Rehearing granted, October 25, 2005 for the limited purpose of modifying opinion



                                  MODIFIED OPINION

                                    UNPUBLISHED

                           UNITED STATES COURT OF APPEALS
                               FOR THE FOURTH CIRCUIT


                                    No. 04-4624



       UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellant,

                  versus

       VICTOR CATALA,

                                                       Defendant - Appellee.


       Appeal from the United States District Court for the Eastern
       District of Virginia, at Newport News.   Jerome B. Friedman,
       District Judge. (CR-04-6)


       Argued:   March 18, 2005                      Decided:   June 14, 2005

                    Modified Opinion Filed:   October 25, 2005


       Before WILKINSON and GREGORY, Circuit Judges, and Frederick P.
       STAMP, Jr., United States District Judge for the Northern District
       of West Virginia, sitting by designation.


       Affirmed by unpublished opinion. Judge Stamp wrote the majority
       opinion, in which Judge Gregory joined. Judge Wilkinson wrote a
       dissenting opinion.


       ARGUED: Michael James Elston, Assistant United States Attorney,
       OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
       Appellant. Robert Wayne Nunnally, Norfolk, Virginia, for Appellee.
       ON BRIEF: Paul J. McNulty, United States Attorney, Alexandria,
       Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
STAMP, District Judge:

       The United States appeals the sentence of defendant, Victor

Catala (“Catala”), who pleaded guilty to conspiring to distribute

100 or more kilograms of marijuana in violation of 21 U.S.C. §§ 846

and 841(a)(1).     At Catala’s sentencing hearing, the district court

determined that only 83.9 kilograms of marijuana were attributable

to    the   defendant.      The    district    judge       granted     a    three-level

downward     departure    for     acceptance    of     responsibility         absent   a

government      motion,   and     also   granted     the    additional        two-level

reduction under the safety valve provision, U.S.S.G. §§ 3E1.1 and

2D1.1(b)(6).

       The issue before this Court is whether the district court

erred by finding Catala responsible for only 83.9 kilograms when

the defendant pleaded guilty to conspiring to distribute 100 or

more kilograms of marijuana in violation of 21 U.S.C. §§ 846 and

841(a)(1).      In addition, we must consider whether the district

court appropriately applied the three-level downward departure

under the now advisory United States Sentencing Guidelines.



                                         I.

       As stated above, the defendant Catala entered into a plea

agreement with the United States for conspiring to distribute

marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1), which was

the    lesser    included    offense     in    Count    1    of   an       eleven-count


                                          3
indictment.   J.A. 54.1    The plea agreement stated that the maximum

penalty for the lesser included offense was a term of imprisonment

of five years, a maximum term of 40 years, a fine of $2 million and

at least four years of supervised release.         Id.    However, the plea

agreement did not state the amount of marijuana that the government

believed should be attributed specifically to Catala.

     At the sentencing hearing, the district court reviewed the

defendant’s plea agreement.          The district court stated that to

convict the defendant, the government would have to prove each

essential element of his crime, including, “one, that you willfully

entered into an agreement, two, with one or more other individuals,

and three, to knowingly or intentionally possess with intent to

distribute marijuana.”         J.A. 70.     The district court did not

mention drug weight as an element of the defendant’s crime.

     After enumerating the elements of the defendant’s crime as

charged, the court stated, “Now, I understand [the defendant is]

pleading guilty to something else . . .”         J.A. 70.      The court then

addressed   the   term   “lesser    included   offense”   as    used    in   the

defendant’s plea agreement:

     THE COURT:   Now, you all indicate that he’s pleading
     guilty to what we call a lesser included offense. I’m
     not really sure it’s a lesser included offense. I think
     it has more to do with drug weights more than anything
     else, because if the government proffers to the Court
     that it can’t prove the thousand or more kilograms of


     1
        Catala    was    one   of   seven   defendants    charged      in    this
indictment.

                                      4
     marijuana but can only prove a hundred or more kilograms
     of marijuana, then I’m going to tell him what the maximum
     punishment is for that offense, and that’s what he’s
     going to be subject to. So I don’t know anything more
     about the case other than, you know, what [the
     Government] knows and what [defendant’s counsel knows].

          But I understand that what he’s going to do is he’s
     going to be pleading guilty to the same offense, but in
     lieu of it being a thousand or more kilograms, it’s going
     to be a hundred or more kilograms. And if that’s the
     case, then he would be facing a maximum of 40 years in
     prison and a mandatory minimum of five years in prison
     and a fine not to exceed $2 million. Is that you-all’s
     understanding?

     MR. NUNNALLY (Defendant’s Counsel):     Yes, sir, Your
     Honor. With the further understanding that we are going
     to be able to argue the amount of weight at sentencing.

     THE COURT: Well, you can always do that. But the point
     is, and, Mr. Hurt, you understand that obviously if for
     some reason the presentence report comes back and it’s
     more than a hundred kilograms of -– in other words, more
     than a thousand grams –- kilograms of marijuana, then
     he’s only pleading guilty to the lesser charge, correct?

     MR. HURT (Government):            Yes,   sir.   That’s   the
     government’s understanding.

J.A. at 71-72 (emphasis added).

     Later in the plea hearing, the defendant admitted that he had

“transported and conspired to transport” to the Virginia peninsula

in excess of 100 kilograms of marijuana, but less than 1000

kilograms of that substance.   J.A. 87.

     Following the plea hearing, a presentence report was submitted

to the court in which the probation officer described seven cross-

country trips by Catala for the purpose of transporting marijuana

and an additional trip to transport methamphetamine.     J.A. 166-68.


                                   5
The probation officer stated that 638 telephone calls were made

between the defendant and several co-defendants.             J.A. 166.   The

probation officer determined that the scope of the defendant’s

criminal activity included 219.9 kilograms of marijuana and a pound

of methamphetamine, which converted to 1,127.196 kilograms of

marijuana.     J.A. 168.

     Accordingly, the probation officer recommended a base offense

level of 32.    J.A. 184.   The probation officer also recommended the

defendant receive three levels for acceptance of responsibility

pursuant to U.S.S.G. § 3E1.1.         In addition, the probation officer

found that the defendant qualified for the two-level safety valve

reduction pursuant to U.S.S.G. § 2D1.1(b)(6).

     The defendant filed written objections to the presentence

report denying certain trips described in paragraphs 33 though 37

of   the     presentence    report,        denying   that   he   transported

methamphetamine, and objecting to any finding that the defendant

participated in transporting more than 335 pounds of marijuana.

J.A. 98-100.    The defendant also argued that the probation officer

had misconstrued several phone calls as related to the conspiracy,

but which he alleged were only made to family members.             J.A. 97.

Several days after his initial objections, the defendant filed

corrections to his objections, the most significant of which

lowered attributable marijuana drug weight from 335 pounds to 175

pounds.    J.A. 103.


                                       6
     Following the defendant’s objections, the probation officer

amended   the   presentence   report   by   removing   the   three-level

adjustment for acceptance of responsibility.       However, a two-level

safety valve reduction remained, apparently in error. J.A. 107-08.

Consequently, the probation officer recommended an offense level of

30 and a Guideline range of 97 to 120 months.

     At the sentencing hearing, the district court addressed the

plaintiff’s objections to the presentence report and determined

that the government had the burden of proving drug weight by a

preponderance of evidence.    J.A. 118.     The United States responded

that the defendant had entered into his plea agreement admitting to

conspiracy to possess with intent to distribute more than 100

kilograms of marijuana and that the defendant had repeated this

admission in open court at his change of plea hearing.               The

government argued that the defendant’s July 8 letter putting forth

a weight below 100 kilograms should be construed as an abandonment

of acceptance of responsibility because the defendant had abandoned

the drug weight upon which the plea agreement was premised.

     The defendant responded that he had raised the issue of drug

weight at the time of the hearing, and that the Court had indicated

that drug weights could always be argued at sentencing.              The

defendant argued that challenging drug weight at the sentencing

stage was not the equivalent of abandoning his acceptance of

responsibility.


                                   7
       The district court recognized that the defendant pleaded

guilty    to   a   conspiracy   involving    100   kilograms   or   more   of

marijuana.     However, the Court found that the defendant raised the

issue of drug weight at his plea hearing, and was therefore not

bound by the 100 kilogram base during the sentencing phase.            J.A.

140.

       Ultimately, the district court found that only 83.9 kilograms

of     marijuana   could   be   attributed    to    the   defendant   by   a

preponderance of the evidence, and concluded that this resulted in

a base offense level of 24.        The court rejected the government’s

argument that the defendant failed to accept responsibility by

filing objections to drug weights after pleading guilty to an

offense that included a base-level drug amount.            The court found

that the defendant qualified for the safety-valve reduction and

calculated his offense level to be a 19.           The district court then

determined that the safety valve reduction allowed the court to

sentence below the statutory minimum and imposed a sentence of 13-

months imprisonment and a term of three years supervised release.

       The government objected to the court’s ruling on the grounds

that the court had, in effect, set aside the defendant’s guilty

plea as well as his admission at the plea hearing to participating

in a conspiracy to distribute 100 kilograms or more of marijuana.

       The United States filed a timely notice of appeal.




                                     8
                                      II.

        This   Court    reviews   a   district   court’s   drug   quantity

determination for purposes of sentencing for clear error.           United

States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999).             Where a

challenge to a defendant’s sentence implicates questions of both

law and fact, questions of law are reviewed de novo, questions of

fact are reviewed for clear error, and mixed questions of law and

fact are reviewed under a standard that gives due deference to the

district court.        United States v. Nale, 101 F.3d 1000, 1003 (4th

Cir. 1996).

         On appeal, the government argues that the district court

erred by disregarding the drug amount included in the indictment to

which the defendant pleaded guilty at his Rule 11 colloquy.             In

addition, the government contends that the district court erred

when it found that the defendant had accepted responsibility and

qualified for a three-level adjustment for timely acceptance of

responsibility.        We address each of the government’s arguments in

turn.



                                      III.

        Disputed facts relevant to a defendant’s sentence are properly

presented to the district court for an independent resolution. See

U.S.S.G. § 6A1.3(b).       Where drug weights are justifiably disputed,

the government bears the burden of proving by a preponderance of


                                       9
the evidence the quantity of drugs for which a defendant should be

held accountable at sentencing.             United States v. Goff, 907 F.2d

1441, 1444 (4th Cir. 1990)(overruled by statutory amendment on

other grounds).        In essence, the government contends that drug

weights were not justifiably disputed in this action because the

defendant admitted to a felony that included as an essential

element a minimum drug quantity.              See Apprendi v. New Jersey, 530

U.S. 466 (2000)(finding drug quantities to be an element of an

offense that must be alleged in an indictment and proved beyond a

reasonable doubt in order to subject a defendant to a period of

imprisonment longer than the maximum sentence provided by the

statute).

     Following Apprendi, indictments charging conspiracy to commit

a § 841 offense under § 846 commonly specify drug quantities for

which individual members of a conspiracy are responsible. However,

a defendant’s guilty plea to a conspiracy indictment alleging

quantity,    but   not       ascribing   any     specified   quantity    to     the

individual defendant, does not automatically render the defendant’s

guilty plea an admission of the quantity charged in the conspiracy

count.   United States v. Gilliam, 987 F.2d 1009, 1014 (4th Cir.

1993).      Further,     a    defendant’s     reservation    of   his   right    to

challenge drug weight for sentencing purposes is not necessarily

inconsistent with a guilty plea or a valid plea agreement.                      See

Gilliam at 1013-14.


                                         10
     In Count 1 of the indictment charged against defendant Catala,

the government included six separate offenses of conspiracy with

intent to possess or distribute various quantities of marijuana,

cocaine and methamphetamine.         Count 1 also contained a section

titled “Overt Acts” in which the United States listed specific drug

amounts   attributable   to   each    defendant   in   the   conspiracy.2

However, the attributable drug weight listed in the overt acts

section is vague at best, stating certain amounts generally as

“quantities” rather than giving specific weights in some instances,

failing at times to specify between amounts attributable to Catala

and his co-conspirators, and giving overlapping dates that could

represent a single trip made by the defendant from Albuquerque to

the Virginia peninsula (e.g., Fall of 2001, November 2001, and

November 28, 2001).   J.A. 38-39.

     The plea agreement is more specific, charging the defendant

with the “lesser included offense” of “conspiracy to possess with

intent to distribute more than 100 kilograms of marijuana.”         J.A.


     2
       Victor Catala is connected with quantities of illegal
substances in seven paragraphs of the indictment as follows: (1)
paragraph 69 states Catala transported 75 pounds of marijuana in
the “Fall of 2001;” (2) paragraph 73 states Catala transported 60
pounds of marijuana in “November 2001;” (3) paragraph 76 states
Catala and co-conspirator Anthony Pacheco transported a “quantity
of marihuana [sic] in separate vehicles” on November 28, 2001; (4)
paragraph 79 states Catala transported one pound of methamphetamine
in January 2002; (5) paragraph 81 states Catala transported “a
quantity of marihuana [sic]” on January 16, 2002; (6) paragraph 83
states Catala transported 50 pounds of marijuana in February 2002;
and (7) Catala transported a “quantity of marihuana [sic]” on
February 21, 2002.

                                     11
54.   The plea agreement further states that the defendant “admits

the facts announced at the Rule 11 proceeding and agrees that those

facts establish guilt of the offense charged beyond a reasonable

doubt.”   J.A. 55.   However, the plea agreement does not identify or

ascribe any specific amount of marijuana attributable to Catala,

nor does the agreement reference the overt act section of the

indictment.

      As stated earlier, the defendant at his Rule 11 colloquy

specifically reserved his right to contest drug weight at his

sentencing.   At that time, the United States did not object.    The

defendant later filed written objections to drug amounts listed in

his presentence report, thus preserving his earlier reservation

regarding drug weight.    Accordingly, the district court was within

its discretion when it considered drug weight at the defendant’s

sentencing hearing to find that only 83.9 kilograms of marijuana

were attributable to the defendant for sentencing purposes.

      Accordingly, we disagree with the government’s contention that

the district court erred by allowing a three-level decrease for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.    To the

contrary, we believe that the district court’s decision to award a

downward departure was justified.      For instance, the presentence

report stated that Catala had been truthful and cooperative with

the government after his arrest and this was not contested by the

government.    Moreover, the government endorsed the defendant’s


                                  12
position at the plea conference, stating that the defendant “has

been cooperative in all regards.”         J.A. 66.

     The government’s only ground for denying the defendant his

acceptance of responsibility is that Catala filed objections to the

presentence report and argued drug weights at his sentencing, thus

allegedly abandoning his plea agreement.             See J.A. 118-20.       As

Gilliam makes clear, even where a defendant has signed a plea

agreement that contemplates a minimum sentence and refers to an

indictment alleging his involvement in a conspiracy for a base-

level   drug   amount,   a   defendant    may   argue   at   sentencing   that

attributable drug weight is less than the statutory minimum.

Gilliam, 987 F.2d at 1014.         Accordingly, we cannot say that the

court   clearly    erred      in   concluding     that       Catala   accepted

responsibility by admitting he had knowingly transported 83.9

kilograms of marijuana, see United States v. Pauley, 289 F.3d 254,

261 (4th Cir. 2002)(standard of review), modified, 304 F.3d 335,

cert. denied, 537 U.S. 1178 (2003), or by finding that he met the

criteria for the safety valve reduction.

     Once the district court found that the defendant satisfied the

criteria for the safety valve reduction under § 5C1.2, the district

court was free to impose a sentence without reference to the

mandatory minimum term of imprisonment and supervised release of

§ 841(b)(1)(B). Accordingly, the sentence imposed by the court was

within its authority.


                                     13
                                               IV.

      As a final matter, this Court must consider whether the

district court abused its discretion by awarding a third-level

adjustment pursuant to U.S.S.G. § 3E1.1(b) absent a government

motion.    Under the Feeney Amendment, Pub. L. No. 108-21, § 401

(Apr.    30,    2003),       a    district      court       may     grant   a    third-level

adjustment      “upon    a       motion   of    the    government.”             See    U.S.S.G.

§ 3E1.1(b).          Because Catala’s sentence was determined after the

Feeney    Amendment,      the      district         court    was    bound   by    the        plain

language of the Guidelines, and should not have awarded a third-

level adjustment for timely acceptance of responsibility without a

motion from the government.

      However, in the period between the district court’s sentencing

of Catala and this Circuit’s review on appeal, the Supreme Court

decided United States v. Booker, __ U.S. __, 125 S. Ct. 738 (2005),

severing       and    excising       the       “mandatory”          provision         from     the

Guidelines,      and    making      the    Guidelines         “essentially        advisory.”

Booker at 756-57. Further, Booker dictates that lower courts “must

apply . . . the remedial interpretation of the Sentencing Act . . .

to all cases on direct review.”                     Id. at 769.       Accordingly, we no

longer construe § 3E1.1(b) to require a government motion before a

district court can award a third-level adjustment, and must review

the   district        court’s      determination            under    this   new        remedial

interpretation of the Guidelines.                    By this we mean that a district


                                               14
court may, in effect, grant a third level without a government

motion by imposing a non-Guidelines sentence after following the

steps set forth in Hughes.              This is the same as a Guidelines

sentence one level lower than the advisory Guidelines range based

upon a factor listed in 18 U.S.C. § 3553(a).

      Even after Booker, whether a government motion (or lack of

motion) for a third-level adjustment remains an important factor

when determining whether to award the third-level adjustment.                     See

id.   at   767    (sentencing     court      still    required     to   consult   the

Guidelines and take them into account when sentencing).                    However,

a district court may also make an independent determination based

on whether the defendant has sufficiently assisted “by timely

notifying authorities of his intention to enter a plea of guilty,

thereby permitting the government to avoid preparing for trial and

permitting the government and the court to allocate their resources

efficiently.”      See U.S.S.G. § 3E1.1(b).           In certain circumstances,

a court should consider the rationale behind the government’s

refusal    to    make   a   motion     for     the   third-level    adjustment    to

determine whether such rationale falls within the parameters of

§ 3E1.1(b).       See United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005)(court must consider the Guideline range as well as other

relevant factors set forth in the Guidelines and 18 U.S.C. §

3553(a)).

      In   this    case,    we   are   satisfied      that   the   district   court


                                          15
considered the defendant’s timely acceptance of responsibility in

light of § 3E1.1(b) when awarding the third-level adjustment.

Because the advisory nature of the Guidelines would apply on

remand, this Court finds that the lack of a government motion does

not invalidate the district court’s pre-Booker decision to award

the third-level adjustment.   See Booker at 769 (Booker applies to

all cases on direct review).    Accordingly, this Court will not

remand this action based on the lack of a government motion.     See

United States v. Young, 470 U.S. 1, 15 (1985)(discretionary remand

should not be exercised unless it seriously affects the fairness,

integrity or public reputation of the judicial process).



                                V.

     For the reasons stated above, the judgment of the district

court is

                                                           AFFIRMED.




                                16
WILKINSON, Circuit Judge, dissenting:

     The district court evidently sentenced Catala as if he had

admitted    responsibility    for    only    an    unspecified    quantity    of

marijuana.    See    21 U.S.C. §§ 841(b)(1)(C), 846 (2000).            Thus the

district court ignored the sentencing range specified in the plea

document,    which    was   based    on    “more    than   100   kilograms   of

marijuana,” see § 841(b)(1)(B)(vii), and attributed only 83.9

kilograms    of   marijuana   to    appellee   as    the   predicate   for   his

sentence.

     The job of a district court during the plea hearing is to

explain to the defendant the meaning of the terms in the plea

agreement, not to alter those terms.                 See Fed. R. Crim. P.

11(b)(1).    The district court has no authority to depart from the

plain meaning of the agreement negotiated between the parties and

memorialized in the plea document. See United States v. Howle, 166

F.3d 1166, 1168-69 (11th Cir. 1999).           Unfortunately, the district

court embarked on just such misadventure here when it assured the

defendant that he could “always” dispute “the amount of weight” at

a later stage, notwithstanding the specific drug quantity mentioned

in the plea.      The defendant was thus misled, through no fault of

his own, into believing that he had reserved an unfettered right to

challenge the drug weight on which his sentence would be based.

     The majority is quite right to suggest that the defendant was

misled.     The majority is entirely wrong, however, to enforce the


                                      17
terms of the misrepresentation.    For it is clear from the record

that the government never intended to offer defendant an unfettered

right to challenge drug weight, only the limited ability to contest

weight between 100 and 1,000 kilograms, in exchange for his guilty

plea.   The plea document, after all, specified the lower end of

this weight range, and the government confirmed at the plea hearing

its “understanding” that if “the presentence report [indicates]

more than [1,000 kilograms] of marijuana, then [appellee is] only

pleading guilty to the lesser charge” of more than 100 kilograms.

     Moreover, the district court did nothing to disparage this

interpretation of the plea when it noted that the sentence would be

“based on the hundred kilograms or more of marijuana and not the

thousand kilograms or more,” and when it described the offense

during the colloquy as “conspiracy to possess with intent to

distribute more than a hundred kilograms of marijuana.”   Based on

such statements, the government’s belief that Catala was admitting

responsibility for more than 100 kilograms, and reserving only the

right to dispute just how much more, was entirely reasonable.

     Appellee and the government were thus proceeding at cross

purposes; appellee believed that his acceptance of the plea deal

did not waive his right to contest drug weight generally, while the

government believed that only amounts above 100 kilograms were fair




                                  18
game after the plea was entered.       In these circumstances, no valid

agreement could have been created in the first place.1

     Plea bargains are a species of contract. See United States v.

Bownes, No. 03-3016, 2005 U.S. App. LEXIS 7103, at *3 (7th Cir.

2005); United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986).

Courts have therefore applied a variety of contract law doctrines

to void or modify plea agreements.           See, e.g., United States v.

Williams, 198 F.3d 988, 993-94 (7th Cir. 1999); United States v.

Lewis, 138 F.3d 840, 841-43 (10th Cir. 1998) (permitting rescission

of plea on the basis of “mutual mistake”); United States v. Wood,

378 F.3d 342, 349 and n.3, 350 (4th Cir. 2004) (ordering “specific

performance”    of   constructively    amended    plea   agreement).     One

commonplace of contract law is that there must be a meeting of the

minds as to all essential terms for a valid agreement to be

created.   See 2 Murray on Contracts § 48 (Lexis 2001).            Here there

was no such meeting of the minds concerning the weight of drugs

admitted   in    the   plea;   quite       the   opposite,   the    parties’

understandings of that issue were mutually exclusive.


     1
      Catala argues that the government should be held to his
understanding of the plea agreement, which he says the district
court endorsed with statements such as “you can always” argue the
amount of weight. When the terms of a plea agreement have been
orally modified during plea proceedings, we have sometimes enforced
the modifications.   To do so, however, we have required either
ambiguity in the plea document, see United States v. Gilliam, 987
F.2d 1009, 1011 (4th Cir. 1993), or acquiescence by the government
in the substance of the modification, see United States v. Wood,
378 F.3d 342, 350 (4th Cir. 2004). Neither of these circumstances
is present here.

                                      19
     Plea agreements have been invalidated when there is “doubt

whether   any   ‘meeting   of   the   minds’   ever   resulted   from   plea

negotiations.” Houmis v. United States, 558 F.2d 182, 183 (3d Cir.

1977); see also United States v. Bradley, 381 F.3d 641, 648 (7th

Cir. 2004).     Applying this principle here, I see no option but to

hold the plea agreement void ab initio. Although the plea document

is clear on its face, the district court led the defendant to

believe that he had an absolute right to dispute drug weight.             I

would therefore vacate the judgment and remand accordingly.2




     2
      Because I would dispose of the case in this manner, I express
no opinion on whether the district court was correct to grant
appellee a third level decrease in the absence of a government
motion.

                                      20
