The opinion of the court was delivered by: (Judge Muir)
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
On January 26, 2006, Defendant Donte Brooks pled guilty to one count of conspiracy to possess with intent to distribute cocaine base (also known as crack cocaine) on May 18, 2005, in violation of 21 U.S.C. § 846. A document entitled "Statement of Facts in Support of Guilty Plea" was filed on January 26, 2006, in connection with the parties' plea agreement. Paragraph 23 of that document states the following: "The parties agree and stipulate that the amount of cocaine base, known as crack[,] involved in this case is more than 5 grams and less than 20 grams." (Statement of Facts in Support of Guilty Plea, p. 6, ¶23)
On April 19, 2006, U.S. Probation Officer Drew Thompson provided us with Brooks's pre-sentence report. Paragraph 17 of the presentence report states that "[t]he offense involves 42.92 grams of crack cocaine ...." (Presentence Report, p. 6, ¶17) Based on that drug quantity, Probation Officer Thompson determined Brooks's Base Offense Level to be 30 and his advisory guideline imprisonment range to be 87 to 108 months. Brooks has filed objections to the presentence report.
A presentence conference was held on April 24, 2006. During the conference counsel and the court discussed, inter alia, 1) the inconsistent drug quantities set forth in the parties' stipulation and the presentence report, and 2) Brooks's objections to the presentence report. With respect to the former matter, we specifically requested the parties to brief the issue of whether the Probation Officer is bound by a stipulation of the parties as to the existence of a certain fact. On April 25, 2006, we issued an order in which we set briefing schedules on all of the subjects addressed at the presentence conference.
On May 16, 2006, the government filed its brief concerning the issue of whether the Probation Officer is bound by the parties' stipulation. Brooks filed his responsive brief on May 25, 2006. The time allowed for the government to file a reply brief expired on June 12, 2006, and to this date no such brief has been filed. We withheld ruling on that matter pending briefing on Brooks's objections to the presentence report so that we could issue one order resolving all of the issues relating to Brooks's presentence report.
Brooks filed a brief in support of his objections to the presentence report on May 16, 2006. After being granted an extension of time in which to do so, the government timely filed its opposition brief on June 16, 2006. Brooks filed his reply brief on June 28, 2006.
The issue of whether the Probation Officer is bound by the parties' stipulation concerning drug quantity and Brooks's objections to the presentence report are ripe for disposition. We will address all of those matters in this order.
The threshold question is whether the drug quantity to be used in determining Brooks's Base Offense Level is the amount agreed upon by the parties in their stipulation, or the amount found by the Probation Officer in his report. As discussed more thoroughly below, an inherently related issue is whether Brooks is entitled to any relief if we do not adopt the stipulation. If we apply the parties' stipulation, then Brooks's Base Offense Level is 26. The drug quantity reflected in the presentence report yields a Base Offense Level of 30.
The United States Court of Appeals for the Third Circuit considered a very similar factual scenario in the case of United States v. Torres, 926 F.2d 321 (3d Cir. 1991). In Torres the parties stipulated that the defendant was responsible for 198 grams of cocaine. However, an additional kilogram of cocaine had been found in the automobile in which the defendant had been riding when he was arrested. During the guilty plea colloquy the following exchange occurred:
U.S. Attorney: [T]he amount [of] cocaine for the applicable sentencing guidelines range is 100 and, 100 to 200 grams.
The Court: The information alleges 198.
U.S. Attorney: That's right.
The Court: 198. That binds it.
U.S. Attorney: I anticipate that would be the amount for sentencing.
Id. at 325. Despite the parties' stipulation, the Probation Officer considered the additional kilogram of cocaine in determining the defendant's guideline imprisonment range. Both parties objected to the court's consideration of the additional kilogram. The district court overruled the parties' objections, denied the defendants' motion to withdraw his guilty plea because the additional cocaine would be attributed to him for sentencing purposes, and considered the additional kilogram in sentencing the defendant.
The Court of Appeals for the Third Circuit reversed the district court holding that although the Probation Officer and the court are not bound by a stipulation reached by the parties, and that when the court rejects such a stipulation the defendant may be entitled to withdraw his guilty plea. In our view the fundamental concept underlying Torres relates to a defendant's entitlement to withdraw his guilty plea "when a plea bargain has been frustrated for various reasons." Id. at 327.
The critical facts in Torres centered on the court's representation during the guilty plea colloquy that the 198 grams alleged in the information "binds it." Id. The Court of Appeals for the Third Circuit reasoned that the district court's statement was not sufficiently clear to advise the defendant that a greater drug quantity could subsequently be used to determine the sentencing guidelines.
In the instant case, the government and Brooks agree that the reasoning and holding in Torres apply here indicating that we should either 1) apply the drug quantity to which the parties have stipulated, or 2) if the stipulation is rejected in favor of the greater drug quantity set forth in the ...