Unpublished Disposition, 898 F.2d 157 (9th Cir. 1990)

MEMORANDUM^** 

Mitchell Eisenberg appeals the district court's denial of his motion for reduction of sentence under Federal Rule of Criminal Procedure 35(b). Following Eisenberg's plea of guilty to mail fraud and wire fraud, the district court sentenced him to six years imprisonment and five years probation and ordered him to pay restitution. The district court also ordered Eisenberg to pay a special assessment fee. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse and remand in part.

Eisenberg contends this court should remand this case for resentencing by a different judge because the government breached its plea agreement to "make known to the court the level and extent of [Eisenberg's] cooperation, if any, with the investigation and his contribution, if any, to that investigation."

At sentencing, government counsel first said Eisenberg's cooperation and contribution had not been great. Defense counsel described Eisenberg's meetings with a postal inspector and said Eisenberg had pled guilty before his codefendants. Government counsel then stated Eisenberg had shown a cooperative attitude and provided information about codefendants and participants in another case, but this information had not contributed much to the investigation. Government counsel also said Eisenberg's choice of sentencing date before completion of the investigation would limit the extent of his future cooperation and contribution.

We review for clear error the district court's factual findings as to the terms of a plea agreement. United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985), cert. denied, 479 U.S. 835 (1986). We review de novo whether the terms of the agreement have been breached, and look to what the defendant reasonably understood when he entered his plea. United States v. Fisch, 863 F.2d 690 (9th Cir. 1988) (per curiam); United States v. Pomazi, 851 F.2d 244, 250 (9th Cir. 1988); United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984). Prosecutors must strictly abide by promises made in plea agreements. Santobello v. New York, 404 U.S. 257, 262 (1971); Fisch, 863 F.2d at 690.

Here, the prosecutor adopted defense counsel's description of Eisenberg's participation in the investigation by saying it was true Eisenberg had shown a cooperative attitude and provided information. He thus complied with the requirement to make known to the court the level and extent of Eisenberg's cooperation and contribution. See Fisch, 863 F.2d at 690.

Eisenberg also objects to government counsel's statement about the effect of Eisenberg's choice of sentencing date, and argues that he complied with the plea agreement requirement for his sentencing to follow the trials and/or guilty pleas of his codefendants. The plea agreement did not prohibit the prosecutor from speculating about Eisenberg's future cooperation, and so his statement did not breach the agreement. See United States v. Benchimol, 471 U.S. 453, 456 (1985) (per curiam) (court has no authority to imply prosecutor's promise to enthusiastically recommend leniency); Read, 778 F.2d at 1441.

In Eisenberg's request for oral argument, he contends government counsel breached the plea agreement by recommending the sentence advocated by the presentence report. Eisenberg did not properly raise this issue by including it in his brief. See Lopez v. Dean Witter Reynolds, Inc., 805 F.2d 880, 882 n. 4 (9th Cir. 1986); International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985). The plea agreement specifically reserved to the government the right to make whatever recommendations it deemed appropriate. Therefore, counsel's recommendation did not breach the agreement. See Read, 778 F.2d at 1441.

We therefore affirm the district court's denial of Eisenberg's motion for reduction of sentence.

Although Eisenberg did not raise the issue in his appeal, we have held that the special assessment provisions of 18 U.S.C. § 3013 violate the origination clause of the Constitution, article I, Sec. 7. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). Therefore, we reverse the special assessment of $200.00 and remand to the district court with instructions to vacate it. See Shah v. United States, 878 F.2d 1156, 1163 (9th Cir.), cert. denied, 110 S. Ct. 195 (1989).

AFFIRMED in part and REVERSED and REMANDED in part.