                                      No. 04-1285
                                File Name: 05a0517n.06
                                  Filed: June 17, 2005

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                         )
                                                  )
   Plaintiff-Appellee,                            )
                                                  )   ON APPEAL FROM THE
      v.                                          )   UNITED STATES DISTRICT
                                                  )   COURT FOR THE EASTERN
OMAR SHARIF HENDERSON,                            )   DISTRICT OF MICHIGAN
                                                  )
   Defendant-Appellant.                           )



Before:      NELSON and BATCHELDER, Circuit Judges, and O’MALLEY, District
             Judge.*


      DAVID A. NELSON, Circuit Judge. This is an appeal from a sentence imposed after

the defendant pleaded guilty to drug and firearms charges. The defendant contends, among

other things, that the government reneged on a promise to request a reduced sentence in

exchange for assistance in other investigations and prosecutions.

      The argument will be rejected. It is at odds with the text of the defendant’s plea

agreement, which gives the government sole discretion to decide whether to move for a

sentence reduction. The government’s exercise of its discretion is reviewable only for




      *
        The Honorable Kathleen M. O’Malley, United States District Judge for the Northern
District of Ohio, sitting by designation.
No. 04-1285
Page 2

reliance on unconstitutional considerations, and the defendant has not alleged that such

considerations were relied upon here.

       The defendant also argues that he must be resentenced under United States v. Booker,

543 U.S. ___, 125 S. Ct. 738 (2005). This argument has two branches.

       First, the defendant maintains that the district court violated his Sixth Amendment

right to a jury trial by enhancing his sentence on the basis of facts that were not found by a

jury. We are inclined to think that the defendant waived this branch of his Booker argument

by agreeing not to challenge the constitutionality of the United States Sentencing Guidelines.

In any event, the defendant admitted all of the facts that were used to enhance his sentence,

and Booker does not require jury findings as to admitted facts.

       Second, the defendant contends that the district court failed to recognize its authority,

in the absence of a government motion for a downward departure, to impose a sentence

below the range established by the sentencing guidelines. It is now plain, in light of Booker,

that the court erred in regarding the guidelines as mandatory. It is doubtful that the error was

prejudicial, given that (1) only one month separated the bottom of the defendant’s guideline

range from a statutory minimum sentence, and (2) the district court imposed the maximum

sentence available under the plea agreement. Nevertheless, because we cannot be sure that

the court would have imposed the same sentence had it appreciated the full scope of its

discretion, we shall remand the case for resentencing.
No. 04-1285
Page 3

                                               I


       A federal grand jury indicted the defendant, Omar Sharif Henderson, on charges of

conspiracy to distribute cocaine, possession of cocaine with the intent to distribute it (three

counts), possession of stolen firearms (two counts), and receipt of firearms by a person under

indictment. Mr. Henderson and the government entered into a plea bargain under which

Henderson agreed to plead guilty to the cocaine and receipt-of-firearms charges and the

government agreed to dismiss the possession-of-stolen-firearms charges. The government

also agreed that Henderson’s sentence should not exceed the midpoint of the sentence range

determined under the United States Sentencing Guidelines.

       The plea agreement contained a stipulation as to the offense conduct, including the

amount of cocaine involved in Mr. Henderson’s drug offenses. The agreement also

incorporated stipulations as to each of the factors that the parties believed would affect Mr.

Henderson’s sentence under the guidelines. Through those stipulations, Mr. Henderson

admitted (among other things) that his offenses involved 2,903.35 kilograms of marijuana

equivalent, that he had previously been convicted of a firearm offense in state court, and that

he committed the instant offenses while under a prior sentence.

       The plea agreement also contained provisions obligating Mr. Henderson to assist the

government in other criminal investigations and prosecutions by providing truthful

information and testimony. The government agreed to seek a reduction in Mr. Henderson’s
No. 04-1285
Page 4

sentence if it determined, in its sole discretion, that Henderson had provided substantial

assistance.

         Finally, the agreement contained a waiver of Mr. Henderson’s right to challenge on

appeal (or in any collateral proceeding) “the constitutionality or legality of any part of the

sentencing guidelines” and “the accuracy of any factor or guideline calculation stipulated to

in this agreement . . . .”

         On the day before Mr. Henderson’s sentencing, the government advised the district

court and the defendant that it would not seek a sentence reduction for substantial assistance.

At the hearing itself, the government explained that it believed Mr. Henderson had been

selective in his disclosures and had “organiz[ed] harassment” of other cooperating persons.

Mr. Henderson disputed these allegations, but the district court concluded that it had no

reason to resolve the factual dispute because the decision whether to seek a sentence

reduction was committed to the government’s discretion. In the absence of a motion by the

government, the court said, it had no basis on which to depart from the guideline sentence

range.

         The district court sentenced Mr. Henderson to a term of 136 months, the midpoint of

the guideline range of 121 to 151 months and the longest sentence permitted under the plea

agreement. This appeal followed.
No. 04-1285
Page 5

                                              II


       Relying on United States v. Benjamin, 138 F.3d 1069 (6th Cir. 1998), Mr. Henderson

argues that the government was required to move for a sentence reduction because it did not

prove that he had failed to provide substantial assistance. At the very least, argues

Henderson, the district court should have held an evidentiary hearing on the question of

substantial assistance. These arguments fail because they disregard the language of the plea

agreement.

       Benjamin stands for the proposition that the government may not “decline to fulfill

its obligations under a plea agreement” unless it “establish[es] the defendant’s breach [of the

agreement] by a preponderance of the evidence.” Id. at 1074. But the plea agreement in the

present case stated that “[i]t is exclusively within the government’s discretion to determine

whether defendant has provided substantial assistance” and that a motion for a sentence

reduction is required only “[u]pon the government’s determination that defendant’s

cooperation amounts to substantial assistance . . . .” No such determination was made by the

government.

       Benjamin distinguished plea agreements like Mr. Henderson’s, where the government

“reserves discretion to determine whether [a] motion [for a sentence reduction] is

appropriate,” from plea agreements where the government “bargain[s] away its discretion and

simply promise[s] to make the . . . motion.” Id. at 1073-74. It is the latter type of agreement

that obligates the government to seek a reduced sentence unless it can satisfy the district
No. 04-1285
Page 6

court that the defendant breached the agreement. With an agreement of the former type, the

government’s decision not to move for a reduction is reviewable only “to determine whether

the refusal is based on unconstitutional considerations, such as the defendant’s race.” Id. at

1073 (citing Wade v. United States, 504 U.S. 181, 185-86 (1992)); see United States v.

Moore, 225 F.3d 637, 641 (6th Cir. 2000) (“[W]hen a plea agreement allocates complete

discretion to the government to consider whether a substantial assistance motion should be

filed, we may only review the government’s decision for unconstitutional motives”).

       Mr. Henderson has never alleged that any unconstitutional consideration motivated

the government’s decision not to seek a reduction in his sentence. The district court did not

err, therefore, in declining to review the government’s decision. See Moore, 225 F.3d at 641.

No evidentiary hearing was necessary because no genuine issue was raised as to the

government’s motives.

       Mr. Henderson suggests that the plea agreement was illusory if the government was

not obligated to request a reduced sentence. We disagree. The government made meaningful

concessions in exchange for Henderson’s promise to plead guilty: it promised to dismiss two

firearms charges, and it agreed that an appropriate sentence would not exceed the midpoint

of the guideline range. The government’s agreement to a “midpoint cap” was binding on the

district court. See Fed. R. Crim. P. 11(c)(1)(C). We are satisfied that there was adequate

consideration for Mr. Henderson’s guilty plea.


                                             III
No. 04-1285
Page 7


       Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542

U.S. ___, 124 S. Ct. 2531 (2004), and United States v. Booker, 543 U.S. ___, 125 S. Ct. 738

(2005), Mr. Henderson argues that the district court unconstitutionally enhanced his sentence

on the basis of facts that were not found by a jury. In an amended brief filed after the

Supreme Court decided Booker, Mr. Henderson argues further that the district court failed

to recognize its authority to depart from the guideline sentence range sua sponte on the basis

of substantial assistance. We shall address these arguments in turn.


                                               A


       The first argument was probably waived by Mr. Henderson’s agreement “not to appeal

or otherwise challenge . . . the constitutionality or legality of any part of the sentencing

guidelines.” The argument rests on Booker’s holding that the Sixth Amendment forbids

judicial determination of “[a]ny fact (other than a prior conviction) which is necessary to

support a sentence exceeding the maximum authorized by the facts established by a plea of

guilty or a jury verdict . . . .” Booker, 125 S. Ct. at 756. By invoking Booker’s constitutional

holding, it seems to us, Mr. Henderson is challenging the constitutionality of the federal

sentencing guidelines. That is exactly what he promised not to do. Such a promise is

enforceable. See United States v. Bradley, 400 F.3d 459, 463-66 (6th Cir. 2005).

       Waiver aside, however, Mr. Henderson’s Sixth Amendment argument is without

merit. The facts that Henderson says should not have been used to enhance his sentence are
No. 04-1285
Page 8

(1) that he had a prior conviction, (2) that he committed the instant offenses while on

probation, and (3) that his offenses involved the equivalent of 2,911.15 kilograms of

marijuana. But prior convictions are expressly excluded from the rule of Booker, Blakely,

and Apprendi. See Booker, 125 S. Ct. at 756. Moreover, the plea agreement contained an

admission of each of the facts used to increase his sentence.1 Even under a mandatory

sentencing scheme, agreed-upon facts need not be found by a jury. See id.; Bradley, 400

F.3d at 462 (“The Sixth Amendment does not apply to agreed-upon facts . . . .”).

Accordingly, the district court’s enhancement of Henderson’s sentence on the strength of the

agreed facts did not violate the Sixth Amendment under Booker.


                                               B


       The Booker Court undertook to remedy what was held to be an inherent constitutional

defect in the sentencing guidelines by excising the statutory provisions that made the

guidelines mandatory. See Booker, 125 S. Ct. at 764. As a result, the guidelines are now

advisory: sentencing courts must consider the guidelines but are “not bound” by them. Id.

at 767. Booker’s remedial holding was made applicable to all cases pending on direct review

at the time of the Court’s decision, see id. at 769, and this is such a case.



       1
        The drug quantity admitted by Mr. Henderson in the plea agreement differed slightly
from the quantity calculated in the presentence report that was relied upon by the district
court at sentencing. The difference was not material to the determination of Henderson’s
guideline sentence range.
No. 04-1285
Page 9

       The district court, having no reason to anticipate Booker’s revision of the statute,

operated under the assumption that the guidelines were mandatory. Accordingly, it did not

consider whether a downward departure on the basis of substantial assistance might be

appropriate in the absence of a government motion. Mr. Henderson contends that the district

court’s failure to appreciate the scope of its discretion constitutes plain error. (The “plain

error” standard applies here because Mr. Henderson did not object to the district court’s

treating the guidelines as compulsory.) Because it rests on Booker’s revision of the statute,

rather than on the holding that the guidelines were unconstitutional as enacted by Congress,

this argument was not waived by Mr. Henderson’s agreement not to challenge the

constitutionality of the sentencing guidelines.

       In the light of Booker, the district court plainly erred by failing to recognize that it

could impose a sentence below the lower limit of the guideline range. See Johnson v. United

States, 520 U.S. 461, 468 (1997) (holding that an error is “plain” if it is clearly contrary to

the law at the time of appellate consideration). But a plain error may be corrected on appeal

only if it affected the defendant’s substantial rights and if it seriously affected the fairness,

integrity, or public reputation of the proceedings. See United States v. Cotton, 535 U.S. 625,

631-32 (2002).

       It is unlikely, we think, that the district court’s error affected Mr. Henderson’s

substantial rights and the integrity of his sentencing. Henderson faced a statutory minimum

of imprisonment for a term of 120 months, see 21 U.S.C. § 841(b)(1)(a)(iii), and Booker did
No. 04-1285
Page 10

not authorize the district court to impose a sentence below the statutory minimum in the

absence of a government motion. Even if it had appreciated the scope of its discretion,

therefore, the district court could not have departed more than one month below the low point

of the guideline range. Given that the court imposed the maximum sentence authorized by

the plea agreement, see Fed. R. Crim. P. 11(c)(1)(C), it is perhaps unlikely that the court

would have sentenced Mr. Henderson more leniently had it understood 120 months, rather

than 121 months, to be the lowest available sentence.

       That said, we cannot be certain that the district court would have imposed the same

136-month sentence had the court anticipated Booker. We believe, therefore, that the

appropriate course is to remand the case for reconsideration of Mr. Henderson’s sentence.

See United States v. McCraven, 401 F.3d 693, 700 & n.1 (6th Cir. 2005).

       Mr. Henderson’s sentence is VACATED, and the case is REMANDED for

resentencing.
