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 im-
posed 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 Bai-
ley’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 Sentenc-
ing Commission has retroactively amended a relevant sen-
tencing 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 Bai-
ley’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 im-
pression that he was subject to a mandatory minimum sen-
tence 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 appropri-
ate 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, 

, 358 (7th Cir. 2012); United States v. Duncan, 

,
767 (7th Cir. 2011). The guideline imprisonment range of 85
to 104 months calculated by the district court before apply-
ing 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 sen-
tenced. See U.S.S.G. app. C., vol. III, amend. 748, pp. 374-85
(effective Nov. 1, 2010). The Supreme Court is not the Sen-
tencing 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 sen-
tence 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, 

,
335 (6th Cir. 2008); United States v. Goines, 

, 476
4                                                     No. 13-3229


(4th Cir. 2004); United States v. Ross, 

, 586 (6th Cir.
2001); United States v. Triestman, 

, 629 (2d Cir.
1999).
    In addition, the FSA itself “does not provide an inde-
pendent basis for a sentence reduction,” United States v.
Hodge, 

, 1281 (10th Cir. 2013), and Bailey has not
explained how § 3582(c)(1)(B) could have authorized the dis-
trict court to modify his sentence. As support for that view
he cites only a suggestion from United States v. Price, No. 08-
cr-30179, 

, at *6 (S.D. Ill. Aug. 9, 2012) (not-
ing 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, 

, at *6 (W.D. Pa. Aug. 5, 2013) (specu-
lating 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, 

, at *4 (C.D. Ill.
Apr. 22, 2014) (rejecting suggestion in Price that Dorsey per-
mitted defendant to pursue sentence reduction under §
3582(c)(1)(B)); United States v. Loudin, No. 04-0281, 

, at *3 (W.D. Pa. Feb. 13, 2013) (same); United States v.
Bradley, No. 3:10-582-CMC, 

, 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 deci-
sion) (rejecting argument that § 3582(c)(1)(B) authorized ret-
roactive application of FSA); United States v. Little, No. 10-
20170, 

, 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 prison-
ers. 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 re-
quired a 20-year mandatory minimum sentence. That view
was certainly understandable. It was consistent with this cir-
cuit’s law at the time. See United States v. Fisher, 

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

(2012). Nevertheless, the Supreme Court’s deci-
sion in Dorsey shows that was a mistake and that the statuto-
ry minimum was 10 years.
     The parties left room for a collateral challenge to Bailey’s
sentence on precisely this basis. The plea agreement con-
tained 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 defend-
ant’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 procedur-
al 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 Bai-
ley 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 sen-
tence 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 ap-
peal.
    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, 

, 121 (1976); Kaczmarek v. Rednour, 

, 595 (7th Cir. 2010); United States v. Blagojevich, 

, 291 (7th Cir. 2010) (Posner, J., dissenting from denial of
rehearing en banc); Niedert v. Rieger, 

, 527 (7th
Cir. 1999); United States v. Schmidt, 

, 190 (7th Cir.
1995); United States v. Jarvis, 

, 1201B02 (10th Cir.
2007); United States v. Heater, 

, 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 opportuni-
ty to benefit from the FSA if Dorsey were to be decided in his
favor. We commend the government for its fair-minded ap-
proach 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 Bai-
ley’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 sen-
tence). 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 opin-
ion 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.