                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 21 2014

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 13-10256

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00430-PMP-
                                                 GWF-1
  v.

ANN HILTON, AKA Ann Onion,                       MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                   Philip M. Pro, Senior District Judge, Presiding

                        Argued and Submitted April 9, 2014
                            San Francisco, California

Before: KLEINFELD, NGUYEN, and WATFORD, Circuit Judges.

       The district court correctly held that the government did not breach Ann

Hilton’s plea agreement. Whether we review the district court’s ruling de novo or

for clear error, we agree that the government did not explicitly or implicitly breach

a term of her plea agreement, which distinguishes this case from the cases on



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                           Page 2 of 2
which Hilton relies. See United States v. Whitney, 673 F.3d 965, 970–71 (9th Cir.

2012); United States v. Johnson, 187 F.3d 1129, 1134–35 (9th Cir. 1999).

      The explicit terms of the agreement authorized both parties to “provide

additional information to the . . . Court regarding the nature, scope, and extent of

the defendant’s criminal conduct and any aggravating or mitigating facts or

circumstances.” The agreement further stated that “[g]ood faith efforts to provide

truthful information” to the court would not be grounds for Hilton to withdraw her

plea. No term of the agreement prohibited the government from relying on facts

not mentioned in the plea agreement as a basis for opposing Hilton’s request for a

downward departure. There was thus no explicit breach.

      The government did not implicitly breach the plea agreement either. The

prosecutor continued to recommend a 21-month sentence, as the government had

promised, and he said nothing at sentencing to undercut that recommendation. The

government’s sentencing memorandum and arguments before the district court

were a “fair response” to Hilton’s request for a below-Guidelines sentence. See

United States v. Moschella, 727 F.3d 888, 892 (9th Cir. 2013). Hilton bargained

for the government’s promise to recommend a 21-month sentence, and the

government didn’t explicitly or implicitly breach that promise.

      AFFIRMED.
