                                   No. 95-2047



United States of America,    *
                                        *
                       Appellee,        *
                                        *   Appeal from the United States
         v.                             *   District Court for the
                                        *   District of Minnesota.
Kevin Guy Harris,            *
                                        *
                    Appellant.          *



                         Submitted:    October 20, 1995

                         Filed:    December 1, 1995


Before FAGG, LAY, and HEANEY, Circuit Judges.



HEANEY, Circuit Judge.


     Appellant, Kevin Guy Harris, pleaded guilty pursuant to a plea
agreement to aiding and abetting the transfer of stolen property in
interstate commerce.    Harris appeals the district court's sentence, which
included an upward departure pursuant to section 5K2.0 of the guidelines
to punish Harris for his participation in a robbery that preceded his
offense of conviction.     We reverse and remand.


                                    BACKGROUND


     On April 18, 1994, Harris was charged by indictment with conspiracy
to transfer stolen property in interstate commerce in violation of 18
U.S.C. §§ 371 and 2314 (count I) and aiding and abetting the transfer of
stolen property in interstate commerce in violation of 18 U.S.C. § 2314
(count II).   On January 18, 1995, Harris pleaded guilty to both counts in
the indictment after
negotiating a plea bargain with the government.                 The government agreed to
file    a    downward     departure   motion       pursuant   to    section    5K1.1    of    the
guidelines in return for Harris's cooperation in the prosecution of four
other       defendants.      With   respect    to    Harris's      sentence,   the     parties'
guideline calculations anticipated a total offense level of 13 and a
criminal history category of IV, yielding a custody range of 24 to 30
months before any departure for substantial assistance to authorities.


        During    the     presentence   investigation,        the    parties    to   the     plea
agreement discovered that Harris's guilty plea to conspiracy exposed him
to a significantly longer sentence than either party had intended under the
agreement.      A plea to count I of the indictment included a stipulation that
Harris participated in an armed robbery and would have triggered use of the
offense severity level assigned to armed robbery (level 26) rather than
that assigned to the interstate transportation of stolen merchandise (level
13).    The result of the inclusion of count I would have been a guideline
range of 70 to 87 months, far above the range contemplated by the parties
to the plea agreement.         Harris and the government, therefore, reached a new
agreement whereby Harris would withdraw his plea to count I and the
government would dismiss count I at sentencing.                 The parties made a joint
motion to withdraw Harris's plea to count I of the indictment and the court
granted the motion by order dated February 14, 1995.                          The sentencing
calculations in the amended plea agreement filed with the court were
identical to those in the original plea agreement.


        On April 7, 1995, the government dismissed count I as promised and
the court sentenced Harris on count II.                   Prior to sentencing, Harris
objected to the presentence report's recommendation that the court depart
upward from the guideline range to account for Harris's role in the armed
robbery.       As anticipated in the plea agreement, the court found that the
total offense level for count II was 13, that Harris's criminal history
category was IV, and that




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the guideline range was 24 to 30 months.            The court explicitly granted the
government's motion for downward departure pursuant to section 5K1.1 of the
guidelines and 18 U.S.C. § 3551.         In addition, however, the court departed
upward pursuant to section 5K2.01 of the guidelines deeming Harris's
participation in the armed robbery that preceded his offense of conviction
to be relevant conduct not adequately reflected in the applicable guideline
sentence.       Although the court made no specific findings as to the degree
of either the upward or downward departure, they appear to have canceled
each other out.       The court imposed a sentence of 30 months incarceration.
This appeal followed.


                                        DISCUSSION


        Up until the time of sentencing, this case presented an instance in
which the plea bargaining process functioned smoothly for both parties.
The deal struck between Harris and the government is clear.                       Their
intentions were straightforward.             Moreover, each party fulfilled its
obligations under the agreement.            Harris pleaded guilty to aiding and
abetting the transfer of stolen property in interstate commerce.                 He also
fully       cooperated   with   the    government    in   its   investigation,    which
substantially        assisted   in    securing   guilty   pleas   from   Harris's   co-
                2
defendants.         The government


        1
      Section 5K2.0 empowers a sentencing court to depart from the
guidelines "if the court finds 'that there exists an aggravating or
mitigating circumstance of a kind, or to a degree not adequately
taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence
different from that described.'"     U.S.S.G. § 5K2.0 (quoting 18
U.S.C. § 3553(b)).
        2
            The government summed up Harris's cooperation as follows:

     I can only tell the court that Mr. Harris has been
     completely forthright with me, as far as I know.
     The information he has provided is accurate, as far
     as I know. It has been confirmed by other sources
     other than Mr. Harris. He was willing to testify.
     He gave us information that we didn't already have.
     And his
information did result in the plea of other defendants in this

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dismissed count I of the indictment and made a motion to the court for a
downward departure.   Although both parties understood that the court was
not bound by their guideline calculations,3 once the court accepted the
plea agreement, they had a reasonable expectation that the court would
sentence Harris within the appropriate guideline range for his offense of
conviction.   At oral argument, the government explained that the court's
decision to impose the 30-month sentence placed the government in the
unusual and uncomfortable position of having to defend a sentence it never
intended Harris to receive.


     The sentencing court erred in considering conduct from the dismissed
count as the basis for an upward departure under section 5K2.0 in clear
opposition to the intentions of the parties as




case, and, in fact, in completely resolving the case by means of
pleas of guilty all the way around.

Sentencing Tr. at 10.
     3
      The plea agreement provided:

     The defendant understands that he will be sentenced
     in accordance with the applicable sentencing
     guidelines under the Sentencing Reform Act of 1984.
     The proper application of those guidelines is a
     matter solely within the discretion of the court.
     The above stipulations are not binding on the
     court. . . . The defendant understands and agrees
     that he may not withdraw his plea if the court
     rejects the above recommendations of the parties
     regarding sentencing factors, or denies the motion
     of the United States for a downward departure.

Amended Plea Agreement ¶ 6 at 5. It is important to note that in
sentencing Harris, the court did not reject the sentencing factors
as laid out in the plea agreement nor did it deny the government's
motion for a downward departure. Instead, it departed upward, sua
sponte, to account for the conduct embodied in the dismissed count
of the indictment.

                                    4
embodied in their plea agreement.4      A contrary rule would allow the
sentencing court to eviscerate the plea bargaining process that is vital
to the courts' administration.   As this court has recently noted:


     [W]hile the district court is not bound by stipulations
     entered into between the parties, plea bargaining is
     certainly a favorable way to dispose of many of the
     criminal cases present on the increasingly-crowded
     district court dockets.     Meaningful plea bargaining
     requires a degree of trust between defendants and
     prosecuting bodies. Lest they desire to have trials on
     all criminal matters, district courts should be wary of
     conduct which tends to undermine the trust [defendants]
     place in the deals they strike with prosecutors.


United States v. Shields, 44 F.3d 673, 675 n.2 (8th Cir. 1995).   The plea
bargain is recognized as an important part of our criminal justice system.
In exchange for a guilty plea, the government dismisses certain charges or
downgrades the offenses charged.   In




      4
      On appeal, the government contends that this court permits
use of conduct from dismissed counts to support an upward departure
pursuant to section 5K2.0 of the guidelines and cites to United
States v. Karam, 37 F.3d 1280 (8th Cir. 1994), cert. denied, 115 S.
Ct. 1113 (1995).    The government's reliance on Karam for this
proposition, however, is totally misplaced.         In Karam, the
defendant was subject to a ten-year mandatory minimum sentence that
trumped any guideline sentence. Although the court included drug
quantities from dismissed counts to determine the defendant's
offense level, the ultimate sentence it imposed constituted a
significant downward departure from the otherwise applicable
statutory minimum. This court concluded that the extent of the
departure was unreviewable. Karam, 37 F.3d at 1285 (citing United
States v. Albers, 961 F.2d 710, 712 (8th Cir. 1992)). Two other
facts further distinguish our situation from Karam. First, Karam's
lawyer did not object to the presentence report, which included the
drug quantities from the dismissed counts in the total quantity.
Second, and most important, the court considered the conduct in the
dismissed counts to be relevant conduct under section 1B1.3 rather
than a basis for an upward departure under section 5K2.0.       The
guidelines allow consideration of dismissed counts as relevant
conduct within the meaning of section 1B3.1. See id. at 1285.
Therefore, contrary to the government's assertion, Karam does not
address the issue specifically raised by this case.

                                    5
exchange   for   this   benefit,   the   defendant      often   provides    invaluable
cooperation to the government.         By its nature, plea bargaining involves
certain risks to both parties.         Permitting sentencing courts to accept a
defendant's guilty plea and yet disavow the terms of and intent behind the
bargain, however, would bring an unacceptable level of instability to the
process.


     Unquestionably,      the   district       courts   may   consider   conduct    from
uncharged or dismissed counts for certain purposes under the guidelines.
First, such conduct can factor into the offense level as a specific offense
characteristic,     including      victim-related         and    role-in-the-offense
adjustments.      See   U.S.S.G.   §   1B1.3     (Relevant    Conduct    (Factors   that
Determine the Guideline Range)); United States v. Sheahan, 31 F.3d 595 (8th
Cir. 1994).    For example, in this case Harris received a two-level increase
to his base offense pursuant to section 3A1.3 of the guidelines because the
victim was physically restrained in the course of the robbery that preceded
the offense of conviction.      In addition, section 4A1.3(e) allows a court
to depart from a defendant's criminal history score based on "prior similar
adult criminal conduct not resulting in a criminal conviction."               Finally,
according to section 1B2.1(c) of the guidelines, instances of misconduct
to which the defendant stipulates when entering a plea are treated like
convictions and trigger application of multiple count analysis as set forth
in sections 3D1.1-1.5.      It was the application of this provision to the
original plea agreement that led to the parties' joint motion to withdraw
Harris's guilty plea to count I so that his sentence would more accurately
reflect the parties' intentions.


     The circuit courts are divided, however, on the question of whether
conduct from dismissed counts may be used as a basis for an upward
departure under section 5K2.0.     Although we note that each case implicates
a different constellation of variables under the guidelines, our holding
is generally consistent with the Third and Ninth Circuits.                  See United
States v. Thomas, 961 F.2d 1110, 1120




                                           6
21 (3rd Cir. 1992) (holding that the district court erred by departing
upward to compensate for the government's decision not to charge the
defendant with a more serious crime); United States v. Faulkner, 952 F.2d
1066, 1069-71 (9th Cir. 1991) ("It would be patently unfair if the court
were allowed to hold [the defendant] to his part of the bargain--his plea
of guilty to five counts--while simultaneously denying him the benefits
promised him from the bargain by relying on the uncharged and dismissed
counts in sentencing him."); United States v. Castro-Cervantes, 927 F.2d
1079, 1082 (9th Cir. 1990) ("[F]or the court to let the defendant plead to
certain   charges and then to be penalized on charges that have, by
agreement, been dismissed is not only unfair; it violates the spirit if not
letter of the bargain."); but see United States v. Kim, 896 F.2d 678, 684
(2nd Cir. 1990) (holding that the court may use conduct in dismissed counts
to support an upward departure), followed by, United States v. Ashburn, 38
F.3d 803, 807 (5th Cir. 1994), cert. denied, 115 S.Ct. 1969 (1995) and
United States v. Zamarripa, 905 F.2d 337. 341 (10th Cir. 1990).


     It is important to recognize that the sentencing court had valid,
alternative means to impose a different sentence in this case if that was
its objective.    First, Rule 11(e) of the Federal Rules of Criminal
Procedure gives the court discretion to reject a plea bargain that it
believes to be unduly lenient.5   In addition, the guidelines provide that
where a plea agreement includes the dismissal of any charges or an
agreement not to pursue potential charges, the court should accept the plea
only if it determines that the charges adequately reflect the seriousness
of the actual




     5
      Moreover, Rule 11(e)(4) outlines the procedure the court must
follow if it rejects a plea agreement. Among the requirements, the
court must inform the defendant that if he or she "persists in a
guilty plea . . . the disposition of the case may be less favorable
to the defendant than contemplated by the agreement."       Fed. R.
Crim. P. 11(e)(4).      Thus, the rules recognize the reasonable
expectation parties' to a plea agreement have in the disposition
contemplated by that agreement.

                                     7
offense behavior and only if the agreement does not undermine the statutory
purposes of sentencing or the sentencing guidelines.    U.S.S.G. § 6B1.2.
Moreover, once it accepted the plea, the court had significant latitude in
applying the guidelines.   For example, the court could have made its own
calculations of Harris's offense level and criminal history, rather than
accept the calculations embodied in the plea agreement.      Moreover, the
court could have rejected the government's motion for downward departure
pursuant to § 5K1.1.    All of these options represented known risks to
Harris when he entered into a bargain with the government.     The district
court chose not to exercise any of these options.


     The court was not entitled to defeat the parties' expectations by
imposing a more severe sentence using Harris's role in the armed robbery
that preceded the offense of conviction to depart upward pursuant to §
5K2.0.   For that reason, we remand the case to the district court with
instructions either to resentence Harris in a manner consistent with this
opinion or to reject the plea agreement and allow Harris the opportunity
to withdraw his plea as directed by Rule 11(e)(4) of the Federal Rules of
Criminal Procedure.


     A true copy.


         Attest:


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




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