                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 3 1998
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellant,

               v.                                       No. 97-2377
                                                  (D.C. No. CR-97-284-BB)
 BARRY WES BIGGS,                                        (D. N.M.)

          Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before BALDOCK, BRISCOE, and LUCERO, Circuit Judges.


      Defendant Barry Wes Biggs pleaded guilty to assault resulting in serious

bodily injury and was sentenced to thirty months’ imprisonment. The government

appeals, contending the district court erred in not sentencing Biggs to thirty-six

months’ imprisonment as contemplated by the plea agreement. We remand the

case to the district court with directions to vacate Biggs’ sentence and conduct a



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
hearing at which the court should explicitly accept or reject the plea agreement.

      On May 7, 1997, Biggs was charged in Count I with assault with a

dangerous weapon with intent to do bodily harm, a violation of 18 U.S.C. §

113(a)(3), and in Count II with assault resulting in serious bodily injury, a

violation of 18 U.S.C. § 113(a)(6). Biggs and the government entered into a plea

agreement whereby Biggs agreed to plead guilty to Count II and to be sentenced

to thirty-six months’ imprisonment, and the government agreed to dismiss Count I

and to not bring additional charges. The court held a change of plea hearing on

July 25, 1997, and the court accepted Biggs’ guilty plea to Count II. On October

16, 1997, the court sentenced Biggs to thirty months’ imprisonment.

      The government contends our decision in     United States v. Veri , 108 F.3d

1311 (10th Cir. 1997), required the court to sentence Biggs in accordance with the

plea agreement. Biggs claims the court rejected the plea agreement and sentenced

him based on his guilty plea alone. The issue for our determination is whether the

district court accepted or rejected the plea agreement.

      A court “may accept or reject the [plea] agreement or may defer its decision

as to the acceptance or rejection until there has been an opportunity to consider

the presentence report.” Fed. R. Crim. P. 11(e)(2). If the court accepts the

agreement, it “shall inform the defendant that it will embody in the judgment and

sentence the disposition provided for in the plea agreement.” Fed. R. Crim. P.


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11(e)(3). If, on the other hand, the court rejects the plea agreement, the court

       shall, on the record, inform the parties of this fact, advise the
       defendant personally in open court . . . that the court is not bound by
       the plea agreement, afford the defendant the opportunity to then
       withdraw the plea, and advise the defendant that if the defendant
       persists in a guilty plea or plea of nolo contendere the disposition of
       the case may be less favorable to the defendant than that
       contemplated by the plea agreement.

Fed. R. Crim. P. 11(e)(4).

       We are unable to determine from the record whether the district court

accepted or rejected the plea agreement. At Biggs’ change of plea hearing, the

court stated:

       Mr. Biggs, since you, in fact, acknowledge that you are guilty of
       Count II of the complaint, and since you understand your right to a
       trial, what the maximum punishment is, and since you are voluntarily
       pleading guilty, I will accept your guilty plea and enter a judgment of
       guilty on your behalf.
               The Court will find the defendant’s plea is free and voluntary;
       the defendant fully understands the charge and the penalty; and     that
       the plea agreement has been properly executed and signed and it will
       now be filed . The Court will further find that there is a factual basis
       for the plea.

Record II at 12-13 (emphasis added). This dialogue makes plain the district court

intended to accept Biggs’ guilty plea. However, acceptance of a guilty plea and

acceptance of a plea agreement are distinct matters. The only reference the court

made to the plea agreement itself is that it had been “properly executed and

signed and it will now be filed.”   Id. Given the subsequent course of proceedings

in the district court, we are hesitant to assume the court by this statement was

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attempting to convey acceptance of the agreement. In any event, this statement

falls short of satisfying the directive in Rule 11(e)(3) that the court “inform the

defendant that it will embody in the judgment and sentence the disposition

provided for in the plea agreement.”

      Matters were not clarified at the sentencing hearing. At one point during

the hearing, defense counsel asked the court to “reject the sentencing agreement”

and allow Biggs to withdraw his guilty plea. Record III at 10. Later, the court

asked the government about its position on “withdrawing the sentencing

agreement.” Id. at 13. Finally, the court stated it was “going to permit Mr. Biggs

to withdraw his sentencing agreement.”      Id. at 15. At the least, these statements

evidence an intent to withdraw the sentencing agreement. If so, the court must

have rejected the entire plea agreement because, under     Veri and Rule 11(e)(1)(C)

and (3), it could not accept the plea agreement but depart from the sentence

specified therein. Notwithstanding this apparent intent to reject the plea

agreement, the court, consistent with    adoption of the plea agreement, later

dismissed Count I of the indictment.     See Record I, Doc. 28. The government

correctly notes it agreed to move for dismissal of Count I only if the plea

agreement was accepted. Dismissal of Count I appears to have proceeded from

the assumption of court personnel that the plea agreement had been accepted.

Although judgment entered reflects Count I was dismissed “on motion of the


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United States,” the government did not move for dismissal of Count I.      Id.

Further, we find no evidence in the record to indicate, as Biggs suggests, that

Count I was dismissed pursuant to Fed. R. Crim. P. 48(b) for “unnecessary delay

in bringing a defendant to trial.”   See Appellee’s Br. at 11.

       Considered collectively, the statements and conduct of the district court

throughout the proceedings are consistent both with acceptance and rejection of

the plea agreement. Nowhere in the record did the court explicitly and

unambiguously accept or reject the plea agreement as required under Rule

11(e)(3) and (4). We are therefore compelled to remand this case to the district

court with directions to vacate Biggs’ sentence and to reinstate Count I. The

district court should then explicitly accept or reject the plea agreement. If the

court accepts the agreement and so finds on the record in accordance with Rule

11(e)(3), then under Veri , it must sentence Biggs to thirty-six months’

imprisonment as contemplated by the plea agreement. If the court rejects the

agreement, it must so advise Biggs in accordance with Rule 11(e)(4) and proceed

accordingly.




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      REMANDED to the district court with directions to vacate Biggs’ sentence,

reinstate Count I, and either accept or reject the plea agreement.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




                                         -6-
97-2377, United States of America v. Biggs

LUCERO , Circuit Judge, dissenting.

      I agree with the majority that “considered collectively, the statements and

conduct of the district court throughout the proceedings are consistent both with

acceptance and rejection of the plea agreement.” Maj. Op. at 5. However, the

government’s argument that the district court erred by imposing a thirty-month

sentence can only carry weight if the district court accepted, but did not reject, the

plea agreement. The reason is straightforward. If the district court rejected the

plea agreement, or never accepted it in the first place, then the only grounds for

error would be the dismissal of Count 1, which matter the government

conspicuously fails to appeal. Because the government nowhere explains how the

record supports a conclusion of acceptance   only , I must respectfully dissent.

      As a matter of logic, and consonant with Fed. R. Crim. P. 11(e)(2), the

district court must either have accepted the plea agreement or refused to do so. If

the plea agreement was never accepted, then the government fails to assert

correctable error on appeal. In the absence of a plea agreement, Biggs’s thirty-

month sentence is not erroneous—or, at least, not for any reason stated by the

government. In such circumstances, it might of course have been error for the

district court to dismiss Count 1. But the government fails to appeal that

dismissal; instead, it only appeals Biggs’s sentence.

      The government is therefore obliged to argue that the plea agreement was
instead accepted. But the government must actually do more than that.

Specifically, it has to persuade us that the agreement was accepted but not

subsequently rejected by the district court. If the plea agreement was rejected

after its acceptance, the government is again blocked by its failure to appeal the

dismissal of Count 1.

      I simply do not see that the record sustains the government’s position.

According to the government, the district court accepted the plea agreement

despite its complete failure to follow the formal requirements of Fed. R. Crim. P.

11(e)(3), namely that the district court “inform the defendant that it will embody

in the judgment and sentence the disposition provided for in the plea agreement.”

But if the government would have us adopt such a finding, it is incumbent upon

them to explain why or how the district court’s refusal to hold Biggs to the agreed

sentence and its statement that it was “going to permit Mr. Biggs to withdraw his

sentencing agreement,” III Tr. at 15, does not also amount to rejection of the plea

agreement. The government never even attempts to explain why the district court

need not formally follow Rule 11(e)(3) to accept a plea agreement, but it must

follow Rule 11(e)(4) to the letter in order to reject one.

      Instead, the government attempts to argue that the dismissal of Count 1 was

“pursuant to the plea agreement,”   Appellant’s App. at 7, which must therefore

have been in force. That argument fails, not least because dismissal of Count 1


                                          -2-
could only be pursuant to the plea agreement had the government moved for such

dismissal, see Plea Agreement at 4, and the government concedes it never made

such a motion. The closely related argument that the district court only enforced

the plea agreement against the government, but not against Biggs, is similarly

flawed. The government nowhere explains how it was “held” to the plea

agreement. See Appellant’s App. at 13. Indeed, it is hard to see how it could.

The district court never forced—nor even requested—the government to file a

motion to dismiss Count 1. And, as noted, the government never moved to

dismiss that count as required under the plea agreement. The district court simply

dismissed Count 1.

      In short, the record can only support two possible conclusions about the

acceptance and rejection of the plea agreement: the agreement was either not

accepted, or, if was accepted, it was subsequently rejected. Under either of these

scenarios, Biggs’s sentence is not in error. It is certainly possible—even, to my

mind, highly probable—that the dismissal of Count 1 was erroneous. But the

government has failed to appeal that dismissal. Because I believe the majority

fails to accord that failure appropriate significance, I would affirm the judgment of

the court below.




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