United States v. Adam Kane ( 2015 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 25 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10328
Plaintiff - Appellee, D.C. No. 2:06-cr-00264-NVW
v.
MEMORANDUM*
ADAM MICHAEL KANE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Howard D. McKibben, District Judge, Presiding**
Submitted June 22, 2015***
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Adam Michael Kane appeals from the district court’s judgment and
challenges the 14-month sentence imposed upon revocation of supervised release.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Howard D. McKibben, Senior United States District
Judge for the District of Nevada, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Kane contends that he admitted to one of the allegations that he violated
supervised release in exchange for the government’s promise to dismiss the
remaining allegations. Kane argues that the government breached this agreement
when it discussed the dismissed allegations during his sentencing. Where a
defendant fails to object below, we review the alleged breach of a plea agreement
for plain error. See Puckett v. United States, 556 U.S. 129, 143 (2009). The
district court did not err. Assuming that there was an agreement, the government
complied with its obligations and dismissed the remaining allegations against Kane
at his sentencing hearing. The government never agreed not to discuss the
dismissed allegations at sentencing.
Kane next contends that he received ineffective assistance of counsel at
sentencing because his attorney failed to object when the government discussed the
dismissed allegations. Because the government’s discussion of the dismissed
allegations was proper, this claim necessarily fails. See Strickland v. Washington,
466 U.S. 668, 688 (1984) (to establish ineffectiveness, defendant must show that
counsel’s representation “fell below an objective standard of reasonableness”).
AFFIRMED.
2 14-10328