Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 CR 214--James B. Zagel, Judge.
Before REAVLEY, *fn* FLAUM, and KANNE, Circuit Judges.
Arthur Johnson, now 65 years old, has had much experience with the criminal justice system. Although a full recitation of his criminal history would unnecessarily extend this opinion, we relate a bit of it to set the stage for our discussion. As a juvenile, Johnson was arrested three times for automobile theft, stemming from "joy rides." At age 18, he twice was convicted of tampering with an automobile and sentenced to one year probation and 30 days in the House of Corrections, respectively. At age 21, he was convicted of taking indecent liberties with a child. For that crime he spent 11 1/2 years in the state correctional system in Illinois. At age 37, Johnson was found guilty of unlawful use of a weapon and aggravated assault, both occurring during a domestic dispute. At age 38, Johnson pled guilty to a spree of armed robberies and to attempted murder. For these crimes he spent four years and eight months in the Illinois state correctional system. At age 49, Johnson pled guilty to numerous weapons charges and possession of stolen mail and served approximately one year in the Federal Correctional Institution at Oxford, Wisconsin. A week before his 57th birthday, he pled guilty to unlawful use of a weapon by a felon and spent 90 days in jail. In total, Johnson has spent 18 years and five months, almost one-third of his life, in custody.
In March 1992, Johnson was charged, once again, with the unlawful possession of a firearm by a felon. The case went to trial in August 1993, and the jury deadlocked. Judge Zagel declared a mistrial and set the case for retrial on January 4, 1994. Prior to that time, the government and Johnson entered into a Rule 11(e)(1)(C) plea agreement. Under the agreement, Johnson was to plead guilty to knowingly and intentionally using a telephone to commit a drug offense, a violation of 21 U.S.C. sec. 843(b), in exchange for the government dropping the original weapons charge. The parties also agreed, preliminarily, that for sentencing purposes Johnson's base offense level was 16, and an increase of two levels for possession of a weapon and a decrease of two levels for acceptance of responsibility was appropriate. The parties also agreed that, pursuant to United States Sentencing Guidelines (U.S.S.G.) sec. 4B1.1, Johnson was a Career Offender and his criminal history category was VI. Under these calculations, the sentencing range under the guidelines was 46 to 57 months. The government agreed to recommend to the judge a 48 month sentence.
On February 9, 1994, the parties presented the plea agreement to the court. The court accepted Johnson's guilty plea and referred the matter to a probation officer to prepare a Presentence Investigation Report (PSR). Toward the end of that hearing, and before accepting his guilty plea, the court warned Johnson that if he pled guilty the court would sentence him to the agreed 48 months or, if the probation officer calculated a sentencing range below 48 months, he would be sentenced to "the highest sentence that's permissible under the guidelines."
The PSR, presented by the probation officer on May 2, 1994, concurred with the calculation of Johnson's Offense Level at 16, but disagreed with the parties' Criminal History calculation. Because many of Johnson's prior convictions were entered more than fifteen years before this action commenced, they could not be used to calculate his Criminal History Category. See U.S.S.G. sec. 4A1.2(e). Thus, the probation officer calculated Johnson's Criminal History points at 6, corresponding to a Criminal History Category of III. This led to a guidelines range of 27 to 33 months. The probation officer also noted that the judge may consider departing upward under U.S.S.G. sec. 4A1.3.
Because the 48 month sentence that the parties agreed to was not within the guidelines range that the probation officer calculated, the court held a hearing on May 19, 1994 to determine what to do next. At that hearing, Johnson's counsel argued that the court should "specifically enforce" the plea agreement, as modified by the court's statement to Johnson that is quoted above: in other words, sentence Johnson to 33 months. The government argued that specific enforcement was not the proper remedy, but rather Johnson should be allowed either to withdraw his guilty plea or to proceed with sentencing. The court continued sentencing to give the parties time to continue plea negotiations and for Johnson to consult with counsel.
On June 28, 1994, the court proceeded with sentencing. Judge Zagel denied Johnson's request for a 33 month sentence, determining that Johnson's remedy was to have an opportunity to withdraw his plea. See FED. R. CRIM. P. 11(e)(4). Johnson declined to withdraw his guilty plea. The court then sentenced Johnson. Starting from the PSR's Guidelines calculations, the court departed upward four points, to a Criminal History Category of V. When combined with an Offense Level of 16, the applicable sentencing range was 41 to 51 months, and the court imposed a sentence of 48 months.
Johnson first argues that during the February 9th status hearing, Judge Zagel accepted the 48 month sentence recommended in the Plea Agreement and effectively sentenced Johnson to that term before requesting and receiving a PSR, in violation of U.S.S.G. sec. 6B1.1(c). Johnson did not raise this issue with the District Court and has forfeited the argument. United States v. Mustread, 42 F.3d 1097, 1107 (7th Cir. 1994). We therefore review for plain error. Id. Section 6B1.1(c) states,
The court shall defer its decision to accept or reject any nonbinding recommendation pursuant to Rule 11(e) (1)(B), and the court's decision to accept or reject any plea agreement pursuant to Rules 11(e)(1)(A) and 11(e) (1)(C) until there has been an opportunity to consider the presentence report, unless a report is not required under sec. 6A1.1.
Both parties admit that a presentence report was not excused under sec. 6A1.1; just the opposite--the judge ...