                                                                                      FILED
                               NOT FOR PUBLICATION                                     NOV 08 2010

                                                                                  MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                               U .S. C O U R T OF APPE ALS




                                FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                              No. 10-10057

               Plaintiff-Appellant,                     D.C. No. 09-CR-00268 SI

   v.
                                                        MEMORANDUM *
 ALEXANDER DEJARNETTE, JR.,

               Defendant-Appellee.




                       Appeal from the United States District Court
                         for the Northern District of California
                         Susan Illston, District Judge, Presiding

                               Submitted November 3, 2010
                                San Francisco, California

Before: RYMER and ALARCON, Circuit Judges, and TRAGER, ** District Judge.




        The United States appeals from an order issued by the District Court for the

Northern District of California dismissing a one-count indictment against


         *
              This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
        **
               The Honorable David G. Trager, Senior United States District Judge for the
Eastern District of New York, sitting by designation.
Alexander Dejarnette, Jr. ("Dejarnette") for knowingly failing to register as a sex

offender in violation of the Sex Offender Registration and Notification Act

("SORNA"), 18 U.S.C. § 2250. In 2000, Dejarnette pled guilty to various sex

offenses pursuant to a plea agreement. The district court's dismissal of the later

prosecution under SORNA was based on statements made by the Assistant United

States Attorney ("AUSA") at the sentencing hearing for the underlying sex

offenses which was held in 2001. At the hearing, the AUSA stated that because of

potential ex post facto concerns, the government would "not press" a recently

enacted sentencing guideline that would have required the district court to impose a

certain federal registration requirement as a condition of supervised release.

      Given the parties' familiarity with the facts, we do not fully recount them

here. This court has jurisdiction under 18 U.S.C. § 3731 and 28 U.S.C. § 1291.

For the following reasons, the decision of the district court is reversed.

      There is a conflict in this circuit as to whether a district court's interpretation

of a plea agreement is reviewed de novo or for clear error. United States v.

Transfiguracion, 442 F.3d 1222, 1227 (9th Cir. 2006). There is no need to resolve

that conflict in this case as reversal is warranted even under the more deferential

review for clear error.

      The government argues that the district court erred by concluding that the


                                            2
AUSA's comments were incorporated into Dejarnette's plea agreement. However,

the outcome of the instant appeal turns on the substance of the AUSA's statements,

not on whether they were incorporated into the plea agreement. As such, it is

assumed that the AUSA's statements were incorporated into the plea agreement.

      Plea agreements are contractual in nature and are generally subject to legal

principles of contract interpretation. Id. at 1229. Interpretation of a plea

agreement is an objective inquiry, based on what the parties reasonably believed its

terms to be at the time of entering the plea of guilty. United States v.

Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 2002).

      Any waiver by the AUSA was limited to the conditions of Dejarnette's

supervised release, and specifically, to whether a certain sentencing guideline

should govern Dejarnette's supervised release. As such, the AUSA's statements

could not reasonably be understood as a promise not to prosecute Dejarnette for

violating SORNA, which: (1) was enacted over five years after the sentencing

hearing; and (2) imposes a federal registration requirement that is independent of

any conditions of supervised release. The district court concluded that "[t]he

subsequent enactment of SORNA does not permit the government to rescind the

representations made in 2001 that defendant would not be required to register as a

sex offender under federal law." United States v. Dejarnette, No. CR 09-00268 SI,


                                           3
2010 WL 530090, at *6 (N.D. Cal. Feb. 6, 2010). However, the AUSA's

statements were only concerned with a specific guideline governing a condition of

supervised release; the AUSA never made any broad representations about the

applicability of "federal law" generally.

      Because the district court clearly erred in concluding that the AUSA's

statements gave Dejarnette the reasonable expectation that he would not be subject

to any future federal sex offender registration requirements, the court's decision is

hereby reversed and remanded.

      REVERSED AND REMANDED.




                                            4
