Unpublished Disposition, 912 F.2d 470 (9th Cir. 1989)

MEMORANDUM^** 

Defendant-appellant Dale Russell Leischner ("Leischner") brought this Section 2255 motion to vacate, set aside, or correct his ten-year sentence for conspiracy to distribute cocaine on the ground that the government had breached his plea agreement. The district court denied Leischner's motion. We affirm.

FACTS

On November 18, 1986, a federal grand jury charged Leischner with conspiracy to distribute cocaine.¹  Leischner pleaded not guilty. Leischner later entered into a plea agreement in which he agreed to change his plea to guilty. The plea agreement provided that " [t]he United States Attorney, at sentencing, will recommend five years imprisonment." On December 11, Leischner changed his plea to guilty.

During the change of plea proceedings, the district judge stated, "I notice the Plea Agreement, Mr. Leischner, provides that the United States Attorney at sentencing will recommend five years' imprisonment." Additionally, the presentence report stated that the government had promised, pursuant to the plea agreement, to recommend five years imprisonment.

During the sentencing proceedings, however, the United States made no sentencing recommendation and the judge did not refer to the government's promise to recommend a five-year sentence. Leischner was sentenced to ten years imprisonment and payment of a special assessment of fifty dollars.

Throughout the above proceedings, Leischner was represented by attorney Richard J. Pyfer. Pyfer did not object to the government's failure to recommend a five year sentence. Pyfer did not appeal Leischner's ten year sentence. In all subsequent proceedings, Leischner represented himself.

On May 19, 1988, Leischner moved (pro se) for a reduction of sentence, pursuant to Federal Rule of Criminal Procedure 35, alleging that the United States had not fulfilled its obligations under the plea agreement. On July 25, 1988, the court denied Leischner's motion on its merits, holding that "all relevant factors were taken into account at the time of sentencing."

On August 12, 1988, Leischner filed a Notice of Appeal. On November 14, 1988, Leischner requested that his Notice of appeal be withdrawn. Leischner made this request because he thought that "the issues to be presented on appeal would be more appropriately presented to the District Court in the form of a motion pursuant to Title 28 U.S.C. § 2255." However, Leischner acknowledged that he was "aware of his right to appeal the Rule 35 ruling."

On January 9, 1989, Leischner moved (pro se) to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255. He also requested to proceed in forma pauperis. On January 12, 1989, the district court denied Leischner's Sec. 2255 motion. On January 23, 1989, Leischner filed his notice of appeal.

DISCUSSION

In determining whether a plea agreement was breached, the court must look to what was "reasonably understood" by the defendant when he entered his plea agreement. United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984). If disputed, the agreement is interpreted by objective standards. United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979). The government must comply with "the literal terms of the agreement." United States v. Garcia, 519 F.2d 1343, 1344-45 (9th Cir. 1975).

Leischner's plea agreement states that " [t]he United States Attorney, at sentencing, will recommend five years imprisonment." The government concedes that the United States attorney "made no recommendation to the court" at the time of sentencing. Thus, the government did not comply with the express terms of the plea agreement.²  In fact, the government concedes that its failure to recommend a five year sentence at the sentencing proceeding was a "technical violation of the plea agreement."

However, the district court knew of the government's promise to recommend a five year sentence from the plea agreement, the presentence report, and the change of plea proceedings. The court also considered the government's promise to recommend five years imprisonment in Leischner's Rule 35 proceedings and refused to alter Leischner's ten year sentence. Thus, Leischner was not prejudiced by the government's failure to make a recommendation at the time of sentencing.

Leischner also argues that he was deprived of effective assistance of counsel when his attorney failed to object to the government's breach of the plea agreement or to file a direct appeal on this basis. Leischner's ineffective assistance of counsel claim can succeed only if:

(1) his attorney's failure to object at sentencing or to file a direct appeal were errors that "a reasonably competent attorney acting as a diligent and conscientious advocate would not have made;" and

(2) there is a "reasonable probability" that, but for these errors, the result of the sentencing proceedings would have been different.

Strickland v. Washington, 466 U.S. 668 (1984); United States v. Popoola, 881 F.2d 811 (9th Cir. 1989).

Because the district court knew of the government's promise to recommend a five year sentence and refused to change the sentence in the Rule 35 proceeding, there is not a "reasonable probability" that an oral recommendation by the government during the sentencing hearing would have resulted in a different sentence.

The district court also correctly refused to rule on Leischner's motion to proceed in forma pauperis because it found Leischner was not entitled to relief under Section 2255.

AFFIRMED.