Unpublished Disposition, 895 F.2d 1416 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1416 (9th Cir. 1990)

Russell Leon CARTER, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 89-15883.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1990.* Decided Feb. 12, 1990.

Before CANBY, BRUNETTI, and FERNANDEZ, Circuit Judges.


Russell Carter, a federal prisoner, appeals pro se the district court's denial of his section 2255 motion. We review de novo, United States v. Grewal, 825 F.2d 220, 222 (9th Cir. 1987), and affirm.

Carter pleaded guilty in federal district court to one count of unarmed robbery. In return for his guilty plea, the government struck the portion of the indictment charging Carter with the use of a dangerous weapon. The district court sentenced Carter to twenty years imprisonment. The district court also ordered Carter to pay restitution in the amount of $4,047.25.1 

* Factual Basis for Plea

Carter contends that the district court failed to establish a factual basis for his guilty plea because the court did not ask him to state what happened in his own words. This contention fails.

To obtain relief under section 2255, the defendant must "establish a constitutional or jurisdictional error, or that the proceeding in which his plea was accepted was 'inconsistent with the rudimentary demands of fair procedure' or resulted in a 'complete miscarriage of justice.' " United States v. Rivera-Ramirez, 715 F.2d 453, 456 (9th Cir. 1983), cert. denied, 467 U.S. 1215 (1984) (quoting United States v. Timmreck, 441 U.S. 780, 784-85 (1979)). Thus, a technical violation of Rule 11 does not support a collateral attack under section 2255 where there is no showing of constitutional error or special prejudice. Id. at 455.

Under Rule 11(f) the court must "establish [ ] on the record that there is sufficient evidence to support the conclusion that the defendant is guilty." United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983), cert. denied, 467 U.S. 1215 (1984). Here, the district court asked Carter a series of questions before accepting his plea. Included in these questions was a factual inquiry that covered all the essential elements of the crime.2  Carter answered that he committed the acts and understood that these acts constituted a crime. The district court did not err in determining that there was a factual basis for Carter's guilty plea. See Fed. R. Crim. P. 11(f); Rivera-Ramirez, 715 F.2d at 457. Therefore, Carter failed to show any violation of Rule 11 to support an attack under section 2255. See id.


Restitution Order

Carter next contends he should be resentenced because the district court failed to advise him at the time of his plea that restitution could be ordered. This contention also fails.

Federal Rule of Criminal Procedure 11(c) (1) provides that the district court, before accepting a guilty plea, must advise the defendant that the court may order the defendant to make restitution to any victim of the offense. Fed. R. Crim. P. 11(c) (1). However, "any variance from the procedures required by [Rule 11] which does not affect substantial rights shall be disregarded." Fed. R. Crim. P. 11(h).

The district court advised Carter at the plea hearing that he faced a maximum fine of $250,000. Because Carter was aware of this potential liability, his rights were not substantially violated by the court's restitution order of $4,047.25. See United States v. Pomazi, 851 F.2d 241, 248 (9th Cir. 1988). It follows that Carter has failed to state a claim for relief under section 2255. See Rivera-Ramirez, 715 F.2d at 456.


Plea Agreement

Carter finally contends that the government breached its plea agreement by opposing his Rule 35 motion. This contention also fails.

Plea agreements are contractual in nature and are measured by contract law standards. United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985). To determine whether a plea bargain is violated, this court looks to what the parties "reasonably understood to be the terms of the agreement." Id.

Here, Carter pleaded guilty to one count of unarmed robbery in return for the government's striking the portion of the indictment charging the use of a dangerous weapon. Contrary to Carter's assertion, the government never agreed to remain silent as to sentencing at any time.3  Therefore, the government did not breach its plea agreement by opposing Carter's Rule 35 motion. See Read, 778 F.2d at 1441.4 



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 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


Carter filed a prior motion under section 2255 claiming the sentencing judge was biased, his confession was coerced, his plea was not knowing and voluntary and his counsel was ineffective. The district court denied the motion and we affirmed. United States v. Carter, No. 87-2270 (9th Cir. March 3, 1988) (unpublished)


The court asked the following question: Did you, on or about the 3rd of September, 1985 in Bakersfield in this state and court district by force, violence and intimidation, take or alternatively aid in the taking from the person and presence of an employee of the Central Savings and Loan Association at 5101 Ming Avenue, Bakersfield, California approximately $8,094.50?


The court specifically asked Carter if the only promise made to him was the promise that the government would strike the allegation concerning being armed with a deadly weapon. Carter replied affirmatively


Carter also argues that his rights were violated because he believed he was pleading guilty to bank robbery, not aiding and abetting a bank robbery. However, Carter raised this issue in his first section 2255 motion and we affirmed the district court's denial of relief. Thus, our prior holding is "law of the case, binding upon the present panel." Adamian v. Lombardi, 608 F.2d 1224, 1228 (9th Cir. 1979), cert. denied, 446 U.S. 938 (1980)