The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION AND ORDER
Defendant James Dismukes entered into a plea agreement with the United States in which Dismukes pled guilty to one count of distributing, and possessing with intent to distribute, crack cocaine. (Plea Agreement, Doc. No. 207.) Consistent with the terms of the plea agreement, Dismukes was sentenced to a term of 144 months incarceration by the Honorable Mark Filip. (J. in a Crim. Case, Doc. No. 260.) This matter comes before the court on Dismukes' "motion for modification of sentence based on new amendment to the sentencing guidelines made retroactive by the Sentencing Commission pursuant to 18 U.S.C. § 3582(c)(2)" (Doc. No. 362.) For the reasons set forth below, Dismukes' motion is denied.
Dismukes entered into a plea agreement with the government in which he pled guilty to one count of distributing, and possessing with intent to distribute, crack cocaine. (Plea Agreement at ¶ 5.) In return for Dismukes' cooperation, the government agreed to "move the court . . . to depart from the applicable sentencing guideline range and the statutory minimum sentence, and to impose the sentence agreed to by the parties outlined below." (Id. ¶ 16.) Dismukes and the government agreed that "the sentence imposed by the Court shall include a term of imprisonment of 144 months."*fn1 (Id.) Consistent with the government's recommendation, Judge Filip imposed the 144-month sentence stipulated to by the parties. (J. in a Crim. Case.)
A year later, the Sentencing Commission passed Amendment 706, which "generally reduced by two levels the offense levels applicable to crack cocaine offenses." Wilson v. United States, No. 95-CR-509-6, 2010 WL 780388, at *2 (N.D. Ill. Mar. 3, 2010). "Amendment 706 . . . was subsequently added to the list of retroactively applicable amendments." Id.
18 U.S.C. § 3582(c)(2) provides that:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . the court may reduce the term of imprisonment, after considering the factors 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) (emphasis added).
Dismukes argues that based on Amendment 706 "he should be entitled to a reduction of sentence . . . associated with quantity of crack cocaine by two levels." (Mot. at 4.) The government argues that "[t]he Sentencing Guidelines amendment is inapplicable to Dismukes . . . because he was sentenced to a specific, stipulated term of months provided in a plea agreement entered under Federal Rule of Criminal Procedure 11(c)(1)(C)." (Resp. at 1, Doc. No. 371.) Although the court would reach a different conclusion if writing on a clean slate, binding appellate precedent compels the result urged by the government.
United States v Ray, 598 F.3d 407 (7th Cir. 2010), and United States v. Franklin, 600 F.3d 893 (7th Cir. 2010), two recent Seventh Circuit cases, are directly on point. In United States v. Ray, the defendant entered into an agreement with the government, pleading guilty to possession of crack cocaine with intent to distribute and stipulating to a sentence of 263 months incarceration, a 10% reduction from the low end of the then-applicable guideline range. Ray, 598 F.3d at 409. Ray later filed a motion to reduce his sentence to 212 months, 10% less than the low end of the post-Amendment 706 crack cocaine guideline range. Id.The district court denied Ray's motion, and he appealed. Id.
The Seventh Circuit framed the issue as "whether Ray was sentenced 'based on' the Sentencing Guidelines." Id. at 409. The court acknowledged that "it seems most unlikely that the agreed sentence was arrived upon by chance and without regard to the Guidelines, which presumably featured prominently in the parties' negotiations." Id.
Nonetheless, the court reasoned that "it is a far cry from the unremarkable observation that the Guidelines influenced the negotiations that ultimately resulted in the [sentence] . . . to the more dubious contention that the sentence was 'based on' the Guidelines." Id. "Only if an intent to modify is apparent at the time of the agreement," the court held, "is the sentence modifiable since the issue is one of contract." Id. at 410.Because "Ray's plea agreement . . . evinced no clear intent that his sentence be adjusted in tandem with any future adjustment in the Guidelines," the court "[could not] conclude that his 263-month sentence was 'based on' the Guidelines." Id.Instead, Ray's plea agreement simply stated that the government would move the court to "depart from the applicable sentencing guidelines range . . . and to impose the specific sentence agreed to by the parties." Id. at 409.The court acknowledged that "[i]t is entirely plausible that the parties viewed a 10% reduction from the low end of the Guidelines range as the appropriate sentence ...