United States v. Morgan ( 1999 )


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  •                     UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 98-20921
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    v.
    GEORGE C. MORGAN,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Southern District of Texas
    (H-95-CR-303)
    October 6, 1999
    Before JONES, DeMOSS and DENNIS, Circuit Judges.
    PER CURIAM:*
    The government appeals the district court’s imposition
    of a 52-month sentence on George Morgan, arguing that the
    district court was obliged to enter a 60-month sentence as
    agreed to in his Fed.R.Crim.P. 11(e)(1)(C) plea agreement.
    Because the district court    erred in its interpretation of Rule
    11(e)(1)(C) and U.S.S.G. §5G1.3, this Court reverses and remands
    for resentencing.
    *
    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    this opinion should not be published and is not precedent except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.
    The district court’s use of U.S.S.G. §5G1.3 to credit
    time   served    on   a   prior   sentence   was   improper   because
    Fed.R.Crim.P. 11(e)(1)(C) does not allow a district court to
    modify a plea agreement once it has accepted it.          See United
    States v. Gilchrist, 
    130 F.3d 1131
    , 1133 (3d Cir. 1997); United
    States v. Veri, 
    108 F.3d 1311
    , 1315 (10th Cir. 1997); United
    States v. Mukai, 
    26 F.3d 953
    , 955-56 (9th Cir. 1994).         In this
    case, the plea agreement clearly contemplates a term-specific
    sentence of 60 months incarceration.         Therefore, the district
    court was obliged to enter that sentence.          Even if the plea
    agreement could be construed as not precluding the imposition of
    a concurrent sentence, U.S.S.G. §5G1.3 is not applicable in this
    case because the prior sentence was fully discharged at the time
    of sentencing.   See United States v. Labeille Soto, 
    163 F.3d 93
    ,
    99 (2d Cir. 1998); United States v. Rizzo, 
    121 F.3d 794
    , 800
    (1st Cir. 1997); United States v. McHan, 
    101 F.3d 1027
    , 1040
    (4th Cir. 1996).      For these reasons, the court below erred in
    imposing a 52-month sentence rather than a 60-month one.
    REVERSED AND REMANDED.
    2