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United States v. Tate

United States Court of Appeals, Fourth Circuit

January 11, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
BRANDON TATE, Defendant-Appellant.

          Argued: October 28, 2016

         Appeal 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)

         Affirmed by published opinion. Judge Floyd wrote the opinion, in which Chief Judge Gregory and Judge Keenan joined.

         ARGUED:

          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.

         ON BRIEF:

          Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

          Before GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.

          FLOYD, Circuit Judge:

         Appellant 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.

         I.

         In a 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.

         A 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.

         A 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 ...


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