UNITED STATES OF AMERICA, Plaintiff-Appellee.
ANTHONY BAILEY, Defendant-Appellant
Argued July 8, 2014
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.
For United States of America, Plaintiff - Appellee: Barry D. Glickman, Attorney, Office of The United States Attorney, Indianapolis, IN.
For Anthony Bailey, Defendant - Appellant: Sara J. Varner, Attorney, Indiana Federal Community Defenders, Inc., Indianapolis, IN.
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.
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, 183 L.Ed.2d 250 (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.
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, ...