United States v. Thomas Lee Myers

32 F.3d 411 UNITED STATES of America, Plaintiff-Appellee, v. Thomas Lee MYERS, Defendant-Appellant. No. 94-30102. United States Court of Appeals, Ninth Circuit. Submitted July 14, 1994 * . Decided Aug. 2, 1994. Stephen R. Sady, Chief Deputy Fed. Public Defender, Portland, OR, for defendant-appellant. Deborah J. Dealy-Browning, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before: TANG, FERGUSON, and WIGGINS, Circuit Judges. PER CURIAM: 1 On February 1, 1994, pursuant to a plea agreement, Thomas Lee Myers pleaded guilty to a single count of mail theft in violation of 18 U.S.C. Sec. 1708 . In exchange for his guilty plea the government agreed "to recommend a sentence at the low end of the applicable guideline range." 2 The presentence report noted that the guideline range was between six and twelve months. The report also noted that the "government will recommend a sentence at the low end of the applicable guideline range." 3 At the sentencing, the district court judge asked the prosecutor if she had any comments. She replied: "No, your honor. I would just direct the court's attention to paragraph…

On February 1, 1994, pursuant to a plea agreement, Thomas Lee Myers pleaded guilty to a single count of mail theft in violation of 18 U.S.C. § 1708 . In exchange for his guilty plea the government agreed “to recommend a sentence at the low end of the applicable guideline range.”

The presentence report noted that the guideline range was between six and twelve months. The report also noted that the “government will recommend a sentence at the low end of the applicable guideline range.”

At the sentencing, the district court judge asked the prosecutor if she had any comments. She replied: “No, your honor. I would just direct the court’s attention to paragraph eight of the presentence report that sets out the facts. This wasn’t just simply a matter of driving the mail truck away, but he did injure two security guards when they were wrestling with him to restrain [him].” Myers was sentenced to twelve months. After the judge imposed the sentence, the defense counsel objected to the government’s failure to recommend a sentence at the low end of the range. The following exchange then took place.

This exchange took place after sentencing and the horse was out of the barn. Myers now…

dissenting:

I respectfully dissent. I do not dissent from the proposition that plea agreements are contractual in nature and subject to strict enforcement. In this case, however, the government in fact recommended the low end of the guideline range by explicitly confirming the court’s understanding' that this was indeed the government’s recommendation as stated in the presentence report and the defendant’s sentencing memorandum. In Myers’ request for reconsideration of the sentence, he stated that both the prosecution and defense joined in this recommendation.

The defendant’s real objection is that the government’s recommendation was not made with “at least some minimal advocacy.” The plea agreement did not require “minimal advocacy” in the government’s recommendation. In United States v. Benchimol, 471 U.S. 453, 455 , 105 S.Ct. 2103, 2104-05 , 85 L.Ed.2d 462 (1985), the Supreme Court rejected a similar attempt to imply a requirement that a prosecutor “enthusiastically” recommend a certain sentence, when the plea agreement simply required a recommendation.

I would affirm the sentence.