# United Stat es Court of Appeals For the First C ircuit

No. 02-2063 UNITED STATES, Appellee,
v. JAMES R. RIGGS, JR., Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge ]
Before Torruella, Selya and Lynch,

Circuit Judges .

Tina Schneider on brief for appellant. Margaret D. McGaughey , Appellate Chief, and Paula D. Silsby , United States Attorney, on brief for appellee.

October 16, 20031 The court has dete rmined that oral argument would not aid

the decisional process. See Fed. R. App. P. 34(a)(2)(C); 1st Cir. Loc. R. 34(b). -2- Per Curiam . This is the second appeal by defenda nt appellant James R. Riggs, Jr. In hi s fir st appeal, Riggs argued that the government breached the plea agreement by not recommending that he be sentenced on the basis of five to fifty grams of cocaine base, as expressly set forth in the agreem ent. We agreed, and therefore vacated Riggs's sentence anddirected the district court to consider whether specific performance of the plea agreement or withdrawal of the guilty plea was the appropriate remedy. United Stat es v. Riggs , 287 F.3d 221, 224-25 (1st Cir. 2002) ( Riggs I ) . On remand, Riggs elected to stand on his gu ilty plea and was resentenced. In the present appeal, Riggs argues that his sentence should be vacated and his case remanded for resentencing because (1) the government breached the plea a gree ment again, this time by suggesting that Riggs receive the maximum sentence available under the law, even though the government had agreed to recommend a
se ntence based on a specific amount of cocaine base, and (2) th e district court erred by imposing a term of supervised release that exceededthe s ente ncing guidelines for an offense involving an unspecifiedamount of cocaine base, without providing a n explanation and advance notice to the parties. We affirm. 1 With respect to Riggs's first argument, we note that Riggs did-3-

not object to any of the government's comments at the resentencing hearing. As we said in Riggs I : When a defendant has knowledge of conduct os tensi bly amounting to a breach of a plea agreement, yet does not bring that breach to the attention of the sentencing court, we review only for plain error. To establish plain error, a defendant must demonstrate that: (1) there was error; (2) the error was plain; (3) the error affectedthe defendant's substantial rights; and (4) the error adversely impacted the fairness, integrity, or public reputation of judicial proceedings. Id. at 224 (internal citations and quotation marks omitted). We conclude that there was n o pl ain error here. The plea agreement provided that the parties would re comm end a sentence base d on five to fifty grams of cocaine base, but the parties subsequently agreed, prior to resentencing, to narrow that spread to 35 to 49 grams. The guideline range for trafficking in 35 to 49 grams of cocaine base, based on Riggs's total offense level of 27 and his Criminal History Category (VI), is 130 to 162 m onths o f imprisonment. At the resentencing hearing, the government recommendedthat Riggs receive a 162-month se ntence. While the government did not specifically mention that its recommendation was basedon a drug quantity of 35 to 49 grams of cocaine base, it had
so stipulated less than an hour earlier at a presentence conference. Moreover, its sentencing recommendation was at the high end of, but clearly within, the guideline range for this drug amount. Therefore, the government did not breach its obligations under the plea agreement.-4-

Although Riggs takes issue with the gover nmen t's failure to reference the 35 to 49 grams of cocaine base at the dis position hearing itself, the plea agreement did not s pecifi cally say that the government had to mention th e drug qua ntity that led to the
a pplica ble guideline range. What is more, the district court already had i ndi cated that it was aware that the parties' sentencing recommendations would be based on that specific drug quantity. Finally, despite the fact that the government recounted Rig gs's i nvolvement in the drug conspiracy and noted that the conspiracy ended with "the seizure of several hundred grams of crack cocaine," these facts were contained in the presentence investigation report. It was not only appropriate, but also in conformity with the government's obligations for it to provide the
se nten cing court with information as to the material facts surrounding the offense. See , e.g. , United States v. Mata-Grullon , 887 F.2d 23, 24 (1st Cir. 1989) (noting that "the government must bring all relevant facts to the [sentencing judge's] attention"). Riggs's complaint that the government made the r equisite recommendation somewhat grudgingly avails him naught. The government's recommendation need not be enthusiastic. See , e.g. , UnitedStates v. Benchimol , 471 U.S. 453, 455-56 (1985) (stati ng that a criminal defendant has no right to an "enthusiastic" recommendation by the prosecutor in order to achieve compliance
w ith a plea agreement). We interpret the government's sta temen t-5-

that Riggs "shouldreceive the maximumsentence available under the law" as recommending the maximum guideline sentence available under 21 U.S.C. § 841(b)(1)(B) based on Riggs's total offense level and criminal history category. We also reject Riggs's second argument. That argument is raisedfor the first time in this appeal (and, therefore, can only be reviewedfor plain error). See , e.g. , United States v. Duarte , 246 F.3d 56, 60 (1st Cir. 2001). Riggs argues that the district court erred by imposing a term of supervised release that exceeded the sentencing guidelines for an offense involving an unspecified amount of cocaine bas e, without providing advance notice to the parties and an explanation for doing so. In effect, Riggs treats the supervised release term as constituting an upward departure because no drug quantity was alleged in the indictment, included in the government's version of the facts, or determined by the court beyonda r eason able doubt. See Apprendi v. New Jersey , 530 U.S. 466, 490 (2000). For that reason, he says, he could not receive
more than the maximum sentence for an unspec ified quantity of cocaine base under 21 U.S.C. § 841(b)(1)(C) – a supervised release termof two to three years. See USSG § 5D1.2(a)(2) (providing that if a term of supervised release is ordered, the length of the term for a Class C felony shall be "at least two years but not more than three years"). The supervisedrelease term didnot exceed the guideline range-6-

for the offense to which Riggs pled guilty (and, thus, was not an upwarddeparture). The record is clear that Riggs accepted responsibility for 35 to 49 grams of cocaine base, making his offense a 21 U.S.C. § 841(b)(1)(B) offense. Because such an offense is a Class B felony, see 18 U.S .C. § 3559(a)(2), the applicable guideline provision calls for "at least three years but not more than five years" of supervised release. USSG § 5D1.2(a)(1). Thus, the district court's imposition of a five-year supervised release term did not exceed the guideline range. Moreover, even assu ming without deciding that an Apprendi
error occurred because the l ength of Riggs's sentence was driven largely by drug quantity (a fact neither charged in the indictment
nor submitted to a jury), Riggs stipulated that he was responsible for a drug quantity that place d him at a higher statutory level than the default statutory maximum, and his sentence fell within that higher level. Consequently, he cannot establ ish either prejudice or plain error. See Duarte , 246 F.3d at 60 (holding that
even if Apprendi error occurred, defendant who admitted to drug quantity at time of plea suffered no prejudice by omission of specific d rug qu antity in indictment or by absence of jury determination on that point, and, therefore, plain error standard was not met). For the reasons stated, the judgment and sentence ar e affirmed.-7-

Affirmed .