United States of America v. Lagene C. McGhee

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 10, 2024*
Decided May 10, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 24-1065
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAGENE C. MCGHEE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 21-CR-93
William C. Griesbach,
Judge.
O R D E R
LaGene McGhee appeals the denial of his motion for a reduced sentence,
see 18 U.S.C. § 3582(c)(2), arguing that the district court erred by determining that he
was ineligible for relief because his sentence was based on a binding plea agreement,
F ED. R. C RIM . P. 11(c)(1)(C). The government agrees. We vacate and remand for the
district court to reconsider McGhee’s motion.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-1065 Page 2
In 2021, a grand jury indicted McGhee on drug and gun charges. The
government and McGhee negotiated a binding plea agreement, which allows the
parties to agree to a specific sentence or range that binds the court if it accepts the
agreement. See id. McGhee pleaded guilty to one count of possession with intent to
distribute cocaine and cocaine base, see 21 U.S.C. § 841(a)(1), (b)(1)(B), and the
government dismissed the other counts of the indictment. The parties stipulated to a
sentence between 96 and 132 months.
The agreement reflected the parties’ understanding that the court would “give
due regard to the Sentencing Guidelines” when determining the proper sentence within
the stipulated range. They agreed that certain provisions of the Sentencing Guidelines
were applicable to the offense and “acknowledged” that they might not have accurate
information regarding McGhee’s criminal history.
The district court accepted McGhee’s plea and ordered the probation office to
complete a presentence investigation report. At the sentencing hearing, the district
court calculated the guidelines range as 84 to 105 months’ imprisonment, based on an
offense level of 25 and criminal history category of IV. It stated that the guidelines range
and the plea agreement jointly served as the “starting point” for determining the proper
sentence. The district court then imposed a sentence at the bottom of the binding
sentencing range: 96 months’ imprisonment.
In 2023, McGhee moved for a sentence reduction based on a retroactive change to
the Sentencing Guidelines. See 18 U.S.C. § 3582(c)(2). Under Amendment 821, district
courts are no longer permitted to add two criminal history points where the offense of
conviction was committed while the defendant was under any criminal justice sentence.
See United States v. Claybron, 88 F.4th 1226, 1228 (7th Cir. 2023). McGhee argued that this
would lower his criminal-history category from IV to III, resulting in a guidelines range
of 70 to 87 months. He also moved, on the same day, for compassionate release based
on certain medical issues. See 18 U.S.C. § 3582(c)(1)(A).
The district court denied both motions, although it addressed only the
§ 3582(c)(2) motion in its order. The district court reasoned that “[b]ecause of the nature
of the plea agreement [McGhee] entered into with the Government, the Guidelines
played no role in the sentence imposed by the court.” The court explained that it must
deny the motion because it imposed “the lowest sentence available under the plea
agreement.”

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No. 24-1065 Page 3
On appeal, McGhee argues that the district court erred by concluding that he is
ineligible for relief under § 3582(c)(2) solely because of his binding plea agreement.
See Hughes v. United States, 584 U.S. 675 (2018). The government agrees, conceding that
the district court’s reasoning conflicts with Hughes, and urges us to remand the case.
Section 3582(c)(2) authorizes a district court to reduce “a term of imprisonment
based on a sentencing range that has subsequently been lowered by the Sentencing
Commission.” A sentence imposed pursuant to a binding plea agreement “is no
exception to the general rule that a defendant’s Guidelines range is both the starting
point and a basis for his ultimate sentence.” Hughes, 584 U.S. at 686. Indeed, a district
judge must consider the applicable guidelines range when deciding whether to accept
the binding plea agreement. See U.S.S.G. § 6B1.2(c). Only if “the Guidelines range was
not ‘a relevant part of the analytic framework the judge used to determine the sentence
or to approve the agreement,’” will the defendant be ineligible for a sentence reduction
under § 3582(c)(2). Hughes, 584 U.S. at 687 (quoting Freeman v. United States, 564 U.S.
522, 530 (2011)). For example, a prisoner is ineligible for relief in the rare case where the
sentencing court “discarded” the guidelines range in favor of an overriding
consideration like a mandatory minimum or substantial-assistance factors. Id. That a
reduced sentence would deprive the government of the benefit it bargained for in a
binding plea agreement “has nothing to do with whether a defendant’s sentence was
based on the Sentencing Guidelines under § 3582(c)(2).” Id. at 689.
Here, we agree with the parties that the district court, without acknowledging
Hughes, concluded that McGhee’s sentence was not based on his guidelines range only
“[b]ecause of the nature of the plea agreement he entered into with the government.”
But Hughes clarifies that a sentence imposed pursuant to a binding plea agreement does
not, by itself, make a defendant ineligible for a sentence reduction under § 3582(c)(2).
On remand, the district court must reconsider whether McGhee is eligible for a sentence
reduction because his term of imprisonment was based on a sentencing range that was
reduced by Amendment 821. If he is eligible, the district court must then consider
whether, in its discretion, a sentence reduction is appropriate.
We do not address whether the district court erred in denying without
explanation McGhee’s motion for compassionate release because McGhee has not raised
that issue on appeal.
VACATED AND REMANDED

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