NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 6, 2014
Decided July 21, 2014
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 12‐1666
Appeal from the United States District
UNITED STATES OF AMERICA, Court for the Southern District of Indiana,
Plaintiff‐Appellee, Indianapolis Division
v. No. 1:10‐cr‐00093 SEB/KPF
TONY CURRIE, Sarah Evans Barker,
Defendant‐Appellant. Judge.
O R D E R
Our prior opinion ordered a limited remand of this case to the district court so
that the court could consider whether it would have imposed the same sentence of 121
months on defendant Tony Currie had it known that the applicable statutory minimum
term was 60 months and not 120 months, as was assumed at sentencing. United States v.
Currie, 739 F.3d 960, 966‐67 (2014); see Dorsey v. United States, 132 S. Ct. 2321 (2012)
(holding that the lower statutory minima and maxima for crack cocaine offenses
adopted by the Fair Sentencing Act of 2010, 124 Stat. 2372, apply to defendants who are
sentenced after the effective date of the Act, regardless of whether the offense was
committed before or after that date).
No. 12‐1666 Page 2
After giving this matter its thorough and careful consideration on remand, the
district court concluded that it would have imposed the same sentence on Currie
knowing that the statutory minimum prison term was 60 months. R. 143. The court
reminded us that in the written plea agreement, the parties had agreed upon a specific
sentence of 121 months1 pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C);
and once it accepted the agreement, the court was bound to impose that sentence, see
Rule 11(c)(3) & (4).This was a point that Currie had acknowledged in his appellate brief
but that the government had not relied upon in defending the sentence imposed. In
view of the plea agreement’s provision as to the sentence, the district court considered
de novo whether it would have accepted the plea agreement (and the sentence it called
for) knowing of the 60‐month minimum. Taking into account the Sentencing
Guidelines, the parties’ agreement upon a 121‐month sentence, and the sentencing
factors identified in 18 U.S.C. § 3553(a), the court concluded that it would have accepted
the plea agreement and imposed the same sentence. Among other factors, the court
noted that the stipulated sentence was at the low end of the range advised by the
Guidelines; that Currie had pleaded guilty to two serious offenses (cocaine conspiracy
and possession of a firearm by a convicted felon); that these offenses were committed
while Currie was on home detention from a prior offense; and that Currie had an
extensive criminal history as well as a personal history of uncontrolled alcohol
addiction. R. 143 at 2‐3. “The 121‐month period of incarceration—jointly recommended
by the parties and accepted by the undersigned judge—was deemed a legally
reasonable sentence and was imposed on that basis alone. Had the mandatory
minimum sentence been five years or ten years, it would not have made any difference
under the circumstances of Currie’s case.” R. 143 at 3.
Currie faults the district court for not conducting a more extensive inquiry, and
in particular for not considering whether he would have entered into the plea
agreement had he been properly advised that the statutory minimum term for his
1
The agreement called for a sentence at the low end of the advisory Guidelines
range corresponding to an adjusted offense level of 29 (reflecting a three‐point
reduction for acceptance of responsibility) and a criminal history category as yet to be
determined by the probation officer and the court. See R. 94 ¶¶ 3, 13. The points later
assigned to Currie’s criminal history put him into a criminal history category of IV.
Coupled with the adjusted offense level of 29, that criminal history category produced a
Guidelines sentencing range of 121 to 151months. Thus, the agreement effectively
specified a sentence of 121 months.
No. 12‐1666 Page 3
narcotics offense was only 60 months; but his real quarrel is with the limited nature of
the remand that we ordered. We asked the district court to consider whether it would
have imposed the same sentence had it known that the lower statutory minimum term
applied. 739 F.3d at 967. Pointing out that it was bound to impose the sentence that the
parties themselves had agreed upon, the district court appropriately broadened the
inquiry that we posed to include the question of whether the court would have accepted
the plea agreement knowing of the lower minimum. R. 143 at 2. The court answered
that question in the affirmative, and left no doubt that the statutory minimum did not
influence its sentencing decision. R. 143 at 3‐4. The district court’s entry on remand
satisfies us that any mistaken (in retrospect) understanding as to the statutory
minimum term did not affect the court’s decision to accept the plea agreement and the
121‐month sentence it called for pursuant to Rule 11(c)(1)(C).
Currie’s suggestion that he might not have entered into the plea agreement had
he been aware of the correct statutory minimum does not persuade us that the district
court ought to conduct further proceedings as to the validity of the agreement. No
objection to the sentence or to the plea agreement was voiced below. The sole question
before us is whether the court committed plain error in imposing the agreed‐upon
sentence. On the record before us, including the district court’s response to the limited
remand, we have no reason to believe that any such error occurred.
Significantly, Currie’s brief does not suggest that he wishes to withdraw his
guilty plea; indeed, when we posed that question at oral argument, counsel replied that
he could not say whether his client wishes to withdraw his plea. Cf. United States v.
Knox, 287 F.3d 667, 671 (7th Cir. 2002) (lawyer should not pursue arguments as to
adequacy of Rule 11 plea colloquy unless client wishes to withdraw his guilty plea). The
plea agreement and the guilty plea are intertwined; if Currie does not wish to withdraw
his guilty plea, then the point of further inquiry into the plea agreement eludes us.
Second, although there can be no doubt that the sentence imposed on Currie was
based on the parties’ Rule 11(c)(1)(C) plea agreement, see Freeman v. United States, 131 S.
Ct. 2685, 2695‐96 (2011) (Sotomayor, J., concurring in the judgment), Currie has given us
no reason to believe that the agreement itself may be invalid as the result of a mutual
mistake between the parties as to an essential term of the agreement. See, e.g., United
States v. Patterson, 576 F.3d 431, 438 (7th Cir. 2009) (noting that mutual mistake as to an
essential term of the plea agreement can invalidate the plea). Certainly it is true that the
agreement, like the plea colloquy, reflects a shared misunderstanding of the applicable
statutory minimum. R. 94 ¶ 1(a); R. 130 at 6. Had the agreement reserved to the district
No. 12‐1666 Page 4
judge the discretion to choose a sentence within the broad statutory range of possible
punishment, Currie might have a plausible argument that the statutory minimum
prison term reflected in the agreement was an essential term of that agreement. See
United States v. Barnes, 83 F.3d 934, 938 (7th Cir. 1996) (citing “the limits of the district
courtʹs sentencing authority” as an example of an essential term). But this plea
agreement called for a specific sentence at the low end of the range advised by the
Sentencing Guidelines (R. 94 ¶ 3), and the Guidelines that were used in arriving at
Currie’s sentence were the November 2011 Guidelines, which incorporated the changes
with respect to offenses involving crack cocaine called for by the Fair Sentencing Act of
2010 (see R. 130 at 9; R. 109 at 6). Whether the statutory minimum prison term was 60
months or 120 months did not affect the Guidelines range. And, as the district court
pointed out, once it accepted the plea agreement, it had no discretion to impose
anything but the agreed upon Guidelines sentence. In short, the agreement on its face
suggests that the essential term of the contract insofar as the sentence was concerned
was not the statutory minimum, but rather the agreed upon sentence and the
Guidelines calculations upon which that sentence was based. See Patterson, 576 F.3d at
438 (noting that in context of Rule 11(c)(1)(C) plea agreement, specified sentence is
essential term of the agreement) (citing Barnes, 83 F.3d at 938); cf. Freeman, 131 S. Ct. at
2697‐98 (Sotomayor, J., concurring in the judgment) (controlling opinion in 4‐1‐4
decision) (indicating that when a sentence agreed to in Rule 11(c)(1)(C) plea agreement
is expressly based on a Guidelines range that is later lowered, defendant is eligible for
sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2) because the sentence is
ultimately based on that range). There is no suggestion whatever that the parties were
mistaken as to what version of the Guidelines would apply, as to the relevant
Guidelines calculations, or as to what the low end of the relevant range would be.
Currie received exactly the sentence that he bargained for and expected.
In sum, on the record before us, Currie has not demonstrated that plain error
occurred or may have occurred either in the district court’s acceptance of the Rule
11(c)(1)(C) plea agreement or in the imposition of a sentence in accord with that
agreement. He has not indicated that he wishes to withdraw his plea, in exchange for
which he received substantial benefits, including the dismissal of several of the charges
and maximum credit for his acceptance of responsibility. The agreement called for a
specific Guidelines sentence, and so far as the record reveals, that sentence was based
on the parties’ accurate understanding of the Sentencing Guidelines rather than their
mistaken understanding of the statutory minimum term on the cocaine charge.
No. 12‐1666 Page 5
Being satisfied that no plain error occurred with respect to Currie’s sentence, we
now AFFIRM the sentence.