November 14, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 04 CR 464 -
Elaine E. Bucklo, Judge.
Bauer, Easterbrook, and Sykes, Circuit Judges.
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.
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.
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
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."
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.
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.
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.
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.
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 ...