                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2181
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Shaun Emery White,                      *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 8, 2004

                                  Filed: May 17, 2004
                                   ___________

Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and COLLOTON, Circuit
      Judges.
                         ___________

WOLLMAN, Circuit Judge.

      Pursuant to a plea agreement, Shaun Emery White pleaded guilty to one count
of aggravated assault in exchange for dismissal of three remaining counts against him
and the government’s promise not to pursue additional firearm and drug charges.
Because White was also facing an undischarged term of imprisonment with the State
of Minnesota, the parties further agreed to recommend that White’s federal prison
sentence run concurrent with his State time. Although the district court1 did not
voice objection to this recommendation at the change-of-plea hearing, it declined to
follow it at sentencing, instead imposing a consecutive sentence of 63 months of
imprisonment followed by three years of supervised release. White appeals, arguing
the district court failed to articulate an adequate justification for rejecting the
concurrent-time recommendation and erred in imposing a consecutive sentence. We
affirm.

                                           I.

       On December 15, 2001, White attended a party at a home located on
Minnesota’s Red Lake Indian Reservation. After an evening of drinking and drug
use, White and his co-defendants, Anthony Smith and Frederick Fisher, brutally
assaulted Ronald Long. Smith first hit Long over the head with a bottle and then
fired a handgun past Long. The three men then dragged the bleeding Long into the
basement and beat him while holding him at gunpoint. According to White, he and
Smith struck Long in the head with their handguns while Fisher kicked Long.2

       At the time of the assault, White was still subject to a stayed 30-year Minnesota
prison sentence for a second-degree murder conviction that occurred when White was
a juvenile. White’s involvement in the assault ultimately triggered execution of the
stayed prison sentence, and White approached plea bargaining in his federal case with
the state sentence in mind. Paragraph five of White’s plea agreement specified that
White’s likely imprisonment range for the assault would be 63-78 months. The


      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
      2
       Although White went to bed after the beating, Smith was fearful that Long
would inform the authorities. With the aid of a female accomplice, Smith drove Long
to a remote area of the Reservation and shot him dead.

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agreement further provided that “[t]he parties will recommend that this sentence be
served concurrently with [White’s] state sentence for second degree murder (360
months).”

       At the change-of-plea hearing, the parties acknowledged the importance of the
concurrent-time recommendation, and the district court did not express concern over
the provision. Nevertheless, the plea agreement itself specified that the court would
determine if White’s sentence would be concurrent or consecutive, and both the
government and the district court made clear that the recommendation for concurrent
time was not binding:

      [Government]: Now, we’re going to recommend that your sentence be
      served concurrent to your current State sentence that you got from [the
      state judge]. Do you understand the Judge is going to make a decision
      on whether or not it’s concurrent or consecutive? But the parties are
      going to argue to the court that it should be concurrent. Do you
      understand that?

      [White]: Yes . . . .

      [Government]: You understand that the Judge has the right to order
      your sentence to be concurrent or consecutive, and there’s no way that
      we can bind him in that decision?

      [White]: Yes . . . .

      [Court]: Now, what was discussed here a few minutes ago, so let’s
      touch on it briefly here, do you understand that under this agreement, for
      whatever reason if I would not impose a concurrent sentence and I
      would make it consecutive, which means you’d have to serve it on top
      of your existing State sentence, while you would have the right to appeal
      under the agreement . . . neither side could withdraw from the plea




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      agreement . . . . You can appeal that decision, but you can’t say I want
      my trial. Do you understand that?

      [White]: Yes.

Change-of-Plea Hr’g Tr. at 14, 17, 27-28. At sentencing, the district court
declined to follow the recommendation that White’s federal sentence run
concurrent with his state sentence, noting that “I can’t step away from the
bench looking at the law realizing that you won’t do any time on this charge
. . . . I believe you should do the additional time, and I believe it’s fair and
appropriate under the law based upon all the facts and circumstances.”
Sentencing Hr’g Tr. at 31-32. White challenges this decision.

                                       II.

       A district court’s acceptance of a plea agreement creates a reasonable
expectation that the court will honor the agreement’s basic terms, see United
States v. Harris, 70 F.3d 1001, 1002-03 (8th Cir. 1995), and “[l]est they desire
to have trials on all criminal matters, district courts should be wary of conduct
which tends to undermine the trust [defendants] place in the deals they strike
with prosecutors.” United States v. Shields, 44 F.3d 673, 675 n. 2 (8th Cir.
1995). That said, the district court here did nothing untoward. Sentencing
recommendations are just that – recommendations – which do not bind the
district court. See Fed. R. Crim. P. 11(c)(1)(B). All involved took pains to
inform White that the district court was not a party to the plea agreement and
that a consecutive sentence was possible. When the court took White’s plea
and ultimately accepted the plea agreement, it was merely accepting the
parties’ joint, non-binding recommendation that White receive concurrent time,
nothing more.




                                             -4-
        White notes that at the change-of-plea hearing, the district court
mentioned that it would inform the parties if there was anything objectionable
in the plea agreement, yet it did not voice any concern regarding the
concurrent-time recommendation. Given the care with which White was
advised that there was no assurance that the district court would impose a
concurrent sentence, we do not believe that the district court’s decision not to
characterize the concurrent time-recommendation as objectionable can fairly
be read as somehow misleading White into believing that such a sentence
would be imposed. The district court did nothing to suggest, either explicitly
or implicitly, that it would impose a concurrent sentence, and there was no
corresponding obligation that the court reject the plea agreement or indicate
that it might impose a consecutive sentence.

      White contends that the district court failed to supply reasons for its
decision and did not properly analyze his case under the relevant United States
Sentencing Guideline (U.S.S.G.), § 5G1.3 (2002). We review these matters de
novo, see United States v. Smith, 282 F.3d 1045, 1046 (8th Cir. 2002), and we
disagree. Interpreting the version of § 5G1.3 that applies to White’s case, our
court has previously held that application note 6 to § 5G1.3 mandates
imposition of a consecutive sentence for defendants in White’s position. See
Smith, 282 F.3d at 1048 (analyzing U.S.S.G. Manual § 5G1.3, cmt. n. 6
(2002)). We note that the Sentencing Commission subsequently declined to
adopt Smith’s mandatory reading of application note 6 in later amendments to
the Guidelines, but the Commission has continued to recommend that a
consecutive sentence be imposed. See U.S.S.G. Manual app. C, amend. 660
(Supp. II 2003) (resolving a circuit split and indicating that imposition of a
consecutive sentence is not required but nevertheless recommended).

     Even assuming that the district court had the authority to order a
concurrent or partially concurrent sentence in this case, the district court

                                         -5-
supplied more than adequate justification for its decision otherwise. Under the
applicable version of § 5G1.3, the court was required to impose a reasonable
punishment and avoid unwarranted disparity by considering numerous factors
in 18 U.S.C. § 3584 and:

      (a) the type . . . and length of the prior undischarged sentence;
      (b) the time served on the undischarged sentence and the time likely to
      be served before release;
      (c) the fact that the prior undischarged sentence may have been imposed
      in state court rather than federal court, or at a different time before the
      same or different federal court; and
      (d) any other circumstance relevant to the determination of an
      appropriate sentence for the instant offense.


U.S.S.G. § 5G1.3 cmt. n. 3 (2002).

       The record here reflects the district court’s careful consideration of
applicable factors in an attempt to strike an appropriate balance. The district
court acknowledged the grief Ronald Long’s family had suffered and gave due
consideration to White’s age, unfortunate childhood, mental illness, drug
abuse, and prior involvement in criminal activity. The district court then took
into account the likely length of White’s state sentence and the amount of
credit White might receive thereon. Having considered all of these factors, the
district court chose the lowest available term under the Guidelines, 63 months,
rather than imposing the maximum term of 78 months. The district court’s
concern that a concurrent sentence would mean “no time” for White was thus
a well-considered determination that concurrent time would not fairly punish
White for his participation in the assault.

      The judgment is affirmed.
                 ______________________________

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