NOT RECOMMENDED FOR PUBLICATION File Name: 20a0582n.06
Case No. 19-5883
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 13, 2020 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF CHESLEY PAUL PEYTON, ) KENTUCKY Defendant-Appellant. ) )
BEFORE: COOK, BUSH, and NALBANDIAN, Circuit Judges.
COOK, Circuit Judge. Defendant Chesley Peyton and his prosecutors expected Peyton to
be subject to a maximum sentence of ten years when he pleaded guilty to being a felon in
possession of a firearm. But after Peyton entered his plea, the probation department revealed its
determination that Peyton’s record of three prior drug trafficking offenses subjected him to
sentencing as an armed career criminal. Peyton appeals the fifteen-year minimum sentence
imposed. We AFFIRM.
I.
An indictment charged Peyton with unlawfully possessing a firearm as a convicted felon,
in violation of 18 U.S.C. § 922(g)(1). Peyton and the government entered into a written plea
agreement that provided that his sentence would be “imprisonment for not more than 10 years,”
with the caveat that any sentencing “recommendation does not bind the Court.” (R. 30 at Page Case No. 19-5883, United States v. Peyton
ID#: 79.) The plea agreement also noted that Peyton’s criminal history included “one felony
conviction of either a crime of violence or a controlled substance offense.” (Id. at Page ID#: 80.)
The district court held a rearraignment hearing and asked Peyton whether he understood the
potential consequences of his plea, including that “the worst case scenario is . . . a statutory
maximum penalty of ten years.” (R. 57 at Page ID#: 247.) Peyton confirmed that he understood,
and the court accepted his plea of guilty.
Later, however, the presentence investigation report prepared by the probation department
revealed Peyton’s three prior felony drug trafficking convictions.1 This development changed
things for the worse for Peyton, because he now qualified as an armed career criminal subject to
the Armed Career Criminal Act (ACCA) and its fifteen-year mandatory minimum sentence. See
18 U.S.C. § 924(e)(1).
At sentencing, given the ACCA requirement to impose a fifteen-year minimum sentence
with Peyton expecting a ten-year maximum, the court afforded Peyton an opportunity to withdraw
his plea. Having consulted with his attorney, Peyton decided to adhere to his guilty plea.
Before the court imposed its sentence, Peyton acknowledged that his prior convictions
qualified as ACCA predicates, but argued that the court should opt for a ten-year term because “a
plea deal is a plea deal.” (R. 58 at Page ID##: 267–68.) The judge responded that “the law doesn’t
allow [him] to” enforce the plea deal because he’s “bound by [ACCA]” and “would [not] even
have the authority to” deviate below the fifteen-year mandatory minimum. (Id. at Page ID#: 269.)
He then imposed a fifteen-year sentence.
1 The prosecutors and Peyton apparently miscounted the three convictions as a single one because Peyton was arrested for all three on the same day, was sentenced for all three on the same day, and served his sentences for all three concurrently. -2- Case No. 19-5883, United States v. Peyton
Peyton appeals, persisting in arguing that “a deal is a deal,” and that the court “should have
ordered specific performance of the ten-year maximum sentence.” (Appellant Br. at 6.) He asks
this court to vacate the district court’s judgment and remand for resentencing “with instruction that
he be sentenced to a period of incarceration not to exceed 10 years.” (Id. at 15.)
II.
As regards sentencing determinations, we review de novo the district court’s legal
conclusions and look only for clear error in the court’s factual findings. United States v.
Henderson, 209 F.3d 614, 617 (6th Cir. 2000).
III.
Plea agreements represent a contract between the government and the accused, and we
interpret and enforce them in accordance with traditional principles of contract law. United States
v. Robison, 924 F.2d 612, 613 (6th Cir. 1991). “[W]hen a plea rests in any significant degree on
a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971).
When the government fails to fulfill its promise, the court can remedy the breach by either
affording the defendant the opportunity to withdraw his plea or ordering specific performance of
the plea agreement. Id. at 263; United States v. Mandell, 905 F.2d 970, 973 (6th Cir. 1990).
Peyton asserts that the government breached the plea agreement in acceding to ACCA’s
mandatory minimum. Here, of course, the parties to the agreement operated without an accurate
understanding of the defendant’s criminal record. Once Peyton’s three ACCA-predicate felonies
came to light, the court had no choice but to sentence Peyton to at least fifteen years. See 18 U.S.C.
§ 924(e)(1). The court thus addressed the dilemma in the only manner available—allowing Peyton
an opportunity to withdraw his plea.
-3- Case No. 19-5883, United States v. Peyton
Our sister circuits that have addressed this issue agree that an opportunity to withdraw the
plea properly remedies the parties’ failure to account for ACCA in the plea agreement. See, e.g.,
United States v. Symington, 781 F.3d 1308, 1313 (11th Cir. 2015) (“Generally, this court may
remedy the breach of a plea agreement by ordering specific performance of the agreement, but that
is not the proper remedy here [because] enforcing the agreed upon ten-year sentence in the plea
agreement would result in the imposition of an illegal sentence . . . .”); United States v. Davis, 689
F.3d 349, 354 (4th Cir. 2012) (“Davis is . . . not entitled to the ‘specific performance’ he now seeks
[because] the district court could not have imposed a sentence that contravened [ACCA].”); United
States v. Williams, 198 F.3d 988, 994 (7th Cir. 1999) (“[T]he district court correctly concluded
that the remedy for the mistake of fact [as to the defendant’s maximum sentence] in this case was
to permit Williams to void the contract and withdraw his plea.”). Indeed, the Tenth Circuit has
held that enforcing a plea agreement’s ten-year maximum when ACCA should apply—what
Peyton seeks here—constitutes “plain error.” United States v. Moyer, 282 F.3d 1311, 1318–19
(10th Cir. 2002).
Peyton offers a new, different argument, invoking 18 U.S.C. § 3553(e). But that statute
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NOT RECOMMENDED FOR PUBLICATION File Name: 20a0582n.06
Case No. 19-5883
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 13, 2020 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF CHESLEY PAUL PEYTON, ) KENTUCKY Defendant-Appellant. ) )
BEFORE: COOK, BUSH, and NALBANDIAN, Circuit Judges.
COOK, Circuit Judge. Defendant Chesley Peyton and his prosecutors expected Peyton to
be subject to a maximum sentence of ten years when he pleaded guilty to being a felon in
possession of a firearm. But after Peyton entered his plea, the probation department revealed its
determination that Peyton’s record of three prior drug trafficking offenses subjected him to
sentencing as an armed career criminal. Peyton appeals the fifteen-year minimum sentence
imposed. We AFFIRM.
I.
An indictment charged Peyton with unlawfully possessing a firearm as a convicted felon,
in violation of 18 U.S.C. § 922(g)(1). Peyton and the government entered into a written plea
agreement that provided that his sentence would be “imprisonment for not more than 10 years,”
with the caveat that any sentencing “recommendation does not bind the Court.” (R. 30 at Page Case No. 19-5883, United States v. Peyton
ID#: 79.) The plea agreement also noted that Peyton’s criminal history included “one felony
conviction of either a crime of violence or a controlled substance offense.” (Id. at Page ID#: 80.)
The district court held a rearraignment hearing and asked Peyton whether he understood the
potential consequences of his plea, including that “the worst case scenario is . . . a statutory
maximum penalty of ten years.” (R. 57 at Page ID#: 247.) Peyton confirmed that he understood,
and the court accepted his plea of guilty.
Later, however, the presentence investigation report prepared by the probation department
revealed Peyton’s three prior felony drug trafficking convictions.1 This development changed
things for the worse for Peyton, because he now qualified as an armed career criminal subject to
the Armed Career Criminal Act (ACCA) and its fifteen-year mandatory minimum sentence. See
18 U.S.C. § 924(e)(1).
At sentencing, given the ACCA requirement to impose a fifteen-year minimum sentence
with Peyton expecting a ten-year maximum, the court afforded Peyton an opportunity to withdraw
his plea. Having consulted with his attorney, Peyton decided to adhere to his guilty plea.
Before the court imposed its sentence, Peyton acknowledged that his prior convictions
qualified as ACCA predicates, but argued that the court should opt for a ten-year term because “a
plea deal is a plea deal.” (R. 58 at Page ID##: 267–68.) The judge responded that “the law doesn’t
allow [him] to” enforce the plea deal because he’s “bound by [ACCA]” and “would [not] even
have the authority to” deviate below the fifteen-year mandatory minimum. (Id. at Page ID#: 269.)
He then imposed a fifteen-year sentence.
1 The prosecutors and Peyton apparently miscounted the three convictions as a single one because Peyton was arrested for all three on the same day, was sentenced for all three on the same day, and served his sentences for all three concurrently. -2- Case No. 19-5883, United States v. Peyton
Peyton appeals, persisting in arguing that “a deal is a deal,” and that the court “should have
ordered specific performance of the ten-year maximum sentence.” (Appellant Br. at 6.) He asks
this court to vacate the district court’s judgment and remand for resentencing “with instruction that
he be sentenced to a period of incarceration not to exceed 10 years.” (Id. at 15.)
II.
As regards sentencing determinations, we review de novo the district court’s legal
conclusions and look only for clear error in the court’s factual findings. United States v.
Henderson, 209 F.3d 614, 617 (6th Cir. 2000).
III.
Plea agreements represent a contract between the government and the accused, and we
interpret and enforce them in accordance with traditional principles of contract law. United States
v. Robison, 924 F.2d 612, 613 (6th Cir. 1991). “[W]hen a plea rests in any significant degree on
a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971).
When the government fails to fulfill its promise, the court can remedy the breach by either
affording the defendant the opportunity to withdraw his plea or ordering specific performance of
the plea agreement. Id. at 263; United States v. Mandell, 905 F.2d 970, 973 (6th Cir. 1990).
Peyton asserts that the government breached the plea agreement in acceding to ACCA’s
mandatory minimum. Here, of course, the parties to the agreement operated without an accurate
understanding of the defendant’s criminal record. Once Peyton’s three ACCA-predicate felonies
came to light, the court had no choice but to sentence Peyton to at least fifteen years. See 18 U.S.C.
§ 924(e)(1). The court thus addressed the dilemma in the only manner available—allowing Peyton
an opportunity to withdraw his plea.
-3- Case No. 19-5883, United States v. Peyton
Our sister circuits that have addressed this issue agree that an opportunity to withdraw the
plea properly remedies the parties’ failure to account for ACCA in the plea agreement. See, e.g.,
United States v. Symington, 781 F.3d 1308, 1313 (11th Cir. 2015) (“Generally, this court may
remedy the breach of a plea agreement by ordering specific performance of the agreement, but that
is not the proper remedy here [because] enforcing the agreed upon ten-year sentence in the plea
agreement would result in the imposition of an illegal sentence . . . .”); United States v. Davis, 689
F.3d 349, 354 (4th Cir. 2012) (“Davis is . . . not entitled to the ‘specific performance’ he now seeks
[because] the district court could not have imposed a sentence that contravened [ACCA].”); United
States v. Williams, 198 F.3d 988, 994 (7th Cir. 1999) (“[T]he district court correctly concluded
that the remedy for the mistake of fact [as to the defendant’s maximum sentence] in this case was
to permit Williams to void the contract and withdraw his plea.”). Indeed, the Tenth Circuit has
held that enforcing a plea agreement’s ten-year maximum when ACCA should apply—what
Peyton seeks here—constitutes “plain error.” United States v. Moyer, 282 F.3d 1311, 1318–19
(10th Cir. 2002).
Peyton offers a new, different argument, invoking 18 U.S.C. § 3553(e). But that statute
authorizes a court, upon motion of the government, to impose a sentence below a statutory
minimum to reflect a defendant’s substantial assistance in another’s prosecution.
We need not consider how Peyton would fare under this statute because only a government
motion triggers the sentencing judge’s discretion to impose a below-minimum sentence. See
Melendez v. United States, 518 U.S. 120, 125–26 (1996) (quoting 18 U.S.C. § 3553(e)); see also
United States v. McIntosh, 484 F.3d 832, 835 (6th Cir. 2007); United States v. Hise, 400 F. App’x
989, 991 (6th Cir. 2010) (“[A] departure [below the statutory minimum] is lawful only if the
government first files [a motion].”). The government filed no such motion here.
-4- Case No. 19-5883, United States v. Peyton
Peyton goes on to contend—without authority—that under these circumstances, the court
should have ordered the government to file a § 3553(e) motion. That novel approach would likely
run afoul of § 3553(e)’s other threshold requirement: that “a departure [under section 3553(e)]
must be based solely upon the ‘substantial assistance’ rendered by the defendant.” United States
v. Bullard, 390 F.3d 413, 416 (6th Cir. 2004) (quoting United States v. Snelling, 961 F.2d 93, 97
(6th Cir. 1991)). And Peyton provides scant evidence that he assisted in another’s prosecution.
The district court did not err.
IV.
We AFFIRM.
-5-