United States v. Klutts

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20874
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES J. KLUTTS,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(00-CR-624)
November 25, 2002
Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
Charles J. Klutts appeals the sentence imposed following his
guilty plea to possession of child pornography. As his sole ground
for appeal, Klutts contends that the Government breached an oral
plea agreement not to oppose a downward departure from the
sentencing guidelines. Klutts had argued at sentencing for a
*
Pursuant to 5TH CIR. R. 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should not be published and is not precedent except under the limited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 CIR. R. 47.5.4.
downward departure that would have substituted community
confinement for incarceration. The Government opposed a sentence
that did not include incarceration. The district court sentenced
Klutts to 27 months’ incarceration, the lowest end of the
applicable guideline range.
Under the plain error standard, Klutts has not met his burden
of showing that, by opposing a sentence that did not include
incarceration, the Government breached an agreement that was part
of the inducement or consideration for Klutts’ guilty plea.1 A
sentence that did not include incarceration was not contemplated by
the parties when they entered the plea agreement, and therefore was
not an inducement to the defendant pleading guilty. Because the
defendant was not eligible for the downward departure in any event,
he suffered no harm.
Moreover, there was no breach of the oral plea agreement
occasioned by the Government’s statement at sentencing that the
Government would not support a downward departure in a child
pornography case but would leave the departure decision to the
district court’s discretion. A lack of support is not inconsistent
with a promise not to oppose a sentence at the low end of the
sentencing range, the promise on which the defendant relied in
entering a guilty plea.
1
See United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001); United
States v. Wittie, 25 F.3d 250, 262 (5th Cir. 1994); United States v. Valencia,
985 F.2d 758, 761 (5th Cir. 1993).
2
AFFIRMED.
3