                       Revised December 30, 2002

                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 01-11591




                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                VERSUS

                        FREDERICK PHILIP JETER,

                                                   Defendant-Appellant.



           Appeal from the United States District Court
                For the Northern District of Texas

                           December 16, 2002

Before JOLLY and DUHÉ, Circuit Judges, and LITTLE,1 District Judge.

DUHÉ, Circuit Judge:

      This appeal asks us to determine whether the district court

erred in rejecting defendant’s initial plea agreement, and whether

the district court engaged in plea negotiations.       Finding no abuse

of discretion in the rejection of the initial plea agreement and no

engagement in plea negotiations by the district court, we affirm.

                                  I.

      Frederick Philip Jeter was indicted on charges of being a


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     F.A. Little Jr., Senior U.S. District Judge, Western District
of Louisiana, sitting by designation.
felon in possession of firearms (Count 1), using or carrying a

firearm during and in relation to a drug trafficking crime (Count

2), and possession with intent to distribute cocaine base (Count

3).   Upon learning that the State of Texas was pursuing offenses

similar to those charged in Counts 2 and 3, the Government agreed

in the plea agreement to dismiss those counts; Jeter agreed to

plead guilty to Count 1, being a felon in possession of a firearm.

      The district court expressed concern about the disparity

between the sentence Jeter would face if convicted of all charges

and the sentence Jeter would face under the plea agreement.             The

plea agreement, the court said, would defeat one of the goals of

the   sentencing   guidelines,   i.e.,   to   ensure   that   repeat   drug

offenders receive harsher sentences for subsequent drug crimes.

The court also indicated that it might be unable to accept the plea

agreement if unable to make the findings required by U.S.S.G.

§ 6B1.2(a), i.e., that the remaining charge adequately reflected

the seriousness of the offense and that accepting the agreement

would not undermine the statutory purposes of the guidelines.2          Due


  2
      This Guideline provides,
   (a) In the case of a plea agreement that includes the dismissal
   of any charges . . . the court may accept the agreement if the
   court determines, for reasons stated on the record, that the
   remaining charges adequately reflect the seriousness of the
   actual offense behavior and that accepting the agreement will
   not undermine the statutory purposes of sentencing or the
   sentencing guidelines.
U.S.S.G. § 6B1.2.



                                   2
to these concerns, the district court deferred acceptance of the

plea agreement.

      After receiving additional information, the district court

noted that Jeter’s guideline sentencing range under the guilty plea

would be some 30 months lower than if Jeter were convicted of all

of the charges against him.       The district court also determined

that accepting the plea agreement would undermine one of the

objectives of the sentencing guidelines, which is to ensure that

prior drug offenses are taken into account in the sentencing for

future drug offenses.      Accordingly, the district court determined

that it could not make the findings contemplated by § 6B1.2 and

rejected the plea agreement.

      Thereafter, the parties entered into a second plea agreement:

Jeter would plead guilty to Counts 2 and 3, using and carrying a

firearm during a drug trafficking crime and possession with intent

to distribute cocaine base, and the Government would dismiss Count

1, being a felon in possession of a firearm.              The court accepted

that second plea agreement.

                                      II.

      Jeter   first   argues   that    the     district   court   abused     its

discretion when it rejected the initial plea agreement by usurping

the   Government’s    exclusive       authority     to    determine   when     a

prosecution should be terminated.            In addition, Jeter argues that

the   district   court’s   reasons     for    rejecting    the   initial   plea

agreement were misplaced.

                                       3
     We review a district court's rejection of a plea agreement for

abuse of discretion.        See United States v. Crowell, 60 F.3d 199,

205 (5th Cir. 1995); see also United States v. Foy, 28 F.3d 464,

473 (5th Cir.), cert. denied, 513 U.S. 1031 (1994).                 “A district

court abuses its discretion if it bases its decision on an error of

law or a clearly erroneous assessment of the evidence.”                   United

States v. Mann, 161 F.3d 840, 860, (5th Cir. 1998), cert. denied,

566 U.S. 1117 (1999).

     The     Government’s    authority     in   choosing     what    offenses   a

defendant will face is tempered by the role of the district court

in accepting or rejecting plea agreements.                   Fed. R. Crim. P.

11(e)(2)(district     court     “may     accept   or    reject      the   [plea]

agreement"); see also United States v. Adams, 634 F.2d 830, 835

(5th Cir. Unit A Jan. 1981) (Rule 11 does not limit a district

court's discretion in rejecting a plea agreement).                  Although the

Government initially believed that dismissing the counts similar to

pending state charges was appropriate, the district court correctly

pointed out that it could not accurately assume that those charges

would proceed in state court.

     In rejecting the initial plea agreement, the district court

noted   “a   three-year     discrepancy    between     the    bottoms     of   the

guideline ranges and a 30-month discrepancy between the top.”                   In

doing so, the district court concluded that the sentence Jeter

would receive under the initial plea agreement might be unduly

lenient.     The court's belief that the defendant would receive too

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light a sentence is a sound reason for rejecting a plea agreement.

Crowell, 60 F.3d at 205-06; Foy, 28 F.3d at 472; United States v.

Bean, 564 F.2d 700, 704 (5th Cir. 1977).

       The court also stated that it felt that a conviction under the

initial    plea    agreement      would       defeat   the   objectives   of    the

sentencing guidelines.            For these reasons, the district court

concluded that it could not make the findings contemplated by

§ 6B1.2(a).     A court may reject a plea agreement if it determines

that accepting the plea agreement will undermine the statutory

purposes of sentencing or the sentencing guidelines or if it finds

that    the   remaining      charges      do    not    adequately   reflect     the

seriousness of a defendant’s actual offense behavior. See U.S.S.G.

§   6B1.2(a);     Crowell,   60    F.3d   at     206   (affirming   rejection    of

agreement since district court determined that plea would not meet

standards of § 6B1.2(a)); Foy, 28 F.3d at 473 n.15 (holding that

district court’s rejection of plea under § 6B1.2(a) criteria would

not be an abuse of discretion).

       The district court relied on both the sentencing discrepancy

and its conclusion that the initial plea agreement did not satisfy

the objectives of the sentencing guidelines in rejecting the plea

agreement – both permissible grounds for rejecting a plea.                      See

Crowell, 60 F.3d at 205-06.               Accordingly, we find no abuse of

discretion in the court’s rejection of that agreement.

                                       III.

       Jeter next argues that the district court violated Rule

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11(e)(1) by engaging in plea negotiations.   Jeter contends that in

rejecting the initial plea agreement, the district court made it

clear that it would not accept any subsequent plea agreement that

did not result in a drug conviction.3        Jeter argues that the

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     Jeter contends statements in evaluating the initial plea
agreement    were   actually   suggestions   for   an    appropriate
accommodation in a subsequent plea agreement. At the first re-
arraignment hearing, the district court expressed concerns about
the anticipated sentencing range and stated,
      That’s always caused me some concern, that if a plea
   agreement is accepted and a plea is made pursuant to a non-
   drug offense, it sort of bypasses the intent of the statute
   where if somebody who has committed a certain number of drug
   offenses will receive a certain punishment. You frustrate
   that objective if the plea -- if he’s committed a drug offense
   but is pleading to something else.
   During a later conference, the court reiterated,
   Another issue that I’ve always had a concern about where
   you’re trading off a drug conviction for something other than
   a drug conviction, then you’re defeating an objective of the
   sentencing provisions in the statute and that is that if he in
   the future is convicted of a drug offense, then his punishment
   at that time will be based in part on his history of drug
   offenses.     And when you have a plea agreement that
   contemplates that he won’t plead guilty to a drug offense that
   he, in fact, is guilty of, if that is the case, then that
   defeats that statutory objective of sentencing.
   Rejecting the initial plea agreement, the district court
discussed the requirements of Guideline § 6B1.2(a), noted the
discrepancy between the sentencing range after the plea and the
range after a conviction on all charges, and stated,
   In other words, if I were to approve the plea agreement and
   sentence on the basis of the plea agreement, then there would
   not be a conviction for the drug offense with the consequence
   that one of the objectives of sentencing, that is, the prior
   drug offenses, be taken into account in the sentencing for
   future drug offenses would be defeated. So, I’ve concluded
   that I cannot make the determinations contemplated by Section
   6B1.2; therefore, I’ve concluded that I cannot accept the plea
   agreement.
   Considering the second plea agreement, the district court again
expressed concern over the disparity in sentencing ranges.        At
sentencing, the court stated:
      I’m not going to approve the plea agreement in the sense

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district court’s concerns dictated the outcome of his case.

       A district court is absolutely prohibited from participating

in plea negotiations.        Fed. R. Crim. P. 11(e)(1); United States v.

Miles, 10 F.3d       1135, 1139 (5th Cir. 1994).              Judicial involvement

in the plea negotiation process is to be strictly limited to

rejection of the agreement and an explanation for the rejection.

See id. at 1139-40; Fed. R. Crim. P. 11(e)(3). Nevertheless, under

Rule   11    “a   district    court      must     actively      participate    in   the

discussions that occur after a plea agreement is disclosed."

Crowell, 60 F.3d at 203.

       The   fact    that   the    parties       rely   on   the    district   court’s

comments     in     fashioning     a    subsequent       plea      agreement   is    not

determinative       of   whether       the   district    court      engaged    in   plea

negotiations.        Id. at 204.         Rather, when evaluating a district

court’s comments concerning a plea agreement, “[t]he proper inquiry

is whether the district court was actively evaluating a plea

agreement, as the court is required to do, or whether the court is

suggesting an appropriate accommodation for a subsequent plea

agreement, something this Court found prohibited in Miles.”                         Id.



  contemplated by the guidelines because I can’t make the
  findings that would be required for me to apply the -- approve
  it under the standard proposed by the guidelines, and normally
  I would not approve a plea agreement of this kind.         But
  somewhat because of the history of this case, I’m going to go
  ahead and accept the plea agreement, but it’s not in a sense
  that I approve it or think it’s a proper plea agreement. I’m
  simply going to go forward with the sentencing and not reject
  the plea agreement.

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     We observe that the district court did not engage in plea

negotiations; rather, it properly stated its reasons for rejecting

the plea agreement.    The district court merely expressed its

concerns with the initial plea agreement, and did not suggest an

appropriate accommodation for a subsequent plea.   Nowhere did the

district court state, as Jeter contends, that a plea would have to

result in a drug conviction in order to be acceptable.   See supra

n.3; cf. Crowell, 60 F.3d at 203 (finding a violation of Rule 11 in

district court’s suggestion that, for a plea to be acceptable, “a

sentence significantly in excess of what [Crowell] likely would

serve under the prior . . . plea agreement would be required”).

     In this case the district court neither interfered with

ongoing plea negotiations, as in Crowell, nor specified what plea

agreement would be acceptable, as in Miles.        Accordingly the

judgment of the district court is

     AFFIRMED.




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