United States v. Rand Hooks , 500 F. App'x 641 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 11 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30087
Plaintiff - Appellee, D.C. No. 3:09-cr-00053-TMB-4
v.
MEMORANDUM *
RAND HOOKS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, District Judge, Presiding
Submitted December 7, 2012 **
Seattle, Washington
Before: TALLMAN and WATFORD, Circuit Judges, and FITZGERALD, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael W. Fitzgerald, United States District Judge
for the Central District of California, sitting by designation.
Alaska state prisoner Rand Hooks (“Hooks”) appeals the district court’s
denial of Hooks’s motion to withdraw his guilty plea. Hooks contends that the
government breached the terms of his plea agreement and argues that the district
court abused its discretion in denying Hooks’s motion to withdraw his plea after he
identified this alleged breach. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm the district court’s denial of the motion.
The government did not breach the terms of the plea agreement by either
eliciting testimony from a witness during sentencing proceedings or providing
information to the probation officer for use in the presentence report. This
testimony and information were provided in direct response to the district court’s
desire for clarification regarding Hooks’s role in the conspiracy and were not
offered to influence the court to impose a harsher sentence than the probationary
term recommended in the plea agreement. See United States v. Mondragon, 228
F.3d 978, 979 (9th Cir. 2000).
The existence of a plea agreement does not “ba[r], erod[e] or impai[r]” the
government’s obligation to “honestly answe[r] the district court’s questions.”
United States v. Maldonado, 215 F.3d 1046, 1052 (9th Cir. 2000). The plea
agreement also did not prohibit the government from providing factual information
regarding the offense to the probation office. See United States v. Read, 778 F.2d
2
1437, 1441 (9th Cir. 1986). The government’s obligations under the plea
agreement did “not preclude [it] from answering the district court truthfully and
then performing as promised under the plea agreement, namely to recommend that
the district court, in its discretion, sentence [the defendant] in accordance with the
promised figure.” United States v. Manzo, 675 F.3d 1204, 1211–12 (9th Cir.
2012).
Throughout the pendency of the plea agreement, the government advocated
for a probationary sentence. The government repeatedly argued that a probationary
sentence should be imposed in its sentencing memorandum, in a letter to the
probation officer, and in statements made to the district court. Accordingly, we are
satisfied that the government complied with the terms of the plea agreement and
fulfilled its obligations to the defendant by recommending a sentence of probation.
See United States v. Benchimol, 471 U.S. 453, 455 (1985).
Nor did the government’s conduct effectuate a breach of the plea agreement.
The district court did not abuse its discretion when it rejected that alleged breach as
constituting a “fair and just reason” supporting Hooks’s motion to withdraw his
guilty plea under Fed. R. Crim. P. 11(d)(2)(b).
AFFIRMED.
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