Unpublished Disposition, 869 F.2d 1499 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 869 F.2d 1499 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Kenneth Lloyd PENDLETON, Defendant-Appellant.

No. 87-3833.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 23, 1989.* Decided Feb. 16, 1989.

James M. Burns, District Judge, Presiding.

Before GOODWIN, Chief Judge, POOLE and BRUNETTI, Circuit Judges.


Kenneth Lloyd Pendlton, a federal prisoner, appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence. Pendleton contends that (1) his guilty plea was involuntary because the district court failed to clarify ambiguities in his plea petition forms, and (2) the district court violated Fed. R. Crim. P. 11(e) when it accepted his guilty plea but rejected the terms of the plea agreement by giving him consecutive, rather than concurrent, sentences. We affirm.

Because Pendleton has failed to establish that he was unaware of the direct consequences of his guilty plea, his plea was voluntary and intelligent. See Brady v. United States, 397 U.S. 742, 755 (1970). His contentions pertaining to the ambiguity of the plea bargain terms are directly refuted by the court records and transcripts. See Peele v. United States, 392 F.2d 573, 574 (9th Cir. 1968). The district court satisfactorily developed the terms of the plea bargain and correctly ascertained that under the plea agreement the government promised only that it would not oppose Pendleton's request for a concurrent sentence. The district court told Pendleton at both the plea and sentencing hearings that he faced consecutive sentences; he acknowledged that he understood this. Therefore, it was unreasonable for Pendleton to think that the government had agreed to a specific sentence or to expect to receive concurrent sentences (id.).

Because the government promised only not to oppose the defendant's request for concurrent sentences, the plea agreement reached was a Rule 11(e) (B) agreement. Where an 11(e) (1) (B) agreement is involved, the court is free to accept or reject any sentencing requests and the defendant does not have any right to withdraw his guilty plea when his request is rejected. We conclude that the district court did not violate Rule 11 in accepting defendant's guilty plea while imposing consecutive sentences.



The panel finds this case appropriate for submission without oral argument pursuant to Fed.R.App. 34(a) and 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3