United States v. 2005-10-03 | 03-10479 | USA VBROWN | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-10479
Plaintiff-Appellee, D.C. No.
v.  CR-S-00-434-GEB
NEIL R. BROWN, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted
September 14, 2005—San Francisco, California
Filed October 4, 2005
Before: Betty B. Fletcher and Marsha S. Berzon,
Circuit Judges, and John A. Houston,* District Judge.
Per Curiam Opinion
*The Honorable John A. Houston, United States District Judge for the
Southern District of California, sitting by designation.
13791

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COUNSEL
Donald S. Frick, Esq., Sacramento, California, for the
defendant-appellant.
Thomas E. Flynn, Assistant United States Attorney, Sacra-
mento, California, for the plaintiff-appellee.
OPINION
PER CURIAM:
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 agree-
ment. 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.1
We affirm.
1Brown asserts that the government has “forfeited any claim” that
Brown waived his right to appeal by failing to raise that claim at the time
that Brown filed his notice of appeal. Appellant’s Reply Brief at 2. Brown
relies upon Hunter v. United States, 160 F.3d 1109 (6th Cir. 1998). The
court in Hunter faced a collateral attack where the defendant was unaware
that he had waived his right to appeal. Id. at 1113-14. We, by contrast, are
confronted by a direct appeal from a sentence where there is no doubt that
Brown knowingly waived his right to appeal. We find that Hunter does
not apply to the facts of this case.
13793 UNITED STATES v. BROWN

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[1] Appellant argues that, because the government was not
explicit in moving to dismiss, as promised in the plea agree-
ment, 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 dis-
missal is with or without prejudice,2 this technical error does
not constitute a breach of the underlying plea agreement.
[2] Dismissals by the government are generally presumed
to be without prejudice, United States v. Matta, 937 F.2d 567,
568 (11th Cir. 1991); accord United States v. Ortega-Alvarez,
506 F.2d 455, 458 (2d Cir. 1974), “unless a contrary intent is
clearly expressed.” Matta, 937 F.2d at 568. The intent of the
parties as to the plea agreement — as manifest in the agree-
ment itself — was clearly that the dismissal be with prejudice.
The government’s motion to dismiss and the court’s subse-
quent dismissal should be construed in light of that intent.
[3] We follow the First Circuit, which has recognized that
where a dismissal with prejudice is intended but not formally
carried out, an appellate court may clarify the dismissal to
reflect that it is with prejudice. United States v. Raineri, 42
F.3d 36, 43 (1st Cir. 1994). We therefore interpret the district
court’s dismissal in accordance with the parties’ clear intent
that the dismissal be with prejudice. Any attempt to prosecute
any of the dismissed claims in the indictment is thus barred.
We, therefore, find that no breach of the plea agreement
occurred.
2Had the district court been specific in dismissing the remaining counts
with prejudice, Brown would have had no basis to argue that he was no
longer bound by his plea agreement. To avoid unnecessary appeals, we
suggest that the standard forms used by the district should reflect whether
the dismissal is with or without prejudice.
13794 UNITED STATES v. BROWN

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AFFIRMED.
13795 UNITED STATES v. BROWN

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