United States v. Miguel Angel Flores-Payon

ORDER

The memorandum decision filed on March 26, 1991, 930 F.2d 30 , is redesignat-ed an authored opinion, with modification, by the undersigned for publication.

OPINION

I. BACKGROUND

On November 20, 1989, defendant Flores-Payon pled guilty to one count of conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). Defendant pled guilty pursuant to an agreement under which the government promised: (1) to recommend the lower end of the guideline sentence or the mandatory minimum sentence of five years, whichever was higher; (2) not to seek a superseding indictment charging appellant with possession of a firearm in violation of 18 U.S.C. § 924 (c); and (3) to dismiss the remaining counts of the indictment. At the entry of the guilty plea, the government advised the court that “as we calculated it the lower end of the Guidelines is three months higher than the mandatory minimum,” which would be 63 months. Reporter’s Transcript of Plea, at 15:11-12. Before accepting defendant’s plea, the district court informed him of the maximum sentence for the offense to which he was pleading guilty, explained that the court would not be bound by the…