FILED

NOT FOR PUBLICATION

JUN 10 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30044

Plaintiff-Appellee, D.C. No. 6:16-cr-00096-MC-1

v.

MEMORANDUM*

ROBERT DEWAYNE LACEY,

Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted May 13, 2020** Portland, Oregon

Before: BYBEE and VANDYKE, Circuit Judges, and CHHABRIA,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Vince Chhabria, United States District Judge for the Northern District of California, sitting by designation. In 2015, Appellant Robert Lacey pleaded guilty to one count of possession

of methamphetamine with intent to distribute. Under his plea agreement, the

federal government agreed to recommend a sentence at the low end of the

applicable Guidelines range, Lacey agreed to also plead guilty to one outstanding

charge in California state court, and the Fresno County District Attorney’s Office

agreed to dismiss other state charges. After sentencing Lacey to forty-nine

months’ imprisonment, the district court “recommend[ed] that [he] participate in”

the Bureau of Prison’s Residential Drug and Alcohol Program (RDAP). While

incarcerated, Lacey attempted to apply for RDAP, but he was ineligible because

his state criminal charges had not yet been resolved. By the time they were, Lacey

missed the deadline to apply for and participate in RDAP.

In 2018, Lacey moved to reduce his sentence, arguing that the government

had breached the plea agreement. The district court denied the motion. Lacey

moved for reconsideration, which the district court also denied. The district court

ordered that a notice of appeal be filed on Lacey’s behalf, and this appeal followed.

We construe Lacey’s motion to reduce his sentence as a motion under 28

U.S.C. § 2255. Thus, the district court had jurisdiction under 28 U.S.C. § 2255(a).

We also construe the district court’s order that a notice of appeal be filed on

Lacey’s behalf as granting Lacey a certificate of appealability. Accordingly, we

2 have jurisdiction under 28 U.S.C. § 2253(a). We have been inconsistent in the

standard of review that applies to a claim that the government has breached a plea

agreement. See United States v. Alvarez, 835 F.3d 1180, 1187 (9th Cir. 2016)

(applying de novo review); United States v. Salemo, 81 F.3d 1453, 1460 (9th Cir.

1996) (applying clearly erroneous review). But we need not resolve this

inconsistency because the outcome is the same under either standard of review.

We affirm.

To determine whether a plea agreement has been breached, we “look to what

the defendant reasonably understood when he entered his guilty plea.” United

States v. Quan, 789 F.2d 711, 713 (9th Cir. 1986). Disputes relating to the terms

of the agreement are resolved “by objective standards.” Id.; see also, e.g., United

States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993) (“Plea agreements are

contractual in nature and are measured by contract law standards.”). The

government will only be “held to the literal terms of the agreement.” United States

v. Clark, 781 F.2d 730, 731 (9th Cir. 1986) (internal quotation marks omitted).

There was no breach of the plea agreement. The plea agreement was

contingent on the Fresno County District Attorney’s Office dismissing several state

charges after Lacey pleaded guilty to one of them, but there was no requirement

that the dismissal be accomplished within a particular time frame. Nor does the

3 plea agreement require that Lacey be afforded the opportunity to apply for RDAP.

And the district court’s recommendation at sentencing that Lacey participate in

RDAP was just that—a recommendation. The district court’s statement did not

amend the plea agreement or otherwise obligate the Fresno County District

Attorney’s Office to quickly resolve the state charges. Because Lacey’s state

charges were eventually dismissed, the government complied with the “literal

terms of the agreement.” Id. (internal quotation marks omitted). Although what

occurred is unfortunate, the opportunity to successfully apply for RDAP simply

was not promised. In the absence of a breach of the plea agreement, Lacey’s

request for a sentence reduction was properly denied.

AFFIRMED.

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