NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0534n.06 No. 11-3506 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellant.

v. STE P HANIE CORSMEIER, Defendan t-Appellee. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE SOUTH ERN DISTRICT OF OHIO

BEFORE: MARTIN, CLAY , and KETHL EDGE, Circ uit Jud ges. P ER CURIAM

. The g overnme nt appea ls the sentence imposed by the district c ourt upon De fe n d an t ’s p lea of guilty to a single violation of 18 U.S.C. § 1349. In a written plea ag ree m en t (“Pl ea Ag ree ment”), Def endant and the g overnme nt ag ree d that “a sentenc e that includes an 18- month term of imprisonment is the appropr iate dispositi on of this case .” The district court acc epted the agr eeme nt pursuant to Rule 1 1 (c )(1) (C) of the Feder al Rules of C riminal Procedur e, and afte r considering the fac tors set forth in 18 U.S.C. § 3553(a) , sentenc ed Def endant to “a total term of 18 months imprisonment,” consisting of three months in prison followed by fiftee n months in a halfwa y house as a condition of supervised rele ase. The g overnme nt now appea ls on the basis that the district court bre ache d the Plea Agree ment.No. 11-3506

By sentenc ing Def

endant to confinem en t i n a fede ral prison for three months followed by confine ment in a halfwa

y house for the next 15 months, for a total of 18 months of confine ment, the district court satisfied its obliga tion under the Plea Agre ement. To the ex tent the p h ra s e “t erm of imprisonment” is ambiguous as to the ty pe of confine ment that should be imposed, the district court proper ly resolved this ambiguity in favor of i ts “indepe n dent obl iga tion to exercise its discretion” to fashion an appropr iate sentenc e. Freem an v. United States , 131 S. Ct. 2 6 8 5 (2 011) (plurality ) (discussing the district court’s “indepe ndent obligation to exercise its discretion” to fashion an appropr iate sentenc e); see also 18 U.S.C. §§ 3553, 3582; United St ates v. Booke r , 543 U.S. 220 (2005). Acc ording ly , there being no erro r to complain of, the district court’s judgme nt is AF F IRMED.

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KETHL EDGE, Circuit Judge , dissenting. Criminal Proc edure Rule 11(c) (1)( C) states that

a sentenc ing rec ommendation set forth in a plea ag ree ment “ binds the court once the court acc epts the plea ag ree ment.” (Emphasis ad d ed

. ) The district court in this case “ac cept[ed] the Rule 11(c) (1)( C) ag ree ment enter ed int o by the parties[ .]” Statement of R easons at 5. That agr eement stated that “a sentenc e that includes an 18-month term of imprisonment is the appropr iate dispositi on of this case .” Plea Ag ree ment ¶ 3. A person subject to a “ter m of imprisonment” is “committed to the custody of the Bur eau of Prisons until the expiration of the term imposed, or until ear lier rele ased for satisfac tory behavior [.] ” 18 U.S.C. § 3621(a)

. Thus, per the plea agree ment here , Corsmeier should have been committed to the custody of the Bur eau of Prisons for 18 months. But the district court’s judgme nt provides: “The defe ndant is here by committed to the custody of the United States Bur eau of Prisons to be imprisoned for a total term of THREE (3) MONTHS .” (Emphasis in orig inal.) The district cour

t does not have discr etion to violate Rule 11(c) (1)( C). See, e .g., Freem an

v. United States , 564 U.S.

_ _ , 2 011 WL 2472797 at *9 (2011) (Sotomay or, J ., concur ring in the judgme nt) (the “ver

y purpose of (C) agr ee m en t s ” i s to “bind the district court and allow the Gover nment and defe ndant to deter mine what sentenc e he will rec eive” ); United States v. Mandell, 905 F.2d 970, 972 ( 6th Cir. 1990) (“once the district court acce pts the pl ea ag ree ment, it is bound by the barg ain”)

. Her e, the district c ourt’s judgme nt violate s Rule 11(c) (1)( C) beca use it commits Corsmeier to the custody of the Bur eau of P ri s o n s for three months rathe r than 18. That she will spend 15 months in a halfwa y house during her term of supervised rele ase does not chang e the fac t of the violation, bec ause she will not be in the custody of the B urea

u of Prisons duringthat time.

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Corsmeier’ s sentenc e is contra ry to law. I would vacate the district court’s judgme nt and

rema nd for r esente ncingconsistent with the plea a gree ment. Thus, Irespe ctfully dissent.

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