UNITED STATES of America, Plaintiff-Appellee, v. Carlos Oswaldo CORDOVA-PEREZ, Defendant-Appellant

Opinion by Judge THOMPSON; Dissent by Judge FERGUSON.

THOMPSON, Circuit Judge:

Carlos Oswaldo Cordova-Perez was convicted in federal district court of violating 8 U.S.C. § 1326(b)(2). In this appeal, he contends his prosecution was precluded by a state court plea agreement. He also contends the district court violated Rules 11(e) and 32(b)(3) of the Federal Rules of Criminal Procedure when, after accepting his plea of guilty to a lesser charge, the district court reviewed his presentence report, changed its mind on the basis of information contained in the report, revoked its earlier acceptance, and forced him to go to trial for the greater crime, of which he was convicted. Cordova-Perez also argues his trial on the greater charge violated the Double Jeopardy Clause of the United States Constitution.

We have jurisdiction under 28 U.S.C. § 1291. We reject each of Cordova-Perez’s arguments and affirm his conviction.

I

On October 21, 1993, Cordova-Perez was arrested in Whitefish, Montana and charged in state court with possession of dangerous drugs with intent to sell. He entered a plea agreement, pursuant to which a 10-year sentence was suspended, and he was to be released to the custody of federal immigration officials for deportation to El Salvador. While he was still in state custody, he was indicted on the federal charge of unlawful reentry into the United States after having been deported as an aggravated felon, a violation of 8 U.S.C. § 1326(b)(2).

Cordova-Perez pleaded not guilty to the federal charge. He then moved to dismiss the indictment on the ground that his plea agreement in state court contemplated that he would be deported to El Salvador in exchange for his guilty plea to the state drug charge, and that he would not be subjected to further criminal proceedings. The district court denied the motion, finding that the state court plea agreement did not preclude Cordova-Perez’s prosecution in federal court.

Cordova-Perez then entered a plea agreement with the United States Attorney’s Office. Under the terms of this agreement, he agreed to plead guilty to a separate information charging him with a violation of the lesser offense of 8 U.S.C. § 1326(a), in exchange for dismissal of the greater offense for which he had been indicted. By this agreement, Cordova-Perez avoided the 15-year statutory maximum sentence for the greater offense, section 1326(b)(2), and limited his prison-term exposure to two years on the lesser offense, section 1326(a).

On March 8, 1994, the parties appeared before the district court for a change-of-plea hearing. After ascertaining that Cordova-Perez was acting voluntarily and understood the rights he was waiving by pleading guilty, the district court accepted his guilty plea to the lesser offense. The court then ordered a presentence report, and scheduled sentencing for a later date.

By the time the matter was called for sentencing, the court had reviewed Cordova-Perez’s presentence report. Having reviewed that report, the court concluded it could not accept the plea agreement. The court explained that the plea agreement did not reflect the seriousness of Cordova-Per-ez’s actual offense behavior, undermined the Sentencing Guidelines, and was contrary to the public interest. The court then rejected the plea agreement, vacated Cordova-Perez’s guilty plea to the lesser offense, reinstated the original indictment, and set the matter for trial. After a jury trial, Cordova-Perez was found guilty and sentenced to 70 months imprisonment. This appeal followed.

II

We first consider Cordova-Perez’s argument that the disposition of the state court proceedings precluded his federal prosecution.

We agree with Cordova-Perez that the parties to the state plea agreement, as well as the state court, contemplated he would be deported after pleading guilty to the state charge. No one considered the possibility that he would be subjected to a separate federal prosecution.¹ But it is well settled that states cannot bind the federal government to the terms of a plea agreement to which the federal government is not a party. See, e.g., Fourth Street Pharmacy v. U.S. Dept. of Justice, 836 F.2d 1137, 1139 (8th Cir.1988).²

Perhaps because he recognizes this principle, Cordova-Perez asserts that an INS agent who was present at his change-of-plea hearing in state court promised he would be deported immediately and would not be prosecuted federally. Cordova-Perez argues that he and the state court relied on this promise, and the promise binds the federal government.

We reject this argument. The INS agent’s comments were a straightforward response to a question posed by the state court judge regarding deportation procedures. There was no promise. Moreover, even if the agent’s comments could be construed as an implied promise that Cordova-Perez would not be prosecuted in federal court, Cordova-Perez is not entitled to the relief he seeks because he has not established that the INS agent was authorized to bind the United States Attorney. See United States v. Fuzer, 18 F.3d 517, 520-21 (7th Cir.1994).

Ill

Cordova-Perez next contends the district court violated Rules 11(e) and 32(b)(3) of the Federal Rules of Criminal Procedure when, based on information it obtained from his presentence report, the court rejected the plea agreement and vacated his guilty plea, after having previously accepted the plea “unconditionally.”

Federal Rule of Criminal Procedure 11(e) provides that when a defendant offers to plead guilty “to a charged offense or to a lesser related offense” in exchange for the government’s promise to “move for dismissal of other charges,” the court has three options. Fed.R.Crim.P. 11(e)(1)(A).³ It may accept the plea agreement, it may reject the agreement, or it may defer its decision until it has had the opportunity to consider the presentence report. Fed.R.Crim.P. 11(e)(2).

Rule 32(b)(3) provides that the presentenee “report must not be submitted to the court ... unless the defendant has consented in writing, has pleaded guilty or nolo contendere, or has been found guilty.” Fed. R.CrimJP. 32(b)(3). The purpose of Rule 32(b)(3) is to protect the defendant from the prejudice that might result if, before he is convicted, the court is exposed to the contents of the presentenee report, which typically contains hearsay information and facts collateral to the issue of guilt or innocence. Gregg v. United States, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969).

Cordova-Perez argues the interplay between Rules 11(e) and 32(b)(3) precludes a court from accepting a guilty plea, viewing the presentenee report without the defendant’s consent on the basis of that plea, and then revoking its previous acceptance of the plea based on information it learns from the presentenee report. In support of this contention, Cordova-Perez relies on United States v. Cruz, 709 F.2d 111, 113-114 (1st Cir.1983).

In Cruz, the district court unconditionally accepted a guilty plea to a lesser offense but, after reviewing the presentence report, vacated the plea and reinstated the original indictment charging a greater crime. The defendant was tried and convicted of the greater offense. On appeal, the First Circuit vacated the conviction, reinstated the guilty plea to the lesser charge, and remanded for resentencing. The court held that once the district court unconditionally accepted the guilty plea, it could not change its mind on the basis of information contained in the presentence report. The court reasoned that:

Under Rules 11 and 32, the court could not use this information in its initial decision to accept or reject the plea unless it had the defendant’s consent. If a court were entitled to use the report to vacate a plea agreement it had previously accepted there would be no reason to obtain the defendant’s consent to use the report during its initial consideration of the plea agreement. It could accept the agreement unconditionally, read the presentenee report in accordance with Rule 32, and then, on the basis of the report, simply change its mind and revoke its earlier acceptance. This would completely vitiate the protective consent requirements embodied in Rules 11(e) and 32(c)(1).⁴

Id. at 115.

Cruz does not support Cordova-Perez’s argument. Here, unlike in Cruz, the district court’s acceptance of Cordova-Perez’s guilty plea was not unconditional. Although the court told Cordova-Perez at his change of plea hearing that it “accepts your guilty plea,” the court’s acceptance of the plea was — as we explain below — impliedly contingent on its review of the presentence report. Thus, the court retained discretion to reject the plea based on information it subsequently learned from the presentence report.⁵

The court was not required to obtain Cordova-Perez’s written consent before reviewing the presentence report. A conditional acceptance of a guilty plea satisfies the requirement of Rule 32(b)(3) which provides that the court can review the presentence report after the defendant has pleaded guilty. The possibility that the court might set aside the guilty plea after it has read the presentence report is a risk inherent in the bargain a defendant makes when he agrees to the court’s conditional acceptance of his guilty plea. Here, that acceptance was conditional.

Although, as was the case in Cruz, the court did not attach any explicit conditions to its acceptance of the plea, it is clear the court did not accept the plea agreement. When the plea agreement was presented to the district court and the court accepted the plea, the court said nothing about accepting or rejecting the agreement. We cannot infer from the court’s silence that it accepted the agreement.⁶ Nor can we infer the court rejected the agreement. We know, however, that the court ordered a presentence report. We also know the only option remaining under Rule 11(e) was for the court to defer its decision whether to accept or reject the plea agreement until it had reviewed the presentence report. By necessary implication, this is what the court did.⁷ It had no other option.

The viability of the plea agreement controls the viability of the plea. If the former is subject to review of the presentenee report, so is the latter. The plea agreement and the plea are “inextricably bound up together” such that deferment of the decision whether to accept the plea agreement carried with it postponement of the decision whether to accept the plea. United States v. Sanchez, 609 F.2d 761, 762 (5th Cir.1980). This is so even though the court explicitly stated it accepted Cordova-Perez’s plea. United States v. Foy, 28 F.3d 464, 470-71 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 610, 130 L.Ed.2d 520 (1994).

We recognize that the facts in Cruz were similar to the facts of this case in that there, as here, the district court had accepted the defendant’s guilty plea without attaching any explicit conditions to its acceptance. The First Circuit treated this acceptance as an unconditional acceptance of the plea and plea agreement, even though the district court had not explicitly accepted the plea agreement. But Cruz’s precedential value has been eroded by the intervening implementation of the United States Sentencing Guidelines. Foy, 28 F.3d at 471.⁸ Guidelines § 6Bl.l(c) provides that “[t]he court shall defer its decision to accept or reject ... any plea agreement ... until there has been an opportunity to consider the presentence report.” USSG § 6Bl.l(c) (emphasis added). Thus, whereas before the advent of the Sentencing Guidelines there was no question a district court had the option under Rule 11(e) to accept a plea agreement without reviewing a presentence report, according to guidelines § 6Bl.l(c) prior review of the report is now mandatory.

Notwithstanding the enactment of guidelines § 6Bl.l(c), Cordova-Perez argues the district court still retains the power to accept a plea agreement without reviewing a pre-sentence report, because this is what Rule 11(e) says it can do. We need not resolve whatever tension there may be between Rule 11(e) and guidelines § 6Bl.l(c). Cf. United States v. Kemper, 908 F.2d 33, 36 (6th Cir.1990); Fields v. United States, 963 F.2d 105, 108 (6th Cir.1992) (holding that, after § 6Bl.l(c), a district court’s acceptance of a plea agreement is necessarily contingent on its review of the presentence report). Here, as we have said, we are satisfied the district court deferred its decision whether to accept or reject the plea agreement until it had reviewed the presentence report. And the deferral of this decision necessarily made the court’s acceptance of Cordova-Perez’s plea conditional.

IV

Finally, Cordova-Perez argues he was twice placed in jeopardy, in violation of the Double Jeopardy Clause of the United States Constitution, when the district court vacated his plea of guilty to the lesser charge of violating section 1326(a) and ordered him to stand trial on the greater charge of violating section 1326(b)(2).

We reject Cordova-Perez’s double jeopardy argument. As stated above, the district court’s acceptance of Cordova-Perez’s guilty plea was conditional. Therefore, jeopardy did not attach upon the court’s acceptance of the plea. United States v. Sanchez, 609 F.2d at 763. There was no double jeopardy violation.

CONCLUSION

We hold that the district court properly denied Cordova-Perez’s motion to dismiss the indictment. The disposition of his state drug charge did not preclude his prosecution in federal court. We also hold there was no violation of the Federal Rules of Criminal Procedure or the Double Jeopardy Clause when the district court vacated Cordova-Perez’s guilty plea to a violation of section 1326(a), and required him to stand trial on the more serious charge of violating section 1326(b)(2).

AFFIRMED.

1 . At the change-of-plea hearing in state court, the court asked Cordova-Perez whether he understood that, if the court accepted the plea agreement, he would receive a suspended sentence and then "be turned over to the Immigration and Naturalization Service.” Cordova-Perez stated he expected a “[s]uspended sentence. To be deported back to my home.” The state prosecutor confirmed that under the terms of the agreement, Cordova-Perez would be deported. She responded affirmatively to the court's question whether "the contemplation is then that the defendant would be deported back to El Salvador.” She also told the court: "I believe that if the Court accepts this recommendation, that it will be approximately twelve to fifteen days before he’s picked up by the officer for deportation; and during that time, he would be ordered remanded to the custody of the Sheriff.” Finally, upon imposing sentence, the state court ordered that Cordova-Perez "be released upon an appropriate schedule to the immigration officers for deportation proceedings to El Salvador.”

2 . This principle was embodied in the plea agreement itself, which explicitly stated it "is limited to the Flathead County Attorney’s Office and cannot bind other state, local or federal prosecuting authorities.”

3 . The other types of plea agreements described in Rule ll(e)(B) and (C) are not relevant to this case.

4 . Rule 32(c)(1) was the predecessor to Rule 32(b)(3).

5 .The contingent nature of the court’s acceptance of the guilty plea distinguishes this case from United States v. Partida-Parra, 859 F.2d 629 (9th Cir.1988).

6 . Codova-Perez relies on United States v. Holman, 728 F.2d 809 (6th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 388, 83 L.Ed.2d 323 (1984), for the proposition that when a court fails to indicate the status of the plea agreement at the time the plea is offered, the ambiguity must be construed in favor of the defendant and against the court because the court has control over clarity. Id. at 812. As the Sixth Circuit has recognized, however, Holman is no longer good law after enactment of the Sentencing Guidelines. United States v. Kemper, 908 F.2d 33, 35 (6th Cir.1990); Fields v. United States, 963 F.2d 105, 107-08 (6th Cir.1992). But see United States v. Skidmore, 998 F.2d 372 (6th Cir.1993) (citing Holman, without mentioning Kemper and Fields, for the proposition that failure to indicate the status of the plea agreement at the time a court accepts a guilty plea operates as an acceptance of the agreement).

7 . In fact, this is exactly what the district court, at the time of Cordova-Perez's sentencing, said it had done. At Cordova-Perez's sentencing hearing, the court stated:

[A] few months ago, the court accepted the defendant’s plea of guilty to an information which had been filed; but, of course, did not accept the plea agreement. And instead the court followed its usual practice of deferring decision about whether to accept or reject the plea agreement until after having viewed the presentence report.

8 . Cruz has also been disapproved because it was influenced partly by double jeopardy concerns which are inconsistent with Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984). See United States v. Foy, 28 F.3d at 471 n. 13; United States v. Kurkculer, 918 F.2d 295, 301 n. 9 (1st Cir.1990).