United States v. Harrier , 229 F. App'x 299 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 23, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 06-41090
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KEITH DAVID HARRIER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
No. 4:05-CR-226
Before HIGGINBOTHAM, WIENER and PRADO, Circuit Judges.
Per Curiam:*
Defendant-Appellant Keith David Harrier (“Harrier”) appeals
the sentence he received following his guilty plea to one count
of bank robbery in violation of 18 U.S.C. § 2113(a). For the
reasons that follow, we AFFIRM the sentence imposed by the
district court.
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
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I. FACTUAL AND PROCEDURAL BACKGROUND
On November 10, 2005, Harrier was charged by the grand jury
for the Eastern District of Texas with two counts of bank robbery
in violation of 18 U.S.C. § 2113(a). On March 10, 2006, Harrier
and his counsel signed a factual resume stipulating that Harrier
had robbed two banks: Bank One in Denton, Texas, on September 12,
2005 (the offense specified in count one of the indictment), and
Chase Bank in Denton, Texas, on September 20, 2005 (the offense
specified in count two of the indictment). Prior to the admission
of the second bank robbery, the factual resume states, “Pursuant
to U.S.S.G. § 1B1.3, Relevant Conduct, the following facts are
admitted by the Defendant and may be used in calculating his
sentencing guidelines.”
On March 13, 2006, without a written plea agreement, Harrier
pleaded guilty to count one. In the judgment entered on March 29,
2006, count two was dismissed on the motion of the United States.
At Harrier’s June 29, 2006 sentencing hearing, the district
court accepted the Presentence Report’s determination that two
points should be added to Harrier’s offense level on the basis of
Harrier’s commission of the second bank robbery. The court
concluded that, although Harrier had not pleaded guilty to nor
been convicted of this second bank robbery, the offenses admitted
in Harrier’s factual statement could be included in Harrier’s
offense level pursuant to U.S.S.G. § 1B1.2(c).
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Counsel for Harrier objected to the two-level increase at
the hearing, arguing that § 1B1.2(c) was inapplicable. Counsel
first claimed that “[t]here’s not a plea agreement, there’s just
a factual statement.” Counsel further argued that, in accordance
with the statement in his factual resume, Harrier admitted the
second bank robbery solely for “relevant conduct” analysis under
U.S.S.G. § 1B1.3.
The district court overruled Harrier’s objection. The court
stated, “If he’s admitting the second bank robbery and
stipulating to it in the factual statement, then under 1B1.2(c)
that additional offense shall be treated as if he had been
convicted of that offense.” The court cited United States v.
Moore, 6 F.3d 715 (11th Cir. 1993), in support of this
conclusion.
Harrier now timely appeals his sentence. Harrier’s sole
argument on appeal is that § 1B1.2(c) does not apply in his case
because he had no plea agreement.
II. JURISDICTION AND STANDARD OF REVIEW
This is an appeal from a final judgment of a district court
in a criminal case. This court has jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742. We review the district
court’s interpretation and application of the Guidelines de novo.
United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). We
review the district court’s factual findings for clear error.
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United States v. Creech, 408 F.3d 264, 270 (5th Cir. 2005).
III. ANALYSIS
Section 1B1.2(c) states:
A plea agreement (written or made orally on the record)
containing a stipulation that specifically establishes the
commission of additional offense(s) shall be treated as if
the defendant had been convicted of additional count(s)
charging those offense(s).
The plain language of § 1B1.2(c) makes clear that this
provision does not apply where there is no plea agreement
“written or made orally on the record.” Harrier argues that there
was no such plea agreement in his case. Harrier is correct that
there was no written plea agreement in his case. However, after
thoroughly reviewing the transcripts of Harrier’s plea hearing
and sentencing hearing, we conclude that there was a plea
agreement “made orally on the record.”
As Harrier points out, evidence against the existence of a
plea agreement can be found in the district court’s statements
that “I have no plea agreement,” “there is no plea agreement,” or
“you have no plea agreement.” A review of the full record,
however, makes clear that the court was referring on these
occasions to the absence of a written plea agreement. The
existence of an oral agreement between Harrier and the government
can be inferred from the facts that Harrier pleaded guilty to
count one of the indictment and the government dismissed count
two. This inference receives support from the court’s statement
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that “[Defense counsel] is telling me that Mr. Harrier is going
to enter a plea of guilty to count 1. Is that the government’s
agreement, to dispose of this case by receiving a plea of guilty
to one of the two counts?” and the government counsel’s
indication of assent. It receives further support from the
court’s statement:
Mr. Harrier, based upon the factual statement that you
have signed and based upon the agreement by the government
that your plea of guilty to count 1 of the indictment
here, with the understanding that count 2 would constitute
relevant conduct, that your plea to that one count would
dispose of this entire case–and that’s my understanding
here . . .
and from Harrier’s expression of assent.
These statements by the court and expressions of assent by
the government and defendant also indicate that the plea
agreement was “made orally on the record,” since the terms of the
agreement were stated and assented to on the record. We therefore
conclude that Harrier’s argument fails.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM Harrier’s sentence.
AFFIRMED.
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