                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3648
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Martin Martinez-Noriega,               *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: October 18, 2004
                                Filed: August 1, 2005
                                 ___________

Before COLLOTON, LAY, and BENTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       Martin Martinez-Noriega pled guilty to a charge of possession with intent to
distribute cocaine, and the district court1 sentenced him to a term of 151 months’
imprisonment. Martinez-Noriega contends that the district court’s computation of
the applicable United States Sentencing Guidelines violated his plea agreement with
the United States. He also seeks to raise a claim based on the Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005). We affirm.


      1
       The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
                                          I.

       On November 27, 2002, Omaha police officers executed a search warrant at
Martinez-Noriega’s residence and seized more than 200 grams of powder cocaine and
$5,503 in cash. A grand jury returned an indictment charging one count of possession
with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1),
and one count of criminal forfeiture directed at the seized currency. Martinez-
Noriega then entered into a plea agreement with the government, in which he agreed
to plead guilty to the drug trafficking offense and forfeit any claim to the currency.

       With regard to the sentence to be imposed according to the sentencing
guidelines, paragraph 10 of the agreement provided that “[p]ursuant to Rule
11(c)(1)(C), Fed. R. Crim. Pro., the parties hereby agree that you should be held
responsible beyond a reasonable doubt for at least 200 grams but less than 300 grams
of cocaine and, therefore, pursuant to U.S.S.G. §2D1.1, the defendant’s base offense
level is 20.” (Add. at 4). The agreement also stated that “the parties agree that you
have not met the criteria for an aggravating role but neither do you meet the criteria
for a mitigating role.” (Add. at 1). There was no reference in the agreement to
Martinez-Noriega’s criminal history category under Chapter 4 of the guidelines, or
to any potential adjustment to his offense level as a “career offender” under USSG
§ 4B1.1.

       Prior to the sentencing hearing, the United States Probation Office prepared a
pre-sentence investigation report (“PSR”). The PSR recommended that because
Martinez-Noriega had sustained two prior felony drug convictions, the court should
apply an offense level of 32 pursuant to the career offender guideline, USSG
§ 4B1.1(b)(C), less three levels for acceptance of responsibility pursuant to USSG
§ 3E1.1(b). Martinez-Noriega objected, arguing that because his plea agreement
stipulated that “the defendant’s base offense level is 20,” and did not refer to USSG
§ 4B1.1, the court was precluded from applying the career offender guideline. The

                                         -2-
district court disagreed, and computed Martinez-Noriega’s offense level as
recommended by the probation office. The court thus found a sentencing range of
151-188 months, and imposed a sentence at the bottom of that range.

                                          II.

       Federal Rule of Criminal Procedure 11(c)(1)(C) provides that the government
and a defendant may enter into a plea agreement specifying that the government will
“agree that a specific sentence or sentencing range is the appropriate disposition of
the case, or that a particular provision of the Sentencing Guidelines, or policy
statement, or sentencing factor does or does not apply (such a recommendation or
request binds the court once the court accepts the plea agreement).” The parties in
this case designated that paragraph 10 of the plea agreement, relating to “the
defendant’s base offense level,” was “[p]ursuant to Rule 11(c)(1)(C).” Thus, unlike
a case involving an agreement of the non-binding variety under Rule 11(c)(1)(B),
e.g., United States v. Gomez, 326 F.3d 971, 975 (8th Cir. 2003), once the district court
accepted the Martinez-Noriega plea agreement, it was bound to apply the
recommendation concerning a base offense level. The dispute in this case concerns
only how paragraph 10 of the plea agreement should be interpreted, and we review
the district court’s interpretation and enforcement of a plea agreement de novo.
United States v. DeWitt, 366 F.3d 667, 669 (8th Cir. 2004).

       As noted, paragraph 10 states that “the parties hereby agree that you should be
held responsible beyond a reasonable doubt for at least 200 grams but less than 300
grams of cocaine and, therefore, pursuant to U.S.S.G. § 2D1.1, the defendant’s base
offense level is 20.” The career offender guideline, which the district court ultimately
applied to determine Martinez-Noriega’s offense level, provides (with exceptions not
applicable here) that “if the offense level for a career offender from the table in this
subsection is greater than the offense level otherwise applicable, the offense level
from the table in this subsection shall apply.” USSG § 4B1.1(b). In Martinez-

                                          -3-
Noriega’s case, the offense level under the career offender guideline was greater than
the offense level otherwise applicable. Thus, Martinez-Noriega argues that because
the “base offense level” under § 2D1.1 would be rendered inapplicable if the career
offender enhancement of § 4B1.1 were applied, the existence of a specific stipulation
concerning the base offense level necessarily implied that his offense level would be
computed without regard to § 4B1.1.

       We reject Martinez-Noriega’s argument because we find it inconsistent with
the structure of the sentencing guidelines. Cf. 11 Williston on Contracts § 30:20, at
219 (4th ed. 1999) (“Where the subject matter of the contract between the parties lies
in an area covered by federal law, they necessarily adopt, as a portion of their
agreement, the applicable provisions of the particular Act of Congress.”). The
“Application Instructions” for use of the guidelines set forth nine sequential steps to
be followed by the sentencing court in applying the provisions of the guidelines
manual. The second step calls for the court to “[d]etermine the base offense level .
. . contained in the particular guideline in Chapter Two.” USSG § 1B1.1(b). The
next three steps direct the court to apply adjustments from Chapter Three of the
guidelines. The sixth step then states that the court should “[d]etermine the
defendant’s criminal history category as specified in Part A of Chapter Four,” and
“[d]etermine from Part B of Chapter Four any other applicable adjustments.” USSG
§ 1B1.1(f) (emphasis added). These adjustments from Part B include the enhanced
offense levels for career offenders pursuant to USSG § 4B1.1.

       The guidelines contemplate, therefore, that even when a defendant ultimately
is subject to an adjustment pursuant to the career-offender guideline, the court will
first compute the defendant’s “base offense level” under Chapter Two of the
guidelines. By stipulating to a base offense level of 20 pursuant to USSG § 2D1.1,
the parties in this case definitively resolved the determination called for by step two
of the application instructions, § 1B1.1(b), but they did not address whether an
adjustment applied at step six of the process, § 1B1.1(f), pursuant to USSG § 4B1.1.

                                         -4-
       The terminology of the guidelines supports this view. “Base offense level” is
a term of art used in Chapter Two of the guidelines. Chapter Two pertains to “offense
conduct,” and the chapter is organized by offenses. “Each offense has a
corresponding base offense level and may have one or more specific offense
characteristics that adjust the offense level upward or downward.” USSG Ch. 2,
intro. comment. (emphasis added). The “base offense level” may be increased or
decreased according to adjustments prescribed by Chapters Two and Three of the
guidelines.

       Chapter Four, by contrast, relates to “Criminal History and Criminal
Livelihood.” When a defendant qualifies as a “career offender,” § 4B1.1 does not
establish a “base offense level.” Instead, notwithstanding imprecise use of
terminology reflected in some of our cases, see post at 10-11, it sets an “offense
level” that will apply if it is greater than the “offense level” otherwise applicable –
that is, the “offense level” that otherwise would apply based on the “base offense
level” of Chapter Two, increased or decreased by specific offense characteristics and
adjustments from Chapter Two and Chapter Three. See, e.g., United States v.
LaBonte, 520 U.S. 751, 753-54 (1997) (explaining that the Sentencing Commission
sought to implement 28 U.S.C. § 994(h) “by promulgating the ‘Career Offender
Guideline,’ which created a table of enhanced total offense levels to be used in
calculating sentences for ‘career offenders.’ . . . [The Guideline] assigns the
appropriate offense level based on the so-called ‘offense statutory maximum.’”)
(emphases added); United States v. Zimmer, 299 F.3d 710, 721 (8th Cir. 2002) (“The
district court applied the otherwise applicable adjusted base offense level of 40 and
not the applicable career offender offense level of 37.”); United States v. Gomez, 271
F.3d 779, 781 (8th Cir. 2001) (“Because the offense level enhanced by the career
offender provision is greater than the base offense level, the career offender offense
level controls.”); United States v. Collins, No. 03-4966, 2005 WL 1427431, at * 6
(4th Cir. June 20, 2005) (“Even if the judge had sentenced Collins at a base offense



                                         -5-
level of twelve, the application of the career offender enhancement still would have
increased his total offense level to a thirty-two.”) (emphasis in original).

       By securing an agreement that “pursuant to USSG § 2D1.1,” the “base offense
level” is a certain number, a defendant has solidified where he will start in Chapter
Two of the guidelines, but he has not protected himself against adjustments in
Chapter Four. A defendant, of course, is uniquely qualified to know his own criminal
history. If he perceives a risk that his offense level may be enhanced under Chapter
Four once the probation office has completed its thorough investigation of his
criminal history, then he may seek to negotiate an understanding about the criminal
history provisions. But he should not take comfort in an agreement that only resolves
the “base offense level” under Chapter Two, because it does not bind the court with
respect to Chapter Four. Accordingly, the district court did not err in applying the
career-offender guideline to Martinez-Noriega.

                                         III.

       In a letter filed pursuant to Federal Rule of Appellate Procedure 28(j),
Martinez-Noriega raised the possible applicability to his case of the Supreme Court’s
decision in United States v. Booker, 125 S. Ct. 738 (2005), which was pending when
this case was submitted. Booker held that the Sixth Amendment precludes a
sentencing judge from imposing a sentence under the mandatory federal sentencing
guidelines that exceeds the punishment that could be imposed based solely on facts
admitted by the defendant or proved to a jury beyond a reasonable doubt (other than
prior convictions). Id. at 756. As a remedy, the Court declared that the sentencing
guidelines are effectively advisory in all cases. Id. at 757.

       Martinez-Noriega did not challenge the constitutionality or mandatory nature
of the guidelines in the district court. Thus, assuming arguendo that he may raise a
Booker claim for the first time by way of a Rule 28(j) letter, we review the claim for

                                         -6-
plain error. See Fed. R. Crim. P. 52(b); United States v. Pirani, 406 F.3d 543, 549-50
(8th Cir. 2005) (en banc). Because the district court determined the applicable
sentencing range pursuant to the career-offender guideline, which applies based on
the defendant’s prior convictions, this case involves no violation of the Sixth
Amendment. See Booker, 125 S. Ct. at 756 (“Any 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 must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.”); United States v.
Marcussen, 403 F.3d 982, 984 (8th Cir. 2005). In light of Booker, however, the
district court’s imposition of sentence did involve non-constitutional error, because
the district court applied the mandatory guidelines, while Booker subsequently held
that the guidelines are only advisory. The question presented by the supplemental
filing, therefore, is whether the district court’s application of a mandatory sentencing
guideline range to Martinez-Noriega is a plain error warranting relief.

       As our court reiterated in Pirani, plain error review is governed by the four-part
test set forth in United States v. Olano, 507 U.S. 725, 732-37 (1993). See also
Johnson v. United States, 520 U.S. 461, 466-67 (1997). In order to warrant
correction, there must be an error, that is plain, that affected the defendant’s
substantial rights, and that “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Johnson, 520 U.S. at 466-67. The first two
factors – an error that is plain – are satisfied here. See Pirani, 406 F.3d at 550.
However, to demonstrate that the error affected his substantial rights, the defendant
also must demonstrate that there was “a ‘reasonable probability,’ based on the
appellate record as a whole, that but for the error he would have received a more
favorable sentence.” Id. at 552.

      We do not believe that Martinez-Noriega has demonstrated such a probability.
Although he was sentenced at the low end of the applicable guideline range, a low-
end sentence is insufficient to demonstrate a reasonable probability that a more

                                          -7-
favorable sentence would have been imposed absent the mandatory guidelines. Id.
at 553. The district court did not indicate that it thought the sentence imposed was
unreasonable, or that it would have imposed a lesser sentence if not bound by the
guidelines. The record as a whole does not show any other basis to establish a
reasonable probability of a more lenient sentence under an advisory guideline regime.
To the contrary, the undisputed presentence report shows that Martinez-Noriega was
a career offender under the guidelines, that he scored 15 points and qualified for
criminal history category VI even without regard to his career-offender status, and
that he was twice deported from the United States in 1996 and 2001 after felony
convictions, only to reenter illegally and commit another felony drug offense after
each removal. (PSR ¶¶ 38-46). Therefore, we conclude that Martinez-Noriega has
not demonstrated a plain error warranting relief under Rule 52(b) as applied in Pirani.

                                   *      *       *

      The judgment of the district court is affirmed.

LAY, Circuit Judge, concurring in part and dissenting in part.

C     Booker Challenge to Martinez-Noriega’s Sentence

      Although I am bound by our en banc decision in United States v. Pirani, 406
F.3d 543 (8th Cir. 2005), I write separately to voice my agreement with Judge Bye’s
thoughtful concurrence and dissent in Pirani, 406 F.3d at 562.

       A panel of this court must engage in pure speculation when reviewing these
sentences, based upon often-scant lower court records which reveal little about the
district judge’s inclinations in any given case. It is indeed better to vacate and
remand the majority of these cases to the judge who can say with surety what he or
she would have done in light of Booker, rather than having appellate courts engage

                                         -8-
in such guesswork. The failure or willingness of a district judge to consider a then-
imaginary universe should not determine whether a defendant’s sentence is
reconsidered after Booker.


C     Application of the Career Offender Guideline

       I respectfully dissent from the majority’s holding on the plea agreement issue.
The district court resolved this case by relying on United States v. Gomez, 326 F.3d
971 (8th Cir. 2003), which the majority (and Martinez-Noriega) rightly pointed out
is different than the case at bar. In Gomez, the defendant complained that the
prosecutor promised to use a base offense level of 32. Id. at 974. When the
sentencing court applied the career offender enhancement and raised Gomez’s base
offense level, this court found no error because the “sentencing stipulations in the
plea agreement were clearly stated to be nonbinding on the sentencing court.” Id. at
975. Moreover, Gomez had clearly “proffered cooperation and acceptance of
responsibility in bad faith,” and therefore his claim that he had been wrongly induced
into pleading guilty was ill-received. Id. These key facts are not present in the case
at bar, so Gomez is not analogous. It was error for the district court to rely on Gomez
for the proposition that, as a matter of law, Martinez-Noriega’s plea agreement did
not foreclose application of the career offender guideline.

       The majority commits a different error in affirming the district court. It
resolves this case by first examining the structure of the sentencing guidelines and
determining what the “guidelines contemplate.” Majority opinion at 4. From there
it derives the meanings of the terms to which the parties agreed. Id. at 5 (“By
securing an agreement to a ‘base offense level,’ a defendant has solidified where he
will start in Chapter Two of the guidelines, but he has not protected himself against
adjustment in Chapter Four.”).




                                         -9-
       This analytical approach is backwards. Settled law governing the interpretation
of plea agreements requires us to ask first what the parties contemplated pursuant to
contract law principles. Contract law compels this court to either enforce an offense
level of twenty or void the entire agreement as contrary to express public policy.

      C      The Parties’ Intent as Derived From the Generally Prevailing
             Meaning of the Phrase “Offense Level” in the Career Offender
             Guideline

       Martinez-Noriega alleges that the district court erroneously interpreted the
parties’ plea agreement when it held that the provision in paragraph ten of the
agreement, which bound the court to apply U.S.S.G. § 2D1.1 (2003), did not in any
way preclude the court from sentencing Martinez-Noriega as a career offender,
pursuant to U.S.S.G. § 4B1.1.2

        When a dispute arises over the meaning of a plea agreement, the court must
“discern the intent of the parties as expressed in the plain language of the agreement
when viewed as a whole.” United States v. Taylor, 258 F.3d 815, 819 (8th Cir. 2001)
(italics and internal citations omitted). This analysis requires consideration of what
the parties reasonably knew or understood at the time they entered into the agreement.
See Rest. (Second) of Contracts § 202 cmt. b; United States v. Cosimi, 2005 U.S.
Dist. LEXIS 8900 at *19 (S.D.N.Y. 2005). Where a term used in the plea agreement
has a “generally prevailing meaning,” that meaning controls unless a different
intention is clearly manifested. Restatement (Second) of Contracts § 202(3)(a).
Trade usage of a term is also highly relevant to a determination of the parties’
intended meaning. Id. at § 202(5) (“Wherever reasonable, the manifestations of
intention of the parties to a promise or agreement are interpreted as consistent with



      2
       Martinez-Noriega did not allege that the district court’s “computation” was in
error. See majority opinion at 1.

                                        -10-
each other and with any relevant course of performance, course of dealing, or usage
of trade.”).

       For at least fifteen years, the generally prevailing meaning of the career
offender guideline in the Eighth Circuit has been that it set a “base offense level.”
See, e.g., United States v. Light, 2005 U.S. App. LEXIS 8043 at *13 (“Under
U.S.S.G. § 4B1.4(b)(3)(B), the Armed Career Criminal provision, his base offense
level was 33.”); United States v. Mohr, 407 F.3d 898, 900 (8th Cir. 2004) (reinstated
May 6, 2005) (“As a career offender Mohr’s base offense level was 34 . . . .”); United
States v. Warren, 361 F.3d 1055, 1056 (8th Cir. 2004) (opinion by J. Colloton, who
now pens the majority opinion) (“the district court applied a base offense level of 37
under the career-offender guideline”); United States v. Peltier, 276 F.3d 1003, 1005
(8th Cir. 2002) (“[a]s a career offender, Peltier’s base offense level was 34”); United
States v. Beltran, 122 F.3d 1156, 1160 (8th Cir. 1997) (“[a]s a career offender,
Beltran was subject to a base offense level of 34”); United States v. Mendoza-
Figueroa, 65 F.3d 691, 694 (8th Cir. 1995) (en banc) (“a career offender is assigned
a high base offense level”); United States v. Ford, 918 F.2d 1343, 1350 (8th Cir.
1990) (“the guidelines . . . permit a court to reduce a career offender’s base offense
level by two points if the career offender accepts responsibility”).

       Nor is the Eighth Circuit the only jurisdiction in which the career offender
guideline is customarily assumed to set a “base” offense level. The majority of our
sister circuits follow the same practice. See United States v. Jones, 2005 U.S. App.
LEXIS 14558 (2d Cir. 2005) (“Without a Career Offender finding, Jones’s base
offense level would have been 12 . . . . Because of the Career Offender finding,
however, the district court applied a base offense level of 32 . . . . [T]he Career
Offender guideline required the district court to change Jones’s base offense level in
accordance with a table, see U.S.S.G. § 4B1.1(b), which sets a defendant’s base
offense level . . . .”); United States v. Hawkins, 2005 U.S. App. LEXIS 11159 at *3
(7th Cir. 2005) (“and his base offense level as a career offender was 32. See U.S.S.G.

                                         -11-
§ 4B1.1(b)-(c)”); United States v. Lancaster, 2005 U.S. App. LEXIS 13215 at *9
(11th Cir. 2005) (“Lancaster’s status as a career offender set his base offense level at
37”); United States v. Curtis, 2005 U.S. App. LEXIS 10852 (11th Cir. 2005) (stating
that the district court “calculated Curtis’s base offense level on the basis of . . . career
offender status” and noting U.S.S.G. § 4B1.1(b) instructs “that the offense level be
set at the greater of either the offense level for a career offender under § 4B1.1 or the
offense level otherwise applicable”); United States v. Burhoe, 409 F.3d 5, 9 (1st Cir.
2005) (“his base offense level was computed to be 32 based on his career offender
status . . . . See U.S.S.G. § 4B1.1; 18 U.S.C. § 2113(a)); United States v. Valenzuela-
Quevedo, 407 F.3d 728, 730 (5th Cir. 2005) (“under U.S.S.G. § 4B1.1, the
appropriate base offense level was 37”); United States v. Schlifer, 403 F.3d 849, 851
(7th Cir. 2005) (“Under the career offender guideline, Schlifer’s base offense level
increased to 32 and his criminal history category was VI regardless. U.S.S.G. §
4B1.1”); United States v. MacKinnon, 401 F.3d 8, 9-10 (1st Cir. 2005) (“MacKinnon
was a career offender pursuant to U.S.S.G. § 4B1.1. MacKinnon’s resulting base
offense level as calculated in the PSR was 37 . . . .”); United States v. Hondo, 366
F.3d 363, 364 (4th Cir. 2004) (“Inclusion of these convictions qualified Hondo as a
career offender under section 4B1.1 of the Guidelines, which . . . also increased the
base offense levels for both the felon in possession of a firearm charge and the drug
charge.”); United States v. Heard, 359 F.3d 544, 547 n.2 (D.C. Cir. 2004) (“Guideline
§ 4B1.1(b) . . . mandates a base offense level of (at least) 34 when . . .”); United
States v. Chingman, 2004 U.S. App. LEXIS 1810 at **15 (6th Cir. 2004) (“Under the
career offender provisions, the forty-year maximum period would have corresponded
to a base offense level of 32 (U.S.S.G. § 4B1.1(b)), which would then have been
reduced by three points for acceptance of responsibility, lowering the offense level
to 31.”); United States v. Lawrence, 349 F.3d 724, 726 (4th Cir. 2003) (“the district
court found that Lawrence was a de facto career offender and departed from the
previously calculated offense level of 22 to the base offense level of 32 for a career
offender. The combination of criminal history category VI and a base offense level
of 32 resulted in . . . .”); United States v. Carter, 2003 U.S. App. LEXIS 22747 at **4

                                           -12-
(3d Cir. 2003) (“The career offender guideline increased the defendant’s base offense
level to 32 which, when reduced by three levels for Carter’s acceptance of
responsibility, resulted in a criminal offense level of 29.”).

       These citations from the Eighth Circuit and other circuits cannot be passed off
as the mere “imprecise use of terminology.” Majority opinion at 5. The well-
documented and entrenched understanding of the phrase “offense level” in the career
offender guideline runs contrary to the majority’s claim that “§ 4B1.1 does not
establish a ‘base offense level.’” Id. According to the prevailing meaning and
custom of usage in this jurisdiction and others, §§ 2D1.1 and 4B1.1 have both been
understood to set an “offense level,” which is commonly called a “base” offense level
under both guidelines. The only difference is that the base offense level in § 4B1.1
supplants the base offense level in § 2D1.1 if career offender status applies to the
defendant. The totality of the various adjustments and departures then leads to the
defendant’s “total” offense level.

      No cases cited by the majority disprove my claim as to the generally prevailing
meaning of “offense level” in § 4B1.1. The majority cites LaBonte, Zimmer, Gomez,
and Collins, see majority opinion at 5, to support its position. However, the quoted
language from these cases does not preclude or contradict the concept of a “base”
offense level in § 4B1.1. In light of the plethora of cases declaring that § 4B1.1
imposes a “base offense level,” any cases cited by the majority to demonstrate the
contrary only prove an ambiguity, at best.3 Nor does the majority’s reliance on


      3
        Of course, any ambiguity in § 4B1.1 must be construed in Martinez-Noriega’s
favor. “Where a plea agreement is ambiguous, the ambiguities are construed against
the government.” United States v. Thompson, 403 F.3d 1037, 1039 (8th Cir. 2005)
(citing United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc)); see also
Rest. (Second) of Contracts § 206 (“In choosing among the reasonable meanings of
a promise or agreement or a term thereof, that meaning is generally preferred which
operates against the party who supplies the words . . . .”); Andis, 333 F.3d at 890

                                        -13-
Williston on Contracts, majority opinion at 4, aid its cause; of course the parties
adopted the “applicable provisions of the guidelines.” Id. This does not help us
resolve the obvious contradiction between the majority’s construction of § 4B1.1 and
the construction which has generally prevailed across the nation.

       Lastly, the majority’s holding is just an impractical solution. The distinction
between a “base offense level” under Chapter Two, and a plain “offense level” under
Chapter Four, is derived from the same guideline text that has produced this circuit’s
fifteen-year practice of referring to the career offender’s “base” offense level. In this
sense, the utility and viability of the majority’s proffered distinction has already been
foretold; it is empirically denied.

       The prevailing meaning of the phrase “offense level” in the career offender
guideline suggests that when the Assistant United States Attorney (AUSA) and
Martinez-Noriega agreed to a “base offense level,” they were agreeing to preclude the
application of the career offender guideline, which supplants the base offense level
specified in the plea agreement. Accordingly, I dissent.




(“any ambiguities” in plea agreements “will be read against the Government and in
favor of a defendant’s appellate rights”); Cosimi, 2005 U.S. Dist. LEXIS 8900, at *18
(“plea agreements, which are drafted by the Government, are construed strictly
against the government”) (internal quotation marks and citation omitted).

      Even if the majority’s flimsy distinction between a “base offense level” and an
“offense level” is correct, the majority’s holding should not be applied retrospectively
to Martinez-Noriega, whose plea agreement was clearly negotiated during an era
when the career offender guideline was presumed to set a “base” offense level that
supplanted the “base” offense level designated in Chapter Two of the guidelines.

                                          -14-
      C      Public Policy Considerations

      In my view, the district court never should have accepted this one-sided, open-
ended plea agreement; it should have forced the AUSA to negotiate fairly with
Martinez-Noriega from the start, by specifying clearly the meaning of the term “base
offense level,” the sentencing range at issue, and any as-yet-unresolved factors to
which the parties would not stipulate (e.g., criminal history).

       A contract is unenforceable, or even void, where it runs contrary to public
policy. See McBrearty v. U.S. Taxpayers Union, 668 F.2d 450, 450-51 (8th Cir.
1982); 15-79 CORBIN ON CONTRACTS § 79.1 (2004). The guidelines articulate
several policy statements governing the quality and specificity of plea agreements
which must be satisfied before a court of law can approve the agreement. See
U.S.S.G. § 6B1.2 (listing standards for acceptance of plea agreement). Stipulations
to plea agreements are likewise held to certain standards. See U.S.S.G. § 6B1.4.
Stipulations are supposed to identify, with “meaningful specificity,” a “sentencing
range.” U.S.S.G. § 6B1.4(a)(3) (emphasis added). The stipulation must also explain
why that sentencing range is “appropriate.” Id. The commentary following this
policy statement further admonishes that plea agreements “must fully and accurately
disclose all factors relevant to the determination of a sentence.” Id. at cmt.
(emphasis added). The policy statements contained in the guidelines are “well
defined and dominant,” and are not merely ascertained “from general considerations
of supposed public interests.” W.R. Grace & Co. Local Union 759, 461 U.S. 757, 766
(1983) (citations omitted). The AUSA should be intimately familiar with these
policies.

      The plea agreement in this case lacked “meaningful specificity” and full and
accurate disclosure of all relevant sentencing factors because it did not identify
Martinez-Noriega’s criminal history, much less propose a sentencing range. If the
Government is allowed to omit criminal history and a sentencing range, the parties

                                        -15-
are not forced to discuss the implications that criminal history might have upon the
ultimate sentence. This means the Government is essentially inducing defendants
into making plea agreements before they are fully informed as to what will happen
to them if they plead guilty versus what will happen to them if they proceed to trial.
This is wrong. I am not suggesting that the Government must actually reach
agreement on every factor that could impact a sentence; an AUSA can certainly
identify a factor critical to sentencing, warn the defendant clearly that the factor may
increase the severity of the defendant’s sentence such that it could effectively nullify
the benefit of the plea deal, and state clearly that no agreement has been reached
between the parties as to that term. But if the Government is going to make plea
agreements and stipulations, it must be forthcoming and identify “all factors relevant
to the determination of a sentence,” U.S.S.G. § 6B1.4 at cmt., especially the
detrimental effect that one’s criminal history may have upon a sentencing range.4 The
AUSA opined that he must always leave terms open in a plea agreement because he
is never 100 percent certain of what pre-trial services will uncover about a given
defendant. That argument fails miserably. First, the guidelines anticipate this
scenario and instruct the drafter of the stipulations to identify “all areas of agreement,
disagreement, and uncertainty that may be relevant to the determination of a
sentence.” U.S.S.G. § 6B1.4 cmt.; see also id. at § 6B1.4(b). “Full disclosure” is the
objective. Id. at cmt. If the AUSA was not 100 percent sure of what pre-trial services
would uncover about Martinez-Noriega, the plea agreement should have identified
those remaining areas of uncertainty that could have impacted Martinez-Noriega’s

      4
        The majority implies that since the defendant “is uniquely qualified to know
his own criminal history,” it is his or her responsibility to “seek to negotiate an
understanding about the criminal history provisions.” Majority opinion at 5. But this
assumes that defendants are aware of the career offender guideline and how it works,
and that defendants understand the difference between a “base offense level” and an
“offense level” – a preposterous series of assumptions indeed, considering that this
circuit, for over a decade, has apparently missed the distinction made by the majority
in this case. At any rate, it is not the defendant’s burden to establish that he or she is
a career offender; it is the Government’s burden.

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sentence. Of course, in this case the AUSA’s argument is disingenuous at best
because (1) the AUSA admitted in open court that he could have verified Martinez-
Noriega’s criminal history if he felt like it, and (2) Martinez-Noriega argued in his
brief and at oral argument that the AUSA knew his criminal history and the
Government did not dispute this. Most importantly, the AUSA’s justification fails
because it does not explain why an AUSA must wait to obtain the contents of a pre-
sentence report (PSR) until after a defendant is induced into pleading guilty.

       The system does not have to work this way. It makes little sense to craft a plea
agreement before knowing the important information relevant to sentencing. Under
the present scheme, defendants are commonly presented with some new factor (after
pleading guilty) that was not discussed in the plea negotiations and which inevitably
lengthens the sentence. Making plea deals before the AUSA possesses all the
information is a problematic tactic that almost always inures to the benefit of the
AUSA, who is highly unlikely to admit that an augmented sentence would be
improper.

       The AUSA in this case failed to justify his poor handling of this case. I doubt
that a solid justification exists because the practice is at odds with an AUSA’s duty
to the Government. As the Third Circuit has said,

      Our criminal justice system is bottomed on several unwavering
      principles. One of those principles was recognized long ago by Justice
      Sutherland when he stated that a prosecuting attorney “is the
      representative not of an ordinary party to a controversy, but of a
      sovereignty whose obligation to govern impartially is as compelling as
      its obligation to govern at all; and whose interest, therefore, in a criminal
      prosecution is not that it shall win a case, but that justice shall be done.
      As such, [a prosecutor] is in a peculiar and very definite sense the
      servant of the law, the twofold aim of which is that guilt shall not escape
      or innocence suffer. [One] may prosecute with earnestness and
      vigor–indeed, [one] should do so. But, while [a prosecutor] may strike

                                          -17-
      hard blows, he [or she] is not at liberty to strike foul ones. It is as much
      [the prosecutor’s] duty to refrain from improper methods calculated to
      produce a wrongful conviction as it is to use every legitimate means to
      bring about a just one.”

Dunn v. Colleran, 247 F.3d 450, 451 (3d Cir. 2001) (quoting Berger v. United States,
295 U.S. 78, 88-89 (1935), overruled on other grounds by Stirone v. United States,
361 U.S. 212 (1960)). Likewise, an AUSA has a duty to refrain from improper
methods calculated to produce plea agreements based on less than full and fair
disclosure.

       Because the AUSA failed to handle this case in a forthcoming manner,
confusion and an appeal resulted. The AUSA’s conduct contributed directly to an
unnecessary usurpation of judicial resources and federal revenue. Such inefficiencies
will continue unless this court and our sister jurisdictions require plea agreements to
conform to the express public policy of the guidelines. There is no reason why plea
agreements cannot contain clear, full and accurate disclosures of factors relevant to
sentencing, including a good faith recommendation on the sentencing range which
the Government seeks. Doing so would obviate the need for a great number of
criminal sentencing appeals.

        This court’s refusal to intervene and stop the AUSA’s tactics is deeply
troubling. The district court’s sentence should be vacated and this matter remanded
for re-sentencing pursuant to a base offense level of 20 and the district court should
be instructed not to apply the career offender guideline. In addition, because plea
agreements such as the one agreed to here are contrary to public policy, this court
should hold that from this point forward, district courts must require plea agreements
to (a) fully and accurately disclose all factors relevant to the determination of a




                                         -18-
sentence, and (b) identify an appropriate sentencing range with meaningful
specificity.

     For the above-stated reasons, I dissent.
                     ______________________________




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