     Case: 08-41095     Document: 00511023851          Page: 1    Date Filed: 02/09/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 9, 2010

                                       No. 08-41095                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff – Appellee
v.

LARRY STANLEY TRAUGOTT

                                                   Defendant – Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:07-CR-189


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        In March 2008, pursuant to a written plea agreement, Larry Stanley
Traugott pled guilty to conspiracy to possess with intent to distribute 500 grams
or more of methamphetamine. See 21 U.S.C. §§ 846, 841(b)(1)(A)(viii). The plea
agreement contained a stipulation between Traugott and the government that
the applicable base offense level under United States Sentencing Guidelines
[USSG] § 2D1.1(a)(3) was 32. Based on Traugott’s two prior convictions for a
crime of violence and a drug trafficking crime, the district court applied a career

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 08-41095      Document: 00511023851     Page: 2   Date Filed: 02/09/2010

                                   No. 08-41095

offender enhancement under USSG § 4B1.1, which increased the offense level
to 37. After receiving a three-point reduction in offense level for acceptance of
responsibility, Traugott was sentenced to 262 months’ imprisonment.
         Traugott argues that the government breached the plea agreement’s base
offense level stipulation by supporting the district court’s application of the
career offender enhancement during the sentencing hearing.                Contrary to
Traugott’s interpretation, the stipulation merely confirms the appropriate
guidelines section applicable to his offense. It does not preclude application of
the career offender enhancement. Moreover, the district court was, by the plea
agreement’s terms, not bound by the stipulation. In addition, when he entered
his guilty plea before the magistrate judge, Traugott expressly acknowledged his
understanding that prior convictions could increase the applicable guidelines
range and that the court was not bound by the stipulated base offense level of
32. See United States v. Rhodes, 253 F.3d 800, 804-05 (5th Cir. 2001); USSG
§ 6B1.4(d). The government did not breach the plea agreement by supporting
the application of the career offender provision.
         Traugott also contends that the career offender provision was applied in
error.       He   argues   that   his   1995   prior   conviction   for    possessing
methamphetamine with intent to deliver was relevant conduct in the instant
conspiracy, and thus could not be used as a predicate for the career offender
enhancement. This argument is barred by the appeals waiver contained in the
plea agreement, whose validity is uncontested. See, e.g., United States v. Bond,
414 F.3d 542, 544 (5th Cir. 2005). Even if it were not barred, the argument lacks
merit because Traugott was convicted and sentenced in 1995, “prior to the acts
or omissions constituting the [conspiracy],” which Traugott admitted began in
1997. See USSG § 1B1.3 cmt. n.8.
         We therefore perceive no error in the district court’s application of the
career offender provision.

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                                   No. 08-41095

      Finally, Traugott argues that the government breached its obligation
under the plea agreement to file a pre-sentencing motion for downward
departure based on his cooperation with authorities.        See USSG § 5K1.1. At
oral argument, counsel for the government conceded (1) that it had not filed a
motion; and (2) that the cooperation rendered by Traugott amounted to
“substantial assistance” for § 5K1.1 purposes. Counsel agreed to file a motion
for reduction in sentence pursuant to Federal Rule of Criminal Procedure 35(b)
upon remand to the district court.
      Accordingly, by the parties’ consent, we remand this case to the district
court for consideration of the government’s Rule 35(b) motion. Although on a
Rule 35(b) motion, the evaluation of a defendant’s cooperation for “substantial
assistance” is reserved to the district court, see F ED R. C RIM. P. 35(b)(3), we note
the government’s admission that Traugott’s pre-sentencing cooperation
constituted “substantial assistance” within the meaning of USSG § 5K1.1.
Further, the government has waived certain objections to the motion, including
its untimeliness and the lack of post-sentencing cooperation.
      REMANDED for further proceedings as described herein.




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