Unpublished Disposition, 927 F.2d 612 (9th Cir. 1991)

MEMORANDUM^** 

Paul B. Servino, Jr. appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his guilty plea to possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a) (1). Servino contends that the district court erred by (1) failing to consider sentencing him outside the terms of his plea agreement and (2) assessing a fine. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) (1), and we affirm.

FACTS

Servino entered into a plea agreement with the government which stated that he would cooperate fully and truthfully with federal investigators and that "the appropriate disposition of th [e] case is a sentence equal to the minimum incarceration required by the sentencing guidelines." Plea Agreement, ER 5-6. The agreement did not provide for a fine. The district court accepted the agreement pursuant to Fed. R. Crim. P. 11(e) (1) (C) after reviewing the presentence report.

At sentencing, Servino asked the government to move for a downward departure pursuant to U.S.S.G. Sec. 5K1.1 based on his substantial assistance to the authorities. The government declined to do so, and the court sentenced Servino to 41 months' imprisonment, the minimum sentence within the applicable Guidelines range, stating that it was bound to impose a sentence in conformity with the agreement. In addition, the court imposed a $7,500 fine.

" [A] district court's perception that it lacks the power to depart from a Guidelines range stems not from an exercise of discretion but from an interpretation of the law, and is therefore appealable pursuant to 18 U.S.C. § 3742(a) (1)." United States v. Mena, No. 89-10434, slip op. 1671, 1674 (9th Cir. Feb. 8, 1991) (citing United States v. Morales, 898 F.2d 99, 102 n. 2 (9th Cir. 1990)).

The government characterizes Servino's appeal as one contesting the district court's failure to exercise its discretion to depart downward, and argues that Morales bars review. We disagree. The district court plainly indicated that, in this instance, the law limited its discretion to depart. Thus, review is permitted pursuant to 18 U.S.C. § 3742(a) (1). See Mena, No. 89-10434, slip op. at 1674.

We review de novo a district court's interpretation of the law. United States v. Semler, 883 F.2d 832, 833 (9th Cir. 1989). Fed. R. Crim. P. 11(e) (1) (C) permits the government and the defendant to enter a plea agreement stipulating "that a specific sentence is the appropriate disposition of the case." The trial court may accept or reject such an agreement, but, absent exceptional circumstances, it may not accept the defendant's guilty plea and impose a sentence greater, see United States v. Herrera, 640 F.2d 958, 960, n. 2 (9th Cir. 1981), or less severe, see Semler, 883 F.2d at 833, than that agreed upon.

We review for clear error a district court's construction of a plea agreement. United States v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990). In deciding whether a plea agreement has been violated, the district court looks to what the defendant reasonably understood when he entered his plea of guilty. United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984).

Servino claims the district court was authorized to depart below the Guidelines based on the "mitigating circumstance" of the government's refusal to move for a departure to reward his substantial assistance. We disagree. The district court was bound, in this case, to sentence Servino in conformity with the plea agreement. See Semler, 883 F.2d 833; Fed. R. Crim. P. 11(e) (1) (C). His assistance to the authorities was no more substantial than the agreement required, and Servino could not reasonably have believed his plea would secure him such a departure. See Travis, 735 F.2d at 1132. Thus, the district court correctly held that its acceptance of the binding plea agreement precluded it from departing. Semler, 883 F.2d at 836.

Servino contends that the plea agreement precluded the district court from assessing a fine. We disagree. Servino did not object to the sentence when it was announced. Thus, we conclude there was no clear error in the district court's conclusion that he understood the agreement to permit imposition of a fine. See Travis, 735 F.2d at 1132.

AFFIRMED.