United States Court of Appeals

For the First Circuit

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, 2003
1 The court has determined that oral argument would not aid

the decisional process. See Fed. R. App. P. 34(a)(2)(C); 1st Cir.

Loc. R. 34(b).

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Per Curiam. This is the second appeal by defendantappellant James R. Riggs, Jr. In his first 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 agreement. We agreed, and

therefore vacated Riggs's sentence and directed the district court

to consider whether specific performance of the plea agreement or

withdrawal of the guilty plea was the appropriate remedy. United

States v. Riggs, 287 F.3d 221, 224-25 (1st Cir. 2002) (Riggs I).

On remand, Riggs elected to stand on his guilty 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 agreement again, this time by

suggesting that Riggs receive the maximum sentence available under

the law, even though the government had agreed to recommend a

sentence based on a specific amount of cocaine base, and (2) 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 base, without providing an

explanation and advance notice to the parties. We affirm.1

With respect to Riggs's first argument, we note that Riggs did
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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 ostensibly

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

affected the 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 no plain error here. The plea

agreement provided that the parties would recommend a sentence

based 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 months of

imprisonment. At the resentencing hearing, the government

recommended that Riggs receive a 162-month sentence. While the

government did not specifically mention that its recommendation was

based on 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.
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Although Riggs takes issue with the government's failure to

reference the 35 to 49 grams of cocaine base at the disposition

hearing itself, the plea agreement did not specifically say that

the government had to mention the drug quantity that led to the

applicable guideline range. What is more, the district court

already had indicated 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

Riggs's involvement 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

sentencing 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 requisite

recommendation somewhat grudgingly avails him naught. The

government's recommendation need not be enthusiastic. See, e.g.,

United States v. Benchimol, 471 U.S. 453, 455-56 (1985) (stating

that a criminal defendant has no right to an "enthusiastic"

recommendation by the prosecutor in order to achieve compliance

with a plea agreement). We interpret the government's statement
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that Riggs "should receive the maximum sentence 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

raised for the first time in this appeal (and, therefore, can only

be reviewed for 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 base, 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

beyond a reasonable 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 unspecified quantity of

cocaine base under 21 U.S.C. § 841(b)(1)(C) – a supervised release

term of 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 supervised release term did not exceed the guideline range
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for the offense to which Riggs pled guilty (and, thus, was not an

upward departure). 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 assuming without deciding that an Apprendi

error occurred because the length 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 placed him at a higher statutory level

than the default statutory maximum, and his sentence fell within

that higher level. Consequently, he cannot establish 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 drug quantity 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 are

affirmed.
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Affirmed.