United States v. Darryl McNeal , 471 F. App'x 524 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 25, 2010
Decided August 31, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 10-1717
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Indianapolis Division
v.
No. IP 99-131-CR-001-B/F
DARRYL B. McNEAL,
Defendant-Appellant. Sarah Evans Barker,
Judge.
ORDER
Darryl McNeal appeals the denial of his motion to reduce his sentence under 18
U.S.C. § 3582(c)(2). His appointed appellate counsel concluded that the appeal is frivolous
and without merit, and moves to withdraw under Anders v. California, 386 U.S. 738 (1967).
The defendant-appellant has not accepted our invitation to respond to the motion, see C IR.
R. 51(b), we thus confine our review to the potential issues in counsel’s facially adequate
brief, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
No. 10-1717 Page 2
In 2000 the appellant pleaded guilty to conspiring to possess more than 50 grams of
cocaine base with intent to distribute, see 21 U.S.C. §§ 841(a)(1), 846, in exchange for the
government’s dismissal of five other pending drug counts. The plea agreement, which was
governed by FED. R. C RIM. P. 11(e)(1)(C),1 proposed a sentence of 168 months’
imprisonment. The court accepted the agreement and recommendation, and sentenced
McNeal to 168 months—the bottom of the applicable guidelines range. On November 1,
2007, the Sentencing Commission retroactively reduced the base offense levels for crack-
cocaine offenses, U.S.S.G. § 2D1.1(c); U.S.S.G. Supp. to App. C 226-31 (2008) (“Amendment
706"), and the defendant moved for a sentencing reduction under § 3582(c)(2). That statute
permits a district court to reduce a sentence that is “based on” a guidelines sentencing
range that has since been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).
The court denied the motion on the ground that McNeal’s sentence was based not on the
guidelines, but on the stipulated term of imprisonment.
Appellate counsel considers one issue: whether McNeal could argue that his
sentence is “based on” the guidelines because it falls within the range calculated by the
district court. If the term were “based on” the crack guideline, then the court would have
had authority to reduce McNeal’s sentence. But, as defense counsel observes, that
argument is foreclosed by United States v. Ray, 598 F.3d 407 (7th Cir. 2010). In Ray we
recently held that a sentence based on a stipulated term of months under Rule 11(c)(1)(C) is
not based on the guidelines, and is therefore not subject to reduction under a guideline
amendment. Ray, 598 F.3d at 411; see United States v. Franklin, 600 F.3d 893, 896-97 (7th Cir.
2010). The defendant’s plea agreement does not “reflect an intent that the sentence be
modified when the Guidelines shift.” Ray, 598 F.3d at 411. We agree with counsel that to
argue McNeal’s sentence was “based on” a guidelines range for purposes of 18 U.S.C.
§ 3582(c)(2) would be frivolous and without merit.
We GRANT counsel’s motion to withdraw and DISMISS the appeal.
1
FED. R. CRIM. P. 11(e)(1)(C) has since been renumbered and is now Rule 11(c)(1)(C).