United States v. Kessee , 284 F. App'x 168 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 7, 2008
No. 07-30186
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CHARLES KESSEE, also known as Bug
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50038-1
Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
Charles Kessee appeals his conviction and 168-month sentence for
possession with the intent to distribute cocaine hydrochloride. Kessee argues
that the Government breached the plea agreement by arguing that he was
responsible for nine kilograms of cocaine rather than the 133 grams of cocaine
he admitted to possessing in the factual stipulation. He also contends that his
sentence was imposed in violation of FED. R. CRIM. P. 11, FED. R. EVID. 410, and
U.S.S.G. § 1B1.8 because the district court relied on evidence provided by Kessee
*
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should not be published and is not precedent except under the limited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.
No. 07-30186
as a part of debriefing made pursuant to his original plea agreement. Kessee
asserts that he was granted use immunity from those statements. Kessee also
asserts that his sentence is unconstitutional in light of United States v. Booker,
543 U.S. 220 (2005), because his sentence was based on facts to which he did not
admit.
Because the Government’s conduct was consistent with the parties’
reasonable understanding of the plea agreement, the agreement was not
breached. See United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005). The
plea agreement did not limit consideration of relevant conduct for the purposes
of sentencing.
Kessee’s statements to Agent Scott were made after he initially pleaded
guilty. Therefore, Kessee did not have an expectation to negotiate a plea at the
time of this conversation. See United States v. Robertson, 582 F.2d 1356, 1365-
66 (5th Cir. 1978) (en banc). FED. R. CRIM. P. 11(f) and FED. R. EVID. 410 are
inapplicable to the instant case.
The district court did not violate U.S.S.G. § 1B1.8 by using self-
incriminating statements made by Kessee to determine his sentence. Neither
plea agreement contained a provision requiring the cooperation in describing the
illegal activities of others. Therefore, § 1B1.8 is inapplicable. See § 1B1.8,
comment. (n.6). Regardless, the district court’s consideration of Kessee’s
statements does not constitute plain error. See United States v. Olano, 507 U.S.
725, 732-34 (1993).
Kessee’s challenge to the constitutionality of his sentence is also without
merit. Kessee was sentenced in 2006, after the issuance of Booker. Thus, the
district court’s determination, under an advisory guidelines scheme, regarding
relevant conduct and the applicability of sentence enhancements, does not
violate Kessee’s Sixth Amendment right to a jury trial. See United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005).
Accordingly, the judgment of the district court is AFFIRMED.
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