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United States v. Jehan

United States Court of Appeals, Seventh Circuit

November 28, 2017

United States of America, Plaintiff-Appellee,
DONNELL JEHAN, Defendant-Appellant.

          Argued November 14, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 CR 464 - Elaine E. Bucklo, Judge.

          Before Bauer, Easterbrook, and Sykes, Circuit Judges.

          Per Curiam.

         Donnell Jehan appeals from the order denying 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 Guidelines. We affirm.

         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 Disciples. 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 acknowledged responsibility for at least 1.5 kilograms of crack, 150 kilograms 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 offense level of 38 and calculated the anticipated range of imprisonment. 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 government elected to move for a downward departure for substantial 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 sentence or sentencing range" that will "bind the court" if accepted by the judge. In other words, the plea agreement, if accepted, contemplated two alternative outcomes: (1) 300 months if Jehan cooperated, and (2) life imprisonment if he 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 government 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 Sentencing Guideline § 1B1.10 and 18 U.S.C. § 3582(c) for a reduction of sentence as a result of an amendment to the Sentencing Guidelines."

         The district judge accepted the plea agreement. At sentencing, 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 under 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 sentence 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 Freeman v. United States, 131 S.Ct. 2685 (2011), and United States v. Ray, 598 F.3d 407 (7th Cir. 2010). Jehan has appealed that decision.


         Section 3582(c)(2) authorizes a district court to reduce a sentence that is "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." (emphasis 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). Freeman, 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 sentence 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 basis for the specified term is a Guidelines sentencing range applicable to the offense." Id. at 2697 (Sotomayor, J., concurring). We previously had used an approach similar to the one articulated by Justice Sotomayor, see Ray, 598 F.3d at 409-11 (cited approvingly in Freeman, 131 S.Ct. at 2698 n.3 (Sotomayor, J., 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 ...

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