In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-3229

UNITED STATES OF AMERICA,

Plaintiff-Appellee.

v.

ANTHONY BAILEY,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:10 CR 00091-001—William T. Lawrence, Judge.

____________________

ARGUED JULY 8, 2014 — DECIDED JANUARY 29, 2015

Before WOOD, Chief Judge, and BAUER and HAMILTON,

Circuit Judges.

HAMILTON, Circuit Judge. Anthony Bailey pled guilty in 

2011 to distributing crack cocaine. He pled guilty under a 

binding plea agreement subject to Federal Rule of Criminal 

Procedure 11(c)(1)(C) and agreed to a prison sentence of 240 

months. The agreement, however, allowed Bailey to seek to 

modify his sentence if Congress or the Supreme Court later 

determined that the Fair Sentencing Act of 2010, Pub. L. No. 

111-220, 124 Stat. 2372, should apply to cases like his.
2 No. 13-3229

The district court accepted the plea agreement and imposed the 240-month sentence. Bailey did not appeal, but the 

Supreme Court then decided Dorsey v. United States, 132 S. 

Ct. 2321 (2012). Dorsey reversed a decision of this court and 

held that the FSA should apply to cases where the crimes 

were committed before the FSA took effect but sentence was 

imposed after it took effect. Bailey falls into this category. By 

then the time to file a direct appeal had expired, and in 2013 

Bailey filed a pro se motion asking for a reduced sentence. 

The district court appointed counsel who supplemented Bailey’s motion. The court eventually denied relief using a form 

order designed for motions under 18 U.S.C. § 3582(c)(2), 

which authorizes reductions of sentences when the Sentencing Commission has retroactively amended a relevant sentencing guideline. Bailey has appealed.

The principal challenge for both counsel and the courts 

here has been to identify the correct procedural vehicle for 

considering Bailey’s request for relief. We conclude that Bailey’s motion is best understood as a petition for relief under 

28 U.S.C. § 2255 for a sentence that was imposed contrary to 

law. The parties negotiated Bailey’s sentence under the impression that he was subject to a mandatory minimum sentence of 20 years because he committed the crimes before the 

FSA’s enactment. It is now clear that he was subject to a 

mandatory minimum sentence of only 10 years. Without 

consideration of any statutory minimum, Bailey’s guideline 

range when he was sentenced would have been 85 to 104 

months in prison. We express no view on what an appropriate sentence would be. In light of the parties’ reservation of 

Bailey’s right to seek relief from the sentence, however, the 

best remedy is simply a new sentencing hearing.
No. 13-3229 3

We address first whether Bailey could seek a modified 

sentence under 18 U.S.C. § 3582(c)(1)(B) or (c)(2). We find 

that neither provision applies.

Paragraph (c)(2), which is available when the Sentencing 

Commission makes retroactive a post-sentencing Guideline 

amendment that lowers a defendant’s sentencing range, is 

not available to Bailey. His sentencing range has never been 

retroactively “lowered by the Sentencing Commission,” in 

the terms of the statute. See U.S.S.G. § 1B1.10; Dixon, 687 F.3d 

356, 358 (7th Cir. 2012); United States v. Duncan, 639 F.3d 764, 

767 (7th Cir. 2011). The guideline imprisonment range of 85 

to 104 months calculated by the district court before applying the statutory minimum already accounted for the FSA. 

The Sentencing Commission had already amended U.S.S.G. 

§ 2D1.1(c) to implement the FSA before Bailey was sentenced. See U.S.S.G. app. C., vol. III, amend. 748, pp. 374-85 

(effective Nov. 1, 2010). The Supreme Court is not the Sentencing Commission, which has not adopted a retroactive 

amendment that would have reduced his imprisonment 

range determined at his sentencing in May 2011. 

Bailey also cannot obtain relief under § 3582(c)(1)(B), 

which authorizes a sentencing court to “modify an imposed 

term of imprisonment to the extent otherwise expressly 

permitted by statute or by Rule 35 of the Federal Rules of 

Criminal Procedure.” Several other circuits have read the 

phrase “expressly permitted by statute” as disallowing sentence modifications unless resentencing has been ordered 

after a successful direct appeal under 18 U.S.C. § 3742(f), (g), 

or a collateral attack under 28 U.S.C. § 2255. We agree with 

this interpretation. See United States v. Penson, 526 F.3d 331, 

335 (6th Cir. 2008); United States v. Goines, 357 F.3d 469, 476 
4 No. 13-3229

(4th Cir. 2004); United States v. Ross, 245 F.3d 577, 586 (6th Cir. 

2001); United States v. Triestman, 178 F.3d 624, 629 (2d Cir. 

1999).

In addition, the FSA itself “does not provide an independent basis for a sentence reduction,” United States v.

Hodge, 721 F.3d 1279, 1281 (10th Cir. 2013), and Bailey has not 

explained how § 3582(c)(1)(B) could have authorized the district court to modify his sentence. As support for that view 

he cites only a suggestion from United States v. Price, No. 08-

cr-30179, 2012 WL 3263577, at *6 (S.D. Ill. Aug. 9, 2012) (noting district court’s belief that, in light of Dorsey, §

3582(c)(1)(B) would supply “jurisdiction to modify” final 

sentence to apply FSA); see also United States v. Wolford, No. 

08-29, 2013 WL 3995008, at *6 (W.D. Pa. Aug. 5, 2013) (speculating that, after Dorsey, relief might be available under §

3582(c)(1)(B), “although it is not certain”).

We have not endorsed the Price suggestion, which would 

run contrary to the circuits’ uniform view that § 3582(c)(1)(B) 

is narrow in scope and which, as far as our research shows, 

has not been adopted by any court. See United States v. 

Chalmers, No. 09-CR-20016, 2014 WL 1612613, at *4 (C.D. Ill. 

Apr. 22, 2014) (rejecting suggestion in Price that Dorsey permitted defendant to pursue sentence reduction under §

3582(c)(1)(B)); United States v. Loudin, No. 04-0281, 2013 WL 

588506, at *3 (W.D. Pa. Feb. 13, 2013) (same); United States v. 

Bradley, No. 3:10-582-CMC, 2012 WL 3637747, at *1 (D.S.C. 

Aug. 22, 2012) (same); see also United States v. Wilson, 493 F. 

App’x 919, 921B22 (10th Cir. 2012) (non-precedential decision) (rejecting argument that § 3582(c)(1)(B) authorized retroactive application of FSA); United States v. Little, No. 10-

20170, 2013 WL 5819629, at *2 (E.D. Mich. Oct. 29, 2013) (ex-
No. 13-3229 5

plaining that district courts have relied on § 3582(c)(2) and 

§ 2255 to modify sentences in compliance with Dorsey). So 

neither portion of § 3582(c) is available here.

The stronger basis for relief here is 28 U.S.C. § 2255, the 

general post-conviction remedy for convicted federal prisoners. Section 2255(a) authorizes relief when a sentence was 

imposed in violation of the laws of the United States. Bailey 

was sentenced on the mistaken belief that federal law required a 20-year mandatory minimum sentence. That view 

was certainly understandable. It was consistent with this circuit’s law at the time. See United States v. Fisher, 635 F.3d 336, 

340 (7th Cir. 2011), rev’d sub nom. Dorsey v. United States, 132 

S. Ct. 2321 (2012). Nevertheless, the Supreme Court’s decision in Dorsey shows that was a mistake and that the statutory minimum was 10 years.

The parties left room for a collateral challenge to Bailey’s

sentence on precisely this basis. The plea agreement contained a general waiver of Bailey’s rights to appeal or to 

bring a collateral challenge to his conviction or sentence, but 

it included an exception if the Fair Sentencing Act were held 

by the Supreme Court to apply retroactively, i.e., at least to 

defendants like Bailey who were sentenced after the FSA 

took effect for crimes committed before it took effect. That 

provision was included in the plea agreement at the defendant’s request. The prosecution agreed, concluding it would 

be fair to release Bailey from the agreed 20-year sentence in 

the event that the Supreme Court held that the FSA applied 

to defendants like him.

The plea agreement did not spell out a specific procedural path for such relief, but we are confident both parties 

meant to allow for the possibility if Dorsey were to turn out 
6 No. 13-3229

as it in fact did. An alternate route would have been for Bailey to have filed an apparently futile appeal but to have 

asked that it be stayed pending a final decision in Dorsey, but 

that is not necessarily the only available path. Again, § 2255 

allows a federal prisoner to seek to vacate or correct a sentence imposed in violation of the laws of the United States. 

Sentencing a defendant based on a court’s mistaken belief 

about the applicable statutory penalties is an example, even 

though such issues must ordinarily be raised in a direct appeal.

We acknowledge that the issue we decide is not the issue 

as the case was presented to the district court. It would be 

easy to find that Bailey had waived or forfeited reliance on 

§ 2255. Even so, in the interest of justice we have discretion 

to relieve Bailey from his forfeiture or waiver. See Singleton v. 

Wulff, 428 U.S. 106, 121 (1976); Kaczmarek v. Rednour, 627 F.3d 

586, 595 (7th Cir. 2010); United States v. Blagojevich, 614 F.3d 

287, 291 (7th Cir. 2010) (Posner, J., dissenting from denial of 

rehearing en banc); Niedert v. Rieger, 200 F.3d 522, 527 (7th 

Cir. 1999); United States v. Schmidt, 47 F.3d 188, 190 (7th Cir. 

1995); United States v. Jarvis, 499 F.3d 1196, 1201B02 (10th Cir. 

2007); United States v. Heater, 63 F.3d 311, 331 n.5 (4th Cir. 

1995).

This is an appropriate case to exercise that discretion. The 

procedural issues have been challenging for Bailey’s capable 

counsel, and both sides recognize that when they entered the 

plea agreement, they meant for Bailey to have an opportunity to benefit from the FSA if Dorsey were to be decided in his 

favor. We commend the government for its fair-minded approach to the case, for its focus on having Bailey’s sentence 
No. 13-3229 7

decided on the merits, and for its decision to forgo reliance 

on possible procedural obstacles to Bailey’s motion.

Accordingly, we construe Bailey’s motion for a reduced 

sentence as a petition for collateral relief under § 2255. There 

is no material issue of fact that would require a hearing on 

the legal issue. With the benefit of Dorsey and hindsight, it is 

clear that Bailey’s petition has merit.

We recognize the government’s arguments regarding Bailey’s criminal history and other factors, including Bailey’s 

disciplinary problems in prison, that could make a sentence 

above the 10-year mandatory minimum reasonable. We are 

aware of no bar to the district court’s consideration of those 

facts. See 18 U.S.C. § 3661 (no limitation shall be placed on 

information a federal court may consider in imposing sentence). We also recognize the district court’s explanation for 

denying on the merits what it treated as a petition under 

§ 3582(c)(2), but we are not persuaded that the district court 

would have imposed the same sentence of 20 years if it had 

known the mandatory minimum was only 10 years. Finally, 

nothing we have said should be read as expressing an opinion on the appropriate sentence in this case.

The district court’s denial of Bailey’s motion is reversed 

and the case is remanded with instructions to grant Bailey 

relief under § 2255 by vacating his sentence and holding a 

new sentencing hearing.