1

The conspiracy offense was committed prior to the effective date of the sentencing

guidelines. Masters' life sentence was therefore subject to parole. Masters' presumptive parole

date was April 2009. 

 2

In its presentence report, the court's probation office did not recommend an upward

departure. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-8249

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Henry Benjamin MASTERS, Defendant-Appellant.

Aug. 11, 1997.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:95-CR503-2), Clarence Cooper, Judge.

Before TJOFLAT, BIRCH and CARNES, Circuit Judges.

PER CURIAM:

 Pursuant to a plea agreement, Henry Benjamin Masters pled guilty to the offense of second

degree murder. The murder occurred at the Atlanta Penitentiary, where Masters was serving a life

sentence for conspiracy to commit murder;1

 the victim was a inmate at the penitentiary. At

sentencing, the district judge announced that he was going to depart upwardly from the guideline

range, which called for a sentence of 121-151 months imprisonment, and impose a sentence of 240

months because of "the severity of the offense, a murder and death." Masters' attorney objected to

the departure on two grounds. The first ground was that the court had not given Masters prior notice

that it would consider an upward departure at the sentencing hearing.2

 The second ground was that

the Sentencing Commission had already taken "a murder and death" into account in framing the

guideline for murder in the second degree, U.S.S.G. 2A1.2(a); accordingly, a murder and death

could not serve as a basis for departing from the guideline range.

 The prosecutor, knowing full well that the court could not use the death of the victim as a
 3

Moreover, because the court stated on the record that it "was not familiar with circumstances

surrounding the [murder]," the prosecutor knew that the court would not be taking such

circumstances into account in deciding to depart. 

 4

The prosecutor had a duty—by virtue of his oath of office, if nothing more—to inform the

court that it could not depart upwardly on account of the victim's death. The prosecutor

disregarded that duty; instead, he tried to provide the court with a different basis for the

departure, but the court ignored him. The prosecutor's conduct in this matter was reprehensible. 

basis for an upward departure,3 attempted to provide the court with a ground4 that might

suffice—Masters' poor institutional behavior. According to Bureau of Prisons records, Masters had

been disciplined for, among other things, assault and use of narcotics. The court ignored the

prosecutor's attempt to justify the intended departure on this basis, and announced that it would

depart because of the death of the victim and "everything contained within [the presentence] report."

The court, recognizing that Masters' attorney had a valid objection concerning the lack of

notice, indicated that it would continue the hearing in order to give the defense an opportunity to

prepare a case against an upward departure. Masters, however, did not want a continuance; he told

his attorney and the court that he wanted to proceed with the hearing. "I want to get the sentence,

and we will appeal. I have got that right." After a brief recess, in which Masters and his attorney

conferred, counsel informed the court that, in light of the court's statement that it would hand down

an above-guideline sentence, he had advised Masters to withdraw his guilty plea and go to trial.

Masters, however, wished to proceed.

The sentencing hearing therefore continued. Once again, Masters' attorney objected to the

upward departure, explaining that the Sentencing Commission had taken murder into account in

fashioning the guideline for second degree murder. Although it is self-evident that a guideline for

second degree murder necessarily takes into account the death of the victim, the court stood fast to

its decision to depart. Finally, out of pure desperation, defense counsel informed the court that

Masters would appeal its decision. Masters, however, promptly intervened and instructed counsel

to withdraw his objection. The following colloquy ensued:

[Defense counsel]: Your honor, I withdraw any objections based upon the specific request

of my client.

Mr. Masters: Your honor, please sentence me and let me get out of here.
 5

The Government, in its answer brief, argues that we should affirm Masters' sentence on

alternative grounds: (1) that Masters' knowingly withdrew his objection to the upward

departure; and (2) that the departure was warranted by "the particular facts of this case make the

offense particularly egregious" and Masters' assaultive behavior while incarcerated in the Atlanta

penitentiary. We decide this appeal on the first ground; the second ground is meritless. 

The court: All right, let the record show he is withdrawing any objection, and I will go

ahead and sentence the defendant.

The court then sentenced Masters to a prison term of 240 months, to run consecutively to the

sentence Masters was then serving, and a five-year term of supervised release upon conditions the

court read into the record.

Thereafter, the court asked Masters if he objected to the sentence. His attorney replied:

"Yes, I object to the sentence. I object to the conditions [of supervised release] imposed." After

informing Masters that he had ten days to appeal, the court concluded the hearing.

 Masters appeals, contending that the court erred in imposing a sentence above the guideline

range. The court did err; everyone in the courtroom (except the court), including the defendant,

knew it. Masters, however, waived the objection, and he did so knowingly.5

 The plain error

doctrine is inapplicable in a situation such as this—where the defendant fully comprehends the error

the court is going to commit and nonetheless agrees to be bound by it. The district court's judgment

is, accordingly,

AFFIRMED.