United States of America v. Terry L. Peveler

*The Honorable William J. Haynes, Jr., United States District Judge
for the Middle District of Tennessee, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0039P (6th Cir.)
File Name: 04a0039p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TERRY L. PEVELER,
Defendant-Appellant.
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No. 02-5778
Appeal from the United States District Court
for the Western District of Kentucky at Owensboro.
No. 93-00014—Jennifer B. Coffman, District Judge.
Argued: October 24, 2003
Decided and Filed: February 6, 2004
Before: DAUGHTREY and GILMAN, Circuit Judges;
HAYNES, District Judge.*
_________________
COUNSEL
ARGUED: Elizabeth S. Hughes, GESS, MATTINGLY &
ATCHISON, Lexington, Kentucky, for Appellant. Terry M.
2 United States v. Peveler No. 02-5778
Cushing, ASSISTANT UNITED STATES ATTORNEY,
Louisville, Kentucky, for Appellee. ON BRIEF:
Elizabeth S. Hughes, GESS, MATTINGLY & ATCHISON,
Lexington, Kentucky, for Appellant. Terry M. Cushing,
Candace G. Hill, ASSISTANT UNITED STATES
ATTORNEYS, Louisville, Kentucky, for Appellee. Terry L.
Peveler, Manchester, Kentucky, pro se.
_________________
OPINION
_________________
HAYNES, District Judge. Appellant Terry L. Peveler
appeals the district court's order denying his motion to modify
his sentence under 18 U.S.C. § 3582(c)(2). Peveler relies
upon the retroactivity of Amendment 599 to U.S.S.G. § 2K2.4
that bars “double counting” of firearm enhancements where,
as here, there is conviction under 18 U.S.C. § 924(c) arising
from the same underlying offenses. Although originally
indicted on 11 counts, Peveler subsequently entered a guilty
plea under the former Fed. R. Crim. P. 11(e)(1)(C) to a
superceding information charging five counts of
drug-trafficking in violation of 21 U.S.C. § 841(a)(1) and a
sixth count of carrying a firearm during and in relation to a
drug-trafficking crime in violation of 18 U.S.C. § 924(c).
Peveler contends that Amendment 599 prohibits the two-level
sentence enhancement in his plea agreement that the district
court applied to determine his original sentence. Therefore,
Peveler moves to modify his sentence by two levels. For the
reasons set forth below, we AFFIRM the district court's
judgment, but for different reasons.
A. Procedural History
On April 6, 1993 a federal grand jury in Owensboro,
Kentucky returned an 11-count indictment against Peveler
and three other co-defendants. Peveler was named in seven
of the 11 counts, with five of these counts charging him with

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No. 02-5778 United States v. Peveler 3
1In 2002, Fed. R. Crim. R. 11 was amended and the current version
of Rule 11(e) incorporates the provisions of Fed. R. Crim. P. 32(e). The
former Rule 1 1(e)(1)(C ) is now Rule 1 1(c)(1)(C ). Given the facts of this
case and our reliance on pre-20 02 p reced ents, we will continue to refer to
Peveler’s plea agreement as a Rule 11(e)(1)(C) for ease of reference.
drug trafficking in violation of 21 U.S.C. § 841(a)(1). The
remaining two counts charged Peveler with violating
18 U.S.C. § 924(c) by using or carrying a firearm in relation
to drug trafficking crimes on November 12, 1992, and
December 18, 1992. Initially, Peveler pled not guilty to all
seven counts, but after the district court denied his motion to
suppress, he entered into a plea agreement with the
government.
The “Rule 11(e)(1)(C)”1 plea agreement required Peveler
to plead guilty to a six-count superseding information that
charged him with the same five drug-trafficking counts in the
original indictment, but with only one count of violating
§ 924(c) by using or carrying a firearm in relation to a drug
trafficking crime on January 24, 1993. In return, the
government agreed to dismiss the two § 924(c) firearm
charges and further agreed to recommend a prison sentence
and fine at the low end of the applicable guideline ranges.
The plea agreement contained an express provision that the
total offense level would be 30, based upon specific guideline
calculations in the plea agreement. Peveler entered his guilty
plea in September 1994, but preserved his right to appeal the
district court's denial of his motion to suppress. Peveler
received a 181-month prison sentence, with the five
drug-trafficking counts accounting for 121 of these months,
and the additional 60 months attributable to his § 924(c)
firearm conviction.
Peveler then appealed the denial of his motion to suppress.
We affirmed the district court's denial of Peveler's motion.
United States v. Peveler, 1995 U.S. App. LEXIS 36888, 1995
WL 620961 (6th Cir. Oct. 19, 1995) (unpublished table
decision). The Supreme Court denied Peveler's subsequent
4 United States v. Peveler No. 02-5778
petition for a writ of certiorari. Peveler v. United States, 516
U.S. 1137 (1996).
Peveler then filed a pro se petition under 28 U.S.C. § 2255
for relief from his sentence, alleging that he pled guilty to the
firearm count based upon his belief that he could be convicted
under § 924(c) for storing firearms in proximity to illegal
drugs. After his conviction, the Supreme Court in Bailey v.
United States, 516 U.S. 137 (1995), held that a conviction for
using a firearm in relation to a drug-trafficking crime can only
arise if the defendant “actively employed” the firearm. The
district court referred Peveler's petition to the magistrate
judge. The magistrate judge recommended that the district
court vacate Peveler's firearm conviction. This
recommendation was based on the government's concession
that Peveler's guilty plea to the firearm count was no longer
valid after Bailey. The government, however, withdrew its
concession shortly after Bousley v. United States, 523 U.S.
614 (1998), in which the Supreme Court held that to assert a
Bailey challenge successfully, a movant must show “cause
and prejudice” to avoid procedural default or demonstrate his
actual innocence on the § 924(c) charge and any other more
serious charges that were dismissed during plea bargaining.
After Bousley, the district court remanded the action to the
magistrate judge for a recommendation on the firearm
charges.
The magistrate judge conducted an evidentiary hearing, at
which the government conceded Peveler's actual innocence
of the firearm charge in the superseding information. The
hearing focused on whether Peveler had committed the other
firearm charges in the original indictment, that is, whether
Peveler used or carried a firearm in relation to
drug-trafficking crimes on November 12, 1992, and
December 18, 1992. After the hearing, the magistrate judge
recommended that Peveler's request for relief from his
conviction and sentence on the firearm count in the
superseding information be denied. The district court
overruled Peveler's objections, adopted the magistrate judge's

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No. 02-5778 United States v. Peveler 5
recommendation and denied a certificate of appealability.
However, we granted a certificate of appealability, but
affirmed the district court's decision.
On August 3, 2001, Peveler filed a motion to modify his
sentence pursuant to 18 U.S.C. § 3582(c). The district court
referred the motion to a magistrate judge, who recommended
denying Peveler's motion. The district judge adopted the
magistrate's finding and denied the motion. In essence, the
district court adopted the magistrate judge's conclusion that a
reduction was not warranted because the two-level
enhancement was not for Peveler's drug convictions, but for
his possession of a firearm on a different month and year from
the drug offenses. Peveler then appealed the district court's
decision and filed a pro se brief in this court. We appointed
counsel, who filed a brief on Peveler's behalf, to which the
government has responded.
B. Factual Background
In September 1992, the Kentucky State Police and the
police department in Livermore, Kentucky, began
investigating Peveler and his codefendants for suspected drug
trafficking. This investigation commenced after a
confidential source informed both law enforcement agencies
that Peveler was using and selling illegal drugs in Western
Kentucky.
About the time of the investigation of Peveler, Livermore
Police Chief Charles Cobb arrested Larry Blanford for
attempted theft of a motorcycle. Blanford agreed to serve as
a confidential informant and to purchase drugs from Peveler
in exchange for cash payments and the dismissal of his theft
charge.
Pursuant to this arrangement, Blanford informed Cobb and
Kentucky State Police Detective Charles Brown that he
purchased marijuana from Peveler on November 12, 1992,
and again on December 18, 1992, and that he saw Peveler
6 United States v. Peveler No. 02-5778
weigh and package various quantities of cocaine on
January 24, 1993. Blanford reported seeing firearms openly
displayed in the rooms of Peveler's trailer home where the
marijuana sales took place in 1992 and further stated that he
saw firearms in the closet of Peveler's bedroom where the
cocaine packaging occurred in 1993. Based on the
information provided by Blanford, warrants were issued to
arrest Peveler and to search his trailer. The search resulted in
the recovery of 1.5 pounds of cocaine, 12 pounds of
marijuana, and four firearms.
C. The Plea Agreement
Peveler eventually entered into a plea agreement that
required Peveler to plead guilty to a six-count superseding
information with the same five drug-trafficking counts
included in the original indictment, but with only one count
of violating § 924(c) by using or carrying a firearm in relation
to a drug trafficking crime on January 24, 1993. Essentially,
the only difference between the original indictment and the
superseding information was that the two § 924(c) firearm
charges on November 12, 1992 and December 18, 1992, were
dropped in exchange for the single § 924(c) count on
January 24, 1993.
The plea agreement was under then Fed. R. Crim. P.
11(e)(1)(C) and expressly provided that the sentencing level
would be 30, but based upon certain findings to be made by
the Court under the guidelines. The plea agreement provides,
in pertinent part:
Pursuant to Rule 11(e)(1)(C) and 11(a)(2) of the Federal
Rules of Criminal Procedure,
4. Defendant understands that the charge to which he
will plead guilty carries a combined maximum term
of imprisonment of 65 years, a combined maximum
fine of three million dollars, and a 4 year term of
supervised released. Defendant understands that an

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No. 02-5778 United States v. Peveler 7
additional term of imprisonment may be ordered if
the terms of the supervised released are violated, as
explained in 18 U.S.C. § 3583. There is not a
mutual mistake here, but rather a retroactive
application of a guideline.
* * *
10. At the time of sentencing, the United States will
recommend a sentence of imprisonment at the low
end of the applicable Guideline Range, but not less
than any mandatory minimum term of imprisonment
required by law.
* * *
11. Both parties have independently reviewed the
Sentencing Guidelines applicable in this case, and in
the best judgment and belief, conclude as follows:
A. The Applicable Offense Level should be
determined as follows:
Base Offense Level 26 § 2D1.1(c) (9)
Organizer or leader +2 § 3B1.1(c)
Adjusted Based Offense level 28
Possession of Weapon +2 § 2D1.1(b) (2)
TOTAL OFFENSE LEVEL 30
B. The Criminal History of the Defendant shall be
determined upon completion of the presentence
investigation, pursuant to Fed. R. Crim. P. 32(c)(2).
12. If the Court refuses to accept this agreement and
impose sentence in accordance with its terms
according to the United States' motion pursuant to
Fed. R. Crim. P. 119(e)(1)(C), this Agreement will
become null and void and neither party shall be
bound thereto, and Defendant will be allowed to
withdraw the plea of guilty.
8 United States v. Peveler No. 02-5778
* * *
14. Defendant agrees that the disposition provided
within this Agreement is fair, taking into account all
aggravating and mitigating factors. Defendant states
that he has informed the United States Attorney's
Office and the Probation Officer, either directly or
through his attorney, of all mitigating factors.
Defendant will not oppose imposition of a sentence
incorporating the disposition provided for within
this Agreement, nor argue for any other sentence.
(Joint Appendix at 108-09, 112-113) (emphasis added). The
district court accepted the parties’ guideline calculations and
imposed the sentence of 181 months consistent with the plea
agreement.
During oral argument, Peveler conceded that he does not
want to set aside his plea agreement, given that to do so
would subject him to prosecutions on two additional § 924(c)
firearm charges. In any event, as discussed infra, this Court
would lack the authority to set aside the plea agreement under
§ 3582(c).
D. Analysis
This Court reviews a district court's decision to grant or
deny a motion to modify under 18 U.S.C. § 3582 for an abuse
of discretion. United States v. Ursery, 109 F.3d 1129, 1137
(6th Cir. 1997). Yet, to the extent that Peveler's “arguments
all rest on the legal interpretation of various [sentencing]
guidelines,” the district court's interpretation of the sentencing
guidelines presents a question of law, subject to de novo
review. United States v. Smith, 196 F.3d 676 (1999) (citing
United States v. Vincent, 20 F.3d 229, 241 (6th Cir. 1994)).
The statutory authority for Peveler's sentence modification
request is 18 U.S.C. § 3582(c)(2), which provides as follows:

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No. 02-5778 United States v. Peveler 9
The court may not modify a term of imprisonment once
it has been imposed except...in the case of a defendant
who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently
been lowered by the Sentencing Commission
pursuant to 28 U.S.C. 994(o), upon motion of the
defendant... after considering the factors set forth in
section 3553(a)... if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.
(Emphasis added.)
18 U.S.C. § 3553(a) lists the following relevant factors to
be considered when ruling on a motion to modify:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed–
(A) to reflect the seriousness of the offense, to promote
respect for the law, to provide just punishment for the
offense...
* * *
(5) any pertinent policy statement issued by the
Sentencing Commission...
In a policy statement, the United States Sentencing
Commission addressed the district court's exercise of its
discretion on a § 3582(c)(2) motion, stating:
In determining whether, and to what extent, a
reduction in the term of imprisonment is warranted for a
defendant eligible for consideration under 18 U.S.C.
§ 3582(c)(2), the court should consider the term of
imprisonment that it would have imposed had the
amendment(s) to the guidelines listed in subsection (c)
been in effect at the time the defendant was sentenced...
Application note 2 to U.S.S.G. § 1B1.10.
10 United States v. Peveler No. 02-5778
Peveler argues that he is entitled to reduction of his
sentence due to the Sentencing Commission's retroactive
application of Amendment 599 to the sentencing guidelines
set forth in revised § 1B1.10 of the U.S.S.G., as follows:
Weapon Enhancement. If a sentence under this
guideline is imposed in conjunction with a sentence for
an underlying offense, do not apply any specific offense
characteristic for possession, brandishing, use, or
discharge of an explosive or firearm when determining
the sentence for the underlying offense. A sentence
under this guideline accounts for any explosive or
weapon enhancement for the underlying offense of
conviction, including any such enhancement that would
apply based on conduct for which the defendant is
accountable under § 1B1.3 (Relevant Conduct). Do not
apply any weapon enhancement in the guideline for the
underlying offense, for example. If (A) a co-defendant,
as part of the jointly undertaken criminal activity,
possessed a firearm different from the one for which the
defendant was convicted under 18 U.S.C. § 924(c); or
(B) in an ongoing drug trafficking offense, the defendant
possessed a firearm other than the one for which the
defendant was convicted under 18 U.S.C. § 924(c).
However, if a defendant is convicted of two armed back
robberies, but is convicted under 18 U.S.C. § 924(c) in
connection with only one of the robberies, a weapon
enhancement would apply to the bank robbery which was
not the basis for the 18 U.S.C.§ 924(c) conviction.
(Emphasis added.)
Eighteen U.S.C. § 3582 (c)(2) “empowers the District
Court to modify the prisoner's sentence that would otherwise
be final.” United States v. Williams, 182 F.3d 919, 1999 WL
397945, **4 (6th Cir. 1999). Because Amendment 599 is
given retroactive effect, a defendant may seek relief under
§ 3582(c)(2). United States v. Diaz, 248 F.3d 1065, 1107-08
(11th Cir.2001); United States v. Aquino, 242 F.3d 859, 865

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No. 02-5778 United States v. Peveler 11
(9th Cir.2001). Yet, a district court “has the discretion to deny
a § 3582(c)(2) motion, even if the retroactive amendment has
lowered the guideline range.” Usery, 109 F.3d at, 1137,
Accord, United States v. Wesley, 221 F.3d 1337, 2001 WL
799783, **2 (6th Cir. June 14, 2000).
Generally, “[o]nce the district court has accepted a plea
agreement, [this Court has] traditionally regarded the
agreement as a type of contract, and...[has] analyzed the
respective obligations of the prosecution and the defendant
under general principles of contract law.” United States v.
Skidmore, 998 F.2d 372, 375 (6th Cir. 1993) (citing United
States v. Mandell, 905 F.2d 970, 973 (6th Cir. 1990)). “A
guilty plea, however, involves the waiver of at least three
constitutional rights by a defendant...[and] [t]herefore, the
analogy of a plea agreement to a traditional contract is not
complete or precise, and the application of ordinary contract
law principles to a plea agreement is not always appropriate.”
Id., citing United States v. Olesen, 920 F.2d 538, 541 (8th Cir.
1990).
In United States v. Weaver, 905 F.2d 1466 (11th Cir. 1990),
the Eleventh Circuit noted the possibility of reformation of a
Rule 11 plea agreement upon a showing of mutual mistake:
Reformation of a written agreement is warranted only
when the evidence demonstrates that the parties' mutual
mistake resulted in a written document which does not
accurately reflect the terms of their agreement.
Consequently, reformation is generally, without more,
not an available remedy where the evidence demonstrates
mistake or change of mind of only one of the contracting
parties.
Id. at 1472 (citations omitted). In dicta, the First Circuit
suggested that modification of a plea agreement under a Rule
11(e)(1)(C) may be justified upon a showing of a mutual
mistake United States v. Teeter, 257 F.3d 14, 28 n.12 (1st Cir.
2001).
12 United States v. Peveler No. 02-5778
Yet, a rule of criminal procedure can limit a court's
authority. United States v. Robinson, 361 U.S. 220, 223,
229-30 (1960) “([T]he court may not enlarge the period for
taking any action under rules 33, 34, and 35, except as
otherwise provided in those rules).” Here, Rule 11 recognizes
three types of plea agreements Fed. R. Crim. P. 11(e)(1)(A)
through (C). Peveler’s plea agreement is under former Rule
11(e)(1)(C) which expressly limits the district court's
authority to modify the agreement. Accordingly, the
threshold issue here is whether the district court possessed the
authority to modify parties' agreed sentence that was imposed
under a Rule 11(e)(1)(C) plea agreement.
At the time of Peveler's 1994 plea agreement, former Rule
11(e)(1)(C) provided only that the parties “agree that a
specific sentence is the appropriate disposition of the case.”
A Rule 11(e)(1)(C) plea can also include “the language in the
plea agreement whereby the parties agreed that ‘any sentence
of incarceration shall not exceed the midpoint of the
sentencing guideline range that the court finds to be
applicable.’ This language has been held to be the equivalent
of a sentencing recommendation under Fed. R.Crim. P.
11(e)(1)(C) that is binding on a district court.” United States
v. Benjamin, 188 F.3d 509, 199WL685924 * 2 (6th Cir.
August 26, 1999).
Even under the pre-1999 version of former Rule
11(e)(1)(C), we held that “[o]nce the court unqualifiedly
accepts the agreement it too is bound by the bargain.” United
States v Holman, 728 F.2d 809, 813 (6th Cir. 1984) (citations
omitted). Prior to the 1999 amendments to Rule 11(e), in
Fields v. United States, 963 F.2d 105 (6th Cir. 1992), a
defendant argued that the district court's acceptance of a Rule
11(e)(1)(C) plea agreement bound the district court to accept
the sentence in his Rule 11(e)(1)(C) agreement. We disagreed
and held that “[a] sentencing judge could no longer be forced
to abide by an agreed to sentence where that sentence did not
conform to the Guidelines, as that would eviscerate their
purpose.” Id. at 108, citing United States v. Kemper, 908

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No. 02-5778 United States v. Peveler 13
2Mo re recent decisions in other circuits question Fields, citing the
1999 amendments to Rule 11 and U .S.S.G . Ch.1 pt.A4(c) and Ch.6,pt.B,
introductory cmt. and U.S.S.G. § 6B 1.2, and concluding that the
guidelines and policy guides do not preclude a district court from
imposing a sentenc e outsid e the guidelines unde r a Rule 11(e)(1)(C) plea
agreement. United States v. Goodall, 236 F.3d 70 0, 704-06 (D .C. Cir.
2001), and authorities cited therein.
F.2d 33 (6th Cir. 1990). Fields2 required the district courts to
consider a Rule 11(e)(1)(C) plea agreement in conjunction
with the Sentencing Guidelines and, under Fields, the district
court retained the authority to reserve judgment on acceptance
of the plea agreement:
In Kemper this court recognized that Holman, which
was decided before the Sentencing Guidelines, had been
overruled by “the 1987 amendments to the Federal Rules
of Criminal Procedure and the implementation of the ...
Guidelines.” Id. at 35. A sentencing judge could no
longer be forced to abide by an agreed to sentence where
that sentence did not conform to the Guidelines, as that
would eviscerate their purpose.
The Kemper court explained that if a plea agreement
has been accepted by the court before the presentence
report has been conducted, Guidelines § 6B1.1(c)
describes the proper procedure:
The court shall defer it decision to accept or reject any
nonbinding recommendation pursuant to Rule
11(c)(1)(B) and the court's decision to accept or reject
any plea agreement pursuant to Rules 11(e)(1)(A) and
11(e)(1)(C) until there has been an opportunity to
consider the presentence report.
Guideline § 6B1.1 as interpreted by Kemper, makes
contingent upon its review of the presentence report.
For, “only if the court is satisfied ... that the
contemplated sentence is within the guidelines” can it
14 United States v. Peveler No. 02-5778
accept an agreement requiring imposition of a specific
sentence. Kemper, 908 F.2d at 36-37.
Upon review of the presentence report, if the
sentencing court determines that there was an error in the
calculating the agreed-upon sentence, it must reject the
plea. Id.; U.S.S.G. § 6B1.3. The court must then “afford
the defendant an opportunity to withdraw the defendant's
guilty plea.” U.S.S.G. § 6B1.3.
Id. at 108-09.
With the 1999 amendments to Rule 11(e)(1)(C), the current
version of former Rule 11(e)(1)(C) expressly limits a district
court's authority to alter or modify any sentence imposed
under such an agreement:
(e) Plea Agreement Procedure.
(1) In General. An attorney for the government and
the defendant's attorney, or the defendant when
proceeding pro se, may discuss and reach a plea
agreement. The court must not participate in these
discussions. If the defendant pleads guilty or nolo
contendere to either a charged offense or a lesser or
related offense, the plea agreement may specify that an
attorney for the government will:
* * *
(C) agree that a specific sentence or sentencing range
is the appropriate disposition of the case, or that a
particular provision of the Sentencing Guidelines, or
policy statement, or sentencing factor does or does not
apply (such a recommendation or request binds the
court once the court accepts the plea agreement).
(Emphasis added.) The underscored language was added in
the 1999 amendments to Rule 11.

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No. 02-5778 United States v. Peveler 15
Albeit in unpublished decisions, we have held that in light
of the 1999 amendments, upon “accepting the [Rule
11(e)(1)(C)] agreement, the district court bound itself to the
government's end of the guideline range. If the district court
did not agree with the government’s binding sentencing
recommendation, it was free to reject the agreement. Once
the district court chose to accept the agreement, however, the
court was required to follow its provisions.” United States v.
Taylor, 14 Fed.Appx. 546, 552, 2001 WL 814924 * 6 (6th
Cir. 2001).
In another unpublished decision concerning a Rule
11(e)(1)(C) plea agreement, we held that “once a district court
accepts a plea agreement where parties agreed on “a specific
sentence or sentencing range,” the district court is bound by
the parties’ plea agreement” and “cannot impose a sentence
greater or less severe than what is in the plea agreement[]”
unless “the terms of the plea agreement are equivocal.”
United States v. Debreczeny, 69 Fed. Appx. 702, 705,
2003WL21580433 * 3 (6th Cir 2003). In the latter instance,
“the district court has discretion to interpret its terms.” Id.
We follow and adopt the rationale of these unpublished
decisions.
Here, at the time of sentencing, the district court applied
the parties’ calculations of the relevant guidelines to Peveler’s
plea agreement. Yet, this Court has not addressed whether a
district court has the authority to modify of a sentence under
a Rule 11(e)(1)(C) plea agreement based upon a retroactive
amendment to a guideline that was utilized to determine the
defendant's sentence.
The Seventh and Tenth Circuits have held that retroactive
amendments to the sentencing guidelines provide legally
insufficient basis on which to modify a sentence under a Rule
11(e)(1)(C) plea agreement. In United States v. Trujeque,
100 F.3d 869 (10th Cir. 1996), the Tenth Circuit observed
that a district court lacked jurisdiction to consider a motion to
modify a sentence under § 3582(c)(2), based upon the
16 United States v. Peveler No. 02-5778
retroactive Amendment 488 to U.S.S.G. § 2D1.1(a), where
the sentence was based upon a Rule 11(e)(1)(C) plea
agreement:
The government is correct in its assertion that federal
courts lack jurisdiction to review a Rule 11(e)(1)(C)
sentence where a prisoner claims that his Rule
11(e)(1)(C) sentence is greater than the sentence range
specified in the applicable guidelines. See 18 U.S.C.
§ 3742(C)(1); United States v. Denogean, 79 F.3d 1010,
1013-14 (10th Cir. 1996), cert. denied, 519 U.S. 856,
1117 S.Ct. 154, 136 L.Ed. 2d 99 (1996); United States v.
Prieto-Duran, 39 F.3d 1119, 1120 (10th Cir. 1994).
However, this is not a direct appeal of Mr. Trujeque's
sentence, nor is it a collateral attack under 28 U.S.C.
§ 2255. Rather, Mr. Trueque has filed motion under 18
U.S.C. § 3582 (c)(2). And the viability of his motion
depends entirely upon that statute. Our appellate
jurisdiction over final decision extends as far as to
consider the district court's denial of Mr. Trujeque's §
3582 (c)(2) motion.
Id. at 870-71 (emphasis added). The Tenth Circuit then ruled
that the defendant's sentence was not actually calculated
under the guidelines, but was determined by the Rule
11(e)(1)(C) plea agreement. Id. at 871. Thus, this retroactive
amendment could not have affected the original sentence, and
the Tenth Circuit directed a dismissal of the motion to
modify. Id. Similarly, Peveler was sentenced pursuant to a
Rule 11(e(1)(C) plea agreement that binds both the parties
and the court. The fact that the parties in this case specified
an offense level under the sentencing guidelines rather than a
fixed period of imprisonment like the parties in Trujeque is a
distinction without a difference in terms of the court lacking
the power to amend the plea agreement.
In United States v. Hemminger, 114 F.3d 1192, 1997 WL
235838 (7th Cir. May 2, 1997), the Seventh Circuit affirmed
the denial of a motion to modify under § 3582(c)(2) based

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No. 02-5778 United States v. Peveler 17
upon a retroactive amendment to the relevant sentencing
guideline for the defendant's sentence. There, the Rule
11(e)(1)(C) plea agreement expressly stated that the agreed
sentence was not premised on the Court's or probation
officer's calculation of the guidelines. The Seventh Circuit
ruled:
After accepting the agreement, the court "is not free to
revisit the plea agreement simply because, for whatever
reason, the defendant later comes back to the court for
resentencing." United States v. Ritsema, 89 F.3d, 399
(7th Cir. 1996). See also United States v. Barnes, 83
F.3d 934, 938 (7th Cir. 1996). The sentence, under a
Rule 11(e)(1)(C) plea rests on the parties' agreement, not
on the calculation under the Sentencing Guidelines.
Of course, a defendant is entitled to contest a plea
under Rule 11(e)(1)(C) on the same grounds that any
other plea may be challenged--that it was involuntary,
that is was the result of ineffective assistance of counsel,
that the indictment does not state an offense, and so on.
But Hemminger does not want to withdraw his plea and
go to trial; he does not contend that the plea is infirm on
any legal or factual ground; instead he wants to keep the
benefits of the plea while receiving a lower sentence.
That possibility is one he bargained away in 1990.
Having received the benefits of his agreement,
Hemminger must accept the portions favorable of the
prosecutor.
Id. at * 1. Himminger differs only in that Peveler's plea
agreement provided that the district court would determine
what the guideline calculation "should be."
18 United States v. Peveler No. 02-5778
3There is authority to support Peveler’s contention that Amendm ent
599 precludes an enhancement above the guideline calculation where a
Section 924(c) conviction is among the related conduct leading to the
calculation of the guidelines. See United States v. Aquino, 242 F.3d 859,
863-66 (9th Cir. 200 1); United States v. Wright, 7 Fed. Appx. 296, 2001
W L 420495 (4th Cir. 2001). In a word, the issue concerns the
enhancement for related conduct, not whether the offenses occurred on
different dates.
4This conclusion sho uld not be construed as a blanket bar to all such
motions for relief. Fed. R . Crim. P. 35 (b) has been dee med a potential
basis for relief in an “exceptional case,” Un ited States v. M ukia, 26 F.3d
953, 955 (9th Cir. 199 4). The First Circuit in dicta noted a “rare case”
exception to allow mod ification “to avoid a misca rriage o f justice or to
correct a mutual mistake.” Teeter, 257 F.3d at 28, n.12. We do not
consider either of these potential exceptions here. T here is not a mutual
mistake here, but rather a retroactive application of a guideline. We note,
however, that with the two-level deduction sought, Peveler’s actual
sentence is within the revised sentencing guideline range although the
sentence is not at the low end of the revised guideline range as provided
in the plea agreement. Peveler does not seek to set aside his plea
agreement.
Assuming that Peveler is correct in his interpretation of
Amendment 599 as applied to his sentence3, we defer to the
express language in the 1999 amendments to the former Rule
11(e)(1)(C) and our unpublished decisions on that Rule.4
Thus, absent an agreement of the parties, the plain language
of the current version of Rule 11(e)(1)(C), now Rule
11(c)(1)(C), generally precludes the district court from
altering the parties' agreed sentence under 18 U.S.C.
§ 3582(C). This conclusion applies despite the retroactivity
of a subsequent amendment to a relevant guideline utilized to
determine the defendant's sentence.
For these reasons, we AFFIRM the district court's order.

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