Case: 09-40268 Document: 00511265108 Page: 1 Date Filed: 10/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 15, 2010
No. 09-40268 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CHRISTOPHER EARL ROBERTS,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Christopher Earl Roberts entered into a plea agreement with the
Government and, following a guilty plea of violating 21 U.S.C. § 841(a)(1), was
sentenced to 168 months of imprisonment. This appeal presents the question
whether the Government breached the plea agreement by lending its support to
an enhanced sentence for Roberts. Roberts seeks remand, specific performance
of the plea agreement, and resentencing. We order the relief sought because we
hold that at sentencing, the Government supported an enhancement for career
offenders, which is not a mere adjustment under the sentencing guidelines, but
instead constitutes a new base offense level.
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No. 09-40268
I.
Roberts pled guilty, pursuant to a plea agreement, of possession with
intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §
841(a)(1). He entered into a plea agreement that stipulated that the base offense
level was 30, and that he was eligible for a reduction of two levels. The
agreement stipulated that the “parties understand that the Court is not bound
by these agreements [and] that other specific offense characteristic or guideline
adjustments may increase or decrease the appropriate range.” In the agreement,
Roberts waived the right to appeal the conviction and sentence on all grounds
other than: (1) a sentence in excess of the statutory maximum; and (2) a claim
of ineffective assistance of counsel.
The presentence report (“PSR”) recommended a base offense level of 30,
pursuant to U.S.S.G. § 2D1.1(c)(5) and consistent with the plea agreement. But
the PSR also recommended an increase in the offense level to 37 pursuant to
U.S.S.G. § 4B1.1 (the “career offender enhancement”). Roberts qualified as a
career offender because he was previously convicted for aggravated assault and
use of a communication facility to facilitate a felony. The PSR further
recommended a downward adjustment of three for the acceptance of
responsibility, reducing the total offense level to 34. The corresponding
guidelines sentencing range was 262-327 months.
During the sentencing hearing, Roberts argued that the Government
breached its agreement by supporting the application of the career offender
enhancement, and thus failing to adhere to the stipulated base offense level of
30. Roberts also asserted that the career offender enhancement is not a
guideline adjustment to a base offense level but instead is a new base offense
level. The court asked the prosecutor for his response. The prosecutor answered
that Roberts did not get the benefit of the bargain struck by the plea agreement
because of his “extensive criminal history”, not as a result of any breach of the
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plea agreement. Further, he argued that the career offender enhancement
represented a guideline adjustment, not a new base level, and stated that
guideline adjustments were permitted under the terms of the plea agreement.
The district court overruled Roberts’s objection to the Government’s
support of the application of the career offender enhancement, finding that it
constituted a guideline adjustment. The district court further found that the
calculation of a Chapter Two base offense level determination is separate from
the calculation of an adjustment, such as the Chapter Four career offender
adjustment. Consequently, the district court concluded that the plea agreement
had not been breached, and imposed a sentence of 168 months. Roberts appeals
this holding, and his sentence.
II.
As a preliminary matter, the Government seeks dismissal of the appeal
based upon the waiver provision in the plea agreement. Roberts’s appeal waiver
does not affect his ability to raise a breach argument because an alleged breach
of a plea agreement may be raised despite a waiver provision. See United States
v. Keresztury, 293 F.3d 750, 757 (5th Cir. 2002) (where the Government has
breached a plea agreement, the defendant is necessarily released from any
appeal provision contained therein). We therefore consider two issues Roberts
raises on appeal: (1) that the career offender enhancement creates a new base
offense level, rather than adjusting an existing offense level; and (2) that,
accordingly, the Government breached its plea agreement by failing to adhere
to its stipulation that the base offense level was 30.1
1
Roberts also argued that the career offender enhancement was improperly applied to
him because his state and federal sentences ran concurrently. We are not persuaded by the
merits of this argument, but need not reach it to find that the Government breached the plea
agreement.
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A.
We first address whether the career offender enhancement is a guideline
adjustment, not a change in the base offense level. Then, in the light of our
conclusion, we will turn to consider whether the Government has breached the
plea agreement by supporting the increased base offense level provided under
the career criminal provision.
This court has not ruled on whether the career offender enhancement is
correctly considered a guideline adjustment or base offense level. It has,
however, spoken to the issue in dicta that can be construed to support either
interpretation of the statute.
On the one hand, this court has referred to the career offender
enhancement as providing a new base level on multiple occasions. See, e.g.,
United States v. Anderson, 591 F.3d 789, 790 (5th Cir. 2009) (“if the base level
calculated under the career offender enhancement exceeds the base level
calculated under the general drug crimes provision, then the career offender
base level prevails”); United States v. Rodriguez-Jaimes, 481 F.3d 283, 284 (5th
Cir. 2007) (“The presentence investigation report [ ] recommended a base offense
level of thirty-seven because the probation officer determined that Rodriguez-
Jaimes was a career offender pursuant to U.S.S.G. § 41B.1 . . .”).
On the other hand, this court has held that the Government did not breach
a plea agreement, but only in an unpublished per curiam opinion, albeit with
similar facts to those presented in this case. See United States v. Traugott, 364
F. App’x 925, 925 (5th Cir. 2010) (“The government did not breach the plea
agreement by supporting the application of the career offender enhancement.”).
In Traugott, defendant Larry Stanley Traugott pled guilty to conspiracy to
possess with intent to distribute 500 grams or more of methamphetamine. He
entered into a plea agreement with the Government that stipulated the
applicable base offense level was 32. Based on Traugott’s prior convictions, the
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district court applied the career offender enhancement under U.S.S.G. § 41B.1
to find an offense level of 37. Traugott argued that the Government breached
the plea agreement’s base level stipulation by supporting the district court’s
application of the career offender enhancement during the sentencing hearing.
This court found that the Government did not breach the plea agreement by
supporting the application of the career offender enhancement. Id. (“the plea
agreement did not preclude application of the career offender enhancement”).
The Traugott court did not explicitly consider whether the career offender
enhancement was a guidelines adjustment or a new base offense level.
Thus, our review of the caselaw provides no apposite precedent. We must,
therefore, decide whether the career offender enhancement is classified as a
guidelines adjustment, or new base offense level. The plain language of the
career offender enhancement indicates that it establishes a new base offense
level when it exceeds the level that would otherwise apply: “If the offense level
for a career offender from the table in this subsection is greater than the offense
level otherwise applicable, the offense level from the table in this subsection shall
apply.” U.S.S.G. § 4B1.1(b). Rather than adjusting the prior offense level up or
down by a certain number–as occurs under the adjustments set forth in
Chapters Two and Three of the sentencing guidelines–§ 4B1.1 replaces the
established base offense level.
Further, Chapter Four does not internally reference itself as being an
adjustment, unlike Chapter Three. The title of Chapter Three is “Chapter Three
- Adjustments.” See, e.g., U.S.S.G. § 3. The Chapter Three sub-chapters contain
numerous references to their status as adjustments in their titles, background
commentary, and explanatory notes. See, e.g., U.S.S.G. §3A1.1 (“Victim-Related
Adjustments”); §3B1.1 (“This Part provides adjustments to the offense level . . .”).
The Government’s sole argument that the career offender enhancement
is an adjustment rather than a new base level is contained in a footnote in its
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brief. It argues that the General Application Principles for the sentencing
guidelines reference “adjustments” in Part B of Chapter 4. (“Determine from
Part B of Chapter Four any other applicable adjustments.”) U.S.S.G. § 1B1.1(f)
(emphasis added). We find this argument is not decisive when weighed against
the more extensive and more persuasive counter arguments set forth above.
Thus, Section 4B1.1 is not structured as what is commonly thought of as
an adjustment. Instead, it replaces the base offense level under certain
conditions.
B.
Roberts argues that the Government breached the plea agreement when
it argued that he should receive an offense level greater than that stipulated in
the plea agreement. The Government argues that it was unreasonable for
Roberts to believe that the plea agreement precluded the Government from
arguing for the career offender enhancement pursuant to § 4B1.1(b). “This court
reviews a claim of a breach of plea agreement de novo, accepting the district
court’s factual findings unless clearly erroneous.” See United States v. Elashyi,
554 F.3d 480, 501 (5th Cir. 2008) (internal quotation and citation omitted), cert.
denied, 130 S. Ct. 57, 61, 363 (2009). The Government is required strictly to
adhere to plea agreements.
If a defendant pleads guilty as part of a plea agreement, the
Government must strictly adhere to the terms and conditions of its
promises in the agreement. . . . [A] plea agreement is construed
strictly against the Government as the drafter. To assess whether
a plea agreement has been violated, this court considers whether
the government’s conduct is consistent with the defendant’s
reasonable understanding of the agreement.
Id. (internal citations and quotations omitted). The defendant bears the burden
of demonstrating the underlying facts that establish breach by a preponderance
of the evidence. United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996).
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We cannot agree that it was unreasonable for Roberts to believe the
agreement precluded the Government from supporting application of the career
offender enhancement. The plea agreement provides that the “parties
understand that the Court is not bound by these agreements [and] that other
specific offense characteristics or guideline adjustments may increase or
decrease the appropriate sentencing range.” Although the plea agreement
permits the Government to argue for “offense characteristics or guideline
adjustments,” it does not contemplate that the Government would argue for a
new base offense level differing from the one stipulated in the agreement.
Above, we rejected the Government’s contention that application of the career
offender enhancement is an adjustment. Instead, we have held that it resets the
base offense level. Consequently, the plea agreement does not provide Roberts
with a reasonable understanding that the Government may argue for application
of the career offender enhancement.
Although this court is not controlled by the unpublished opinion in
Traugott, comparing the facts of the cases illustrates what does constitute a
reasonable understanding in a plea agreement. The language of the plea
agreements entered into by Traugott and Roberts is substantially similar. In his
rearraignment hearing, however, Traugott “expressly acknowledged his
understanding that prior convictions could increase the applicable guidelines
range . . .” Traugott, 364 F. App’x at 925. Thus, Traugott received express notice
that the career offender enhancement might apply to his sentence. In contrast,
Roberts was not informed that the career offender enhancement might apply to
his sentence; the potential application of the provision was neither contained in
his plea agreement nor discussed at his rearraignment hearing. More
specifically, the parties in the respective cases had different notice regarding the
career offender enhancement: the provision was specifically pointed out to
Traugott, whereas Roberts never received notice that it might apply.
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Consequently, the parties’ reasonable understanding of the bargains they had
struck with the Government differed. Traugott’s reasonable understanding was
that the career offender enhancement might apply. Roberts had no basis to
believe that the career offender enhancement could reset the base level
stipulated in the plea agreement.
Furthermore, the language of the guideline stipulations, as set out in the
plea agreement, provides express notice that the reduction of two levels is
subject to the recommendation of the Probation Office, but provides no similar
notice that the agreed base level is subject to that recommendation. The
relevant language in the plea agreement provides:
GUIDELINE STIPULATIONS: The parties stipulate to the
following factors that affect the appropriate sentencing range in this
case:
a. The base level under U.S. Sentencing Guidelines
Manual § 2D1.1(c)(5) (2007) (U.S.S.G.) is 30;
b. A reduction of two levels for acceptance of responsibility
under U.S.S.G. § 3E1.1 applies; however, this
stipulation is subject to the recommendation of the
United States Probation Office. If circumstances
indicating that the Defendant has not accepted
responsibility became known after entry of this
agreement, this stipulation is void and Defendant may
object to the failure of the Presentence Report to
recommend the reduction.
(First emphasis added; second emphasis in original). Accordingly, the plain
language of the plea agreement suggests the reduction for acceptance of
responsibility is subject to the discretion of the Probation Office but provides no
similar condition for the base offense level.
C.
Finally, the Government contends that it did not argue for the career
offender enhancement, but instead only agreed with the recommendation of the
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PSR. At sentencing, the prosecutor supported application of the career offender
enhancement by emphasizing Roberts’s “extensive criminal history.” The
prosecutor explicitly acknowledged that through the application of the career
offender enhancement “the defendant simply doesn’t get the benefit of that
particular bargain but it’s still a plea agreement that he signed and he entered
into and I’m sure that there is other consideration in this plea agreement than
that particular guideline calculation.” Although he stated application of the
enhancement was “simply a function of the defendant’s criminal history, which
the government has no control over,” the prosecutor could have chosen to not
take a position on the enhancement, but instead chose to remark on the
appropriateness of its application. We therefore must examine whether his
conduct constitutes advocation for the enhancement in violation of the plea
agreement.
The Fifth Circuit addressed similar circumstances in United States v.
Munoz, 408 F.3d 222 (5th Cir. 2005). In Munoz, defendant Munoz pled guilty to
conspiracy to committing wire fraud and mail fraud and conspiracy to commit
money laundering, for his participation in a Ponzi scheme. Id. at 224. Munoz
entered into a plea agreement, in which the parties agreed to a set total offense
level of 25. Id. at 225. The PSR instead recommended a total offense level of 29,
based on the application of an abuse of trust enhancement not included in the
plea agreement. Id. At sentencing, the court asked the prosecutor several
questions about the enhancement, which he answered affirmatively, indicating
support for application of the enhancement. Id. The district court sentenced
Munoz to 90 months of imprisonment for the money laundering conviction and
60 months of imprisonment for the wire fraud conviction, to run concurrently.
Id. 225-26. Munoz appealed, contending that the Government breached the plea
agreement by stating that the abuse of trust enhancement should apply during
the sentencing hearing. Id. at 226. Munoz asked for specific performance of the
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agreement, which would require the court to vacate his sentence and remand his
case for resentencing before a different judge. Id.
The Fifth Circuit found that the Government breached the plea
agreement. Id. at 227. The plea agreement stated that the parties “agreed that
the applicable sentencing guideline should be calculated as follows” in a
calculation that did not include an enhancement for abuse of trust. Id. Despite
this term, the prosecutor responded to questions in a manner that advocated
application of the abuse-of-trust enhancement. Id. (“the government implicitly
promised not to argue for an enhancement that was not part of the plea
agreement”). The court found that the prosecutor’s conduct at the sentencing
hearing breached the plea agreement. Consequently, the court vacated Munoz’s
sentence and remanded to the district court for reassignment to a different judge
and resentencing.
Notably, Munoz deals with an abuse of trust enhancement instead of the
career offender enhancement. Its logic is, however, applicable to this case and
consistent with a line of cases from other circuits holding that a prosecutor may
not argue for an enhancement that would raise an offense level when the
Government agreed to a stipulated base offense level in the plea agreement. See
United States v. Rivera, 357 F.3d 290, 295 (3d Cir. 2004) ( “Because the Offense
Level was specifically stipulated to, whereas the government's right to advocate
a role enhancement was not, the government's endorsement of an enhancement
that would raise the Offense Level above the stipulated level contravened the
plea agreement.”); United States v. Taylor, 77 F.3d 368, 371 (11th Cir. 1996).
Further, at least one other circuit has directly held that the Government
breaches a plea agreement by advocating for application of the career offender
enhancement if the plea agreement explicitly set forth a different base level. See
United States v. Fowler, 445 F.3d 1035 (8th Cir. 2006).
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Accordingly, our precedent suggests that the prosecutor in this case
violated the plea agreement by arguing, even if mildly, that the career offender
enhancement should apply after agreeing to a different, lower base offense level
in the plea agreement. Roberts’s reasonable understanding of the plea
agreement was that it stipulated a base offense level. By arguing for a different
base offense level at the sentencing hearing, the Government failed to uphold its
end of the bargain. See Munoz, 408 F.3d at 226. The Government’s conduct was
inconsistent with the defendant’s reasonable understanding of the plea
agreement.
III.
The Government is obligated to live up to the bargain it strikes in plea
agreements. Elashyi, 554 F.3d at 501. In this case, the Government stipulated
a base offense level of 30 in the plea agreement. At the sentencing hearing, the
Government agreed to application of the career offender enhancement. This
reset the base level to 37. Roberts’s reasonable understanding of the plea was
that it stipulated a base offense level of 30. By supporting a different base
offense level at the sentencing hearing, the Government failed to uphold its end
of the bargain.2 The Government’s conduct was inconsistent with the
defendant’s reasonable understanding of the plea agreement. Accordingly, the
Government breached the plea agreement and Roberts is entitled to specific
performance of the agreement.
For the foregoing reasons, we VACATE Roberts’s sentence and REMAND
to the district court for reassignment to a different judge and for resentencing,
not inconsistent with this opinion.
VACATED and REMANDED.
2
Notably, a prosecutor for the U.S. Attorney’s office, which entered the plea
agreement, advocated for the increased base level at the sentencing hearing. This, of course,
differs from a PSR or court unilaterally arguing for or applying the career offender provision.
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HAROLD R. D EMOSS, JR. dissenting:
In this case we consider whether application of the career offender
provision found in Chapter Four of the Sentencing Guidelines is an
“adjustment” as such term is contemplated by the Guidelines and, by
implication, the plea agreement entered into between the government and
Roberts. See U.S. S ENTENCING G UIDELINES M ANUAL § 4B1.1. I would answer
“yes” for two reasons. First, I find that the structure, sequencing, and express
language of the Guidelines clearly indicate that application of the career
offender provision is a guideline adjustment. And second, there being no
controlling case law on point, I find that the decision in United States v.
Traugott is both directly on point and the most persuasive analysis available.
364 F. App’x 925 (5th Cir. 2010) (G ARZA, D EM OSS, and C LEMENT, JJ.) (per
curiam) (unpublished). I would find that the government’s argument in favor
of applying the career offender provision is wholly consistent with a
reasonable understanding of the plea agreement, and that the government
did not breach any term of the plea agreement. I would hold that Roberts’s
appeal waiver is valid and affirm the district court’s sentence. I respectfully
dissent.
THE PLEA AGREEMENT
The plea agreement entered into between the government and Roberts
stipulates to the following: (1) Roberts’s base offense level under § 2D1.1(c)(5)
is 30; (2) a two-level reduction for acceptance of responsibility applies under
§ 3E1.1; and (3) other specific offense characteristics or guideline adjustments
may increase or decrease the appropriate sentencing range and either party
may argue for such increases or decreases. These stipulations are neither
vague nor complicated. The first stipulation provides a starting point for
sentencing by avoiding argument on the quantity of cocaine base at issue
(68.59 grams). Base offense level 30 simply refers to a quantity of cocaine
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base of at least 50 grams but less than 150 grams, nothing more. See
§ 2D1.1(c)(5). The second stipulation provides that, unless the probation
officer determines that Roberts has not actually accepted responsibility for
his offense, Roberts’s total offense level—which is not stipulated to—will be
reduced by two levels. See § 3E1.1. The third stipulation provides that both
the government and Roberts may consider the facts in the forthcoming
presentence report (e.g., employment record, educational background,
substance abuse, family characteristics, extent and seriousness of criminal
history) and argue at sentencing for increases or decreases to Roberts’s
offense level based on any applicable specific offense characteristic or
guideline adjustment.
The plea agreement makes no reference to Chapter Four of the
Guidelines, including the career offender provision found in § 4B1.1(b).
Neither does it reference Roberts’s extensive criminal history which qualifies
him as a career offender.1 This is unsurprising. In most cases, a presentence
report sets forth a defendant’s official criminal history and establishes the
factual basis for the government to argue for applying the career offender
provision. The presentence report is completed by a probation officer well
after a plea agreement is entered into but prior to sentencing.2 Thus, at the
time a plea agreement is entered into, the government often does not have all
of the facts relevant to sentencing. Only the defendant (and possibly defense
counsel) would know the full extent and seriousness of the defendant’s
1
Roberts qualifies as a career offender because (1) he was at least 18 years old when
he committed the instant offense, (2) the instant offense is a controlled substance felony, and
(3) Roberts has at least two prior controlled substance felonies. See § 4B1.1(a). The only
question is whether the government may argue in favor of applying the career offender
provision. For the reasons discussed above, I would answer yes.
2
For example, in this case the plea agreement was entered into by the government and
Roberts on July 21, 2008, but the presentence report was not disclosed to either party until
October 31, 2008, more than three months later.
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criminal history. What would be surprising is the government stipulating in
a plea agreement to ignore a defendant’s criminal history, and a defendant
expecting it to ignore such history, when such relevant facts will likely
remain uncertain to the government until closer to sentencing.
The plea agreement expressly reserves the government’s right to argue
in favor of “guideline adjustments.” We should therefore look to the
Guidelines to determine whether applying the career offender provision
constitutes an “adjustment.” We should then look to the relevant case law to
the extent it can aid us in reaching the correct determination. I believe that
both the Guidelines and the case law support finding the application of the
career offender provision to be an adjustment.
THE GUIDELINES
We should first look to the Guidelines themselves. The Guidelines are
purposefully structured to provide for application of its provisions in a precise
sequence. See § 1B1.1; United States v. Martinez-Noriega, 418 F.3d 809, 812
(8th Cir. 2005); United States v. Ventura, 353 F.3d 84, 92 (1st Cir. 2003). For
drug offenders such as Roberts, Chapter Two establishes what is clearly
labeled a “Base Offense Level” solely on the basis of the quantity of drugs.
See § 2D1.1(c). The plea agreement stipulates to a base offense level of 30
under Chapter Two.
Only after the base offense level is established under Chapter Two do
other provisions of the Guidelines apply. Chapter Three is titled
“Adjustments,” but the Guidelines in no way indicates that Chapter Three is
its exclusive source of adjustments. Chapter Four determines a defendant’s
“Criminal History and Criminal Livelihood” and it includes a provision that
may raise the already established base offense level for “career offenders.”
See § 4B1.1(b). The table in Chapter Four simply sets forth what “Offense
Level” is to be used “if [the listed offense level is] greater than the offense
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level otherwise applicable.” Id. It does not purport to establish a “new” or
“replacement” base offense level, as the majority labels it. By its own terms,
the career offender provision can only be used to increase (another way of
saying “enhance” or “adjust upward”) a separate and previously established
offense level.
Moreover, in its Application Instructions, the Sentencing Commission
gives specific instructions to “[d]etermine the defendant’s criminal history
category as specified in Part A of Chapter Four [and then] [d]etermine from
Part B of Chapter Four any other applicable adjustments.” § 1B1.1(f)
(emphasis added). Thus, the Commission itself considers application of the
career offender provision found in Part B of Chapter Four to be an
“adjustment” as it understands such term. I agree with the Commission’s
interpretation of the Guidelines.
THE CASE LAW
After we consider the structure, sequencing, and express language of
the Guidelines, we should look to controlling or persuasive case law. Like the
majority, I have not found any published opinion from our circuit or any other
circuit analyzing the specific issue we face today.
However, we considered this exact question earlier this year in
Traugott, a case with nearly identical facts and a nearly identical plea
agreement. See 364 F. App’x at 925. I would not dismiss our conclusion in
that case as casually as does the majority. While Traugott is unpublished
and therefore not controlling, it is persuasive and aids us in the correct
determination of this case. See F ED R. A PP. P. 32.1(a); 5 TH C IR. R. 47.5.4;
United States v. Meraz-Enriquez, 442 F.3d 331, 333 (5th Cir. 2006). In
Traugott, we stated that “the stipulation [under § 2D1.1(c)] merely confirms
the appropriate guidelines section applicable to [the defendant’s] offense. It
does not preclude application of the career offender enhancement.” Traugott,
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364 F. App’x at 925. That is, when asked whether the government’s right to
argue in favor of “adjustments” at sentencing also included the right to argue
in favor of applying the career offender provision, we answered “yes.” Id. The
only difference between this case and Traugott is that the Traugott defendant
orally acknowledged that his criminal history could increase the applicable
guidelines range, but such an acknowledgment simply restates what is
already written in the stipulation. Id. I would follow Traugott.
The majority points to two published cases where we refer to the career
offender offense level as a “base offense level,” but both references involved no
analysis of this specific issue (unlike Traugott) and were dicta. See United
States v. Anderson, 591 F.3d 789, 790 (5th Cir. 2009); United States v.
Rodriguez-Jaimes, 481 F.3d 283, 284 (5th Cir. 2007); but see United States v.
Hopkins, 318 F. App’x 297, 298 (5th Cir. 2009) (unpublished) (stating in dicta
that application of the career offender provision is an “adjustment”). The
majority also points to two other published cases, but each of them involved
stipulated “total” offense levels. See United States v. Fowler, 445 F.3d 1035,
1037 (8th Cir. 2006); United States v. Rivera, 357 F.3d 290, 295 (3d Cir.
2004). Those cases are easily distinguishable: the government in each of
those cases argued for additional offense levels after it had stipulated to a
“total” offense level; the government in this case only stipulated to the “base”
offense level and expressly reserved the right to argue for adjustments to the
base offense level.
I have found published cases in eight circuits that refer to the
application of the career offender provision as an “adjustment.” See, e.g.,
United States v. Hopkins, 577 F.3d 507, 508 (3d Cir. 2009); Martinez-Noriega,
418 F.3d at 812; United States v. Jeppeson, 333 F.3d 1180, 1183 (10th Cir.
2003); Ventura, 353 F.3d at 92; In re Sealed Case No. 98-3116, 199 F.3d 488,
489 (D.C. Cir. 1999); United States v. Unthank, 109 F.3d 1205, 1208 (7th Cir.
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1997); United States v. Daly, 974 F.2d 1215, 1218 (9th Cir. 1992); United
States v. Downs, 955 F.2d 397, 399 (6th Cir. 1992). While I acknowledge that
none of these cases specifically analyzed the issue we faced in Traugott and
we decide today, I cite them to show that there is at least as much support in
the non-controlling case law for my interpretation of “adjustment” as there is
for the majority’s interpretation. I believe that the most persuasive case law
on point supports finding the application of the career offender provision to be
an adjustment.
CONCLUSION
I disagree with the majority’s constricted reading of the term
“adjustment.” It is not based in the structure, sequencing, or express
language of the Guidelines, nor is it founded upon controlling or particularly
persuasive case law. Moreover, its denomination of any career offender
offense level as a “new” or “replacement” base offense level is wholly without
support.3 I would hold that application of the career offender provision of
Chapter Four—at least after a defendant’s base offense level has already been
established pursuant to § 2D1.1(c) in a drug case—is an adjustment. As such,
because the government did not breach the plea agreement by arguing in
3
Whether a base offense level is adjusted by a set number of levels (e.g., “increase by
[X] levels”) or adjusted to a pre-set level (e.g., “increase to level [X]”) does not change the fact
that the increase is an adjustment. For example, § 2D1.1(b)—the “specific offense
characteristic” provision for drug crimes—provides in certain circumstances for a two- or
three- level increase or, “if the resulting offense level is less than level [X], increase to level
[X].” See § 2D1.1(b)(2), (10). Structurally, such an increase to a specific pre-determined level
under § 2D1.1 is the same as § 4B1.1's “if greater than” increase to a specific pre-determined
level. It too would be an impermissible “new” or “replacement” base offense level under the
majority’s reasoning, even though the plea agreement expressly permits the government to
argue for specific offense characteristic increases at sentencing.
17
Case: 09-40268 Document: 00511265108 Page: 18 Date Filed: 10/15/2010
No. 09-40268
favor of applying the career offender provision, I would find Roberts’s appeal
waiver valid and affirm the district court’s sentence.4
4
The district court ultimately sentenced Roberts to 168 months imprisonment. This
sentence is well below the range recommended by both the government and the presentence
report (262–327 months) and is within the range that would be applied if the district court
looked at the plea agreement’s stipulated offense level and nothing else (140–175 months).
The original sentencing judge was not bound by the plea agreement, however, and neither will
the next sentencing judge. The next sentencing judge may decide to apply the career offender
provision, following the presentence report’s recommendation, even without the government’s
argument in favor of it. It is very possible that Roberts will receive a much harsher sentence
from a different sentencing judge on remand than the 168-month sentence he has today.
18