United States of America, Plaintiff-appellee, v. Darrell Marlow Schock, Defendant-appellant, 892 F.2d 1047 (9th Cir. 1990)

MEMORANDUM^** 

Darrell Schock appeals his conviction upon a guilty plea for manufacturing marijuana in violation of 21 U.S.C. § 841(a) (1). Having found Schock violated the terms of his plea agreement, the district court sentenced Schock to 30 months imprisonment, whereas the agreement had provided that the government would recommend a term of only 18 months. Schock challenges the determination below that he breached his plea agreement, and he argues the court improperly considered hearsay evidence in deciding Schock's motion to enforce the agreement. We affirm.

We find no clear error in the district court's findings regarding the terms of the plea agreement, or in the court's determination that Schock breached that agreement. See United States v. Sutton, 794 F.2d 1415, 1423 (9th Cir. 1986). The evidence presented at the hearing, including the text of the agreement itself, amply supports the district court's findings that the agreement required Schock to tell the entire truth and that Schock's failure to disclose his involvement in certain marijuana growing and distribution operations constituted a substantial breach of the agreement.

A district court's ruling to admit evidence over a hearsay objection is reviewed for abuse of discretion. United States v. Kirk, 844 F.2d 660, 663 (9th Cir. 1988). In this case, the government amply met its burden to show breach by a preponderance of the evidence. See United States v. Packwood, 848 F.2d 1009, 1011 (9th Cir. 1988). The admission of the contested hearsay evidence, even if error, did not alter the outcome of the hearing and therefore cannot form the basis for a reversal. See United States v. Emmert, 829 F.2d 805, 808 (9th Cir. 1987) (evidentiary ruling reversed for abuse of discretion only where such nonconstitutional error more likely than not affected the verdict).

AFFIRMED.