United States v. Neil R. Brown

Pursuant to a plea agreement, defendant-appellant Neil R. Brown pled guilty to forty-four counts of various fraud crimes. He claims that the government breached that agreement. He also attacks his sentence on Booker grounds and claims that the district court abused its discretion in denying his motion, prior to sentencing, for a continuance to obtain substitute counsel. We conclude that there was no breach of the plea agreement. Therefore, his other claims are precluded by the plea agreement, in which he waived his right to appeal. We affirm.

Appellant argues that, because the government was not explicit in moving to dismiss, as promised in the plea agreement, the remaining counts of the indictment with prejudice, the government has breached the terms of the plea agreement. Brown claims that he is, therefore, not bound by the plea agreement and thus may appeal. While it appears that the standard form used for dismissals in the Eastern District of California is imprecise in failing to specify whether a dismissal is with or without prejudice, this technical error does not constitute a breach of the underlying plea agreement.

Dismissals by the government are generally presumed to…