United States v. Ginyard, Harry A.

KAREN LeCRAFT HENDERSON, Circuit Judge,

concurring in part:

While I agree that the district court did not plainly err in imposing supervised release, I do not believe that the error was invited. See In re Sealed Case, 108 F.3d 372, 374 (D.C.Cir.1997) (“Appellant may have acquiesced in what he now claims is error, but he did not invite it.”) (citing United States v. Harrison, 103 F.3d 986, 992 (D.C.Cir.1997)). After the district court rejected the plea agreement, Gin-yard did seek its input in the plea discussions. In response, the district court reluctantly, but nevertheless erroneously,1 declared that it “could in good conscience live with a [sentence] of twenty-four months.” Sentencing Tr. 8/3/99 at 35. This error (which was invited), however, did not extend to the district court’s separate imposition of supervised release after Ginyard agreed to the 24-month term of imprisonment. See id. at 36. Once the district court imposed supervised release, Ginyard did not object but, again, his conduct more resembled acquiescence than invitation.

Whether the district court erred at all depends, in my opinion, not on the ambiguous nature of the district court’s acceptance of the plea agreement as my colleagues believe, see Per Curiam Op. 6-7, but on the wording of Rule 11(e)(1)(C). While I agree that our holding is “the same under either version,” id. at 6 n. 2, that is so only because our review is for plain error. But I do not agree that the amended version has not effected a change *89that could, depending on the language of the plea agreement, change the results on appeal.

Under the unamended version of Rule 11(e)(1)(C) the government may agree “that a specific sentence is the appropriate disposition of the case.” This is the version under which Ginyard was sentenced and, as we have recognized, see United States v. Jamison, 934 F.2d 371, 373-74 (D.C.Cir.1991), because supervised release is part of the sentence, the district court’s acceptance of Ginyard’s plea agreement (as amended) bound the court to its terms. See United States v. Blackwell, 694 F.2d 1325 (D.C.Cir.1982). I therefore agree with my colleagues that, “assuming the district'court erred ..., it did not plainly err,” Per Curiam Op. 8, and I therefore join in affirming the district court.

But Rule 11(e)(1)(C) now allows the parties to agree instead that a “particular provision of the Sentencing Guidelines ... is or is not applicable to the case.”2 With respect to this language, the advisory committee notes state, “the government and defense ... actually agree[ ] on what amounts to an appropriate sentence or ... agree[] to one of the specified components.” Fed.R.Crim.P. 11(e) advisory committee’s note (1999) (emphasis added). If the plea agreement fails to address a specific provision of the Guidelines, particularly a mandatory one, the district court’s acceptance of a Rule 11(e)(1)(C) plea agreement would not, in my view, prohibit it from imposing the unaddressed “component” of the sentence.

The Guidelines require a district court to “order a term of supervised release to follow imprisonment when a sentence of imprisonment of more than one year is imposed.” U.S.S.G. § 5D1.1. The district court may depart from the mandate of section 5D1.1 only if, inter alia, supervised release is not required “to protect the public welfare.” Id., Application Note l.3 Here the district court made no finding that supervised release was not necessary to protect the public welfare. Cf. United States v. Atkins, 116 F.3d 1566, 1572 n. 8 (D.C.Cir.1997) (“[A] departure from the applicable Guidelines range must be supported by ‘specific reasons explaining the extent of [the] departure.’ ”) (quoting United States v. Perkins, 963 F.2d 1523, 1528 (D.C.Cir.1992)) (citation omitted) (emphasis added).4 On the contrary, the fact that the court restricted Ginyard’s computer use and contact with his victims during supervised release manifests that it thought supervised release was necessary. With no reason not to, the district court would have been required to impose supervised release. Therefore, had Ginyard been sentenced under Rule 11(e)(1)(C) as amended, I believe that the district court’s imposition of supervised release after imprisonment would not have been error.5

. See Fed.R.Crim.P. 11(e)(1)(C) ("The court shall not participate in any discussions between the parties concerning any such plea agreement.”).

.Rule 11(e)(1)(C) as amended also allows the government to "agree that a specific ... sentencing range is the appropriate disposition of the case” (amended language emphasized). "Range” refers, in my opinion, only to the term of imprisonment. See U.S.S.G. § lBl.l(g) (Application Instruction to "determine the guideline range ... that corresponds to the offense level and criminal history category”) & (h) (Application Instruction to determine "[f|or the particular guideline range, ... the sentencing requirements and options related to ... supervision conditions”); U.S.S.G. § 5A, Application Note 1 ("The intersection of the Offense Level and Criminal history Category displays the Guideline Range in months of imprisonment.") (emphases added). A supervised release departure, however, is governed by section 5D1.1, Application Note 1.

. Application Note 1 includes four other bases on which to decline to impose supervised release, none of which is applicable here.

. The Atkins and Perkins holdings involved departures from the Guidelines "range,” that is, the applicable imprisonment period. See supra n. 2.

. Interestingly, Ginyard did not challenge the district court's failure to advise him of the mandatory supervised release term before ac*90cepting his plea. According to the record, the court failed to mention both supervised release and the mandatory $100 assessment per felony conviction before the court's conditional acceptance at the May 12 plea hearing. See Fed.R.Crim.P. 11(c)(1) ("Before accepting a plea ..., the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands ... that the court is required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances.”); see also United States v. Watley, 987 F.2d 841, 847 n. 6 (D.C.Cir.1993) ("The government concedes that the district court entirely overlooked one Rule 11(c) specification [before accepting guilty plea]; that the court did not inform Watley of the supervised release term he might receive.”). Had the two conditions been set out in the plea agreement, see Per Curiam Op. at 7 n.4, the court a might well have recited them to Ginyard before conditionally accepting his guilty plea.