Appeal from the United States District Court for the District of Oregon. D.C. No. CR-91-00072-HJF. Helen J. Frye, District Judge, Presiding.
Before: Thomas Tang, Melvin Brunetti, and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Tang.
Gregory Leferrall Warren appeals his sentence imposed under the United States Sentencing Guidelines after he pleaded guilty to one count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). Warren contends the district court erred by imposing his 30-month federal sentence to run consecutively to an undischarged 30-year state prison sentence. Warren also seeks resentencing on the ground that the U.S. Attorney breached a plea agreement by recommending that Warren's federal sentence run consecutively to his state sentence. We affirm.
In June 1991, Warren pleaded guilty to being a felon in possession of a firearm on or about October 2, 1990. At that time, the district court reviewed with Warren the terms of his plea agreement:
Now, [under] the agreement with the government, you're reserving the right and the court will listen carefully to the request that the sentence in this case run concurrently with the sentence that you received in the Circuit Court for Multnomah County on several conditions. The government's not going to take any position as to whether your federal sentence should run concurrently or consecutively to the state sentence.
The government reserves the right to fully inform the court and the probation officer of all the facts that it knows about. And you understand that while the court always listens carefully to the recommendations of the government, it's not bound by those recommendations.
Before sentencing, the parties exchanged and filed several letters and memoranda concerning a number of issues, including whether the federal sentence should run concurrently or consecutively to the state sentence. In response to the government's statements relating to the concurrent/consecutive issue, Warren accused the government of breaching its promise not to take a position on the issue.
The date for sentencing was continued several times. During this time, the November 1, 1991 version of the Sentencing Guidelines took effect. The government subsequently filed a memorandum bringing this development to the court's attention. Under the new Guidelines, the government asserted that the base offense level for Warren's federal conviction was raised to 24. Prior to November 1, the base offense level had been 12. Compare U.S.S.G. § 2K2.1(a)(2) (Nov. 1, 1991) with id. App. C. (amendment 374). The government asserted that the new base offense level should apply. Warren argued that applying the new base offense level would violate ex post facto.
Thereafter, the government agreed with Warren's argument and withdrew its request that the higher base offense level apply. In doing so, the U.S. Attorney explained that, because Warren had sought the benefit of some of the November 1, 1991 Guidelines amendments by moving to continue sentencing, the government assumed that the 1991 Guidelines would apply in their entirety. In withdrawing its request that Warren be sentenced under the 1991 version of Guidelines section 2K2.1, the government noted its position that the Guidelines in effect on the date of Warren's crime "should be applied as a whole." The government asserted that "Mr. Warren is not entitled to pick and choose favorable provisions" from the different versions of the Guidelines in effect at the time of the crime and at the time of sentencing.
Government assertions notwithstanding, Warren argued at sentencing that some of the 1991 Guidelines amendments still applied, despite the fact that his base offense level would be determined under the 1989 Guidelines. Specifically, Warren argued that a 1991 amendment to section 5G1.3, the Guidelines provision pertaining to the concurrent/consecutive issue, mandated that his federal sentence run concurrently with the state sentence. Under the version of section 5G1.3 in effect prior to November 1, 1991, however, the court retained discretion to decide whether Warren's federal sentence should run concurrently or consecutively with his separate, undischarged state term of incarceration. The court exercised this discretion, and determined that Warren's federal sentence should run consecutively to his state sentence.
Warren timely appeals his ...