                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAR 22 1999
                            FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                  No. 98-2106
                                                  (D.C. No. CR-97-446-JC)
    JASON CORY BARBER, also known                        (D. N.M.)
    as David Barrett, also known as Aaron
    Brown,

                Defendant-Appellant.




                            ORDER AND JUDGMENT          *




Before BRORBY , EBEL , and LUCERO , Circuit Judges.




         Defendant Jason Corey Barber pled guilty to one count of possession with

intent to distribute 100 grams or more of methamphetamine in violation of

21 U.S.C. § 841(b)(1)(B). Mr. Barber believed, mistakenly, that he would receive

a sentence of nine to eleven years’ imprisonment under his plea bargain. Because


*
      This order and judgment is not binding precedent, except under the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.
he was a career offender, as defined in § 4B1.1 of the United States Sentencing

Commission, Guidelines Manual (Guidelines), he was sentenced to approximately

fifteen years’ imprisonment. Mr. Barber appeals, seeking specific performance of

the sentence that he expected to receive under the terms of his plea agreement.    1



We have jurisdiction under 28 U.S.C. § 1291 and we affirm.


                                    I. Background.

      Mr. Barber was originally charged with one count of possession with intent

to distribute more than 100 grams of methamphetamine in violation of

21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and one count of possession with intent to

distribute less than 50 kilograms of marijuana in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(D). The government also filed an enhancement

information pursuant to 21 U.S.C. § 851 stating that Mr. Barber had a prior felony

conviction and, therefore, the enhanced penalty provisions of

21 U.S.C. § 841(b)(1)(B) should be applied.      2
                                                     Pursuant to the enhanced penalty

1
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
2
      21 U.S.C. § 851 provides, in part, that:

      [n]o person who stands convicted of an offense under this part shall
      be sentenced to increased punishment by reason of one or more prior
      convictions, unless before trial, or before entry of a plea of guilty,
                                                                        (continued...)

                                           -2-
provisions of 21 U.S.C. § 851, Mr. Barber faced a mandatory minimum sentence

of ten years to life imprisonment.

         Mr. Barber agreed to enter a guilty plea to the methamphetamine charge in

exchange for the government’s agreement to dismiss the marijuana charge and the

enhancement information. A written plea agreement was signed to this effect and

was presented to the district court at a plea hearing. During plea negotiations and

at the plea hearing, both the United States Attorney and Mr. Barber’s counsel

believed that Mr. Barber had only one prior felony conviction. Based on this

belief, the government estimated that Mr. Barber’s sentence under the plea

agreement would be between nine and eleven years’ imprisonment.

         In fact, as determined by the probation officer in the presentence report

prepared after the plea hearing, Mr. Barber had three prior felonies. The

presentence report recommended that Mr. Barber be classified as a career

offender under U.S.S.G.     § 4B1.1 because he had at least two prior felony

convictions involving controlled substance offenses. Under the enhanced career

offender sentencing provisions of U.S.S.G. § 4B1.1, Mr. Barber’s criminal history




2
    (...continued)
          the United States attorney files an information with the court (and
          serves a copy of such information on the person or counsel for the
          person) stating in writing the previous convictions to be relied upon.

                                            -3-
category was Category VI, resulting in a sentence under the plea agreement of

188 to 235 months’ (15.6 to 19.6 years’) imprisonment.

      Mr. Barber objected to the presentence report, arguing that the court lacked

jurisdiction to enhance his sentence under the career offender provisions because

the government had agreed to dismiss the 21 U.S.C. § 851 enhancement

information. Mr. Barber argued he was not receiving the benefit promised by the

plea agreement because the enhanced career offender sentence of 188 to 235

months was substantially the same sentence that the government had estimated his

sentence would be if he did not plead guilty. He also argued that the government

had failed to disclose to him that he had more than one felony conviction and had

never raised the possibility that he would be classified as a career offender.

      At the sentencing hearing, the government offered to allow Mr. Barber to

withdraw from his plea agreement and proceed to trial. Instead, the district court

continued the hearing to allow the government time to consider a different plea

with a sentence within the range that Mr. Barber had anticipated he would receive

under the plea agreement. The parties did not reach any new agreement. At the

second sentencing hearing, the government renewed its offer to allow Mr. Barber

to withdraw from the plea agreement, but Mr. Barber declined. He asked for

specific performance of a sentence between nine and eleven years’ imprisonment,

based on the government’s original estimate of his sentence under the plea


                                         -4-
agreement. The district court rejected his arguments, sentencing him to 188

months under the career offender provisions.


                                        II. Analysis.

       Mr. Barber presents numerous arguments on appeal in support of his claim

that the government breached the terms of the plea agreement and that he is

entitled to specific performance of the agreement, as he understood its terms. Mr.

Barber does not assert he should be allowed to withdraw his guilty plea.

       “Where the government obtains a guilty plea predicated in any significant

degree on a promise or agreement of the prosecuting attorney, such promise must

be fulfilled to maintain the integrity of the plea.”      See United States v. Byre , 146

F.3d 1207, 1209 (10th Cir. 1998). “To determine whether a breach has, in fact,

occurred, we apply a two-step process: (1) we examine the nature of the

government’s promise; and (2) we evaluate this promise in light of the

defendant’s reasonable understanding of the promise at the time the guilty plea

was entered.”    Id. at 1210. “We apply general principles of contract law to define

the nature of the government’s obligations in a plea agreement.”         Id.

“Accordingly, we determine the government’s obligations by reviewing the

express language used in the agreement.”            Id.

       Mr. Barber asserts he relied upon the government’s “representations” of a

sentence between nine to eleven years in deciding to enter his guilty plea. He

                                              -5-
bases this argument on two estimates of his sentence made by the government

prior to the presentence report. First, in its plea offer, the government indicated

that defendant faced in excess of seventeen years’ imprisonment if he did not

accept the plea but, under the proposed plea offer, his sentence could be reduced

to as low as nine years. R. Vol. I, Doc. 35, Ex. A. Second, during the plea

hearing, the government told the court it estimated Mr. Barber’s sentence would

be nine to eleven years’ imprisonment. R. Vol. II (10/29/97 Plea Hearing

Transcript), at 8.

      These claims fail because it is clear from the record that the government

never made any representations to Mr. Barber that his sentence would be between

nine and eleven years. The government’s plea offer estimated his sentence, but

includes the warning that, “there is no guarantee as to what sentence [the district

court] would impose under the Guidelines.” R. Vol. I, Doc. 35, Ex. A at 1. The

plea agreement did not promise Mr. Barber a specific sentence; to the contrary,

the plain and unambiguous terms of the plea agreement disavow any agreement as

to a particular sentence and state that the sentence would be determined by the

district court after the preparation of the presentence report. “It is a fundamental

rule of contract law that the terms of a clear and unambiguous written contract

cannot be changed by parol evidence.”    United States v. Gamble , 917 F.2d 1280,

1282 (10th Cir. 1990). In relevant part, Mr. Barber’s plea agreement states that:


                                         -6-
      [T]he defendant understands that the minimum and maximum penalty
      the Court can impose is . . . imprisonment for a period of not less
      than five (5) years nor more than forty (40) years. . . .

                                         ***
      [T]he defendant . . . understands that no one can predict with
      certainty what guideline range will be applicable in this case until
      after a presentence investigation has been completed . . . . The
      defendant will not be allowed to withdraw the plea if the applicable
      guideline range is higher than expected . . . . The defendant fully
      understands that determination of the sentencing range or
      guideline level, as well as the actual sentence imposed, is solely
      in the discretion of the Court . . . .

                                          ***

      The United States has made and, and will make, NO AGREEMENT
      . . . that a specific sentence is the appropriate disposition. . . .

R. Doc. 31 at 2-3 (emphasis in original).

      Moreover, at the plea hearing, the district court again informed Mr. Barber

of the range of his possible sentence. Mr. Barber was warned that his sentence

might be different than that estimated by his counsel and was told he would not

be allowed to withdraw his plea if his sentence was greater than his estimated

sentence. Upon inquiry, Mr. Barber stated during the plea colloquy that he

understood his sentence could range from five years to forty years,      see R. Vol. II.

(10/29/97 Plea Hearing Transcript) at 4-5, and that the government had made no

agreement as to the sentence he would receive,      see id . at 6. Finally, as noted

above, after Mr. Barber reviewed the presentence report explaining that he was

subject to § 4B1.1's career enhancement provisions, the government offered to

                                           -7-
allow him to withdraw his plea because of the misunderstanding regarding the

application of the career offender provisions. After consultation with his

attorney, Mr. Barber chose not to withdraw his plea.

      Thus, the record does not support a conclusion that Mr. Barber’s guilty plea

was predicated in any significant degree upon an unfulfilled promise or

representation of the government that his sentence would be between nine and

eleven years. In similar circumstances, we have held that an erroneous estimate

attributable to a more extensive criminal history does not render a plea

involuntary. See United States v. Williams , 919 F.2d 1451, 1456-57 (10th Cir.

1990) (defendant’s counsel and government miscalculated sentence);       United

States v. Rhodes , 913 F.2d 839, 842-44 (10th Cir. 1990);   see also United States v.

Fortney , 957 F.2d 629, 631 (8th Cir. 1992) (per curiam) (holding that

government’s incorrect estimate of defendant’s criminal history category does not

necessarily render guilty plea invalid). Mr. Barber could not have reasonably

understood from the plea agreement or any of the government’s statements that it

was representing he would receive a sentence of between nine and eleven years.

“A defendant’s subjective understanding [as to his anticipated sentence], if it is

not based upon any promise made by the defense attorney, the prosecutor, or the

court, will not undermine the constitutionality of the plea or raise a question of




                                          -8-
whether the state breached its end of a plea bargain.”    Cunningham v. Diesslin , 92

F.3d 1054, 1061 (10th Cir. 1996).

       Mr. Barber also claims that the government breached the terms of the plea

agreement by arguing for a sentence range outside the scope of the agreement,

that is, by arguing in support of the career offender enhancement provisions after

the presentence report revealed that he had three prior felonies. He argues that he

understood the dismissal of the 21 U.S.C. § 851 enhancement information to mean

that no prior offenses would be used to increase his sentence. These arguments

are without merit. Mr. Barber’s sentence was not enhanced pursuant to § 851, but

under U.S.S.G. 4B1.1’s career offender provisions. Mr. Barber’s increased

sentence under U.S.S.G. § 4B1.1 is well below the maximum statutory sentencing

range and, therefore, the filing of a § 851 enhancement information is not

required. See United States v. Allen , 24 F.3d 1180, 1184-85 (10th Cir. 1994).

Mr. Barber suggests that we reconsider and overrule      Allen , but this we cannot do.

See United States v. Spedalieri , 910 F.2d 707, 710, n.3 (10th Cir. 1990) (a

three-judge panel is bound to adhere to and cannot overrule circuit precedent.).

Contrary to Mr. Barber’s contention, the government’s agreement to dismiss the

enhancement information did not obligate it not to seek a career offender

enhancement. “[W]e shall not impose duties on the government that are not an




                                            -9-
express or implied part of its agreement with the defendant.”       United States v.

Furman , 112 F.3d 435, 439 (10th Cir. 1997).

       Finally, Mr. Barber contends that the government breached the plea

agreement by negligently failing to fulfill its obligation under Fed. R. Crim. P.

16(a)(1)(B) to discover and disclose his prior criminal record. Mr. Barber argues

that the government negligently misrepresented to him that he only had one prior

felony and that he had the right to rely on this representation of his criminal

history when he accepted the plea bargain. We disagree; Mr. Barber “is not

entitled to be sentenced based on incorrect information.”       Fortney , 957 F.2d at

631 (holding no sentence reduction necessary when government initially

underestimated calculation of defendant’s criminal history). Moreover, Mr.

Barber’s argument that he relied on the government’s erroneous criminal history

estimate is belied by his statements in open court during the plea colloquy that he

was not relying on any promises not set forth in the plea agreement and that there

were no representations or promises from anyone as to what his sentence would

be. R. Vol. II (10/29/97 Plea Hearing Transcript), at 10.       See Cunningham , 92

F.3d at 1062. The government did not breach the terms of the plea agreement,

thus, Mr. Barber is not entitled to specific performance.       See Fortney 957 F.2d at

631.




                                            -10-
     The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.



                                                 Entered for the Court



                                                 Wade Brorby
                                                 Circuit Judge




                                      -11-
