Unpublished Disposition, 875 F.2d 319 (9th Cir. 1989)

MEMORANDUM^** 

Clyde Dennis Fowler appeals his sentence, imposed following his guilty plea, for conspiracy to distribute and to possess with intent to distribute cocaine and marijuana, and using a telephone to facilitate the commission of those felonies. Fowler contends that the government breached its plea agreement with him by failing to inform the sentencing court of the nature and extent of his cooperation in providing information regarding criminal investigations. We affirm.

Review of the record indicates that the prosecutor scrupulously complied with the literal meaning of the terms contained in the plea agreement by detailing the nature and extent of Fowler's cooperation in a letter submitted to the sentencing court. See Santobello v. New York, 404 U.S. 257, 262 (1971); United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985), cert. denied, 479 U.S. 835 (1987). Fowler, represented by counsel, executed a plea agreement with the government and pleaded guilty to these charges. The plea agreement provided that, in exchange for Fowler's cooperation in providing information about criminal investigations, the government would bring the nature and extent of his cooperation to the attention of the sentencing court. The government reserved the right to notify the district court at the plea hearing, "and prior to and at the time of sentencing, all pertinent facts concerning [Fowler's] participation in criminal activity". Fowler and the Government also agreed that Fowler's sentence should not exceed a three year term of imprisonment and a fine of more than $250,000.

At sentencing, the government suggested that Fowler should receive the benefit of the plea agreement because he had fully complied with its terms. The prosecutor also brought to the court's attention a letter he had written regarding Fowler's cooperation. The prosecutor's letter detailed the extent of Fowler's cooperation and indicated that his cooperation was a significant factor in convicting another cocaine trafficker. Specifically, the letter confirms that Fowler's cooperation was crucial regarding the case against a codefendant, who ultimately pleaded guilty. Finally, the letter informs that, in general, Fowler had declined to cooperate beyond the limits of the agreement but that, Fowler had fully complied with the plea agreement's terms.

Fowler was sentenced to two years imprisonment and fined five thousand dollars ($5,000), a sentence well within the terms of the plea agreement.

Absent an express term in the plea agreement requiring the prosecutor to recommend enthusiastically a particular disposition, the prosecutor may make a "less than enthusiastic" request for leniency at sentencing. United States v. Benchimol, 471 U.S. 453, 456 (1985) (per curiam). Upon review we find that the prosecutor's "less than enthusiastic" statement did not breach the agreement. See Benchimol, 471 U.S. at 456. The sentence imposed was within the terms of the plea agreement. We find no error.

AFFIRMED.