UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5258
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE ALCANTAR SALDANA, a/k/a Javier Gonzalez
Sanchez,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CR-05-59)
Submitted: June 26, 2006 Decided: July 13, 2006
Before WILLIAMS and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Pili L. Fleming, LAW OFFICES OF PILI FLEMING, P.L.L.C., Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, D. Scott Broyles, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jose Alcantar Saldana pled guilty to illegal reentry, 8
U.S.C. § 1326(a), (b)(2) (2000), and received a sentence of twenty-
four months imprisonment. Saldana appeals his sentence, arguing
that the district court erred in accepting his guilty plea but
refusing to honor a stipulation in his plea agreement that a four-
level enhancement under U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(D) (2004) for prior deportation after a felony
conviction would not be applied. We affirm.
At the guilty plea hearing conducted according to Rule
11, Federal Rules of Criminal Procedure, neither defense counsel
nor the government informed the district court that Saldana’s plea
agreement contained the stipulation at issue. During the guilty
plea colloquy, moreover, Saldana answered in the affirmative when
the court asked whether he understood that he could not withdraw
his guilty plea if the sentence was more severe than he expected or
the court did not accept the government’s sentencing
recommendation. In addition, paragraph 4 of the plea agreement
provided that “the Court has the final discretion to impose any
sentence up to the statutory maximum for each count,” and that
“[t]he defendant further understands that no recommendations or
agreements by the United States are binding upon the Court.”
In the presentence report, the probation officer
calculated Saldana’s offense level and advisory guideline range
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without the four-level enhancement, but noted that Saldana had
previously been deported after a felony conviction and only the
parties’ stipulation that no enhancements from Chapters 2 through
5 would apply precluded application of the enhancement. At the
sentencing hearing, the district court determined that the four-
level enhancement under § 2L1.2(b)(1)(D) applied and stated that,
under United States v. Booker, 543 U.S. 220 (2005), it had an
obligation to determine accurately the applicable guideline range.
The court noted Saldana’s objection.
On appeal, Saldana argues that the district court
committed reversible error by accepting his plea agreement and then
disregarding the parties’ stipulation that the § 2L1.2(b)(1)(D)
enhancement would not be applied. He contends that the agreement
was of the type specified in Rule 11(c)(1)(C), which is binding on
the district court once the agreement is accepted. Thus, he
argues, the district court violated Rule 11 by rejecting the
agreement at the sentencing hearing, and imposing a sentence that
was not in accord with the terms of the agreement. Contrary to
Saldana’s assertion in his brief, the district court did not
explicitly accept the plea agreement at the Rule 11 hearing,
although it accepted Saldana’s guilty plea. The government
contends that the reference to Rule 11(c)(1)(C) was a typographical
error and that the parties understood the agreement to be of the
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type specified in Rule 11(b)(1)(B), as evidenced by the Rule 11
colloquy.
Because Saldana did not move in the district court to
withdraw his guilty plea, his challenge to the adequacy of the Rule
11 hearing is reviewed for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002). Rule 11(c)(1) provides for
three types of plea agreements. Under Rule 11(c)(1)(A), the
government agrees that it will not bring, or move to dismiss, other
charges. Under subsection (c)(1)(B), the government agrees to
recommend, or not oppose defendant’s request that a particular
sentence or range is appropriate, or that a particular guideline
provision or sentencing factor does or does not apply. The
subsection specifies that such a recommendation is not binding on
the court. Under subsection (c)(1)(C), the government agrees that
a specific sentence or range is appropriate, or that a particular
guideline provision or sentencing factor does not apply. This
subsection specifies that such a recommendation binds the court
once the court accepts the plea agreement.
Rule 11(c)(3) provides that, when a plea agreement “is of
the type specified in Rule 11(c)(1)(A) or (C), the court may accept
the agreement, reject it, or defer a decision until the court has
reviewed the presentence report.” When the agreement is the type
specified in subsection (c)(1)(B), “the court must advise the
defendant that [he] has no right to withdraw the plea if the court
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does not follow the recommendation or request.” The court gave
Saldana the latter advisement at the Rule 11 hearing.
Saldana’s plea agreement was never clearly identified as
either a “type B” or a “type C” agreement. Although both
subsections were referenced in paragraph 5, neither the government
nor the defendant informed the court that there was an agreement
under either subsection concerning the § 2L1.2(b)(1)(D)
enhancement. However, the court advised Saldana that he could not
withdraw his guilty plea if the sentence was more severe than
expected or if the court did not accept the government’s sentencing
recommendation, a warning required by Rule 11(c)(3)(B) for an
agreement entered under Rule 11(c)(1)(B).
We conclude that the court correctly treated the
agreement as containing nonbinding recommendations under Rule
11(c)(1)(B), first, because the statements of the parties and the
court at the Rule 11 hearing indicated that the agreement was
understood that way and, consequently, belie Saldana’s contention
on appeal that the agreement was intended to be binding on the
court. See United States v. Davidson, 409 F.3d 304, 311 (6th Cir.
2005) (concluding that plea agreement was governed by Rule
11(c)(1)(B) where agreement silent on this point and statements of
both government and court at rearrangement indicated a belief that
agreement was nonbinding).
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In addition, under USSG § 6B1.4(d), stipulations are not
binding on the court. Davidson, 409 F.3d at 311; United States v.
Ingles, 408 F.3d 405, 407 n.2 (8th Cir. 2005); USSG § 6B1.4,
comment. Finally, had the court been aware that it was dealing
with a Rule 11(c)(1)(C) agreement containing a binding stipulation
or recommendation, it would have been obligated under Rule 11(c)(3)
to advise Saldana that it had accepted, rejected, or deferred a
decision about the agreement intended to be binding on the court.
That the court did not do so is further evidence that the parties
and the court viewed the agreement as a nonbinding agreement under
Rule 11(b)(1)(B). Davidson, 409 F.3d at 311.
Therefore, Saldana has not shown any Rule 11 violation.
Further, we conclude that the court did not reject the agreement or
violate its terms. At sentencing, the court exercised its
discretion to make the final determination as to the offense level,
as provided in paragraph 4 of the agreement. Saldana did not
dispute the district court’s determination that, without the
restriction of the stipulation, the enhancement applied.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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