                                 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT
          ____________

           No. 07-1960
          ____________

   UNITED STATES OF AMERICA

                v.

       DEMETRIUS GREEN
               a/k/a
         Frederick Henry
               a/k/a
           Shawn Tresy
               a/k/a
            Brad Raine
               a/k/a
          Tyell Yeisner
               a/k/a
               Nate
               a/k/a
               Meat
               a/k/a
       Demetrice Washington
               a/k/a
         Charles Brinkley
               a/k/a
         Demetrice Brown
               a/k/a
         Demetrice Green
               a/k/a
         Dimitrius Green
               a/k/a
          Hakeem Kneff

            Demetrius Green,

                     Appellant
                                      ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. No. 04-cr-00054)
                      District Judge: Honorable John E. Jones, III
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 18, 2010

             Before: AMBRO, FISHER and GREENBERG, Circuit Judges.

                                (Filed: December 7, 2010)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Demetrius Green pled guilty to conspiracy to distribute fifty or more grams of

cocaine base in violation of 21 U.S.C. § 846, and the District Court sentenced him to 360

months’ imprisonment. Green appeals his sentence, arguing: (1) that the District Court

erred in concluding it was barred from categorically rejecting the Sentencing Guidelines’

crack-powder cocaine differential on policy grounds; (2) that the plea agreement was

invalid; (3) in the alternative, that the government breached the plea agreement; and (4)

that the District Court erred in not departing downward for acceptance of responsibility.

For the reasons stated here, we vacate and remand for resentencing.

                                             I.

       We write exclusively for the parties, who are familiar with the factual context and
                                             2
legal history of the case. Therefore, we will set forth only those facts necessary to our

analysis.

       In late 2002 or early 2003, Green set up a drug operation in central Pennsylvania.

He traveled between Philadelphia and central Pennsylvania at least once a week to bring

cocaine base from the city. He stayed at either motels or private residences throughout

central Pennsylvania counties. Green sold crack cocaine, cocaine base, and marijuana,

and was also involved in making crack cocaine. He employed other people to distribute

the cocaine, and paid his co-conspirators in cash and drugs. His clients paid him in the

form of either cash, vehicles or firearms. Throughout the duration of Green’s activities,

investigators estimated that he distributed over 1.5 kilograms of crack cocaine.

       On December 16, 2004, Green was charged in a Second Superseding Indictment

with a violation of 21 U.S.C. § 846, conspiracy to distribute fifty or more grams of

cocaine base. He pled guilty pursuant to a plea agreement on March 2, 2006.

       The plea agreement included provisions concerning acceptance of responsibility

and drug quantity. Paragraph 11 of the plea agreement provided that the government

would move for a three-level reduction in base offense level if Green adequately accepted

responsibility. (App. at 55.) Paragraph 13 stated that Green admitted to a quantity

between fifty and 150 grams of cocaine base or crack cocaine, but that the government

could seek to prove any quantity at the sentencing hearings. (Id. at 56.)

       At the guilty plea colloquy, Green attempted to clarify that he was specifically

                                              3
pleading guilty to only fifty grams of cocaine base or crack cocaine. The government

explained:

       “And it was explained to Mr. Green that this is simply a range within the
       guideline and that that range was put in there, but we all understand that he
       is acknowledging responsibility at the very low end of that range in terms of
       drug weights. That paragraph goes on to note that of course the court is
       free to receive information regarding other drug weights that Mr. Green
       may be responsible for, but he is forthrightly here today acknowledging that
       he’s responsible for at least 50 grams.”

(Id. at 80.) Following this explanation, Green explicitly acknowledged that he understood

that the District Court would “determine the exact amount of drugs involved in this case.”

(Id. at 86.)

       The Probation Office prepared a Presentence Investigation Report (“PSR”). Green

objected to the PSR on four grounds. He objected to: (1) his base offense level

calculation of 38; (2) a determination that he was an organizer or leader of an

organization involving at least five people; (3) a finding that he carried a firearm during

the offense to which he pled guilty; and (4) failure to consider his acceptance of

responsibility on the basis of his guilty plea.

       Sentencing hearings were conducted on October 18, 2006 and November 6, 2006.

At the hearings, the government presented substantial evidence in the form of witness

testimony regarding the details of Green’s involvement in the drug conspiracy.

       At the conclusion of the sentencing hearings, the District Court requested briefs

from both parties. On March 27, 2007, the District Court sentenced Green. It overruled

                                                  4
all of Green’s objections and adopted the PSR in full. The District Court found by a

preponderance of the evidence that 11.323 kilograms of crack cocaine were attributable to

Green, resulting in a base offense level of 38. The District Court applied a two-level

enhancement for possession of a firearm during the offense, and a four-level enhancement

for having a role as a leader of criminal activity that involved at least five participants.

The District Court found that Green did not adequately accept responsibility and thus

declined to apply a reduction on that basis. It also denied Green’s motion to depart

downward based upon family ties and responsibility. Accordingly, the total offense level

was 43 and the criminal history category was III. The Guidelines range was life

imprisonment, but the District Court exercised its discretion pursuant to § 3553(a) and

sentenced Green to 360 months in custody, to be followed by five years of supervised

release. Green timely appealed.

                                              II.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review a sentencing

objection that was not raised below for plain error. United States v. Russell, 564 F.3d

200, 203 (3d Cir. 2009). We review the validity of a plea agreement de novo. United

States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001). We also review de novo whether the

government’s conduct violated the terms of the plea agreement. United States v. Nolan-

Cooper, 155 F.3d 221, 236 (3d Cir. 1998). Finally, we review a district court’s refusal to

                                               5
award a sentencing level reduction for acceptance of responsibility under an abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007).

                                            III.

       Green raises four issues on appeal. First, he argues that the District Court erred in

concluding it was barred from categorically rejecting the Sentencing Guidelines’ crack-

powder cocaine differential on policy grounds. Second, he contends that the plea

agreement was invalid because the government improperly induced the contract. Third,

he argues that if the plea agreement were valid, the government breached the contract by:

(1) offering evidence supporting a finding of over fifty grams of cocaine, and (2)

declining to recommend a reduction in offense level for affirmative acceptance of

responsibility. Fourth, he contends that the District Court erred in declining to reduce his

offense level for acceptance of responsibility. We will address each contention in turn.

                                             A.

       Green argues that the District Court committed clear error by not recognizing its

authority to categorically reject the Sentencing Guidelines’ crack-powder cocaine

differential on policy grounds. In essence, Green argues that two Supreme Court cases

decided after his sentencing−Kimbrough v. United States, 552 U.S. 85 (2007), and Spears

v. United States, --- U.S. --- , 129 S.Ct. 840 (2009)−make clear that district courts may

categorically reject the Sentencing Guidelines’ crack-powder cocaine differential on

policy grounds. Insofar as the District Court relied on United States v. Gunter, 462 F.3d

                                             6
237 (3d Cir. 2006), for a contrary position, Green’s sentence was based on an erroneous

legal conclusion and should be vacated and remanded for resentencing. We agree.

       Green was sentenced on March 27, 2007. At that time, our existing case law

suggested that a district court could not substitute its own crack-powder cocaine ratio for

the 100:1 ratio of the Guidelines. See Gunter, 462 F.3d at 249 (3d Cir. 2006) (“[W]e do

not suggest . . . that the Court categorically reject the 100:1 ratio and substitute its own, as

this is verboten.”).

       The District Court explicitly referenced Gunter at sentencing and noted:

       “With respect to [the fact that you sold in smaller amounts over a period of
       time] as it relates to the ratio of crack/powder -- crack to powder cocaine, it
       was not raised by your attorney, but the Court will raise that as we can
       under the United States versus Gunter case, not specifically argued in the
       submission by the defendant. We may not substitute our own ratio in place
       of the 100-to-1 ratio, and we have not done that today for the purpose of
       sentencing. However, I believe it’s incumbent upon me, even on the
       Court’s own initiative, to recognize the possible inequities of the ratio. And
       I do consider that in fashioning a reasonable sentence today, and in varying
       the sentence down from the life that is stated under the advisory
       guidelines.”

(App. at 526-27.) The District Court, therefore, varied downward under § 3553(a), but

explicitly noted that it did not have the authority under Gunter to substitute its own ratio

when calculating the applicable Guidelines range.

       Several months after Green was sentenced, this Court confirmed our dicta in

Gunter and explicitly held that “district courts may not categorically reject the [crack-

powder cocaine] ratio.” United States v. Ricks, 494 F.3d 394, 401 (3d Cir. 2007).

                                               7
       Shortly thereafter, the Supreme Court effectively overruled Ricks in two decisions,

Kimbrough and Spears. The Supreme Court expressly held that a district court may

categorically reject the Guidelines’ crack-powder cocaine differential as a matter of

policy. See Spears, 129 S.Ct. at 843-44. Moreover, Spears held that district courts “also

possess the power to apply a different ratio which, in [the district court’s] judgment,

corrects the disparity.” Id. at 843. Therefore, in sentencing Green, the District Court

relied on a proposition from Gunter that is no longer good law.

       We recently faced a nearly identical situation in United States v. Russell, 564 F.3d

200 (3d Cir. 2009). In that case, the defendant was sentenced prior to the Supreme

Court’s decisions in Kimbrough and Spears. The district court explicitly and properly

relied on Ricks at sentencing, and noted that it could not substitute its own ratio for the

100-to-1 ratio of the Guidelines. In Russell, the district court also declined to vary

downward, opting instead to remain within the range provided by the Guidelines. We

held that, “the District Court’s statements regarding Ricks constitute[d] error and that

error [was] clear in light of Kimbrough and Spears. Further, we [found] that the clear

error affected Russell’s substantial rights, particularly given both his efforts to argue that

the crack-powder cocaine disparity justified a variant sentence and the District Court’s

reliance on Ricks in rejecting those efforts.” Id. at 205. We vacated the defendant’s

sentence and remanded for sentencing, “as we [found] that giving the District Court an

opportunity to resentence Russell in light of its clarified authority under Kimbrough and

                                               8
Spears ensure[d] the fairness, integrity, and public reputation of Russell’s sentencing

proceedings.” Id.

       We vacate and remand for substantially the same reasons. While Kimbrough and

Spears do not require a district court to substitute its own ratio, they grant a district court

the discretion to do so. Although the District Court varied Green’s sentence downward

after commenting on the potential inequities of the crack-powder cocaine differential, it

declined to substitute its own ratio on the basis of our then-existing case law.

Accordingly, we remand to provide the District Court with an opportunity to resentence

under our current law.

                                               B.

       Although we vacate and remand for resentencing in light of the District Court’s

reliance on Gunter, we nonetheless briefly address Green’s remaining arguments to

provide the District Court with guidance on remand.

       Green argues that the plea agreement is invalid because the government

improperly induced him to enter into the plea agreement by making certain

representations. Therefore, he contends that he did not enter into the plea agreement

voluntarily and knowingly. This argument fails.

       Prior to accepting Green’s plea, the District Court held a hearing to discuss the

provisions of the plea agreement with Green, as was required by Fed. R. Crim. P. 11(b).

At that time, the District Court verified that Green “signed the plea agreement, that [he]

                                               9
had read and understood the provisions of the agreement, that [he] had conferred with

[his] attorney about the agreement, and that [he] was in fact agreeing to plead guilty freely

and voluntarily.” United States v. Jackson, 523 F.3d 234, 243 (3d Cir. 2008). Moreover,

Green acknowledged that the plea agreement stated the complete and only agreement

between him and the government, and that no one promised or offered him anything else

as an inducement to plead guilty. (App. at 81.)

       At the plea colloquy, the government explained in open court that Green was

pleading guilty to between fifty and 150 grams of drug weight, but that the District Court

could still receive information regarding other drug weights for which he may be

responsible. (Id. at 80.) The District Court advised Green that the Guidelines range for

between fifty and 150 grams of drug weight was approximately 120 months, but that the

statutory maximum term of imprisonment for the offense was life in prison. (Id. at 82-

84.) In all respects, the plea colloquy was thorough and proper and confirmed that the

government did not improperly induce Green to sign the plea agreement. Thus, we find

the plea agreement to be valid and enforceable.

                                             C.

       Green next argues that even if the plea agreement were valid, he did not receive

the benefit of his bargain because the government breached the contract. Specifically,

Green argues that the government unlawfully: (1) offered evidence supporting a finding

of over fifty grams of cocaine, and (2) declined to recommend a reduction in offense level

                                             10
for affirmative acceptance of responsibility. This argument fails. “In determining

whether the plea agreement has been breached, courts must determine ‘whether the

government’s conduct is inconsistent with what was reasonably understood by the

defendant when entering the plea of guilty.’” Nolan-Cooper, 155 F.3d at 236 (quoting

United States v. Badaracco, 954 F.2d 928, 939 (3d Cir. 1992)).

       Our review of the record reveals that the government did not breach the plea

agreement. First, under the plain terms of the plea agreement, the government was

permitted to “argue and prove to the court at any sentencing proceedings that the quantity

of controlled substances for which [Green] is responsible is greater than this amount

agreed to by him.” (App. at 56.) In the plea colloquy, Green knowingly and voluntarily

consented to this term, and understood that the District Court was “free to receive

information regarding other drug weights that Mr. Green may be responsible for.” (Id. at

80.)

       Second, under the plain terms of the plea agreement, the government only agreed

to move for a reduction based on acceptance of responsibility “if the defendant []

adequately demonstrate[d] this acceptance of responsibility to the government.” (Id. at

55.) However, a “defendant who enters a guilty plea is not entitled to an adjustment [for

acceptance of responsibility] as a right.” U.S.S.G. § 3E1.1, cmt. n.3. Instead, a defendant

must enter a guilty plea “prior to the commencement of trial [in addition to] truthfully

admitting the conduct comprising the offense of conviction, and truthfully admitting or

                                             11
not falsely denying any additional relevant conduct for which he is accountable under §

1B1.3.” Id. The record indicates that Green disputed a substantial amount of relevant

conduct, including drug quantity, the possession of firearms, and his role as a leader of

the drug conspiracy. Therefore, the government was not required to move for a reduction

based on acceptance of responsibility. Thus, we reject Green’s contention that the

government breached the plea agreement.

                                             D.

       Green also argues that the District Court committed clear error in declining to

reduce the offense level for acceptance of responsibility. “Neither a plea nor a

stipulation, nor any other submission made by the parties, can override the discretion of

the sentencing judge, who bears ‘the ultimate responsibility for determining whether the

defendant is entitled to a sentencing reduction for acceptance of responsibility.’” United

States v. Singh, 923 F.2d 1039, 1043 (3d Cir. 1991).

       The District Court found that Green “disclaimed relevant conduct underlying the

offense, and therefore should be denied acceptance of responsibility pursuant to U.S.S.G.

3E1.1.” (Supp. App. at 27.) Indeed, Green claimed not to possess firearms, claimed not

to be a leader of the drug conspiracy, and claimed not to be involved with a specific

quantity of drugs. The record reveals substantial evidence to the contrary. Therefore, we

find that the District Court did not abuse its discretion by declining to grant Green a two-

level reduction for acceptance of responsibility.

                                             12
                                          IV.

      For the foregoing reasons, we vacate the judgment of the District Court and

remand for a new sentencing hearing consistent with this opinion.




                                           13
