                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2389

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

M ARK H ALL,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 02 CR 206-1—William T. Hart, Judge.



     A RGUED A PRIL 13, 2009—D ECIDED O CTOBER 2, 2009




 Before C UDAHY, P OSNER, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. In 2003, Mark Hall pleaded guilty
to one charge of conspiracy to possess with intent to
distribute over 50 grams of cocaine base and more than
5 kg of a mixture containing cocaine. See 21 U.S.C.
§§ 841(a)(1) and 846. In his written plea agreement, Hall
acknowledged that the amount of crack cocaine
involved in his offense was more than 1.5 kg. This is
important, because the amount of crack involved in the
2                                               No. 08-2389

offense controlled his sentence, having triggered the
highest offense level he could receive for the controlled
substance conviction. Pursuant to his plea agreement,
Hall was sentenced in 2006 to 131 months’ imprison-
ment (one-half of the low end of the Guidelines-recom-
mended range of 262 to 327 months) because of his assis-
tance to the government. See U.S.S.G. § 5K1.1. This was
a binding sentencing recommendation, as allowed by
Fed. R. Crim. P. 11(c)(1)(C).
  In 2007, the United States Sentencing Commission
amended the sentencing guidelines, reducing the base
offense level for crack cocaine amounts in order to amelio-
rate the disparity between crack and powder cocaine
sentences. U.S. Sentencing Guidelines Manual, supp. to
app. C, 221-26 (2008) (amendment 706). The Commission
gave retroactive effect to this amendment. See U.S.S.G.
§ 1B1.10(c). When Hall was sentenced, an offense
involving 1.5 kg or more of cocaine base resulted in the
highest drug base offense level of 38. U.S.S.G. § 2D1.1(c)(1)
(2005). After the amendment, offenses involving between
1.5 and 4.5 kg of cocaine base triggered a base offense
level of only 36, U.S.S.G. § 2D1.1(c)(2) (2007); the maxi-
mum drug base offense level of 38 now does not kick
in until the crime involves 4.5 kg or more of cocaine base,
id. § 2D1.1(c)(1) (2007).
  Hall believed that, as a result of this amendment, he
would be eligible for a reduced sentence, because he
admitted in his plea agreement, remember, to possessing
only more than 1.5 kg of cocaine base. If the amended
guidelines apply to his sentence, a finding that he pos-
No. 08-2389                                               3

sessed only 1.5 kg drops his base offense level to 36; with
the rest of his enhancements and reductions, he ends up
with a total offense level of 35, which combined with
his category III criminal history, results in a sentence of
between 210 and 262 months. U.S.S.G. ch. 5, pt. A (Sen-
tencing Table). Half of the low-end of this range is
105 months, which is below the statutory minimum for the
offense, and 26 months less than his current sentence.
  Hall filed a motion to modify his sentence pursuant to
18 U.S.C. § 3582(c)(2). That section allows “a defendant
who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been
lowered by the Sentencing Commission” to file a motion
to reduce his sentence. In conjunction with his § 3582(c)(2)
motion, Hall also filed a motion for an evidentiary
hearing and an opportunity to present testimonial
evidence proving that he was eligible, based on his drug
quantity, for the lower sentence. Both motions were
denied. Hall appeals.
  We review the trial judge’s determination of a
§ 3582(c)(2) motion, including the decision whether to
appoint counsel or hold a hearing, for abuse of discretion.
United States v. Young, 555 F.3d 611, 615 (7th Cir. 2009).
Here, the district court relied on Hall’s plea agreement
to support his finding that Hall was not eligible for a
modification of his sentence under 18 U.S.C. § 3582(c)(2).
While paragraph 7(b) of the agreement set out Hall’s
admission that he possessed more than 1.5 kg of crack in
connection with his offense, the district judge also looked
at paragraph 5, where, in admitting the facts supporting
4                                             No. 08-2389

the guilty plea, Hall generally admitted that over the
course of the conspiracy offense he dealt in a far greater
amount of cocaine in powder and crack form. We say
“generally admitted” because paragraph 5 of the agree-
ment is long on generalities and broad-ranging estimates
but short on specifics and precision.
  The judge relied, in denying the § 3582(c)(2) motion,
on these key admissions from paragraph 5 about the
quantity of drugs that Hall was dealing: “From about 1988
to April 1990, defendant . . . sold about 1 to 3 kilograms
of powder cocaine per month . . . . From about April 1990
to 1993, defendant sold about 1 kilogram of cocaine per
month. From about 1998 to 1999, defendant sold about
1/4 kilogram of crack cocaine . . . per month. From about
1999 to August 2000, defendant sold 1 to 2 kilograms
of powder and crack cocaine every month.”
  Tallied up, the admitted conduct in the fifth para-
graph of the plea agreement shows that the defendant
was involved in sales of well over 4.5 kg of cocaine. The
district court found that Hall was responsible, based on
paragraph 5 of his agreement, for “various amounts of
crack cocaine that totaled 23 to 43 kilograms for the
time period [from] January 1998 through August 2000.” On
this basis, the trial court found that Hall was ineligible
for a sentence adjustment and, without a hearing,
refused to modify defendant’s sentence. Keep in mind
that this finding was made in addressing the § 3582(c)(2)
motion, not at the original sentencing. For purposes of
the original sentencing, the court and the parties were
satisfied with a finding that the crack involved in Hall’s
offense exceeded 1.5 kg.
No. 08-2389                                             5

  Here’s the problem: all the cocaine (both crack and
powder) sold in the conspiracy adds up to over 4.5 kg, and
Hall’s sentence was based solely on the crack cocaine
amount. (Hall would have needed to be associated with
sales of over 150 kg of powder cocaine to reach the top
offense level for his crime; the government did not try
to make this showing and our rough calculations come
up with about 102 kg of total cocaine attributable to
Hall after we construe the ambiguities in the agreement
in his favor. We further doubt that, under U.S.S.G.
§ 1B1.10, Hall could be resentenced based on the powder
cocaine involved in the conspiracy and the government
does not press this argument.) The total amount of crack
sold in connection with the conspiracy, as admitted in
the two relevant paragraphs of the plea agreement, is
unclear, and a reasonable reading of the facts could
result in a finding that Hall’s conduct involved less
than 4.5 kg of crack. Thus, the district court ignored an
ambiguity in the facts and misapprehended the content
of Hall’s plea admissions. Accordingly, we find that the
district judge’s denial of Hall’s § 3582(c)(2) motion was
an abuse of discretion. United States v. Paul, 542 F.3d
596, 599 (7th Cir. 2008) (“A court abuses its discretion
when it resolves a matter in a way that no reasonable
jurist would, or when its decision strikes us as funda-
mentally wrong [or] arbitrary . . . .”).
  Hall goes further to argue that on remand, he must be
resentenced only on his admission that he possessed
1.5 kg of crack. He bases this on the statement in
U.S.S.G. § 1B1.10(a)(3) that “proceedings under 18 U.S.C.
§ 3582(c)(2) and this policy statement do not constitute a
6                                               No. 08-2389

full resentencing of the defendant.” Hall therefore
thinks that the judge should limit his resentencing to a
specific application of the revised sentencing guideline
for cocaine base amounts between 1.5 and 4.5 kg. Hall’s
argument proceeds from the theory that on resentencing,
the judge will be bound only by the determination in
paragraph 7(b) of the plea agreement and that considering
paragraph 5 would be in essence a new factual finding.
Such a factual finding on a § 3582(c)(2) motion, Hall argues,
is improper. See United States v. Tidwell, 178 F.3d 946, 949
(7th Cir. 1999) (A § 3582(c) proceeding “is not a do-over
of an original sentencing proceeding . . . .”). But, Hall
ignores the fundamental ambiguity in his plea agree-
ment—the admission to possessing more than 1.5 kg—and
the import that this ambiguity has acquired since
the amendment to the Guidelines. The question the
district judge must answer is simple: How much more?
This should be the subject of inquiry on remand.
  One final question remains before we order a remand.
The district court also relied on its consideration of the
§ 3553(a) factors as an alternate basis for denying the
defendant’s motion for resentencing. The court stated
that it “would find—as it did at the time of sentenc-
ing—that a 262-327 month range is appropriate when
considering the § 3553(a) factors. The very large
quantities of crack cocaine involved, the past criminal
conduct of the defendant in relation to the term imposed,
the need for deterrence of like offenses, the protection
of the public, and defendant’s need for rehabilitation all
support such a range.” The question is whether this
finding makes the district court’s inaccurate factual
determination harmless.
No. 08-2389                                                7

  We think it does not; the court’s application of the
§ 3553(a) factors was infected by the same error as its
initial decision that Hall is not eligible for resentencing.
As we have established, the court’s determination, on
Hall’s motion to reduce his sentence, of the crack cocaine
quantity involved in his offense was flawed; reliance
on the same crack cocaine quantity in its alternative
§ 3553(a) analysis was therefore also flawed. Remand
for an accurate determination is therefore appropriate.
  We also note that there are a lot of thorny issues
involved in the interplay between Rule 11(c)(1)(C) plea
agreements and resentencing procedures under
18 U.S.C. § 3582(c)(2), namely whether Rule 11(c)(1)(C)
plea agreements are subject to motions for resentencing.
See United States v. Main, No. 08-4088-cr, 2009 WL 2616251,
at *2-3 (2d Cir. Aug. 27, 2009) (collecting cases). Given the
district court’s decision, the parties’ arguments and
briefs, and our disposition of the case, we need not
reach these issues, but the parties would do well to raise
and fully brief them before the district court.
  Accordingly, we R EVERSE and R EMAND for further
proceedings consistent with this opinion.




                           10-2-09
