In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1779

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DONNELL JEHAN,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 04 CR 464 — Elaine E. Bucklo, Judge.

____________________

ARGUED NOVEMBER 14, 2017 — DECIDED NOVEMBER 28, 2017

____________________

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.
2 No. 17-1779

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 
No. 17-1779 3

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 
4 No. 17-1779

v. Ray, 598 F.3d 407 (7th Cir. 2010). Jehan has appealed that 

decision.

DISCUSSION

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., 
No. 17-1779 5

concurring)), and we have since expressly adopted Justice Sotomayor’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 agreement” or the district judge’s decision to accept it. Dixon, 687 F.3d at 361; see 

Ray, 598 F.3d at 410–11 (holding that defendant who enters 

into Rule 11(c)(1)(C) agreement is not eligible for later reduction under § 3582(c)(2) unless “intent to modify is apparent at 

the time of the agreement”).

Jehan’s lawyer contends that the second exception identified by Justice Sotomayor applies. The government counters 

that Jehan’s plea agreement is almost identical to the one in 

Dixon, which we held did not allow for a reduction under 

§ 3582(c)(2). See Dixon, 687 F.3d at 360. But Jehan’s lawyer insists that the many references to the Guidelines in his agreement, as well as the term of 300 months itself, show that the 

sentence is in fact “based on” the Guidelines. First, counsel 

points out that the district judge was required to consider the 

Guidelines when deciding whether to accept the plea agreement, and that Jehan would have to accept a Guidelines-based 

sentence if the judge rejected the agreed term of imprisonment. These references to the Guidelines, counsel contends, 

mean that the 300-month sentence rests on the judge’s “determination—whether explicit or implicit—that the sentence 

agreed upon is reasonable with respect to the Guidelines.” 

But Justice Sotomayor (and the four members of the dissent) 

already rejected this logic in Freeman, see 131 S. Ct. at 2695–96 

(Sotomayor, J., concurring), 2701 (Roberts, C.J., dissenting). 

Simply because the parties or the sentencing court considered 
6 No. 17-1779

the Guidelines—even if they included information about the 

Guidelines in the plea agreement—does not mean that the negotiated sentence is based on the Guidelines. See id. at 2695 (Sotomayor, J., concurring); Dixon, 687 F.3d at 361–62.

Jehan’s lawyer, who did not represent Jehan in the underlying criminal case and played no part in negotiating the 

agreement, also engages in rank speculation in trying to 

demonstrate that the parties derived the 300-month sentence 

from the Guidelines. Cf. Freeman, 131 S. Ct. at 2699–700 (Sotomayor, J., concurring) (concluding that agreed sentence, 

which equaled statutory minimum for one charge plus bottom of Guidelines range for second charge, obviously was 

based on the Guidelines). Counsel assumes that the 

300-month sentence, which resulted from a downward departure under § 5K1.1, must represent a reduction of 3 offense 

levels (from 43 to 40) since 300 months falls within the imprisonment range for a total offense level of 40 and criminal history category I: 292 to 365 months. Thus, she argues, applying 

the 2-level reduction from Amendment 782 would have 

yielded an agreed sentence within the range for offense level 

38 and criminal history category I: 235 to 293 months. She then 

assumes that the parties would have chosen a sentence of 235 

months (conveniently ignoring that the 300-month sentence 

did not fall exactly at the bottom of Jehan’s supposedly “reduced” Guidelines range of 292 to 365 months). Counsel contends further that the government still would have later 

moved for a 20 percent reduction under Rule 35, leading to 

the 188-month sentence Jehan now seeks.

Not only does this scenario lack support in the record (the 

lawyer cites nothing to substantiate it), but it also ignores a 

basic fact: a motion under § 5K1.1 does not “reduce” the total 
No. 17-1779 7

offense level or the Guidelines range. Instead, “[u]nder the 

Guidelines, a defendant has only one ‘applicable Guideline 

range,’ and it is a range that the district court calculates before 

granting any departures under Chapter 5 of the Guidelines.”

United States v. Guyton, 636 F.3d 316, 319 (7th Cir. 2011); see 

United States v. Castillo, 695 F.3d 672, 675 (7th Cir. 2012) (“A departure is a departure; it is a sentence above or below the applicable Guidelines range.”). Thus the choice of 300 months 

instead of a life sentence does not establish an “offense-level 

reduction” of the sort counsel posits. 

More importantly, even if the agreed sentence is the product of a formula tracking counsel’s guesswork, that formula is 

not expressed in the plea agreement, so this court cannot rely 

on it. See Dixon, 687 F.3d at 361 (noting that courts cannot rely 

on “negotiations and oral explanations beyond the scope of 

the written agreement itself”). Just as in Dixon, Jehan’s plea 

agreement does not “expressly link the offense level and criminal history to the much lower agreed sentence” of 

300 months, so it cannot be said to be “based on” the Guidelines. Id. at 360; see Ray, 598 F.3d at 409 (noting that plea agreement must “clearly reflect an intent” for sentence to be modified along with future changes in Guidelines). Logically 

speaking, Jehan’s original 300-month sentence appears less 

likely to be directly tied to the Guidelines than based on a 

rough compromise between life imprisonment and the 10-

year statutory minimum.

None of this is changed by counsel’s attempts to distinguish Freeman and Dixon. First, she takes issue with the district judge’s reason for denying Jehan’s motion for a reduction—that the judge lacked “authority” to do so. Counsel mis-
8 No. 17-1779

interprets the judge’s reason as a statement about subject-matter jurisdiction. She is correct that a defendant’s eligibility for 

a reduction under § 3582(c)(2) should not be confused with 

the district court’s jurisdiction to decide the motion. See United 

States v. Taylor, 778 F.3d 667, 671 (7th Cir. 2015). But the district 

judge never suggested that she lacked subject-matter jurisdiction and, indeed, “denied” rather than “dismissed” Jehan’s 

motion. Taylor itself recognizes that the language the judge 

used here—“no authority”—does not signal a lack of jurisdiction. See id. at 670 (“[D]istrict courts have subject-matter jurisdiction over—that is, the power to adjudicate—a § 3582(c)(2) 

motion even when authority to grant a motion is absent because the statutory criteria are not met.”). The district judge 

was correct that she lacked the “authority to reduce” Jehan’s 

sentence because it is not “based on” the Guidelines as required by § 3582(c)(2). See Freeman, 131 S. Ct. at 2696–98 (Sotomayor, J., concurring); Dixon, 687 F.3d at 359. 

Jehan’s lawyer also contends that two features of Jehan’s 

plea agreement show that the parties intended to allow later 

modification of the sentence through § 3582(c)(2). Counsel 

points out that the appeal-waiver provision forecloses a direct 

appeal or collateral attack but expressly allows for a motion 

under § 3582(c)(2). But even giving Jehan the benefit of the 

doubt, see Dowell v. United States, 694 F.3d 898, 902 (7th Cir. 

2012) (noting that agreements are contracts and that ambiguities are resolved in favor of defendant), we do not read this 

provision as tying Jehan’s sentence to future changes in the 

Guidelines. See Ray, 598 F.3d at 409–10 (asking whether Rule 

11(c)(1)(C) agreement “clearly reflect[s] an intent to tie the sentence to the Guidelines so that, if the Guidelines are subsequently adjusted, the sentence should be similarly adjusted”). 
No. 17-1779 9

Instead the provision says only that, to the extent Jehan is eligible for a reduction under § 3582(c)(2)—and who can say how 

that statute will be changed or reinterpreted in the future—he 

does not give up his right to ask for one. See id.; see also United 

States v. Owens, 640 F. App’x 503, 504 (7th Cir. 2016) (treating 

waiver of right to bring motion under § 3582(c)(2) as separate 

from eligibility for reduction under Rule 11(c)(1)(C) agreement). Simply saying one does not waive the right to file a 

certain motion does not mean that the motion will be automatically meritorious—surely counsel is not suggesting that 

defendants who refuse to sign appeal waivers are assured of 

prevailing if they do appeal.

Jehan’s lawyer further argues in her reply brief that the 

government’s decision to file a Rule 35(b) motion undercuts 

the importance of the parties’ choice of 300 months. But that 

reduction, unlike one under § 3582(c)(2), actually was explicitly contemplated in the agreement. The fact that the parties 

specifically provided for the possibility of a Rule 35(b) reduction shows that they equally could have provided for Jehan’s 

sentence to “be adjusted in tandem with any future adjustment in the Guidelines.” See Ray, 598 F.3d at 411. They did not.

Finally, Jehan’s lawyer contends that declining to allow 

Jehan to move for a reduction contravenes the purpose of 

Amendment 782, which, according to her, was intended to 

“eliminate a systemic injustice” of sentences being imposed 

“far in excess of the mandatory minimum ranges provided by 

statute.” Counsel cites the plurality’s opinion in Freeman, authored by Justice Kennedy, to argue that denying Jehan a sentence reduction creates an arbitrary distinction “between similar defendants based on the terms of their plea agreements.” 

Freeman, 131 S. Ct. at 2695. But, despite counsel’s continued 
10 No. 17-1779

protestations, Justice Kennedy’s approach did not carry the 

day and is not binding on this court. See Dixon, 687 F.3d 

at 359–60.

CONCLUSION

For the reasons set forth in this opinion, the district court’s 

denial of a sentence reduction under § 3582(c) is AFFIRMED.