### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 1975

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D ONNELL J EHAN

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 04 CR 464

‐ 2

— Elaine E. Bucklo

, Judge

.

____________________

A RGUED J ANUARY 30, 2020

— D ECIDED F EBRUARY 6, 2020

____________________

Before M ANION

, K ANNE

, and S YKES

, Circuit Judges

.

P ER C URIAM

. Donnell Jehan appeals the denial of his sec

‐

ond motion to reduce his sentence under 18 U.S.C.

§ 3582(c)(2) based on the retroactive application of Amend

‐

ment 782 to the United States Sentencing Guidelines. The dis

‐

trict court determined that Jehan was ineligible for a reduc

‐

tion because the amendment did not change his guidelines

range. On appeal, Jehan primarily argues that the amendment

did change his guidelines range, because his binding plea2 No. 19

‐ 1975

agreement required the district court to fi nd him responsible

for quantities of narcotics that, under the amendment, pro

‐

duce a lower guidelines range. Because the district court cor

‐ rectly concluded that Jehan was responsible for greater quan

‐

tities of narcotics, we a ffi rm.

I. B ACKGROUND

Over the course of 15 years, Jehan rose through the ranks

of a Chicago street gang, eventually leading its conspiracy to

distribute cocaine base (“crack”), cocaine, and heroin.

United States v. Jehan

, 876 F.3d 891, 892 (7th Cir. 2017). After he

and other members of the gang were indicted for this conspir

‐

acy, Jehan fl ed and remained a fugitive for four years. Id.

After Jehan was fi nally arrested, the parties entered a

binding plea agreement under Federal Rule of Criminal Pro

‐

cedure 11(c)(1)(C). Jehan admi tt ed responsibility for conspir

‐ ing to distribute more than 150 kilograms of cocaine, more

than 30 kilograms of heroin, and more than 1.5 kilograms of

crack. These quantities of heroin and cocaine matched the

thresholds for the highest base o ff ense level on the drug

‐ quantity table at the time; the quantity of crack was at the low

end for the second

‐ highest base o ff ense level on the table.

See U.S.S.G. § 2D1.1(c)(1), (2) (2007). The parties agreed that,

based on the quantities of heroin and cocaine, Jehan’s total of

‐

fense level was 43 (base o ff ense level of 38, plus eight levels

for other enhancements, minus three levels for acceptance of

responsibility) and his criminal history category was I, yield

‐ ing a guidelines range of life in prison. In exchange for his

acceptance of responsibility and aid to the government in

other cases, the Rule 11(c)(1)(C) agreement speci fi ed that

Jehan would receive a 300

‐ month sentence.No. 19

‐ 1975 3

The probation o ffi ce prepared a Presentence Investigation

Report (“PSR”), which detailed that “drug spots” operated by

Jehan brought in $200,000 to $300,000 per day; one dealer paid

$80,000 per month to work in Jehan’s territory and earned

$45,000 per day from the heroin he sold there; another dealer

sold fi ve or six 25

‐ or 50

‐ packs of crack each day in Jehan’s

territory; and another dealer sold about 1.5 kilograms of crack

per week for Jehan during a period of about two years. The

probation o ffi ce concluded that these facts supported fi nding

Jehan responsible for conspiring to distribute more than 150

kilograms of cocaine, more than 30 kilograms of heroin, and

more than 1.5 kilograms of crack.

The district court adopted the PSR, accepted the parties’

binding agreement, and sentenced Jehan to a term of 300

months’ imprisonment and fi ve years’ supervised release.

Jehan

, 876 F.3d at 892. In 2015, the court reduced Jehan’s sen

‐

tence to 240 months because of assistance that he provided to

the government in another case. Id. at 893.

In 2016, Jehan moved to reduce his sentence under

§ 3582(c)(2) in light of Amendment 782, which retroactively

increased the drug quantities required for each base o ff ense

level for most federal drug o ff enses. The district court denied

Jehan’s motion, determining that he was ineligible for a re

‐

duction under § 3582(c)(2) because his sentence was “based

on” the parties’ Rule 11(c)(1)(C) agreement, not the Guide

‐

lines. Jehan appealed, and this court a ffi rmed, following then

‐ controlling circuit precedent. Id. at 893 (citing United States

v. Dixon

, 687 F.3d 356, 359–60 (7th Cir. 2012)).

After the Supreme Court abrogated Dixon in Hughes

v. United States

, 138 S. Ct. 1765 (2018), and held that relief un

‐

der § 3582(c)(2) should be available to defendants with plea4 No. 19

‐ 1975

agreements under Rule 11(c)(1)(C), Jehan fi led a second

§ 3582(c)(2) motion, again based on Amendment 782. Jehan

contended that his guidelines calculation would have been

lower had the amendment been in place at his original sen

‐ tencing, and he posited that his sentence should be 13 years

of actual time served.

The district court denied the motion. As the court ex

‐ plained, “[t]he facts contained in the PSR—to which defend

‐

ant did not object—support a fi nding that [the] defendant was

accountable for such large quantities of narcotics that his base

o ff ense level and corresponding guidelines range are not re

‐

duced by” Amendment 782. In a footnote, the district court

summarized those facts:

As detailed in the PSR, defendant conspired for

more than ten years with other members of the Black

Disciples street gang

... to distribute, and to possess

with intent to distribute, large quantities of narcot

‐

ics. Among other evidence relevant [to] drug quan

‐

tities for which defendant was accountable, the PSR

cited evidence that drug spots he operated brought

in hundreds of thousands of dollars per day

. One wit

‐

ness reported selling 1.5 kilos of [crack] per week for

defendant and one of his co

‐ defendants for a two

‐

year period.

(citations omitted).

II. A NALYSIS

On appeal, Jehan fi rst argues that the district court did not

make any factual fi ndings that supported its conclusion that

he was ineligible for a sentence reduction. This assertion is

simply not right. Although the district court did not specifyNo. 19

‐ 1975 5

exact drug quantities, it adopted facts from the PSR and at

‐

tributed to Jehan “such large quantities of narcotics that his

base o ff ense level and corresponding guidelines range are not

reduced” by Amendment 782. Even if the district court’s or

‐

der is cursory, a cursory order does not necessarily require

reversal. See United States v. Brown

, 836 F.3d 827, 830 (7th Cir.

2016). From context, it is clear that the district court held Jehan

responsible for the quantities of narcotics necessary for the

highest base o ff ense level on the current drug

‐ quantity table.

See U.S.S.G. § 2D1.1(c)(1), (2) (2018).

Jehan next argues that his plea agreement bound the court

to fi nding him responsible for only the drug quantities stipu

‐

lated in his plea agreement. This argument also lacks merit.

First, the plea agreement stated that Jehan was responsible for

“ more than 1.5 kilograms of crack cocaine, more than 150 kilo

‐

grams of cocaine, and more than 30 kilograms of heroin.” (em

‐ phasis added). Thus, by its terms, the agreement acknowl

‐ edged Jehan’s responsibility for “more than” the quantities

listed. Second, Rule 11(c)(1)(C) agreements “bind the court”

to a “speci fi c sentence or sentencing range” only. Fed. R.

Crim. P. 11(c)(1)(C). Such agreements do not bind the court to

factual stipulations. See United States v. Cole

, 569 F.3d 774,

777–78 (7th Cir. 2009).

In any event, the district court did not err when it deter

‐

mined that Jehan was responsible for such large quantities of

heroin and cocaine that his base o ff ense level was unchanged

by Amendment 782. A district court may make new fi ndings

of fact to determine a defendant’s base o ff ense level when a

retroactive amendment alters the relevant drug

‐ quantity

thresholds—so long as those fi ndings are supported by the

record and consistent with the fi ndings made at the original6 No. 19

‐ 1975

sentencing. Brown

, 836 F.3d at 829. Here, the district court

adopted the PSR after neither party objected to it at Jehan’s

original sentencing. 1 And, as the PSR detailed, “drug spots”

operated by Jehan brought in an estimated $200,000 to

$300,000 per day. The Guidelines instruct that when there is

no drug seizure, sentencing courts may rely on the money

that the defendant made from his dealings to determine the

quantity of narcotics involved. United States v. Are

, 590 F.3d

499, 516 (7th Cir. 2009); U.S.S.G. § 2D1.1 cmt. n.5 (2018). The

high dollar earnings here support fi nding Jehan responsible

for more than 450 kilograms of cocaine and 90 kilograms of

heroin, the threshold quantities for the highest base level on

the current drug

‐ quantity table, U.S.S.G. § 2D1.1(c)(1) (2018).

See United States v. Thurman

, 889 F.3d 356, 369–70 (7th Cir.

2018) ($27,000 stash shows defendant was responsible for

more than 700 grams of heroin); Brown

, 836 F.3d at 830 (taking

in millions of dollars supports fi nding defendant responsible

for more than 450 kilograms of cocaine). 2

1 In a footnote in his brief and at oral argument, Jehan disputed the

district court’s characterization of the PSR as uncontested, maintaining

that he had no need to object to it because his sentence did not depend

upon any of its findings or recommendations. But he neither explained

how he would now challenge the PSR, nor pointed to any evidence con

‐ troverting it. “In the absence of actual evidence controverting the infor

‐

mation in the PSR, i.e.

, something more than the appellants’ mere denials,

it [is] not necessary for [the] court to conduct any further inquiry.”

United States v. Irons

, 712 F.3d 1185, 1190 (7th Cir. 2013) (quoting

United States v. Taylor

, 72 F.3d 533, 547 (7th Cir. 1995)), abrogated on other

grounds by United States v. Taylor

, 778 F.3d 667, 670 (7th Cir. 2015).

2 Although the point is not raised by Jehan, we note that it would be

inconsistent with the PSR to find him responsible for the quantity of crack

necessary for the highest base offense level on the current drug

‐ quantity

table—25.2 kilograms. U.S.S.G. § 2D1.1(c)(1) (2018). The PSR concludedNo. 19

‐ 1975 7

Finally, Jehan argues that the district court “e ff ectively”

increased his sentence by fi nding him responsible for greater

drug quantities in violation of the Ex Post Facto Clause. U.S.

Const. art. I, § 9, cl. 3. To support this argument, Jehan points

to Peugh v. United States

, 569 U.S. 530, 544 (2013), in which the

Supreme Court held that a court may not apply the current

version of the Guidelines at sentencing if the Guidelines in

place when the defendant commi tt ed the crime would pro

‐

vide for a lower guidelines range. Jehan contends that the dis

‐

trict court applied “a new and higher base o ff ense level that

did not exist at the time of his original sentencing,” as in

Peugh

, and thereby wrongly enhanced his punishment.

That is not what happened here. At his original sentencing,

the district court determined that the highest base o ff ense

level (38) applied, but it entered a lower sentence per the par

‐

ties’ Rule 11(c)(1)(C) agreement. In deciding Jehan’s second

§ 3582(c)(2) motion, the court determined that the same base

o ff ense level (38) applied, and therefore let Jehan’s sentence

stand. Because the district court did not “retroactively in

‐

crease[]” Jehan’s punishment, but rather determined only that

he was not entitled to the bene fi t of new, favorable policy

that Jehan was responsible for “more than 1.5 kilograms,” but at the time

the report was written, the quantity of crack necessary for the highest base

offense level (38) was 4.5 kilograms or more; 1.5 kilograms was the thresh

‐

old for the second

‐ highest base offense level (36). U.S.S.G. § 2D1.1(c)(1),

(2) (2007). Thus, the PSR implicitly concluded that Jehan was responsible

for less than 4.5 kilograms of crack. Nonetheless, even if the district court

did err by holding Jehan responsible for 25.2 kilograms of crack in its most

recent order, the error was harmless because the quantities of heroin and

cocaine are sufficient for the highest base offense level on the current drug

‐ quantity table. See United States v. Hill

, 645 F.3d 900, 906 (7th Cir. 2011) (er

‐

ror is harmless if it would not change defendant’s sentence on remand).8 No. 19

‐ 1975

changes, the court did not violate the Ex Post Facto Clause.

United States v. Diggs

, 768 F.3d 643, 646 (7th Cir. 2014).

Thus, we AFFIRM the judgment of the district court.