                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-24-2009

USA v. Harold Keith
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3439




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                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    No. 08-3439
                                   _____________

                         UNITED STATES OF AMERICA

                                          v.

                             HAROLD BRENT KEITH
                                 also known as
                              HAROLD WALLACE
                                 also known as
                                 NEW YORK
                                 also known as
                                BRIAN KEITH

                                          Harold Brent Keith,
                                                        Appellant


                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                           (D.C. Criminal No. 04-cr-00354)
                      District Judge: Honorable John R. Padova


                     Submitted Under Third Circuit LAR 34.1(a)
                                 February 6, 2009

                   Before: RENDELL and ROTH, Circuit Judges,
                           and HAYDEN, District Judge*

                                (Filed: June 24, 2009)

__________________

   * Honorable Katharine S. Hayden, Judge of the United States District Court for the
     District of New Jersey (Newark), sitting by designation.
                               OPINION OF THE COURT


HAYDEN, District Judge.

       Harold Brent Keith, proceeding pro se, appeals the denial of his motion for

reduction of sentence. Keith, who pleaded guilty pursuant to a Rule 11(c)(1)(C) 1 plea

agreement, moved under 18 U.S.C. § 3582(c)(2) on the grounds that recent amendments

to the sentencing guidelines lowering the cocaine base (“crack”) offense level should

apply retroactively to his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3582(c)(2). For the following reasons, we will affirm.

       In 1995, Keith was convicted of a felony narcotics offense in New York state

court. (A-14.) In May 2003, he sold crack to undercover police officers and in August

2003, in the course of a traffic stop, he was arrested for possession of 10.5 grams of crack

and a loaded semi-automatic pistol. (A-18.) On September 30, 2004, a grand jury in the

Eastern District of Pennsylvania returned a four-count superseding indictment charging

Keith with distribution of crack (Count One); possession of five or more grams of crack

with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count Two); carrying a

firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C.


  1
   Rule 11(c)(1)(C) was formerly known as Rule 11(e)(1)(C). United States v. Peveler,
359 F.3d 369, 379 (6th Cir. 2004). All references herein to Rule 11(e)(1)(C) should be
understood as relating to Rule 11(c)(1)(C).

                                             2
§ 924(c)(1) (Count Three); and possession of a firearm by a convicted felon (Count Four).

(A-10-13.) Keith pleaded guilty to Counts Two and Four on February 18, 2005. (A-8.)

      Keith’s plea agreement contained this stipulation in paragraph 3(b):

             The parties agree that this plea agreement is made pursuant to
             Fed. R. Crim. P. 11(c)(1)(C) and that the following specific
             sentence is the appropriate disposition of this case. If the
             Court rejects this plea agreement, it is further agreed that this
             agreement shall automatically convert to a plea agreement
             pursuant to Fed. R. Crim. P. 11(c)(1)(B), and this specific
             sentence shall be the joint recommendation of the parties,
             although not binding on the Court. This agreed upon sentence
             is as follows: 144 months incarceration, 3 years supervised
             release, and a $200 special assessment.

(A-19.) The Court sentenced Keith to 144 months. Keith did not appeal his sentence.

      Keith’s motion for reduction of his sentence, which he filed on July 2, 2008, was

premised on Amendment 706 to the sentencing guidelines, effective November 1, 2007,

which reduced the base offense level by two levels for most crack offenses. On

December 11, 2007, the United States Sentencing Commission (“USSC”) added

Amendment 706 to the list of amendments available for retroactive application, as

provided in U.S.S.G. § 1B1.10(c).

      In its order denying Keith’s motion, the District Court wrote:

             On February 18, 2005, Defendant pled guilty to one count of
             possession with intent to distribute 5 grams or more of
             cocaine base (“crack”), and one count of being a felon in
             possession of a firearm. Defendant and the Government
             entered into a plea agreement pursuant to Federal Rule of
             Criminal Procedure 11(c)(1)(C), in which the parties agreed
             and stipulated to a term of imprisonment of 144 months.

                                            3
              Defendant also waived his right to receive a pre-sentence
              investigation report prior to the imposition of sentence. On
              the same day, we accepted the plea agreement and sentenced
              Defendant to the agreed-upon 144 months.
              Defendant now seeks a reduction in sentence pursuant to
              18 U.S.C. §3582(c)(2) in light of the retroactive application of
              Amendment 706 to the United States Sentencing Guidelines
              for crack cocaine offenses. Section 3582(c)(2) provides in
              pertinent part: “[i]n the case of a defendant who has been
              sentenced to a term of imprisonment based on a sentencing
              range that has subsequently been lowered by the Sentencing
              Commission . . . the court may reduce the term of
              imprisonment . . .”
              Defendant was not sentenced “based on a sentencing range
              that has subsequently been lowered by the Sentencing
              Commission.” Rather, he was sentenced based upon the
              parties’ Rule 11(c)(1)(C) agreement, a fact which is
              underscored by his waiver of a pre-sentence investigation
              report. Consequently, defendant is not entitled to relief
              pursuant to 18 U.S.C. § 3582(c)(2) and his Motion is denied.

(A-31 (internal citations omitted) (emphasis in original).) Keith filed a timely notice of

appeal in this Court.

       In his brief on appeal, Keith contends that the sentencing court “was not bound by

the stipulated sentencing range between the parties and if the court decided to sentence

above or below the stipulation, the defendant was not able to withdraw the plea”; and that

the plea agreement “unequivocally states that both parties are able to argue for a sentence

other than that stipulated to[.]” He notes that “all Circuits have held that Rule 11(e)(1)(C)

and [Rule 11](e)(1)(B) plea agreements are 2 separate and distinct contracts.” (Appellant

Br. 2-3.)

       It appears that Keith’s arguments arise out of the presence of the Rule 11(c)(1)(B)

                                             4
alternative in paragraph 3(b) of his plea agreement that provided, in the event the district

judge did not accept the “C plea,” as follows: “[I]t is further agreed that this agreement

shall automatically convert to a plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(B),

and this specific sentence shall be the joint recommendation of the parties, although not

binding on the Court. This agreed-upon sentence is as follows: 144 months

incarceration, 3 years supervised release, and a $200 special assessment.” Keith is correct

that this language does not bind the sentencing judge to sentence him to 144 months if the

court rejected the C plea. Further, he is correct that under paragraph 5 of the plea

agreement, he could not withdraw his plea in the event the Court rejected any of the

sentencing recommendations; and that under paragraph 6, the parties agreed that they

were free to argue the applicability of any provision of the sentencing guidelines, and that

neither the court nor probation was bound by the plea stipulations. But this latitude is

related to the court’s discretion under a B plea. Keith’s argument ignores that the plea

language in paragraph 3(b) is very clear: if the sentencing court sentenced under Rule

11(c)(1)(C), it was bound to impose a sentence of 144 months and there would be no

exercise of discretion. Arguments about what the court could or could not impose as a

sentence would be useless.

       It is beyond dispute that the sentencing court sentenced him under Rule

11(c)(1)(C), and so Keith’s line of reasoning is logically, and legally, unavailing.

       Keith also argues that in denying his motion, the District Court should have



                                              5
indicated what the amended guideline range would have been, pointing to U.S.S.G.

§ 1B1.10(b)(1), which states that in deciding a motion under § 3582(c)(2), the district

court must determine the amended guideline range that would have been applicable at the

time of sentencing. But again, this assumes that a guidelines range was the basis of his

sentence to begin with. As indicated, by accepting the C plea, the sentencing court did

not rely upon or calculate a sentencing range.

       Significantly, Keith’s papers concede that defendants convicted under a Rule

11(c)(1)(C) plea agreement may not move for sentence modification under § 3582(c)(2),

and that “every Circuit to consider such issue has ruled accordingly.” (Appellant Br. 4.)

Keith nonetheless argues his particular plea agreement preserves his eligibility for relief,

relying on United States v. Gillen, 449 F.3d 898, 902 (8th Cir. 2006). There the

defendant pleaded guilty to felony possession of a firearm, and received a 63-month

sentence. The Eighth Circuit observed that the plea agreement “resemble[d]” a

Rule 11(c)(1)(C) plea because it used “language such as ‘the parties agree.’” Id. at 902.

But ultimately the similarity failed, because Gillen’s agreement “clearly state[d] that the

plea agreement ‘b[ou]nd only the defendant and the United States Attorney’” and did “not

bind the Court or the United States Probation Office with respect to the Guidelines

levels.” Id. (citing plea agreement). Thus “Gillen should have understood that the plea

agreement was a nonbinding ‘Type B’ agreement.” Id. Unlike the Gillen agreement,

Keith’s plea agreement is explicit in paragraph 3(b) that “[t]he parties agree that this plea



                                              6
agreement is made pursuant to Fed. R. Crim. P. 11(c)(1)(C) and that the following

specific sentence is the appropriate disposition of this case.” The further agreement that

the plea would be entered pursuant to Rule 11(c)(1)(B) – with, arguably, the features of

the Gillen plea – only applied if the court rejected the C plea stipulation.

       The blunt force of a Rule 11(c)(1)(C) sentencing in the context of later

amendments to the guidelines has been the subject of prior decisions that specifically hold

that the sentencing court is without authority to modify a sentence under § 3582(c)(2). In

United States v. Trujeque, 100 F.3d 869, 869-71 (10th Cir. 1996), the Tenth Circuit

concluded that “because [the defendant] entered a plea agreement specifying a term of

imprisonment pursuant to Fed. R. Crim. P. 11(e)(1)(C), he may not seek a reduction in his

sentence via 18 U.S.C. § 3582(c)(2),” and that “the district court should have dismissed

[defendant’s § 3582(c)(2)] motion without considering its merits.” The Sixth Circuit

ruled similarly in United States v. Peveler, stating that “Rule 11(e)(1)(C) . . . expressly

limits the district court’s authority to modify the [plea] agreement,” and that “once a

district court accepts a plea agreement where parties agreed on a specific sentence or

sentencing range, the district court is bound by the parties’ plea agreement.” 359 F.3d

369, 375, 377 (6th Cir. 2004) (internal citations omitted).

       Most recently, in United States v. Sanchez, 562 F.3d 275 (3d Cir. 2009), this Court

“concluded that relief under § 3582(c)(2) is not available for a defendant who has been




                                              7
sentenced pursuant to a Rule 11(c)(1)(C) binding plea agreement.” United States v.

Clayborn, No. 08-2617, 2009 U.S. App. LEXIS 7495, *3 (3d Cir. Apr. 8, 2009) (citing

Sanchez, 562 F.3d at 282 n.7). In so ruling, the Court addressed “conflicting signals in

the record” as to whether the sentencing guidelines influenced the sentence imposed,

stating “[w]here, as here, the District Court accepted a so-called ‘C’ plea, the answer is

simple: the sentence is based on the terms expressly agreed on by the defendant and the

government. That is what the Rule itself demands.” Sanchez, 562 F.3d at 282 n.8

       The same reasoning applies here. The parties’ agreement was the only basis for

the sentence. Keith pleaded and was sentenced in the course of one proceeding. As the

District Court noted, no presentence report was prepared. Once the District Court

accepted the C plea, it was bound to sentence to 144 months, and as to that specific

sentence (not sentencing range), the sentencing court made no guidelines calculation or

adjustments. In short, the court was without authority to modify the sentence, and there

existed no predicate upon which to apply the crack guideline amendments.

       In light of the foregoing, we will AFFIRM the Order of the District Court denying

Keith’s motion to reduce his sentence.
