NONPRECEDENTIAL DISPOSITION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 November 4 , 2013 * Decided November 12, 2013



### Before

F RANK H. E ASTERBROOK
, Circuit Judge

M ICHAEL S. K ANNE
, Circuit Judge

A NN C LAIRE W ILLIAMS
, Circuit Judge

No. 12

- 1370

E DWARD M. I NGRAM
, Petitioner

- Appellant

,

v

.

U NITED S TATES OF A MERICA
, Respondent

- Appellee

. Appeal from the United

States District Court for the Northern District of Illinois,

Western Division.

No. 11 C 50364 Frederick J. Kapala

, Judge

.

Order

Edward Ingram pleaded guilty to distributing more than 50 grams of crack cocaine. A plea bargain held out the inducement of a prosecutorial motion that would allow the

court to set the sentence at two

- thirds of the pr esumptive statuto ry minimum or two

thirds of the low end of the Guideline range, whichever was higher. In exchange, I ngram would assist in prosecuting other persons. The prosecutor made the motion, and the district judge imposed a sentence of 80 months’ imprisonment, calcu lated on the b e-

* Appellant filed a motion to waive oral argument. After examining the briefs and the record, we co nclude that oral argument is unnecessary and grant the motion. See Fed. R. App. P. 34(a); Cir. R. 34(f).No. 12

- 1370 Page 2

lief that the statutory minimum was 120 months and the low end of the Guideline range

92 months . Ingram did not pursue an appeal . (O ne was filed but voluntarily dismissed

. )

Ingram was sentenced in December 2010, four months afte r the Fair Sentencing Act

of 201 0 became law. His cr ime preceded the statute. Decisions of this circuit held that the new Act applied only to persons whose criminal conduct occurred on or after A ugust 3, 2010, when the President signed the legislation. Ingram then fi led a motion u nder 28 U.S.C. §2255, contending that his lawyer had been deficient in not doing more to achieve the application of the new statute. The district court den ied that motion in light

of circuit precedent. W hile Ingram’s appeal was pend ing, howev er, t he Supreme Court

held that the Act and the implementing Guidelines apply to all persons sentenced on or after August 3, 2010. Dorsey v. United States , 132 S. Ct. 2321 (2012)

.

A judge of this court then issued a certificate of appealability, identifyin g the issue as whether Ingram’s “ counsel provided constitutionally inadequate assistance when he failed to preserve an argument for application of the Fair Sentencing Act, a subject that was open in the Supreme Court at the time of Ingram’s sentencing. ” Th e court recruited counsel to assist Ingram. Counsel filed a motion asking the court to expand the certif icate to include a statutory question: whether Ingram is entitled to the benefit of Dorsey without any need to show ineffective assistance. Slack v. McD aniel , 529 U.S. 473, 483

– 85 (2000), holds that a certificate of appealability may include a substantial statutory issue,

if the appeal also presents a substantial constitutional issue. A judge of this court gran ted the motion but did not issue an amended c ertificate and thus did not comply with 28 U.S.C. §2253(c)(3), which requires the certificate “indicate which specific issue or issues satisfy the showing required by paragraph (2).” This panel could issue a proper certif icate on its own, but that step is unnecessary.

A certificate of appealability suffices for appellate jurisdiction; shortcomings in the

cert ificate do not affect the court’s jurisdiction. Gonzalez v. Thaler , 132 S. Ct. 641 (2012). In other words, §2253(c)(1) is jurisdictional, but the rest of §2253(c) is not. A certificate’s

failure to comply with §2253(c)( 2) or ( 3), and the limited scope of collateral review u nder §2255 , may create obstacles to a prisoner’s success on appeal, but litigants may waive their procedural entitlements. The brief for the United States in this appeal co ntains such a waiver. The prosecutor informs us that the United States is not standing on technicalities and consents to a remand. That removes any procedural obstacle to relief.

The prosecutor’s brief asks us to dire ct the district judge to decide whether Dorsey requires a new sen tence . Yet with procedural defenses waived, that subject does not r equire much consideration. Dorsey shows that the district court erred when sentencing Ingram. That error should be corrected, and we remand for resentencing.No. 12

- 1370 Page 3

The formula in the plea bargain calls for a sentence of 611⁄2 months. (The presum ptive minimum under the 2010 Act is 60 months, but t he low end of the Guideline range remains 92 months.) D istrict judges are not bound by the parties’ bargains, however ; even when a deal calls for a determinate sentence, see Fed. R. Crim. P. 11(c)(1)(C), the judge is entitled to reject the parties’ agreeme nt. It is for the district court to decide whether, in light of the 2010 Act’s application, the plea bargain should be accepted and

what sentence is appropriate.

Because resentencing could make Ingram eligible for immediate release, the ma ndate will issue today.

V ACATED AND R EMANDED