Argued: October 28, 2016
from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:13-cr-00296-RJC-1)
by published opinion. Judge Floyd wrote the opinion, in which
Chief Judge Gregory and Judge Keenan joined.
Roderick Morris Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE,
PLLC, Charlotte, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.
Brandon Tate signed a plea agreement in which the government
agreed to seek a sentence at the lowest end of the
"applicable guideline range." At sentencing, the
government recommended a sentence at the lowest end of the
guideline range found by the district court. Tate now argues
that in doing so, the government breached the plea agreement.
Tate contends that the government was actually obligated to
recommend a sentence at the lowest end of the
correct guideline range, which, in his view, was
lower than the range found by the court. We disagree, and
hold that in this case, the phrase "applicable guideline
range" only obligated the government to recommend a
sentence at the lowest end of the guideline range found by
the district court. Because the government fulfilled this
obligation, it did not breach the plea agreement.
Accordingly, we affirm.
written plea agreement, Tate agreed to plead guilty to
possession with intent to distribute and distribution of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C) (2012). The plea agreement stated that the
government would "seek a sentence at the lowest end of
and either party may seek a departure or variance from the
'applicable guideline range.' (U.S.S.G. §
5C1.1)." J.A. 74. Additionally, Tate agreed to waive all
"rights to contest the conviction except for: (1) claims
of ineffective assistance of counsel or (2) prosecutorial
misconduct." J.A. 77. Tate also agreed to waive
"all rights conferred by 18 U.S.C. § 3742 or
otherwise to appeal whatever sentence is imposed with the two
exceptions set forth above." Id.
magistrate judge then held a hearing pursuant to Federal Rule
of Criminal Procedure 11. At the hearing, Tate consented to
plead guilty, and the magistrate judge established Tate's
competence to plead guilty and his understanding of the terms
of his plea agreement.
presentence report (PSR) and, later, a revised PSR were then
prepared. The revised PSR calculated a base offense level of
24 under the Sentencing Guidelines. Tate then received a
three-level reduction for acceptance of responsibility, which
resulted in a total offense level of 21. The revised PSR then
assigned Tate seven criminal history points and calculated
his criminal history as Category IV. This criminal ...