Unpublished Disposition, 876 F.2d 896 (9th Cir. 1987)

MEMORANDUM^** 

* In April 1979, Gilbert Wayne Gulbranson entered into a written plea agreement pursuant to which the government promised:

Should Mr. Gulbranson enter a plea of guilty to the Indictment, the Government would recommend to the Court that it make a recommendation to the Bureau of Prisons that the sentence imposed on the Federal conviction be allowed to run concurrently with a [state] sentence imposed in Multnomah County.

Of course, it must be understood that the Court can reject or accept the recommendation of our office and, in turn, the Bureau of Prisons can reject or accept the recommendation of the Court as to the concurrent nature of the sentences.

The government honored its promise, but its caveat proved prophetic. The district judge rejected the government's recommendation; he sentenced Gulbranson to a term of twenty years in prison, to run consecutively to the state sentence.

Seven years later, in May 1986, Gulbranson filed a motion under Federal Rule of Criminal Procedure 35 to correct his sentence, properly noting that at the time he was sentenced federal judges had no authority to order that a sentence be served either consecutively or concurrently with a state sentence. See United States v. Terrovona, 785 F.2d 767, 770 (9th Cir.), cert. denied, 476 U.S. 1186 (1986). He called the court's attention to the plea agreement and requested that the court delete the portion of the sentence order imposing a consecutive sentence. The resulting sentence would not have specified whether it was to be served consecutively or concurrently; Gulbranson thus would have stood a chance of benefiting from the general presumption of concurrency. See United States v. Adair, 681 F.2d 1150, 1152 (9th Cir. 1982).

Although acknowledging the plea agreement and the fact that the sentencing court lacked authority to impose a consecutive sentence, the government pointed out that under Terrovona the court could modify the order imposing the consecutive sentence to constitute a mere recommendation. The government noted that such a recommendation would normally be carried out by the Bureau of Prisons, so that the result would most likely be the reimposition of a consecutive sentence. The court adopted the government's suggestion.

The government was once more prophetic: Gulbranson was again given a federal sentence to run consecutively to the state sentence. Gulbranson promptly filed a motion pursuant to 28 U.S.C. § 2255 (1982), claiming that the government breached the plea agreement by suggesting that the court change its consecutive sentence order to a consecutive sentence recommendation. The district court, adopting the recommendation of a magistrate, denied the motion. United States v. Gulbranson, No. CV-86-1429-FR (D. Or. Aug. 13, 1987).

We reivew de novo, United States v. Fisch, 863 F.2d 690, 690 (9th Cir. 1988) (per curiam), and affirm.

II

We interpret a plea agreement according to ordinary principles of contract interpretation. United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979). Accordingly, we take an objective look at the terms of the agreement, United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984), and require the government to fulfill any promises on which the defendant is likely to have relied, Santobello v. New York, 404 U.S. 257, 262 (1971). As with any contract, we enforce only the bargain the parties made; we cannot imply any terms upon which the parties did not agree. United States v. Benchimol, 471 U.S. 453, 456 (1985) (per curiam).

The government's bargain with Gulbranson was that it would attempt to influence the district court's exercise of discretion by recommending concurrent sentences. That it did, albeit without success. The government did not promise to withhold its advice as to how the court might implement its discretion in accordance with the applicable law; indeed, as officers of the court, we doubt that government lawyers could promise to deny the court their assistance. In advising the court how best to implement the discretion of the sentencing judge, the government breached neither the literal terms nor the essence of the plea agreement. See United States v. Mooney, 654 F.2d 482, 486 (7th Cir. 1981) (opposition to Rule 35 motion seeking reduction of sentence from twenty-five to ten years does not breach agreement to recommend ten-year sentence); United States v. Read, 778 F.2d 1437, 1441-42 (9th Cir. 1985) (informing sentencing court of defendant's post-conviction conduct does not breach agreement to "take no position on what sentence should be imposed"), cert. denied, 479 U.S. 835 (1986).

AFFIRMED.