US v. Dwayne Frazier

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:11-cr-00095-MJG-2 Copies to all parties and the district court/agency. [999379772].. [13-4462]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4462

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE FRAZIER,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Marvin J. Garbis, Senior District
Judge. (1:11-cr-00095-MJG-2)

Argued:

March 20, 2014

Decided:

June 20, 2014

Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and Max O.
COGBURN, Jr., United States District Judge for the Western
District of North Carolina, sitting by designation.

Affirmed by unpublished opinion.
opinion, in which Judge Motz joined.
a separate concurring opinion.

Judge Cogburn wrote the
Chief Judge Traxler wrote

ARGUED: Doug Keller, Washington, D.C., for Appellant.
John
Walter Sippel, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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COGBURN, District Judge:
Dwayne Frazier pled guilty to one count of carjacking in
contravention of 18 U.S.C. § 2119 and received a sentence of 144
months imprisonment.

Frazier challenges his conviction, arguing

that the district court erred by declining to hold a competency
hearing

after

defense

counsel

raised

concerns

regarding

Frazier’s ability to aid in his own defense at trial.

Frazier

also contends that the district court committed reversible error
by

failing

failing

to

to

apply

the

independently

proper

sentencing

exercise

before accepting Frazier’s plea.

its

standard

sentencing

and

by

discretion

For the reasons that follow,

we affirm.
I.
In January of 2012 a grand jury in the District of Maryland
returned a six-count superseding indictment against Frazier and
a co-defendant (“the indictment”).
following

charges:

a

conspiracy

The indictment alleged the
to

commit

carjacking,

in

violation of 18 U.S.C. § 371; two substantive carjacking counts,
in violation of 18 U.S.C. § 2119; two counts of possession and
brandishing of a firearm in furtherance of a crime of violence,
in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and possession of
a firearm by a convicted felon, in violation of 18 U.S.C. §
922(g).
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A.
The Friday before Frazier’s trial was to begin, defense
counsel

filed

detailing
proceed

his
to

Frazier’s
versus

a

letter

concerns

trial.

ability

a

under

regarding

Among
to

plea”;

seal

his

defense

“understand

“to

with

assist

the

district

client’s

The

following

Monday,

the

competency

counsel’s

concerns

the

pros

and

in

his

defense”;

“intelligently elect whether to testify or not.”
district

court

cons

of

to

were
trial

and

to

S.J.A. 1.

court

inquired

into

these concerns with defense counsel and Frazier, outside of the
presence of the government.
court

that

nothing

After being assured by the district

disclosed

during

the

ex

parte

discussion

would be considered during sentencing, defense counsel explained
to

the

district

court

that,

based

on

approximately

“a

dozen

visits” with his client, he believed Frazier to be “habitually
under the use [sic] of narcotics at the Chesapeake Detention
Facility.”

S.J.A. 5.

Defense counsel explained that during his

visits with Frazier he “noticed stains on his fingernails.”
He

noted

that

Frazier’s

eyes

were

“glassy”

could not pay “any degree of attention.”

Id.

and

that

Id.

Frazier

Defense counsel

also noted that Frazier “giggled and was giddy at inappropriate
moments.”

Id.

Counsel explained that he believed such supposed

narcotic use affected Frazier’s competency to proceed to trial

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principally because Frazier “may or may not be able to assist”
in his own defense.

S.J.A. 5-6.

Frazier discussed his mental health status with the court
and attributed his behavior to the high levels of stress and
anxiety he was experiencing.

Frazier explained that he had not

seen his family in many years, including a two-year-old son whom
he

had

not

seen

at

all.

He

explained

that

he

had

been

incarcerated for 16 years prior to being charged in the instant
case and the prospect of an additional 33 years of imprisonment
should he be convicted pushed his “stress level . . . off the
chart.”

S.J.A. 9.

Since his incarceration he had been placed

on a series of medications including Neurontin and Prozac, and
while

he

admitted

that

he

“smoke[ed]”

and

that

this

was

a

“problem at the Chesapeake Detention Center,” he also explained
that he had never had a positive urinalysis “for any substance.” 1
S.J.A. 8.
After

hearing

all

such

testimony,

the

district

court

determined that there was no basis to find Frazier incompetent

1

It is unclear what type of substance Frazier was admitting
to smoking, and defense counsel did not inquire into the matter
any further.
The district court explained that the stains on
Frazier’s fingers, which defense counsel noted in his colloquy,
were not indicative of incompetence because it was not clear
what substance Frazier was smoking.
The district court opined
that they could have been tobacco stains, or they could be from
the use of “marijuana or something else.” S.J.A. 11.

4

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to proceed to trial.

The district court explained that, at its

request,

States

the

United

Marshal’s

Office

conferred

with

authorities at the detention facility where Frazier was being
held, who confirmed that there was no indication that Frazier
had taken any illegal drugs.
that,

as

recently

as

the

The district court also noted

week

before,

Frazier

had

written

letters to the court in which he had no difficulty expressing
himself.

The

district

court

explained

that

the

letters

contained no indication that Frazier was delusional or had any
difficulty making judgments.

While the district court accepted

as true defense counsel’s observations of his client, the court
concluded that there was no reason to suspect that Frazier was
incompetent to proceed to trial.

While Frazier did seem to

giggle at inappropriate moments, the district court explained
that such behavior “just seem[ed] to be his manner.”

S.J.A. 11.

B.
After discussing Frazier’s competency outside the presence
of

the

government,

the

district

selection in Frazier’s trial.

court

then

turned

to

jury

Moments before that was to begin,

however, the parties notified the district court that they had
reached

a

plea

agreement

in

principle

and

requested

a

brief

recess for the government to prepare a written agreement.
Frazier subsequently signed a plea agreement pursuant to
FED.R.CRIM.P. 11(c)(1)(C), under which the parties agreed to a
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proposed 144

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month

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sentence.

Frazier

would

plead

guilty

to

Count Two of the Indictment, one of the substantive carjacking
counts, and in exchange the government agreed to dismiss the
remaining counts in the Indictment.
The

district

court

proceeded

through

a

lengthy

colloquy

with Frazier regarding the terms of the plea agreement during
which it explained that if the plea was accepted, the sentence
imposed would be 144 months.

The district court also conducted

further inquiry into Frazier’s competency before fully advising
Frazier of the rights he would have at trial including his right
to

testify,

the

presumption

of

innocence,

the

government’s

burden, and his right to appeal should he be convicted.
being

so

advised,

Frazier

confirmed

that

he

still

After

wished

to

plead guilty and the court accepted his plea.
Upon Frazier’s request and consent by the government, the
district

court

then

proceeded

directly

to

sentencing.

The

district court began by pronouncing Frazier’s criminal history
category, the stipulated offense level under the proposed plea
agreement,
months.

and

the

applicable

guideline

range

of

135

to

168

The district court then allowed the government, defense

counsel, and Frazier the opportunity to speak.

Defense counsel

stated that Frazier had asked “several intelligent questions”
and that defense counsel believed that Frazier was competent to
proceed with the plea hearing.

J.A. 50-51.
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The district court then considered the proposed 144 month
sentence, noting that such a sentence was consistent with the
plea

agreements

district

offered

court

to

concluded

Frazier’s

that,

having

co-defendants.
already

tried

The
one

of

Frazier’s co-defendants and being thoroughly familiar with the
particular facts of the case, the proposed sentence was “in the
range of reasonableness,” and ultimately accepted the 144 month
sentence as the appropriate term of imprisonment.

J.A. 75.

II.
Frazier now appeals his sentence, contending that (1) the
district

court

erred

by

not

holding

a

competency

hearing

to

determine whether he could proceed to trial; and (2) that the
district court erred by sentencing him to the agreed upon 144
month term of imprisonment.
A.
We

hold

that

the

district

court

did

not

discretion in failing to order a competency hearing.

abuse

its

Title 18,

United States Code, Section 4241(a) requires a district court to
hold such a competency hearing “if there is reasonable cause to
believe that the defendant may presently be suffering from a
mental disease or defect rendering him mentally incompetent to
the

extent

consequences

that
of

he
the

is

unable

to

proceedings

properly in his defense.”

understand
against

him

the
or

18 U.S.C. § 4241(a).
7

nature
to

and

assist

Even if no

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motion is made by counsel, “[t]he district court must sua sponte
order a competency hearing if reasonable cause is demonstrated.”
United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).
Whether reasonable cause has been demonstrated, however, is left
to the discretion of the district court.

Id. at 1289.

Frazier’s challenge on appeal is a “procedural competency
claim,” that is, he need not demonstrate that he was in fact
incompetent at the time of his guilty plea and sentencing, but
merely

that

the

district

competency hearing.
(4th Cir. 2007).
the

trial

court

court

erred

by

not

ordering

a

United States v. Banks, 482 F.3d 733, 742

“To prevail, the defendant must establish that
ignored

facts

raising

a

bona

fide

regarding the defendant's competency to stand trial.”

doubt

Walton v.

Angelone, 321 F.3d 442, 459 (4th Cir. 2003) (internal quotation
marks omitted). 2
We

review

the

district

court’s

determination

that

no

reasonable cause existed to order a competency hearing for abuse
of discretion, under which, “this Court may not substitute its
2

While Frazier waived his right to appeal in his plea
agreement, a criminal defendant may not “plead guilty unless he
does so ‘competently and intelligently.’” Godinez v. Moran, 509
U.S. 389, 396 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,
468 (1938)).

8

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judgment

for

determine

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that

of

whether

the

the

Pg: 9 of 22

district
court's

court;

rather,

exercise

of

we

must

discretion,

considering the law and the facts, was arbitrary or capricious.”
Mason, 52 F.3d at 1289.
Appellant’s principal contention is that the district court
should have deferred to defense counsel’s impression that he was
under the influence of narcotics rendering him unable to assist
in

his

own

court’s

defense.

observations

He

further

regarding

contends
Frazier’s

that

the

district

competency

were

“qualitatively less meaningful” than those of defense counsel,
who had the “unique vantage point” of observing his behavior
numerous times over a six-month period.

According to appellant,

the district court’s interaction with him was brief and involved
“little back-and-forth discussion.”
Besides defense counsel’s own statements of what he and his
investigators had observed, nothing before the district court
suggested

that

Frazier

was

incompetent

to

assist

in

his

own

defense.

The district court accepted as true defense counsel’s

impression, but determined that reasonable cause did not exist
to suspect that Frazier was incompetent to stand trial in the
face of other available evidence.

See Mason, 52 F.3d at 1290

(“The trial court must look at the record as a whole and accept
as true all evidence of possible incompetence in determining

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whether

to

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order

a

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competency

hearing.”)

(internal

quotation

marks omitted).
“The

district

court

evidence

pertaining

(1)

history

of

at

prior

any

demeanor

and

to

should

the

defendant's

irrational
to

opinions on competency.”

examine

of

the

competence,

behavior;

sentencing;

all

(2)

and

the

(3)

record

including:
defendant's

prior

medical

United States v. Moussaoui, 591 F.3d

263, 291 (4th Cir. 2010) (citing United States v. General, 278
F.3d

389,

omitted).

397

(4th

Cir.

2002))

(internal

quotation

marks

Here, the district court properly considered that

Frazier had not tested positive for drug use at the detention
facility where he was being held, a fact which was bolstered by
Frazier’s own statement that although he “smoked,” he had never
tested

positive

attributed
noticed

to

any

during
odd

stress

any

behavior
and

urinalysis.
that

anxiety,

for

defense
which

Instead,
counsel
he

was

Frazier
may

have

prescribed

medication.
The district court further noted that Frazier, in a series
of pro se letters to the court, had demonstrated that he was
clearly capable of expressing himself and was not delusional.
Frazier contends that such statements indicate that the district
court applied the wrong standard in determining his competency.
Under § 4241(a), a competency hearing is required if there is
reasonable cause to believe a defendant is “unable to understand
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the nature and consequences of the proceedings against him or to
assist properly in his defense.”
added).

18 U.S.C. § 4241(a) (emphasis

According to Frazier, the district court’s statements

indicate that it failed to consider whether he was competent to
assist in his own defense.
A complete and thorough review of the transcript, however,
reveals that this argument mischaracterizes the district court’s
analysis during the ex parte hearing.

Furthermore, it puts the

cart before the horse in the § 4241 analysis in that it assumes
the district court had determined that Frazier was suffering
from

a

mental

disease

or

defect.

By

its

terms,

§

4241

presupposes that before a district court analyzes the effect a
defendant’s mental disease or defect may have on defendant’s
competency

to

understand

the

nature

and

consequences

of

the

proceedings against or to assist properly in his defense, it has
already found that the defendant does indeed suffer from such a
mental

disease

questioning

or

and

defect.

analysis

Here,

the

indicates

that

district
it

was

court’s
simply

considering all available evidence to determine whether Frazier
suffered

from

any

mental

properly

determining

that

affliction
Frazier

to

was

begin

not

with.

suffering

After
from

a

mental disease or defect, there was no need to continue the
analysis.

The fact that Frazier was taking Neurontin and Prozac

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does not necessarily mean that he was suffering from a mental
disease or defect.
Frazier

suggests

that

the

district

court

should

have

ordered a psychiatric evaluation under § 4241(b), but provides
no indication of how the district court abused in its discretion
in declining to do so.
(b)

provides

that

Setting aside the fact that subsection

“the

court

may

order

a

psychiatric

or

psychological examination,” nothing in the record suggests that
such an examination would have aided the district court in its
determination.

18 U.S.C. § 4241(b) (emphasis added).

Frazier

contends that an evaluation was warranted because the source of
Frazier’s

cognitive

difficulty

was

not

clear.

Again,

Appellant’s argument assumes too much by concluding that Frazier
was

indeed

suffering

from

cognitive

difficulty

when,

besides

defense counsel’s impression, nearly all the available evidence
was to the contrary.

As the district court noted, Frazier may

have exhibited odd behavior, but that “just seem[ed] to be his
manner.”

And when Frazier was allowed the opportunity to speak

about his counsel’s concerns, he attributed his odd behavior to
stress, depression, and the medication he had been prescribed.
Frazier did not show any sign of incompetency during the ex
parte

hearing

or

the

sentencing

hearing.

He

was

able

to

understand the district court’s questions and concerns without
any difficulty and respond precisely and cogently.
12

Further,

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when the issue of Frazier’s competency arose during the plea
hearing,
stated

defense

that

he

counsel

abandoned

believed

Frazier

his

was

earlier

“competent

concerns
to

and

proceed.”

J.A. 50-51.
The requirement of § 4241(a) that the district court grant
a

competency

expanded

to

hearing

when

require

such

reasonable
a

hearing

cause

exists

whenever

cannot

defense

be

counsel

raises concerns regarding his client’s competency or where a
defendant takes prescribed medication.
the

district

court

in

its

Ultimately, it is up to

discretion

to

determine

whether

reasonable cause exists to require a competency hearing.
therefore

find

that

the

district

court

did

not

abuse

We
its

discretion in failing to order a hearing to determine Frazier’s
competency to stand trial.
B.
Appellant
deferring

to

next

contends

the

plea

the

district

agreement

in

sentence of 144 months imprisonment.
case

was

proffered

pursuant

Procedure 11(c)(1)(C).

to

court

determining

erred

by

Frazier’s

The plea agreement in this
Federal

Rule

of

Criminal

Under Rule 11(c)(1)(C), the parties may

stipulate that “a specific sentence or sentencing range is the
appropriate disposition of the case.”

FED.R.CRIM.P. 11(c)(1)(C).

“[S]uch a recommendation or request binds the court once the
court

accepts

the

plea

agreement.”
13

Id.

In

this

case,

the

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parties

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agreed

in

the

Pg: 14 of 22

plea

agreement

that

144

months

imprisonment was the appropriate sentence.
Appellant contends that the district court erred by not
first

independently

then,

considering

determining
that

sentence,

accept defendant’s plea.
3553(a)

requires

the

appropriate

deciding

sentence

whether

it

and

could

Title 18, United States Code, Section

district

courts

to

“impose

a

sentence

sufficient, but not greater than necessary, to comply with the”
four congressionally mandated goals of sentencing.
3553(a)(2).

In

determining

the

appropriate

18 U.S.C. §

sentence

for

a

defendant, § 3553(a) requires the court to consider these goals
as well as the other factors listed in subsection (a).
Appellant contends that the district court erred because it
failed

to

consider

sentence.

these

factors

in

determining

Frazier’s

According to Appellant, the district court applied

the wrong standard and accepted the plea because the recommended
144 month sentence was “in the range of reasonableness.”

J.A.

75; see United States v. Tucker, 473 F.3d 556, 561 (4th Cir.
2007) (holding that a district court’s mission in sentencing is
not

to

impose

a

‘reasonable’

sentence

but

rather,

one

sufficient, but not greater than necessary, to comply with the
purposes

of

appropriate
“abdicat[ed]

§

3553(a)).

sentence,
its

By

Appellant

constitutional
14

not

first

argues,
duty

to

determining

the

district

exercise

its

the
court
own

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independent judgment in sentencing Mr. Frazier.”

Appellant’s

Br. 38.
The government contends that this court need not reach this
issue as Frazier waived his right to appeal his sentence in his
plea

agreement

dismissed.

and

that

“Whether

a

this

portion

defendant

has

of

his

appeal

effectively

must

waived

be
his

statutory right to appeal his sentence is a question of law
subject to de novo review.”

General, 278 F.3d at 399.

We “will

enforce the waiver if it is valid and the issue appealed is
within the scope of the waiver.”
F.3d

349,

355

(4th

Cir.

United States v. Davis, 689

2012).

Frazier’s

plea

agreement

contains the following provision:
The Defendant and this Office knowingly waive all
right . . . to appeal whatever sentence imposed . . .
except as follows: (i) the Defendant reserves the
right to appeal any sentence to the extent that it
exceeds 144 months imprisonment; and (ii) this Office
reserves the right to appeal any term of imprisonment
to
the
extent
that
it
is
below
144
months’
imprisonment.
J.A. 85.
“The validity of an appeal waiver depends on whether the
defendant knowingly and intelligently agreed to waive the right
to appeal.”
2005).

United States v. Blick, 408 F.3d 162, 169 (4th Cir.

Whether an appeal waiver was knowing and intelligent is

determined based on the totality of the circumstances and “must
depend,

in

each

case,

upon

15

the

particular

facts

and

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circumstances surrounding that case, including the background,
experience, and conduct of the accused.”

Id. (quoting United

States v. Davis, 954 F.2d 182, 186 (4th Cir. 1992)).
In this case, the record fully establishes that Frazier
knowingly

and

intelligently

waived

his

right

sentence if it did not exceed 144 months.

to

appeal

his

During the plea

colloquy the district court unambiguously informed Frazier of
the appeal waiver in his plea agreement.

The district court

explained that should he be convicted at trial, he would have
the

right

to

appeal

his

conviction.

By

signing

the

plea

agreement, the district court explained, he would be waiving his
right

to

appeal

the

conviction.

The

district

court

also

explained that under the plea agreement Frazier would waive his
right

to

appeal

any

sentence

not

greater

than

12

years.

Frazier’s unequivocal response was that he understood and that
he

wished

to

move

forward

with

his

guilty

plea.

Moreover,

Frazier discussed the plea agreement with defense counsel and
confirmed that he was satisfied that he was “doing the right
thing” by waiving his right to appeal any sentence in excess of
12 years.

J.A. 55.

Appellant

contends

that

the

appeal

waiver

is

not

valid

because “the district court never validly accepted” the plea
agreement.

Appellant’s Br. 47.

Appellant contends that because

the district court failed to exercise its sentencing authority
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to independently determine the appropriate sentence, the plea
agreement was never validly accepted, and because the plea was
never validly accepted, the plea waiver has no vitality.
Whether the district court was required to consider the §
3553(a)

factors

accepting

to

Frazier’s

determine

the

plea

no

has

waiver in the plea agreement.
sentencing
procedure.

are

two

separate

appropriate
impact

on

sentence

the

valid

before
appeal

The acceptance of a plea and

and

distinct

phases

of

criminal

Acceptance of a plea is governed by Federal Rule of

Criminal Procedure 11(b) while sentencing is governed by Rule
32.

Not only is there no binding authority for Appellant’s

proposition, Federal Rule of Criminal Procedure 11(d) recognizes
that acceptance of a plea is distinct from sentencing, as a plea
may be withdrawn “after the court accepts the plea, but before
it imposes sentence.”
knowingly

and

FED.R.CRIM.P.11(d)(2).

intelligently

waived

his

right

Because Frazier
to

appeal

any

sentence in excess of 12 years pursuant to his plea agreement,
we dismiss his sentencing challenge.
III.
For the foregoing reasons, we affirm the judgment of the
district court.

AFFIRMED

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TRAXLER, Chief Judge, concurring in the result:
I agree, for the reasons expressed by the majority, that
the district court did not abuse its discretion in failing to
order a competency hearing.

However, because my analysis of the

other issue Frazier raises differs from that of the majority, I
write separately.
When
Federal

a

defendant

Rule

of

pleads

Criminal

guilty

Procedure

to

a

charged

11(c)(1)(C)

offense,

allows

the

parties to “agree that a specific sentence or sentencing range
is the appropriate disposition of the case.”

When the parties

reach this type of agreement (“a C-plea”), “the court may accept
the agreement, reject it, or defer” its decision until after
reviewing the presentence report.

Fed. R. Crim. P. 11(c)(3)(A).

Yet although the court is free to accept or reject the plea
agreement, the parties’ agreed-upon sentence “binds the court
once the court accepts the plea agreement.”
11(c)(1)(C).
accepting

his

Fed. R. Crim. P.

Frazier contends that the district court erred in
C-plea

without

finding

that

the

agreed-upon

sentence was sufficient but not greater than necessary to serve
the sentencing goals identified in 18 U.S.C. § 3553.
The government argues that we need not review the merits of
Frazier’s argument because Frazier’s plea agreement contains a
waiver of his right to appeal a sentence of 144 months, the
sentence Frazier received.

I disagree.
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that the district court committed reversible error in accepting
the plea agreement, then the agreement is invalid and neither
side

is

waiver.

bound

by

the

terms

therein,

including

the

appellate

See United States v. Portillo-Cano, 192 F.3d 1246, 1250

(9th Cir. 1999).

I therefore turn to the merits of Frazier’s

argument.
Because Frazier asserts it for the first time on appeal,
our review is for plain error only.
507 U.S. 725, 732 (1993).
defendant must show:

See United States v. Olano,

To succeed on plain-error review, a

(1) there was error, (2) the error was

plain, and (3) the error affected his substantial rights.
id.

Even

if

a

defendant

can

satisfy

these

See

requirements,

correction of the error remains in the court’s discretion, which
it “should not exercise . . . unless the error seriously affects
the

fairness,

proceedings.”

integrity,
Id.

or

(internal

public

reputation

quotation

marks

of

and

judicial
alteration

omitted).
Sentencing Guidelines § 6B1.2(c) governs whether a district
court should approve a plea agreement that includes a specific
sentence.

The policy statement states that

the court may accept the agreement if the court is
satisfied either that:
(1) the agreed sentence
guideline range; or

is

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within

the

applicable

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(2) (A) the agreed sentence is outside the applicable
guideline range for justifiable reasons; and (B) those
reasons are set forth with specificity in the
statement of reasons form.
U.S.S.G. § 6B1.2(c) p.s.; see Freeman v. United States, 131 S.
Ct.

2685,

2692

(2011)

(plurality

opinion);

id.

at

2696

(Sotomayor, J., concurring in the judgment).
Here, the district court explicitly noted that the parties
had stipulated that the applicable guideline range was 135 to
168

months,

and

Frazier

does

not

argue

otherwise

now.

In

arguing that the district court’s finding that the agreed-upon
sentence was reasonable did not provide a sufficient basis for
the district court to adopt the plea agreement, Frazier does not
make reference to U.S.S.G. § 6B1.2(c).
in

order

needed

to

to

validly

adopt

the

explicitly

find

that

Rather, he argues that,

agreement,
the

the

district

agreed-upon

court

sentence

was

“‘sufficient, but not greater than necessary’” to accomplish the
goals of sentencing.
101

(2007)

(quoting

Kimbrough v. United States, 552 U.S. 85,
18

U.S.C.

§

3553(a)).

Essentially,

his

argument would allow the district court to accept a C-plea only
if the agreed-upon sentence were exactly the sentence that the
district court would have imposed if left to its own devices.

I

am not aware of any case that has limited a district court’s
discretion regarding whether to accept a C-plea in this way, and
such a limitation would seem to be at odds with U.S.S.G. §

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6B1.2(c).

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Thus, in my view, the district court did not err –

and certainly did not plainly err – in approving the agreement.

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