IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
No. 01-50909
_______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRANDON KERESZTURY,
Defendant-Appellant.
_________________________________________________
Appeal from the United States District Court
for the Western District of Texas —— Austin Division
_________________________________________________
June 5, 2002
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
WIENER, Circuit Judge.
Defendant-Appellant Brandon Keresztury appeals his 70-month
prison sentence for violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A), which together criminalize possession, with intent to
distribute, of 10 grams or more of a mixture or substance
containing a detectable amount of lysergic acid diethylamide (LSD).
We conclude that Keresztury is entitled to bring this appeal and,
further, that the sentencing court erred when, in determining
Keresztury’s base offense level under the United States Sentencing
Guidelines (“U.S.S.G.” or “Guidelines”), it used the weight of the
entire liquid medium with which the LSD was mixed. We vacate the
70-month prison sentence, and remand the case for resentencing.
I. Facts and Proceedings
In February 2001, an undercover officer with the Texas
Department of Public Safety (“DPS”) accompanied an informant to
Austin, Texas, where the informant phoned Keresztury and asked to
buy some LSD. When Keresztury obtained the LSD from his source,
the undercover officer went to Keresztury’s apartment and bought
the LSD for $2,000. The substance that Keresztury sold was a
mixture of liquid LSD and vodka in a single bottle. Together, the
LSD and the vodka weighed 18.53 grams.
Keresztury was charged in an Information with violation of 21
U.S.C. §§ 841(a)(1)1 and 841(b)(1)(A).2 He entered into a plea
1
Section 841(a)(1) provides, in relevant part:
(a) Unlawful acts. Except as authorized by this title, it
shall be unlawful for any person knowingly or intentionally
——
...
(2) to create, distribute, or dispense, or possess with
intent to distribute or dispense, a counterfeit
substance.
21 U.S.C. § 841(a).
2
Section 841(b)(1)(A) provides, in relevant part:
(b) Penalties. Except as provided in section 409, 418, 419,
or 420, any person who violates subsection (a) of this
section shall be sentenced as follows:
(1)(A) In the case of a violation of subsection (a) of
this section involving ——
...
(v) 10 grams or more of a mixture or substance
containing a detectable amount of [LSD]
such person shall be sentenced to a term of
imprisonment which may not be less than 10 years or
2
agreement with the government which contained the following
relevant provisions:
1. The defendant has agreed to enter a plea of guilty to
an Information which charges him with Possession with
intent to distribute a controlled substance, to-wit: 10
grams or more of a mixture or substance containing a
detectable amount of [LSD], in violation of Title 21,
United States Code, Sections 841(a)(1) and 841(b)(1)(A).
The defendant understands that due to the quantity of
LSD, he faces a sentencing range of imprisonment which
may not be less than 10 years or more than life ....
...
3. The United States Attorney for the Western District
of Texas has made no agreement with the defendant or his
counsel concerning a specific sentence. The United
States has agreed, however, not to contest acceptance of
responsibility for this defendant as long as he continues
to truthfully acknowledge his guilt of this offense. The
United States of America specifically reserves its right
to speak at sentencing under Rule 32(a)(1) of the Federal
Rules of Criminal Procedure.
4. DEFENDANT’S TRUTHFUL STATEMENT AND COOPERATION. The
defendant agrees to cooperate fully and truthfully with
the government as follows:
...
k. Defendant agrees that if the defendant fails to
provide full and truthful cooperation, or has
committed any federal, state or local crime between
the date of this agreement and his sentencing, or
has otherwise violated any other provision of this
agreement, the agreement may be voided by the
government and the defendant shall be subject to
prosecution for any federal crime which the
government has knowledge [sic] including, but not
limited to, perjury, obstruction of justice, and
the substantive offenses arising from this
investigation....
...
6. WAIVER OF APPEAL: Defendant is aware that his
sentence will be imposed in conformity with the Federal
more than life....
21 U.S.C. § 841(b)(1)(A).
3
Sentencing Guidelines and Policy Statements. The
defendant is also aware that a sentence imposed under the
Guidelines does not provide for parole. Knowing these
facts, defendant agrees that this Court has jurisdiction
and authority to impose any sentence within the statutory
maximum set for his offense, including a sentence
determined by reference to the Guidelines, and he
expressly waives the right to appeal his sentence on any
ground, including any right to appeal conferred by 18
U.S.C. § 3472. However, should the court depart upwards
from its guideline calculation, then in that event, the
Defendant could appeal the justification for and
imposition of such an upward departure, but no other
issue as relates to the Sentencing Guidelines.
(Emphasis added.)
When Keresztury appeared before the magistrate judge to be re-
arraigned and plead guilty, the magistrate judge reviewed the plea
agreement with Keresztury, particularly the waiver of appeal:
THE COURT: Let me cover one aspect of that plea agreement
that I’m required to cover by rule, and that is the
waiver of your rights to appeal. By this agreement you
have given up your right to appeal the conviction that
will fall from your guilty plea or the sentence that will
fall except in some very narrow circumstances;
specifically, if the district court were to sentence you
above the sentencing guideline range for this offense,
then you have got a right to appeal. You preserved that
right by your agreement. That sort of sentence ——
second, if your lawyer was ineffective in assisting you
or the government’s lawyer engaged in misconduct to a
constitutional degree, that is that conduct would have to
materially affect you in a negative way in this case,
then you have retained your right to appeal that issue
and raise that issue on appeal or to attack your
conviction or sentence because of that. But other than
those circumstances that I have just described, you have
given up any other rights to appeal. Do you understand
that?
THE DEFENDANT: Yes, Your Honor.
(Emphasis added.)
The magistrate judge also reviewed with Keresztury the statutory
minimum and maximum prison sentence (10 years to life) for the
4
offense, under 21 U.S.C. 841(b)(1)(A).
In his Presentence Investigation Report (PSI), the probation
officer applied U.S.S.G. § 2D1.1 to determine that Keresztury’s
base offense level was 32.3 As Keresztury met all the criteria set
forth in U.S.S.G. § 5C1.2(a), however, the statutory minimum of 10
years’ imprisonment did not apply,4 and the PSI recommended
reduction of Keresztury’s offense level by two, to offense level
30. In addition, Keresztury was determined to have zero criminal
history points, which established a criminal history category of I
under the Guidelines. Based on the total offense level of 30 and
the criminal history category of I, the U.S.S.G. range of
imprisonment periods was 97-121 months.5
Keresztury filed objections to the PSI, contending that the
probation officer used the wrong weight of LSD to calculate his
base offense level, and that he warranted a further offense level
decrease for acceptance of responsibility. The United States
3
U.S.S.G. § 2D1.1(c)(4) [Drug Quantity Table] establishes
that for offenses involving “[a]t least 10 G but less than 30 G
of LSD,” the base offense level is 32.
4
U.S.S.G. § 5C1.2, entitled “Limitation on Applicability of
Statutory Minimum Sentences in Certain Cases,” provides that,
[e]xcept as provided in subsection (b), in the case of
an offense under 21 U.S.C. § 841..., the court shall
impose a sentence in accordance with the applicable
guidelines without regard to any statutory minimum
sentence, if the court finds that the defendant meets
the criteria in 18 U.S.C. § 3553(f)(1)-(5) set forth
verbatim below....
(Emphasis added.)
5
See U.S.S.G. Sentencing Table.
5
probation officer defended his calculation of the base offense
level, relying on U.S.S.G. § 2D1.1 Application Note 1,6 and argued
against a reduction for acceptance of responsibility, noting that
Keresztury had tested positive for marijuana use on multiple
occasions while out on bond and finally had his bond revoked when
he tested positive for cocaine use. The government also responded
to Keresztury’s objection relating to an adjustment for acceptance
of responsibility by stating:
The United States agrees [with the recommendation of the
probation officer] that the defendant should pay some
price for his continued drug usage which clearly violated
his bond conditions for a very serious offense. His
continued criminal conduct not only violated his promises
to the Court, but also the assurances he provided in the
plea agreement that he would commit no crimes between the
date of the agreement and the date of his sentencing.
Obviously, in order to use controlled substances, Mr.
Keresztury had to possess them, which is a violation of
both state and federal law. To give him the same points
off as other defendants who were completely clean while
they were on bond does not seem fair or just.
(Emphasis added.)
6
See U.S.S.G.§ 2D1.1 app. n.1:
“Mixture or substance” as used in this guideline has
the same meaning as in 21 U.S.C. § 841, except as
expressly provided. Mixture or substance does not
include materials that must be separated from the
controlled substance before the controlled substance
can be used. Examples of such materials include the
fiberglass in a cocaine/fiberglass bonded suitcase,
beeswax in a cocaine/beeswax statue, and waste water
from an illicit laboratory used to manufacture a
controlled substance. If such material cannot be
readily separated from the mixture or substance that
appropriately is counted in the Drug Quantity Table,
the court may use any reasonable method to approximate
the weight of the mixture or substance to be
counted....
(Emphasis added.)
6
At the sentencing hearing, Keresztury raised both objections
again. The judge overruled the objection relating to the proper
weighing of the LSD, but granted Keresztury’s motion regarding
acceptance of responsibility and reduced his offense level an
additional three levels, bringing it down to offense level 27. The
Guidelines’ sentencing range for offense level 27 is 70-87 months.
The judge sentenced Keresztury at the bottom of the Guidelines
range (70 months imprisonment), plus five years supervised release
and a $100 special assessment. Despite his plea agreement’s waiver
of appeal, Keresztury timely filed a notice of appeal.
II. Analysis
A. Standard of Review
There are two primary issues in the instant case: whether the
plea agreement remains effective or has been voided by the
government’s conduct, and whether the Guidelines were properly
applied. We review both issues de novo.7
B. Waiver of the Right to Appeal
Keresztury advances two reasons in support of his entitlement
to bring this appeal despite the waiver of his right to appeal in
the plea agreement. He first contends that in the plea agreement
7
See United States v. Ford, 996 F.2d 83, 85 (5th Cir. 1993)
(“Interpretation of the guidelines is a question of law, subject
to de novo review.”); United States v. Valencia, 985 F.2d 758,
760 (5th Cir. 1993) (internal citations omitted) (“Whether the
government’s conduct violates the terms of the plea agreement is
a question of law. A breach of a plea agreement constitutes
plain error and our review is de novo.”).
7
(and as emphasized by the magistrate judge at rearraignment) he
expressly reserved the right to appeal any sentence that exceeded
the sentencing guideline range for his offense, and, he maintains,
the imposition of a sentence predicated on a base level offense of
32 fits within this category of allowed appeals. He argues second,
and in the alternative, that when it contested the downward
departure for acceptance of responsibility, the government breached
the plea agreement or elected to void it, thereby releasing both
the government and Keresztury from all strictures of the agreement,
including Keresztury’s waiver of his right to appeal. As we
conclude that his argument in the alternative has merit, we examine
his primary argument no further.
Again, the plea agreement provides that “[t]he United States
has agreed ... not to contest acceptance of responsibility for this
defendant as long as he continues to truthfully acknowledge his
guilt of this offense.” When the probation officer recommended
against granting Keresztury an offense level reduction for
acceptance of responsibility, however, the government added its
voice in support of the probation officer’s conclusion. This
action by the government, argues Keresztury, constituted either a
breach of the plea agreement or an exercise by the government of
its right to avoid it, pursuant to the terms of ¶ 4.k. of the plea
agreement. In either case, Keresztury concludes, the plea
agreement, including the waiver of his right to appeal, no longer
stands, freeing him to bring this appeal of his sentence.
8
The government responds by insisting that it did not breach
the plea agreement; yet it continues in it appellate brief:
Although the Government agreed in the plea agreement that
it would not contest acceptance of responsibility, this
provision was conditioned on Appellant continuing to
truthfully acknowledge his guilt of this offense. ...
[W]hile it is true that the Government supported the
probation officer’s finding that Appellant did not
warrant an adjustment for acceptance of responsibility,
the Government did so only as a result of Appellant’s own
conduct inconsistent with the terms of the plea
agreement.
In the plea agreement, Appellant agreed that if he,
“committed any federal, state or local crime between the
date of this agreement and his sentencing, or has
otherwise violated any other provision of this agreement,
the agreement may be voided by the government[.]”
Appellant vitiated the plea agreement by his repeated use
of marijuana and cocaine .... Further, after filing its
response, the Government never articulated any
opposition, at sentencing, to the adjustment for
acceptance of responsibility. (Emphasis added.)
Although the government does not come right out and say so, it
obviously exercised its option to void the plea agreement after
Keresztury violated it.
Next, the government notes that the district court granted a
3-level reduction for acceptance of responsibility in the end ——
“[t]hus,” argues the government, “Appellant was not prejudiced by
the Government’s response to his Objections to the PSR.” Last, the
government asserts that “even if this Court finds that the
Government did breach the agreement, a breach does not
automatically require resentencing.”
Addressing the last of the government’s arguments first, we
note that it misses the point. When we scrutinize the government’s
9
conduct to determine whether it manifested an exercise of its
prerogative to void the plea agreement, our objective is to
discover whether the defendant’s waiver of his right to appeal
remains effective, not whether resentencing is required. And, when
we conclude, as we do, that the government opted to void the plea
agreement (including the defendant’s waiver of appeal), we are free
to consider the substance of the defendant’s appeal. It is the
result of this consideration that may require resentencing.
Next, by emphasizing that “Appellant was not prejudiced by the
Government’s response to his Objections to the PSR,” because the
district court disregarded the probation officer and the
prosecution and granted the decrease for acceptance of
responsibility anyway, the government appears to be proposing some
kind of harmless error excuse. As we have stated before when
rejecting the government’s harmless error analysis, however,
The interest of justice and standards of good faith in
negotiating plea bargains require reversal where a plea
bargain is breached. A lesser standard would permit the
government to make a plea bargain attractive to a
defendant, subsequently violate the agreement and then
argue harmless error, thereby defrauding the defendant.8
We therefore reject this attempt by the government to excuse its
action as harmless.
We are left, then, with the government’s bald assertion that
it simply did not breach the agreement. The government is not
8
Valencia, 985 F.2d at 761 (internal citation omitted)
(emphasis added).
10
persuasive on this point. The best that the government can offer
by way of justification is that it was Keresztury who first
“vitiated the plea agreement” by violating state and federal law
through possession of drugs, and that the government responded as
it did “only as a result of Appellant’s own conduct inconsistent
with the terms of the plea agreement.” If that is not an
acknowledgment that the government was exercising its prerogative
to void the plea agreement should Keresztury fail to comply with
its terms, we cannot imagine what is. And, as Keresztury states in
his appellate brief,
Declaring the agreement to be void may avoid any question
of breach on the part of the Government, but if the
agreement is void, no part of it —— including any waiver
of the right to appeal —— is enforceable. ... The
Government cannot pick and choose which parts of the plea
agreement it wants to apply. Once it takes advantage of
paragraph 4k and considers the agreement to be void to
justify its position on the acceptance of responsibility
issue, then the provision of the agreement supposedly
waiving the right to appeal the sentence is likewise void
and unenforceable. (Emphasis added.)
We agree with Keresztury. As we have stated before, “[i]n
determining whether the terms of a plea agreement have been
violated, the court must determine whether the government’s conduct
is consistent with the defendant’s reasonable understanding of the
agreement.”9 It is certainly inconsistent with a defendant’s
reasonable understanding of a promise not to contest a reduction
for acceptance of responsibility for the government to add its
9
Valencia, 985 F.2d at 761 (citing United States v.
Huddleston, 929 F.2s 1030, 1032 (5th Cir. 1991)).
11
voice in support of the PSI recommendation that the defendant
receive no such reduction. Whether the government’s conduct is
viewed as the initial breach of the plea agreement or the exercise
of its prerogative to void the plea agreement when Keresztury
breached it first, the result is the same: The agreement,
including the restriction on Keresztury’s right to appeal, is void.
He can therefore appeal his sentence, which he has done, and we can
consider his appeal.
C. Application of the Guidelines
Keresztury contends that the sentencing court erred when it
used the entire weight of the LSD/vodka solution in determining his
base offense level of 32. Instead, he maintains, Application Note
15 from U.S.S.G. § 2D1.1 (“Application Note 15”) should govern.
Application Note 15 provides:
LSD on a blotter paper carrier medium typically is marked
so that the number of doses (“hits”) per sheet readily
can be determined. When this is not the case, it is to
be presumed that each 1/4 inch by 1/4 inch section of the
blotter paper is equal to one dose.
In the case of liquid LSD (LSD that has not been placed
on a carrier medium), using the weight of the LSD alone
to calculate the offense level may not adequately reflect
the seriousness of the offense. In such a case, an
10
upward departure may be warranted.
Liquid LSD was involved in the instant case, and, according to
Keresztury, the words, “weight of the LSD alone” in Application
Note 15 indicate that a proper application of the Guidelines
10
U.S.S.G. § 2D1.1, cmt. app. n.15 (emphasis added).
12
requires a calculation of the weight of the actual LSD, separate
from the liquid with which it is combined. Keresztury defends this
interpretation by noting that the Guidelines acknowledge that
different carrier media have different weights, and that, to avoid
severe disparity in sentencing for essentially identical crimes
(i.e., possession of comparable amounts of actual LSD), the
Guidelines establish a presumptive weight per dose of 0.4
milligrams for LSD on a carrier medium.11 Keresztury argues that
allowing the weight of the liquid into which the LSD is mixed to
determine the proper offense level under the Guidelines contravenes
a primary purpose of the Guidelines, i.e., to establish some
uniformity for sentencing. As Keresztury points out, this is best
demonstrated by the realization that if the weight of the entire
mixture is used, a more dilute LSD solution —— using more liquid
per dose —— would result in a more severe penalty under the
Guidelines.
11
See U.S.S.G. § 2D1.1 cmt. background:
Because the weights of LSD carrier media vary
widely and typically far exceed the weight of the
controlled substance itself, the Commission has
determined that basing offense levels on the entire
weight of the LSD and carrier medium would produce
unwarranted disparity among offenses involving the same
quantity of actual LSD (but different carrier weights),
as well as sentences disproportionate to those for
other, more dangerous controlled substances, such as
PCP. Consequently, in cases involving LSD contained in
a carrier medium, the Commission has established a
weight per dose of 0.4 milligrams for purposes of
determining the base offense level. (Emphasis added.)
13
As we have recently announced in United States v. Morgan,12 we
are in agreement with Keresztury’s position here, and have joined
other circuits in holding that “when the controlled substance is
LSD contained in a liquid solution, the weight of the pure LSD
alone should be used in determining the base offense level under
the Guidelines.”13 Neither the preparer of the PSI nor the
sentencing court had the benefit of our Morgan opinion, so it is
understandable that both included the vodka and established an
offense level of 32 for Keresztury. Still, Morgan controls, so
inclusion of the weight of the vodka constitutes reversible error.
As noted above, the entire LSD/vodka mixture which Keresztury
sold to the DPS officer weighed 18.53 grams. The DPS lab report
stated that there were 1248 “abuse units” of LSD in the mixture.
Under Texas Health & Safety Code § 481.002(50)(B), an abuse unit of
liquid LSD is assigned a weight of 0.04 milligrams. Therefore,
there were 0.04992 grams (49.92 milligrams) of LSD in the mixture.
The Guidelines assign a presumptive weight of 0.05 milligrams per
dose of “actual LSD,”14 so, for U.S.S.G. purposes, there were 998.4
12
No. 01-20500 (5th Cir. May 23, 2002).
13
Id. (citing United States v. Camacho, 261 F.3d 1071,
1074-75 (11th Cir. 2001); United States v. Sia, No. 96-1808, 1996
WL 728191 (1st Cir.) (unpublished); United States v. Ingram, 67
F.3d 126, 128 (6th Cir. 1995); United States v. Turner, 59 F.3d
481, 485 (4th Cir. 1995); United States v. Jordan, 842 F.Supp.
1031, 1033 (M.D. Tenn. 1994)) (emphasis in original).
14
See, e.g., U.S.S.G. § 2D1.1 cmt. background (“The dosage
weight of LSD [on a carrier medium] selected exceeds the Drug
Enforcement Administration’s standard dosage unit for LSD of 0.05
14
doses of LSD in the vodka.15
According to the U.S.S.G. Drug Quantity Table, 49.92
milligrams of LSD produces a base offense level of 12,16 the
sentencing range for which is 10-16 months if the defendant is in
criminal history category I. Keresztury argues that his base
offense level should be 12, and that he should still receive a 2-
level decrease for acceptance of responsibility,17 bringing his
offense level to 10, with a sentencing range of 6-12 months for
criminal history category I defendants.
Much as Keresztury would prefer this result, the Guidelines
appear to preclude it. Section 5C1.2, Limitation on Applicability
milligram [sic] (i.e., the quantity of actual LSD per dose) in
order to assign some weight to the carrier medium.”).
15
The Guidelines also provide that for LSD on a carrier
medium, “each dose of LSD on the carrier medium [should be
treated] as equal to 0.4 mg of LSD for the purposes of the Drug
Quantity Table.” U.S.S.G. § 2D1.1 Note (H) to Drug Quantity
Table. Using the presumptive weight for LSD on a carrier medium,
the 998.4 doses are assigned a weight of 399.36 milligrams. In
Morgan, however, we determined that “the .4 milligram conversion
factor used for LSD on a carrier medium is not used with liquid
LSD.”
16
See U.S.S.G. § 2D1.1(c)(14) [Drug Quantity Table]
(assigning an offense level of 12 for crimes involving “[l]ess
than 50 MG of LSD”).
17
Because his postulational base offense level (12) prior
to the reduction for acceptance of responsibility is less than
16, he may only receive a 2-level downward departure, unlike the
situation at his initial sentencing, where his pre-reduction
offense level of 30 —— coupled with the fact that he apparently
met the criteria in U.S.S.G. § 3E1.1.(b)(1)-(2) —— entitled him
to a 3-level reduction. See U.S.S.G. § 3E1.1, Acceptance of
Responsibility.
15
of Statutory Minimum Sentences in Certain Cases, is the provision
that the probation officer applied in the PSI to show that
Keresztury was not subject to the 10-year statutory minimum for
imprisonment. That section states:
Except as provided in subsection (b), in the case of an
offense under 21 U.S.C. § 841..., the court shall impose
a sentence in accordance with the applicable guidelines
without regard to any statutory minimum sentence, if the
court finds that the defendant meets the criteria in 18
U.S.C. § 3553(f)(1)-(5) set forth verbatim below....18
Subsection (b), to which the above refers in the initial clause,
provides:
(b) In the case of a defendant (1) who meets the criteria
set forth in subsection (a); and (2) for whom the
statutorily required minimum sentences is at least five
years, the offense level applicable from Chapters Two
(Offense Conduct) and Three (Adjustments) shall not be
less than level 17.19
Keresztury was being sentenced for violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A), i.e., for possession with intent to
distribute 10 grams or more of a mixture or substance containing a
detectable amount of [LSD]. Our conclusion, dictated by Morgan,
that the weight of the “LSD alone” must be used in determining
Keresztury’s base offense level does not alter the fact that the
weight of the mixture or substance containing a detectable amount
of LSD in the instant case weighed more than 10 grams. Therefore,
the application of § 841(b)(1)(A) is still correct. That section
18
U.S.S.G. § 5C1.2(a) (emphasis added).
19
U.S.S.G. § 5C1.2(b) (bold in original; emphasis added).
16
states:
(1)(A) In the case of a violation of subsection (a) of
this section involving ——
...
(v) 10 grams or more of a mixture or substance
containing a detectable amount of [LSD]
such person shall be sentenced to a term of imprisonment
which may not be less than 10 years or more than
life....20
Keresztury therefore falls within the category of defendants
described in U.S.S.G. § 5C1.2(b), because he not only meets all the
criteria in subsection (a), but is also a defendant “for whom the
statutorily required minimum sentences is at least five years.”
Accordingly, the mandate of U.S.S.G. § 5C1.2(b) applies, and “the
offense level applicable from Chapters Two (Offense Conduct) and
Three (Adjustments) shall not be less than level 17.” For a
defendant with a criminal history category of I, the range of
imprisonment periods for offense level 17 is 24-30 months.21
This discussion is not intended to suggest that other
provisions in the Guidelines may or may not be applicable. We have
undertaken this last analysis only to clarify that Keresztury is
not entitled to a base offense level of 12, as he contends. Having
20
21 U.S.C. § 841(b)(1)(A) (emphasis added).
21
See U.S.S.G. Sentencing Table. We also note, however,
that although this is an offense level greater than 16, so
Keresztury may be eligible for a 3-level reduction for acceptance
of responsibility under U.S.S.G. § 3E1.1, see supra note 20,
U.S.S.G. § 5C1.2 expressly forbids the application of Chapter
Three (which includes § 3E1.1) to yield a result less than
offense level 17.
17
explained that, together with our holding that the district court
cannot use the weight of the liquid (vodka) with which the LSD is
mixed to arrive at the base offense level, we leave the application
of the pertinent Guidelines provisions to the district court at
resentencing.
III. Conclusion
Keresztury is entitled to bring the instant appeal because the
government’s conduct in contesting Keresztury’s right to a
reduction for acceptance of responsibility —— particularly the
government’s insistence that Keresztury’s conduct between his plea
and his sentencing voided the plea agreement —— signaled that the
plea agreement, which included Keresztury’s waiver of his right to
appeal his sentence, was void. Further, Keresztury is correct that
the district court erred when it used the weight of the entire
LSD/vodka mixture in determining his base offense level.
Nevertheless, the application of U.S.S.G. § 5C1.2 prevents the use
for Keresztury of an offense level lower than 17. We therefore
vacate Keresztury’s sentence and remand the case for resentencing
consistent with this opinion.
VACATED and REMANDED.
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