United States of America v. Cortez Ingram

United States Court of Appeals
For the Eighth Circuit
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No. 23-1514
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United States of America
Plaintiff - Appellee
v.
Cortez Ingram
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 12, 2024
Filed: February 6, 2024
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Before BENTON, ERICKSON, and KOBES, Circuit Judges.
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BENTON, Circuit Judge.
Cortez Ingram pled guilty to possession with intent to distribute cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The parties jointly
recommended an 87-month sentence. The district court1 departed upward,
1 The Honorable Stephen R. Clark, Chief Judge, United States District Court
for the Eastern District of Missouri.

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sentencing him to 123 months in prison and three years of supervised release. He
appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
Ingram argues the court was bound by the plea agreement to sentence him to
87 months. Because Ingram did not object at sentencing, this court reviews for plain
error. See United States v. Smith, 590 F.3d 570, 576 (8th Cir. 2009). On plain error
review, this court determines whether there was (1) an error, (2) that “is clear and
obvious,” (3) that affected “substantial rights,” and (4) that seriously affected the
“fairness, integrity or public reputation of judicial proceedings.” Id.
The parties entered a plea agreement under Federal Rule of Criminal
Procedure 11(c)(1)(A). An agreement under subsection (A) is binding on the
government and the defendant, but not the court. See Fed. R. Crim. P. 11(c)(1)(A)
(noting “the plea agreement may specify that” the government will “not bring” or
“move to dismiss” charges). Despite the plea agreement’s explicit language, Ingram
asserts it was also entered pursuant to Rule 11(c)(1)(C), converting it from a
nonbinding agreement under subsection (A) to a binding one under subsection (C).
See Fed. R. Crim. P. 11(c)(1)(C) (noting that a recommendation or request under
this provision “binds the court once the court accepts the plea agreement”).
This assertion has no basis in the record. The plea agreement stated that it was
entered “Pursuant to Rule 11(c)(1)(A),” that the court “is not bound by the
Guidelines analysis agreed to herein,” and that the court “may, in its discretion, apply
or not apply any Guideline despite the agreement herein, and the parties shall not be
permitted to withdraw from the plea agreement.” See United States v. Schiradelly,
617 F.3d 979, 982 (8th Cir. 2010) (holding that nonbinding language in the plea
agreement makes clear that “the plea agreement’s sentencing recommendation was
just that—a recommendation”). In the plea colloquy, the district court reiterated
these provisions. Ingram confirmed he understood them.

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The district court’s acceptance of the plea agreement also did not convert it to
a binding agreement. See id. at 981-82 (rejecting the argument that a district court
bound itself to a plea agreement’s recommended sentence by accepting the
agreement). The court did not err in declining to accept the parties’ sentencing
recommendation. See United States v. Kills in Water, 684 Fed. Appx. 585, 586 (8th
Cir. 2017) (holding that the district court was not bound by the parties’
recommended sentence in the plea agreement where the agreement clearly stated it
was entered under one of Rule 11’s nonbinding provisions).
II.
Ingram asserts the district court erred in departing upward to impose an above-
guidelines 123-month sentence (range was 70 to 87 months). “A district court’s
decision to depart upward from the advisory guideline range is reviewed for abuse
of discretion, and the extent of that departure is reviewed for reasonableness.”
United States v. Calf, 835 Fed. Appx. 898, 899 (8th Cir. 2021).
Sentencing Ingram, the court relied, in part, on two separate incidents: (1)
Ingram’s possession of cocaine in 2021 (the charged offense); and (2) Ingram’s
possession of cocaine and a loaded firearm during his arrest in 2022 (the uncharged
conduct). Ingram believes the court erred by basing its sentence on the uncharged
conduct. But the court was not prohibited from considering this conduct. Under
U.S.S.G. § 5K2.21:
The court may depart upward to reflect the actual seriousness of the
offense based on conduct (1) underlying a charge dismissed as part of
a plea agreement in the case, or underlying a potential charge not
pursued in the case as part of a plea agreement or for any other reason;
and (2) that did not enter into the determination of the applicable
guideline range.
See United States v. Azure, 536 F.3d 922, 932-33 (8th Cir. 2008) (holding that
district courts may rely on dismissed charges or uncharged conduct in “fashioning a

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reasonable sentence” even if the conduct was dismissed “as part of a plea agreement
in the case”). This court has repeatedly upheld upward departures under § 5K2.21
based on uncharged conduct. See, e.g., United States v. Brave Bull, 828 F.3d 735,
739 (8th Cir. 2016) (holding that the district court did not plainly err in departing
upward under § 5K2.21 based on conduct that was dismissed as part of a plea
agreement). The district court did not abuse its discretion in departing upward.
Nor is the extent of the departure unreasonable. The court considered “all of
the 3553(a) factors as I’ve explained them and discussed them and considered them.”
It did not abuse its discretion in imposing a 123-month sentence. See Calf, 835 Fed.
Appx. at 899-900 (holding no abuse of discretion in considering the § 3553(a)
factors, including “conduct in the underlying dismissed charge”).
III.
Ingram believes he should have had access to the probation officer’s sealed
sentencing recommendation. Ingram did not object at sentencing, so review is for
plain error. Zurheide, 959 F.3d at 921. Under Fed. R. Crim. P. 32(e)(3):
By local rule or by order in a case, the court may direct the probation
officer not to disclose to anyone other than the court the officer’s
recommendation on the sentence.
In the United States District Court for the Eastern District of Missouri, two
local rules govern the disclosure of the probation officer’s sentencing
recommendation. The first is the court’s Local Rule 13.01(B):
Except as authorized by law, all records created or maintained by the
U.S. Probation Office and the U.S. Pretrial Services Office are subject
to disclosure only by order of the Court entered upon a motion alleging
the movant’s need for specific information contained in such records.
When a demand by way of subpoena or other judicial process is made
of an officer either for copies of records or testimony relating thereto,
the officer may petition the Court for instructions.

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United States District Court Eastern District of Missouri, Local Rules, 13.01(B).
The second is the court’s Administrative Order about sentencing procedures:
Not less than 35 days before the sentencing hearing, the PSR, including
guideline computations, shall be completed and a copy electronically
delivered via CM/ECF to counsel for the defendant and the
government. It is the responsibility of the defendant’s attorney to
provide a copy of the presentence report to the defendant. Except for
the recommended conditions, the U.S. Probation Office’s
recommendation as to sentence will not be disclosed.
United States District Court Eastern District of Missouri, Administrative
Order, In re: Sentencing Procedures (Jan. 20, 2017).
Taken together, these rules prohibit the court from disclosing the probation
officer’s sentencing recommendation. The court did not err, let alone plainly err, in
failing to sua sponte disclose the sentencing recommendation to Ingram. See United
States v. Behler, 14 F.3d 1264, 1273 (8th Cir. 1994) (holding no Rule 32 violation
where the district court filed the probation officer’s sentencing recommendation
under seal because the defendant was not entitled to disclosure of it).
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The judgment is affirmed.
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