In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1729

United States of America,

Plaintiff-Appellee,

v.

Cornell R. Byrd,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00-0074M-X-01--John C. Shabaz, Judge.

Argued August 7, 2001--Decided August 27, 2001


  Before Coffey, Kanne, and Williams, Circuit
Judges.

  Per Curiam. Cornell Byrd pleaded guilty
to simple assault on an officer engaged
in the performance of official duties, 18
U.S.C. sec. 111(a)(1), and was sentenced
to the statutory maximum penalty of 12
months’ imprisonment. He now claims that
the district court effectively denied him
credit for acceptance of responsibility,
U.S.S.G. sec. 3E1.1, by sentencing him to
the statutory maximum. Alternatively,
Byrd maintains that the government
violated the spirit of the plea agreement
by recommending a sentence at the highest
end of his guideline range. We affirm in
part and dismiss for want of jurisdiction
in part.

  In 1999 Byrd was convicted on two counts
of assaulting and interfering with
federal officers, 18 U.S.C. sec.
111(a)(1), and was sentenced to
concurrent 36-month terms of
imprisonment. On appeal, however, we held
that the district court abused its
discretion by refusing to let Byrd
present certain favorable evidence, and
thus remanded for a new trial. United
States v. Byrd, 208 F.3d 592 (7th Cir.
2000).

  Before retrial Byrd pleaded guilty to an
information charging him with only one
count of simple assault. In exchange for
the plea, the government agreed to
dismiss the original charges and to
recommend that Byrd receive a two-level
reduction for acceptance of
responsibility.

  In the presentence report, the probation
officer adopted the government’s
recommendation and credited Byrd with a
two-level downward adjustment for
acceptance of responsibility under
U.S.S.G. sec. 3E1.1. The probation
officer then determined Byrd’s adjusted
offense level to be 4, which, when
coupled with his criminal history
category of VI, produced a sentencing
range of 6 to 12 months. If Byrd had not
received the two-point reduction for
acceptance of responsibility, his
guideline range would have been 12 to 18
months.

  At sentencing before a magistrate judge,
the government recommended that Byrd be
sentenced at the highest end of his
guideline range, i.e., to a 12-month term
of imprisonment. In response Byrd argued
that imposing a 12-month sentence would
in essence deprive him of any benefit for
acceptance of responsibility because 12
months was the maximum sentence he could
have received by statute. The magistrate
judge disagreed, however, concluding that
"in the larger sense Mr. Byrd has gotten
the benefit of acceptance of
responsibility and he’s gotten a just
deal here because . . . the government
has removed the felony charges and there
is no possibility of a three-year
sentence any more." The magistrate judge
also found that a sentence at the top of
the guidelines range was "necessary to
hold [Byrd] accountable for his criminal
conduct and . . . to serve as an
individual and general deterrent." Based
on these factors, the magistrate judge
sentenced Byrd to 12 months’ imprisonment
with a recommendation that the last three
months be spent in a community
corrections center. Byrd appealed to the
district judge, see Fed. R. Crim. P.
58(g)(2), who affirmed the magistrate
judge’s decision.

  On appeal Byrd first claims that the
district court abused its discretion by
sentencing him to the statutory maximum
penalty. But as we have repeatedly held,
absent an error of law or misapplication
of the guidelines, there is no appellate
jurisdiction over a district court’s
choice of a sentence within an otherwise
correct guideline range. E.g., United
States v. Crucean, 241 F.3d 895, 898 (7th
Cir. 2001); United States v. Ward, 211
F.3d 356, 367 (7th Cir. 2000); United
States v. Hardy, 101 F.3d 1210, 1212 (7th
Cir. 1996); United States v. Solis, 923
F.2d 548, 551-52 (7th Cir. 1991); see
also 18 U.S.C. sec. 3742(a) (listing the
circumstances in which a defendant may
seek review of an otherwise final
sentence, including if the sentence was
imposed "in violation of law" or as a
result of an incorrect application of the
guidelines). Here, Byrd claims that his
sentence was imposed "in violation of
law" because "although within the
guideline range, it awarded no credit for
acceptance of responsibility." We
disagree. The probation officer, in
evaluating Byrd’s offense level, included
a two-level reduction for acceptance of
responsibility, yielding a sentencing
range of 6 to 12 months (down from 12 to
18 months). Byrd concedes that his guide
line range was properly calculated and
fails to give any reason why the district
court’s discretionary decision to
sentence him at the top of that range was
"in violation of law" within the meaning
of 18 U.S.C. sec. 3742(a). Cf. United
States v. Poff, 926 F.2d 588, 590 (7th
Cir. 1991) (decision not to depart from
the sentencing guidelines is reviewable
on appeal if it results from a legal
conclusion that the judge lacks authority
to depart). We therefore lack
jurisdiction to review his claim.

  Next, Byrd submits that although the
government did not overtly violate the
terms of the plea agreement (because it
did agree with the two-level reduction
for acceptance of responsibility), it
breached the agreement in spirit by
requesting a 12-month sentence. But the
plea agreement does not bind the
government to recommend a particular
sentence within the guideline range and
in fact specifically provides that "the
United States has made no promises or
guarantees regarding the sentence which
will be recommended by the United States
or imposed by the Court." The agreement
further states that "[t]he United States
reserves the right to make whatever
comments it deems relevant to the
sentencing process." In short, the
agreement does not in any way restrict
the government from recommending a
sentence at the top of the guideline
range, and so no breach occurred. See
United States v. Scroggins, 965 F.2d 480,
483 (7th Cir. 1992) (government did not
breach plea agreement by recommending an
upward departure where the agreement did
not bind it to recommend any specific
sentence within the guideline range);
United States v. Moore, 931 F.2d 245, 250
(4th Cir. 1991) (government’s promise to
refrain from recommending a specific
sentence did not restrict the government
from seeking a severe prison term).

Affirmed in part, Dismissed for
want of jurisdiction in part.
