U.S. v. Bennett, 92-1865

• Decision Date: 13 April 1993
• Docket Number: No. 92-1865,92-1865
• Citation: 990 F.2d 998
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eddie BENNETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 998

990 F.2d 998

UNITED STATES of America, Plaintiff-Appellee, v. Eddie BENNETT, Defendant-Appellant.

No. 92-1865.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 12, 1992.

Decided April 13, 1993.

Byron G. Cudmore, Asst. U.S. Atty. (argued), Springfield, IL, for plaintiff-appellee.

A. Michael Kopec (argued), Stratton, Dobbs & Nardulli, Springfield, IL, for defendant-appellant.

Before MANION and ROVNER, Circuit Judges, and REYNOLDS, Senior District Judge. ^*

MANION, Circuit Judge.

Eddie Bennett pleaded guilty to conspiring to distribute cocaine, and he entered into a plea agreement with the government. The agreement provided that Bennett and the government could recommend sentences to the district court and that Bennett was not a career offender. When preparing the presentence investigation report ("PIR"), the Probation Department located an additional violent felony conviction for Bennett, making him a career offender and causing a higher sentencing level than the one the plea agreement provided. On appeal, Bennett argues that the district court erred by sentencing him as a career offender, contrary to the plea agreement. He also contests the district court's compliance with Federal Rule of Criminal Procedure 11(e)(2). We affirm.

I. Background

In September 1991, a grand jury indicted Bennett under 21 U.S.C. §§ 841(b)(1)(C), 846 with conspiracy to distribute cocaine. Bennett pleaded not guilty, but he later changed his plea to guilty and entered into a plea agreement with the government pursuant to Federal Rule of Criminal Procedure 11. The plea agreement included: Bennett's promise of cooperation with law enforcement officials, the extent and value of which the government would present to the judge at sentencing; an agreement that both the government and Bennett could recommend a sentence each deemed appropriate, but the court would be bound by neither; a stipulation that Bennett was not a career offender under section 4B1.1 of the Sentencing Guidelines; and Bennett's acknowledgement that the plea agreement was completely voluntary, made with his full understanding of its contents.

At the change of plea hearing, the district court reviewed Bennett's plea agreement with him. The court advised Bennett that the plea agreement was a contract solely between himself and the government and that its terms did not obligate the court in any way. The court also informed Bennett that it would listen to the parties' recommendations regarding sentencing, but that it was not required to follow any of those recommendations. Bennett said he understood. The district court emphasized to Bennett that it could sentence him to the statutory maximum prison term of twenty years and impose the statutory maximum fine of one million dollars. The court also informed Bennett that it would be ordering Probation to prepare a PIR and it would use the PIR to determine Bennett's appropriate sentence, not exceeding the statutory maximum. Bennett said he understood and further stated that he did not have any questions about the punishment he would receive. He also assured the court that no one had guaranteed him any particular sentence.

The court then admonished Bennett to adhere to his promise in the plea agreement to cooperate fully with the government in its criminal investigations. The court informed Bennett that his complete cooperation was essential because he had so agreed and because only the government could request a downward departure sentence for his substantial assistance. The court also instructed Bennett that "under no circumstance are you going to be able to withdraw your plea of guilty here today." Bennett said he understood.

Bennett brought the career offender stipulation to the court's attention. The government stated that it was "agreeing that the defendant was not a career offender, based upon the convictions that we know of." (Emphasis added.) After Bennett said he had no further questions about the plea agreement, the court found the agreement to be in proper form, accepted the agreement, and entered it into the record. The court ordered the preparation of the PIR.

In compiling the PIR, Probation discovered that Bennett had committed an additional violent felony, which the plea agreement failed to include. The additional offense categorized Bennett as a career offender. Based on his career offender status, Probation concluded that Bennett had an offense level of thirty-two and a criminal history category of six. Probation adjusted Bennett's Guidelines range pursuant to section 5G1.1(c)(1) of the Sentencing Guidelines to 210 to 240 months. The adjusted sentencing range was greater than the range set forth in the plea agreement, which was seventy-seven to ninety-six months, based on an offense level of twenty-four and a criminal history category of four.

Both the government and Bennett objected to the career offender finding in light of the stipulation in the plea agreement that Bennett was not a career offender. They claimed they were unaware of the additional conviction when they entered into the agreement. The government, however, conceded "that the stipulation in the Plea Agreement [was] not binding on the Court." In contrast, Bennett argued that he expected to be sentenced pursuant to his plea agreement and "that his expectation should be honored."

Bennett then moved the district court for leave to withdraw his guilty plea. Because he had entered into the plea agreement anticipating that he would not be sentenced as a career offender, Bennett argued that, owing to the greater sentence he would now receive, he did not knowingly and voluntarily plead guilty. The district court denied Bennett's motion. The court found that Bennett admitted during his plea hearing that a factual basis for his guilty plea existed and that Bennett realized the court was not bound by the terms of the plea agreement.

At Bennett's sentencing hearing, the district court considered each party's objection to the PIR concerning Bennett's career offender status. Based on section 6B1.4(d) of the Sentencing Guidelines, the court concluded that it did not have to follow the stipulation in the plea agreement regarding Bennett's career offender status. ¹ The court then accepted the sentencing recommendation in the PIR and set Bennett's offense level at thirty-two, his criminal history category at six, and his adjusted sentencing range at 210 to 240 months. The government moved the district court under section 5K1.1 of the Sentencing Guidelines to lower Bennett's sentence by thirty percent because he had provided the government with substantial assistance. The court granted the motion to depart downward and sentenced Bennett to 147 months in prison and five years of supervised release. This timely appeal followed.

II. Analysis

Part of the dispute on appeal concerns the type of plea agreement the parties made. Bennett claims the government entered into an agreement for a specific sentence, while the government insists the agreement was no more than a nonbinding recommendation to the court. Federal Rule of Criminal Procedure 11(e)(1) provides for three types of plea agreements, which permit the attorney for the government to agree to

(A) move for dismissal of other charges; or

(B) make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or

(C) agree that a specific sentence is the appropriate disposition of the case.

Fed.R.Crim.P. 11(e)(1)(A)-(C). ² In shorthand terms, these are referred to as type "A," "B," and "C" agreements. Once the parties enter into a plea agreement, the district court must require disclosure of the agreement in open court, if an in camera proceeding is not otherwise appropriate. Id. 11(e)(2). ³ If the plea agreement includes the dismissal of any charges, id. 11(e)(1)(A) (a type "A" plea agreement), or if the agreement includes a specific sentence, id. 11(e)(1)(C) (a type "C" plea agreement) the district court may accept or reject the plea agreement, or it may defer its decision regarding acceptance or rejection until it considers the presentence investigation report. Id. 11(e)(2). In contrast, if the plea agreement includes sentencing recommendations or the government's promise not to oppose the defendant's sentencing requests, id. 11(e)(1)(B) (a type "B" plea agreement), the district court must advise the defendant of the nonbinding effect the recommendations have on the court and must also inform the defendant that he may not withdraw his guilty plea, even if the court does not adopt the recommendations. Id. 11(e)(2). The district court does not need to make such an admonition when dealing with a type "A" or "C" plea agreement. Id.

Pursuant to Rule 11(e)(3), if the district court accepts either a type "A" or "C" plea agreement, the court must inform the defendant that it will embody in the final judgment and the sentence the "disposition provided for" in the accepted plea agreement. Id. 11(e)(3). ⁴ The district court must fulfill the requirements of Rule 11(e)(3), because "critical to a type (A) or (C) agreement is that the defendant receive the contemplated charge dismissal or agreed-to sentence." Id. 11(e)(2), Advisory Committee Note to the 1979 Amendment. The acceptance provision of Rule 11(e)(3), however, does not apply when a district court is dealing with a type "B" plea agreement. "[T]here is no 'disposition provided for' in [a type "B"] plea agreement so as to make the acceptance provisions of subdivision (e)(3) applicable, nor is there a need for rejection with opportunity for withdrawal under subdivision (e)(4) in light of the fact that the defendant knew the nonbinding character of the recommendation or request." ⁵ Id.; see also 1 Charles A. Wright, Federal Practice and Procedure § 175.1, at 649 (1982) ("Since a Type B agreement contemplates a...