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United States v. Phan

filed: October 14, 1992.

UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE/CROSS-APPELLANT,
v.
NGOAN PHAN, DEFENDANT/APPELLANT/CROSS-APPELLEE. UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE/CROSS-APPELLANT, V. HONG PHAN, DEFENDANT/APPELLANT/CROSS-APPELLEE.



Appeal from the United States District Court for the Eastern District of California. D.C. No. S-90-271-LKK. Lawrence K. Karlton, District Judge, Presiding

Before: Farris, Leavy and Trott, Circuit Judges.

MEMORANDUM

Ngoan Phan and Hong Phan, husband and wife, appeal their 18-month and 5-month sentences imposed respectively under the federal Sentencing Guidelines following their guilty plea convictions for conspiracy to defraud the government, in violation of 18 U.S.C. § 371 (1988), and unauthorized use of food stamps, in violation of 7 U.S.C. § 2024(b) (1988). The government cross-appeals the sentences. We affirm.

I

Violation of Plea Agreements

Appellants argue the prosecutor violated due process when he failed to follow the terms of the plea agreement by not properly recommending downward departure under § 5K1.1 of the Sentencing Guidelines for the Phan's cooperation with the government in its investigation.

The government will be held to the literal terms of the plea agreement. United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984). Where the government violates a plea agreement at sentencing, the usual remedy is a remand for resentencing. Id.

The plea agreements made by both defendants provide:

In return for your client's plea and her [his] agreement to cooperate, the government agrees to recommend a sentence within the applicable guideline range and will consider making a motion for downward departure pursuant to Section 5K of the Sentencing Guidelines. The decision to file such a motion and the extent of the downward departure recommended, if any, will depend on the nature, value and extent of the cooperation which your client provides.

(emphasis supplied). Under the 'literal terms' of the agreements, then, the government was not required to make a motion for downward departure.

The record shows, however, the government made such a motion and argued against any downward departure because it found the information provided by the Phans to be "not useful." The record also shows the Phans each received a two-level downward departure "upon motion of the government, as a result of defendant's substantial assistance."

In fact, the government did comply with the terms of the plea agreements, and the Phans received a downward departure despite the arguments of the government. The Phans' claim of a due process violation is meritless.

II

Error in Setting ...


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