United States v. Richard O. Kelly, Sr.

15 F.3d 1092 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Richard O. KELLY, Sr., Defendant-Appellant. No. 93-50132. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 8, 1993. Decided Dec. 29, 1993. Before: HUG, SCHROEDER, and BOOCHEVER, Circuit Judges. 1 MEMORANDUM * 2 Richard O. Kelly pled guilty to three counts of mail fraud and one count of wire fraud. Before sentencing, Kelly moved to withdraw his guilty plea on the grounds that the prosecution had breached the plea agreement. His motion was denied, and he was sentenced to 117 months in prison to be followed by 5 years probation. Kelly now appeals his conviction and sentence. 3 * Kelly first argues that the district judge erred in denying his motion to withdraw his guilty plea because the prosecution had breached the plea agreement. Rather than looking to the government's performance, Kelly claims, the judge applied an insurmountable "compelling…