NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0582n.06

                                       Case No. 19-5883

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Oct 13, 2020
UNITED STATES OF AMERICA,                           )                    DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,
                                                    )
                                                    )     ON APPEAL FROM THE UNITED
v.
                                                    )     STATES DISTRICT COURT FOR
                                                    )     THE EASTERN DISTRICT OF
CHESLEY PAUL PEYTON,
                                                    )     KENTUCKY
       Defendant-Appellant.                         )
                                                    )


       BEFORE: COOK, BUSH, and NALBANDIAN, Circuit Judges.

       COOK, Circuit Judge. Defendant Chesley Peyton and his prosecutors expected Peyton to

be subject to a maximum sentence of ten years when he pleaded guilty to being a felon in

possession of a firearm. But after Peyton entered his plea, the probation department revealed its

determination that Peyton’s record of three prior drug trafficking offenses subjected him to

sentencing as an armed career criminal. Peyton appeals the fifteen-year minimum sentence

imposed. We AFFIRM.

                                               I.

       An indictment charged Peyton with unlawfully possessing a firearm as a convicted felon,

in violation of 18 U.S.C. § 922(g)(1). Peyton and the government entered into a written plea

agreement that provided that his sentence would be “imprisonment for not more than 10 years,”

with the caveat that any sentencing “recommendation does not bind the Court.” (R. 30 at Page
Case No. 19-5883, United States v. Peyton


ID#: 79.) The plea agreement also noted that Peyton’s criminal history included “one felony

conviction of either a crime of violence or a controlled substance offense.” (Id. at Page ID#: 80.)

The district court held a rearraignment hearing and asked Peyton whether he understood the

potential consequences of his plea, including that “the worst case scenario is . . . a statutory

maximum penalty of ten years.” (R. 57 at Page ID#: 247.) Peyton confirmed that he understood,

and the court accepted his plea of guilty.

       Later, however, the presentence investigation report prepared by the probation department

revealed Peyton’s three prior felony drug trafficking convictions.1 This development changed

things for the worse for Peyton, because he now qualified as an armed career criminal subject to

the Armed Career Criminal Act (ACCA) and its fifteen-year mandatory minimum sentence. See

18 U.S.C. § 924(e)(1).

       At sentencing, given the ACCA requirement to impose a fifteen-year minimum sentence

with Peyton expecting a ten-year maximum, the court afforded Peyton an opportunity to withdraw

his plea. Having consulted with his attorney, Peyton decided to adhere to his guilty plea.

       Before the court imposed its sentence, Peyton acknowledged that his prior convictions

qualified as ACCA predicates, but argued that the court should opt for a ten-year term because “a

plea deal is a plea deal.” (R. 58 at Page ID##: 267–68.) The judge responded that “the law doesn’t

allow [him] to” enforce the plea deal because he’s “bound by [ACCA]” and “would [not] even

have the authority to” deviate below the fifteen-year mandatory minimum. (Id. at Page ID#: 269.)

He then imposed a fifteen-year sentence.




       1
         The prosecutors and Peyton apparently miscounted the three convictions as a single one
because Peyton was arrested for all three on the same day, was sentenced for all three on the same
day, and served his sentences for all three concurrently.
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Case No. 19-5883, United States v. Peyton


       Peyton appeals, persisting in arguing that “a deal is a deal,” and that the court “should have

ordered specific performance of the ten-year maximum sentence.” (Appellant Br. at 6.) He asks

this court to vacate the district court’s judgment and remand for resentencing “with instruction that

he be sentenced to a period of incarceration not to exceed 10 years.” (Id. at 15.)

                                                 II.

       As regards sentencing determinations, we review de novo the district court’s legal

conclusions and look only for clear error in the court’s factual findings. United States v.

Henderson, 

, 617 (6th Cir. 2000).

                                                 III.

       Plea agreements represent a contract between the government and the accused, and we

interpret and enforce them in accordance with traditional principles of contract law. United States

v. Robison, 

, 613 (6th Cir. 1991). “[W]hen a plea rests in any significant degree on

a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilled.” Santobello v. New York, 

, 262 (1971).

When the government fails to fulfill its promise, the court can remedy the breach by either

affording the defendant the opportunity to withdraw his plea or ordering specific performance of

the plea agreement.

United States v. Mandell, 

, 973 (6th Cir. 1990).

       Peyton asserts that the government breached the plea agreement in acceding to ACCA’s

mandatory minimum. Here, of course, the parties to the agreement operated without an accurate

understanding of the defendant’s criminal record. Once Peyton’s three ACCA-predicate felonies

came to light, the court had no choice but to sentence Peyton to at least fifteen years. See 18 U.S.C.

§ 924(e)(1). The court thus addressed the dilemma in the only manner available—allowing Peyton

an opportunity to withdraw his plea.


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Case No. 19-5883, United States v. Peyton


       Our sister circuits that have addressed this issue agree that an opportunity to withdraw the

plea properly remedies the parties’ failure to account for ACCA in the plea agreement. See, e.g.,

United States v. Symington, 

, 1313 (11th Cir. 2015) (“Generally, this court may

remedy the breach of a plea agreement by ordering specific performance of the agreement, but that

is not the proper remedy here [because] enforcing the agreed upon ten-year sentence in the plea

agreement would result in the imposition of an illegal sentence . . . .”); United States v. Davis, 

, 354 (4th Cir. 2012) (“Davis is . . . not entitled to the ‘specific performance’ he now seeks

[because] the district court could not have imposed a sentence that contravened [ACCA].”); United

States v. Williams, 

, 994 (7th Cir. 1999) (“[T]he district court correctly concluded

that the remedy for the mistake of fact [as to the defendant’s maximum sentence] in this case was

to permit Williams to void the contract and withdraw his plea.”). Indeed, the Tenth Circuit has

held that enforcing a plea agreement’s ten-year maximum when ACCA should apply—what

Peyton seeks here—constitutes “plain error.” United States v. Moyer, 

, 1318–19

(10th Cir. 2002).

       Peyton offers a new, different argument, invoking 18 U.S.C. § 3553(e). But that statute

authorizes a court, upon motion of the government, to impose a sentence below a statutory

minimum to reflect a defendant’s substantial assistance in another’s prosecution.

       We need not consider how Peyton would fare under this statute because only a government

motion triggers the sentencing judge’s discretion to impose a below-minimum sentence. See

Melendez v. United States, 

, 125–26 (1996) (quoting 18 U.S.C. § 3553(e)); see also

United States v. McIntosh, 

, 835 (6th Cir. 2007); United States v. Hise, 400 F. App’x

989, 991 (6th Cir. 2010) (“[A] departure [below the statutory minimum] is lawful only if the

government first files [a motion].”). The government filed no such motion here.


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Case No. 19-5883, United States v. Peyton


        Peyton goes on to contend—without authority—that under these circumstances, the court

should have ordered the government to file a § 3553(e) motion. That novel approach would likely

run afoul of § 3553(e)’s other threshold requirement: that “a departure [under section 3553(e)]

must be based solely upon the ‘substantial assistance’ rendered by the defendant.” United States

v. Bullard, 

, 416 (6th Cir. 2004) (quoting United States v. Snelling, 

, 97

(6th Cir. 1991)). And Peyton provides scant evidence that he assisted in another’s prosecution.

The district court did not err.

                                                    IV.

        We AFFIRM.




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