                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS           May 23, 2007
                         FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                        ))))))))))))))))))))))))))                Clerk

                              No. 06-41090

                        ))))))))))))))))))))))))))

UNITED STATES OF AMERICA,

                  Plaintiff-Appellee,
     v.

KEITH DAVID HARRIER,

                  Defendant-Appellant.


             Appeal from the United States District Court
                   for the Eastern District of Texas
                             No. 4:05-CR-226



Before HIGGINBOTHAM, WIENER and PRADO, Circuit Judges.

Per Curiam:*

         Defendant-Appellant Keith David Harrier (“Harrier”) appeals

the sentence he received following his guilty plea to one count

of bank robbery in violation of 18 U.S.C. § 2113(a). For the

reasons that follow, we AFFIRM the sentence imposed by the

district court.




     *
       Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

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              I. FACTUAL AND PROCEDURAL BACKGROUND

     On November 10, 2005, Harrier was charged by the grand jury

for the Eastern District of Texas with two counts of bank robbery

in violation of 18 U.S.C. § 2113(a). On March 10, 2006, Harrier

and his counsel signed a factual resume stipulating that Harrier

had robbed two banks: Bank One in Denton, Texas, on September 12,

2005 (the offense specified in count one of the indictment), and

Chase Bank in Denton, Texas, on September 20, 2005 (the offense

specified in count two of the indictment). Prior to the admission

of the second bank robbery, the factual resume states, “Pursuant

to U.S.S.G. § 1B1.3, Relevant Conduct, the following facts are

admitted by the Defendant and may be used in calculating his

sentencing guidelines.”

     On March 13, 2006, without a written plea agreement, Harrier

pleaded guilty to count one. In the judgment entered on March 29,

2006, count two was dismissed on the motion of the United States.

     At Harrier’s June 29, 2006 sentencing hearing, the district

court accepted the Presentence Report’s determination that two

points should be added to Harrier’s offense level on the basis of

Harrier’s commission of the second bank robbery. The court

concluded that, although Harrier had not pleaded guilty to nor

been convicted of this second bank robbery, the offenses admitted

in Harrier’s factual statement could be included in Harrier’s

offense level pursuant to U.S.S.G. § 1B1.2(c).



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     Counsel for Harrier objected to the two-level increase at

the hearing, arguing that § 1B1.2(c) was inapplicable. Counsel

first claimed that “[t]here’s not a plea agreement, there’s just

a factual statement.” Counsel further argued that, in accordance

with the statement in his factual resume, Harrier admitted the

second bank robbery solely for “relevant conduct” analysis under

U.S.S.G. § 1B1.3.

     The district court overruled Harrier’s objection. The court

stated, “If he’s admitting the second bank robbery and

stipulating to it in the factual statement, then under 1B1.2(c)

that additional offense shall be treated as if he had been

convicted of that offense.” The court cited United States v.

Moore, 6 F.3d 715 (11th Cir. 1993), in support of this

conclusion.

     Harrier now timely appeals his sentence. Harrier’s sole

argument on appeal is that § 1B1.2(c) does not apply in his case

because he had no plea agreement.

              II. JURISDICTION AND STANDARD OF REVIEW

     This is an appeal from a final judgment of a district court

in a criminal case. This court has jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742. We review the district

court’s interpretation and application of the Guidelines de novo.

United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). We

review the district court’s factual findings for clear error.



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United States v. Creech, 408 F.3d 264, 270 (5th Cir. 2005).

                          III. ANALYSIS

     Section 1B1.2(c) states:

     A plea agreement (written or made orally on the record)
     containing a stipulation that specifically establishes the
     commission of additional offense(s) shall be treated as if
     the defendant had been convicted of additional count(s)
     charging those offense(s).

     The plain language of § 1B1.2(c) makes clear that this

provision does not apply where there is no plea agreement

“written or made orally on the record.” Harrier argues that there

was no such plea agreement in his case. Harrier is correct that

there was no written plea agreement in his case. However, after

thoroughly reviewing the transcripts of Harrier’s plea hearing

and sentencing hearing, we conclude that there was a plea

agreement “made orally on the record.”

     As Harrier points out, evidence against the existence of a

plea agreement can be found in the district court’s statements

that “I have no plea agreement,” “there is no plea agreement,” or

“you have no plea agreement.” A review of the full record,

however, makes clear that the court was referring on these

occasions to the absence of a written plea agreement. The

existence of an oral agreement between Harrier and the government

can be inferred from the facts that Harrier pleaded guilty to

count one of the indictment and the government dismissed count

two. This inference receives support from the court’s statement


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that “[Defense counsel] is telling me that Mr. Harrier is going

to enter a plea of guilty to count 1. Is that the government’s

agreement, to dispose of this case by receiving a plea of guilty

to one of the two counts?” and the government counsel’s

indication of assent. It receives further support from the

court’s statement:

     Mr. Harrier, based upon the factual statement that you
     have signed and based upon the agreement by the government
     that your plea of guilty to count 1 of the indictment
     here, with the understanding that count 2 would constitute
     relevant conduct, that your plea to that one count would
     dispose of this entire case–and that’s my understanding
     here . . .

and from Harrier’s expression of assent.

     These statements by the court and expressions of assent by

the government and defendant also indicate that the plea

agreement was “made orally on the record,” since the terms of the

agreement were stated and assented to on the record. We therefore

conclude that Harrier’s argument fails.

                          IV. CONCLUSION

     For the foregoing reasons, we AFFIRM Harrier’s sentence.

     AFFIRMED.




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