              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 09a0018n.06
                          Filed: January 9, 2009

                                             No. 07-6011

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA

        Plaintiff-Appellant,

                v.                                      On Appeal from the United
                                                        States District Court for
CHRISTOPHER HODGE,                                      the Western District of Kentucky

        Defendant-Appellee.
                                                    /

Before:         GUY and GRIFFIN, Circuit Judges; and WATSON, District Judge.*

        MICHAEL H. WATSON, District Judge.                    Christopher Hodge (“Hodge”) pled

guilty to one count of illegally possessing counterfeit currency, in violation of 18 U.S.C.

§ 472, pursuant to a plea agreement under Fed. R. Crim. P. 11(c)(1)(C). At sentencing, the

district court accepted the plea agreement and sentenced Hodge to probation plus four

months of home incarceration. On appeal, the Government challenges the sentence as being

contrary to the terms of the Fed. R. Civ. P. 11(c)(1)(C) plea agreement. For the following

reasons, we vacate Hodge’s sentence and remand for further proceedings.




        *
          The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 07-6011                                                                           2
United States of America v. Christopher Hodge

                                                I.

       On August 26, 2006, Hodge was arrested in Shepherdsville, Kentucky for failing to

pay for gas at a service station. Upon his arrest, Hodge was searched and seven counterfeit

Federal Reserve Notes were found in his wallet. The Notes were four counterfeit $50 bills,

one counterfeit $20 bill, and two counterfeit $10 bills. A brown mark was on one of the

counterfeit $10 bills, indicating an unsuccessful attempt to pass the bill.

       On February 6, 2007, a federal grand jury in Louisville, Kentucky indicted Hodge on

one count of possessing counterfeit currency with the intent to defraud. On

April 23, 2007, the parties entered into a plea agreement, pursuant to Fed. R. Crim. P.

11(c)(1)(C), in which Hodge agreed to plead guilty to the Indictment. The plea agreement

set forth the following relevant provisions:

               10.    At the time of sentencing, the United States will
                      -agree that a sentence at the low end of the applicable
                      Sentencing Guideline range is the appropriate disposition
                      of this case.

                                                     ***

               11.    Both parties have independently reviewed the Sentencing
                      Guidelines applicable in this case and in their best judgment
                      and belief, conclude as follows:

                                                     ***

                              B.      The Criminal History of defendant shall
                                      be determined upon completion of the
No. 07-6011                                                                              3
United States of America v. Christopher Hodge

                                      presentence investigation, pursuant to
                                      Fed. R. Crim. P. 32(c) . . . .

                                                    ***

               13.    . . . Defendant understands and agrees that nothing in this
                      plea agreement should be construed as a waiver by the
                      United States of its right to appeal the sentence under
                      18 U.S.C. § 3742.

                                                    ***

               20.    If the court refuses to accept this agreement and impose
                      sentence in accordance with its terms pursuant to Fed. R.
                      Crim. P. 11(c)(1)(C), this Agreement will become null and
                      void and neither party shall be bound thereto, and defendant
                      will be allowed to withdraw his guilty plea.

                                                    ***

               22.    This document states the complete and only Plea Agreement
                      between the United States Attorney . . . and defendant in this
                      case, and is binding only on the parties to this Agreement . . .
                      and cannot be modified other than in writing that is signed by
                      all parties or on the record in Court . . . .

       On April 23, 2006, Hodge entered his guilty plea before the district court. During the

plea colloquy, the following discussion occurred:

               [David Weiser for the Government]: Paragraph 10 of the
                           plea agreement states the recommendation of the
                           United States, and of the parties really, and the
                           parties have agreed that a sentence at the low
                           end of the applicable sentencing guideline range
                           is the appropriate disposition of this case, and the
                           United States has also agreed that a two-level
No. 07-6011                                                                           4
United States of America v. Christopher Hodge

                              reduction of the applicable offense level is
                              appropriate here for acceptance of responsibility.

                                                   ***

               [Court]:       What is that agreed upon sentence?

               [Weiser]:      The low end of the guidelines.

               [Court]:       That’s your agreed upon sentence, the low
                              end of the guideline?

               [Patrick Bouldin for Hodge ]:       That’s correct.

                                                   ***

               [Court]:       Mr. Weiser, you say the low end. What do you
                              anticipate his sentence will be?

               [Weiser]:      Well, Your Honor, his criminal history is going to
                              dictate that. We think that he’s going to be either a
                              II or a III . . . .

                                                   ***

               [Court]:       Mr. Weiser, have you conferred with Probation to
                              try to get their best guess of what the calculations
                              might be?

               [Weiser]:      I have not, Your Honor.

               [Court]:       Mr. Bouldin, Have you?

               [Bouldin]:     I have not either, Your Honor. They have provided
                              us, as they do, with his criminal history from the
                              prebail report.

               [Court]:       The U.S. has or Probation?
No. 07-6011                                                                                5
United States of America v. Christopher Hodge


               [Bouldin]:     Probation has. Based upon that, I’ve estimated
                              his criminal history is a III, which would be a Zone
                              B sentence, which the low end would be a period
                              of probation plus four months home detention.

               [Court]:       So you anticipate that his sentence here, his agreed
                              upon sentence that I may accept or reject, is probation
                              plus four months home detention?

               [Bouldin]:     Yes, Your Honor.

               [Court]:       Is that what you said?

               [Bouldin]:     Yes, that is correct. Zone B sentence.

               [Court]:       Zone B sentence, okay. And has he served any
                              time already?

       At this point, the district court engaged in a discussion with counsel regarding whether

the three months Hodge served in jail should count towards the four months home detention.

At the end of the discussion, the district court stated:

               [Court]:       Okay, I just want to be sure we are all on the same
                              page here. You are on that page, too, Mr. Weiser?

               [Weiser]:      Yes, Your Honor.

               [Court]:       It doesn’t matter - - if I did think that’s right, then it
                              doesn’t matter whether I call it probation or supervised
                              release to you either, right?

               [Weiser]:      I don’t think the United States will lose any sleep over
                              that.

       The district court then engaged in the following dialogue with Hodge.
No. 07-6011                                                                                6
United States of America v. Christopher Hodge

               [Court]:       And you heard what Mr. Weiser said about your plea
                              agreement?

               [Hodge]:       Yes, ma’am.

               [Court]:       Did you understand it?

               [Hodge]:       Yes, ma’am.

               [Court]:       Do you agree with it?

               [Hodge]:       Yes, ma’am.

               [Court]:       I want to ask you a few questions . . . Is it your
                              understanding that you and the Government have
                              agreed that the fair thing, the right sentence, is for you
                              to serve four months on home detention and have a
                              period of supervision that may be called probation,
                              may be called supervised release?

               [Hodge]:       Yes, ma’am.

                                                       ***

               [Court]:       Okay. Then there were numbers tossed around.
                              You understand that this business about offense
                              level 7 and criminal history III, do you understand
                              that’s all part of a guideline calculation in federal
                              court?

               [Hodge]:       Yes, ma’am.

               [Court]:       And do you understand that those guidelines are
                              intended to help federal judges reach the right
                              sentence?

               [Hodge]:       Yes, ma’am.

                                                       ***
No. 07-6011                                                                            7
United States of America v. Christopher Hodge

               [Court]:       But you understand that you and the Government have
                              agreed that you do want me in this case to follow
                              those guidelines and to go to the low end of the guidelines?

               [Hodge]:       Yes, ma’am.

                                                   ***

               [Court]:       Okay . . . I know you’ve agreed the guidelines will control
                              here, but I can’t even figure out what the guidelines are
                              until after the Probation Office investigates your case and
                              reveals the report to you and to the Government, and you
                              both get to object to it if you want to. Then I resolve
                              any unresolved objections and proceed to sentence you.
                              Do you understand that’s the practice we follow here?

               [Hodge]:       Yes, ma’am.

The district court then proceeded to accept Hodge’s guilty plea and conditionally accepted

the plea agreement.

       On June 4, 2007, the U.S. Probation office completed a Presentence Investigation

Report (“PSR”) on Hodge. The PSR calculated Hodge’s Criminal History score at thirteen

which established a Criminal History category of VI. This Criminal History category, and

an offense level of seven, established Hodge’s recommended guideline sentencing range as

fifteen to twenty-one months of incarceration.

       On July 12, 2007, the matter was set for sentencing. The district court noted that there

was no agreement with respect to the Criminal History category. Further, the district court

found that Hodge had a Criminal History category of VI and an offense level of seven, which

resulted in a Guideline range of fifteen to twenty-one months of incarceration. The district
No. 07-6011                                                                            8
United States of America v. Christopher Hodge

court accepted the plea agreement and sentenced Hodge to a term of two years probation with

four months home detention. The district court stated it was creating a variance from the plea

agreement, which was supported by the “parties’ understanding and agreement [at the plea

hearing] . . . that the parties were willing to agree to a sentence of probation, plus four

months.”

       The Government objected to the sentence at the hearing and argued it never agreed

to a sentence of four months. The Government asserted if that was the agreed sentence, it

would have been specifically stated in writing in the plea agreement. The Government

moved to withdraw from the plea agreement, pursuant to Paragraph 20, and the district court

denied the Government’s request. This appeal followed.

                                                 II

       Fed. R. Crim. P. 11(c)(1)(C), states

       (c)     Plea Agreement Procedure.

               (1)    In General. An attorney for the government and the
                      defendant’s attorney, or the defendant when proceeding
                      pro se, may discuss and reach a plea agreement. The
                      court must not participate in these discussions. If the
                      defendant pleads guilty . . . to either a charged offense or a
                      lesser or related offense, the plea agreement may specify
                      that an attorney for the government will:

                                                ***

                      (C)     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
No. 07-6011                                                                            9
United States of America v. Christopher Hodge

                              factor does or does not apply (such a recommendation
                              or request binds the court once the court accepts
                              the plea agreement).

       Once a district court accepts a Fed. R. Crim. P. 11(c)(1)(C) plea agreement, it is bound

by the bargain. United States v. Mendall, 905 F.2d 970, 972 (6th Cir. 1990) (citing United

States v. Holman, 728 F.2d 809, 813 (6th Cir. 1984)). “The district court is not authorized

to go beyond the confines of Rule 11 in accepting or rejecting plea agreements.” United

States v. Skidmore, 998 F.2d 372, 375 (6th Cir. 1993) (citing United States v. Partida-Parra,

859 F.2d 629, 632 (9th Cir. 1988)). “Nothing in the rules even remotely allows the district

court to accept a guilty plea but rewrite the plea agreement, even if the modified agreement

is more favorable to the defendant.” Id. (citing United States v. Oelsen, 920 F.2d 538, 540

(8th Cir. 1990)). Furthermore, this Court has yet to adopt the position that a district court

may modify or reform a Rule 11(c)(1)(C) sentence on the basis of a mutual mistake of fact.

See United States v. Peveler, 359 F.3d 369, 378 n.4 (6th Cir. 2004).

       “Plea agreements are contractual in nature. In interpreting and enforcing them, we

are to use traditional principles of contract law.” United States v. Robinson, 924 F.2d 612,

613 (6th Cir. 1991) (citations omitted). Moreover, “any ambiguities in the language of a plea

agreement must be construed against the government.” United States v. Randolph, 230 F.3d

243, 248 (6th Cir. 2000) (citation omitted).

       Turning to the case at issue, the Court concludes the district court erred in sentencing

Hodge. The terms of this 11(c)(1)(C) plea agreement were unambiguous. Paragraphs 10 and
No. 07-6011                                                                          10
United States of America v. Christopher Hodge

11 of the plea agreement clearly set forth the terms to determine Hodge’s sentence. He was

to receive a sentence at the low end of the Guideline range, which would be determined after

the calculation of Hodge’s Criminal History category in the PSR.

       This result is not altered by the exchange which transpired at the April 23, 2006 plea

hearing. A complete reading of the transcript reveals there was no meeting of the minds with

respect to a specific sentence for Hodge. In discussing the terms of the sentence, Mr. Weiser

began by stating the language of Paragraph 10 of the plea agreement, which provides “the

parties have agreed that a sentence at the low end of the applicable sentencing guideline

range is the appropriate disposition of this case . . . .” Additionally, when asked by the

district court what the agreed sentence was, Messrs. Weiser and Bouldin both agreed that it

was the low end of the Guidelines. At no time during the plea hearing, when asked directly

what the agreed sentence was to be, did the parties respond with a term of probation and four

months home detention.

       Furthermore, when the discussion began regarding a term of probation and four

months home detention, it was against the backdrop of having already set forth the agreed

terms by which Defendant was to be sentenced. Additionally, it began in response to a query

by the district court as to what the “anticipated sentence” would be. This language signifies

there were unknown factors yet to be determined affecting the final sentence. Moreover, in

response, Mr. Weiser identified the unknown factor, Hodge’s Criminal History, and stated

that the determination of his anticipated sentence was based on an estimate of a Criminal
No. 07-6011                                                                           11
United States of America v. Christopher Hodge

History category III. The district court then again used “anticipate” when discussing a

potential sentence of probation plus four months home detention.

       It was at this time that the district court began discussing how to address Hodge’s

already served time. When asked by the district court if everyone was on the same page, it

was in the context of how to address Hodge’s already served jail time in light of the

anticipated sentence. There is nothing in this exchange which supports the conclusion that

the Government should have been on notice that the plea agreement was being orally

modified on the record in accord with Paragraph 20. This conclusion is supported by the fact

that, after this exchange with counsel, the district court reiterated to Hodge the unambiguous

terms of the plea agreement. First, the parties agreed that Hodge was to be sentenced at the

low end of the Guidelines. Second, the Guidelines, which would control, could not be

determined until after the PSR was prepared.

       Moreover, the Court finds the Government did not waive this argument by failing to

object. The cases cited by Hodge all involve the failure of a party to object at sentencing.

Furthermore, they all involve clearly defined moments in which the issue was presented.

United States v. Johnson, 979 F.2d 396, 399 (6th Cir. 1992) (“By failing to object at the

crucial moment when the trial court inquired as to terms of its agreement, the government

has waived its claims.”); Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986) (“The

defendant’s failure to object to the government’s statement at sentencing constitutes waiver

in this situation.”). In contrast, in the instant case, the discussion regarding a sentence of
No. 07-6011                                                                            12
United States of America v. Christopher Hodge

probation plus four months home detention occurred at the plea hearing, not at sentencing.

Here, there was no “crucial moment” at which the Government should have been aware of

the need to object. Instead, there was an extensive discussion of a potential sentence and

how it would be addressed if, the as yet to be determined, Criminal History category III was,

in fact, correct.

       Accordingly, as the district court accepted the plea agreement, pursuant to Fed. R.

Crim. P. 11(c)(1)(C), it was bound to the bargain reached by the parties, a sentence at the low

end of the Guideline range, calculated once the PSR determined Hodge’s Criminal History

category. The discussion during the plea hearing neither altered the terms of the plea

agreement nor did it clearly modify the terms of the plea agreement on the record. Instead,

it was a hypothetical as to what Defendant’s sentence would be if he were a Criminal History

category III. As such, by sentencing Hodge to probation plus four months home detention,

the district court imposed a sentence which was not in accordance with the terms of the plea

agreement as required by Fed. R. Crim. P. 11(c)(1)(C). Thus, pursuant to Paragraph 20, the

plea agreement is null and void and the parties are not bound by its terms.

        SENTENCE VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
