                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 11 2012

                                                                        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. 12-30087

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00053-TMB-4

  v.
                                                 MEMORANDUM *
RAND HOOKS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Alaska
                   Timothy M. Burgess, District Judge, Presiding

                           Submitted December 7, 2012 **
                               Seattle, Washington

Before: TALLMAN and WATFORD, Circuit Judges, and FITZGERALD, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Michael W. Fitzgerald, United States District Judge
for the Central District of California, sitting by designation.
      Alaska state prisoner Rand Hooks (“Hooks”) appeals the district court’s

denial of Hooks’s motion to withdraw his guilty plea. Hooks contends that the

government breached the terms of his plea agreement and argues that the district

court abused its discretion in denying Hooks’s motion to withdraw his plea after he

identified this alleged breach. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm the district court’s denial of the motion.

      The government did not breach the terms of the plea agreement by either

eliciting testimony from a witness during sentencing proceedings or providing

information to the probation officer for use in the presentence report. This

testimony and information were provided in direct response to the district court’s

desire for clarification regarding Hooks’s role in the conspiracy and were not

offered to influence the court to impose a harsher sentence than the probationary

term recommended in the plea agreement. See United States v. Mondragon, 228

F.3d 978, 979 (9th Cir. 2000).

      The existence of a plea agreement does not “ba[r], erod[e] or impai[r]” the

government’s obligation to “honestly answe[r] the district court’s questions.”

United States v. Maldonado, 215 F.3d 1046, 1052 (9th Cir. 2000). The plea

agreement also did not prohibit the government from providing factual information

regarding the offense to the probation office. See United States v. Read, 778 F.2d


                                           2
1437, 1441 (9th Cir. 1986). The government’s obligations under the plea

agreement did “not preclude [it] from answering the district court truthfully and

then performing as promised under the plea agreement, namely to recommend that

the district court, in its discretion, sentence [the defendant] in accordance with the

promised figure.” United States v. Manzo, 675 F.3d 1204, 1211–12 (9th Cir.

2012).

         Throughout the pendency of the plea agreement, the government advocated

for a probationary sentence. The government repeatedly argued that a probationary

sentence should be imposed in its sentencing memorandum, in a letter to the

probation officer, and in statements made to the district court. Accordingly, we are

satisfied that the government complied with the terms of the plea agreement and

fulfilled its obligations to the defendant by recommending a sentence of probation.

See United States v. Benchimol, 471 U.S. 453, 455 (1985).

         Nor did the government’s conduct effectuate a breach of the plea agreement.

The district court did not abuse its discretion when it rejected that alleged breach as

constituting a “fair and just reason” supporting Hooks’s motion to withdraw his

guilty plea under Fed. R. Crim. P. 11(d)(2)(b).

         AFFIRMED.




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