NONPRECEDENTIAL DISPOSITION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 March 26, 2008*
Decided March 28, 2008
Before
RICHARD A. POSNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐2789
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
No. 06‐CR‐093
MARTEZ D. FORD,
Defendant‐Appellant. John C. Shabaz,
Judge.
O R D E R
After serving as the deliveryman in three sales of crack cocaine, Martez Ford was
charged with three counts of distribution. See 21 U.S.C. § 841(a)(1). In exchange for his plea
of guilty to one of those counts, the government promised to recommend that Ford receive a
reduction in offense level for acceptance of responsibility unless he engaged in future
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 07‐2789 Page 2
misconduct. See U.S.S.G. § 3E1.1. At sentencing the district court noted that Ford, who was
detained, had incurred seven misconduct reports since pleading guilty. The court
suggested that these reports were enough to free the government from recommending
acceptance points, but the government made the recommendation anyway with the caveat
that Ford’s misconduct warranted a sentence at the top of the guidelines range. The district
court rejected that recommendation because it concluded that Ford’s misconduct was
inconsistent with a finding that he had accepted responsibility. See id. § 3E1.1., cmt. 1(b).
The court assigned a base offense level of 26 based on the 12.4 grams of crack cocaine
involved in the three drug buys. See id. § 2D1.1(c)(7) (2006). That offense level, combined
with Ford’s criminal history category of III, yielded a guidelines imprisonment range of 78
to 97 months. Ford argued for a reduced sentence based on the greater sentences for crimes
involving crack versus powder cocaine, but the district court responded that it was not free
to ignore the guidelines. The court then imposed a sentence of 88 months.
On appeal Ford first argues that he should have been allowed to withdraw his guilty
plea when the district judge refused to award him a reduction for acceptance of
responsibility. As Ford accurately reports, the district court told him during the plea
colloquy that he would be able to withdraw the plea if the court did not “follow the terms of
the plea agreement.” Ford argues that the district court reneged on this promise when it did
not invite him to withdraw his plea after rejecting the government’s recommendation for
acceptance points. But rejecting a recommendation that the government made under the
terms of the plea agreement is not the same as rejecting “the terms” of the agreement. “Our
case law has clearly established that a district court is not required to follow the
governmentʹs sentencing recommendations.” United States v. Marty, 450 F.3d 687, 691 (7th
Cir. 2006). In fact, during the plea colloquy the court explained to Ford that the
government’s recommendations did not bind it; they were merely “recommendations that
the Court can reject without permitting [Ford] to withdraw” his plea, and that is exactly
what the court did. Ford points out that the court all but told the government that it could
decline to recommend a § 3E1.1 reduction due to his misconduct, but we do not understand
Ford’s contention that doing so was equivalent to rejecting the plea agreement. Ford
concedes, as he must, that the district court was justified in finding that he did not accept
responsibility, so he must also concede that the government would have been justified in
withholding its recommendation. All the district court did, then, was state the obvious.
Ford’s second argument on appeal, that he deserves a remand because the district
court believed it was not free to impose a reduced sentence based on a policy disagreement
with the crack‐to‐powder ratio, is much better than the first. The government concedes that
Ford preserved this argument by objecting at sentencing and is entitled to a remand for
resentencing in light of Kimbrough v. United States, 128 S.Ct. 558 (2007). The district court
thought itself bound by the ratio, but after Kimbrough, even in a “mine‐run case,” district
No. 07‐2789 Page 3
courts may impose lower sentences based on a determination that the ratio produces a
sentence greater than necessary for a particular defendant. Id. at 575. Accordingly, we
REMAND for resentencing in light of Kimbrough. We note that under the new guidelines
that will apply at Ford’s resentencing, see United States v. Demaree, 459 F.3d 791 (7th Cir.
2006), his 12.4 grams of crack cocaine now translate into a lower base offense level. Instead
of 26, Ford’s base offense level at a new sentencing hearing should be 24, U.S.S.G.
§ 2D1.1(c)(8) (2007), which yields a guidelines range of 63 to 78 months.