United States of America v. Andre Hargrove

NOT RECOMMENDED FOR PUBLICATION
File Name: 24a0007n.06
No. 22-4083
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDRE HARGROVE,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO
OPINION
Before: McKEAGUE, LARSEN, and MURPHY, Circuit Judges.
LARSEN, Circuit Judge. Andre Hargrove pleaded guilty to two drug charges. The district
court sentenced him to 80 months’ imprisonment. Hargrove appeals. Seeing no error, we
AFFIRM.
I.
In 2020 and 2021, Andre Hargrove helped to ship packages of drugs through the postal
system. In early 2021, United States Postal Service inspectors seized two parcels of drugs, one
containing methamphetamine and the other containing fentanyl, and tied them to Hargrove. A
grand jury indicted Hargrove for attempted possession with intent to distribute methamphetamine
and fentanyl. Hargrove pleaded guilty to both counts, and as part of the plea agreement, the
government agreed to recommend a base offense level of 30.
The PSR calculated Hargrove’s base offense level at 34. At the sentencing hearing, the
district court adopted that base offense level, readjusted the Guidelines range, and sentenced
Hargrove below the Guidelines range to 80 months’ imprisonment. Hargrove appeals.

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II.
Hargrove argues that the district court should have allowed him to withdraw his guilty plea
after the court rejected the plea agreement’s terms by calculating a higher base offense level than
agreed to by the parties.1 Because he did not raise this argument in the district court, we review
for plain error. See United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).
Federal Rule of Criminal Procedure 11(c)(1) catalogs three types of plea agreements. The
parties may agree that the government will:
(A) not bring, or will move to dismiss, other charges;
(B) recommend, or agree not to oppose the defendant’s request, that a
particular sentence or sentencing range is appropriate or that a particular provision
of the Sentencing Guidelines, or policy statement, or sentencing factor does or does
not apply (such a recommendation or request does not bind the court); or
(C) agree that a specific sentence or sentencing range is the appropriate
disposition of the case, or that a particular provision of the Sentencing Guidelines,
or policy statement, or sentencing factor does or does not apply (such a
recommendation or request binds the court once the court accepts the plea
agreement).
Fed. R. Crim. P. 11(c)(1)(A)–(C).
The “type” of plea agreement (A, B, or C) determines the court’s duty. See United States
v. Hyde, 520 U.S. 670, 675 (1997). In a “type C” agreement, the government “agrees that the
defendant should receive a specific sentence” or sentencing range. Id. This type of agreement
“binds the court once the court accepts the plea agreement.” Fed. R. Crim. P. 11(c)(1)(C). But if
the court rejects a type C agreement, the court must “inform the parties” of the rejection; “advise
1 Hargrove also argues that his “appellate waiver was invalidated because the [district] court did
not fully comply with” Federal Rule of Criminal Procedure 11. Appellant Br. at 14. We need not
decide that question because the government concedes that the plea agreement’s appellate waiver
doesn’t bar Hargrove’s challenge on appeal. See Appellee Br. at 5 n.1; United States v. Jones,
417 F.3d 547, 549 (6th Cir. 2005).

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the defendant personally that the court is not required to follow the plea agreement and give the
defendant an opportunity to withdraw the plea”; and “advise the defendant personally that if the
plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than
the plea agreement contemplated.” Fed. R. Crim. P. 11(c)(5)(A)–(C). In a “type B” agreement,
the government agrees only to “recommend, or agree not to oppose the defendant’s request, that a
particular sentence or sentencing range is appropriate.” Fed. R. Crim. P. 11(c)(1)(B). Such an
agreement “does not bind the court,” id., and the defendant has no right to withdraw his plea in the
event of a rejection, see Fed. R. Crim. P. 11(c)(5).
Hargrove contends that the district court violated Rule 11(c)(5) by not allowing him to
withdraw his plea once the court arrived at a base offense level inconsistent with the plea
agreement. This is a curious argument because Hargrove himself acknowledges that the plea
agreement says that it was made “[p]ursuant to Rule 11(c)(1)(b)” and provides that it “is not
binding upon on the court.” Appellant Br. at 23. Coupled with his acknowledgment that a court
must follow the procedures of Rule 11(c)(5) when rejecting an agreement made under Rule
11(c)(1)(C), and his lack of a similar claim regarding Rule 11(c)(1)(B), Hargrove’s brief seems to
rebut his only argument.
The record confirms this rebuttal. The plea agreement states that the parties reached an
agreement “[p]ursuant to Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure.” And the
agreement contains a paragraph entitled, “Sentencing Recommendations Not Binding on the
Court,” in which Hargrove acknowledged “that the recommendations of the parties will not be
binding upon the Court, [and] that the Court alone will decide the advisory guideline range . . . and
what sentence to impose.” Further, Hargrove acknowledged “that once the Court has accepted
Defendant’s guilty plea, Defendant will not have the right to withdraw such a plea if the Court

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does not accept any sentencing recommendations made on Defendant’s behalf or if Defendant is
otherwise dissatisfied with the sentence.” By its plain terms, then, the plea agreement was a “type
B” agreement, made under Rule 11(c)(1)(B). Such an agreement neither binds the court nor
requires that the defendant be given the opportunity to withdraw his plea should the agreement’s
sentencing recommendations be rejected.
There was one moment of confusion, either during the sentencing hearing itself or in the
transcription of it, that warrants brief discussion. The transcript records the government as saying
that this was a Rule 11(c)(1)(C) plea in response to a somewhat confusing question from the court.
In this court, the government says that this “appears to be a typographical error in the transcript.”
Appellee Br. at 8. Hargrove doesn’t dispute that characterization. And the rest of the sentencing
hearing shows that the district court correctly understood that the plea agreement was made under
Rule 11(c)(1)(B). Without objection from Hargrove, the court explained its recollection that the
agreement left it to the court to calculate the Guidelines range, regardless of the range the parties
had negotiated in the agreement.
The record reveals that the district court properly understood the type of plea agreement
before it. Because the parties had negotiated a “type B” agreement, see Fed. R. Crim. P.
11(c)(1)(B), the court had no obligation to allow Hargrove to withdraw his plea on the ground that
the court had calculated a different base offense level than the parties had negotiated. The district
court did not err, much less plainly so.
* * *
We AFFIRM.

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