United States v. Robert Bolinger

dissenting in part:

This case asks whether district courts may incorrectly apply the Sentencing Guidelines in plea agreements as long as they sentence under an agreed cap. Because a primary purpose of the Guidelines was to create uniformity in sentencing, see U.S.S.G. Ch. 1, Pt. A, intro, comment., I must respectfully dissent from Part II-A of a decision that allows such broad license to the district courts in contravention of the Sentencing Commission’s intent.

I. ADDITIONAL FACTS

I first think it important to note a few facts that the majority’s opinion has omitted. The initial plea agreement into which the parties entered contained language stating, “The parties agree that the Sentencing Guidelines will not apply in this case.” The district court, however, said that it could not permit such a statement to be included; the Guidelines, it said, could not be circumvented by plea. As a result, that sentence in the agreement was changed to the following: “The parties agree that the Court may depart upward or downward under the sentencing guidelines.” (emphasis added). The agreement on sentencing thus read:

The court then found that the offense level should be 12 and the criminal…

Robert Bolinger appeals his criminal sentence after pleading guilty to the charge of being a felon in possession of a firearm. Bolinger argues that the district court misapplied the sentencing guidelines and placed an impermissible condition on his supervised release. Bolinger’s negotiated plea agreement expressly waived his right to appeal the sentence pursuant to 18 U.S.C. § 3742 . We hold the waiver enforceable and thus do not consider his claims that the guidelines were misapplied. We also affirm the conditions the district court set for his supervised release.

I. BACKGROUND

Bolinger was indicted on four counts: conspiracy to distribute cocaine, aiding and abetting in possession with intent to distribute cocaine, carrying a firearm during a drug trafficking crime, and being a convicted felon in possession of a firearm. As part of a plea bargain in which the government agreed to drop the first three counts, Bolinger pleaded guilty to the last count on March 20, 1990. On May 29, he was sentenced to 36 months incarceration and 36 months supervised release and ordered to pay a $3,000 fine. Part of his supervised release conditions included a prohibition on being involved in any…

940 F.2d 478 UNITED STATES of America, Plaintiff-Appellee, v. Robert BOLINGER, Defendant-Appellant. No. 90-10305. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 2, 1991. Decided July 30, 1991. David Taylor Shannon, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant. Thomas L. Fink, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding. Before TANG, FARRIS and D.W. NELSON, Circuit Judges. FARRIS, Circuit Judge: 1 Robert Bolinger appeals his criminal sentence after pleading guilty to the charge of being a felon in possession of a firearm. Bolinger argues that the district court misapplied the sentencing guidelines and placed an impermissible condition on his supervised release. Bolinger's negotiated plea agreement expressly waived his right to appeal the sentence pursuant to 18 U.S.C. Sec. 3742 . We hold the waiver enforceable and thus do not consider his claims that the guidelines were misapplied. We also affirm the conditions the district court set for his supervised release. I. BACKGROUND 2 Bolinger was…