Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 915 F.2d 1581 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Robert Michael HARRIG, Defendant-Appellant.

No. 89-50483.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 11, 1990.* Decided Oct. 4, 1990.

Appeal from the United States District Court for the Southern District of California; John S. Rhoades, District Judge, Presiding.

S.D. Cal.

AFFIRMED.

Before FLETCHER, BOOCHEVER and WIGGINS, Circuit Judges.


MEMORANDUM** 

Robert Michael Harrig appeals his sentence following a guilty plea to possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a) (1) (1988), and for using and carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1) (1988). Harrig claims the trial court erred in failing to determine whether the prosecution breached its plea agreement with Harrig. Because Harrig submitted nothing to indicate cooperation mandating the Government's request of a reduced sentence, we affirm.

As an initial matter, the Government contends that Harrig may not contest the validity of the plea agreement on appeal because he did not raise the issue at the district court level. We disagree. At the sentencing hearing, Harrig's counsel stated:

I take issue with the fact that Mr. Harrig has or has not cooperated to the extent that his sentence should be reduced. It seems to me that the plea agreement as drafted is somewhat standardless, in that it says 'if the Government believes such cooperation merits it the Government may ask the court to depart downward under 18 U.S.C. § 3553(e).' ... My argument is that I feel he has cooperated within the meaning of the plea agreement and I think that the Government should be compelled to make the motion or the court should on its own motion impose a guideline sentence in this case.

We find these statements sufficient to raise the issue of breach in the court below.

Nevertheless, we need not determine whether the plea agreement gave the Government full and complete discretion to determine the standard for cooperation, nor is a remand necessary, because Harrig offered no evidence that he cooperated with the Government. On the contrary, a Drug Enforcement Administration Agent told Harrig that his cooperation was insufficient to meet the terms of the plea agreement, and that unless he cooperated in good faith, the Government would not recommend a downward departure. Harrig did not dispute the agent's assertion that Harrig was not telling the truth, nor did he put forth any evidence to demonstrate that he had reached a level of cooperation that would indicate the Government had acted arbitrarily or capriciously by not recommending a downward departure. Accordingly, the district court did not err in refusing to reach the question of whether the plea agreement is "standardless".

Harrig maintains that, although he agreed to the plea agreement, it would be unconscionable to enforce the agreement without first conducting an evidentiary hearing to clearly define the "quality of cooperation." Harrig mistakenly relies on United States v. Helmandollar, 852 F.2d 498 (9th Cir. 1988). There, the defendant was granted an evidentiary hearing with respect to the disputed issue of whether a plea agreement actually existed. Here, a plea agreement plainly existed. Harrig cites no authority supporting his demand for an evidentiary hearing. By considering the plea agreement and sentencing transcripts, the district judge was adequately apprised of all relevant facts necessary to give Harrig's claim careful consideration. Therefore, the district court did not abuse its discretion in not granting Harrig an evidentiary hearing.

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 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