United States v. William Fuller

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 23, 2020
• Docket: 19-10432
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 23 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10432

Plaintiff-Appellee, D.C. No. 4:06-cr-00825-RCC-LAB-1 v.

WILLIAM ERNEST FULLER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding

Submitted November 19, 2020** Phoenix, Arizona

Before: TALLMAN, BYBEE, and BADE, Circuit Judges.

Appellant William Ernest Fuller appeals the district court’s imposition of a

lifetime term of supervised release. He claims that the government breached its

promise set forth in the written revocation disposition agreement to make no

* 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). recommendation regarding an additional term of supervised release when it

informed the district court at sentencing, contrary to defense counsel’s

misrepresentation, that it did not concur with the probation officer’s

recommendation of no further supervised release. Because the parties are familiar

with the facts, we will not recite them here. We have jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a). We affirm.

“A defendant’s claim that the government breached its plea agreement is

generally reviewed de novo.” United States v. Whitney, 673 F.3d 965, 970 (9th

Cir. 2012). However, because Fuller’s counsel failed to timely object to the

prosecutor’s statements during the district court proceedings, the court is limited to

plain error review on appeal. Id.; see also United States v. Hernandez-Castro, 814

F.3d 1044, 1045–46 (9th Cir. 2016). “Relief for plain error is available if there has

been (1) error; (2) that was plain; (3) that affected substantial rights; and (4) that

seriously affected the fairness, integrity, or public reputation of the judicial

proceedings.” United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008).

According to Fuller, the government breached its promise to “take no

position on the issue of supervised release” by informing the district court that it

did not agree with the probation officer’s recommendation of no further supervised

release. We need not decide whether the government’s statements constituted a

2 breach because, even if a breach occurred, Fuller cannot carry his burden to show

that the alleged breach affected his substantial rights.

“[W]here a breach of the plea agreement is alleged, the defendant must

prove that it is reasonably probable that he or she would have received a more

lenient sentence if the government had not committed the breach, not just merely

that it is possible.” United States v. Gonzalez-Aguilar, 718 F.3d 1185, 1189 (9th

Cir. 2013) (internal quotations omitted). Nothing in the record indicates that the

government’s statements influenced the district court’s decision to impose a

lifetime term of supervised release. Rather, in rejecting the probation officer’s

recommendation, the district court emphasized that (1) Fuller’s conduct was

“awfully close” to his original offense; and (2) the recommendation for no further

supervised release was not based on Fuller’s success but because probation was

“tired of dealing with [him].” In other words, the district judge made clear that he

had independently reviewed the record and was not convinced that supervised

release was no longer necessary. See Gonzalez-Aguilar, 718 F.3d at 1187–89

(finding no impact on substantial rights when it was clear that the district judge

independently evaluated the sentence and was “deeply influenced” by the

presentence report, and the prosecutor made no statements regarding the

defendant’s criminal history at sentencing). Fuller has therefore failed to show a

3 reasonable probability that, absent the government’s statements, the district court

would have imposed a lesser term of supervised release.

AFFIRMED.