U.S. v. Myers, 94-30102
Decision Date | 14 July 1994 |
Docket Number | No. 94-30102,94-30102 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Thomas Lee MYERS, Defendant-Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
Stephen R. Sady, Chief Deputy Fed. Public Defender, Portland, OR, for defendant-appellant.
Deborah J. Dealy-Browning, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before: TANG, FERGUSON, and WIGGINS, Circuit Judges.
On February 1, 1994, pursuant to a plea agreement, Thomas Lee Myers pleaded guilty to a single count of mail theft in violation of 18 U.S.C. Sec. 1708. In exchange for his guilty plea the government agreed "to recommend a sentence at the low end of the applicable guideline range."
The presentence report noted that the guideline range was between six and twelve months. The report also noted that the "government will recommend a sentence at the low end of the applicable guideline range."
At the sentencing, the district court judge asked the prosecutor if she had any comments. She replied: Myers was sentenced to twelve months. After the judge imposed the sentence, the defense counsel objected to the government's failure to recommend a sentence at the low end of the range. The following exchange then took place.
This exchange took place after sentencing and the horse was out of the barn. Myers now appeals his sentence arguing that the government breached the plea agreement by not recommending a sentence at the low end of the guideline range. In fact, instead of recommending a light sentence, the government exercised its right of allocution by seeking a more severe sentence.
This court reviews de novo whether the government violated the terms of a plea agreement. United States v. Fisch, 863 F.2d 690 (9th Cir.1988). We reverse and remand for resentencing.
United States v. De La Fuente, 8 F.3d 1333, 1337 (9th Cir.1993) (quotations and footnotes omitted). The government must be held to "the literal terms of the agreement." United States v. Escamilla, 975 F.2d 568, 571 (9th Cir.1992) (internal citations omitted). The bargain that the defendant agreed to was not a promise by the government to recommend, but the actual fact of recommendation.
Despite the terms of the plea agreement, the government made no recommendation to the court concerning Myers' sentence. It was insufficient that the court, by reading the presentence report and the plea agreement, was aware that the government had agreed to recommend a sentence at the low end of the guideline range. The harmless error rule does not apply to the law of contractual plea agreements. The government agreed to make a recommendation at the low end of the range and was...
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