United States Court of Appeals
For the First Circuit
No. 02-2063
UNITED STATES,
Appellee,
v.
JAMES R. RIGGS, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Selya and Lynch,
Circuit Judges.
Tina Schneider on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
October 16, 2003
Per Curiam. This is the second appeal by defendant-
appellant James R. Riggs, Jr. In his first appeal, Riggs argued
that the government breached the plea agreement by not recommending
that he be sentenced on the basis of five to fifty grams of cocaine
base, as expressly set forth in the agreement. We agreed, and
therefore vacated Riggs's sentence and directed the district court
to consider whether specific performance of the plea agreement or
withdrawal of the guilty plea was the appropriate remedy. United
States v. Riggs, 287 F.3d 221, 224-25 (1st Cir. 2002) (Riggs I).
On remand, Riggs elected to stand on his guilty plea and was
resentenced.
In the present appeal, Riggs argues that his sentence should
be vacated and his case remanded for resentencing because (1) the
government breached the plea agreement again, this time by
suggesting that Riggs receive the maximum sentence available under
the law, even though the government had agreed to recommend a
sentence based on a specific amount of cocaine base, and (2) the
district court erred by imposing a term of supervised release that
exceeded the sentencing guidelines for an offense involving an
unspecified amount of cocaine base, without providing an
explanation and advance notice to the parties. We affirm.1
With respect to Riggs's first argument, we note that Riggs did
1
The court has determined that oral argument would not aid
the decisional process. See Fed. R. App. P. 34(a)(2)(C); 1st Cir.
Loc. R. 34(b).
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not object to any of the government's comments at the resentencing
hearing. As we said in Riggs I:
When a defendant has knowledge of conduct ostensibly
amounting to a breach of a plea agreement, yet does not
bring that breach to the attention of the sentencing
court, we review only for plain error. To establish
plain error, a defendant must demonstrate that: (1) there
was error; (2) the error was plain; (3) the error
affected the defendant's substantial rights; and (4) the
error adversely impacted the fairness, integrity, or
public reputation of judicial proceedings.
Id. at 224 (internal citations and quotation marks omitted).
We conclude that there was no plain error here. The plea
agreement provided that the parties would recommend a sentence
based on five to fifty grams of cocaine base, but the parties
subsequently agreed, prior to resentencing, to narrow that spread
to 35 to 49 grams. The guideline range for trafficking in 35 to 49
grams of cocaine base, based on Riggs's total offense level of 27
and his Criminal History Category (VI), is 130 to 162 months of
imprisonment. At the resentencing hearing, the government
recommended that Riggs receive a 162-month sentence. While the
government did not specifically mention that its recommendation was
based on a drug quantity of 35 to 49 grams of cocaine base, it had
so stipulated less than an hour earlier at a presentence
conference. Moreover, its sentencing recommendation was at the
high end of, but clearly within, the guideline range for this drug
amount. Therefore, the government did not breach its obligations
under the plea agreement.
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Although Riggs takes issue with the government's failure to
reference the 35 to 49 grams of cocaine base at the disposition
hearing itself, the plea agreement did not specifically say that
the government had to mention the drug quantity that led to the
applicable guideline range. What is more, the district court
already had indicated that it was aware that the parties'
sentencing recommendations would be based on that specific drug
quantity. Finally, despite the fact that the government recounted
Riggs's involvement in the drug conspiracy and noted that the
conspiracy ended with "the seizure of several hundred grams of
crack cocaine," these facts were contained in the presentence
investigation report. It was not only appropriate, but also in
conformity with the government's obligations for it to provide the
sentencing court with information as to the material facts
surrounding the offense. See, e.g., United States v. Mata-Grullon,
887 F.2d 23, 24 (1st Cir. 1989) (noting that "the government must
bring all relevant facts to the [sentencing judge's] attention").
Riggs's complaint that the government made the requisite
recommendation somewhat grudgingly avails him naught. The
government's recommendation need not be enthusiastic. See, e.g.,
United States v. Benchimol, 471 U.S. 453, 455-56 (1985) (stating
that a criminal defendant has no right to an "enthusiastic"
recommendation by the prosecutor in order to achieve compliance
with a plea agreement). We interpret the government's statement
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that Riggs "should receive the maximum sentence available under the
law" as recommending the maximum guideline sentence available under
21 U.S.C. § 841(b)(1)(B) based on Riggs's total offense level and
criminal history category.
We also reject Riggs's second argument. That argument is
raised for the first time in this appeal (and, therefore, can only
be reviewed for plain error). See, e.g., United States v. Duarte,
246 F.3d 56, 60 (1st Cir. 2001). Riggs argues that the district
court erred by imposing a term of supervised release that exceeded
the sentencing guidelines for an offense involving an unspecified
amount of cocaine base, without providing advance notice to the
parties and an explanation for doing so. In effect, Riggs treats
the supervised release term as constituting an upward departure
because no drug quantity was alleged in the indictment, included in
the government's version of the facts, or determined by the court
beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S.
466, 490 (2000). For that reason, he says, he could not receive
more than the maximum sentence for an unspecified quantity of
cocaine base under 21 U.S.C. § 841(b)(1)(C) – a supervised release
term of two to three years. See USSG § 5D1.2(a)(2) (providing that
if a term of supervised release is ordered, the length of the term
for a Class C felony shall be "at least two years but not more than
three years").
The supervised release term did not exceed the guideline range
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for the offense to which Riggs pled guilty (and, thus, was not an
upward departure). The record is clear that Riggs accepted
responsibility for 35 to 49 grams of cocaine base, making his
offense a 21 U.S.C. § 841(b)(1)(B) offense. Because such an
offense is a Class B felony, see 18 U.S.C. § 3559(a)(2), the
applicable guideline provision calls for "at least three years but
not more than five years" of supervised release. USSG §
5D1.2(a)(1). Thus, the district court's imposition of a five-year
supervised release term did not exceed the guideline range.
Moreover, even assuming without deciding that an Apprendi
error occurred because the length of Riggs's sentence was driven
largely by drug quantity (a fact neither charged in the indictment
nor submitted to a jury), Riggs stipulated that he was responsible
for a drug quantity that placed him at a higher statutory level
than the default statutory maximum, and his sentence fell within
that higher level. Consequently, he cannot establish either
prejudice or plain error. See Duarte, 246 F.3d at 60 (holding that
even if Apprendi error occurred, defendant who admitted to drug
quantity at time of plea suffered no prejudice by omission of
specific drug quantity in indictment or by absence of jury
determination on that point, and, therefore, plain error standard
was not met).
For the reasons stated, the judgment and sentence are
affirmed.
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Affirmed.
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