                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 01-3054
                               ________________

Paul Anthony White,                      *
                                         *
            Appellant,                   *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      Western District of Missouri.
United States of America,                *
                                         *
            Appellee.                    *

                               ________________

                               Submitted: May 13, 2002
                                   Filed: October 25, 2002
                               ________________

Before HANSEN, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge, and
PRATT,1 District Judge.
                            ________________

HANSEN, Circuit Judge.

      Paul Anthony White appeals the district court's2 denial of his application for
postconviction relief pursuant to 28 U.S.C. § 2255. White argues that the district


      1
        The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa, sitting by designation.
      2
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
court erred in finding that the government did not violate the terms of the plea
agreement and in rejecting his Apprendi claims. We affirm the judgment of the
district court.

                                           I.

      While White was on probation for one count of conspiracy and one count of
making false, fictitious, or fraudulent claims to the IRS ("the tax case"), he was
charged with making and possessing counterfeit payroll checks ("the counterfeiting
case"). As a result of the counterfeiting charges, White's probation was formally
revoked and he was sentenced to four years incarceration. White pleaded guilty to
the counterfeiting charge and was sentenced to 57 months imprisonment to run
consecutively to the four years for probation revocation.

        White was then charged in the present case with conspiracy to distribute
methamphetamine. The parties engaged in plea discussions, and on the eve of trial,
they reached an oral agreement that was established on the record. In addition to
other provisions, the government agreed not to file child pornography charges, and
White agreed (1) to dismiss the pending appeal in the counterfeiting case, (2) not to
challenge the probation revocation in the tax case, (3) not to file an appeal in the
present case, and (4) not to file an application for relief under 28 U.S.C. § 2255 in any
of the three cases. After discovering that the original recommendation of 140 months
was beyond the proper sentencing range, the parties eventually agreed that the
appropriate sentence would be 137 months. At the plea proceeding, the court
inquired whether the parties had agreed how the sentence should run. Without further
elaboration or clarification, the government declared that it had no opposition to the
sentence running concurrently. The court accepted the plea agreement after White
acknowledged that the court was not bound by its terms.




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       During the later sentencing hearing, the court noted that the record was unclear
as to whether the new sentence should run concurrently with or consecutively to
White's other sentences. The court asked the parties whether their prior agreement
as to a "concurrent sentence" referred to the probation revocation sentence, the
sentence in the counterfeiting case, or both. The parties responded by admitting that
they had not specifically discussed or reached an agreement on the details of that
issue. In light of the confusion, the government adopted the recommendation of the
probation officer and urged the court to run the new sentence consecutively to the
probation revocation sentence.

       The court then sentenced White to 137 months imprisonment and ordered the
sentence to run concurrently with the counterfeiting sentence and consecutively to the
probation revocation sentence. White filed a § 2255 motion to vacate the sentence,
claiming that the recommendation by the government was a breach of the plea
agreement. The district court denied relief, finding that there had been no agreement
on the issue and therefore no breach by the government. The district court issued a
certificate of appealability on the plea agreement issue.

                                          II.

        We review the district court's denial of a § 2255 motion de novo. Von Kahl v.
United States, 242 F.3d 783, 787 (8th Cir. 2001), cert. denied, 122 S. Ct. 317 (2001).
The district court's interpretation and enforcement of a plea agreement are issues of
law that we also review de novo. United States v. Amezcua, 276 F.3d 445, 447 (8th
Cir.), cert. denied, 122 S. Ct. 2637 (2002). Findings of fact made by the district court
during sentencing are binding on this Court unless they are shown to be clearly
erroneous. United States v. Russell, 234 F.3d 404, 408 (8th Cir. 2000).

     White alleges that the government breached the plea agreement by
recommending that his drug sentence run consecutively to the probation revocation

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sentence. In the order denying White's § 2255 motion, the district court clearly stated
that there had been no agreement between the parties on the issue. After carefully
reviewing the district court's order and the sentencing transcript, it appears to this
Court that the only discussions regarding a concurrent sentence involved White's
sentence for counterfeiting. Accordingly, we hold that the district court's finding as
to the lack of an agreement was not clearly erroneous.

       Given that the plea agreement contained no provision for the drug sentence to
be imposed so as to be served concurrently with the probation revocation sentence,
the government's recommendation on the matter during the sentencing hearing was
not a breach of the agreement. Because there was no breach, White has no basis
either to withdraw his guilty plea or to challenge the validity of his sentence. The
district court properly denied White's motion for § 2255 relief.

        Even if the parties had agreed to a concurrent sentence to run with the
probation revocation sentence, the district court was not bound by the agreement.
Given that the agreement itself contemplated only a recommendation by the
government as to the terms of White's sentence, the provisions of Federal Rule of
Criminal Procedure 11(e)(1)(b) apply. As the district court noted, and as White
acknowledged in the Rule 11 proceeding, this type of an agreement does not constrain
the discretion of the district court during sentencing. Even after accepting the guilty
plea, it is ultimately the decision of the sentencing court whether to implement or
reject the terms of a Rule 11(e)(1)(b) agreement. See United States v. Michelsen, 141
F.3d 867, 873 (8th Cir. 1998) (recognizing that under a Rule 11(e)(1)(b) agreement,
"the court had the authority to reject the [government's] recommendation"); see also
Fed. R. Crim. P. 11(e)(1)(b) ("Any such recommendation or request is not binding on
the court."). Although Rule 11(e)(4) allows for the withdrawal of a plea in cases
where the district court rejects a plea agreement, this provision does not apply to the
recommendation-type agreements under Rule 11(e)(1)(b). Good Bird v. United
States, 752 F.2d 349, 351 (8th Cir. 1985); see also Fed. R. Crim. P. 11(e)(2) ("[I]f the

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court does not accept the recommendation or request[,] the defendant nevertheless has
no right to withdraw the plea."); U.S. Sentencing Guidelines Manual § 6B1.1(b)
(2001) ("[T]he court shall advise the defendant that the court is not bound by the
sentencing recommendation, and that the defendant has no right to withdraw the
defendant's guilty plea if the court decides not to accept the sentencing
recommendation set forth in the plea agreement.").

        In this case, the district court not only had discretion to reject any
recommendation for a drug sentence concurrent with the probation revocation
sentence, it was required to do so by the Sentencing Guidelines. In United States v.
Smith, 282 F.3d 1045 (8th Cir. 2002), this Court held that USSG § 5G1.3 mandates
that a sentence imposed on a defendant for a crime committed during probation must
run consecutively to any resulting sentence for probation revocation. Because White
was on probation when he conspired to distribute methamphetamine and his
probation was revoked upon his arrest in the counterfeiting case, the district court was
required to run his sentence for methamphetamine distribution consecutively to the
term imposed on the probation revocation.

                                          III.

      White also challenges his sentence under Apprendi v. New Jersey, 530 U.S.
466 (2000). As the district court correctly noted in its order, under the terms of the
plea agreement, White waived his right to seek postconviction relief. Furthermore,
Apprendi claims may not be raised for the first time on collateral review. United
States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001), cert. denied, 122 S. Ct. 848
(2002).




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                                        IV.

       Because the government did not breach the plea agreement, and because the
district court correctly applied the mandates of the Sentencing Guidelines, we affirm
the district court's denial of § 2255 relief.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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