                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                              December 22, 2014
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 14-3044
 RONALD D. CATRELL,

          Defendant-Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF KANSAS
                     (D.C. NO. 2:11-CR-20125-CM-1)


Thomas H. Johnson, Petefish, Immel, Heeb & Hird, LLP, Lawrence, KS, for
Defendant-Appellant.

Barry R. Grissom, United States Attorney, and James A. Brown, Assistant United
States Attorney, Topeka, KS, for Plaintiff-Appellee.


Before McHUGH, McKAY, and BALDOCK, Circuit Judges. *


BALDOCK, Circuit Judge.


      Defendant Ronald Catrell appeals his sentence, alleging: (1) a portion of the


      *
         After examining the briefs and the 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)(2) and 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
sentence illegally exceeded a statutory maximum, and (2) the Government

vindictively insisted on a plea agreement recommending 132 months in prison. We

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Although we find

no prosecutorial vindictiveness here, we must reverse and remand in order for the

district court to correct its imposition of an illegal sentence.

      In late 2011, the Government filed an information in the District of Kansas

charging Defendant with various fraud-related crimes. The information was filed

with the understanding that Defendant would plead guilty. Defendant, however, fled

the jurisdiction after posting bond and was only returned to Kansas after authorities

arrested him in South Carolina in July 2012. He then entered a different, binding

plea agreement with the Government under Rule 11(c)(1)(C) of the Federal Rules of

Criminal Procedure. Per this agreement, Defendant would receive 120 months in

prison for the following crimes: bank fraud (18 U.S.C. § 1344), wire fraud (18

U.S.C. § 1343), money laundering (18 U.S.C. § 1957), and aggravated identity theft

(18 U.S.C. § 1028A). Defendant thereafter pled guilty to these four felony counts.

      Before sentencing, however, and after a lengthy hearing, the district court

allowed Defendant to withdraw this guilty plea. The Government then procured an

indictment against Defendant with over a dozen new criminal counts. Within weeks,

Defendant entered into a new Rule 11(c)(1)(C) agreement with the Government.

This time, Defendant would plead guilty to the same four crimes as before and

receive 132 months in prison—a 12-month increase from the prior plea. To reach

                                           2
this total, the parties agreed to a 24-month sentence for aggravated identity theft, to

run consecutively with concurrent 108-month sentences for bank fraud, wire fraud,

and money laundering.

      Defendant subsequently pled guilty and affirmed, after extensive questioning,

that he was doing so of his own free will and pursuant to the Rule 11(c)(1)(C)

agreement. He also stated that although he was surprised and disappointed with the

12-month increase, he was nevertheless requesting the 132-month sentence outlined

in the agreement; in addition, he acknowledged he would have no opportunity to ask

for a lower sentence once the court accepted the agreement. Indeed, at the change

of plea hearing alone, he affirmed his acquiescence to the 132-month sentence at

least eight separate times.    In light of the unexpected indictment, Defendant

explained, the plea agreement “is the best approach to this—to resolve this matter.”

      Later, at sentencing, Defendant opined in allocution that the new indictment

was “punishment for withdrawing the [earlier guilty] plea” and that “I feel like

there’s no choice but to accept” the new plea agreement.           Upon questioning,

however, he again reiterated that he nevertheless willingly entered the agreement and

willingly pled guilty, fully aware that his sentence would be 132 months. The court

then accepted the agreement and sentenced Defendant to 132 months. In crafting the

sentence, though, the court sentenced Defendant to 54 months for aggravated identity

theft (as opposed to the 24 months set out by the parties) and 78 months for the other

three crimes (as opposed to the 108 months set out by the parties). Thus, while the

                                          3
total sentence was identical to that put forth in the Rule 11(c)(1)(C) agreement, the

math used to achieve that total was different. Neither party objected to the court’s

alternate method. Defendant now appeals his aggravated identity theft sentence. But

first, we must address his claim of prosecutorial vindictiveness.

      Defendant argues the Government vindictively punished him for withdrawing

his initial guilty plea by adding 12 months to his sentence in the final Rule

11(c)(1)(C) agreement. At minimum, he argues, the Government should have to

rebut a presumption of vindictiveness on remand. We disagree. Although the parties

dispute the applicable standard of review, binding precedent forecloses Defendant’s

argument even under de novo review. Simply put, “in the ‘give-and-take’ of plea

bargaining, there is no such element of punishment or retaliation so long as the

accused is free to accept or reject the prosecution’s offer.”        United States v.

Lampley, 127 F.3d 1231, 1245 (10th Cir. 1997) (alteration omitted) (emphasis

added) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)). 1

      Nothing in the record indicates Defendant was forced to go along with the

132-month sentence. True, Defendant mentioned at sentencing that “I feel like

there’s no choice but to accept” the new plea agreement.            The district court

immediately pressed Defendant on this statement, though, and he reiterated—in line



      1
         Defendant asserts Bordenkircher is factually distinguishable, but that misses
the point; we are not relying on Bordenkircher for its precise facts, but rather for its
directly applicable statement of law regarding plea bargaining.

                                           4
with his numerous comments at the extremely thorough change-of-plea hearing—that

he had willingly entered the agreement and willingly pled guilty.          We see no

evidence in the record that indicates otherwise, so there can be no error. See United

States v. Sarracino, 340 F.3d 1148, 1179 (10th Cir. 2003) (“Sarracino made the

tactical choice to reject the plea bargain and proceed to trial. The government had

probable cause to seek the reindictment of Sarracino for second degree murder based

on the facts . . . and did so. . . . ‘A claim of vindictive prosecution cannot insulate

the defendant from the lawful consequences of his tactical choices.’” (citations

omitted)); United States v. Berger, 251 F.3d 894, 910 (10th Cir. 2001) (“[T]he fact

that the prosecutor informed the defendants that if they withdrew from their plea

agreements they would lose the benefit of the agreed-upon prison terms does not give

rise to an inference of vindictiveness . . . .”).

       We now turn to Defendant’s primary contention, which is that the district court

erred by sentencing him to 54 months for aggravated identity theft. The Government

concedes error on this point, and rightly so. Aggravated identity theft under 18

U.S.C. § 1028A requires a “term of imprisonment of 2 years”—no more, no less.

See id. § 1028A(a)(1); United States v. Dooley, 688 F.3d 318, 319 (7th Cir. 2012)

(“Section 1028A has an unusual penalty provision. Every conviction under that

statute is punished by exactly two years in prison.”). The parties differ, however, in

what they think we should do about this error.

       After initially moving for remand so the error could be corrected, the

                                             5
Government now asserts we could affirm under plain error review because the

district court would have been required to sentence Defendant to 132 months under

any method of calculation. But in United States v. Gonzalez-Huerta, 403 F.3d 727

(10th Cir. 2005) (en banc), we stated otherwise on this very issue. Per Gonzalez-

Huerta, we view a prison sentence exceeding a statutory maximum as an “illegal

sentence” that “trigger[s] per se, reversible, plain error.” Id. at 739 n.10 (emphasis

added); see also United States v. Barwig, 568 F.3d 852, 858 (10th Cir. 2009) (“A

sentence that exceeds the statutory maximum is an illegal sentence . . . and an illegal

sentence is per se reversible even under plain error review.”). Going even further,

in United States v. Moyer, 282 F.3d 1311 (10th Cir. 2002), we held “the imposition

of an illegal sentence constitutes plain error even if the sentence favors the

defendant.” Id. at 1319. If an illegal sentence favoring a defendant is plain error,

then surely the sentence here qualifies.

      The Government fails to confront the above case law. Rather, citing cases

expounding on plain error more generally, it insists plain error review allows us to

affirm if a defendant could not have received a lower sentence absent the error. The

Government also cites a case where the Eighth Circuit declined to find plain error

in a similar circumstance. See United States v. Bossany, 678 F.3d 603, 606 (8th Cir.

2012) (“Mr. Bossany contends for the first time on appeal that his 90-month sentence

for conspiracy exceeds the five-year (60-month) statutory maximum . . . and we

agree. . . .   Though the error is plain, we conclude that it did not affect Mr.

                                           6
Bossany’s substantial rights . . . . Regardless of the error, Mr. Bossany would have

been sentenced to 90 months in prison . . . .”). As reasonable as this approach may

be, however, we must follow a different path. Per our precedent, the district court

clearly gave Defendant an “illegal sentence” for aggravated identity theft, and we

must remand for this plain error to be corrected. See United States v. Brooks, 751

F.3d 1204, 1209 (10th Cir. 2014) (“Absent en banc consideration, we generally

‘cannot overturn the decision of another panel of this court.’” (citation omitted)).

      But that does not end our discussion, for now we must determine what—if

any—instructions to give the district court on remand. Defendant asks us to instruct

the court to correct its error on the aggravated identity theft count without touching

the other counts. If we were to do this, Defendant would receive 24 months for

aggravated identity theft and 102 months total, rather than 132 months.           Our

“sentencing package doctrine” counsels in the other direction, however. Under this

doctrine, a “sentencing package . . . takes into account all counts upon which the

defendant has been convicted. When one of these counts is set aside or vacated, the

district court is free to reconsider the sentencing package de novo . . . .” Ward v.

Williams, 240 F.3d 1238, 1243 (10th Cir. 2001) (quoting United States v. Smith, 116

F.3d 857, 859 (10th Cir. 1997)). Defendant puts forth several arguments for why

this doctrine is inapplicable; none are persuasive.

      First, Defendant argues the sentencing package doctrine only applies when a

conviction has been vacated, as opposed to just a sentence. Certainly, we have

                                          7
offhandedly mentioned that the doctrine applies “[w]hen one of these counts is set

aside . . . .” Id. (emphasis added) (quoting Smith, 116 F.3d at 859). This language

is best viewed as descriptive rather than prescriptive, however; indeed, in Ward

itself, after describing the sentencing package doctrine in these words, we applied

the doctrine to a situation where a state court vacated and corrected its “illegal

sentence” without vacating any underlying convictions. Id. at 1243–44. Thus, Ward

counsels directly against Defendant on this argument.

      Second, Defendant argues the sentencing package doctrine only applies to

sentences crafted pursuant to the Sentencing Guidelines, as opposed to plea

agreements under Rule 11(c)(1)(C). This argument fails for precisely the same

reason as the first. That is, our statement in Ward that a “sentence under the U.S.

Sentencing Guidelines constitutes a sentencing package,” id. at 1243 (emphasis

added) (quoting Smith, 116 F.3d at 859), is again clearly descriptive rather than

prescriptive because in that very case we approved of the doctrine’s use in a New

Mexico state court proceeding from 1995 that almost certainly was not conducted

pursuant to the federal Guidelines. Id. at 1243–44. Moreover, Defendant cites no

case law supporting his argument that the sentencing package doctrine should not

apply to a sentence doled out pursuant to a Rule 11(c)(1)(C) agreement.

      Finally, Defendant contends the “essential difference” between his situation

and Ward is that he was sentenced pursuant to a contract (i.e. the plea agreement)

that should be interpreted against the drafter of the contract (i.e. the Government).

                                         8
And per the contract, Defendant asserts, the Government should have appealed the

sentences for the three non-aggravated identity theft counts if it was dissatisfied. By

failing to do so, Defendant argues, the Government waived any right to have these

sentences revisited on remand. In an apparent effort to deny that he would receive

a windfall under this view, Defendant contends, inter alia, that the agreement did

“explicitly recognize[]” the possibility of a sentence below 132 months.

      This latter assertion is utterly without merit. Defendant’s Rule 11(c)(1)(C)

plea agreement explicitly “propose[d] . . . a total term of imprisonment of 132

months,” Exhibit A, Aple’s Br. at 4–5, and this proposal bound the court once it

accepted the plea agreement. See Fed. R. Crim. P. 11(c)(1)(C). In addition, the 132-

month total was affirmed by Defendant himself nearly a dozen times at his change-

of-plea and sentencing hearings. Even on appeal Defendant cannot keep his story

straight; rather, he contradictorily acknowledges elsewhere in his briefs that the plea

agreement “recommended” a sentence of 132 months and that he “reasonably

understood . . . he would be sentenced to 132 months.”             Indeed, his entire

vindictiveness argument is based on the fact that the Government insisted on 132

months in the new plea agreement. 2 Defendant can in no way prevail on this issue.


      2
         Even if we ignored Defendant’s numerous admissions, his sole argument on
this point is baseless. Defendant contends explicit authorization for a lower sentence
came from the waiver section of the plea agreement, which states that he still had the
right to appeal any above-Guidelines departure by the district court. As odd as this
language may be, it in no way authorizes the court to reject the parties’ unequivocal
                                                                         (continued...)

                                          9
      Furthermore, Defendant’s assertion that the Government is not entitled to re-

sentencing on contractual grounds does not affect the sentencing packaging doctrine,

which focuses on allowing the district court to resentence in order to carry out its

original intent, regardless of the parties’ machinations. See Ward, 240 F.3d at 1243

(emphasizing “the importance of allowing district courts to resentence in order to

carry out [their] original sentencing intent” (quoting United States v. Hicks, 146 F.3d

1198, 1202 (10th Cir. 1998))). In the end, we will not force the court to disregard

its original intent and the binding plea deal. 3 The court is free on remand to

resentence on all counts in accordance with the agreement.

      REVERSED and REMANDED.




      2
       (...continued)
sentence recommendation from a few paragraphs earlier, which, again, “binds the
court once the court accepts the plea agreement.” Fed. R. Crim. P. 11(c)(1)(C).
      3
        We also note the irony of Defendant’s arguing that we should penalize the
Government for failing to object to the sentence below while simultaneously arguing
that we should remand even though he failed to object to the sentence below.

                                          10
