United States v. May

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 18, 2003
• Docket: 02-31074
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 16, 2003

Charles R. Fulbruge III Clerk No. 02-31074 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLARD MAY, also known as Wolf,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 94-CR-30020-1 --------------------

ON PETITION FOR REHEARING

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

IT IS ORDERED that the petition for rehearing is GRANTED.

The original opinion is withdrawn and the following substituted

in its place.

Willard May appeals from his guilty-plea conviction and

sentence for conspiracy to distribute in excess of 50 grams of

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-31074 -2-

cocaine base in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C.

§ 846.

May argues that the district court committed several Rule 11

violations and that those errors constituted plain error. The

district court did not engage in plea negotiations. The plea

agreement was signed several days before the off-the-record

conference and the Rule 11 hearing, and the district court did

not indicate what sentence May would receive. See United States

v. Daigle, 63 F.3d 346, 349 (5th Cir. 1995). The district court

ensured that the entire plea agreement was disclosed during the

plea colloquy, and there were no additional terms to the

agreement. The district court adequately advised May about the

drug-quantity element of the offense. Since the agreement

between May and the Government was a Rule 11(e)(1)(A) plea

agreement, the district court was not required to advise May that

he would have no right to withdraw his guilty plea if it did not

accept his sentencing requests. See FED. R. CRIM. P. 11(e)(2).

Although the district court did not specifically advise May of

his right to plead not guilty and his right to counsel at trial,

May signed an “understanding of maximum penalty and

constitutional rights” in which he affirmed that he understood

those rights. May has not demonstrated that the deviation from

Rule 11(c)(3) affected his substantial rights. See United States

v. Ramirez-Velasquez, 322 F.3d 868, 879 (5th Cir. 2003). No. 02-31074 -3-

May argues that the district court’s application of the

career offender enhancement constituted plain error. The

government concedes that classifying May as a career offender

under the guidelines was error. However, it argues that the

error is not plain because May’s sentence would not have been

significantly different under the corrected guideline range. The

district court sentenced May assuming a guideline range of 262 to

327 months. It departed downward by 105 months to impose a

sentence of 157 months. The government concedes, however, that

the correct guideline range is 108 to 135 months. Thus, to reach

the same sentence, the district court would have to make an

upward departure of 22 months and the court gave no reason that

would support an upward departure.

Accordingly, we remand to the district court for

resentencing in light of this opinion.**

REVERSED and REMANDED.

** We need not address May’s argument, raised initially on rehearing regarding the district court’s judgment to have 85 months of May’s sentence run consecutive to his state sentence.