United States v. Matthew Harway

FILED
NOT FOR PUBLICATION JAN 26 2010
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. 08-30467
Plaintiff - Appellee, D.C. No. 6:07-CR-60033-MRH
v.
MEMORANDUM *
MATTHEW HARWAY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, Presiding
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Matthew Harway appeals from the 151-month sentence imposed following
his guilty-plea conviction for possession with intent to distribute 50 grams of
heroin, in violation of 21 U.S.C § 841(a)(1), and (b)(1)(C). We have jurisdiction
*
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).
AK/Research
pursuant to 28 U.S.C. § 1291, and we affirm.
Harway contends that the government’s sentencing recommendation
constituted a breach of the plea agreement, thereby entitling him to specific
performance of the plea agreement. The government’s recommendation for a
sentence at the low-end of the applicable advisory Guidelines range following
application of the career offender adjustment did not contradict the plain language
of the plea agreement. The district court did not err in concluding that there was
no breach of the plea agreement. See United States v. Franco-Lopez, 312 F.3d
984, 989 (9th Cir. 2002) (holding that when construing a plea agreement, this court
must determine what the defendant reasonably believed to be the terms of the plea
agreement at the time of the plea).
AFFIRMED.
AK/Research 2 08-30467