United States v. Brian Barker

MEMORANDUM

Brian Barker appeals three decisions of the district court: (1) that his interpretation of an ambiguous plea agreement was unreasonable; (2) that the government’s potential duty to disclose was outside the remand and also waived; and (3) that the 21 U.S.C. § 851 information relied on to impose a mandatory life sentence was procedurally valid and substantively adequate. We affirm because Barker unreasonably interpreted the plea agreement, waived the duty to disclose and failed to brief properly a challenge to the § 851 information.

The Reasonable Meaning of the Plea Agreement

Our standard of review of a district court’s construction of a plea agreement is uncertain, see United States v. Transfiguracion, 442 F.3d 1222, 1227 (9th Cir.2006), but we need not resolve whether clear error or de novo review applies because the outcome is the same under either standard. We analyze the reasonableness of the defendant’s interpretation at the time of his change of plea. See United States v. De la Fuente, 8 F.3d 1333 , 1337 & nn. 7, 8 (9th Cir.1993).

The plea agreement said:

(Emphasis added.) The meaning of the phrase “acts or occurrences giving rise to” the Missoula indictment…