Upward Variance Affirmed

US v. Green, No. 11-6321 (WD Okla), 12/6/12 (unpublished) - Defendant charged with cocaine and telephone counts made deal to plead guilty to the phone counts only. The agreement stipulated that 99.5 grams of coke would be attributed to him. At the change of plea hearing, defendant seemed to have a lot of trouble understanding that he would not be sentenced for a drug crime, but that the amount of coke would be used to calculate his guidelines range, which turned out to be 92-115 months. That range was not mentioned during the hearing. As for the amount of coke, the court agreed with defendant’s statement that he would be held accountable for 99.5 grams, “no more and no less.” At sentencing, the court varied upward and gave him 130 months.

Defendant appealed the sentence as both procedurally and substantively unreasonable. In the opening brief, counsel also raised he following issue: “Mr. Green was told at plea that his sentence would be 92-115 months, no more, no less.” Bad move. The panel first made short work of the procedural and substantive challenges. It couldn’t figure out just what the procedural challenge was, and found no error. In light of defendant’s apparently extensive criminal record, there was no problem with varying upward 15 months. Turning to the promise issue, the court said, “We expect more candor from members of the bar.” The range was never mentioned during the plea hearing, and “no more, no less” referred only to the stipulated amount of coke. In the reply brief and at oral argument, counsel argued that the real issue was that defendant’s plea was involuntary because he didn’t understand what his sentence could be. Wrong. That issue was waived because not raised in the opening brief, plus neither defendant nor counsel seemed the least bit surprised when the district court varied upward.