Filed: Jun. 24, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 6-24-2009 USA v. Harold Keith Precedential or Non-Precedential: Non-Precedential Docket No. 08-3439 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Harold Keith" (2009). 2009 Decisions. Paper 1142. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1142 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 6-24-2009 USA v. Harold Keith Precedential or Non-Precedential: Non-Precedential Docket No. 08-3439 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "USA v. Harold Keith" (2009). 2009 Decisions. Paper 1142. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1142 This decision is brought to you for free and open access by the Opinions of the ..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-24-2009
USA v. Harold Keith
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3439
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"USA v. Harold Keith" (2009). 2009 Decisions. Paper 1142.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1142
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3439
_____________
UNITED STATES OF AMERICA
v.
HAROLD BRENT KEITH
also known as
HAROLD WALLACE
also known as
NEW YORK
also known as
BRIAN KEITH
Harold Brent Keith,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 04-cr-00354)
District Judge: Honorable John R. Padova
Submitted Under Third Circuit LAR 34.1(a)
February 6, 2009
Before: RENDELL and ROTH, Circuit Judges,
and HAYDEN, District Judge*
(Filed: June 24, 2009)
__________________
* Honorable Katharine S. Hayden, Judge of the United States District Court for the
District of New Jersey (Newark), sitting by designation.
OPINION OF THE COURT
HAYDEN, District Judge.
Harold Brent Keith, proceeding pro se, appeals the denial of his motion for
reduction of sentence. Keith, who pleaded guilty pursuant to a Rule 11(c)(1)(C) 1 plea
agreement, moved under 18 U.S.C. § 3582(c)(2) on the grounds that recent amendments
to the sentencing guidelines lowering the cocaine base (“crack”) offense level should
apply retroactively to his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3582(c)(2). For the following reasons, we will affirm.
In 1995, Keith was convicted of a felony narcotics offense in New York state
court. (A-14.) In May 2003, he sold crack to undercover police officers and in August
2003, in the course of a traffic stop, he was arrested for possession of 10.5 grams of crack
and a loaded semi-automatic pistol. (A-18.) On September 30, 2004, a grand jury in the
Eastern District of Pennsylvania returned a four-count superseding indictment charging
Keith with distribution of crack (Count One); possession of five or more grams of crack
with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count Two); carrying a
firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C.
1
Rule 11(c)(1)(C) was formerly known as Rule 11(e)(1)(C). United States v. Peveler,
359 F.3d 369, 379 (6th Cir. 2004). All references herein to Rule 11(e)(1)(C) should be
understood as relating to Rule 11(c)(1)(C).
2
§ 924(c)(1) (Count Three); and possession of a firearm by a convicted felon (Count Four).
(A-10-13.) Keith pleaded guilty to Counts Two and Four on February 18, 2005. (A-8.)
Keith’s plea agreement contained this stipulation in paragraph 3(b):
The parties agree that this plea agreement is made pursuant to
Fed. R. Crim. P. 11(c)(1)(C) and that the following specific
sentence is the appropriate disposition of this case. If the
Court rejects this plea agreement, it is further agreed that this
agreement shall automatically convert to a plea agreement
pursuant to Fed. R. Crim. P. 11(c)(1)(B), and this specific
sentence shall be the joint recommendation of the parties,
although not binding on the Court. This agreed upon sentence
is as follows: 144 months incarceration, 3 years supervised
release, and a $200 special assessment.
(A-19.) The Court sentenced Keith to 144 months. Keith did not appeal his sentence.
Keith’s motion for reduction of his sentence, which he filed on July 2, 2008, was
premised on Amendment 706 to the sentencing guidelines, effective November 1, 2007,
which reduced the base offense level by two levels for most crack offenses. On
December 11, 2007, the United States Sentencing Commission (“USSC”) added
Amendment 706 to the list of amendments available for retroactive application, as
provided in U.S.S.G. § 1B1.10(c).
In its order denying Keith’s motion, the District Court wrote:
On February 18, 2005, Defendant pled guilty to one count of
possession with intent to distribute 5 grams or more of
cocaine base (“crack”), and one count of being a felon in
possession of a firearm. Defendant and the Government
entered into a plea agreement pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C), in which the parties agreed
and stipulated to a term of imprisonment of 144 months.
3
Defendant also waived his right to receive a pre-sentence
investigation report prior to the imposition of sentence. On
the same day, we accepted the plea agreement and sentenced
Defendant to the agreed-upon 144 months.
Defendant now seeks a reduction in sentence pursuant to
18 U.S.C. §3582(c)(2) in light of the retroactive application of
Amendment 706 to the United States Sentencing Guidelines
for crack cocaine offenses. Section 3582(c)(2) provides in
pertinent part: “[i]n the case of a defendant who has been
sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
Commission . . . the court may reduce the term of
imprisonment . . .”
Defendant was not sentenced “based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission.” Rather, he was sentenced based upon the
parties’ Rule 11(c)(1)(C) agreement, a fact which is
underscored by his waiver of a pre-sentence investigation
report. Consequently, defendant is not entitled to relief
pursuant to 18 U.S.C. § 3582(c)(2) and his Motion is denied.
(A-31 (internal citations omitted) (emphasis in original).) Keith filed a timely notice of
appeal in this Court.
In his brief on appeal, Keith contends that the sentencing court “was not bound by
the stipulated sentencing range between the parties and if the court decided to sentence
above or below the stipulation, the defendant was not able to withdraw the plea”; and that
the plea agreement “unequivocally states that both parties are able to argue for a sentence
other than that stipulated to[.]” He notes that “all Circuits have held that Rule 11(e)(1)(C)
and [Rule 11](e)(1)(B) plea agreements are 2 separate and distinct contracts.” (Appellant
Br. 2-3.)
It appears that Keith’s arguments arise out of the presence of the Rule 11(c)(1)(B)
4
alternative in paragraph 3(b) of his plea agreement that provided, in the event the district
judge did not accept the “C plea,” as follows: “[I]t is further agreed that this agreement
shall automatically convert to a plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(B),
and this specific sentence shall be the joint recommendation of the parties, although not
binding on the Court. This agreed-upon sentence is as follows: 144 months
incarceration, 3 years supervised release, and a $200 special assessment.” Keith is correct
that this language does not bind the sentencing judge to sentence him to 144 months if the
court rejected the C plea. Further, he is correct that under paragraph 5 of the plea
agreement, he could not withdraw his plea in the event the Court rejected any of the
sentencing recommendations; and that under paragraph 6, the parties agreed that they
were free to argue the applicability of any provision of the sentencing guidelines, and that
neither the court nor probation was bound by the plea stipulations. But this latitude is
related to the court’s discretion under a B plea. Keith’s argument ignores that the plea
language in paragraph 3(b) is very clear: if the sentencing court sentenced under Rule
11(c)(1)(C), it was bound to impose a sentence of 144 months and there would be no
exercise of discretion. Arguments about what the court could or could not impose as a
sentence would be useless.
It is beyond dispute that the sentencing court sentenced him under Rule
11(c)(1)(C), and so Keith’s line of reasoning is logically, and legally, unavailing.
Keith also argues that in denying his motion, the District Court should have
5
indicated what the amended guideline range would have been, pointing to U.S.S.G.
§ 1B1.10(b)(1), which states that in deciding a motion under § 3582(c)(2), the district
court must determine the amended guideline range that would have been applicable at the
time of sentencing. But again, this assumes that a guidelines range was the basis of his
sentence to begin with. As indicated, by accepting the C plea, the sentencing court did
not rely upon or calculate a sentencing range.
Significantly, Keith’s papers concede that defendants convicted under a Rule
11(c)(1)(C) plea agreement may not move for sentence modification under § 3582(c)(2),
and that “every Circuit to consider such issue has ruled accordingly.” (Appellant Br. 4.)
Keith nonetheless argues his particular plea agreement preserves his eligibility for relief,
relying on United States v. Gillen, 449 F.3d 898, 902 (8th Cir. 2006). There the
defendant pleaded guilty to felony possession of a firearm, and received a 63-month
sentence. The Eighth Circuit observed that the plea agreement “resemble[d]” a
Rule 11(c)(1)(C) plea because it used “language such as ‘the parties agree.’”
Id. at 902.
But ultimately the similarity failed, because Gillen’s agreement “clearly state[d] that the
plea agreement ‘b[ou]nd only the defendant and the United States Attorney’” and did “not
bind the Court or the United States Probation Office with respect to the Guidelines
levels.”
Id. (citing plea agreement). Thus “Gillen should have understood that the plea
agreement was a nonbinding ‘Type B’ agreement.”
Id. Unlike the Gillen agreement,
Keith’s plea agreement is explicit in paragraph 3(b) that “[t]he parties agree that this plea
6
agreement is made pursuant to Fed. R. Crim. P. 11(c)(1)(C) and that the following
specific sentence is the appropriate disposition of this case.” The further agreement that
the plea would be entered pursuant to Rule 11(c)(1)(B) – with, arguably, the features of
the Gillen plea – only applied if the court rejected the C plea stipulation.
The blunt force of a Rule 11(c)(1)(C) sentencing in the context of later
amendments to the guidelines has been the subject of prior decisions that specifically hold
that the sentencing court is without authority to modify a sentence under § 3582(c)(2). In
United States v. Trujeque, 100 F.3d 869, 869-71 (10th Cir. 1996), the Tenth Circuit
concluded that “because [the defendant] entered a plea agreement specifying a term of
imprisonment pursuant to Fed. R. Crim. P. 11(e)(1)(C), he may not seek a reduction in his
sentence via 18 U.S.C. § 3582(c)(2),” and that “the district court should have dismissed
[defendant’s § 3582(c)(2)] motion without considering its merits.” The Sixth Circuit
ruled similarly in United States v. Peveler, stating that “Rule 11(e)(1)(C) . . . expressly
limits the district court’s authority to modify the [plea] agreement,” and that “once a
district court accepts a plea agreement where parties agreed on a specific sentence or
sentencing range, the district court is bound by the parties’ plea agreement.”
359 F.3d
369, 375, 377 (6th Cir. 2004) (internal citations omitted).
Most recently, in United States v. Sanchez, 562 F.3d 275 (3d Cir. 2009), this Court
“concluded that relief under § 3582(c)(2) is not available for a defendant who has been
7
sentenced pursuant to a Rule 11(c)(1)(C) binding plea agreement.” United States v.
Clayborn, No. 08-2617, 2009 U.S. App. LEXIS 7495, *3 (3d Cir. Apr. 8, 2009) (citing
Sanchez, 562 F.3d at 282 n.7). In so ruling, the Court addressed “conflicting signals in
the record” as to whether the sentencing guidelines influenced the sentence imposed,
stating “[w]here, as here, the District Court accepted a so-called ‘C’ plea, the answer is
simple: the sentence is based on the terms expressly agreed on by the defendant and the
government. That is what the Rule itself demands.”
Sanchez, 562 F.3d at 282 n.8
The same reasoning applies here. The parties’ agreement was the only basis for
the sentence. Keith pleaded and was sentenced in the course of one proceeding. As the
District Court noted, no presentence report was prepared. Once the District Court
accepted the C plea, it was bound to sentence to 144 months, and as to that specific
sentence (not sentencing range), the sentencing court made no guidelines calculation or
adjustments. In short, the court was without authority to modify the sentence, and there
existed no predicate upon which to apply the crack guideline amendments.
In light of the foregoing, we will AFFIRM the Order of the District Court denying
Keith’s motion to reduce his sentence.
