In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2392
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K EITH R AY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02-CR-1064-1—James F. Holderman, Chief Judge.
A RGUED O CTOBER 30, 2009—D ECIDED M ARCH 17, 2010
Before C UDAHY, P OSNER, and R OVNER, Circuit Judges.
C UDAHY , Circuit Judge. On November 4, 2002, while
en route from Chicago to Minneapolis, Keith Ray was
arrested for possessing almost two kilograms of crack
cocaine. Due to his significant cooperation, Ray and the
government entered into a plea agreement that provided
for 263 months’ imprisonment. This was significantly
below the relevant Guidelines range of 292-365 months.
The agreement did not state that the specified sentence
2 No. 09-2392
was based upon the Guidelines; nor did it elucidate
how the parties arrived at the 263-month figure. After
he was sentenced to the agreed term, the Sentencing
Commission issued Amendment 706, which lowered
the offense level for crack-cocaine offenses. Had this
amendment been in effect during his prosecution, Ray’s
Guidelines range would have been 235 to 293 months.
Contending that the 263-month term in the plea agree-
ment represented a 10% reduction from the low end of
the relevant Guidelines range (292 months), Ray filed a
18 U.S.C. § 3582(c) motion for a lower sentence. The
district court denied the motion on the ground that the
sentence he received was based on the stipulated term
of imprisonment rather than on the Guidelines. We affirm.
I. BACKGROUND
Beginning in early September 2002, Keith Ray began
a series of trips between Minneapolis and Chicago for
the purpose of acquiring crack cocaine and bringing it to
Minnesota for distribution. This improvident course of
action reached its inevitable conclusion on November 4,
2004, when Ray and Dorian Bowlds acquired some 1,955
grams of crack cocaine in Chicago and boarded a train
to Minneapolis. While en route, Ray was approached by
law enforcement agents. Despite a futile effort on Ray’s
part to hide the cocaine by passing it to Bowlds, the
agents discovered the drugs and arrested the pair.
On January 16, 2003, Ray pleaded guilty to conspiracy
to possess with intent to distribute in excess of 50 grams’
crack cocaine. Due to Ray’s substantial assistance to the
No. 09-2392 3
prosecution, he and the government entered into a plea
agreement that provided for a sentence of 263 months’
imprisonment. This represented a marked reduction
from the relevant Guidelines range, which in light of his
criminal history and other pertinent factors was 292-365
months. Although the agreement did not explain the
basis upon which the 263-month figure was determined,
it is 10% less than the low end of the then-existing Guide-
lines range. The district court accepted the plea agree-
ment and imposed the agreed-upon sentence.
On November 1, 2007, the Sentencing Commission
issued Amendment 706 to U.S.S.G. § 2d1.1, which
reduced the base-offense level for crack-cocaine offenses
by two levels. Ray brought a motion under 18 U.S.C.
§ 3582(c)(2), requesting that the district court reduce
his sentence to 212 months’ imprisonment, which repre-
sented a 10% reduction from the low end of his
amended Guideline range of 235 to 293 months.
The district court denied Ray’s motion, finding that his
term of imprisonment was not based on a sentencing
range that had subsequently been lowered by the Sen-
tencing Commission. Rather, the court determined that
Ray’s prison term was based on an agreed sentence
under what is now Fed. R. Crim. P. 11(c)(1)(C). Ray
now appeals this decision.
II. DISCUSSION
The issue before us is a relatively straightforward one.
Section 3582(c)(2) provides that with respect to “a defen-
4 No. 09-2392
dant who has been sentenced to a term of imprison-
ment based on a sentencing range that has subsequently
been lowered by the Sentencing Commission pursuant
to 28 U.S.C. 994(o) . . . 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.” In
the present case, there is no question that the Commis-
sion lowered the sentencing range for crack-cocaine
offenses. The only issue presented for our determination
is whether Ray was sentenced “based on” the Sentencing
Guidelines. If so, he is entitled to file a § 3582(c)(2)
motion and to petition the district court for a reduced
sentence.
Ray’s plea agreement provided 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.” The agree-
ment further specified that “the sentence imposed by
the Court shall include a term of imprisonment in the
custody of the Bureau of Prisons of 263 months.” On this
basis, the appellant invites us to hold that his 263-month
sentence was based on the Guidelines range of 292-365
months, rather than specifically on his agreement with
the government. We decline to do so.
Ray’s argument centers, as it must, on the uncontrover-
sial contention that the Sentencing Guidelines played a
role in the process by which he and the government
arrived at the figure of 263 months. To be sure, it seems
No. 09-2392 5
most unlikely that the agreed sentence was arrived upon
by chance and without regard to the Guidelines, which
presumably featured prominently in the parties’ negotia-
tions. At oral argument, counsel for the government
conceded that such negotiations typically begin based
on the relevant Guidelines range. But it is a far cry
from the unremarkable observation that the Guidelines
influenced the negotiations that ultimately resulted in
the agreed term of 263 months to the more dubious
contention that that sentence was “based on” the Guide-
lines. One must examine the intent of the plea agree-
ment, which, of course, is the ultimate basis of the sen-
tence. Does the plea agreement clearly reflect an intent
to tie the sentence to the Guidelines so that, if the Guide-
lines are subsequently adjusted, the sentence should be
similarly adjusted? If so, the sentence may be said to be
“based on” the Guidelines. Here, however, there is no
indication of such an intent.
Ray urges us to recognize that the 263-month figure is
not a random result, but rather represents 90% of the
low end of the relevant Guidelines range. This might
well be true. It is entirely plausible that the parties
viewed a 10% reduction from the low end of the Guide-
lines range as the appropriate sentence in the present
case. But since the parties failed to specify this relation-
ship in writing, we can only surmise its existence. Accord
United States v. Sanchez, 562 F.3d 275, 282 (3d Cir. 2009).
Such speculation provides insufficient basis for us to
conclude that the 263-month sentence was “based on” the
Guidelines.
6 No. 09-2392
Moreover, even if we were completely confident that
the 263-month result was derived in this manner, it does
not follow that the parties would have agreed to a
10% reduction on the low end of the new Guidelines
range, had it been in effect at the time of Ray’s prosecu-
tion. The government may view a 10% reduction from
292 months (the low end of the old range) to the agreed-
upon 263 months to be acceptable, and yet not deem the
same percentage reduction from 235 months (the low
end of the new range) to 212 months to be appropriate.
How are we to presume that the government would
define a reasonable reduction in such a linear manner?
Ultimately, the written agreement does not state that
the parties intended for the appropriate sentence to be
10% below the low end of the relevant Guidelines
range. And it is the intent of the parties at the time of
the plea agreement, as memorialized in it, which is deter-
minative.
Our conclusion that Ray’s sentence was “based on”
his plea agreement, rather than the Guidelines, is
bolstered by numerous decisions of our sister circuits. See
United States v. Main, 579 F.3d 200, 203 (2d Cir. 2009)
(holding that where a district court departs from the
Guidelines by imposing a below-Guidelines sentence, a
defendant cannot be said to have been sentenced “based
on” those Guidelines); United States v. Sanchez, 562 F.3d
275, 282 (3d Cir. 2009); United States v. Peveler, 359 F.3d
369, 379 (6th Cir. 2004); United States v. Scurlack, 560
F.3d 839, 842 (8th Cir. 2009) (“Under Rule 11(c)(1)(C),
the court therefore was bound to sentence [defendant]
No. 09-2392 7
pursuant to the terms of the parties’ agreement, and
§ 3582(c)(2) became inapplicable because [defendant’s]
sentence was based on the agreement and not ‘a sen-
tencing range that ha[d] subsequently been lowered by
the Sentencing Commission’ ”); United States v. Trujeque,
100 F.3d 869, 871 (10th Cir. 1996) (same); see also United
States v. Cook, ___ F.3d ___, 2010 WL 481270, at *2 (D.C. Cir.
Feb. 12, 2010); United States v. Cieslowski, 410 F.3d 353, 363-
64 (7th Cir. 2005); United States v. Hemminger, 114 F.3d
1192, 1997 WL 235838, at *1 (7th Cir. May 2, 1997).
Confronted with this unpropitious precedent, Ray
focuses our attention on a recent decision of the Tenth
Circuit. In United States v. Cobb, that court held that a
defendant who had entered into a Rule 11(c)(1)(C) agree-
ment could bring a motion for a sentence reduction
under 18 U.S.C. § 3582(c)(2). 584 F.3d 979, 981 (10th Cir.
2009). There, the parties had stipulated to a sentence at
the low end of the Guidelines. Id. at 982. Reasoning that
“[i]t is simply unrealistic to think that the applicable
guideline range is not a major factor (if not the major
factor) in reaching a stipulated sentence,” the court con-
cluded that “nothing in the language of § 3582(c)(2) or
in the language of Rule 11 precludes a defendant who
pleads guilty under Rule 11 from later benefitting from
a favorable retroactive guideline amendment.” Id. at 984-
85 (emphasis original).
Despite this ostensibly favorable ruling, Cobb does not
benefit the appellant in the present case. As the Tenth
Circuit made clear in distinguishing prior case law, the
appellant in Cobb had stipulated to a sentence tied to a
8 No. 09-2392
correctly determined Guidelines range rather than to a
sentence outside the sentencing range. Id. at 983. Ray
obviously entered into an agreement with the govern-
ment to a below-Guidelines term of imprisonment. More-
over, in Cobb, the appellant’s “sentencing disposition
was tied to the guidelines at every step.” Id. at 983.
The Tenth Circuit case may arguably be said to have
found that the intent of the plea agreement was to tie
the sentence to the Guidelines range, which was
moved. Such is clearly not the case with respect to
Ray, whose plea agreement draws no connection be-
tween the agreed-to sentence and the relevant Guidelines
range.
Only if an intent to modify is apparent at the time of
the agreement is the sentence modifiable since the issue
is one of contract principle. Our case law makes clear
that the sentence imposed under a plea bargain rests
firmly on the parties’ agreement. See United States v.
Woods, 581 F.3d 531, 534 (7th Cir. 2009) (observing that a
“plea agreement is a type of contract subject to contract
law principles” and that “[w]e interpret the terms of the
agreement according to the parties’ reasonable expecta-
tions”); United States v. Monroe, 580 F.3d 552, 556 (7th
Cir. 2009) (“As a general matter, we interpret plea agree-
ments in accordance with ordinary principles of con-
tract law.”); United States v. Ataya, 864 F.2d 1324, 1329
(7th Cir. 1998) (“This Court has long recognized that a
plea agreement is a contract.”). Since plea agreements
under Fed. R. Crim. P. 11(e)(1)(C) are creatures of con-
tract, there is no reason why such agreements could not
No. 09-2392 9
provide for the modifiability of the Guidelines. 1 Ray’s
plea agreement, however, contained no such provi-
sion and evidenced no clear intent that his sentence be
adjusted in tandem with any future adjustment in the
Guidelines. This being the case, we cannot conclude
that his 263-month sentence was “based on” the Guide-
lines.
III. CONCLUSION
In the absence of explicit language in the agreement
to the contrary, a sentence imposed pursuant to a Fed. R.
Crim. P. 11(c)(1)(C) plea agreement cannot be said to be
“based on” the Sentencing Guidelines. An agreement
must clearly reflect an intent that the sentence be
modified when the Guidelines shift. Ray’s plea agree-
ment did not reflect such an intent. That being so,
the district court was correct to conclude that Ray’s
263-month sentence was not based on the Guidelines
1
Just as a defendant can bargain away his right to seek a
reduced sentence under 18 U.S.C. § 3582(c), so surely a defen-
dant may bargain for his sentence to move in tandem with any
future favorable amendment in the Guidelines. Compare
Hemminger, 1997 WL 235838, at *1 (observing that a defendant
bargained away his right to receive a lower sentence) with
Cobb, 584 F.3d at 979 (allowing a defendant to bring a motion
under 18 U.S.C. § 3582(c) where the plea agreement explicitly
tied the agreed sentence to the Guidelines, which evidenced
an intent that the agreed sentence would change in line with
any subsequent alteration in the Guidelines).
10 No. 09-2392
and that, as a result, he could not bring a 18 U.S.C.
§ 3582(c)(2) motion. The judgment of the district court
is therefore
A FFIRMED.
3-17-10