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....").