United States v. Morgan

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20921

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

GEORGE C. MORGAN,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas (H-95-CR-303)

October 6, 1999

Before JONES, DeMOSS and DENNIS, Circuit Judges.

PER CURIAM:*

The government appeals the district court’s imposition

of a 52-month sentence on George Morgan, arguing that the

district court was obliged to enter a 60-month sentence as

agreed to in his Fed.R.Crim.P. 11(e)(1)(C) plea agreement.

Because the district court erred in its interpretation of Rule

11(e)(1)(C) and U.S.S.G. §5G1.3, this Court reverses and remands

for resentencing.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The district court’s use of U.S.S.G. §5G1.3 to credit

time served on a prior sentence was improper because

Fed.R.Crim.P. 11(e)(1)(C) does not allow a district court to

modify a plea agreement once it has accepted it. See United

States v. Gilchrist, 130 F.3d 1131, 1133 (3d Cir. 1997); United

States v. Veri, 108 F.3d 1311, 1315 (10th Cir. 1997); United

States v. Mukai, 26 F.3d 953, 955-56 (9th Cir. 1994). In this

case, the plea agreement clearly contemplates a term-specific

sentence of 60 months incarceration. Therefore, the district

court was obliged to enter that sentence. Even if the plea

agreement could be construed as not precluding the imposition of

a concurrent sentence, U.S.S.G. §5G1.3 is not applicable in this

case because the prior sentence was fully discharged at the time

of sentencing. See United States v. Labeille Soto, 163 F.3d 93,

99 (2d Cir. 1998); United States v. Rizzo, 121 F.3d 794, 800

(1st Cir. 1997); United States v. McHan, 101 F.3d 1027, 1040

(4th Cir. 1996). For these reasons, the court below erred in

imposing a 52-month sentence rather than a 60-month one.

REVERSED AND REMANDED.