                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0534n.06
                                                                                            FILED
                                           No. 11-3506
                                                                                      Aug 02, 2011
                          UNITED STATES COURT OF APPEALS
                                                                                LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellant.                           ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
v.                                                    SOUTHERN DISTRICT OF OHIO

STEPHANIE CORSMEIER,

       Defendant-Appellee.

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BEFORE:        MARTIN, CLAY, and KETHLEDGE, Circuit Judges.

       PER CURIAM. The government appeals the sentence imposed by the district court upon

Defendant’s plea of guilty to a single violation of 18 U.S.C. § 1349. In a written plea agreement

(“Plea Agreement”), Defendant and the government agreed that “a sentence that includes an 18-

month term of imprisonment is the appropriate disposition of this case.” The district court accepted

the agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, and after

considering the factors set forth in 18 U.S.C. § 3553(a), sentenced Defendant to “a total term of 18

months imprisonment,” consisting of three months in prison followed by fifteen months in a halfway

house as a condition of supervised release. The government now appeals on the basis that the district

court breached the Plea Agreement.
                                           No. 11-3506

          By sentencing Defendant to confinement in a federal prison for three months followed by

confinement in a halfway house for the next 15 months, for a total of 18 months of confinement, the

district court satisfied its obligation under the Plea Agreement. To the extent the phrase “term of

imprisonment” is ambiguous as to the type of confinement that should be imposed, the district court

properly resolved this ambiguity in favor of its “independent obligation to exercise its discretion”

to fashion an appropriate sentence. Freeman v. United States, 131 S. Ct. 2685 (2011) (plurality)

(discussing the district court’s “independent obligation to exercise its discretion” to fashion an

appropriate sentence); see also 18 U.S.C. §§ 3553, 3582; United States v. Booker, 543 U.S. 220

(2005).

          Accordingly, there being no error to complain of, the district court’s judgment is

AFFIRMED.




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                                            No. 11-3506

        KETHLEDGE, Circuit Judge, dissenting. Criminal Procedure Rule 11(c)(1)(C) states that

a sentencing recommendation set forth in a plea agreement “binds the court once the court accepts

the plea agreement.” (Emphasis added.) The district court in this case “accept[ed] the Rule

11(c)(1)(C) agreement entered into by the parties[.]” Statement of Reasons at 5. That agreement

stated that “a sentence that includes an 18-month term of imprisonment is the appropriate disposition

of this case.” Plea Agreement ¶ 3. A person subject to a “term of imprisonment” is “committed to

the custody of the Bureau of Prisons until the expiration of the term imposed, or until earlier released

for satisfactory behavior[.]” 18 U.S.C. § 3621(a). Thus, per the plea agreement here, Corsmeier

should have been committed to the custody of the Bureau of Prisons for 18 months. But the district

court’s judgment provides: “The defendant is hereby committed to the custody of the United States

Bureau of Prisons to be imprisoned for a total term of THREE (3) MONTHS.” (Emphasis in

original.)

        The district court does not have discretion to violate Rule 11(c)(1)(C). See, e.g., Freeman

v. United States, 564 U.S. __, 2011 WL 2472797 at *9 (2011) (Sotomayor, J., concurring in the

judgment) (the “very purpose of (C) agreements” is to “bind the district court and allow the

Government and defendant to determine what sentence he will receive”); United States v. Mandell,

905 F.2d 970, 972 (6th Cir. 1990) (“once the district court accepts the plea agreement, it is bound

by the bargain”). Here, the district court’s judgment violates Rule 11(c)(1)(C) because it commits

Corsmeier to the custody of the Bureau of Prisons for three months rather than 18. That she will

spend 15 months in a halfway house during her term of supervised release does not change the fact

of the violation, because she will not be in the custody of the Bureau of Prisons during that time.


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                                          No. 11-3506

       Corsmeier’s sentence is contrary to law. I would vacate the district court’s judgment and

remand for resentencing consistent with the plea agreement. Thus, I respectfully dissent.




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