                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 13-4462


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

DWAYNE FRAZIER,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     Marvin J. Garbis, Senior District
Judge. (1:11-cr-00095-MJG-2)


Argued:   March 20, 2014                      Decided:   June 20, 2014


Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and Max O.
COGBURN, Jr., United States District Judge for the Western
District of North Carolina, sitting by designation.


Affirmed by unpublished opinion.            Judge Cogburn wrote the
opinion, in which Judge Motz joined.        Chief Judge Traxler wrote
a separate concurring opinion.


ARGUED: Doug Keller, Washington, D.C., for Appellant.      John
Walter Sippel, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
COGBURN, District Judge:

      Dwayne Frazier pled guilty to one count of carjacking in

contravention of 18 U.S.C. § 2119 and received a sentence of 144

months imprisonment.           Frazier challenges his conviction, arguing

that the district court erred by declining to hold a competency

hearing     after      defense        counsel     raised     concerns    regarding

Frazier’s ability to aid in his own defense at trial.                        Frazier

also contends that the district court committed reversible error

by   failing      to   apply    the    proper     sentencing      standard   and   by

failing     to    independently        exercise    its     sentencing   discretion

before accepting Frazier’s plea.                For the reasons that follow,

we affirm.

                                          I.

      In January of 2012 a grand jury in the District of Maryland

returned a six-count superseding indictment against Frazier and

a co-defendant (“the indictment”).                 The indictment alleged the

following        charges:   a    conspiracy       to     commit    carjacking,     in

violation of 18 U.S.C. § 371; two substantive carjacking counts,

in violation of 18 U.S.C. § 2119; two counts of possession and

brandishing of a firearm in furtherance of a crime of violence,

in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and possession of

a firearm by a convicted felon, in violation of 18 U.S.C. §

922(g).

                                           2
                                              A.

      The Friday before Frazier’s trial was to begin, defense

counsel      filed      a   letter     under       seal    with       the    district         court

detailing         his   concerns      regarding       his      client’s          competency       to

proceed      to     trial.          Among    defense        counsel’s            concerns       were

Frazier’s        ability     to     “understand      the       pros    and       cons    of   trial

versus       a     plea”;      “to     assist       in      his        defense”;          and     to

“intelligently elect whether to testify or not.”                             S.J.A. 1.

      The        following    Monday,       the    district       court          inquired       into

these concerns with defense counsel and Frazier, outside of the

presence of the government.                 After being assured by the district

court      that    nothing     disclosed       during       the       ex    parte       discussion

would be considered during sentencing, defense counsel explained

to   the    district        court    that,    based       on    approximately            “a   dozen

visits” with his client, he believed Frazier to be “habitually

under the use [sic] of narcotics at the Chesapeake Detention

Facility.”         S.J.A. 5.        Defense counsel explained that during his

visits with Frazier he “noticed stains on his fingernails.”                                      Id.

He   noted       that   Frazier’s      eyes    were       “glassy”         and    that    Frazier

could not pay “any degree of attention.”                          Id.        Defense counsel

also noted that Frazier “giggled and was giddy at inappropriate

moments.”         Id.   Counsel explained that he believed such supposed

narcotic use affected Frazier’s competency to proceed to trial



                                               3
principally because Frazier “may or may not be able to assist”

in his own defense.               S.J.A. 5-6.

        Frazier discussed his mental health status with the court

and attributed his behavior to the high levels of stress and

anxiety he was experiencing.                   Frazier explained that he had not

seen his family in many years, including a two-year-old son whom

he   had         not    seen     at   all.     He   explained      that    he   had    been

incarcerated for 16 years prior to being charged in the instant

case and the prospect of an additional 33 years of imprisonment

should he be convicted pushed his “stress level . . . off the

chart.”          S.J.A. 9.        Since his incarceration he had been placed

on a series of medications including Neurontin and Prozac, and

while       he    admitted       that   he   “smoke[ed]”     and    that    this      was   a

“problem at the Chesapeake Detention Center,” he also explained

that he had never had a positive urinalysis “for any substance.” 1

S.J.A. 8.

        After          hearing    all   such    testimony,      the   district        court

determined that there was no basis to find Frazier incompetent


        1
       It is unclear what type of substance Frazier was admitting
to smoking, and defense counsel did not inquire into the matter
any further.   The district court explained that the stains on
Frazier’s fingers, which defense counsel noted in his colloquy,
were not indicative of incompetence because it was not clear
what substance Frazier was smoking.    The district court opined
that they could have been tobacco stains, or they could be from
the use of “marijuana or something else.” S.J.A. 11.



                                                4
to proceed to trial.            The district court explained that, at its

request,        the   United    States      Marshal’s      Office   conferred      with

authorities at the detention facility where Frazier was being

held, who confirmed that there was no indication that Frazier

had taken any illegal drugs.                     The district court also noted

that,      as   recently   as    the     week     before,    Frazier    had   written

letters to the court in which he had no difficulty expressing

himself.          The   district       court      explained      that   the   letters

contained no indication that Frazier was delusional or had any

difficulty making judgments.                While the district court accepted

as true defense counsel’s observations of his client, the court

concluded that there was no reason to suspect that Frazier was

incompetent to proceed to trial.                    While Frazier did seem to

giggle at inappropriate moments, the district court explained

that such behavior “just seem[ed] to be his manner.”                     S.J.A. 11.

                                            B.

      After discussing Frazier’s competency outside the presence

of   the    government,        the   district      court    then    turned    to   jury

selection in Frazier’s trial.               Moments before that was to begin,

however, the parties notified the district court that they had

reached     a    plea   agreement      in   principle      and   requested    a    brief

recess for the government to prepare a written agreement.

      Frazier subsequently signed a plea agreement pursuant to

FED.R.CRIM.P. 11(c)(1)(C), under which the parties agreed to a

                                             5
proposed 144      month     sentence.         Frazier    would      plead     guilty    to

Count Two of the Indictment, one of the substantive carjacking

counts, and in exchange the government agreed to dismiss the

remaining counts in the Indictment.

     The     district      court   proceeded     through       a    lengthy     colloquy

with Frazier regarding the terms of the plea agreement during

which it explained that if the plea was accepted, the sentence

imposed would be 144 months.             The district court also conducted

further inquiry into Frazier’s competency before fully advising

Frazier of the rights he would have at trial including his right

to   testify,    the     presumption      of    innocence,         the    government’s

burden, and his right to appeal should he be convicted.                           After

being   so    advised,     Frazier   confirmed     that    he       still     wished    to

plead guilty and the court accepted his plea.

     Upon Frazier’s request and consent by the government, the

district     court   then     proceeded       directly    to       sentencing.         The

district court began by pronouncing Frazier’s criminal history

category, the stipulated offense level under the proposed plea

agreement,     and   the    applicable    guideline       range      of   135    to    168

months.      The district court then allowed the government, defense

counsel, and Frazier the opportunity to speak.                       Defense counsel

stated that Frazier had asked “several intelligent questions”

and that defense counsel believed that Frazier was competent to

proceed with the plea hearing.            J.A. 50-51.

                                          6
       The district court then considered the proposed 144 month

sentence, noting that such a sentence was consistent with the

plea    agreements        offered      to      Frazier’s         co-defendants.            The

district    court       concluded      that,       having       already    tried     one    of

Frazier’s co-defendants and being thoroughly familiar with the

particular facts of the case, the proposed sentence was “in the

range of reasonableness,” and ultimately accepted the 144 month

sentence as the appropriate term of imprisonment.                          J.A. 75.

                                            II.

       Frazier now appeals his sentence, contending that (1) the

district    court       erred    by   not   holding        a    competency      hearing     to

determine whether he could proceed to trial; and (2) that the

district court erred by sentencing him to the agreed upon 144

month term of imprisonment.

                                            A.

       We   hold    that        the   district          court     did     not   abuse      its

discretion in failing to order a competency hearing.                             Title 18,

United States Code, Section 4241(a) requires a district court to

hold such a competency hearing “if there is reasonable cause to

believe that the defendant may presently be suffering from a

mental disease or defect rendering him mentally incompetent to

the    extent   that      he    is    unable       to    understand       the   nature     and

consequences       of    the     proceedings            against    him     or   to   assist

properly in his defense.”                18 U.S.C. § 4241(a).                   Even if no

                                               7
motion is made by counsel, “[t]he district court must sua sponte

order a competency hearing if reasonable cause is demonstrated.”

United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).

Whether reasonable cause has been demonstrated, however, is left

to the discretion of the district court.              Id. at 1289.

      Frazier’s challenge on appeal is a “procedural competency

claim,” that is, he need not demonstrate that he was in fact

incompetent at the time of his guilty plea and sentencing, but

merely     that     the     district    court    erred    by   not    ordering   a

competency hearing.             United States v. Banks, 482 F.3d 733, 742

(4th Cir. 2007).           “To prevail, the defendant must establish that

the   trial       court     ignored    facts    raising   a    bona   fide   doubt

regarding the defendant's competency to stand trial.”                   Walton v.

Angelone, 321 F.3d 442, 459 (4th Cir. 2003) (internal quotation

marks omitted). 2

      We   review         the   district   court’s    determination      that    no

reasonable cause existed to order a competency hearing for abuse

of discretion, under which, “this Court may not substitute its


      2
       While Frazier waived his right to appeal in his plea
agreement, a criminal defendant may not “plead guilty unless he
does so ‘competently and intelligently.’” Godinez v. Moran, 509
U.S. 389, 396 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,
468 (1938)).




                                           8
judgment    for     that   of      the    district    court;     rather,      we    must

determine        whether     the      court's        exercise     of     discretion,

considering the law and the facts, was arbitrary or capricious.”

Mason, 52 F.3d at 1289.

      Appellant’s principal contention is that the district court

should have deferred to defense counsel’s impression that he was

under the influence of narcotics rendering him unable to assist

in   his   own    defense.      He       further   contends     that    the   district

court’s     observations        regarding          Frazier’s     competency         were

“qualitatively less meaningful” than those of defense counsel,

who had the “unique vantage point” of observing his behavior

numerous times over a six-month period.                 According to appellant,

the district court’s interaction with him was brief and involved

“little back-and-forth discussion.”

      Besides defense counsel’s own statements of what he and his

investigators had observed, nothing before the district court

suggested    that    Frazier    was       incompetent    to    assist    in   his    own

defense.     The district court accepted as true defense counsel’s

impression, but determined that reasonable cause did not exist

to suspect that Frazier was incompetent to stand trial in the

face of other available evidence.                  See Mason, 52 F.3d at 1290

(“The trial court must look at the record as a whole and accept

as true all evidence of possible incompetence in determining



                                            9
whether      to    order     a    competency          hearing.”)       (internal      quotation

marks omitted).

       “The       district       court        should    examine       all     of    the    record

evidence      pertaining          to    the    defendant's       competence,         including:

(1)    any    history      of     irrational          behavior;    (2)       the    defendant's

demeanor      at    and    prior        to    sentencing;       and     (3)    prior      medical

opinions on competency.”                     United States v. Moussaoui, 591 F.3d

263, 291 (4th Cir. 2010) (citing United States v. General, 278

F.3d     389,      397    (4th         Cir.    2002))     (internal          quotation      marks

omitted).          Here, the district court properly considered that

Frazier had not tested positive for drug use at the detention

facility where he was being held, a fact which was bolstered by

Frazier’s own statement that although he “smoked,” he had never

tested       positive       during        any     urinalysis.            Instead,         Frazier

attributed         any    odd     behavior        that       defense    counsel       may    have

noticed      to    stress        and    anxiety,       for    which     he    was   prescribed

medication.

       The district court further noted that Frazier, in a series

of pro se letters to the court, had demonstrated that he was

clearly capable of expressing himself and was not delusional.

Frazier contends that such statements indicate that the district

court applied the wrong standard in determining his competency.

Under § 4241(a), a competency hearing is required if there is

reasonable cause to believe a defendant is “unable to understand

                                                 10
the nature and consequences of the proceedings against him or to

assist properly in his defense.”                18 U.S.C. § 4241(a) (emphasis

added).     According to Frazier, the district court’s statements

indicate that it failed to consider whether he was competent to

assist in his own defense.

       A complete and thorough review of the transcript, however,

reveals that this argument mischaracterizes the district court’s

analysis during the ex parte hearing.                   Furthermore, it puts the

cart before the horse in the § 4241 analysis in that it assumes

the district court had determined that Frazier was suffering

from   a   mental     disease     or    defect.          By   its     terms,     §    4241

presupposes that before a district court analyzes the effect a

defendant’s mental disease or defect may have on defendant’s

competency    to     understand      the   nature       and   consequences       of    the

proceedings against or to assist properly in his defense, it has

already found that the defendant does indeed suffer from such a

mental     disease     or     defect.           Here,     the    district        court’s

questioning     and        analysis     indicates         that      it     was       simply

considering all available evidence to determine whether Frazier

suffered    from     any    mental     affliction       to    begin      with.       After

properly    determining       that     Frazier    was     not    suffering       from    a

mental disease or defect, there was no need to continue the

analysis.     The fact that Frazier was taking Neurontin and Prozac



                                           11
does not necessarily mean that he was suffering from a mental

disease or defect.

      Frazier      suggests       that     the    district      court      should     have

ordered a psychiatric evaluation under § 4241(b), but provides

no indication of how the district court abused in its discretion

in declining to do so.             Setting aside the fact that subsection

(b)     provides    that    “the        court    may    order    a    psychiatric        or

psychological examination,” nothing in the record suggests that

such an examination would have aided the district court in its

determination.       18 U.S.C. § 4241(b) (emphasis added).                         Frazier

contends that an evaluation was warranted because the source of

Frazier’s      cognitive         difficulty       was     not    clear.             Again,

Appellant’s argument assumes too much by concluding that Frazier

was   indeed    suffering        from    cognitive      difficulty        when,    besides

defense counsel’s impression, nearly all the available evidence

was to the contrary.             As the district court noted, Frazier may

have exhibited odd behavior, but that “just seem[ed] to be his

manner.”     And when Frazier was allowed the opportunity to speak

about his counsel’s concerns, he attributed his odd behavior to

stress, depression, and the medication he had been prescribed.

Frazier did not show any sign of incompetency during the ex

parte    hearing    or     the    sentencing      hearing.           He   was     able   to

understand the district court’s questions and concerns without

any difficulty and respond precisely and cogently.                                Further,

                                            12
when the issue of Frazier’s competency arose during the plea

hearing,       defense          counsel    abandoned      his      earlier      concerns       and

stated    that       he    believed       Frazier      was     “competent       to     proceed.”

J.A. 50-51.

        The requirement of § 4241(a) that the district court grant

a   competency        hearing       when     reasonable        cause     exists       cannot    be

expanded       to    require       such     a   hearing      whenever        defense     counsel

raises concerns regarding his client’s competency or where a

defendant takes prescribed medication.                         Ultimately, it is up to

the     district      court        in     its   discretion         to    determine       whether

reasonable cause exists to require a competency hearing.                                        We

therefore       find       that     the     district      court      did      not     abuse    its

discretion in failing to order a hearing to determine Frazier’s

competency to stand trial.

                                                B.

        Appellant         next     contends       the     district           court    erred    by

deferring       to        the     plea     agreement      in       determining        Frazier’s

sentence of 144 months imprisonment.                      The plea agreement in this

case     was    proffered           pursuant      to    Federal         Rule     of     Criminal

Procedure 11(c)(1)(C).                  Under Rule 11(c)(1)(C), the parties may

stipulate that “a specific sentence or sentencing range is the

appropriate disposition of the case.”                        FED.R.CRIM.P. 11(c)(1)(C).

“[S]uch a recommendation or request binds the court once the

court    accepts          the    plea     agreement.”        Id.        In   this     case,    the

                                                13
parties       agreed          in     the     plea      agreement          that    144      months

imprisonment was the appropriate sentence.

      Appellant contends that the district court erred by not

first    independently              determining      the     appropriate         sentence      and

then,    considering              that     sentence,    deciding          whether     it      could

accept defendant’s plea.                   Title 18, United States Code, Section

3553(a)       requires            district     courts        to     “impose       a     sentence

sufficient, but not greater than necessary, to comply with the”

four congressionally mandated goals of sentencing.                                18 U.S.C. §

3553(a)(2).             In    determining       the     appropriate          sentence      for   a

defendant, § 3553(a) requires the court to consider these goals

as well as the other factors listed in subsection (a).

      Appellant contends that the district court erred because it

failed       to    consider         these     factors      in      determining        Frazier’s

sentence.          According to Appellant, the district court applied

the wrong standard and accepted the plea because the recommended

144 month sentence was “in the range of reasonableness.”                                       J.A.

75; see United States v. Tucker, 473 F.3d 556, 561 (4th Cir.

2007) (holding that a district court’s mission in sentencing is

not     to    impose          a     ‘reasonable’        sentence          but    rather,        one

sufficient, but not greater than necessary, to comply with the

purposes          of    §     3553(a)).         By     not        first      determining        the

appropriate            sentence,         Appellant     argues,         the    district        court

“abdicat[ed]            its       constitutional       duty       to      exercise      its    own

                                                14
independent judgment in sentencing Mr. Frazier.”                            Appellant’s

Br. 38.

       The government contends that this court need not reach this

issue as Frazier waived his right to appeal his sentence in his

plea   agreement       and    that    this   portion      of   his   appeal    must    be

dismissed.        “Whether     a     defendant    has     effectively       waived    his

statutory right to appeal his sentence is a question of law

subject to de novo review.”             General, 278 F.3d at 399.             We “will

enforce the waiver if it is valid and the issue appealed is

within the scope of the waiver.”                  United States v. Davis, 689

F.3d   349,      355   (4th    Cir.     2012).          Frazier’s    plea     agreement

contains the following provision:

       The Defendant and this Office knowingly waive all
       right . . . to appeal whatever sentence imposed . . .
       except as follows: (i) the Defendant reserves the
       right to appeal any sentence to the extent that it
       exceeds 144 months imprisonment; and (ii) this Office
       reserves the right to appeal any term of imprisonment
       to   the  extent  that   it  is   below  144   months’
       imprisonment.

J.A. 85.

       “The validity of an appeal waiver depends on whether the

defendant knowingly and intelligently agreed to waive the right

to appeal.”       United States v. Blick, 408 F.3d 162, 169 (4th Cir.

2005).     Whether an appeal waiver was knowing and intelligent is

determined based on the totality of the circumstances and “must

depend,     in     each       case,     upon      the     particular        facts     and


                                             15
circumstances surrounding that case, including the background,

experience, and conduct of the accused.”                       Id. (quoting United

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992)).

       In this case, the record fully establishes that Frazier

knowingly      and   intelligently         waived       his   right    to    appeal     his

sentence if it did not exceed 144 months.                             During the plea

colloquy the district court unambiguously informed Frazier of

the appeal waiver in his plea agreement.                           The district court

explained that should he be convicted at trial, he would have

the    right   to    appeal       his   conviction.           By    signing    the     plea

agreement, the district court explained, he would be waiving his

right    to    appeal   the       conviction.           The   district       court    also

explained that under the plea agreement Frazier would waive his

right     to   appeal       any   sentence       not     greater      than    12     years.

Frazier’s unequivocal response was that he understood and that

he    wished   to    move    forward      with    his    guilty     plea.      Moreover,

Frazier discussed the plea agreement with defense counsel and

confirmed that he was satisfied that he was “doing the right

thing” by waiving his right to appeal any sentence in excess of

12 years.      J.A. 55.

        Appellant    contends      that    the     appeal     waiver    is    not     valid

because “the district court never validly accepted” the plea

agreement.      Appellant’s Br. 47.              Appellant contends that because

the district court failed to exercise its sentencing authority

                                            16
to independently determine the appropriate sentence, the plea

agreement was never validly accepted, and because the plea was

never validly accepted, the plea waiver has no vitality.

      Whether the district court was required to consider the §

3553(a)   factors    to   determine     the    appropriate     sentence    before

accepting    Frazier’s    plea   has    no    impact   on   the   valid    appeal

waiver in the plea agreement.                The acceptance of a plea and

sentencing   are    two   separate     and    distinct   phases     of   criminal

procedure.    Acceptance of a plea is governed by Federal Rule of

Criminal Procedure 11(b) while sentencing is governed by Rule

32.    Not only is there no binding authority for Appellant’s

proposition, Federal Rule of Criminal Procedure 11(d) recognizes

that acceptance of a plea is distinct from sentencing, as a plea

may be withdrawn “after the court accepts the plea, but before

it imposes sentence.”         FED.R.CRIM.P.11(d)(2).           Because Frazier

knowingly    and    intelligently      waived   his    right   to   appeal   any

sentence in excess of 12 years pursuant to his plea agreement,

we dismiss his sentencing challenge.

                                       III.

      For the foregoing reasons, we affirm the judgment of the

district court.



                                                                         AFFIRMED



                                       17
18
TRAXLER, Chief Judge, concurring in the result:

     I agree, for the reasons expressed by the majority, that

the district court did not abuse its discretion in failing to

order a competency hearing.         However, because my analysis of the

other issue Frazier raises differs from that of the majority, I

write separately.

     When    a     defendant   pleads     guilty        to    a   charged   offense,

Federal     Rule    of   Criminal   Procedure           11(c)(1)(C)     allows   the

parties to “agree that a specific sentence or sentencing range

is the appropriate disposition of the case.”                      When the parties

reach this type of agreement (“a C-plea”), “the court may accept

the agreement, reject it, or defer” its decision until after

reviewing the presentence report.              Fed. R. Crim. P. 11(c)(3)(A).

Yet although the court is free to accept or reject the plea

agreement, the parties’ agreed-upon sentence “binds the court

once the court accepts the plea agreement.”                       Fed. R. Crim. P.

11(c)(1)(C).        Frazier contends that the district court erred in

accepting     his    C-plea    without        finding     that    the   agreed-upon

sentence was sufficient but not greater than necessary to serve

the sentencing goals identified in 18 U.S.C. § 3553.

     The government argues that we need not review the merits of

Frazier’s argument because Frazier’s plea agreement contains a

waiver of his right to appeal a sentence of 144 months, the

sentence Frazier received.          I disagree.              If Frazier is correct

                                         19
that the district court committed reversible error in accepting

the plea agreement, then the agreement is invalid and neither

side   is   bound    by   the   terms    therein,   including      the   appellate

waiver.     See United States v. Portillo-Cano, 192 F.3d 1246, 1250

(9th Cir. 1999).          I therefore turn to the merits of Frazier’s

argument.

       Because Frazier asserts it for the first time on appeal,

our review is for plain error only.             See United States v. Olano,

507 U.S. 725, 732 (1993).           To succeed on plain-error review, a

defendant must show:            (1) there was error, (2) the error was

plain, and (3) the error affected his substantial rights.                      See

id.     Even    if    a    defendant     can   satisfy    these    requirements,

correction of the error remains in the court’s discretion, which

it “should not exercise . . . unless the error seriously affects

the    fairness,     integrity,     or    public    reputation      of     judicial

proceedings.”        Id.    (internal     quotation      marks    and    alteration

omitted).

       Sentencing Guidelines § 6B1.2(c) governs whether a district

court should approve a plea agreement that includes a specific

sentence.    The policy statement states that

       the court may accept the agreement if the court is
       satisfied either that:

       (1) the agreed sentence            is   within     the    applicable
       guideline range; or




                                         20
       (2) (A) the agreed sentence is outside the applicable
       guideline range for justifiable reasons; and (B) those
       reasons are set forth with specificity in the
       statement of reasons form.

U.S.S.G. § 6B1.2(c) p.s.; see Freeman v. United States, 131 S.

Ct.    2685,        2692   (2011)      (plurality          opinion);    id.    at    2696

(Sotomayor, J., concurring in the judgment).

       Here, the district court explicitly noted that the parties

had stipulated that the applicable guideline range was 135 to

168    months,      and    Frazier    does    not        argue   otherwise    now.     In

arguing that the district court’s finding that the agreed-upon

sentence was reasonable did not provide a sufficient basis for

the district court to adopt the plea agreement, Frazier does not

make reference to U.S.S.G. § 6B1.2(c).                      Rather, he argues that,

in    order    to    validly   adopt    the       agreement,      the   district     court

needed    to    explicitly      find    that       the    agreed-upon    sentence     was

“‘sufficient, but not greater than necessary’” to accomplish the

goals of sentencing.            Kimbrough v. United States, 552 U.S. 85,

101    (2007)    (quoting      18    U.S.C.    §    3553(a)).       Essentially,      his

argument would allow the district court to accept a C-plea only

if the agreed-upon sentence were exactly the sentence that the

district court would have imposed if left to its own devices.                           I

am not aware of any case that has limited a district court’s

discretion regarding whether to accept a C-plea in this way, and

such a limitation would seem to be at odds with U.S.S.G. §


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6B1.2(c).   Thus, in my view, the district court did not err –

and certainly did not plainly err – in approving the agreement.




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