928 F. 2d 1137 - United States v. Cassidy

No. 90-50324.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Southern District of California, No. CR-88-0882-15-K; Judith N. Keep, District Judge, Presiding.

S.D.Cal.

AFFIRMED.

Before CANBY and RYMER, Circuit Judges, and WARE*, District Judge.

MEMORANDUM**

Robert Lee Cassidy was indicted for numerous violations of the federal drug laws. After the trial court denied Cassidy's motion to dismiss the indictment on the basis of outrageous government conduct, Cassidy pleaded guilty to one count of conspiracy to manufacture and possess methamphetamine with the intent to distribute. He appeals his conviction and sentence. We affirm.

1. Dismissal of the indictment for outrageous government conduct.

Cassidy claims that he orally entered into a conditional guilty plea, reserving the right to appeal the adverse determination of the pretrial motion pursuant to Federal Rule of Criminal Procedure 11(a)(2). Rule 11(a)(2) requires that a conditional guilty plea be reduced to writing. A plea agreement that is not reduced to writing does not satisfy the requirements of the rule. See United States v. Echegoyen, 799 F.2d 1271, 1276 (9th Cir.1986). Because Cassidy pleaded guilty without reservation of this right, he has waived his right to challenge the indictment based upon outrageous government conduct. United States v. Montilla, 870 F.2d 549, 552-553 (9th Cir.1989), amended 907 F.2d 115 (9th Cir.1990).

Cassidy urges us to follow United States v. Yasak, 884 F.2d 996 (7th Cir.1989). In Yasak, the Seventh Circuit held that rule 11(a)(2) was satisfied despite the defendant's failure to secure a written conditional plea agreement where both the government and the defendant agreed that the plea was conditional, the trial court accepted the conditional plea, and the transcript of the proceeding demonstrated that both parties agreed to the plea. Id. at 1000. Yasak is inapposite. Here, the government asserts that Cassidy did not enter into a conditional plea, and Cassidy concedes that the government did not acquiesce.1 Moreover, the transcript does not clearly show that Cassidy reserved the issue for appeal.2

Cassidy claims that the trial court erred in failing to reduce his base offense level for acceptance of responsibility. We review the district court's determination for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir.1990).

The trial court refused to grant Cassidy the two-point reduction because his statements regarding his role in the crime were "too vague." Cassidy argues that he should not be required to assert a complete, accurate and truthful factual rendering of events occurring at the Harbison Canyon house because his plea agreement occurred after a two year investigation and the government admitted that it would have a difficult time convicting Cassidy for his actions.

Prior to sentencing, the trial judge warned Cassidy that she would grant the two-point reduction only if Cassidy was honest with the Probation Department. In a presentence report, the probation officer recommended that Cassidy not be granted the reduction because he did not admit his full involvement in the conspiracy or the facts surrounding his selling of methamphetamine. Although Cassidy objected to this portion of the sentencing report, he did not augment his earlier statements to the probation officer or to the trial judge at the sentencing hearing.

When confronted with an identical situation, we recently held that where the defendant had an opportunity to augment his statements either by letter or at the sentencing hearing, but did not, the district court's denial of the two-point reduction was not clearly erroneous. United States v. Ramos, No. 89-50242, Slip Op. at 513 (9th Cir. Jan. 17 1991). For the same reason, we conclude that the trial court did not err in refusing to award Cassidy the reduction.

The judgment is AFFIRMED.