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No. 95-1654
UNITED STATES,
Appellee,
v.
VICTOR LAGUER-AVELLANET,
Defendant, Appellant.
____________________
____________________
Before
____________________
____________________
____________________
Stahl, J.
Stahl, J
________
fifteen-month term.
his plea.
I.
I.
__
2D1.1(a)(3).
____________________
1.
2.
The plea
that it was
The
parties agreed to
add to
that
-22
See U.S.S.G.
___
No
There is no
sentencing.
-33
imprisonment.3
policy statements."
Further, at no
Further, nothing
____________________
3.
at
the
change
of
plea
twelve-month recommendation
hearing,
although
it
did
at the sentencing
not
hearing,
stating only, "in keeping with the plea agreement, the United
States
has
nothing
to
add."
Laguer-Avellanet
does
not
4.
Laguer-Avellanet
report"
so
that
immediately.
waiver
of
(prohibiting
request to
he
requested
to
"waive
could
begin
his
presentence
such
waiver),
the
imprisonment
that it would
report,"
term
"not accept a
see U.S.S.G.
___
but allowed
presentence
6A1.1
Laguer-Avellanet's
before completion of
-44
term.
and that's what we have been all the time -- let's call it
offering [Laguer-Avellanet]."
After
for our client in his case," counsel entreated upon the court
-55
that "it would be only fair for us and for him to receive a
the Court."
The court
At the conclusion
____________________
5.
the fifteen-month
We indicated that
has now
if he had
portion
of
his
incarcerative
knew if he
was still in
custody.
Laguer-Avellanet was
released from
March
custody into
a supervised release
program on
-66
II.
II.
___
Discussion
Discussion
__________
______________
rather, that they firmly agreed that twelve months was the
We disagree.
During
____________________
incarcerative
portion
of a
his
(mandating
three
criminal
two if
for a
United States v.
______________
(finding not moot a
and
the imposition of
sentence
prison because
of
points
not
his
despite his
the fifteenlead to
prior
lesser term
Kassar, 47
______
See U.S.S.G.
___
history
length of
(of a
F.3d 562,
least sixty
565 (2d
days));
Cir. 1995)
-77
acknowledgment of them.
On its
is clear that the parties did not agree that twelve months
___
-88
term.
U.S.S.G.
See
___
sentencing promises.
defendant.
____________________
6.
Rule
11(e)(1)(C) governs
parties agree
disposition
agreements
"that a
of
in
the
which
plea agreements
specific sentence is
case,"
the
while
parties
in
the appropriate
11(e)(1)(B)
agree
only
-99
which the
governs
that
the
potential misunderstanding.
At bottom,
____________________
7.
If the
11(e)(1)(B),
right to
the defendant
must be
sentence recommendation.
pursuant to Rule
advised that he
has no
If,
the opportunity
to then
withdraw the
the
. the disposition of
defendant
than
that contemplated
be less favorable to
by
the plea
the
agreement."
8.
We note
that under
U.S.S.G.
6B1.1(c), the
court must
the opportunity
to consider the
presentence report,
6A1.1.
-1010
He argues
refusal to depart."
unavailing.
III.
III.
____
Conclusion
Conclusion
__________
____________________
9.
Laguer-Avellanet does
argument
that the
countable for
not,
two prior
in this
appeal, pursue
convictions were
purposes of calculating
category.
-11-
his
not properly
the criminal
history
11