United States v. Ann Hilton , 570 F. App'x 712 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10256
Plaintiff - Appellee, D.C. No. 2:11-cr-00430-PMP-
GWF-1
v.
ANN HILTON, AKA Ann Onion, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Argued and Submitted April 9, 2014
San Francisco, California
Before: KLEINFELD, NGUYEN, and WATFORD, Circuit Judges.
The district court correctly held that the government did not breach Ann
Hilton’s plea agreement. Whether we review the district court’s ruling de novo or
for clear error, we agree that the government did not explicitly or implicitly breach
a term of her plea agreement, which distinguishes this case from the cases on
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 2
which Hilton relies. See United States v. Whitney, 673 F.3d 965, 970–71 (9th Cir.
2012); United States v. Johnson, 187 F.3d 1129, 1134–35 (9th Cir. 1999).
The explicit terms of the agreement authorized both parties to “provide
additional information to the . . . Court regarding the nature, scope, and extent of
the defendant’s criminal conduct and any aggravating or mitigating facts or
circumstances.” The agreement further stated that “[g]ood faith efforts to provide
truthful information” to the court would not be grounds for Hilton to withdraw her
plea. No term of the agreement prohibited the government from relying on facts
not mentioned in the plea agreement as a basis for opposing Hilton’s request for a
downward departure. There was thus no explicit breach.
The government did not implicitly breach the plea agreement either. The
prosecutor continued to recommend a 21-month sentence, as the government had
promised, and he said nothing at sentencing to undercut that recommendation. The
government’s sentencing memorandum and arguments before the district court
were a “fair response” to Hilton’s request for a below-Guidelines sentence. See
United States v. Moschella, 727 F.3d 888, 892 (9th Cir. 2013). Hilton bargained
for the government’s promise to recommend a 21-month sentence, and the
government didn’t explicitly or implicitly breach that promise.
AFFIRMED.