UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
PARRISH D. COLE, DEFENDANT-APPELLANT
.  No. 06-2547.

Parrish Cole entered into a written plea agreement with the government in which he acknowledged distributing less than 400 grams of heroin and less than a kilogram of marijuana. The district court accepted the plea agreement but found, based on information in the presentence report, that Cole should be held responsible for a greater quantity of drugs than the amounts he had admitted in the agreement.

The court increased Cole's guidelines range accordingly and sentenced Cole to 97 months in prison, which was nearly double the sentence Cole expected if the court had followed the recommendations in the plea agreement. 
 
Cole challenges his sentence; although in his plea agreement he waived his right to appeal, he argues that the appeal waiver is unenforceable because the district court's independent calculation of the drug quantities effectively nullified the agreement.

We disagree. The enforceability of Cole's appeal waiver hinges on whether the drug quantities in Cole's plea agreement were binding on the district court for sentencing purposes.

Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure provides that if the district court accepts a plea containing an agreement between the government and the defendant about a specific sentence, sentencing range, or the applicability of a specific guide-lines provision, policy statement, or sentencing factor, the court is bound by the parties' agreement for purposes of sentencing.

Cole's drug-quantity admissions in the plea agreement do not fall into any of these categories but are instead factual stipulations that fall outside Rule 11(c)(1)(C)'s scope and thus do not bind the district court.

Parrish Cole pleaded guilty to one count of distributing heroin in violation of 21 U.S.C. § 841(a)(1). As part of his written plea agreement with the government, Cole agreed that he had distributed between 100 and 400 grams of heroin and between 250 and 1,000 grams of marijuana. Cole also agreed to forfeit (among other things) $84,150 in cash, which he acknowledged he earned through his drug trade.

I. Background

The district judge waited until after he had received and reviewed the presentence report before accepting the plea agreement's recommendations. That report recommended converting the cash Cole agreed to forfeit into a drug quantity for sentencing purposes, see United States v. Rivera, 6 F.3d 431, 446-47 (7th Cir. 1993), something that neither the government nor Cole had considered during plea negotiations.

At sentencing the government asked the district court to adhere to the drug quantities Cole had admitted in his plea agreement in determining Cole's sentence, but the district court declined to do so; the judge concluded that U.S.S.G. § 6B1.4(d) permitted him to reject factual stipulations in the plea agreement. Adopting the information in the presentence report, the court treated the cash as the equivalent of 832 grams of heroin, which raised Cole's offense level by six levels and nearly doubled his applicable guidelines range.

II. Discussion

The government asks us to dismiss this appeal because Cole waived his right to appeal his sentence in his plea agreement.   Cole contends that the district court's sentencing decision did not comport with the requirements of Rule 11. 

The merits of Cole's Rule 11 claim are intertwined with the enforceability of his appeal waiver; if Rule 11 did not require the district court to use the drug-quantity amounts in Cole's plea agreement for sentencing purposes, then the plea is valid and Cole's appeal waiver is enforceable. Thus, "the plea and the waiver stand or fall together." Latham v. United States, 527 F.3d 651, 653 (7th Cir. 2008).

Plea agreements are governed by Rule 11(c), which makes some types of agreements between the government and a defendant binding upon the district court and others not.

Not all particularized provisions in a plea agreement operate to make a plea agreement binding on the district court. See FED. R. CRIM. P. 11(c)(1)(B) (providing that the district court is not bound by the parties' agreement that the government will "recommend, or agree not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does not apply").

Cole's plea agreement contained many provisions explicitly preserving the non-binding character of the agreement. For example, the agreement specifically stated that the district court "will determine the applicable guidelines range" and "will determine all matters, whether factual or legal, relevant to the application" of the guidelines, and that "the specific sentence to be imposed . . . will be determined by the judge."

Rule 11(c)(1)(C) only applies to agreements regarding sentences, sentencing ranges, or sentencing factors; it does not apply to factual stipulations.

Typically, Rule 11(c)(1)(C) agreements explicitly contain an agreed-upon sentence, e.g., United States v. Weathington, 507 F.3d 1068, 1070 (7th Cir. 2007), or an agreed-upon sentencing range, e.g., United States v. Blinn, 490 F.3d 586, 587 (7th Cir. 2007). Rule 11(c)(1)(C) agreements may also explain how an agreed-upon sentence will be affected by a court's resolution of disputed issues. See, e.g., United States v. Linder, 530 F.3d 556, 559 (7th Cir. 2008) (parties agreed defendant would be sentenced to 50% of the low end of the applicable guidelines range)(Linder is my work. mjp.).

Cole's plea agreement contains none of these indicia.

Instead, Cole's admissions regarding drug quantities are the equivalent of a stipulation of facts that falls outside Rule 11's scope. The district court is not bound by the parties' stipulations, a point confirmed by the guide-lines. See U.S.S.G. § 6B1.4 ("A plea agreement may be accompanied by a written stipulation of facts relevant to sentencing. . . . The court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing.")

The commentary accompanying § 6B1.4 emphasizes this point:  Section 6B1.4(d) makes clear that the court is not obliged to accept the stipulation of the parties. Even though stipulations are expected to be accurate and complete, the court cannot rely exclusively upon stipulations in ascertaining the factors relevant to the determination of the sentence. Rather, in determining the factual basis for the sentence, the court will consider the stipulation, together with the results of the presentence investigation, and any other relevant information.

Simply mentioning a particular guide-line provision (as Cole's plea agreement does) is not enough to convert a factual stipulation into a binding Rule 11(c)(1)(C) agreement.

If the parties meant to bind the district court at sentencing, then the agreement would have contained specific language to that effect. As it was, the agreement explicitly left all aspects of the guidelines calculation and the ultimate sentence up to the court. As such, the court was free to accept the plea yet rely on the presentence report to reach its own drug-quantity findings notwithstanding the parties' stipulation about the drug quantities.

Rule 11(c)(1)(C) does not apply to stipulated facts, and so the drug-quantity amounts in Cole's agreement did not constrain the district court's sentencing decision. Accordingly, the district court did not nullify Cole's plea by rejecting the drug-quantity stipulations in the plea agreement, and the appeal waiver in Cole's plea agreement is enforceable.

The appeal is DISMISSED.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com.

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