United States v. Goodall, Rodney

                  United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

       Argued December 1, 2000    Decided January 9, 2001 

                           No. 99-3112

                    United States of America, 
                             Appellee

                                v.

              Rodney Renard Goodall, a/k/a Goodoff, 
                          a/k/a Grease, 
                            Appellant

          Appeal from the United States District Court 
                  for the District of Columbia 
                        (No. 98cr00398-01)

     Michelle Peterson, Assistant Federal Public Defender, ar-
gued the cause for appellant.  With her on the briefs was A. 
J. Kramer, Federal Public Defender.

     Thomas S. Rees, Assistant United States Attorney, argued 
the cause for appellee.  With him on the brief were Wilma A. 

Lewis, United States Attorney, John R. Fisher and Thomas 
J. Tourish, Jr., Assistant United States Attorneys.

     Before:  Edwards, Chief Judge, Sentelle and Randolph, 
Circuit Judges.

       Opinion for the Court filed by Chief Judge Edwards.

     Concurring opinion filed by Circuit Judge Randolph.

     Edwards, Chief Judge:  The issue before the court on this 
appeal is whether a sentencing court has discretion to accept 
a Federal Rule of Criminal Procedure 11(e)(1)(C) plea agree-
ment with an agreed-upon sentence that falls outside of the 
otherwise applicable Sentencing Guidelines range.  Appellant 
Rodney Goodall entered into just such an agreement.  Facing 
an eight-count indictment on various drug charges, Goodall 
lodged a plea of guilty on one count of possession with intent 
to distribute heroin.  In his Rule 11(e)(1)(C) plea agreement, 
he and the Government agreed to a sentencing range of 57 to 
71 months.  The District Court sentenced Goodall to 70 
months.

     In fixing Goodall's sentence, the District Court relied on a 
Presentence Investigation Report ("PSR") in which the pro-
bation officer calculated an applicable Sentencing Guidelines 
range of 70 to 87 months.  Citing the policy statement found 
in s 6B1.2 of the United States Sentencing Guidelines Man-
ual, the trial judge assumed that he could not accept a 
sentence falling outside of the applicable 70-to-87-month 
range.  The judge also assumed that, pursuant to Rule 
11(e)(4), he could not sentence Goodall to more than 71 
months without allowing him the opportunity to withdraw his 
plea.  With both presumed constraints in mind, the judge 
limited his consideration to a 70-to-71-month range, ulti-
mately sentencing Goodall to what was perceived to be the 
lowest legally permissible sentence, i.e., 70 months.

     Goodall contends, and the Government agrees, that the 
District Court was without authority to modify the parties' 
plea agreement.  In other words, the parties assert that the 
trial judge had no authority to change the plea agreement's 
sentence range from 57-71 months to 70-71 months.  Goodall 

also contends, and the Government again agrees, that the 
District Court erred in assuming that s 6B1.2 constrained the 
court's authority to accept a Rule 11(e)(1)(C) plea agreement 
that embraced a sentence outside of the otherwise applicable 
Guidelines range.  We agree on both counts.

     Both the Introduction to the Guidelines itself and the brief 
introductory comments prefacing Chapter 6, Part B, state 
that policy statements, such as s 6B1.2, are non-binding 
"norms" to which courts may refer in deciding whether to 
accept or to reject plea agreements.  A District Court judge 
certainly remains free to rely on the applicable Guidelines 
range in determining whether to accept or reject a Rule 
11(e)(1)(C) plea agreement.  Section 6B1.2 does not compel 
this, however.  In this case, the trial judge assumed that he 
could not accept a plea agreement with a 57-to-71-month 
agreed-upon sentencing range, and, therefore, he also as-
sumed that he could not sentence Goodall to a term below 70 
months.  This was error.  We therefore vacate the District 
Court's judgment and remand for resentencing consistent 
with this opinion.

                          I. Background

     Though we deal here with purely legal issues on which both 
parties agree, we briefly set forth the facts to frame the 
underlying legal claims.  On November 17, 1998, a federal 
grand jury handed down an eight-count indictment, charging 
Goodall and four others with various counts of possession, 
intent to distribute, and conspiracy to distribute heroin and 
cocaine.  Six months later, Goodall negotiated and entered 
into a Rule 11(e)(1)(C) plea agreement in which he consented 
to plead guilty to count four of the indictment--unlawful 
possession with intent to distribute heroin.  The Government 
agreed to dismiss the remaining seven counts.  Critical for 
present purposes, paragraph three of the plea agreement 
provided:

     Your client and the Government agree that a sentencing 
     range of 57 to 71 months is the appropriate sentence for 
     the offense to which your client is pleading guilty.  The 
     
     Government also agrees, pursuant to Rule 11(e)(1)(C) of 
     the Federal Rules of Criminal Procedure, to present this 
     plea agreement between the parties to the Court for its 
     approval.
     
Letter from Wilma A. Lewis, United States Attorney, to John 
Beaman, Attorney for Defendant p 3 (May 12, 1999) (filed 
May 13, 1999), reprinted in Appellant's Appendix ("App.") at 
29.  In keeping with Rule 11(e)(4), paragraph three also 
explained that, if the judge refused to accept the plea agree-
ment as written, Goodall would have the opportunity to 
withdraw his plea.  Id.

     At the plea hearing, the prosecution informed the District 
Court of an additional concession--namely, that the Govern-
ment had agreed with defense counsel to recommend a sen-
tence at the bottom of the 57-to-71-month range.  Transcript 
of Plea Hearing at 7-8 (May 13, 1999), reprinted in App. tab 
A.  The presiding judge acknowledged the concession, asking 
Goodall, "you understand that both your lawyer and the 
government lawyer will agree that although the range of this 
plea agreement is from ... 57 to 71 months, they both agree 
that the right sentence is the bottom end of that range of 57 
months, right?"  Id. at 8.  The court added only, "if it's 59 
months or 61 months or 71 months, if that is what I decide, it 
will not make it possible for you to withdraw this guilty plea 
as long as it is within the 57 to 71 months."  Id.  The 
prosecution then made a factual proffer, to which Goodall 
agreed.  Id. at 12-14.

     Sentencing took place two months later on July 30, 1999.  
There, the District Court had the benefit of the PSR, in which 
the probation officer had, based on interviews with Goodall, 
calculated an applicable 70-to-87-month Guidelines range.  
At sentencing, defense counsel did not contest those calcula-
tions, arguing instead that the court had already accepted, 
and was therefore bound by, the 57-to-71-month range con-
tained in the Rule 11(e)(1)(C) agreement.  Transcript of 
Sentencing at 3 (July 30, 1999), reprinted in App. tab B.  The 
trial judge, however, apparently relying on s 6B1.2 of the 

Guidelines, expressed concern that he had no discretion to 
issue a sentence that was outside of the otherwise applicable 
Guidelines range:

     Well, that doesn't give me much discretion, does it?  The 
     agreed range is 57 to 71 months, the guideline range is 
     70 to 87 months.  The sentence I have to impose if I 
     accept the 11(e)(1)C [sic] plea is somewhere between 70 
     and 71 months.... I think the law makes it quite clear 
     that I can accept an 11(e)(1)C [sic] plea if it falls within 
     guidelines ranges and to the extent it falls within guide-
     lines ranges unless there is a justifiable reason for a 
     departure downward.  I have seen no application for a 
     downward departure, and I see no reason for a down-
     ward departure.
     
Id. at 3-4.

     The prosecutor, in turn, argued that "proof problems" were 
a "justifiable reason" for the court to accept a plea agreement 
with a lower sentence.  Id. at 4-6.  The court again disa-
greed:  "I read [s 6B1.2(c)(2)] and its use of the word 'depart' 
to be a--to invoke all the law about departures.... I don't 
see any of the standard reasons for departure if there's no 
Koon ground that has been proffered here."  Id. at 6-7.  
Applying the overlapping 70-to-71-month range, the District 
Court then sentenced Goodall to the lowest sentence it 
thought possible--70 months.  Id. at 14.  The court never 
gave Goodall a chance to withdraw his plea.

                           II. Analysis

     Federal Rule of Criminal Procedure 11(e) outlines federal 
plea agreement procedures.  At the time of sentencing in this 
case, the Rule contemplated three different types of plea 
agreements:  (A) those in which the Government "move[s] for 
dismissal of other charges";  (B) those in which the Govern-
ment "make[s] a recommendation, or agree[s] not to oppose 
the defendant's request, for a particular sentence, with the 
understanding that such recommendation or request shall not 
be binding upon the court";  and (C) those in which the 
Government "agree[s] that a specific sentence is the appropri-
ate disposition of the case."  Fed. R. Crim. P. 11(e)(1)(A)-(C) 

(1999).  Goodall and the prosecution entered into the third 
type of plea arrangement.

     Once a sentencing court rejects a Rule 11(e)(1)(C) plea 
agreement, it must "on the record, inform the parties of this 
fact, advise the defendant ... that the court is not bound by 
the plea agreement [and] afford the defendant the opportuni-
ty to then withdraw the plea."  Fed. R. Crim. P. 11(e)(4) 
(1999);  see also United States v. Hyde, 520 U.S. 670, 676 
(1997) ("This provision implements the commonsense notion 
that a defendant can no longer be bound by an agreement 
that the court has refused to sanction.").  If, however, the 
court accepts the agreement, it is binding on the court at 
sentencing, and failure to abide by the terms of that agree-
ment constitutes reversible error.  See United States v. Gin-
yard, 215 F.3d 83, 87 (D.C. Cir. 2000) (per curiam);  see also 
United States v. Cunavelis, 969 F.2d 1419, 1422 (2d Cir. 1992) 
("The district court may accept or reject an (A) or (C) plea, 
but it may not modify it.").

     In the present case, Goodall's bargain with the Government 
required the District Court to consider a sentence somewhere 
between 57 and 71 months, with a recommendation from the 
Government that it fall at the lower end of that range.  
Goodall accepted the possibility that the District Court might 
sentence him to 70 months.  What he did not accept, howev-
er, was a sentencing at which the court considered only the 
limited 70-to-71-month range, thereby foreclosing both the 
Government's recommendation and the distinct possibility of 
a sentence near the bottom of that range.  By eliminating the 
lower bulk of the range before considering the appropriate 
sentence, the District Court modified Goodall's bargain and 
impermissibly foisted an unanticipated, and clearly less favor-
able, term on appellant.  See United States v. Mandell, 905 
F.2d 970, 972-73 (6th Cir. 1990) (remanding for resentencing, 
despite the fact that "the actual sentence fell within the 
permissible range stated in the plea agreement, [because] it 
was not arrived at by the method agreed upon").

     Remand for resentencing in the present case begs the 
larger question:  Can the District Court, consistent with both 

Rule 11 and the Sentencing Guidelines, accept a Rule 
11(e)(1)(C) plea agreement with an agreed-upon sentence that 
falls outside of the applicable Guidelines range?  Neither 
Rule 11(e), nor the Federal Rules of Criminal Procedure in 
general, sets forth criteria to guide a sentencing judge's 
decision to accept or to reject a plea agreement.  Sentencing 
Guidelines policy statement s 6B1.2, however, provides that, 
"[i]n the case of a plea agreement that includes a specific 
sentence [Rule 11(e)(1)(C)], the court may accept the agree-
ment if the court is satisfied either that:  (1) the agreed 
sentence is within the applicable guideline range;  or (2) the 
agreed sentence departs from the applicable guideline range 
for justifiable reasons."  U.S. Sentencing Guidelines Manual 
s 6B1.2(c) (1998) [hereinafter U.S.S.G.].  The commentary to 
s 6B1.2 says that "the court should accept ... a plea agree-
ment requiring imposition of a specific sentence only if the 
court is satisfied either that such sentence is an appropriate 
sentence within the applicable guideline range or, if not, that 
the sentence departs from the applicable guideline range for 
justifiable reasons (i.e., that such departure is authorized by 
18 U.S.C. s 3553(b))." U.S.S.G. s 6B1.2 cmt.  The District 
Court obviously thought that s 6B1.2 constrained its accep-
tance and/or application of Goodall's plea agreement.  We 
respectfully disagree.

     The District Court is not alone in its reading of s 6B1.2(c).  
By our count, two of our sister circuits have assumed, without 
much analysis, that s 6B1.2 limits a sentencing court's discre-
tion under Rule 11(e) to accept or to reject a plea agreement.  
E.g., United States v. Carrozza, 4 F.3d 70, 87 (1st Cir. 1993);  
Fields v. United States, 963 F.2d 105, 108 (6th Cir. 1992) ("A 
sentencing judge could no longer be forced to abide by an 
agreed to sentence where that sentence did not conform to 
the Guidelines, as that would eviscerate their purpose.").  
The remainder of the circuits to consider the question, howev-
er, have held that s 6B1.2 does not trump Rule 11(e)'s 
otherwise permissive language.  E.g., United States v. 
Barnes, 83 F.3d 934, 941 (7th Cir. 1996) ("Plea agreements 
can retain their authority to bind the government, the defen-
dant and the district court even when they provide for 

sentences that depart from the prescriptions of the guide-
lines.");  United States v. Mukai, 26 F.3d 953, 956-57 (9th 
Cir. 1994);  Cunavelis, 969 F.2d at 1422;  see also John M. 
Dick, Note, Allowing Sentencing Bargains to Fall Outside of 
the Guidelines without Valid Departures, 48 Hastings L.J. 
1017, 1046-50 (1997) (discussing the inter-circuit disagree-
ment).

     Though both s 6B1.2 and its commentary speak in manda-
tory terms, we do not interpret those provisions in a vacuum.  
Both the Introduction to the Sentencing Guidelines itself and 
the introductory commentary to Chapter 6, Part B state that 
Chapter 6 policy statements dealing with acceptance or rejec-
tion of plea agreements should not interfere with the Com-
mission's ongoing study of courts' plea agreement practices 
pursuant to Rule 11(e):

     The Commission decided not to make major changes in 
     plea agreement practices in the initial guidelines, but 
     rather to provide guidance by issuing general policy 
     statements concerning the acceptance of plea agreements 
     in Chapter Six, Part B (Plea Agreements).  The rules set 
     forth in Fed. R. Crim. P. 11(e) govern the acceptance or 
     rejection of such agreements. The Commission will col-
     lect data on the courts' plea practices and will analyze 
     this information to determine when and why the courts 
     accept or reject plea agreements and whether plea 
     agreement practices are undermining the intent of the 
     Sentencing Reform Act.  In light of this information and 
     analysis, the Commission will seek to further regulate 
     the plea agreement process as appropriate.... [T]he 
     guidelines create a norm to which courts will likely refer 
     when they decide whether, under Rule 11(e), to accept or 
     to reject a plea agreement or recommendation.
     
U.S.S.G. ch. 1, pt. A4(c);  see also id. ch. 6, pt. B, introductory 
cmt.  ("[T]he Commission shall study plea agreement practice 
under the guidelines and ultimately develop standards for 
judges to use in determining whether to accept plea agree-
ments.  Because of the difficulty in anticipating problems in 
this area, and because the sentencing guidelines are them-

selves to some degree experimental, substantive restrictions 
on judicial discretion would be premature at this stage of the 
Commission's work.").  In light of this commentary, it is clear 
that the Commission promulgated the policy statement in 
s 6B1.2 to guide, not to constrain, courts in deciding whether 
to accept or to reject a plea agreement.  Were we to find 
otherwise, there would be no plea practice for the Commis-
sion to study nor any data to inform future promulgation of 
binding guidelines.  The Commission did not intend s 6B1.2 
to bind courts.

     Our conclusion that s 6B1.2(c) does not constrain a court's 
otherwise broad discretion to accept or to reject a plea 
agreement is fortified by the 1999 amendments to Rule 11(e).  
Under the current version of Rule 11(e)(1)(C), the prosecution 
and defendant can agree that

     a specific sentence or sentencing range is the appropriate 
     disposition of the case, or that a particular provision of 
     the Sentencing Guidelines, or policy statement or sen-
     tencing factor is or is not applicable to the case.  Such a 
     plea agreement is binding on the court once it is accepted 
     by the court.
     
Fed. R. Crim. P. 11(e)(1)(C) (2000).  Thus, as now written, the 
Rule plainly countenances agreed-upon sentences falling out-
side of the otherwise applicable Guidelines range.  And the 
Advisory Committee note makes clear that the 1999 amend-
ments were meant only to clarify, not to substantively alter, 
Rule 11(e)(1)'s previous incarnation:  "As is the situation 
under the current Rule, the court retains absolute discretion 
whether to accept a plea agreement."  Fed. R. Crim. P. 11 
advisory committee's note (emphasis added).

     Under our holding today, the District Court remains free to 
consider the applicable Sentencing Guidelines range--both in 
deciding on whether to accept an agreed-upon sentence and 
in deciding on an appropriate sentence within an accepted 
range.  It is simply not compelled to do so.

     The concurring opinion suggests that 18 U.S.C. s 3553(b) 
appears to mandate a Guidelines sentence unless there is a 

justifiable basis for a departure under the Guidelines.  This 
attributes too much to s 3553(b), we think.  The statute 
merely says that the court must impose a sentence of the 
kind and within the range referred to in the Guidelines.  
Therefore, we must determine in any given situation what the 
Guidelines say in order to know whether a sentence is of the 
kind and within the range permitted.  In other words, 
s 3553(b), without more, tells us very little.  When we turn to 
the Guidelines, we find some very strong evidence as to how 
this situation should be handled.  Indeed, the Introduction to 
the Sentencing Guidelines anticipates the precise issue that 
we now face:

     The Commission decided not to make major changes in 
     plea agreement practices in the initial guidelines, but 
     rather to provide guidance by issuing general policy 
     statements concerning the acceptance of plea agreements 
     in Chapter Six, Part B (Plea Agreements).  The rules set 
     forth in Fed. R. Crim. P. 11(e) govern the acceptance or 
     rejection of such agreements.... [T]he guidelines create 
     a norm to which courts will likely refer when they decide 
     whether, under Rule 11(e), to accept or to reject a plea 
     agreement or recommendation.
     
U.S.S.G. ch. 1, pt. A4(c).  This is not mere commentary 
overriding a policy statement;  this is an introduction to the 
policy statement that explains what it means.  And, as we 
observe above, it is clear from what the Commission says that 
the policy statement in s 6B1.2 was promulgated to guide, 
not to constrain, courts in deciding whether to accept or to 
reject a plea agreement.  This conclusion is perfectly consis-
tent with the result reached in United States v. Hooker, 993 
F.2d 898, 900 (D.C. Cir. 1993), where we held that similar 
prefatory language rendered certain Chapter 7 policy state-
ments "merely advisory".

     Having found that the District Court improperly believed 
itself bound to the 70-to-87-month range, we must decide the 
appropriate remedy.  Unfortunately, it is not clear from the 
record whether the District Court, by applying the 70-to-71-
month range, implicitly rejected the plea agreement without 

giving Goodall an opportunity to withdraw his plea, or wheth-
er, as seems more likely, the District Court accepted and then 
impermissibly modified the agreed-upon range.  If, as we 
suspect, the District Court meant to accept the plea bargain, 
but then modified the agreement in light of the PSR, it should 
proceed immediately with resentencing, considering the whole 
of the the 57-to-71-month range.  If, however, the District 
Court intended to reject the plea agreement, then Goodall 
must be allowed to withdraw his plea.

     For the foregoing reasons, we vacate the judgment and 
remand to the District Court for resentencing consistent with 
this opinion.

                                                                 So ordered.

     Randolph, Circuit Judge, concurring:  This case is an 
oddity.  When district judges accept plea agreements specify-
ing a particular sentence below the Guidelines range, we 
almost never review the cases on appeal--for two reasons.  
One, the government and the defendant can be expected to be 
happy with the disposition and to have no reason to appeal.  
Two, neither the government nor the defendant may, in 
general, appeal a sentence that falls within the bargained-for 
range.1  See 18 U.S.C. s 3742(c).  Only the district court's 
mistake in modifying and accepting Goodall's plea agreement 
brings the question to our attention--the question, that is, 
whether a district judge may accept a Rule 11(e)(1)(C) plea 
agreement specifying a sentence below the range set forth in 
the Sentencing Guidelines.

     This question cannot be answered without considering the 
Sentencing Reform Act, and specifically 18 U.S.C. s 3553(b).  
Because I believe that this provision requires more attention 
than the majority opinion gives it, I write separately.

     The Sentencing Guidelines, as issued by the United States 
Sentencing Commission, are binding on the federal courts.  
See 18 U.S.C. s 3551(a);  Stinson v. United States, 508 U.S. 
36, 42 (1993);  Mistretta v. United States, 488 U.S. 361, 391 
(1989).  The Supreme Court so held on the basis of 18 U.S.C. 
s 3553(b), which reads as follows:

     The court shall impose a sentence of the kind, and 
     within the range, referred to in subsection (a)(4) ["the 
     guidelines issued by the Sentencing Commission"] unless 
     the court finds that there exists an aggravating or miti-
     
__________
     1 Defendants have four statutory grounds to appeal a sentence.  
See 18 U.S.C. s 3742(a).  Two of those grounds are foreclosed to 
defendants like Goodall who enter into plea agreements under Rule 
11(e)(1)(C) and receive a sentence within the bargained-for range.  
See 18 U.S.C. s 3742(c)(1).  Under 18 U.S.C. s 3742(a)(1), Goodall 
is still permitted to appeal a sentence "imposed in violation of law."  
I agree with the majority that Goodall's sentence was illegal be-
cause the district judge accepted the plea agreement and then 
modified it.  The judge's only choice was to accept or reject the 
bargain outright.  See United States v. Ginyard, 215 F.3d 83, 87 
(D.C. Cir. 2000);  United States v. Veri, 108 F.3d 1311, 1314-15 
(10th Cir. 1997).

     gating circumstance of a kind, or to a degree, not ade-
     quately taken into consideration by the Sentencing Com-
     mission in formulating the guidelines that should result 
     in a sentence different from that described.
     
18 U.S.C. s 3553(b) (emphasis added);  see also Stinson, 508 
U.S. at 42.  On the face of it, s 3553(b) precludes a district 
judge from imposing a sentence outside the Guidelines.  Sec-
tion 3553(b) does not instruct district courts merely to consult 
the Guidelines for guidance on guilty pleas.  If it did, I could 
go along with the majority opinion's exploration of ambigui-
ties in the Guidelines.  But the statute directs the district 
courts to sentence "within the range" for the "applicable 
category of offense" and the "applicable category of defen-
dant."  18 U.S.C. s 3553(a)(4) & (b).  This language requires 
district courts to hand down the sentence specified for the 
defendant's criminal history and the offense to which he pled 
guilty, regardless of Guidelines commentary on guilty pleas.

     Section 3553(b)'s "shall-unless" logical structure specifies 
the sole occasion on which a district court may depart from 
the Guidelines--failure of the Commission to consider ade-
quately an aggravating or mitigating circumstance.  See, e.g., 
United States v. Adonis, 891 F.2d 300, 303 (D.C. Cir. 1989).  
One might suppose that Goodall's guilty plea constituted just 
such a mitigating circumstance.  But we rejected that argu-
ment in United States v. Dukes, 936 F.2d 1281 (D.C. Cir. 
1991), a case, like this one, presenting the question whether a 
guilty plea is a circumstance the Commission adequately took 
into account.  We held that a "guilty plea, whether entered 
pursuant to an agreement or not, does not qualify under 18 
U.S.C. s 3553(b).  It is a circumstance the Sentencing Com-
mission did take into account," for instance in the reduction 
for acceptance of responsibility.  See 936 F.2d at 1282.

     The Sentencing Commission's policy statement governing 
plea agreements restates s 3553(b):  "In the case of a plea 
agreement that includes a specific sentence [Rule 11(e)(1)(C)], 
the court may accept the agreement if the court is satisfied 
either that:  (1) the agreed sentence is within the applicable 
guideline range [the 'shall' component of s 3553(b)];  or (2) 

the agreed sentence departs from the applicable guideline 
range for justifiable reasons [the 'unless' component of 
s 3553(b)]."  USSG s 6B1.2(c), p.s. (Nov. 2000).  Commen-
tary interpreting this policy statement makes clear that justi-
fiable reasons are only those "authorized by 18 U.S.C. 
s 3553(b)." USSG s 6B1.2 cmt.

     Thus, 18 U.S.C. s 3553(b) and policy statement 6B1.2(c) 
forbid district judges to accept plea agreements specifying 
sentences below the Guidelines range.  The Commission ex-
plained:  "A defendant who enters a plea of guilty in a timely 
manner will enhance the likelihood of his receiving a reduc-
tion in offense level under s 3E1.1 (Acceptance of Responsi-
bility).  Further reduction in offense level (or sentence) due 
to a plea agreement will tend to undermine the sentencing 
guidelines."  USSG s 6B1.2 cmt. (emphasis added).

     The majority opinion relies on introductory commentary
relating to "the Commission's ongoing study of courts' plea
agreement practices."  Maj. Op. at 8.  But Guidelines com-
mentary can never justify ignoring the federal sentencing
statute.  Absent some contrary--and superior--authority,
s 3553(b) requires the district courts to sentence plea defen-
dants under the Guidelines.  Cf. Stinson, 508 U.S. at 43, 45.

     If Guidelines commentary cannot supersede s 3553(b),
what of  Fed. R. Crim. P. 11(e)(1)(C)?  This portion of Rule 11
permits the government and defendant to 34agree that a 
specific sentence or sentencing range is the appropriate dis-
position of the case, or that a particular provision of the
Sentencing Guidelines, or policy statement or sentencing
factor is or is not applicable to the case.34  Since the Rule
permits the parties to agree that particular Guidelines provi-
sions and factors are inapplicable, the parties can decide that
a Guidelines sentencing range will not apply.  On its face,
then, Rule 11(e)(1)(C) conflicts with s 3553(b): the Rule
allows the sort of below-the-guidelines bargain Goodall ob-
tained here.2 Cf. United States v. Barnes, 83 F.3d 934, 941

__________
     2 It is possible to read Rule 11(e)(1)(C) more narrowly so that the 
references to a specific guidelines range and the like merely entitle 
a defendant to embody in the plea agreement certain fundamental 











(7th Cir. 1996); United States v. Gilchrist, 130 F.3d 1131,
1134 (3d Cir. 1997); United States v. Aguilar, 884 F. Supp. 
88, 91-92 (E.D.N.Y. 1995).

     Given the conflict, we must turn to the 34supersession
clause34 in 28 U.S.C.A. s 2072(b): 34all laws in conflict with such
rules shall be of no further force or effect.  The 
portion of Rule 11(e)(1)(C) dealing with the Guidelines was
added in 1999.  Congress last amended s 3553(b) in 1998.
Under the supersession clause, the 1999 amendment to Rule 
11(e)(1)(C) takes precedence.

     Goodall entered his plea agreement in May 1999 and was
sentenced the following July.  The amendment to Rule 
11(e)(1)(C) permitting his below-the-Guidelines bargain did
not take effect until December 1, 1999.  On remand, the
district court should consider whether to accept or reject
Goodall's plea in accordance with the present version of the 
rule.

__________
assumptions, thereby creating in him the power to withdraw from 
the plea if the district court does not employ those assumptions in 
sentencing.  But I believe that such a reading would be incorrect.  
Before its amendment in 1999, the rule already permitted the 
defendant to embody assumptions in the agreement that will bind 
the district court.  See Fed. R. Crim. P. 11(e)(3) ("If the court 
accepts the plea agreement, the court shall inform the defendant 
that it will embody in the judgment and sentence the disposition 
provided for in the plea agreement.");  11(e)(4) ("If the court rejects 
the plea agreement, the court shall ... afford the defendant the 
opportunity to then withdraw the plea....").