United States v. Patrick McAllister

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 21 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-30097
Plaintiff - Appellee, D.C. No. 3:13-cr-05464-RBL-1
v.
MEMORANDUM*
PATRICK McALLISTER,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted December 7, 2015**
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and GLEASON,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
Defendant Patrick McAllister appeals the district court’s imposition of three
conditions of supervised release as part of his criminal sentence: (1) drug and alcohol
testing, (2) a sexual deviancy evaluation, and (3) sexual deviancy treatment. The
government argues that the appeal should be dismissed because McAllister waived his
appellate rights as part of the plea agreement. We agree with the government that the
waiver of appellate rights is valid and enforceable. Accordingly, we dismiss this
appeal.
A waiver of appellate rights “is enforceable if (1) the language of the waiver
encompasses [the defendant’s] right to appeal on the grounds raised, and (2) the
waiver is knowingly and voluntarily made.” United States v. Jeronimo, 398 F.3d
1149, 1153 (9th Cir. 2005), overruled on other grounds by United States v. Castillo,
496 F.3d 947, 957 (9th Cir. 2007) (en banc). A waiver will not be enforced, even if
it was knowing and voluntary, if the government breaches the plea agreement and thus
releases the defendant from his promise not to appeal. See United States v. Gonzalez,
16 F.3d 985, 990 (9th Cir. 1993).
Here, there is no dispute regarding the language prong, only the knowing-and-
voluntary prong and the breach issue. A waiver is knowingly and voluntarily made
if the guilty plea as a whole was knowing and voluntary. Jeronimo, 398 F.3d at 1154.
A guilty plea is involuntary if a defendant is “induced by promises or threats which
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deprive [the plea] of the nature of a voluntary act.” Doe v. Woodford, 508 F.3d 563,
570 (9th Cir. 2007) (quoting Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986)). In
determining whether a waiver is knowing and voluntary, “we must ask ‘what the
defendant reasonably understood to be the terms of the agreement when he pleaded
guilty.’” United States v. Medina-Carrasco, No. 13-10397, 2015 WL 7740633, at *3
(9th Cir. Dec. 2, 2015) (quoting United States v. De la Fuente, 8 F.3d 1333, 1337 (9th
Cir. 1993)). Similarly, in determining whether the government breached the
agreement, “courts look to what was reasonably understood by the defendant when
he entered his plea of guilty.” United States v. Kamer, 781 F.2d 1380, 1387 (9th Cir.
1986) (quoting United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).
We review de novo whether a guilty plea was voluntary, United States v.
Forrester, 616 F.3d 929, 934 (9th Cir. 2010), and whether a defendant has waived his
appellate rights pursuant to a plea agreement, United States v. Lightfoot, 626 F.3d
1092, 1094 (9th Cir. 2010). The standard of review for breach of a plea agreement is
unclear, see United States v. Alcala-Sanchez, 666 F.3d 571, 575 (9th Cir. 2012), but
whether it is de novo or clear error, the outcome of this case is the same.
Here, the record reflects that McAllister reasonably understood the terms of his
plea agreement when he pled guilty. That McAllister did not know at the time that he
pled guilty that the government would recommend special conditions did not render
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his plea involuntary. In the plea agreement, McAllister expressly acknowledged that
supervised release could be ordered, during which time he would be “subject to
certain restrictions and requirements.” He may not have known exactly what these
conditions would be, but given his history, he reasonably should have understood that
supervised release would likely include some conditions related to alcohol and to
domestic violence or sex offender treatment. Drug testing is a mandatory and
standard condition of supervised release, and therefore McAllister should have
reasonably understood that it, too, was a likely condition of supervised release. See
18 U.S.C. § 3583(d); cf. United States v. Napier, 463 F.3d 1040, 1043 (9th Cir. 2006)
(“[I]mposition of . . . mandatory and standard conditions is deemed to be implicit in
an oral sentence imposing supervised release.”). In addition, he was warned
repeatedly at the change of plea hearing that the sentencing judge could deviate from
the parties’ recommendation and agreed to plead guilty knowing that neither party
could dictate what conditions of supervised release the judge would impose.
As for McAllister’s breach-of-the-plea-agreement theory, the parties’ agreement
did not include any promises regarding special conditions of supervised release.
Consequently, there was no promise for the government to breach. United States v.
Kamer, cited by McAllister, is distinguishable from this case. In Kamer, a
pre-Sentencing Guidelines case, we held that the court’s imposition of a term of
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probation breached a binding plea agreement when the plea agreement was silent as
to probation and the record showed that Kamer had a reasonable expectation of literal
compliance with the plea agreement. 781 F.2d at 1387. In contrast, here, the
agreement explicitly provided for supervised release and noted that certain conditions
would be imposed. To the extent McAllister interpreted the plea agreement’s failure
to identify specific conditions as a promise by the government not to seek the
conditions at issue, that interpretation had no reasonable basis.
Since the guilty plea was knowing and voluntary and the government did not
breach the plea agreement, the waiver of appellate rights in the plea agreement is valid
and enforceable, and we dismiss this appeal without reaching the merits of the
remaining issues.
DISMISSED.
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