                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-2265

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

L EWIS F RANKLIN ,
                                               Defendant-Appellant.

             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
          No. 99 CR 469-17—Robert W. Gettleman, Judge.



      A RGUED O CTOBER 6, 2009—D ECIDED A PRIL 12, 2010




  Before B AUER, W OOD , and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. Lewis Franklin pled guilty in
2003 to conspiring to distribute powder and crack cocaine.
The plea agreement he signed with the government
provided for a term of 157 months’ imprisonment, well
below the then-mandatory guidelines range. The district
court sentenced Franklin to the 157-month term. Several
years later, the United States Sentencing Commission
reduced the offense levels for crack cocaine crimes. Frank-
lin then filed an 18 U.S.C. § 3582(c) motion that requested
2                                               No. 09-2265

a lower sentence in light of the new guidelines. The district
court denied the motion because it concluded that Frank-
lin’s sentence was not based on the guidelines but was
instead based on the 157-month stipulated term in his
plea agreement. In accordance with our recent decision
in United States v. Ray, No. 09-2392, 2010 WL 935752
(7th Cir. Mar. 17, 2010), we affirm the district court’s
decision because Franklin’s sentence was not based on
a sentencing guidelines range for the purposes of
18 U.S.C. § 3582(c).


                   I. BACKGROUND
  Lewis Franklin was a member of the Maniac Latin
Disciples street gang in Chicago during the late 1980s and
1990s. Gang members sold powder cocaine and crack
cocaine on a daily basis at Franklin’s direction for several
years, and he sold his own drugs as well. Acknowledging
this conduct, Franklin entered into a plea agreement
with the federal government in 2003. In it, Franklin
agreed to plead guilty to conspiring to possess with the
intent to distribute more than 5 kilograms of powder
cocaine and 50 grams of crack cocaine, in violation of
21 U.S.C. § 846.
  The plea agreement included a calculation of the then-
mandatory range of imprisonment under the United
States Sentencing Guidelines. The parties agreed to a
base offense level of 38 in light of the more than 1.5 kilo-
grams of crack that Franklin acknowledged possessing
and distributing, an additional two levels for possessing
a dangerous weapon, another two levels for a leader or
No. 09-2265                                              3

manager role in the conspiracy, and a reduction of three
levels for acceptance of responsibility. The resulting
offense level was 39. In light of Franklin’s criminal
history category of I, the plea agreement stated that the
resulting guidelines range was 262 to 327 months’ im-
prisonment. The plea agreement also specified that the
guidelines calculations it contained were preliminary,
that the probation department would conduct its own
investigation, and that the court’s determinations would
govern the final guidelines calculation.
  The plea agreement also specified that the government
would alert the district court at sentencing to the extent
of Franklin’s cooperation and that it would ask the court
to depart from the applicable guidelines range and “to
impose the specific sentence agreed to by the parties as
outlined below.” The agreement then stated that Franklin
understood that the decision to depart rested solely
with the court. The agreement further provided that
   this Plea Agreement is governed, in part, by Federal
   Rule of Criminal Procedure 11(e)(1)(C). That is, the
   parties have agreed that the sentence imposed by the
   Court shall include a term of imprisonment in the
   custody of the Bureau of Prisons of 157 months. . . . If
   the Court accepts and imposes the agreed term of
   incarceration set forth, the defendant may not with-
   draw this plea as a matter of right under Federal
   Rule of Criminal Procedure 11(e)(2) and (4). If, how-
   ever, the Court refuses to impose the agreed term
   of incarceration set forth herein, thereby rejecting the
   Plea Agreement, or otherwise refuses to accept the
4                                                   No. 09-2265

      defendant’s plea of guilty, this Agreement shall be-
      come null and void and neither party will be bound
      thereto.
    The district court accepted Franklin’s plea.1
  The probation office prepared a Presentence Investiga-
tion Report (“PSR”) before sentencing, and it contained
a higher guidelines range than that in the plea agree-
ment. In particular, the PSR called for a three-level
instead of two-level enhancement for Franklin’s role in
the offense. The resulting guidelines range under the
PSR was 292 to 365 months’ imprisonment.
  At the sentencing hearing on March 14, 2003, the gov-
ernment explained that Franklin cooperated with the
government very early in his case and provided sig-
nificant testimony in two lengthy trials. It therefore
asked that the court impose the 157-month term specified
in the plea agreement. The district court judge concurred,
stating, “I think it is an appropriate sentence, and I’m
going to enter it on the government’s motion of 157
months . . . . The sentence will be 157 months per the
11(e)(1)(C) agreement and the government’s 5K1 motion.”
Although the parties did not discuss the guidelines
range during the sentencing hearing, the judgment
entered by the district court reflects that it determined
the range to be 292 to 365 months, the range recom-
mended by the PSR.



1
  Federal Rule of Criminal Procedure 11(e)(1)(C) has since
been renumbered and is now Rule 11(c)(1)(C).
No. 09-2265                                              5

  After the United States Sentencing Commission
lowered the offense levels for many crack cocaine crimes
and made the changes retroactive, see United States v.
Woods, 581 F.3d 531, 537 (7th Cir. 2009), Franklin moved
for a reduction in his sentence pursuant to 18 U.S.C.
§ 3582(c)(2). The district court denied Franklin’s motion,
concluding that his term of imprisonment was not
based on a guidelines range and was instead based on
a figure specified in his plea agreement. Franklin appeals.


                     II. ANALYSIS
  Franklin argues on appeal that his plea agreement
does not foreclose him from receiving a reduction in
sentence under 18 U.S.C. § 3582(c)(2). That statute pro-
vides that
   in the case of a defendant who has been sentenced to
   a term of imprisonment based on a sentencing range
   that has subsequently been lowered by the Sen-
   tencing Commission pursuant to 28 U.S.C. § 994(o),
   upon motion of the defendant or the Director of
   the Bureau of Prisons, or on its own motion, the
   court may reduce the term of imprisonment, after con-
   sidering the factors set forth in section 3553(a) to the
   extent they are applicable, if such a reduction is con-
   sistent with applicable policy statements issued by
   the Sentencing Commission.
(emphasis added).
 The government maintains that Franklin’s sentence
was not “based on” a guidelines range for purposes of
6                                               No. 09-2265

section 3582(c)(2). Franklin, on the other hand, insists
that his sentence falls within section 3582(c)(2)’s purview.
He emphasizes that 157 months is 40% less than the
low end of the guidelines range contemplated by the
parties in his plea agreement. He also argues that, even
if not stated explicitly in his plea agreement, the parties
must have looked to the guidelines when they decided
on the 157-month term.
   Franklin’s argument has some initial appeal, as there
is no doubt that the parties considered the guidelines
range during their negotiations even though they ulti-
mately agreed to a specified number of months. And it
is true that 157 months is 40% less than the low end of the
guidelines range set forth in the plea agreement. That does
not mean that the specified term of 157 months was “based
on” a sentencing guidelines range, however, as we ex-
plained in our recent decision in United States v. Ray,
No. 09-2392, 2010 WL 935752 (7th Cir. Mar. 17, 2010). In
Ray, we considered a plea agreement that provided for a
sentence of 263 months’ imprisonment. Although that
figure represented 10% less than the lowest end of the
applicable guidelines range, the plea agreement did not
state that the 263-month term was tied to the guidelines.
Nor did the plea agreement explain how the parties had
arrived at the 263-month figure. These factors and the
below-guidelines nature of the specified term led us to
conclude that the agreement did not evidence an intent
to tie the sentence to the guidelines. Id. at *2. We also
explained that although the defendant argued for a
10% reduction below the new guidelines range in his
section 3582(c)(2) request, we could not be confident
No. 09-2265                                              7

from the plea agreement that the government would
agree to a 10% reduction from the low end of the new
range. See id. at *3. As we noted, our conclusion that the
agreement was not “based on” a sentencing range for
purposes of section 3582(c)(2) was in line with that of
many other circuits. See id. (collecting cases).
  As is likely clear by now, Ray forecloses Franklin’s
argument. As in Ray, the plea agreement in Franklin’s
case did not state that the 157-month term was based
upon the guidelines, and it did not explain how the
parties chose the 157-month term. This term was also
below the guidelines range, both as calculated by the
parties and by the district court. Under Ray, this plea
agreement simply does not reflect an intent to tie the
sentence to the guidelines. Moreover, as it turns out, the
157-month term was not in fact 40% below the low end
of the guidelines range. It was 40% below the parties’
initial calculation of the guidelines range, but it was not
40% below the final range as determined by the district
court. The fact that the 157-month term was imposed
even though the district court settled on a higher guide-
lines range than that contemplated in the plea agree-
ment only reinforces our conclusion that the 157-month
term was not “based on” a guidelines range.
  We make clear, however, that our decisions today and
in Ray do not mean that all Rule 11(c)(1)(C) plea agree-
ments foreclose relief under section 3582(c)(2). If, for
example, Franklin’s plea agreement had provided that
the term of imprisonment was to be “40% below the
low end of the guidelines range,” or had agreed that “the
8                                                No. 09-2265

defendant will receive the low end of the applicable
guideline range,” then the government agrees that the
plea would be “based on” a guidelines range for section
3582(c)(2) purposes. The district court noted as much,
stating in the hearing on the section 3582(c)(2) motion
in this case that “if there is an agreed sentence based on
a guideline calculation, like 20 percent of the low end of
the guidelines, then with the new crack amendments we
go down and we recalculate it. We’ve been doing those
by agreement pretty routinely.” We also acknowledged
in Ray that a situation like the one in United States v.
Cobb, 584 F.3d 979 (10th Cir. 2009), where the defendant
agreed to a 168-month term which the agreement stated
was “the bottom of the applicable guideline range,” might
yield a different outcome. See Ray, 2010 WL 935752, at *4.
These other scenarios do not exist in our case, however,
and we affirm the decision of the district court.


                     III. CONCLUSION
    The judgment of the district court is A FFIRMED.




                            4-12-10
