Unpublished Disposition, 874 F.2d 817 (9th Cir. 1989)

MEMORANDUM^** 

Dwight Reese Culton entered a plea of guilty to two counts of bank robbery. 18 U.S.C. § 2113(a). The United States agreed to drop nine counts of bank robbery in exchange for Culton's guilty plea. Culton was sentenced to the maximum twenty year term on both counts. Culton contends that he is entitled to plead anew because the sentences imposed by the district court were not in accordance with the procedures of Fed. R. Crim. P. 11(e). Culton also contends that he is entitled to a new sentencing hearing due to the district court's failure to follow Fed. R. Crim. P. 32. We affirm in part and remand for resentencing.

Culton first contends that his plea agreement was an 11(e) (1) (B) type of agreement. There is no support in the record for this argument. Rule 11(e) (2) requires that: (1) the terms of a plea agreement shall be placed on the record; (2) that (e) (1) (A) and (e) (1) (C) type agreements will either be accepted or rejected by the district court; and (3) if the agreement is an (e) (1) (B) type agreement the district court "shall advise the defendant that if the court does not accept the [recommended or requested sentence] the defendant nevertheless has no right to withdraw the plea."

An (e) (1) (A) agreement is one in which the government agrees to dismissal of some charges in exchange for a plea of guilty. An (e) (1) (B) agreement is one in which the government agrees to "make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation shall not be binding upon the court...." Culton now contends that he had an (e) (1) (B) agreement. This argument is meritless.

During the plea hearing the following colloquy occurred:

The Court: Now, also has anybody made any promises to you that if you plead guilty in this matter, other than the fact that the remaining counts will be dismissed?

The Defendant: No.

The court noted the maximum sentence several times during the plea hearing and Culton stated that he understood he was facing a possible sentence of forty years in prison and a fine of $500,000.00. Culton's sworn plea agreement, filed on the date of the plea hearing, states:

I declare that no officer or agent of any branch of government (Federal, State or local) has promised or suggested that I will receive a lighter sentence, or probation, or any other form of leniency if I plead "GUILTY", except as follows:

Plead open to 2cts the remaining counts in the indictment will be dismissed.

During the sentencing hearing counsel for Culton recommended a fifteen year sentence. He stated:

This is certainly a great deal of time and probably the greatest amount of time that I have ever, as a defense attorney in representing a client with recognition of the facts and circumstances of the case, recommended as an understanding of a period of incarceration for a man who stands before you in court.

The prosecutor stated:

In terms of how the court should fashion the sentence, I am not real sure. There's [sic] various alternatives. He could get the full 40 years, which would require him to do about 15 and would then leave him probably--I think they only keep them on parole for three or four years.

Other alternatives are 20 years and 20 suspended with probation to follow when he gets out, so that he has parole and then probation with 20 years holding over his head.

I guess I will just leave it to the court's judgment as to what is the best way to protect society ...

The above excerpts from the plea and sentencing hearings are completely inconsistent with a claim that the government agreed to an (e) (1) (B) type of plea agreement. Counsel for the government clearly suggested sentencing options inconsistent with Culton's claim that it had agreed not to oppose Culton's requested fifteen year term. No objection was made to the prosecutor's suggested sentencing options. No post-sentencing motions were filed in the district court. Thus, the statements of the defendant, both counsel and the court all indicate that Culton entered an (e) (1) (A) agreement in which he agreed to plead guilty in exchange for the dropping of nine counts of bank robbery. The court accepted that agreement. Rule 11 required no more. Given the objective evidence of the plea bargain, we find no error in the plea proceedings. See United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985). Accordingly, we find meritless Culton's Rule 11 challenges to the sentence, the sentencing procedures, and the ultimate validity of his plea of guilty.

Culton also contends that he is entitled to a new sentencing hearing because the district court failed to follow the procedures of Fed. R. Crim. P. 32(c) (3) (D). Culton made several challenges to information contained in the presentence report. The district court did not make the required Rule 32 findings on the alleged inaccuracies. The government argues that the district court did not rely upon the controverted facts when imposing sentence. We have reviewed the sentencing transcript and cannot agree. It is unclear whether or not the controverted facts were relied upon by the district court when imposing sentence. Accordingly, we must vacate the sentence and remand for resentencing. United States v. Baron, 860 F.2d 911, 919-20 (9th Cir. 1988).

AFFIRMED in part, VACATED in part, and REMANDED for resentencing.