United States v. Roberts

Case: 09-40268 Document: 00511265108 Page: 1 Date Filed: 10/15/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 15, 2010

No. 09-40268 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

CHRISTOPHER EARL ROBERTS,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Texas

Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Christopher Earl Roberts entered into a plea agreement with the

Government and, following a guilty plea of violating 21 U.S.C. § 841(a)(1), was

sentenced to 168 months of imprisonment. This appeal presents the question

whether the Government breached the plea agreement by lending its support to

an enhanced sentence for Roberts. Roberts seeks remand, specific performance

of the plea agreement, and resentencing. We order the relief sought because we

hold that at sentencing, the Government supported an enhancement for career

offenders, which is not a mere adjustment under the sentencing guidelines, but

instead constitutes a new base offense level.

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No. 09-40268

I.

Roberts pled guilty, pursuant to a plea agreement, of possession with

intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §

841(a)(1). He entered into a plea agreement that stipulated that the base offense

level was 30, and that he was eligible for a reduction of two levels. The

agreement stipulated that the “parties understand that the Court is not bound

by these agreements [and] that other specific offense characteristic or guideline

adjustments may increase or decrease the appropriate range.” In the agreement,

Roberts waived the right to appeal the conviction and sentence on all grounds

other than: (1) a sentence in excess of the statutory maximum; and (2) a claim

of ineffective assistance of counsel.

The presentence report (“PSR”) recommended a base offense level of 30,

pursuant to U.S.S.G. § 2D1.1(c)(5) and consistent with the plea agreement. But

the PSR also recommended an increase in the offense level to 37 pursuant to

U.S.S.G. § 4B1.1 (the “career offender enhancement”). Roberts qualified as a

career offender because he was previously convicted for aggravated assault and

use of a communication facility to facilitate a felony. The PSR further

recommended a downward adjustment of three for the acceptance of

responsibility, reducing the total offense level to 34. The corresponding

guidelines sentencing range was 262-327 months.

During the sentencing hearing, Roberts argued that the Government

breached its agreement by supporting the application of the career offender

enhancement, and thus failing to adhere to the stipulated base offense level of

30. Roberts also asserted that the career offender enhancement is not a

guideline adjustment to a base offense level but instead is a new base offense

level. The court asked the prosecutor for his response. The prosecutor answered

that Roberts did not get the benefit of the bargain struck by the plea agreement

because of his “extensive criminal history”, not as a result of any breach of the

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plea agreement. Further, he argued that the career offender enhancement

represented a guideline adjustment, not a new base level, and stated that

guideline adjustments were permitted under the terms of the plea agreement.

The district court overruled Roberts’s objection to the Government’s

support of the application of the career offender enhancement, finding that it

constituted a guideline adjustment. The district court further found that the

calculation of a Chapter Two base offense level determination is separate from

the calculation of an adjustment, such as the Chapter Four career offender

adjustment. Consequently, the district court concluded that the plea agreement

had not been breached, and imposed a sentence of 168 months. Roberts appeals

this holding, and his sentence.

II.

As a preliminary matter, the Government seeks dismissal of the appeal

based upon the waiver provision in the plea agreement. Roberts’s appeal waiver

does not affect his ability to raise a breach argument because an alleged breach

of a plea agreement may be raised despite a waiver provision. See United States

v. Keresztury, 293 F.3d 750, 757 (5th Cir. 2002) (where the Government has

breached a plea agreement, the defendant is necessarily released from any

appeal provision contained therein). We therefore consider two issues Roberts

raises on appeal: (1) that the career offender enhancement creates a new base

offense level, rather than adjusting an existing offense level; and (2) that,

accordingly, the Government breached its plea agreement by failing to adhere

to its stipulation that the base offense level was 30.1

1

Roberts also argued that the career offender enhancement was improperly applied to

him because his state and federal sentences ran concurrently. We are not persuaded by the

merits of this argument, but need not reach it to find that the Government breached the plea

agreement.

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A.

We first address whether the career offender enhancement is a guideline

adjustment, not a change in the base offense level. Then, in the light of our

conclusion, we will turn to consider whether the Government has breached the

plea agreement by supporting the increased base offense level provided under

the career criminal provision.

This court has not ruled on whether the career offender enhancement is

correctly considered a guideline adjustment or base offense level. It has,

however, spoken to the issue in dicta that can be construed to support either

interpretation of the statute.

On the one hand, this court has referred to the career offender

enhancement as providing a new base level on multiple occasions. See, e.g.,

United States v. Anderson, 591 F.3d 789, 790 (5th Cir. 2009) (“if the base level

calculated under the career offender enhancement exceeds the base level

calculated under the general drug crimes provision, then the career offender

base level prevails”); United States v. Rodriguez-Jaimes, 481 F.3d 283, 284 (5th

Cir. 2007) (“The presentence investigation report [ ] recommended a base offense

level of thirty-seven because the probation officer determined that Rodriguez-

Jaimes was a career offender pursuant to U.S.S.G. § 41B.1 . . .”).

On the other hand, this court has held that the Government did not breach

a plea agreement, but only in an unpublished per curiam opinion, albeit with

similar facts to those presented in this case. See United States v. Traugott, 364

F. App’x 925, 925 (5th Cir. 2010) (“The government did not breach the plea

agreement by supporting the application of the career offender enhancement.”).

In Traugott, defendant Larry Stanley Traugott pled guilty to conspiracy to

possess with intent to distribute 500 grams or more of methamphetamine. He

entered into a plea agreement with the Government that stipulated the

applicable base offense level was 32. Based on Traugott’s prior convictions, the

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district court applied the career offender enhancement under U.S.S.G. § 41B.1

to find an offense level of 37. Traugott argued that the Government breached

the plea agreement’s base level stipulation by supporting the district court’s

application of the career offender enhancement during the sentencing hearing.

This court found that the Government did not breach the plea agreement by

supporting the application of the career offender enhancement. Id. (“the plea

agreement did not preclude application of the career offender enhancement”).

The Traugott court did not explicitly consider whether the career offender

enhancement was a guidelines adjustment or a new base offense level.

Thus, our review of the caselaw provides no apposite precedent. We must,

therefore, decide whether the career offender enhancement is classified as a

guidelines adjustment, or new base offense level. The plain language of the

career offender enhancement indicates that it establishes a new base offense

level when it exceeds the level that would otherwise apply: “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.” U.S.S.G. § 4B1.1(b). Rather than adjusting the prior offense level up or

down by a certain number–as occurs under the adjustments set forth in

Chapters Two and Three of the sentencing guidelines–§ 4B1.1 replaces the

established base offense level.

Further, Chapter Four does not internally reference itself as being an

adjustment, unlike Chapter Three. The title of Chapter Three is “Chapter Three

- Adjustments.” See, e.g., U.S.S.G. § 3. The Chapter Three sub-chapters contain

numerous references to their status as adjustments in their titles, background

commentary, and explanatory notes. See, e.g., U.S.S.G. §3A1.1 (“Victim-Related

Adjustments”); §3B1.1 (“This Part provides adjustments to the offense level . . .”).

The Government’s sole argument that the career offender enhancement

is an adjustment rather than a new base level is contained in a footnote in its

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brief. It argues that the General Application Principles for the sentencing

guidelines reference “adjustments” in Part B of Chapter 4. (“Determine from

Part B of Chapter Four any other applicable adjustments.”) U.S.S.G. § 1B1.1(f)

(emphasis added). We find this argument is not decisive when weighed against

the more extensive and more persuasive counter arguments set forth above.

Thus, Section 4B1.1 is not structured as what is commonly thought of as

an adjustment. Instead, it replaces the base offense level under certain

conditions.

B.

Roberts argues that the Government breached the plea agreement when

it argued that he should receive an offense level greater than that stipulated in

the plea agreement. The Government argues that it was unreasonable for

Roberts to believe that the plea agreement precluded the Government from

arguing for the career offender enhancement pursuant to § 4B1.1(b). “This court

reviews a claim of a breach of plea agreement de novo, accepting the district

court’s factual findings unless clearly erroneous.” See United States v. Elashyi,

554 F.3d 480, 501 (5th Cir. 2008) (internal quotation and citation omitted), cert.

denied, 130 S. Ct. 57, 61, 363 (2009). The Government is required strictly to

adhere to plea agreements.

If a defendant pleads guilty as part of a plea agreement, the

Government must strictly adhere to the terms and conditions of its

promises in the agreement. . . . [A] plea agreement is construed

strictly against the Government as the drafter. To assess whether

a plea agreement has been violated, this court considers whether

the government’s conduct is consistent with the defendant’s

reasonable understanding of the agreement.

Id. (internal citations and quotations omitted). The defendant bears the burden

of demonstrating the underlying facts that establish breach by a preponderance

of the evidence. United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996).

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We cannot agree that it was unreasonable for Roberts to believe the

agreement precluded the Government from supporting application of the career

offender enhancement. The plea agreement provides that the “parties

understand that the Court is not bound by these agreements [and] that other

specific offense characteristics or guideline adjustments may increase or

decrease the appropriate sentencing range.” Although the plea agreement

permits the Government to argue for “offense characteristics or guideline

adjustments,” it does not contemplate that the Government would argue for a

new base offense level differing from the one stipulated in the agreement.

Above, we rejected the Government’s contention that application of the career

offender enhancement is an adjustment. Instead, we have held that it resets the

base offense level. Consequently, the plea agreement does not provide Roberts

with a reasonable understanding that the Government may argue for application

of the career offender enhancement.

Although this court is not controlled by the unpublished opinion in

Traugott, comparing the facts of the cases illustrates what does constitute a

reasonable understanding in a plea agreement. The language of the plea

agreements entered into by Traugott and Roberts is substantially similar. In his

rearraignment hearing, however, Traugott “expressly acknowledged his

understanding that prior convictions could increase the applicable guidelines

range . . .” Traugott, 364 F. App’x at 925. Thus, Traugott received express notice

that the career offender enhancement might apply to his sentence. In contrast,

Roberts was not informed that the career offender enhancement might apply to

his sentence; the potential application of the provision was neither contained in

his plea agreement nor discussed at his rearraignment hearing. More

specifically, the parties in the respective cases had different notice regarding the

career offender enhancement: the provision was specifically pointed out to

Traugott, whereas Roberts never received notice that it might apply.

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Consequently, the parties’ reasonable understanding of the bargains they had

struck with the Government differed. Traugott’s reasonable understanding was

that the career offender enhancement might apply. Roberts had no basis to

believe that the career offender enhancement could reset the base level

stipulated in the plea agreement.

Furthermore, the language of the guideline stipulations, as set out in the

plea agreement, provides express notice that the reduction of two levels is

subject to the recommendation of the Probation Office, but provides no similar

notice that the agreed base level is subject to that recommendation. The

relevant language in the plea agreement provides:

GUIDELINE STIPULATIONS: The parties stipulate to the

following factors that affect the appropriate sentencing range in this

case:

a. The base level under U.S. Sentencing Guidelines

Manual § 2D1.1(c)(5) (2007) (U.S.S.G.) is 30;

b. A reduction of two levels for acceptance of responsibility

under U.S.S.G. § 3E1.1 applies; however, this

stipulation is subject to the recommendation of the

United States Probation Office. If circumstances

indicating that the Defendant has not accepted

responsibility became known after entry of this

agreement, this stipulation is void and Defendant may

object to the failure of the Presentence Report to

recommend the reduction.

(First emphasis added; second emphasis in original). Accordingly, the plain

language of the plea agreement suggests the reduction for acceptance of

responsibility is subject to the discretion of the Probation Office but provides no

similar condition for the base offense level.

C.

Finally, the Government contends that it did not argue for the career

offender enhancement, but instead only agreed with the recommendation of the

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PSR. At sentencing, the prosecutor supported application of the career offender

enhancement by emphasizing Roberts’s “extensive criminal history.” The

prosecutor explicitly acknowledged that through the application of the career

offender enhancement “the defendant simply doesn’t get the benefit of that

particular bargain but it’s still a plea agreement that he signed and he entered

into and I’m sure that there is other consideration in this plea agreement than

that particular guideline calculation.” Although he stated application of the

enhancement was “simply a function of the defendant’s criminal history, which

the government has no control over,” the prosecutor could have chosen to not

take a position on the enhancement, but instead chose to remark on the

appropriateness of its application. We therefore must examine whether his

conduct constitutes advocation for the enhancement in violation of the plea

agreement.

The Fifth Circuit addressed similar circumstances in United States v.

Munoz, 408 F.3d 222 (5th Cir. 2005). In Munoz, defendant Munoz pled guilty to

conspiracy to committing wire fraud and mail fraud and conspiracy to commit

money laundering, for his participation in a Ponzi scheme. Id. at 224. Munoz

entered into a plea agreement, in which the parties agreed to a set total offense

level of 25. Id. at 225. The PSR instead recommended a total offense level of 29,

based on the application of an abuse of trust enhancement not included in the

plea agreement. Id. At sentencing, the court asked the prosecutor several

questions about the enhancement, which he answered affirmatively, indicating

support for application of the enhancement. Id. The district court sentenced

Munoz to 90 months of imprisonment for the money laundering conviction and

60 months of imprisonment for the wire fraud conviction, to run concurrently.

Id. 225-26. Munoz appealed, contending that the Government breached the plea

agreement by stating that the abuse of trust enhancement should apply during

the sentencing hearing. Id. at 226. Munoz asked for specific performance of the

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agreement, which would require the court to vacate his sentence and remand his

case for resentencing before a different judge. Id.

The Fifth Circuit found that the Government breached the plea

agreement. Id. at 227. The plea agreement stated that the parties “agreed that

the applicable sentencing guideline should be calculated as follows” in a

calculation that did not include an enhancement for abuse of trust. Id. Despite

this term, the prosecutor responded to questions in a manner that advocated

application of the abuse-of-trust enhancement. Id. (“the government implicitly

promised not to argue for an enhancement that was not part of the plea

agreement”). The court found that the prosecutor’s conduct at the sentencing

hearing breached the plea agreement. Consequently, the court vacated Munoz’s

sentence and remanded to the district court for reassignment to a different judge

and resentencing.

Notably, Munoz deals with an abuse of trust enhancement instead of the

career offender enhancement. Its logic is, however, applicable to this case and

consistent with a line of cases from other circuits holding that a prosecutor may

not argue for an enhancement that would raise an offense level when the

Government agreed to a stipulated base offense level in the plea agreement. See

United States v. Rivera, 357 F.3d 290, 295 (3d Cir. 2004) ( “Because the Offense

Level was specifically stipulated to, whereas the government's right to advocate

a role enhancement was not, the government's endorsement of an enhancement

that would raise the Offense Level above the stipulated level contravened the

plea agreement.”); United States v. Taylor, 77 F.3d 368, 371 (11th Cir. 1996).

Further, at least one other circuit has directly held that the Government

breaches a plea agreement by advocating for application of the career offender

enhancement if the plea agreement explicitly set forth a different base level. See

United States v. Fowler, 445 F.3d 1035 (8th Cir. 2006).

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Accordingly, our precedent suggests that the prosecutor in this case

violated the plea agreement by arguing, even if mildly, that the career offender

enhancement should apply after agreeing to a different, lower base offense level

in the plea agreement. Roberts’s reasonable understanding of the plea

agreement was that it stipulated a base offense level. By arguing for a different

base offense level at the sentencing hearing, the Government failed to uphold its

end of the bargain. See Munoz, 408 F.3d at 226. The Government’s conduct was

inconsistent with the defendant’s reasonable understanding of the plea

agreement.

III.

The Government is obligated to live up to the bargain it strikes in plea

agreements. Elashyi, 554 F.3d at 501. In this case, the Government stipulated

a base offense level of 30 in the plea agreement. At the sentencing hearing, the

Government agreed to application of the career offender enhancement. This

reset the base level to 37. Roberts’s reasonable understanding of the plea was

that it stipulated a base offense level of 30. By supporting a different base

offense level at the sentencing hearing, the Government failed to uphold its end

of the bargain.2 The Government’s conduct was inconsistent with the

defendant’s reasonable understanding of the plea agreement. Accordingly, the

Government breached the plea agreement and Roberts is entitled to specific

performance of the agreement.

For the foregoing reasons, we VACATE Roberts’s sentence and REMAND

to the district court for reassignment to a different judge and for resentencing,

not inconsistent with this opinion.

VACATED and REMANDED.

2

Notably, a prosecutor for the U.S. Attorney’s office, which entered the plea

agreement, advocated for the increased base level at the sentencing hearing. This, of course,

differs from a PSR or court unilaterally arguing for or applying the career offender provision.

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HAROLD R. D EMOSS, JR. dissenting:

In this case we consider whether application of the career offender

provision found in Chapter Four of the Sentencing Guidelines is an

“adjustment” as such term is contemplated by the Guidelines and, by

implication, the plea agreement entered into between the government and

Roberts. See U.S. S ENTENCING G UIDELINES M ANUAL § 4B1.1. I would answer

“yes” for two reasons. First, I find that the structure, sequencing, and express

language of the Guidelines clearly indicate that application of the career

offender provision is a guideline adjustment. And second, there being no

controlling case law on point, I find that the decision in United States v.

Traugott is both directly on point and the most persuasive analysis available.

364 F. App’x 925 (5th Cir. 2010) (G ARZA, D EM OSS, and C LEMENT, JJ.) (per

curiam) (unpublished). I would find that the government’s argument in favor

of applying the career offender provision is wholly consistent with a

reasonable understanding of the plea agreement, and that the government

did not breach any term of the plea agreement. I would hold that Roberts’s

appeal waiver is valid and affirm the district court’s sentence. I respectfully

dissent.

THE PLEA AGREEMENT

The plea agreement entered into between the government and Roberts

stipulates to the following: (1) Roberts’s base offense level under § 2D1.1(c)(5)

is 30; (2) a two-level reduction for acceptance of responsibility applies under

§ 3E1.1; and (3) other specific offense characteristics or guideline adjustments

may increase or decrease the appropriate sentencing range and either party

may argue for such increases or decreases. These stipulations are neither

vague nor complicated. The first stipulation provides a starting point for

sentencing by avoiding argument on the quantity of cocaine base at issue

(68.59 grams). Base offense level 30 simply refers to a quantity of cocaine

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base of at least 50 grams but less than 150 grams, nothing more. See

§ 2D1.1(c)(5). The second stipulation provides that, unless the probation

officer determines that Roberts has not actually accepted responsibility for

his offense, Roberts’s total offense level—which is not stipulated to—will be

reduced by two levels. See § 3E1.1. The third stipulation provides that both

the government and Roberts may consider the facts in the forthcoming

presentence report (e.g., employment record, educational background,

substance abuse, family characteristics, extent and seriousness of criminal

history) and argue at sentencing for increases or decreases to Roberts’s

offense level based on any applicable specific offense characteristic or

guideline adjustment.

The plea agreement makes no reference to Chapter Four of the

Guidelines, including the career offender provision found in § 4B1.1(b).

Neither does it reference Roberts’s extensive criminal history which qualifies

him as a career offender.1 This is unsurprising. In most cases, a presentence

report sets forth a defendant’s official criminal history and establishes the

factual basis for the government to argue for applying the career offender

provision. The presentence report is completed by a probation officer well

after a plea agreement is entered into but prior to sentencing.2 Thus, at the

time a plea agreement is entered into, the government often does not have all

of the facts relevant to sentencing. Only the defendant (and possibly defense

counsel) would know the full extent and seriousness of the defendant’s

1

Roberts qualifies as a career offender because (1) he was at least 18 years old when

he committed the instant offense, (2) the instant offense is a controlled substance felony, and

(3) Roberts has at least two prior controlled substance felonies. See § 4B1.1(a). The only

question is whether the government may argue in favor of applying the career offender

provision. For the reasons discussed above, I would answer yes.

2

For example, in this case the plea agreement was entered into by the government and

Roberts on July 21, 2008, but the presentence report was not disclosed to either party until

October 31, 2008, more than three months later.

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criminal history. What would be surprising is the government stipulating in

a plea agreement to ignore a defendant’s criminal history, and a defendant

expecting it to ignore such history, when such relevant facts will likely

remain uncertain to the government until closer to sentencing.

The plea agreement expressly reserves the government’s right to argue

in favor of “guideline adjustments.” We should therefore look to the

Guidelines to determine whether applying the career offender provision

constitutes an “adjustment.” We should then look to the relevant case law to

the extent it can aid us in reaching the correct determination. I believe that

both the Guidelines and the case law support finding the application of the

career offender provision to be an adjustment.

THE GUIDELINES

We should first look to the Guidelines themselves. The Guidelines are

purposefully structured to provide for application of its provisions in a precise

sequence. See § 1B1.1; United States v. Martinez-Noriega, 418 F.3d 809, 812

(8th Cir. 2005); United States v. Ventura, 353 F.3d 84, 92 (1st Cir. 2003). For

drug offenders such as Roberts, Chapter Two establishes what is clearly

labeled a “Base Offense Level” solely on the basis of the quantity of drugs.

See § 2D1.1(c). The plea agreement stipulates to a base offense level of 30

under Chapter Two.

Only after the base offense level is established under Chapter Two do

other provisions of the Guidelines apply. Chapter Three is titled

“Adjustments,” but the Guidelines in no way indicates that Chapter Three is

its exclusive source of adjustments. Chapter Four determines a defendant’s

“Criminal History and Criminal Livelihood” and it includes a provision that

may raise the already established base offense level for “career offenders.”

See § 4B1.1(b). The table in Chapter Four simply sets forth what “Offense

Level” is to be used “if [the listed offense level is] greater than the offense

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level otherwise applicable.” Id. It does not purport to establish a “new” or

“replacement” base offense level, as the majority labels it. By its own terms,

the career offender provision can only be used to increase (another way of

saying “enhance” or “adjust upward”) a separate and previously established

offense level.

Moreover, in its Application Instructions, the Sentencing Commission

gives specific instructions to “[d]etermine the defendant’s criminal history

category as specified in Part A of Chapter Four [and then] [d]etermine from

Part B of Chapter Four any other applicable adjustments.” § 1B1.1(f)

(emphasis added). Thus, the Commission itself considers application of the

career offender provision found in Part B of Chapter Four to be an

“adjustment” as it understands such term. I agree with the Commission’s

interpretation of the Guidelines.

THE CASE LAW

After we consider the structure, sequencing, and express language of

the Guidelines, we should look to controlling or persuasive case law. Like the

majority, I have not found any published opinion from our circuit or any other

circuit analyzing the specific issue we face today.

However, we considered this exact question earlier this year in

Traugott, a case with nearly identical facts and a nearly identical plea

agreement. See 364 F. App’x at 925. I would not dismiss our conclusion in

that case as casually as does the majority. While Traugott is unpublished

and therefore not controlling, it is persuasive and aids us in the correct

determination of this case. See F ED R. A PP. P. 32.1(a); 5 TH C IR. R. 47.5.4;

United States v. Meraz-Enriquez, 442 F.3d 331, 333 (5th Cir. 2006). In

Traugott, we stated that “the stipulation [under § 2D1.1(c)] merely confirms

the appropriate guidelines section applicable to [the defendant’s] offense. It

does not preclude application of the career offender enhancement.” Traugott,

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364 F. App’x at 925. That is, when asked whether the government’s right to

argue in favor of “adjustments” at sentencing also included the right to argue

in favor of applying the career offender provision, we answered “yes.” Id. The

only difference between this case and Traugott is that the Traugott defendant

orally acknowledged that his criminal history could increase the applicable

guidelines range, but such an acknowledgment simply restates what is

already written in the stipulation. Id. I would follow Traugott.

The majority points to two published cases where we refer to the career

offender offense level as a “base offense level,” but both references involved no

analysis of this specific issue (unlike Traugott) and were dicta. See United

States v. Anderson, 591 F.3d 789, 790 (5th Cir. 2009); United States v.

Rodriguez-Jaimes, 481 F.3d 283, 284 (5th Cir. 2007); but see United States v.

Hopkins, 318 F. App’x 297, 298 (5th Cir. 2009) (unpublished) (stating in dicta

that application of the career offender provision is an “adjustment”). The

majority also points to two other published cases, but each of them involved

stipulated “total” offense levels. See United States v. Fowler, 445 F.3d 1035,

1037 (8th Cir. 2006); United States v. Rivera, 357 F.3d 290, 295 (3d Cir.

2004). Those cases are easily distinguishable: the government in each of

those cases argued for additional offense levels after it had stipulated to a

“total” offense level; the government in this case only stipulated to the “base”

offense level and expressly reserved the right to argue for adjustments to the

base offense level.

I have found published cases in eight circuits that refer to the

application of the career offender provision as an “adjustment.” See, e.g.,

United States v. Hopkins, 577 F.3d 507, 508 (3d Cir. 2009); Martinez-Noriega,

418 F.3d at 812; United States v. Jeppeson, 333 F.3d 1180, 1183 (10th Cir.

2003); Ventura, 353 F.3d at 92; In re Sealed Case No. 98-3116, 199 F.3d 488,

489 (D.C. Cir. 1999); United States v. Unthank, 109 F.3d 1205, 1208 (7th Cir.

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1997); United States v. Daly, 974 F.2d 1215, 1218 (9th Cir. 1992); United

States v. Downs, 955 F.2d 397, 399 (6th Cir. 1992). While I acknowledge that

none of these cases specifically analyzed the issue we faced in Traugott and

we decide today, I cite them to show that there is at least as much support in

the non-controlling case law for my interpretation of “adjustment” as there is

for the majority’s interpretation. I believe that the most persuasive case law

on point supports finding the application of the career offender provision to be

an adjustment.

CONCLUSION

I disagree with the majority’s constricted reading of the term

“adjustment.” It is not based in the structure, sequencing, or express

language of the Guidelines, nor is it founded upon controlling or particularly

persuasive case law. Moreover, its denomination of any career offender

offense level as a “new” or “replacement” base offense level is wholly without

support.3 I would hold that application of the career offender provision of

Chapter Four—at least after a defendant’s base offense level has already been

established pursuant to § 2D1.1(c) in a drug case—is an adjustment. As such,

because the government did not breach the plea agreement by arguing in

3

Whether a base offense level is adjusted by a set number of levels (e.g., “increase by

[X] levels”) or adjusted to a pre-set level (e.g., “increase to level [X]”) does not change the fact

that the increase is an adjustment. For example, § 2D1.1(b)—the “specific offense

characteristic” provision for drug crimes—provides in certain circumstances for a two- or

three- level increase or, “if the resulting offense level is less than level [X], increase to level

[X].” See § 2D1.1(b)(2), (10). Structurally, such an increase to a specific pre-determined level

under § 2D1.1 is the same as § 4B1.1's “if greater than” increase to a specific pre-determined

level. It too would be an impermissible “new” or “replacement” base offense level under the

majority’s reasoning, even though the plea agreement expressly permits the government to

argue for specific offense characteristic increases at sentencing.

17

Case: 09-40268 Document: 00511265108 Page: 18 Date Filed: 10/15/2010

No. 09-40268

favor of applying the career offender provision, I would find Roberts’s appeal

waiver valid and affirm the district court’s sentence.4

4

The district court ultimately sentenced Roberts to 168 months imprisonment. This

sentence is well below the range recommended by both the government and the presentence

report (262–327 months) and is within the range that would be applied if the district court

looked at the plea agreement’s stipulated offense level and nothing else (140–175 months).

The original sentencing judge was not bound by the plea agreement, however, and neither will

the next sentencing judge. The next sentencing judge may decide to apply the career offender

provision, following the presentence report’s recommendation, even without the government’s

argument in favor of it. It is very possible that Roberts will receive a much harsher sentence

from a different sentencing judge on remand than the 168-month sentence he has today.

18