           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    United States v. Peveler                    No. 02-5778
        ELECTRONIC CITATION: 2004 FED App. 0039P (6th Cir.)
                    File Name: 04a0039p.06                                 Cushing, ASSISTANT UNITED STATES ATTORNEY,
                                                                           Louisville, Kentucky, for Appellee.      ON BRIEF:
                                                                           Elizabeth S. Hughes, GESS, MATTINGLY & ATCHISON,
UNITED STATES COURT OF APPEALS                                             Lexington, Kentucky, for Appellant. Terry M. Cushing,
                                                                           Candace G. Hill, ASSISTANT UNITED STATES
                  FOR THE SIXTH CIRCUIT                                    ATTORNEYS, Louisville, Kentucky, for Appellee. Terry L.
                    _________________                                      Peveler, Manchester, Kentucky, pro se.

 UNITED STATES OF AMERICA , X                                                                  _________________
            Plaintiff-Appellee, -
                                  -                                                                OPINION
                                  -   No. 02-5778                                              _________________
           v.                     -
                                   >                                         HAYNES, District Judge. Appellant Terry L. Peveler
                                  ,                                        appeals the district court's order denying his motion to modify
 TERRY L. PEVELER,                -
          Defendant-Appellant. -                                           his sentence under 18 U.S.C. § 3582(c)(2). Peveler relies
                                                                           upon the retroactivity of Amendment 599 to U.S.S.G. § 2K2.4
                                 N                                         that bars “double counting” of firearm enhancements where,
       Appeal from the United States District Court                        as here, there is conviction under 18 U.S.C. § 924(c) arising
   for the Western District of Kentucky at Owensboro.                      from the same underlying offenses. Although originally
   No. 93-00014—Jennifer B. Coffman, District Judge.                       indicted on 11 counts, Peveler subsequently entered a guilty
                                                                           plea under the former Fed. R. Crim. P. 11(e)(1)(C) to a
                   Argued: October 24, 2003                                superceding information charging five counts of
                                                                           drug-trafficking in violation of 21 U.S.C. § 841(a)(1) and a
             Decided and Filed: February 6, 2004                           sixth count of carrying a firearm during and in relation to a
                                                                           drug-trafficking crime in violation of 18 U.S.C. § 924(c).
  Before: DAUGHTREY and GILMAN, Circuit Judges;                            Peveler contends that Amendment 599 prohibits the two-level
             HAYNES, District Judge.*                                      sentence enhancement in his plea agreement that the district
                                                                           court applied to determine his original sentence. Therefore,
                       _________________                                   Peveler moves to modify his sentence by two levels. For the
                                                                           reasons set forth below, we AFFIRM the district court's
                            COUNSEL                                        judgment, but for different reasons.
ARGUED: Elizabeth S. Hughes, GESS, MATTINGLY &                             A. Procedural History
ATCHISON, Lexington, Kentucky, for Appellant. Terry M.
                                                                             On April 6, 1993 a federal grand jury in Owensboro,
                                                                           Kentucky returned an 11-count indictment against Peveler
    *
                                                                           and three other co-defendants. Peveler was named in seven
      The Honorable William J. Haynes, Jr., United States District Judge   of the 11 counts, with five of these counts charging him with
for the Middle District of Tennessee, sitting by designation.

                                   1
No. 02-5778                            United States v. Peveler             3    4     United States v. Peveler                     No. 02-5778

drug trafficking in violation of 21 U.S.C. § 841(a)(1). The                      petition for a writ of certiorari. Peveler v. United States, 516
remaining two counts charged Peveler with violating                              U.S. 1137 (1996).
18 U.S.C. § 924(c) by using or carrying a firearm in relation
to drug trafficking crimes on November 12, 1992, and                                Peveler then filed a pro se petition under 28 U.S.C. § 2255
December 18, 1992. Initially, Peveler pled not guilty to all                     for relief from his sentence, alleging that he pled guilty to the
seven counts, but after the district court denied his motion to                  firearm count based upon his belief that he could be convicted
suppress, he entered into a plea agreement with the                              under § 924(c) for storing firearms in proximity to illegal
government.                                                                      drugs. After his conviction, the Supreme Court in Bailey v.
                                                                                 United States, 516 U.S. 137 (1995), held that a conviction for
   The “Rule 11(e)(1)(C)”1 plea agreement required Peveler                       using a firearm in relation to a drug-trafficking crime can only
to plead guilty to a six-count superseding information that                      arise if the defendant “actively employed” the firearm. The
charged him with the same five drug-trafficking counts in the                    district court referred Peveler's petition to the magistrate
original indictment, but with only one count of violating                        judge. The magistrate judge recommended that the district
§ 924(c) by using or carrying a firearm in relation to a drug                    court vacate Peveler's firearm conviction.                  This
trafficking crime on January 24, 1993. In return, the                            recommendation was based on the government's concession
government agreed to dismiss the two § 924(c) firearm                            that Peveler's guilty plea to the firearm count was no longer
charges and further agreed to recommend a prison sentence                        valid after Bailey. The government, however, withdrew its
and fine at the low end of the applicable guideline ranges.                      concession shortly after Bousley v. United States, 523 U.S.
The plea agreement contained an express provision that the                       614 (1998), in which the Supreme Court held that to assert a
total offense level would be 30, based upon specific guideline                   Bailey challenge successfully, a movant must show “cause
calculations in the plea agreement. Peveler entered his guilty                   and prejudice” to avoid procedural default or demonstrate his
plea in September 1994, but preserved his right to appeal the                    actual innocence on the § 924(c) charge and any other more
district court's denial of his motion to suppress. Peveler                       serious charges that were dismissed during plea bargaining.
received a 181-month prison sentence, with the five                              After Bousley, the district court remanded the action to the
drug-trafficking counts accounting for 121 of these months,                      magistrate judge for a recommendation on the firearm
and the additional 60 months attributable to his § 924(c)                        charges.
firearm conviction.
                                                                                    The magistrate judge conducted an evidentiary hearing, at
  Peveler then appealed the denial of his motion to suppress.                    which the government conceded Peveler's actual innocence
We affirmed the district court's denial of Peveler's motion.                     of the firearm charge in the superseding information. The
United States v. Peveler, 1995 U.S. App. LEXIS 36888, 1995                       hearing focused on whether Peveler had committed the other
WL 620961 (6th Cir. Oct. 19, 1995) (unpublished table                            firearm charges in the original indictment, that is, whether
decision). The Supreme Court denied Peveler's subsequent                         Peveler used or carried a firearm in relation to
                                                                                 drug-trafficking crimes on November 12, 1992, and
                                                                                 December 18, 1992. After the hearing, the magistrate judge
    1
      In 2002, Fed. R. Crim. R. 11 was amended and the current version           recommended that Peveler's request for relief from his
of Rule 11(e) incorporates the provisions of Fed. R. Crim. P. 32(e). The         conviction and sentence on the firearm count in the
former Rule 1 1(e)(1)(C ) is now Rule 1 1(c)(1)(C ). Given the facts of this     superseding information be denied. The district court
case and our reliance on pre-20 02 p reced ents, we will continue to re fer to
Peveler’s plea agreement as a Rule 11(e)(1)(C) for ease of reference.
                                                                                 overruled Peveler's objections, adopted the magistrate judge's
No. 02-5778                    United States v. Peveler      5    6        United States v. Peveler                 No. 02-5778

recommendation and denied a certificate of appealability.         weigh and package various quantities of cocaine on
However, we granted a certificate of appealability, but           January 24, 1993. Blanford reported seeing firearms openly
affirmed the district court's decision.                           displayed in the rooms of Peveler's trailer home where the
                                                                  marijuana sales took place in 1992 and further stated that he
  On August 3, 2001, Peveler filed a motion to modify his         saw firearms in the closet of Peveler's bedroom where the
sentence pursuant to 18 U.S.C. § 3582(c). The district court      cocaine packaging occurred in 1993. Based on the
referred the motion to a magistrate judge, who recommended        information provided by Blanford, warrants were issued to
denying Peveler's motion. The district judge adopted the          arrest Peveler and to search his trailer. The search resulted in
magistrate's finding and denied the motion. In essence, the       the recovery of 1.5 pounds of cocaine, 12 pounds of
district court adopted the magistrate judge's conclusion that a   marijuana, and four firearms.
reduction was not warranted because the two-level
enhancement was not for Peveler's drug convictions, but for       C. The Plea Agreement
his possession of a firearm on a different month and year from
the drug offenses. Peveler then appealed the district court's        Peveler eventually entered into a plea agreement that
decision and filed a pro se brief in this court. We appointed     required Peveler to plead guilty to a six-count superseding
counsel, who filed a brief on Peveler's behalf, to which the      information with the same five drug-trafficking counts
government has responded.                                         included in the original indictment, but with only one count
                                                                  of violating § 924(c) by using or carrying a firearm in relation
B. Factual Background                                             to a drug trafficking crime on January 24, 1993. Essentially,
                                                                  the only difference between the original indictment and the
   In September 1992, the Kentucky State Police and the           superseding information was that the two § 924(c) firearm
police department in Livermore, Kentucky, began                   charges on November 12, 1992 and December 18, 1992, were
investigating Peveler and his codefendants for suspected drug     dropped in exchange for the single § 924(c) count on
trafficking.    This investigation commenced after a              January 24, 1993.
confidential source informed both law enforcement agencies
that Peveler was using and selling illegal drugs in Western         The plea agreement was under then Fed. R. Crim. P.
Kentucky.                                                         11(e)(1)(C) and expressly provided that the sentencing level
                                                                  would be 30, but based upon certain findings to be made by
   About the time of the investigation of Peveler, Livermore      the Court under the guidelines. The plea agreement provides,
Police Chief Charles Cobb arrested Larry Blanford for             in pertinent part:
attempted theft of a motorcycle. Blanford agreed to serve as
a confidential informant and to purchase drugs from Peveler        Pursuant to Rule 11(e)(1)(C) and 11(a)(2) of the Federal
in exchange for cash payments and the dismissal of his theft      Rules of Criminal Procedure,
charge.
                                                                      4.    Defendant understands that the charge to which he
  Pursuant to this arrangement, Blanford informed Cobb and                  will plead guilty carries a combined maximum term
Kentucky State Police Detective Charles Brown that he                       of imprisonment of 65 years, a combined maximum
purchased marijuana from Peveler on November 12, 1992,                      fine of three million dollars, and a 4 year term of
and again on December 18, 1992, and that he saw Peveler                     supervised released. Defendant understands that an
No. 02-5778                  United States v. Peveler        7   8      United States v. Peveler                     No. 02-5778

     additional term of imprisonment may be ordered if                                         ***
     the terms of the supervised released are violated, as
     explained in 18 U.S.C. § 3583. There is not a                   14. Defendant agrees that the disposition provided
     mutual mistake here, but rather a retroactive                       within this Agreement is fair, taking into account all
     application of a guideline.                                         aggravating and mitigating factors. Defendant states
                                                                         that he has informed the United States Attorney's
                          ***                                            Office and the Probation Officer, either directly or
                                                                         through his attorney, of all mitigating factors.
 10. At the time of sentencing, the United States will                   Defendant will not oppose imposition of a sentence
     recommend a sentence of imprisonment at the low                     incorporating the disposition provided for within
     end of the applicable Guideline Range, but not less                 this Agreement, nor argue for any other sentence.
     than any mandatory minimum term of imprisonment
     required by law.                                            (Joint Appendix at 108-09, 112-113) (emphasis added). The
                                                                 district court accepted the parties’ guideline calculations and
                          ***                                    imposed the sentence of 181 months consistent with the plea
                                                                 agreement.
 11. Both parties have independently reviewed the
     Sentencing Guidelines applicable in this case, and in          During oral argument, Peveler conceded that he does not
     the best judgment and belief, conclude as follows:          want to set aside his plea agreement, given that to do so
                                                                 would subject him to prosecutions on two additional § 924(c)
 A. The Applicable Offense Level             should be           firearm charges. In any event, as discussed infra, this Court
    determined as follows:                                       would lack the authority to set aside the plea agreement under
    Base Offense Level           26         § 2D1.1(c) (9)       § 3582(c).
    Organizer or leader          +2         § 3B1.1(c)
    Adjusted Based Offense level 28                              D. Analysis
    Possession of Weapon         +2         § 2D1.1(b) (2)
    TOTAL OFFENSE LEVEL 30                                          This Court reviews a district court's decision to grant or
                                                                 deny a motion to modify under 18 U.S.C. § 3582 for an abuse
 B. The Criminal History of the Defendant shall be               of discretion. United States v. Ursery, 109 F.3d 1129, 1137
    determined upon completion of the presentence                (6th Cir. 1997). Yet, to the extent that Peveler's “arguments
    investigation, pursuant to Fed. R. Crim. P. 32(c)(2).        all rest on the legal interpretation of various [sentencing]
                                                                 guidelines,” the district court's interpretation of the sentencing
 12. If the Court refuses to accept this agreement and           guidelines presents a question of law, subject to de novo
     impose sentence in accordance with its terms                review. United States v. Smith, 196 F.3d 676 (1999) (citing
     according to the United States' motion pursuant to          United States v. Vincent, 20 F.3d 229, 241 (6th Cir. 1994)).
     Fed. R. Crim. P. 119(e)(1)(C), this Agreement will
     become null and void and neither party shall be               The statutory authority for Peveler's sentence modification
     bound thereto, and Defendant will be allowed to             request is 18 U.S.C. § 3582(c)(2), which provides as follows:
     withdraw the plea of guilty.
No. 02-5778                   United States v. Peveler        9   10   United States v. Peveler                   No. 02-5778

  The court may not modify a term of imprisonment once              Peveler argues that he is entitled to reduction of his
  it has been imposed except...in the case of a defendant         sentence due to the Sentencing Commission's retroactive
  who has been sentenced to a term of imprisonment                application of Amendment 599 to the sentencing guidelines
  based on a sentencing range that has subsequently               set forth in revised § 1B1.10 of the U.S.S.G., as follows:
  been lowered by the Sentencing Commission
  pursuant to 28 U.S.C. 994(o), upon motion of the                    Weapon Enhancement. If a sentence under this
  defendant... after considering the factors set forth in           guideline is imposed in conjunction with a sentence for
  section 3553(a)... if such a reduction is consistent with         an underlying offense, do not apply any specific offense
  applicable policy statements issued by the Sentencing             characteristic for possession, brandishing, use, or
  Commission.                                                       discharge of an explosive or firearm when determining
                                                                    the sentence for the underlying offense. A sentence
(Emphasis added.)                                                   under this guideline accounts for any explosive or
                                                                    weapon enhancement for the underlying offense of
  18 U.S.C. § 3553(a) lists the following relevant factors to       conviction, including any such enhancement that would
be considered when ruling on a motion to modify:                    apply based on conduct for which the defendant is
                                                                    accountable under § 1B1.3 (Relevant Conduct). Do not
  (1) the nature and circumstances of the offense and the           apply any weapon enhancement in the guideline for the
  history and characteristics of the defendant;                     underlying offense, for example. If (A) a co-defendant,
  (2) the need for the sentence imposed–                            as part of the jointly undertaken criminal activity,
  (A) to reflect the seriousness of the offense, to promote         possessed a firearm different from the one for which the
  respect for the law, to provide just punishment for the           defendant was convicted under 18 U.S.C. § 924(c); or
  offense...                                                        (B) in an ongoing drug trafficking offense, the defendant
                             ***                                    possessed a firearm other than the one for which the
  (5) any pertinent policy statement issued by the                  defendant was convicted under 18 U.S.C. § 924(c).
  Sentencing Commission...                                          However, if a defendant is convicted of two armed back
                                                                    robberies, but is convicted under 18 U.S.C. § 924(c) in
  In a policy statement, the United States Sentencing               connection with only one of the robberies, a weapon
Commission addressed the district court's exercise of its           enhancement would apply to the bank robbery which was
discretion on a § 3582(c)(2) motion, stating:                       not the basis for the 18 U.S.C.§ 924(c) conviction.
    In determining whether, and to what extent, a                 (Emphasis added.)
  reduction in the term of imprisonment is warranted for a
  defendant eligible for consideration under 18 U.S.C.              Eighteen U.S.C. § 3582 (c)(2) “empowers the District
  § 3582(c)(2), the court should consider the term of             Court to modify the prisoner's sentence that would otherwise
  imprisonment that it would have imposed had the                 be final.” United States v. Williams, 182 F.3d 919, 1999 WL
  amendment(s) to the guidelines listed in subsection (c)         397945, **4 (6th Cir. 1999). Because Amendment 599 is
  been in effect at the time the defendant was sentenced...       given retroactive effect, a defendant may seek relief under
                                                                  § 3582(c)(2). United States v. Diaz, 248 F.3d 1065, 1107-08
Application note 2 to U.S.S.G. § 1B1.10.                          (11th Cir.2001); United States v. Aquino, 242 F.3d 859, 865
No. 02-5778                     United States v. Peveler      11    12   United States v. Peveler                     No. 02-5778

(9th Cir.2001). Yet, a district court “has the discretion to deny     Yet, a rule of criminal procedure can limit a court's
a § 3582(c)(2) motion, even if the retroactive amendment has        authority. United States v. Robinson, 361 U.S. 220, 223,
lowered the guideline range.” Usery, 109 F.3d at, 1137,             229-30 (1960) “([T]he court may not enlarge the period for
Accord, United States v. Wesley, 221 F.3d 1337, 2001 WL             taking any action under rules 33, 34, and 35, except as
799783, **2 (6th Cir. June 14, 2000).                               otherwise provided in those rules).” Here, Rule 11 recognizes
                                                                    three types of plea agreements Fed. R. Crim. P. 11(e)(1)(A)
  Generally, “[o]nce the district court has accepted a plea         through (C). Peveler’s plea agreement is under former Rule
agreement, [this Court has] traditionally regarded the              11(e)(1)(C) which expressly limits the district court's
agreement as a type of contract, and...[has] analyzed the           authority to modify the agreement. Accordingly, the
respective obligations of the prosecution and the defendant         threshold issue here is whether the district court possessed the
under general principles of contract law.” United States v.         authority to modify parties' agreed sentence that was imposed
Skidmore, 998 F.2d 372, 375 (6th Cir. 1993) (citing United          under a Rule 11(e)(1)(C) plea agreement.
States v. Mandell, 905 F.2d 970, 973 (6th Cir. 1990)). “A
guilty plea, however, involves the waiver of at least three            At the time of Peveler's 1994 plea agreement, former Rule
constitutional rights by a defendant...[and] [t]herefore, the       11(e)(1)(C) provided only that the parties “agree that a
analogy of a plea agreement to a traditional contract is not        specific sentence is the appropriate disposition of the case.”
complete or precise, and the application of ordinary contract       A Rule 11(e)(1)(C) plea can also include “the language in the
law principles to a plea agreement is not always appropriate.”      plea agreement whereby the parties agreed that ‘any sentence
Id., citing United States v. Olesen, 920 F.2d 538, 541 (8th Cir.    of incarceration shall not exceed the midpoint of the
1990).                                                              sentencing guideline range that the court finds to be
                                                                    applicable.’ This language has been held to be the equivalent
  In United States v. Weaver, 905 F.2d 1466 (11th Cir. 1990),       of a sentencing recommendation under Fed. R.Crim. P.
the Eleventh Circuit noted the possibility of reformation of a      11(e)(1)(C) that is binding on a district court.” United States
Rule 11 plea agreement upon a showing of mutual mistake:            v. Benjamin, 188 F.3d 509, 199WL685924 * 2 (6th Cir.
                                                                    August 26, 1999).
  Reformation of a written agreement is warranted only
  when the evidence demonstrates that the parties' mutual              Even under the pre-1999 version of former Rule
  mistake resulted in a written document which does not             11(e)(1)(C), we held that “[o]nce the court unqualifiedly
  accurately reflect the terms of their agreement.                  accepts the agreement it too is bound by the bargain.” United
  Consequently, reformation is generally, without more,             States v Holman, 728 F.2d 809, 813 (6th Cir. 1984) (citations
  not an available remedy where the evidence demonstrates           omitted). Prior to the 1999 amendments to Rule 11(e), in
  mistake or change of mind of only one of the contracting          Fields v. United States, 963 F.2d 105 (6th Cir. 1992), a
  parties.                                                          defendant argued that the district court's acceptance of a Rule
                                                                    11(e)(1)(C) plea agreement bound the district court to accept
Id. at 1472 (citations omitted). In dicta, the First Circuit        the sentence in his Rule 11(e)(1)(C) agreement. We disagreed
suggested that modification of a plea agreement under a Rule        and held that “[a] sentencing judge could no longer be forced
11(e)(1)(C) may be justified upon a showing of a mutual             to abide by an agreed to sentence where that sentence did not
mistake United States v. Teeter, 257 F.3d 14, 28 n.12 (1st Cir.     conform to the Guidelines, as that would eviscerate their
2001).                                                              purpose.” Id. at 108, citing United States v. Kemper, 908
No. 02-5778                           United States v. Peveler         13     14   United States v. Peveler                    No. 02-5778

F.2d 33 (6th Cir. 1990). Fields2 required the district courts to                accept an agreement requiring imposition of a specific
consider a Rule 11(e)(1)(C) plea agreement in conjunction                       sentence. Kemper, 908 F.2d at 36-37.
with the Sentencing Guidelines and, under Fields, the district
court retained the authority to reserve judgment on acceptance                    Upon review of the presentence report, if the
of the plea agreement:                                                          sentencing court determines that there was an error in the
                                                                                calculating the agreed-upon sentence, it must reject the
    In Kemper this court recognized that Holman, which                          plea. Id.; U.S.S.G. § 6B1.3. The court must then “afford
  was decided before the Sentencing Guidelines, had been                        the defendant an opportunity to withdraw the defendant's
  overruled by “the 1987 amendments to the Federal Rules                        guilty plea.” U.S.S.G. § 6B1.3.
  of Criminal Procedure and the implementation of the ...
  Guidelines.” Id. at 35. A sentencing judge could no                         Id. at 108-09.
  longer be forced to abide by an agreed to sentence where
  that sentence did not conform to the Guidelines, as that                      With the 1999 amendments to Rule 11(e)(1)(C), the current
  would eviscerate their purpose.                                             version of former Rule 11(e)(1)(C) expressly limits a district
                                                                              court's authority to alter or modify any sentence imposed
    The Kemper court explained that if a plea agreement                       under such an agreement:
  has been accepted by the court before the presentence
  report has been conducted, Guidelines § 6B1.1(c)                              (e) Plea Agreement Procedure.
  describes the proper procedure:
                                                                                   (1) In General. An attorney for the government and
    The court shall defer it decision to accept or reject any                   the defendant's attorney, or the defendant when
  nonbinding recommendation pursuant to Rule                                    proceeding pro se, may discuss and reach a plea
  11(c)(1)(B) and the court's decision to accept or reject                      agreement. The court must not participate in these
  any plea agreement pursuant to Rules 11(e)(1)(A) and                          discussions. If the defendant pleads guilty or nolo
  11(e)(1)(C) until there has been an opportunity to                            contendere to either a charged offense or a lesser or
  consider the presentence report.                                              related offense, the plea agreement may specify that an
                                                                                attorney for the government will:
    Guideline § 6B1.1 as interpreted by Kemper, makes
  contingent upon its review of the presentence report.                                                   ***
  For, “only if the court is satisfied ... that the
  contemplated sentence is within the guidelines” can it                          (C) agree that a specific sentence or sentencing range
                                                                                is the appropriate disposition of the case, or that a
                                                                                particular provision of the Sentencing Guidelines, or
    2
                                                                                policy statement, or sentencing factor does or does not
      Mo re recent decisions in other circuits question Fields, citing the      apply (such a recommendation or request binds the
1999 amendments to Rule 11 and U .S.S.G . Ch.1 pt.A4(c) and Ch.6,pt.B,          court once the court accepts the plea agreement).
introductory cmt. and U.S.S.G. § 6B 1.2, and concluding that the
guidelines and policy guides do not preclude a district court from
imposing a sentenc e outsid e the guidelines unde r a Rule 11(e)(1)(C) plea
                                                                              (Emphasis added.) The underscored language was added in
agree ment. United States v. Goodall, 236 F.3d 70 0, 704-06 (D .C. Cir.       the 1999 amendments to Rule 11.
2001), and authorities cited therein.
No. 02-5778                     United States v. Peveler      15    16   United States v. Peveler                    No. 02-5778

  Albeit in unpublished decisions, we have held that in light       retroactive Amendment 488 to U.S.S.G. § 2D1.1(a), where
of the 1999 amendments, upon “accepting the [Rule                   the sentence was based upon a Rule 11(e)(1)(C) plea
11(e)(1)(C)] agreement, the district court bound itself to the      agreement:
government's end of the guideline range. If the district court
did not agree with the government’s binding sentencing                The government is correct in its assertion that federal
recommendation, it was free to reject the agreement. Once             courts lack jurisdiction to review a Rule 11(e)(1)(C)
the district court chose to accept the agreement, however, the        sentence where a prisoner claims that his Rule
court was required to follow its provisions.” United States v.        11(e)(1)(C) sentence is greater than the sentence range
Taylor, 14 Fed.Appx. 546, 552, 2001 WL 814924 * 6 (6th                specified in the applicable guidelines. See 18 U.S.C.
Cir. 2001).                                                           § 3742(C)(1); United States v. Denogean, 79 F.3d 1010,
                                                                      1013-14 (10th Cir. 1996), cert. denied, 519 U.S. 856,
  In another unpublished decision concerning a Rule                   1117 S.Ct. 154, 136 L.Ed. 2d 99 (1996); United States v.
11(e)(1)(C) plea agreement, we held that “once a district court       Prieto-Duran, 39 F.3d 1119, 1120 (10th Cir. 1994).
accepts a plea agreement where parties agreed on “a specific          However, this is not a direct appeal of Mr. Trujeque's
sentence or sentencing range,” the district court is bound by         sentence, nor is it a collateral attack under 28 U.S.C.
the parties’ plea agreement” and “cannot impose a sentence            § 2255. Rather, Mr. Trueque has filed motion under 18
greater or less severe than what is in the plea agreement[]”          U.S.C. § 3582 (c)(2). And the viability of his motion
unless “the terms of the plea agreement are equivocal.”               depends entirely upon that statute. Our appellate
United States v. Debreczeny, 69 Fed. Appx. 702, 705,                  jurisdiction over final decision extends as far as to
2003WL21580433 * 3 (6th Cir 2003). In the latter instance,            consider the district court's denial of Mr. Trujeque's §
“the district court has discretion to interpret its terms.” Id.       3582 (c)(2) motion.
We follow and adopt the rationale of these unpublished
decisions.                                                          Id. at 870-71 (emphasis added). The Tenth Circuit then ruled
                                                                    that the defendant's sentence was not actually calculated
   Here, at the time of sentencing, the district court applied      under the guidelines, but was determined by the Rule
the parties’ calculations of the relevant guidelines to Peveler’s   11(e)(1)(C) plea agreement. Id. at 871. Thus, this retroactive
plea agreement. Yet, this Court has not addressed whether a         amendment could not have affected the original sentence, and
district court has the authority to modify of a sentence under      the Tenth Circuit directed a dismissal of the motion to
a Rule 11(e)(1)(C) plea agreement based upon a retroactive          modify. Id. Similarly, Peveler was sentenced pursuant to a
amendment to a guideline that was utilized to determine the         Rule 11(e(1)(C) plea agreement that binds both the parties
defendant's sentence.                                               and the court. The fact that the parties in this case specified
                                                                    an offense level under the sentencing guidelines rather than a
  The Seventh and Tenth Circuits have held that retroactive         fixed period of imprisonment like the parties in Trujeque is a
amendments to the sentencing guidelines provide legally             distinction without a difference in terms of the court lacking
insufficient basis on which to modify a sentence under a Rule       the power to amend the plea agreement.
11(e)(1)(C) plea agreement. In United States v. Trujeque,
100 F.3d 869 (10th Cir. 1996), the Tenth Circuit observed             In United States v. Hemminger, 114 F.3d 1192, 1997 WL
that a district court lacked jurisdiction to consider a motion to   235838 (7th Cir. May 2, 1997), the Seventh Circuit affirmed
modify a sentence under § 3582(c)(2), based upon the                the denial of a motion to modify under § 3582(c)(2) based
No. 02-5778                     United States v. Peveler     17   18       United States v. Peveler                          No. 02-5778

upon a retroactive amendment to the relevant sentencing              Assuming that Peveler is correct in his interpretation of
guideline for the defendant's sentence. There, the Rule           Amendment 599 as applied to his sentence3, we defer to the
11(e)(1)(C) plea agreement expressly stated that the agreed       express language in the 1999 amendments to the former Rule
sentence was not premised on the Court's or probation             11(e)(1)(C) and our unpublished decisions on that Rule.4
officer's calculation of the guidelines. The Seventh Circuit      Thus, absent an agreement of the parties, the plain language
ruled:                                                            of the current version of Rule 11(e)(1)(C), now Rule
                                                                  11(c)(1)(C), generally precludes the district court from
    After accepting the agreement, the court "is not free to      altering the parties' agreed sentence under 18 U.S.C.
  revisit the plea agreement simply because, for whatever         § 3582(C). This conclusion applies despite the retroactivity
  reason, the defendant later comes back to the court for         of a subsequent amendment to a relevant guideline utilized to
  resentencing." United States v. Ritsema, 89 F.3d, 399           determine the defendant's sentence.
  (7th Cir. 1996). See also United States v. Barnes, 83
  F.3d 934, 938 (7th Cir. 1996). The sentence, under a              For these reasons, we AFFIRM the district court's order.
  Rule 11(e)(1)(C) plea rests on the parties' agreement, not
  on the calculation under the Sentencing Guidelines.
    Of course, a defendant is entitled to contest a plea
  under Rule 11(e)(1)(C) on the same grounds that any
  other plea may be challenged--that it was involuntary,
  that is was the result of ineffective assistance of counsel,
  that the indictment does not state an offense, and so on.            3
                                                                        There is authority to support Peveler’s contention that Amendm ent
  But Hemminger does not want to withdraw his plea and            599 precludes an enhancement above the guideline calculation where a
  go to trial; he does not contend that the plea is infirm on     Section 924(c) conviction is among the related conduct leading to the
  any legal or factual ground; instead he wants to keep the       calculation of the guidelines. See United States v. Aquino, 242 F.3d 859,
  benefits of the plea while receiving a lower sentence.          863-66 (9th C ir. 200 1); United States v. Wright, 7 Fed. Appx. 296, 2001
  That possibility is one he bargained away in 1990.              W L 420495 (4th Cir. 2001). In a word, the issue concerns the
                                                                  enhancement for related conduct, not whether the offenses occurred on
  Having received the benefits of his agreement,                  different dates.
  Hemminger must accept the portions favorable of the
  prosecutor.                                                          4
                                                                        This conclusion sho uld not be construed as a blanket bar to all such
                                                                  motions for relief. Fed. R . Crim. P. 35 (b) ha s been dee med a potential
Id. at * 1. Himminger differs only in that Peveler's plea         basis for relief in an “exceptional case,” Un ited States v. M ukia, 26 F.3d
agreement provided that the district court would determine        953, 955 (9th C ir. 199 4). The First Circuit in dicta noted a “rare case”
what the guideline calculation "should be."                       exception to allow mod ification “to avoid a misca rriage o f justice or to
                                                                  correct a mutual mistake.” Teeter, 257 F.3d at 28, n.12. We do not
                                                                  consider either of these potential exceptions here. T here is not a mutual
                                                                  mistake here, but rather a retroactive application of a guideline. We note,
                                                                  however, that with the two-level deduction sought, Peveler’s actual
                                                                  sentence is within the revised sentencing guideline range although the
                                                                  sentence is not at the low end of the revised guideline range as provided
                                                                  in the plea agreement. Peveler does not seek to set aside his plea
                                                                  agree ment.
