Unpublished Disposition, 846 F.2d 1383 (9th Cir. 1977)

No. 87-3970.

United States Court of Appeals, Ninth Circuit.

Before TANG and CANBY, Circuit Judges, and EDWARD C. REED, Jr.,^**  District Judge.

MEMORANDUM^* 

Petitioner/Appellant Bill Ray Bailey appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate or correct his sentence. In November, 1976, he pleaded guilty, pursuant to Fed. R. Crim. P. 11(e) (3), to two counts of embezzlement in violation of 18 U.S.C. §§ 656 and 2 (1976). He contends that the government failed to comply with the terms of his plea agreement by refusing to accept specific property as restitution prior to sentencing, thereby rendering his guilty plea involuntary. He also argues that the district court abused its discretion by denying his request to withdraw his guilty plea. We affirm.

We review a district court's decision to deny a petition to vacate, set aside, or correct a sentence de novo. United States v. Quan, 789 F.2d 711 (9th Cir. 1986). To determine whether a plea agreement was violated we must first determine what the parties to the plea bargain reasonably understood to be the terms of the agreement. McKenzie v. Risley, 801 F.2d 1519, 1526 (9th Cir. 1986). The district court's findings as to the terms of the plea agreement are reviewed for clear error. United States v. Sutton, 794 F.2d 1415, 1423 (9th Cir. 1986).

Before pleading guilty on November 11, 1977, Bailey stated that his plea was based solely on the promises contained in the plea agreement. See United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir.), cert. denied, 108 S. Ct. 107 (1987) (Rule 11(d) requires that the district court determine a plea is not the result of promises apart from the plea agreement). The plea agreement required, inter alia, that Bailey make full restitution in order to receive a seven rather than ten year sentence. Bailey does not dispute that he understood and agreed to the condition requiring full restitution before his sentence would be reduced to seven years. He argues that his plea was involuntary because the government violated a promise by AUSA Cooper apart from the plea agreement to accept specific "listed" property as full restitution.

" [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 part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971). We find that the government did agree to accept property as restitution, but only if it was sufficient to constitute full restitution. Magistrate Aschenbrenner's findings, adopted by Judge Kleinfeld, disclose that Bailey at no time filed any motion, affidavit, or correspondence asserting that he was able to make full restitution. Partial restitution fails to satisfy the terms of the plea agreement.

On being provided with a list of assets Bailey intended to use for restitution, AUSA Cooper agreed not to insist that Bailey be held in federal custody pending sentencing. He never agreed that the property Bailey listed as owning, if it existed at all, was sufficient to pay full restitution. Nothing supports Bailey's assertion that AUSA Cooper refused to accept assets tendered by Belland. Even if true, such refusal would not entitle Bailey to relief because the assets did not amount to full restitution as required by the plea agreement.

At the sentencing hearing AUSA Cooper agreed to help convert property into cash to attempt to accomplish restitution, although Bailey had tendered no property. That accommodation was not required by the plea agreement, which gave Bailey only until sentencing to make full restitution. When Bailey was sentenced the district court stated that if Bailey made full restitution within 120 days and filed a motion for reduction of sentence, it would probably grant the motion. Bailey failed again to tender property or cash in restitution.

Due process requires that an accused's guilty plea be voluntary and intelligent. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987). Bailey was aware of the direct consequences of his plea; he knew that failure to make full restitution would result in a ten-year total sentence. The government fulfilled its promises under the plea agreement. Michelle Stadler did not serve a term of imprisonment; the state charges against Bailey were dropped. Bailey was sentenced to ten years rather than seven because he failed to make full restitution. See Quan, 789 F.2d at 714 (no breach occurs so long as the government abides by the express terms of the plea agreement). Judge Plummer did not abuse his discretion when he denied Bailey's motion to withdraw his guilty plea.

AFFIRMED.