Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)

MEMORANDUM^** 

William Culbertson appeals from his sentence for conspiracy to possess with intent to distribute cocaine. We affirm.

The government argues that Culbertson may not appeal the district court's refusal to depart further than it did. While a district court's discretionary refusal to depart downward is ordinarily not appealable, United States v. Morales, 898 F.2d 99 (9th Cir. 1990), a defendant may appeal on the ground that the sentence was imposed in violation of law, 18 U.S.C. § 3742(a) (1); see United States v. Mena, 925 F.2d 354, 355 (9th Cir. 1991). Because Culbertson challenges his sentence on the ground that it was imposed in violation of due process, we have jurisdiction to hear the appeal.

Culbertson first contends that the district court denied him due process by breaching the plea agreement. The plea agreement was between Culbertson and the prosecution, however, and did not bind the district court. That the district court accepted the plea agreement did not obligate it to accept the government's sentencing recommendation, much less go beyond it. See United States v. Otte, 729 F.2d 1207, 1208 (9th Cir. 1984) ("acceptance of a plea agreement does not require acceptance of its sentencing recommendation").

Culbertson also argues that the prosecution breached the plea agreement by not recommending a greater departure than 50 percent. He failed to raise this argument to the district court, however, and we see no plain error in the prosecution's recommending only a 50 percent reduction because the record indicates that the prosecution never promised anything more. See United States v. Benchimol, 471 U.S. 453, 105 S. Ct. 2103, 85 L. Ed. 2d 462 (1985) (courts may not inject implied-in-law terms into plea agreements).

Culbertson next contends that he was denied due process because the district court failed to advise him fully of the consequences of his plea. A guilty plea must be "intelligent and voluntary." Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Here, the district court informed Culbertson of the maximum penalty for the offense and specifically told him that it was not bound to accept the government's recommendation of a downward departure. Culbertson was fully aware of the consequences of his plea, and his guilty plea was therefore intelligent and voluntary. See United States v. Turner, 881 F.2d 684, 686 (9th Cir.) ("In those cases where we have found a constitutional violation ..., the maximum period of time a defendant's liberty was restrained exceeded the maximum period he was told was applicable."), cert. denied, 110 S. Ct. 199 (1989).

Culbertson claims that he was denied due process because the district court did not give him an opportunity to present the live testimony of government agents on the issue of his continuing cooperation. A defendant need not be given such an evidentiary hearing at sentencing provided he has had an opportunity to present objections to the presentence report and to present his own view of the facts. See United States v. Baker, 894 F.2d 1083, 1084-85 (9th Cir. 1990). Culbertson presented information on his cooperation in his sentencing memorandum; his counsel argued the point at the sentencing hearing; and Culbertson spoke on his own behalf at sentencing. Thus, the district court was aware of Culbertson's cooperation and did not deny him due process by failing to give him an opportunity to present witnesses.

Finally, Culbertson argues that the district court failed to individualize his sentence. Due process requires only that a sentencing court consider factors about the individual defendant, not that it give any particular weight to particular factors. United States v. Brady, 895 F.2d 538, 543 (9th Cir. 1990). The district court acknowledged Culbertson's cooperation and concluded that a 50 percent reduction was appropriate. Although the district court expressed reservations about the general appropriateness of 50 percent reductions based on cooperation, its decision to grant the reduction reflects that it did consider Culbertson's cooperation but simply did not believe that it was entitled to so much weight that it would warrant more than a 50 percent departure.

AFFIRMED.