Opinion
D.C. No. CR-96-00006-DWM
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted May 1, 2000.
Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding.
Before LEAVY, RYMER, and T.G. NELSON, Circuit Judges.
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.
Jimmie Bowley appeals his conviction by plea agreement of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, claiming that the government breached the plea agreement by failing to file a substantial assistance departure motion below the new mandatory minimum sentence of five years at his 28 U.S.C. § 2255 re-sentencing hearing. We affirm.
Bowley argues that the district court erred by not ordering specific performance of the plea agreement because the government agreed to move for a sentence below the mandatory minimum. However, the agreement was for a specific, seven-year sentence under Federal Rule of Criminal Procedure 11(e)(1)(C). To arrive at the agreed upon seven-year sentence, the government moved for a downward departure from what the parties believed was a ten-year mandatory minimum sentence. In doing so, it fulfilled its obligations under the agreement. Bowley contends that the government should also have moved for a proportionately similar downward departure when it turned out that the parties made a mutual mistake of fact, and that the mandatory minimum was five years rather than ten. We disagree, as the agreement was not for the government to move for a downward departure, but for a specific sentence. In these circumstances, the district court acted within its discretion by giving Bowley the option to rescind his plea. See United States v. Partida-Parra, 859 F.2d 629, 633 (9th Cir.1988) (unilateral mistake by government). Bowley maintains that it could not do this in the context of his § 2255 motion, but unlike the district court in United States v. Barron, 172 F.3d 1153 (9th Cir.1999) (en banc), upon which he relies, the district court here did not condition relief under § 2255 on vacating Bowley's guilty plea. Instead, the court vacated the judgment and corrected the sentence as it was obliged to do. See United States v. Sandoval-Lopez, 122 F.3d 797, 800 (9th Cir.1997) (even where the government is in breach, there are several available remedies including allowing the defendant to withdraw his guilty plea).
At oral argument, Bowley suggested that the government should also have moved for a downward departure under Federal Rule of Criminal Procedure 35, but this argument is waived as it was not raised in his brief. In any event, the government had no obligation to do so unless Bowley gave further cooperation after sentencing, which he did not do.
AFFIRMED.