UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20921
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
GEORGE C. MORGAN,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(H-95-CR-303)
October 6, 1999
Before JONES, DeMOSS and DENNIS, Circuit Judges.
PER CURIAM:*
The government appeals the district court’s imposition
of a 52-month sentence on George Morgan, arguing that the
district court was obliged to enter a 60-month sentence as
agreed to in his Fed.R.Crim.P. 11(e)(1)(C) plea agreement.
Because the district court erred in its interpretation of Rule
11(e)(1)(C) and U.S.S.G. §5G1.3, this Court reverses and remands
for resentencing.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
The district court’s use of U.S.S.G. §5G1.3 to credit
time served on a prior sentence was improper because
Fed.R.Crim.P. 11(e)(1)(C) does not allow a district court to
modify a plea agreement once it has accepted it. See United
States v. Gilchrist, 130 F.3d 1131, 1133 (3d Cir. 1997); United
States v. Veri, 108 F.3d 1311, 1315 (10th Cir. 1997); United
States v. Mukai, 26 F.3d 953, 955-56 (9th Cir. 1994). In this
case, the plea agreement clearly contemplates a term-specific
sentence of 60 months incarceration. Therefore, the district
court was obliged to enter that sentence. Even if the plea
agreement could be construed as not precluding the imposition of
a concurrent sentence, U.S.S.G. §5G1.3 is not applicable in this
case because the prior sentence was fully discharged at the time
of sentencing. See United States v. Labeille Soto, 163 F.3d 93,
99 (2d Cir. 1998); United States v. Rizzo, 121 F.3d 794, 800
(1st Cir. 1997); United States v. McHan, 101 F.3d 1027, 1040
(4th Cir. 1996). For these reasons, the court below erred in
imposing a 52-month sentence rather than a 60-month one.
REVERSED AND REMANDED.
2