                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JUL 11 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 00-3372
 v.
                                               (D.C. No. 99-CR-40094-DES)
                                                         (D. Kan.)
 JAMES BRENTT WHEELER,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


      James Brentt Wheeler pleaded guilty to distributing more than five grams

of cocaine base in violation of 21 U.S.C. § 841(a)(1). (Doc. 43, at 1.) In

exchange, the government agreed not to prosecute Wheeler on two other counts of

distribution, to recommend the court impose a sentence at the lower end of the

appropriate Sentencing Guidelines range, and not to advocate that six other sales



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
of crack cocaine be included as relevant conduct. (Id. at 3-4.) The Presentence

Investigation Report (PSR) included the amounts involved in the two dismissed

distribution counts in determining Wheeler’s offense level. (PSR at 8.) Wheeler

does not contend that these two sales were among the six sales the government

agreed not to advocate including as relevant conduct. Wheeler objected that the

additional quantities were not based on reliable evidence and that their inclusion

violated his due process rights under Apprendi v. New Jersey, 530 U.S. 466

(2000). (Doc. 49, at 2-3.) Without taking any evidence, the district court found

sufficient indicia of reliability to support the quantities and overruled the

Apprendi objection. (Doc. 64, at 11-12.) We have jurisdiction over Wheeler’s

appeal under 18 U.S.C. § 3742(a).

      Wheeler first objects that the district court should have held an evidentiary

hearing on his objection to the reliability of the evidence of drug quantities, rather

than relying on the information in the PSR. Because it does not appear that he

asked for such a hearing below, we review for plain error. United States v.

Williamson, 53 F.3d 1500, 1527 (10th Cir. 1995). We may reverse only if we

find (1) error that is (2) plain, (3) affects Wheeler’s substantial rights, and (4)

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Johnson v. United States, 520 U.S. 461, 467 (1997). It appears that

the first two prongs are met here. See United States v. Keifer, 198 F.3d 798, 800


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(“When a defendant objects to a fact in a presentence report, the government must

prove that fact at a sentencing hearing by a preponderance of the evidence.”).

Wheeler cannot meet the third prong, however. Under plain-error review, “[i]t is

the defendant rather than the Government who bears the burden of persuasion

with respect to prejudice.” United States v. Olano, 507 U.S. 725, 734 (1993).

Wheeler has made no showing that the district court would have rejected the

evidence of additional drug quantities as unreliable had it held an evidentiary

hearing. We therefore may not reverse on this issue.

      Wheeler’s second argument is that the government breached its plea

agreement. Even though this issue was not raised below, we review it de novo.

United States v. Peterson, 225 F.3d 1167, 1170 (10th Cir. 2000), cert. denied, 121

S. Ct. 893 (2001). Wheeler argues that the government breached the “implied”

term of the plea agreement by advocating inclusion of the additional drug

quantities in face of the parties’ “intent” to produce a sentence as close as

possible to the 60-month statutory minimum. (Opening Br. at 11-12.) At the

sentencing hearing, the government acknowledged the parties’ general intent to

produce such a result but argued that there was no agreement to exclude these

particular quantities. (Doc. 64, at 7-8.) The written plea agreement did not

require the government to advocate a sentence near the statutory minimum; it

merely required the government to “recommend a sentence at the lower end of the


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appropriately calculated Guidelines range.” (Doc. 43, at 3.) It also stated that

“[t]his written Plea Agreement supercedes any and all other agreements or

negotiations which the parties may have previously reached or discussed, and this

written plea agreement embodies each and every term of the agreement among the

parties.” (Doc. 43, at 4.) At his change-of-plea hearing, Wheeler stated that there

had been no other promises made to him other than those contained in the plea

agreement. (Doc. 67, at 10.) In these circumstances, we do not believe the

agreement contained an implicit promise by the government to advocate a

sentence close to the statutory minimum. “An integration clause normally

prevents a criminal defendant, who has entered into a plea agreement, from

asserting that the government made oral promises to him not contained in the plea

agreement itself.” United States v. Hunt, 205 F.3d 931, 935 (6th Cir. 2000);

accord, e.g., United State v. Alegria, 192 F.3d 179, 185 (1st Cir. 1999); cf.

United States v. Rockwell Int’l Corp., 124 F.3d 1194, 1199-200 (10th Cir. 1997)

(refusing to consider parole evidence of additional terms to a plea agreement).

The government therefore did not breach the plea agreement.

      Finally, Wheeler argues that inclusion of the additional drug quantities

violated Apprendi by increasing his sentence from 63 months to 78 months. As

he concedes, this argument is foreclosed by our precedent holding that “Apprendi

does not apply to sentencing factors that increase a defendant’s guideline range


                                        -4-
but do not increase the statutory maximum.” United States v. Sullivan, 242 F.3d

1248, 1256 (10th Cir. 2001); see also United States v. Heckard, 238 F.3d 1222,

1236 (10th Cir. 2001). Because the statutory maximum here is 40 years, see 21

U.S.C. § 841(b)(1)(B), and Wheeler’s sentence is well below that, there is no

Apprendi violation. We acknowledge that Wheeler has preserved the issue in the

hope of further review.

      We AFFIRM Wheeler’s sentence.

                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




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