.
More importantly, even if the agreed sentence is the prod-
uct of a formula tracking counsel’s guesswork, that formula is
not expressed in the plea agreement, so this court cannot rely
on it. See Dixon, 687 F.3d at 361 (noting that courts cannot rely
on “negotiations and oral explanations beyond the scope of
the written agreement itself”). Just as in Dixon, Jehan’s plea
agreement does not “expressly link the offense level and crim-
inal history to the much lower agreed sentence” of
300 months, so it cannot be said to be “based on” the Guide-
lines. Id. at 360; see Ray, 598 F.3d at 409 (noting that plea agree-
ment must “clearly reflect an intent” for sentence to be modi-
fied along with future changes in Guidelines). Logically
speaking, Jehan’s original 300-month sentence appears less
likely to be directly tied to the Guidelines than based on a
rough compromise between life imprisonment and the 10-
year statutory minimum.
None of this is changed by counsel’s attempts to distin-
guish Freeman and Dixon. First, she takes issue with the dis-
trict judge’s reason for denying Jehan’s motion for a reduc-
tion—that the judge lacked “authority” to do so. Counsel mis-
8 No. 17-1779
interprets the judge’s reason as a statement about subject-mat-
ter jurisdiction. She is correct that a defendant’s eligibility for
a reduction under § 3582(c)(2) should not be confused with
the district court’s jurisdiction to decide the motion. See United
States v. Taylor, 778 F.3d 667, 671 (7th Cir. 2015). But the district
judge never suggested that she lacked subject-matter jurisdic-
tion and, indeed, “denied” rather than “dismissed” Jehan’s
motion. Taylor itself recognizes that the language the judge
used here—“no authority”—does not signal a lack of jurisdic-
tion. See id. at 670 (“[D]istrict courts have subject-matter juris-
diction over—that is, the power to adjudicate—a § 3582(c)(2)
motion even when authority to grant a motion is absent be-
cause the statutory criteria are not met.”). The district judge
was correct that she lacked the “authority to reduce” Jehan’s
sentence because it is not “based on” the Guidelines as re-
quired by § 3582(c)(2). See Freeman, 131 S. Ct. at 2696–98 (So-
tomayor, J., concurring); Dixon, 687 F.3d at 359.
Jehan’s lawyer also contends that two features of Jehan’s
plea agreement show that the parties intended to allow later
modification of the sentence through § 3582(c)(2). Counsel
points out that the appeal-waiver provision forecloses a direct
appeal or collateral attack but expressly allows for a motion
under § 3582(c)(2). But even giving Jehan the benefit of the
doubt, see Dowell v. United States, 694 F.3d 898, 902 (7th Cir.
2012) (noting that agreements are contracts and that ambigu-
ities are resolved in favor of defendant), we do not read this
provision as tying Jehan’s sentence to future changes in the
Guidelines. See Ray, 598 F.3d at 409–10 (asking whether Rule
11(c)(1)(C) agreement “clearly reflect[s] an intent to tie the sen-
tence to the Guidelines so that, if the Guidelines are subse-
quently adjusted, the sentence should be similarly adjusted”).
No. 17-1779 9
Instead the provision says only that, to the extent Jehan is eli-
gible for a reduction under § 3582(c)(2)—and who can say how
that statute will be changed or reinterpreted in the future—he
does not give up his right to ask for one. See id.; see also United
States v. Owens, 640 F. App’x 503, 504 (7th Cir. 2016) (treating
waiver of right to bring motion under § 3582(c)(2) as separate
from eligibility for reduction under Rule 11(c)(1)(C) agree-
ment). Simply saying one does not waive the right to file a
certain motion does not mean that the motion will be auto-
matically meritorious—surely counsel is not suggesting that
defendants who refuse to sign appeal waivers are assured of
prevailing if they do appeal.
Jehan’s lawyer further argues in her reply brief that the
government’s decision to file a Rule 35(b) motion undercuts
the importance of the parties’ choice of 300 months. But that
reduction, unlike one under § 3582(c)(2), actually was explic-
itly contemplated in the agreement. The fact that the parties
specifically provided for the possibility of a Rule 35(b) reduc-
tion shows that they equally could have provided for Jehan’s
sentence to “be adjusted in tandem with any future adjust-
ment in the Guidelines.” See Ray, 598 F.3d at 411. They did not.
Finally, Jehan’s lawyer contends that declining to allow
Jehan to move for a reduction contravenes the purpose of
Amendment 782, which, according to her, was intended to
“eliminate a systemic injustice” of sentences being imposed
“far in excess of the mandatory minimum ranges provided by
statute.” Counsel cites the plurality’s opinion in Freeman, au-
thored by Justice Kennedy, to argue that denying Jehan a sen-
tence reduction creates an arbitrary distinction “between sim-
ilar defendants based on the terms of their plea agreements.”
Freeman, 131 S. Ct. at 2695. But, despite counsel’s continued
10 No. 17-1779
protestations, Justice Kennedy’s approach did not carry the
day and is not binding on this court. See Dixon, 687 F.3d
at 359–60.
CONCLUSION
For the reasons set forth in this opinion, the district court’s
denial of a sentence reduction under § 3582(c) is AFFIRMED.