concurring:
Although the majority has reached the correct conclusion in affirming Judge Glas-ser, I write separately because I believe the judgment should be affirmed for different reasons.
The majority holds that a district court is under a mandatory obligation to apply Guideline Section 5G1.3(b) to Rule 11(e)(1)(C) sentence bargains that are mute about the proposed federal sentence’s interaction with an undischarged state sentence. I believe, however, that approach might one day encourage credit where credit is not due. The majority treats the Section 5G1.3(b) credit as a “sentence implementation” issue. I am left, however, with the apprehension that today’s decision will generate impermissible modifications of mutually bargained for agreements allowable under Rule 11(e)(1)(C).8
Hutchinson knowingly and voluntarily agreed to a “certain and significant, but much lighter, twenty-year prison term.” Ante at 163. He now seeks, however, to have that custodial term reduced by an 11-month credit for time previously served on his state sentence. If permitted to do so, Hutchinson would not serve the full 20 year sentence imposed by Judge Glasser, a term both he and the Government agreed he should serve when they struck their bargain.
I would affirm based on the simple proposition that we can and should hold Hutchinson to his word by applying Rule 11(e)(1)(C) as written and by recognizing Section 5G1.3(b) does not apply to this type of sentence bargain.
I. Rule 11(e)(1)(C)
The applicable version of Rule 11(e)(1)(C) allows the Government and a defendant in a plea agreement to “agree that a specific sentence is the appropriate disposition of the case.” Fed.R.Crim.P. 11(e)(1)(C). My reading of this Circuit’s precedent discloses the Guidelines are inapplicable to a Rule 11(e)(1)(C) plea agreement that proposes a specific, non-Guidelines sentence.
In United States v. Cunavelis, 969 F.2d 1419 (2d Cir.1992), the parties entered a Rule 11(e)(1)(C) plea in which the Government agreed to a four (4) level reduction from whatever Guidelines offense level the district judge found applicable. On appeal, Cunavelis argued the district court erred in holding it lacked discretion to reduce her Guidelines offense level by more than the agreed 4 levels. In response, this Court held:
*170The Guidelines emphatically state that “[t]he rules set forth in Fed.R.Crim.P. 11(e) govern the acceptance or rejection of [plea] agreements.” U.S.S-.G. Ch. 1, Pt. A., intro, comment 4(c) (Nov.1991). Accordingly, Rule 11 — not Guidelines section 5K1.1 — controls.
Id. at 1422 (emphasis added).
At least one subsequent case has read Cunavelis quite broadly. In United States v. Kaye, 65 F.3d 240 (2d Cir.1995), vacated on other grounds, 140 F.3d 86 (2d Cir.1998), Judge Winter observed in the text “The Guidelines are mandatory[,]” id. at 243, but qualified that statement:
Different considerations may apply where a plea agreement designates a specific sentence. Fed.R.Crim.P. 11(e)(1)(C) provides that the government may “agree that a specific sentence is the appropriate disposition of the case.” We have held that a court may “accépt or reject ... [but] may not modify” an agreement calling for a specific sentence, even if the sentence does not comport with the Guidelines.
Id. at 244 n. 3 (emphasis added)(citing Cunavelis).
In addition to the Kaye I interpretation, commentators have read Cunavelis in similar fashion. At least one places this Circuit on the side of a split of authority permitting Rule 11(e)(1)(C) sentence bargains to fall outside the Guidelines. John M. Dick, Allowing Sentence Bargains to Fall Outside of the Guidelines Without Valid Departures: It is Time for the Commission to Act, 48 Hastings L.J. 1017, 1046-47 (1997); see also 1A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 175.1 (3rd ed. 1999) (“The sentence agreed to may be more or less severe than would have been provided by the Sentencing Guidelines.”). Neither Cunavelis nor Kaye I are aberrations. Other courts have followed suit. See, e.g., United States v. Barnes, 83 F.3d 934, 941 (7th Cir.1996); United States v. Schaechter, 891 F.Supp. 247, 252 (D.Md.1995) (citing Cunavelis).
Furthermore, as the majority opinion correctly observes, Rule 11(e)(2) does not permit a judge to vary the terms of a sentence-bargain plea. The Rule states “If the agreement is of the type specified in subdivision (e)(1) ... (C), the court may accept or reject the agreement....” Id.; see also, e.g., United States v. Workman, 110 F.3d 915, 917 (2nd Cir.1997); Cunavelis, 969 F.2d at 1422. These cases acknowledge that a sentence strictly observing the parties’ Rule 11(e)(1)(C) bargain is binding unless the sentencing judge wholly rejects the sentence bargain and its accompanying plea.
Also, Rule 11(e)(3) provides in consistent fashion that if a plea is accepted the court must “inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.” Id. No mention is made of “sentence implementation” issues because the drafters expected the parties to address those issues in their agreement. Where not addressed, I have no difficulty with sentencing in accordance with the explicit terms of the agreement. Cf. United States v. Swigert, 18 F.3d 443, 445-46 (7th Cir.1994)(“Indeed, it appears that the parties never discussed the possibility of a split sentence when they executed the plea agreement. The government apparently believed that the, agreement did not contemplate such a sentence, and we believe that if Swigert had á different understanding, he was obligated to alert the government so that the parties could then expressly address in their Rule 11(e)(1)(C) agreement whether a split sentence would be permitted.”); United States v. Veri, 108 F.3d 1311, 1315 (10th Cir.1997) (“[A] defendant’s assumption that relief other than *171that specified in the agreement might be available is unreasonable[.]”).9
When Judge Glasser sentenced Randy Hutchinson, he did so in accordance with what both parties requested of him in the agreement.10 As the foregoing discussion makes clear, we are forbidden from even considering the supplementation or modification of that agreement for the unexpected benefit of one and the detriment of another.
II. Section 5G1.3(b)
I also write separately'to express another objection to the mandatory application of U.S.S.G. § 5G1.3(b) under these circumstances. The text of the Guideline, its commentary, and controlling case law appear to disqualify it from consideration. The Guideline provides:
(b) If subsection (a) does not apply, and the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.
Id. (emphasis added). The Commentary similarly suggests § 5G1.3(b) applies where there has been a “period of imprisonment already served as a result of the conduct taken into account in determining the guideline range for the instant offense[.]” Id. (emphasis added).
Consistent with the text of the Guideline and commentary, Judge Calabresi stated just months ago:
We therefore read the modifier “fully” to restrict § 5G1.3(b) to a particular sub-set of all those circumstances in which a separate offense is, in some way, considered in determining the Guidelines offense level.
United States v. Garcia-Hernandez, 237 F.3d 105, 109 (2nd Cir.2000)(emphasis added); see also United States v. Fermin, 252 F.3d 102, 108 (2nd Cir.2001)(“Because the robbery conviction has not been ‘fully taken into account’ in determining the offense level for the instant offense, subsection (b) is not relevant.”)(emphasis added); see also, e.g., Witte v. United States, 515 U.S. 389, 405, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995)(“If a defendant is serving an undischarged term of imprisonment ‘resulting] from offense(s) that have been fully taken into account [as relevant conduct] in the determination of the offense level for the instant offense,’ § 5G1.3(b) provides that ‘the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.’ ”) (alterations in original, emphasis added); Garcia-Hernandez, 237 F.3d at 108 (“In order to trigger the application of § 5G1.3(b), an offense other than the one *172for which a defendant is being sentenced ... must ... be taken into account ‘in the determination of the offense level for the instant offense [of conviction][.]’ ”) (emphasis added). Defendant conceded as much before Judge Glasser: “5G1.3 speaks exclusively in terms of as its trigger point, if you will, the calculation of the offense level.”
Consequently, Section 5G1.3(b) should not apply here for the simple reason that Judge Glasser was not required to, and in fact did not, “determin[e] ... [an] offense level for the instant offense.”11 U.S.S.G. § 5G1.3(b) (emphasis added). Despite what may have occurred at times intervening, both at the entry of the plea and in his comments in imposing sentence, Judge Glasser was crystal clear in his belief the Guidelines were irrelevant. During the plea colloquy, as noted supra:,
THE COURT: I would normally explain what the guidelines are all about and what the estimated guidelines in this case might be. That is superfluous because each of you has entered in an agreement with the government ... [in which the] sentence ... is agreed upon.
Mr. Hutchinson, did you understand that there is an agreed sentence—
DEFENDANT HUTCHINSON: — Yes—
THE COURT: Of [twenty] ... years?
DEFENDANT HUTCHINSON: Yes, with the government.
(Emphasis added). Near the end of the sentencing hearing months later, Judge Glasser reiterated consistently:
With respect to 5G1.3,1 have no doubt that the part[i]es agreed upon a sentence of twenty years, not a sentence of twenty years minus two, three, or whatever time it was that Mr. Hutchinson was doing with respect to the Utica offense. And I just don’t think a 5G1.3 has any application to that situation. .. .12
Also noteworthy is Judge Glasser’s failure to include any Statement of Reasons with his Judgment. That Statement is *173included in the standard form “Judgment in a Criminal Case” promulgated by the Administrative Office of the United States Courts, and includes a court’s findings as to the applicable Offense Level, Criminal History Category, and applicable Guideline ranges. No such findings appear in the Judgment in this case, because such findings were neither made nor required.
The inquiry is not, as the majority casts it, whether “the state offense was ... ‘fully taken into account’ in Hutchinson’s federal sentence[.]” Ante at 169 (emphasis added). Rather, as explicitly commanded by section 5G1.3(b) and precedent, it is whether “the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense.” U.S.S.G. § 5G1.3(b) (emphasis added). Because no offense level was determined in this case, I fail to see why section 5G1.3(b) is relevant, much less mandatory.
Based on the foregoing, I would affirm Judge Glasser’s enforcement of the parties’ sentence bargain and his conclusion that Section 5G1.3(b) was inapplicable to modify it.
. I am also concerned the holding might open unexpected doors for defendants directly, or collaterally, to attack global, oral plea agreements with a sentence bargain based on the failure to address all possible sentencing issues. Only time will tell how creative defense attorneys and jailhouse lawyers might seek to extend the majority's holding in unanticipated and unintended directions.
Parenthetically, I note the complex issues of this appeal could have been avoided entirely had the parties reduced their bargain to writing before presenting it to Judge Glasser. An additional hour to craft and execute a plea agreement would have been time well spent.
. The majority opinion suggests I have adopted a default rule. To the contrary, I would simply require, consistent with Rule 11, that we enforce the parties' bargain as made.
. Despite Hutchinson’s claims to the contrary at argument, he was advised adequately he would not receive separate credit for the time already served in state custody. As conceded by the majority, Judge Glasser explicitly advised Hutchinson at the plea hearing that the Guidelines, the very source of any potential credit, did not apply:
THE COURT: I would normally explain what the guidelines are all about and what the estimated guidelines in this case might be. That is superfluous because each of you has entered in an agreement with the government ... [in which the] sentence ... is agreed upon.
(Emphasis added). This admonition, in addition to the advice Hutchinson was subject to a sum-certain sentence of twenty years, represented a careful, plain and pointed declaration sufficient to dispatch Hutchinson's later-asserted lack of notice he would not receive credit under the Guidelines for time served on the state conviction.
. The majority suggests that "in setting Hutchinson’s offense level for the present offense, the district court in fact did not take Hutchinson’s prior offense into consideration.” Ante at 166. One searches the record in vain, however, for Judge Glasser’s explicit offense level finding. In fact, the record reveals a number of offense levels were discussed at different times. For example, the defense referenced offense level 43, the government referenced offense levels 47, 36, and 38 and the presentence report noted a base offense level of 43. No offense level was determined because, as Judge Glasser stated, "the sentence was an agreed upon sentence pursuant to 11(e)(1)(c). And the only issue which is left is for me to determine whether I’m accepting that agreement.” As Hutchinson himself aptly recognizes "[T]he sentencing court made no determination at all as to the guideline sentence that would apply in the absence of a twenty-year stipulated sentence.” (Emphasis added). The only basis even for speculation on that point is the calculation contained in the presentence report. The majority, however, concludes "the PSR calculation of Hutchinson's offense level was not the basis for his eventual twenty-year sentence^]” Id. at 168.
. During the parties' discussion of disputed matters in the presentence report affecting relevant conduct, Judge Glasser made this observation as well:
Now, there is no question about the sentence to be imposed, assuming that the Court accepts the 11(e)(1)(C) plea bargain which was entered into between Mr. Hutchinson and the government. These facts have no bearing on the sentence, because the sentence was an agreed upon sentence at the time of the plea. And what all that I’m hearing amounts to questions, the validity of the plea, not the sentence to be imposed. The facts have no bearing on the sentence to be imposed. That was an agreed *173upon sentence in accordance with 11(e)(1)(C).
And all of the questions which are being raised now with respect to whether Sonia Kelly or Arroyo or Buzzi or Muriel did or did not, have no bearing on the sentence to be imposed, because the sentence was an agreed upon sentence pursuant to 11(e)(1)(C). And the only issue which is left is for me to determine whether I'm accepting that agreement.
(Emphasis added).
In discussing whether the underlying conduct for the state sentence was "fully taken into account!)]” the majority suggests it was not because Judge Glasser stated at sentencing that he was " 'skipping' " the evidence. Ante at 168. Judge Glasser, however, was not skipping over the evidence because he deemed it unimportant. Rather, he simply chose not to rehash it because it was discussed extensively just moments before. Indeed, as defense counsel noted:
[The 30 grams of crack in the state case] is the only evidence that physically and specifically indicates drug activity on his part, so in some way it would be ironic for the Court to take the strongest piece of drug dealing in the government’s case and say he’s not being punished for it in this case.
(Emphasis added).