RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Peveler No. 02-5778 ELECTRONIC CITATION: 2004 FED App. 0039P (6th Cir.) File Name: 04a0039p.06 Cushing, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee. ON BRIEF: Elizabeth S. Hughes, GESS, MATTINGLY & ATCHISON, UNITED STATES COURT OF APPEALS Lexington, Kentucky, for Appellant. Terry M. Cushing, Candace G. Hill, ASSISTANT UNITED STATES FOR THE SIXTH CIRCUIT ATTORNEYS, Louisville, Kentucky, for Appellee. Terry L. _________________ Peveler, Manchester, Kentucky, pro se.
UNITED STATES OF AMERICA , X _________________ Plaintiff-Appellee, - - OPINION - No. 02-5778 _________________ v. - > HAYNES, District Judge. Appellant Terry L. Peveler , appeals the district court's order denying his motion to modify TERRY L. PEVELER, - Defendant-Appellant. - his sentence under 18 U.S.C. § 3582(c)(2). Peveler relies upon the retroactivity of Amendment 599 to U.S.S.G. § 2K2.4 N that bars “double counting” of firearm enhancements where, Appeal from the United States District Court as here, there is conviction under 18 U.S.C. § 924(c) arising for the Western District of Kentucky at Owensboro. from the same underlying offenses. Although originally No. 93-00014—Jennifer B. Coffman, District Judge. indicted on 11 counts, Peveler subsequently entered a guilty plea under the former Fed. R. Crim. P. 11(e)(1)(C) to a Argued: October 24, 2003 superceding information charging five counts of drug-trafficking in violation of 21 U.S.C. § 841(a)(1) and a Decided and Filed: February 6, 2004 sixth count of carrying a firearm during and in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c). Before: DAUGHTREY and GILMAN, Circuit Judges; Peveler contends that Amendment 599 prohibits the two-level HAYNES, District Judge.* sentence enhancement in his plea agreement that the district court applied to determine his original sentence. Therefore, _________________ Peveler moves to modify his sentence by two levels. For the reasons set forth below, we AFFIRM the district court's COUNSEL judgment, but for different reasons. ARGUED: Elizabeth S. Hughes, GESS, MATTINGLY & A. Procedural History ATCHISON, Lexington, Kentucky, for Appellant. Terry M. On April 6, 1993 a federal grand jury in Owensboro, Kentucky returned an 11-count indictment against Peveler * and three other co-defendants. Peveler was named in seven The Honorable William J. Haynes, Jr., United States District Judge of the 11 counts, with five of these counts charging him with for the Middle District of Tennessee, sitting by designation.
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drug trafficking in violation of 21 U.S.C. § 841(a)(1). The petition for a writ of certiorari. Peveler v. United States, 516 remaining two counts charged Peveler with violating U.S. 1137 (1996). 18 U.S.C. § 924(c) by using or carrying a firearm in relation to drug trafficking crimes on November 12, 1992, and Peveler then filed a pro se petition under 28 U.S.C. § 2255 December 18, 1992. Initially, Peveler pled not guilty to all for relief from his sentence, alleging that he pled guilty to the seven counts, but after the district court denied his motion to firearm count based upon his belief that he could be convicted suppress, he entered into a plea agreement with the under § 924(c) for storing firearms in proximity to illegal government. drugs. After his conviction, the Supreme Court in Bailey v. United States, 516 U.S. 137 (1995), held that a conviction for The “Rule 11(e)(1)(C)”1 plea agreement required Peveler using a firearm in relation to a drug-trafficking crime can only to plead guilty to a six-count superseding information that arise if the defendant “actively employed” the firearm. The charged him with the same five drug-trafficking counts in the district court referred Peveler's petition to the magistrate original indictment, but with only one count of violating judge. The magistrate judge recommended that the district § 924(c) by using or carrying a firearm in relation to a drug court vacate Peveler's firearm conviction. This trafficking crime on January 24, 1993. In return, the recommendation was based on the government's concession government agreed to dismiss the two § 924(c) firearm that Peveler's guilty plea to the firearm count was no longer charges and further agreed to recommend a prison sentence valid after Bailey. The government, however, withdrew its and fine at the low end of the applicable guideline ranges. concession shortly after Bousley v. United States, 523 U.S. The plea agreement contained an express provision that the 614 (1998), in which the Supreme Court held that to assert a total offense level would be 30, based upon specific guideline Bailey challenge successfully, a movant must show “cause calculations in the plea agreement. Peveler entered his guilty and prejudice” to avoid procedural default or demonstrate his plea in September 1994, but preserved his right to appeal the actual innocence on the § 924(c) charge and any other more district court's denial of his motion to suppress. Peveler serious charges that were dismissed during plea bargaining. received a 181-month prison sentence, with the five After Bousley, the district court remanded the action to the drug-trafficking counts accounting for 121 of these months, magistrate judge for a recommendation on the firearm and the additional 60 months attributable to his § 924(c) charges. firearm conviction. The magistrate judge conducted an evidentiary hearing, at Peveler then appealed the denial of his motion to suppress. which the government conceded Peveler's actual innocence We affirmed the district court's denial of Peveler's motion. of the firearm charge in the superseding information. The United States v. Peveler, 1995 U.S. App. LEXIS 36888, 1995 hearing focused on whether Peveler had committed the other WL 620961 (6th Cir. Oct. 19, 1995) (unpublished table firearm charges in the original indictment, that is, whether decision). The Supreme Court denied Peveler's subsequent Peveler used or carried a firearm in relation to drug-trafficking crimes on November 12, 1992, and December 18, 1992. After the hearing, the magistrate judge 1 In 2002, Fed. R. Crim. R. 11 was amended and the current version recommended that Peveler's request for relief from his of Rule 11(e) incorporates the provisions of Fed. R. Crim. P. 32(e). The conviction and sentence on the firearm count in the former Rule 1 1(e)(1)(C ) is now Rule 1 1(c)(1)(C ). Given the facts of this superseding information be denied. The district court case and our reliance on pre-20 02 p reced ents, we will continue to re fer to Peveler’s plea agreement as a Rule 11(e)(1)(C) for ease of reference. overruled Peveler's objections, adopted the magistrate judge's No. 02-5778 United States v. Peveler 5 6 United States v. Peveler No. 02-5778
recommendation and denied a certificate of appealability. weigh and package various quantities of cocaine on However, we granted a certificate of appealability, but January 24, 1993. Blanford reported seeing firearms openly affirmed the district court's decision. displayed in the rooms of Peveler's trailer home where the marijuana sales took place in 1992 and further stated that he On August 3, 2001, Peveler filed a motion to modify his saw firearms in the closet of Peveler's bedroom where the sentence pursuant to 18 U.S.C. § 3582(c). The district court cocaine packaging occurred in 1993. Based on the referred the motion to a magistrate judge, who recommended information provided by Blanford, warrants were issued to denying Peveler's motion. The district judge adopted the arrest Peveler and to search his trailer. The search resulted in magistrate's finding and denied the motion. In essence, the the recovery of 1.5 pounds of cocaine, 12 pounds of district court adopted the magistrate judge's conclusion that a marijuana, and four firearms. reduction was not warranted because the two-level enhancement was not for Peveler's drug convictions, but for C. The Plea Agreement his possession of a firearm on a different month and year from the drug offenses. Peveler then appealed the district court's Peveler eventually entered into a plea agreement that decision and filed a pro se brief in this court. We appointed required Peveler to plead guilty to a six-count superseding counsel, who filed a brief on Peveler's behalf, to which the information with the same five drug-trafficking counts government has responded. included in the original indictment, but with only one count of violating § 924(c) by using or carrying a firearm in relation B. Factual Background to a drug trafficking crime on January 24, 1993. Essentially, the only difference between the original indictment and the In September 1992, the Kentucky State Police and the superseding information was that the two § 924(c) firearm police department in Livermore, Kentucky, began charges on November 12, 1992 and December 18, 1992, were investigating Peveler and his codefendants for suspected drug dropped in exchange for the single § 924(c) count on trafficking. This investigation commenced after a January 24, 1993. confidential source informed both law enforcement agencies that Peveler was using and selling illegal drugs in Western The plea agreement was under then Fed. R. Crim. P. Kentucky. 11(e)(1)(C) and expressly provided that the sentencing level would be 30, but based upon certain findings to be made by About the time of the investigation of Peveler, Livermore the Court under the guidelines. The plea agreement provides, Police Chief Charles Cobb arrested Larry Blanford for in pertinent part: attempted theft of a motorcycle. Blanford agreed to serve as a confidential informant and to purchase drugs from Peveler Pursuant to Rule 11(e)(1)(C) and 11(a)(2) of the Federal in exchange for cash payments and the dismissal of his theft Rules of Criminal Procedure, charge. 4. Defendant understands that the charge to which he Pursuant to this arrangement, Blanford informed Cobb and will plead guilty carries a combined maximum term Kentucky State Police Detective Charles Brown that he of imprisonment of 65 years, a combined maximum purchased marijuana from Peveler on November 12, 1992, fine of three million dollars, and a 4 year term of and again on December 18, 1992, and that he saw Peveler supervised released. Defendant understands that an No. 02-5778 United States v. Peveler 7 8 United States v. Peveler No. 02-5778
additional term of imprisonment may be ordered if *** the terms of the supervised released are violated, as explained in 18 U.S.C. § 3583. There is not a 14. Defendant agrees that the disposition provided mutual mistake here, but rather a retroactive within this Agreement is fair, taking into account all application of a guideline. aggravating and mitigating factors. Defendant states that he has informed the United States Attorney's *** Office and the Probation Officer, either directly or through his attorney, of all mitigating factors. 10. At the time of sentencing, the United States will Defendant will not oppose imposition of a sentence recommend a sentence of imprisonment at the low incorporating the disposition provided for within end of the applicable Guideline Range, but not less this Agreement, nor argue for any other sentence. than any mandatory minimum term of imprisonment required by law. (Joint Appendix at 108-09, 112-113) (emphasis added). The district court accepted the parties’ guideline calculations and *** imposed the sentence of 181 months consistent with the plea agreement. 11. Both parties have independently reviewed the Sentencing Guidelines applicable in this case, and in During oral argument, Peveler conceded that he does not the best judgment and belief, conclude as follows: want to set aside his plea agreement, given that to do so would subject him to prosecutions on two additional § 924(c) A. The Applicable Offense Level should be firearm charges. In any event, as discussed infra, this Court determined as follows: would lack the authority to set aside the plea agreement under Base Offense Level 26 § 2D1.1(c) (9) § 3582(c). Organizer or leader +2 § 3B1.1(c) Adjusted Based Offense level 28 D. Analysis Possession of Weapon +2 § 2D1.1(b) (2) TOTAL OFFENSE LEVEL 30 This Court reviews a district court's decision to grant or deny a motion to modify under 18 U.S.C. § 3582 for an abuse B. The Criminal History of the Defendant shall be of discretion. United States v. Ursery, 109 F.3d 1129, 1137 determined upon completion of the presentence (6th Cir. 1997). Yet, to the extent that Peveler's “arguments investigation, pursuant to Fed. R. Crim. P. 32(c)(2). all rest on the legal interpretation of various [sentencing] guidelines,” the district court's interpretation of the sentencing 12. If the Court refuses to accept this agreement and guidelines presents a question of law, subject to de novo impose sentence in accordance with its terms review. United States v. Smith, 196 F.3d 676 (1999) (citing according to the United States' motion pursuant to United States v. Vincent, 20 F.3d 229, 241 (6th Cir. 1994)). Fed. R. Crim. P. 119(e)(1)(C), this Agreement will become null and void and neither party shall be The statutory authority for Peveler's sentence modification bound thereto, and Defendant will be allowed to request is 18 U.S.C. § 3582(c)(2), which provides as follows: withdraw the plea of guilty. No. 02-5778 United States v. Peveler 9 10 United States v. Peveler No. 02-5778
The court may not modify a term of imprisonment once Peveler argues that he is entitled to reduction of his it has been imposed except...in the case of a defendant sentence due to the Sentencing Commission's retroactive who has been sentenced to a term of imprisonment application of Amendment 599 to the sentencing guidelines based on a sentencing range that has subsequently set forth in revised § 1B1.10 of the U.S.S.G., as follows: been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the Weapon Enhancement. If a sentence under this defendant... after considering the factors set forth in guideline is imposed in conjunction with a sentence for section 3553(a)... if such a reduction is consistent with an underlying offense, do not apply any specific offense applicable policy statements issued by the Sentencing characteristic for possession, brandishing, use, or Commission. discharge of an explosive or firearm when determining the sentence for the underlying offense. A sentence (Emphasis added.) under this guideline accounts for any explosive or weapon enhancement for the underlying offense of 18 U.S.C. § 3553(a) lists the following relevant factors to conviction, including any such enhancement that would be considered when ruling on a motion to modify: apply based on conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct). Do not (1) the nature and circumstances of the offense and the apply any weapon enhancement in the guideline for the history and characteristics of the defendant; underlying offense, for example. If (A) a co-defendant, (2) the need for the sentence imposed– as part of the jointly undertaken criminal activity, (A) to reflect the seriousness of the offense, to promote possessed a firearm different from the one for which the respect for the law, to provide just punishment for the defendant was convicted under 18 U.S.C. § 924(c); or offense... (B) in an ongoing drug trafficking offense, the defendant *** possessed a firearm other than the one for which the (5) any pertinent policy statement issued by the defendant was convicted under 18 U.S.C. § 924(c). Sentencing Commission... However, if a defendant is convicted of two armed back robberies, but is convicted under 18 U.S.C. § 924(c) in In a policy statement, the United States Sentencing connection with only one of the robberies, a weapon Commission addressed the district court's exercise of its enhancement would apply to the bank robbery which was discretion on a § 3582(c)(2) motion, stating: not the basis for the 18 U.S.C.§ 924(c) conviction. In determining whether, and to what extent, a (Emphasis added.) reduction in the term of imprisonment is warranted for a defendant eligible for consideration under 18 U.S.C. Eighteen U.S.C. § 3582 (c)(2) “empowers the District § 3582(c)(2), the court should consider the term of Court to modify the prisoner's sentence that would otherwise imprisonment that it would have imposed had the be final.” United States v. Williams, 182 F.3d 919, 1999 WL amendment(s) to the guidelines listed in subsection (c) 397945, **4 (6th Cir. 1999). Because Amendment 599 is been in effect at the time the defendant was sentenced... given retroactive effect, a defendant may seek relief under § 3582(c)(2). United States v. Diaz, 248 F.3d 1065, 1107-08 Application note 2 to U.S.S.G. § 1B1.10. (11th Cir.2001); United States v. Aquino, 242 F.3d 859, 865 No. 02-5778 United States v. Peveler 11 12 United States v. Peveler No. 02-5778
(9th Cir.2001). Yet, a district court “has the discretion to deny Yet, a rule of criminal procedure can limit a court's a § 3582(c)(2) motion, even if the retroactive amendment has authority. United States v. Robinson, 361 U.S. 220, 223, lowered the guideline range.” Usery, 109 F.3d at, 1137, 229-30 (1960) “([T]he court may not enlarge the period for Accord, United States v. Wesley, 221 F.3d 1337, 2001 WL taking any action under rules 33, 34, and 35, except as 799783, **2 (6th Cir. June 14, 2000). otherwise provided in those rules).” Here, Rule 11 recognizes three types of plea agreements Fed. R. Crim. P. 11(e)(1)(A) Generally, “[o]nce the district court has accepted a plea through (C). Peveler’s plea agreement is under former Rule agreement, [this Court has] traditionally regarded the 11(e)(1)(C) which expressly limits the district court's agreement as a type of contract, and...[has] analyzed the authority to modify the agreement. Accordingly, the respective obligations of the prosecution and the defendant threshold issue here is whether the district court possessed the under general principles of contract law.” United States v. authority to modify parties' agreed sentence that was imposed Skidmore, 998 F.2d 372, 375 (6th Cir. 1993) (citing United under a Rule 11(e)(1)(C) plea agreement. States v. Mandell, 905 F.2d 970, 973 (6th Cir. 1990)). “A guilty plea, however, involves the waiver of at least three At the time of Peveler's 1994 plea agreement, former Rule constitutional rights by a defendant...[and] [t]herefore, the 11(e)(1)(C) provided only that the parties “agree that a analogy of a plea agreement to a traditional contract is not specific sentence is the appropriate disposition of the case.” complete or precise, and the application of ordinary contract A Rule 11(e)(1)(C) plea can also include “the language in the law principles to a plea agreement is not always appropriate.” plea agreement whereby the parties agreed that ‘any sentence Id., citing United States v. Olesen, 920 F.2d 538, 541 (8th Cir. of incarceration shall not exceed the midpoint of the 1990). sentencing guideline range that the court finds to be applicable.’ This language has been held to be the equivalent In United States v. Weaver, 905 F.2d 1466 (11th Cir. 1990), of a sentencing recommendation under Fed. R.Crim. P. the Eleventh Circuit noted the possibility of reformation of a 11(e)(1)(C) that is binding on a district court.” United States Rule 11 plea agreement upon a showing of mutual mistake: v. Benjamin, 188 F.3d 509, 199WL685924 * 2 (6th Cir. August 26, 1999). Reformation of a written agreement is warranted only when the evidence demonstrates that the parties' mutual Even under the pre-1999 version of former Rule mistake resulted in a written document which does not 11(e)(1)(C), we held that “[o]nce the court unqualifiedly accurately reflect the terms of their agreement. accepts the agreement it too is bound by the bargain.” United Consequently, reformation is generally, without more, States v Holman, 728 F.2d 809, 813 (6th Cir. 1984) (citations not an available remedy where the evidence demonstrates omitted). Prior to the 1999 amendments to Rule 11(e), in mistake or change of mind of only one of the contracting Fields v. United States, 963 F.2d 105 (6th Cir. 1992), a parties. defendant argued that the district court's acceptance of a Rule 11(e)(1)(C) plea agreement bound the district court to accept Id. at 1472 (citations omitted). In dicta, the First Circuit the sentence in his Rule 11(e)(1)(C) agreement. We disagreed suggested that modification of a plea agreement under a Rule and held that “[a] sentencing judge could no longer be forced 11(e)(1)(C) may be justified upon a showing of a mutual to abide by an agreed to sentence where that sentence did not mistake United States v. Teeter, 257 F.3d 14, 28 n.12 (1st Cir. conform to the Guidelines, as that would eviscerate their 2001). purpose.” Id. at 108, citing United States v. Kemper, 908 No. 02-5778 United States v. Peveler 13 14 United States v. Peveler No. 02-5778
F.2d 33 (6th Cir. 1990). Fields2 required the district courts to accept an agreement requiring imposition of a specific consider a Rule 11(e)(1)(C) plea agreement in conjunction sentence. Kemper, 908 F.2d at 36-37. with the Sentencing Guidelines and, under Fields, the district court retained the authority to reserve judgment on acceptance Upon review of the presentence report, if the of the plea agreement: sentencing court determines that there was an error in the calculating the agreed-upon sentence, it must reject the In Kemper this court recognized that Holman, which plea. Id.; U.S.S.G. § 6B1.3. The court must then “afford was decided before the Sentencing Guidelines, had been the defendant an opportunity to withdraw the defendant's overruled by “the 1987 amendments to the Federal Rules guilty plea.” U.S.S.G. § 6B1.3. of Criminal Procedure and the implementation of the ... Guidelines.” Id. at 35. A sentencing judge could no Id. at 108-09. longer be forced to abide by an agreed to sentence where that sentence did not conform to the Guidelines, as that With the 1999 amendments to Rule 11(e)(1)(C), the current would eviscerate their purpose. version of former Rule 11(e)(1)(C) expressly limits a district court's authority to alter or modify any sentence imposed The Kemper court explained that if a plea agreement under such an agreement: has been accepted by the court before the presentence report has been conducted, Guidelines § 6B1.1(c) (e) Plea Agreement Procedure. describes the proper procedure: (1) In General. An attorney for the government and The court shall defer it decision to accept or reject any the defendant's attorney, or the defendant when nonbinding recommendation pursuant to Rule proceeding pro se, may discuss and reach a plea 11(c)(1)(B) and the court's decision to accept or reject agreement. The court must not participate in these any plea agreement pursuant to Rules 11(e)(1)(A) and discussions. If the defendant pleads guilty or nolo 11(e)(1)(C) until there has been an opportunity to contendere to either a charged offense or a lesser or consider the presentence report. related offense, the plea agreement may specify that an attorney for the government will: Guideline § 6B1.1 as interpreted by Kemper, makes contingent upon its review of the presentence report. *** For, “only if the court is satisfied ... that the contemplated sentence is within the guidelines” can it (C) 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 2 policy statement, or sentencing factor does or does not Mo re recent decisions in other circuits question Fields, citing the apply (such a recommendation or request binds the 1999 amendments to Rule 11 and U .S.S.G . Ch.1 pt.A4(c) and Ch.6,pt.B, court once the court accepts the plea agreement). introductory cmt. and U.S.S.G. § 6B 1.2, and concluding that the guidelines and policy guides do not preclude a district court from imposing a sentenc e outsid e the guidelines unde r a Rule 11(e)(1)(C) plea (Emphasis added.) The underscored language was added in agree ment. United States v. Goodall, 236 F.3d 70 0, 704-06 (D .C. Cir. the 1999 amendments to Rule 11. 2001), and authorities cited therein. No. 02-5778 United States v. Peveler 15 16 United States v. Peveler No. 02-5778
Albeit in unpublished decisions, we have held that in light retroactive Amendment 488 to U.S.S.G. § 2D1.1(a), where of the 1999 amendments, upon “accepting the [Rule the sentence was based upon a Rule 11(e)(1)(C) plea 11(e)(1)(C)] agreement, the district court bound itself to the agreement: government's end of the guideline range. If the district court did not agree with the government’s binding sentencing The government is correct in its assertion that federal recommendation, it was free to reject the agreement. Once courts lack jurisdiction to review a Rule 11(e)(1)(C) the district court chose to accept the agreement, however, the sentence where a prisoner claims that his Rule court was required to follow its provisions.” United States v. 11(e)(1)(C) sentence is greater than the sentence range Taylor, 14 Fed.Appx. 546, 552, 2001 WL 814924 * 6 (6th specified in the applicable guidelines. See 18 U.S.C. Cir. 2001). § 3742(C)(1); United States v. Denogean, 79 F.3d 1010, 1013-14 (10th Cir. 1996), cert. denied, 519 U.S. 856, In another unpublished decision concerning a Rule 1117 S.Ct. 154, 136 L.Ed. 2d 99 (1996); United States v. 11(e)(1)(C) plea agreement, we held that “once a district court Prieto-Duran, 39 F.3d 1119, 1120 (10th Cir. 1994). accepts a plea agreement where parties agreed on “a specific However, this is not a direct appeal of Mr. Trujeque's sentence or sentencing range,” the district court is bound by sentence, nor is it a collateral attack under 28 U.S.C. the parties’ plea agreement” and “cannot impose a sentence § 2255. Rather, Mr. Trueque has filed motion under 18 greater or less severe than what is in the plea agreement[]” U.S.C. § 3582 (c)(2). And the viability of his motion unless “the terms of the plea agreement are equivocal.” depends entirely upon that statute. Our appellate United States v. Debreczeny, 69 Fed. Appx. 702, 705, jurisdiction over final decision extends as far as to 2003WL21580433 * 3 (6th Cir 2003). In the latter instance, consider the district court's denial of Mr. Trujeque's § “the district court has discretion to interpret its terms.” Id. 3582 (c)(2) motion. We follow and adopt the rationale of these unpublished decisions. Id. at 870-71 (emphasis added). The Tenth Circuit then ruled that the defendant's sentence was not actually calculated Here, at the time of sentencing, the district court applied under the guidelines, but was determined by the Rule the parties’ calculations of the relevant guidelines to Peveler’s 11(e)(1)(C) plea agreement. Id. at 871. Thus, this retroactive plea agreement. Yet, this Court has not addressed whether a amendment could not have affected the original sentence, and district court has the authority to modify of a sentence under the Tenth Circuit directed a dismissal of the motion to a Rule 11(e)(1)(C) plea agreement based upon a retroactive modify. Id. Similarly, Peveler was sentenced pursuant to a amendment to a guideline that was utilized to determine the Rule 11(e(1)(C) plea agreement that binds both the parties defendant's sentence. and the court. The fact that the parties in this case specified an offense level under the sentencing guidelines rather than a The Seventh and Tenth Circuits have held that retroactive fixed period of imprisonment like the parties in Trujeque is a amendments to the sentencing guidelines provide legally distinction without a difference in terms of the court lacking insufficient basis on which to modify a sentence under a Rule the power to amend the plea agreement. 11(e)(1)(C) plea agreement. In United States v. Trujeque, 100 F.3d 869 (10th Cir. 1996), the Tenth Circuit observed In United States v. Hemminger, 114 F.3d 1192, 1997 WL that a district court lacked jurisdiction to consider a motion to 235838 (7th Cir. May 2, 1997), the Seventh Circuit affirmed modify a sentence under § 3582(c)(2), based upon the the denial of a motion to modify under § 3582(c)(2) based No. 02-5778 United States v. Peveler 17 18 United States v. Peveler No. 02-5778
upon a retroactive amendment to the relevant sentencing Assuming that Peveler is correct in his interpretation of guideline for the defendant's sentence. There, the Rule Amendment 599 as applied to his sentence3, we defer to the 11(e)(1)(C) plea agreement expressly stated that the agreed express language in the 1999 amendments to the former Rule sentence was not premised on the Court's or probation 11(e)(1)(C) and our unpublished decisions on that Rule.4 officer's calculation of the guidelines. The Seventh Circuit Thus, absent an agreement of the parties, the plain language ruled: of the current version of Rule 11(e)(1)(C), now Rule 11(c)(1)(C), generally precludes the district court from After accepting the agreement, the court "is not free to altering the parties' agreed sentence under 18 U.S.C. revisit the plea agreement simply because, for whatever § 3582(C). This conclusion applies despite the retroactivity reason, the defendant later comes back to the court for of a subsequent amendment to a relevant guideline utilized to resentencing." United States v. Ritsema, 89 F.3d, 399 determine the defendant's sentence. (7th Cir. 1996). See also United States v. Barnes, 83 F.3d 934, 938 (7th Cir. 1996). The sentence, under a For these reasons, we AFFIRM the district court's order. Rule 11(e)(1)(C) plea rests on the parties' agreement, not on the calculation under the Sentencing Guidelines. Of course, a defendant is entitled to contest a plea under Rule 11(e)(1)(C) on the same grounds that any other plea may be challenged--that it was involuntary, that is was the result of ineffective assistance of counsel, that the indictment does not state an offense, and so on. 3 There is authority to support Peveler’s contention that Amendm ent But Hemminger does not want to withdraw his plea and 599 precludes an enhancement above the guideline calculation where a go to trial; he does not contend that the plea is infirm on Section 924(c) conviction is among the related conduct leading to the any legal or factual ground; instead he wants to keep the calculation of the guidelines. See United States v. Aquino, 242 F.3d 859, benefits of the plea while receiving a lower sentence. 863-66 (9th C ir. 200 1); United States v. Wright, 7 Fed. Appx. 296, 2001 That possibility is one he bargained away in 1990. W L 420495 (4th Cir. 2001). In a word, the issue concerns the enhancement for related conduct, not whether the offenses occurred on Having received the benefits of his agreement, different dates. Hemminger must accept the portions favorable of the prosecutor. 4 This conclusion sho uld not be construed as a blanket bar to all such motions for relief. Fed. R . Crim. P. 35 (b) ha s been dee med a potential Id. at * 1. Himminger differs only in that Peveler's plea basis for relief in an “exceptional case,” Un ited States v. M ukia, 26 F.3d agreement provided that the district court would determine 953, 955 (9th C ir. 199 4). The First Circuit in dicta noted a “rare case” what the guideline calculation "should be." exception to allow mod ification “to avoid a misca rriage o f justice or to correct a mutual mistake.” Teeter, 257 F.3d at 28, n.12. We do not consider either of these potential exceptions here. T here is not a mutual mistake here, but rather a retroactive application of a guideline. We note, however, that with the two-level deduction sought, Peveler’s actual sentence is within the revised sentencing guideline range although the sentence is not at the low end of the revised guideline range as provided in the plea agreement. Peveler does not seek to set aside his plea agree ment.