U.S. v. Clark

• Decision Date: 27 January 1986
• Docket Number: No. 85-1917,85-1917
• Citation: 781 F.2d 730
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy Arnold CLARK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 730

781 F.2d 730

UNITED STATES of America, Plaintiff-Appellee, v. Billy Arnold CLARK, Defendant-Appellant.

No. 85-1917.

United States Court of Appeals Ninth Circuit.

Submitted Dec. 2, 1985.

Decided Jan. 27, 1986.

Rhonda Repp, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellee.

Billy Arnold Clark, pro per.

Appeal from the United States District Court for the District of Arizona, William D. Browning, District Judge, Presiding.

Before BROWNING, SNEED, and HUG, Circuit Judges.

HUG, Circuit Judge:

Petitioner Billy Arnold Clark ("Clark") appeals from the district court's dismissal of his petition for a writ of habeas corpus. Clark contends that the Government breached his plea agreement by failing to honor its promise not to make any recommendation concerning the sentence he should receive. On the report form required to be sent to the correctional institution, the prosecuting attorney made no recommendation as to the sentence to be imposed, but did make a recommendation that Clark should not be granted parole until the maximum time provided under the parole guidelines had expired. The issue before us is whether the plea agreement, in which the Government agreed to take no position on the sentence to be imposed, was violated by the Government making a specific parole recommendation. We hold it was not and therefore affirm.

FACTS

Clark was indicted by a federal grand jury in Tucson, Arizona on two counts of bank robbery. At that time, four other counts of bank robbery were pending against Clark under a federal indictment in California, and Clark was a suspect in two additional bank robberies in Phoenix, Arizona. On October 6, 1982, the Government and Clark entered into a plea agreement, in which Clark agreed to plead guilty to count two of the Tucson indictment and count one of the California indictment. In turn, it was agreed that all remaining charges against him would be dismissed at the time of sentencing and no indictment would be sought against him for the bank robberies in Phoenix. In addition, the United States attorneys agreed "not to make any specific recommendation regarding the sentence which the defendant should receive."

During the sentencing proceeding on November 10, 1982, the Assistant United States Attorney Rhonda Repp ("Repp") was asked by the court "if the United States Attorney had any comments or recommendations regarding the sentence." She responded, "No." Also on November 10, 1982, she sent to the correctional institution Form 792, which is entitled "Report on Convicted Prisoner by United States Attorney." The report form states that it must be completed for the use of the United States Parole Commission, as required by the United States Attorney's Manual. Under the section of the form calling for the United States Attorney's recommendation relative to parole, which section is optional, Repp made the following recommendation: "[p]arole should not be granted until the maximum time allowable under the guidelines had expired."

Clark began to serve his sentence at the Federal Correctional Institution in Memphis, Tennessee. After waiving his initial appearance, Clark appeared before the United States Parole Board hearing examiners, having served 29 months of his sentence. Clark maintains that it was at this hearing that he was first informed of the unfavorable parole recommendation. The hearing examiners recommended a presumptive parole date of July 16, 1991, after service of 120 months. The hearing examiner's report indicated that the applicable guideline range for custody was 100-148 months. The Regional Commissioner reversed the recommendation of the hearing officer and established the presumptive parole date at 148 months. This decision was upheld by the National Commissioners Administrative Review on January 3, 1985.

Subsequent to this determination, both Clark and his attorney filed separate motions for reduction of sentence pursuant to Fed.R.Crim.P. 35, which were denied. Thereafter, Clark filed a motion to vacate, set aside, or correct sentence by a person in federal custody pursuant to 28 U.S.C. Sec. 2255 (1982), contending that the Government's recommendation on parole violated the plea agreement. The district court denied the motion, finding that the plea agreement had not been violated because the Government had made no recommendation regarding the sentence.

DISCUSSION

The legal principles governing the enforcement of plea agreements is succinctly set forth by this court in United States v. Travis, 735 F.2d 1129 (9th Cir.1984), as follows:

"[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). In determining whether a plea agreement has been broken, courts look to "what was 'reasonably understood by [the defendant] when he entered his plea of guilty.' " United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979) (quoting United States v. Crusco, 536 F.2d 21, 27 (3d Cir.1976) ). If disputed, the terms of the agreement will be determined by objective standards. United States v. Arnett, 628 F.2d at 1164. The government will be held to "the literal terms of the agreement." United States v. Garcia, 519 F.2d 1343, 1344-45 (9th Cir.1975). Where the government violates a plea agreement at sentencing, the usual remedy is a remand for resentencing. See United States v. Bronstein, 623 F.2d 1327, 1330 (9th Cir.1980), cert. denied, 449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 50 (1980).

Id. at 1132.

Moreover, "[a] guilty plea becomes involuntary, and the ensuing sentencing subject to collateral attack, when the prosecutor fails to perform his side of a plea agreement." Knight v. United States, 611 F.2d 918, 921 (1st Cir.1979).

Clark complains that the Government did not fulfill its promise not to make any sentencing recommendation when Repp filed Form 792 recommending that Clark serve the maximum term and that, therefore, his sentence should be reduced. In order to prevail under 28 U.S.C. Sec. 2255, a prisoner in custody under sentence for a federal crime must demonstrate one of the following: (1) "the sentence was imposed in violation of the Constitution or laws of the United States," (2) "the court was without jurisdiction to impose such sentence," (3) "the sentence was in excess of the maximum authorized by law," or (4) "the sentence is otherwise subject to collateral attack." 28 U.S.C. Sec. 2255; see Hitchcock v. United States, 580 F.2d 964, 965 (9th Cir.1978). Clark contends that his guilty plea was involuntary because the prosecutor failed to perform her part of the plea agreement and that the prosecutor's action constitutes a violation of his constitutional right to due process.

A literal reading of the plea agreement supports the district court's conclusion that Repp's parole recommendation made after sentencing is not a part of the sentence imposed by the court and that, therefore,...