                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                     PUBLISH
                                                                       MAR 18 1997
                     UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                              Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

 v.                                                    No. 96-2083

 DAVID A. VERI,

              Defendant-Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW MEXICO
                       (D.C. No. CR-94-745-MV)


Submitted on the briefs: *

John J. Kelly, United States Attorney, Larry Gomez, Assistant United States
Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.

Ralph D. Karsh, Pittsburgh, Pennsylvania, for Defendant-Appellant.


Before TACHA, EBEL and BRISCOE, Circuit Judges.




      *
         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); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
BRISCOE, Circuit Judge.



      Defendant David A. Veri appeals from the district court’s decision that it

lacked authority to depart downward from the guideline sentencing range

specified in Veri’s plea agreement because the agreement was made pursuant to

Fed. R. Crim. P. 11(e)(1)(C). 1 We conclude a plea agreement specifying a

sentence at a particular guideline range is specific enough to fall within the

language of 11(e)(1)(C), and that the district court correctly determined it lacked

authority to depart downward in this case: Veri’s plea agreement specified a

sentence at offense level sixteen and included no provision for downward

departure. As a result, Veri’s sentence was not even arguably the “result of an

incorrect application of the sentencing guidelines,” 18 U.S.C. § 3742(a)(2), and

we therefore lack jurisdiction to review it. Accordingly, we dismiss the appeal.



      1
                    (1) The attorney for the government and the attorney for the
             defendant or the defendant when acting pro se may engage in
             discussions with a view toward reaching an agreement that, upon the
             entering of a plea of guilty or nolo contendere to a charged offense
             or to a lesser or related offense, the attorney for the government will
             do any of the following:

             ...

                    (C) agree that a specific sentence is the appropriate disposition
             of the case.


                                         -2-
      The relevant facts are as follows: Veri was charged by superseding

information with aiding and abetting and conspiracy to possess with intent to

distribute more than fifty kilograms of marijuana. He entered into a plea

agreement with the government which stated, in part:

            6. It is expressly understood and agreed by and between the
      defendant and the United States that:
            a. The United States has made an AGREEMENT pursuant to
      Rule 11(e)(1)(C), Fed. R. Crim. P., that a specific offense level is the
      appropriate disposition of this case. The United States and defendant
      have agreed that the offense level is 16.

Appellant’s App. at 4-5. The agreement says nothing about downward departure.

See id. at 3-5. At Veri’s sentencing hearing, the district court determined that

under the sentencing guidelines, offense level sixteen would place defendant in a

sentencing range of twenty-one to twenty-seven months’ imprisonment, and that

the court lacked authority to consider defendant’s motion for downward departure

because the plea agreement fell within Rule 11(e)(1)(C). The district court said

nothing about downward departure and sentenced Veri to twenty-one months’

incarceration and three years’ supervised release.

      On appeal, Veri contends the district court erred because: (1) the

agreement specified a sentencing range rather than an exact term of months and

was therefore not an agreement under Rule 11(e)(1)(C) that bound the court; (2)

the agreement was ambiguous and should have been construed against the

government; and (3) the district court had jurisdiction to depart downward even if

                                         -3-
the agreement was under Rule 11(e)(1)(C). We construe the plea agreement

according to contract principles and what the defendant reasonably understood

when he entered his plea. United States v. Hawley, 93 F.3d 682, 692 (10th Cir.

1996).

         Veri argues, first, that although the plea agreement states it is made under

Rule 11(e)(1)(C), it is not a true 11(e)(1)(C) plea agreement because it specifies

an offense level, i.e., a sentencing range of twenty-one to twenty-seven months,

instead of an exact term of months or years. We have found no cases in support

of this proposition. Veri cites United States v. Newsome, 894 F.2d 852, 853 (6th

Cir. 1990), but that case states only that a cap of fifty-seven months (which

amounts to a broad range of zero to fifty-seven months) is not specific enough to

satisfy Rule 11(e)(1)(C). Veri’s cite to United States v. Johnson, 979 F.2d 396

(6th Cir. 1992), is inapposite; in Johnson, the Sixth Circuit construed an

ambiguous plea agreement as constituting a sentencing recommendation under

Rule 11(e)(1)(B), see id. at 398, 399; see also United States v. Rutter, 897 F.2d

1558, 1564-65 (10th Cir. 1990) (noting Rule 11(e)(1)(B) agreement is nonbinding

recommendation), not a binding plea agreement under Rule 11(e)(1)(C), cf.

United States v. Libretti, 38 F.3d 523, 529 (10th Cir. 1994) (holding defendant is

bound by lawful plea agreement under Rule 11(e)(1)(C)), aff’d, 116 S. Ct. 356

(1995).


                                            -4-
      On the other hand, the Second, Fourth, Sixth, and Ninth Circuits have all

held that a plea agreement which sets forth a sentencing range is specific enough

to satisfy Rule 11(e)(1)(C). See United States v. Yemitan, 70 F.3d 746, 747 (2d

Cir. 1995) (over dissent’s protest, treating plea agreement for sentence within

range of 108-135 months as binding agreement; i.e., as agreement under

Rule 11(e)(1)(C)); United States v. Nutter, 61 F.3d 10, 11-12 (2d Cir. 1995)

(holding range of 155-181 months was specific enough to satisfy 18 U.S.C.

§ 3742(c)(1) and Rule 11(e)(1)(C)); United States v. Mukai, 26 F.3d 953, 954,

955 (9th Cir. 1994) (holding plea agreement providing for five to seven years’

imprisonment was Rule 11(e)(1)(C) agreement); United States v. Abarca, 985

F.2d 1012, 1013 (9th Cir. 1993) (deeming plea agreement for sentence not

exceeding applicable guideline range sufficient under Rule 11(e)(1)(C)); United

States v. Lambey, 974 F.2d 1389, 1396 (4th Cir. 1992) (indicating

Rule 11(e)(1)(C) plea agreement would allow specific sentence or sentence

range); United States v. Fernandez, 960 F.2d 771, 772, 773 (9th Cir. 1992)

(finding no problem with Rule 11(e)(1)(C) agreement specifying sentence of not

more than six years’ imprisonment); United States v. Kemper, 908 F.2d 33, 36

(6th Cir. 1990) (holding plea that assumed sentence within range of twenty-seven

to thirty-three months was specific sentence under Rule 11(e)(1)(C)). In fact, the

Second Circuit has treated an agreement providing for “a four-level reduction in


                                         -5-
whatever Guidelines offense level would later be determined by the district court”

as binding under Rule 11(e)(1)(C). United States v. Cunavelis, 969 F.2d 1419,

1420, 1422 (2d Cir. 1992).

      Veri contends, however, that this court held in United States v. Robertson,

45 F.3d 1423, 1439 (10th Cir.), cert. denied, 115 S. Ct. 2258, 2259, and 116 S. Ct.

133 (1995), that a Rule 11(e)(1)(C) agreement is one that removes all sentencing

discretion from the court and that a plea agreement specifying a sentencing range

therefore cannot fall under 11(e)(1)(C). Veri's contention is misplaced. First,

Robertson dealt with a different issue--whether a district court abuses it discretion

by rejecting a Rule 11(e)(1)(C) agreement. See id. at 1433. Second, and perhaps

most importantly, we do not read Robertson as broadly as Veri does. Although

Robertson acknowledges that “11(e)(1)(C) agreements attempt to completely

curtail” a district court's sentencing discretion, id. at 1439 (emphasis added),

there is no suggestion in the opinion that Rule 11(e)(1)(C) precludes agreements,

such as the one here, that sharply reduce, but do not completely eliminate, a

district court's discretion. Accordingly, we find no conflict between Robertson

and our holding that a sentencing range is specific enough to satisfy Rule

11(e)(1)(C).

      Veri next argues the plea agreement is not a true Rule 11(e)(1)(C)

agreement because it is ambiguous. It is true the plea agreement states in


                                          -6-
paragraph five “that determination of the sentencing range, as well as the actual

sentence imposed, is solely in the discretion of the Court.” Appellant’s App. at 4.

When read from beginning to end, however, it is apparent the plea agreement sets

out the consequences Veri would have faced if he had gone to trial and been

convicted, and then states the deal he struck under Rule 11(e)(1)(C) in exchange

for pleading guilty in paragraph six. See id. at 4-5. Although the plea agreement

is poorly drafted and is certainly no model for the future, we see no fatal

ambiguity in its terms. Moreover, if the agreement does not fall under Rule

11(e)(1)(C), then it can only be under Rule 11(e)(1)(B) 2. This conclusion,

however, would contradict what Veri seemed to say at the sentencing hearing--he

argued that he and the prosecution had never discussed a floor on his sentence,

implying they had agreed on a ceiling. See id. at 53-54. A plea agreement under

Rule 11(e)(1)(B) cannot be said to create a true ceiling, however, as it is a


      2
                    (1) The attorney for the government and the attorney for the
             defendant or the defendant when acting pro se may engage in
             discussions with a view toward reaching an agreement that, upon the
             entering of a plea of guilty or nolo contendere to a charged offense
             or to a lesser or related offense, the attorney for the government will
             do any of the following:

                   ...

                    (B) make a recommendation, or agree not to oppose the
             defendant's request, for a particular sentence, with the understanding
             that such recommendation or request shall not be binding upon the
             court.

                                         -7-
recommendation only and not binding on the court. See Rutter, 897 F.2d at 1564-

65.

      Finally, Veri argues the district court had jurisdiction to depart downward

even if the plea agreement falls within Rule 11(e)(1)(C). This argument

contradicts the plain language of Rule 11, which states that “[i]f the agreement is

of the type specified in subdivision (e)(1)(A) or (C), the court may accept or

reject the agreement,” Fed. R. Crim. P. 11(e)(2), and that “[i]f the court accepts

the plea agreement, the court shall inform the defendant that it will embody in the

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

Rule 11(e)(3). All of the cases which have addressed this point have rejected this

argument. The Second, Seventh, and Ninth Circuits have held that if a sentencing

court accepts a Rule 11(e)(1)(C) agreement, it is bound by the agreement and may

not modify it. See Mukai, 26 F.3d at 956-57 (holding if court accepts plea

agreement that limits amount of downward departure, court is bound by that

limitation even if inclined to be more lenient); Cunavelis, 969 F.2d at 1422

(holding Guidelines specify that Rule 11(e) governs plea agreements, Rule 11(e)

specifies court is bound by Rule 11(e)(1)(C) agreement and, therefore, court was

bound by plea’s provision for four-level reduction). For the same reason, a

defendant’s assumption that relief other than that specified in the agreement

might be available is unreasonable. See United States v. Swigert, 18 F.3d 443,


                                         -8-
446 (7th Cir. 1994) (holding defendant unreasonably assumed that plea agreement

specifying imprisonment could be split between imprisonment and probation).

Based on the clear language of Rule 11(e)(1)(C) and the applicable case law, Veri

had no reason to believe the district court would entertain a motion for downward

departure when the plea agreement specified a disposition at offense level sixteen

and included no provision for downward departure.

      Because we conclude that Veri’s plea agreement was made pursuant to Rule

11(e)(1)(C) and his sentence fell within its terms, we lack jurisdiction to review

his sentence.

      The appeal is DISMISSED.




                                         -9-
