                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                          FILED
                            FOR THE NINTH CIRCUIT
                                                                           DEC 21 2015
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                       No. 14-30097

              Plaintiff - Appellee,             D.C. No. 3:13-cr-05464-RBL-1

 v.
                                                MEMORANDUM*
PATRICK McALLISTER,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                           Submitted December 7, 2015**
                               Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and GLEASON,*** District
Judge.




       *
             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).
       ***
             The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
      Defendant Patrick McAllister appeals the district court’s imposition of three

conditions of supervised release as part of his criminal sentence: (1) drug and alcohol

testing, (2) a sexual deviancy evaluation, and (3) sexual deviancy treatment. The

government argues that the appeal should be dismissed because McAllister waived his

appellate rights as part of the plea agreement. We agree with the government that the

waiver of appellate rights is valid and enforceable. Accordingly, we dismiss this

appeal.

      A waiver of appellate rights “is enforceable if (1) the language of the waiver

encompasses [the defendant’s] right to appeal on the grounds raised, and (2) the

waiver is knowingly and voluntarily made.” United States v. Jeronimo, 398 F.3d

1149, 1153 (9th Cir. 2005), overruled on other grounds by United States v. Castillo,

496 F.3d 947, 957 (9th Cir. 2007) (en banc). A waiver will not be enforced, even if

it was knowing and voluntary, if the government breaches the plea agreement and thus

releases the defendant from his promise not to appeal. See United States v. Gonzalez,

16 F.3d 985, 990 (9th Cir. 1993).

      Here, there is no dispute regarding the language prong, only the knowing-and-

voluntary prong and the breach issue. A waiver is knowingly and voluntarily made

if the guilty plea as a whole was knowing and voluntary. Jeronimo, 398 F.3d at 1154.

A guilty plea is involuntary if a defendant is “induced by promises or threats which


                                          2
deprive [the plea] of the nature of a voluntary act.” Doe v. Woodford, 508 F.3d 563,

570 (9th Cir. 2007) (quoting Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986)). In

determining whether a waiver is knowing and voluntary, “we must ask ‘what the

defendant reasonably understood to be the terms of the agreement when he pleaded

guilty.’” United States v. Medina-Carrasco, No. 13-10397, 2015 WL 7740633, at *3

(9th Cir. Dec. 2, 2015) (quoting United States v. De la Fuente, 8 F.3d 1333, 1337 (9th

Cir. 1993)).   Similarly, in determining whether the government breached the

agreement, “courts look to what was reasonably understood by the defendant when

he entered his plea of guilty.” United States v. Kamer, 781 F.2d 1380, 1387 (9th Cir.

1986) (quoting United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).

      We review de novo whether a guilty plea was voluntary, United States v.

Forrester, 616 F.3d 929, 934 (9th Cir. 2010), and whether a defendant has waived his

appellate rights pursuant to a plea agreement, United States v. Lightfoot, 626 F.3d

1092, 1094 (9th Cir. 2010). The standard of review for breach of a plea agreement is

unclear, see United States v. Alcala-Sanchez, 666 F.3d 571, 575 (9th Cir. 2012), but

whether it is de novo or clear error, the outcome of this case is the same.

      Here, the record reflects that McAllister reasonably understood the terms of his

plea agreement when he pled guilty. That McAllister did not know at the time that he

pled guilty that the government would recommend special conditions did not render


                                           3
his plea involuntary. In the plea agreement, McAllister expressly acknowledged that

supervised release could be ordered, during which time he would be “subject to

certain restrictions and requirements.” He may not have known exactly what these

conditions would be, but given his history, he reasonably should have understood that

supervised release would likely include some conditions related to alcohol and to

domestic violence or sex offender treatment. Drug testing is a mandatory and

standard condition of supervised release, and therefore McAllister should have

reasonably understood that it, too, was a likely condition of supervised release. See

18 U.S.C. § 3583(d); cf. United States v. Napier, 463 F.3d 1040, 1043 (9th Cir. 2006)

(“[I]mposition of . . . mandatory and standard conditions is deemed to be implicit in

an oral sentence imposing supervised release.”).      In addition, he was warned

repeatedly at the change of plea hearing that the sentencing judge could deviate from

the parties’ recommendation and agreed to plead guilty knowing that neither party

could dictate what conditions of supervised release the judge would impose.

      As for McAllister’s breach-of-the-plea-agreement theory, the parties’ agreement

did not include any promises regarding special conditions of supervised release.

Consequently, there was no promise for the government to breach. United States v.

Kamer, cited by McAllister, is distinguishable from this case.         In Kamer, a

pre-Sentencing Guidelines case, we held that the court’s imposition of a term of


                                         4
probation breached a binding plea agreement when the plea agreement was silent as

to probation and the record showed that Kamer had a reasonable expectation of literal

compliance with the plea agreement. 781 F.2d at 1387. In contrast, here, the

agreement explicitly provided for supervised release and noted that certain conditions

would be imposed. To the extent McAllister interpreted the plea agreement’s failure

to identify specific conditions as a promise by the government not to seek the

conditions at issue, that interpretation had no reasonable basis.

      Since the guilty plea was knowing and voluntary and the government did not

breach the plea agreement, the waiver of appellate rights in the plea agreement is valid

and enforceable, and we dismiss this appeal without reaching the merits of the

remaining issues.

      DISMISSED.




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