Judges: PerCuriam
Filed: Nov. 12, 2013
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 FRANK H. EASTERBROOK, Circuit Judge MICHAEL S. KANNE, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 12---1370 Appeal from the United States District Court for the EDWARD M. INGRAM, Northern District of Illinois, Petitioner---Appellant, Western Division. v. No. 11 C
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 FRANK H. EASTERBROOK, Circuit Judge MICHAEL S. KANNE, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 12---1370 Appeal from the United States District Court for the EDWARD M. INGRAM, Northern District of Illinois, Petitioner---Appellant, Western Division. v. No. 11 C 5..
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NONPRECEDENTIAL DISPOSITION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
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 12-‐‑1370 Appeal from the United
States District Court for the
EDWARD M. INGRAM, Northern District of Illinois,
Petitioner-‐‑Appellant, Western Division.
v.
No. 11 C 50364
UNITED STATES OF AMERICA, Frederick J. Kapala, Judge.
Respondent-‐‑Appellee.
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 presumptive statutory minimum or two-‐‑
thirds of the low end of the Guideline range, whichever was higher. In exchange, In-‐‑
gram would assist in prosecuting other persons. The prosecutor made the motion, and
the district judge imposed a sentence of 80 months’ imprisonment, calculated on the be-‐‑
* Appellant filed a motion to waive oral argument. After examining the briefs and the record, we con-‐‑
clude 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. (One was filed but voluntarily dismissed.)
Ingram was sentenced in December 2010, four months after the Fair Sentencing Act
of 2010 became law. His crime preceded the statute. Decisions of this circuit held that
the new Act applied only to persons whose criminal conduct occurred on or after Au-‐‑
gust 3, 2010, when the President signed the legislation. Ingram then filed a motion un-‐‑
der 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 denied that motion in light
of circuit precedent. While Ingram’s appeal was pending, however, the 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, identifying 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.” The court recruited
counsel to assist Ingram. Counsel filed a motion asking the court to expand the certifi-‐‑
cate to include a statutory question: whether Ingram is entitled to the benefit of Dorsey
without any need to show ineffective assistance. Slack v. McDaniel, 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 grant-‐‑
ed the motion but did not issue an amended certificate 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 certifi-‐‑
cate on its own, but that step is unnecessary.
A certificate of appealability suffices for appellate jurisdiction; shortcomings in the
certificate 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 un-‐‑
der §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 con-‐‑
tains 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 direct the district judge to decide whether Dorsey
requires a new sentence. Yet with procedural defenses waived, that subject does not re-‐‑
quire 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 61½ months. (The presump-‐‑
tive minimum under the 2010 Act is 60 months, but the low end of the Guideline range
remains 92 months.) District 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’ agreement. 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 man-‐‑
date will issue today.
VACATED AND REMANDED
