                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 19 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30062

              Plaintiff - Appellee,              D.C. No. 9:13-cr-00037-DWM-1

       v.
                                                 MEMORANDUM*
JORDAN LINN GRAHAM,

              Defendant - Appellant.

UNITED STATES OF AMERICA,                        No. 15-30079

              Plaintiff - Appellee,              D.C. No. 9:13-cr-00037-DWH-1

       v.

JORDAN LINN GRAHAM,

              Defendant - Appellant.

                  Appeal from the United States District Court
                          for the District of Montana
                Donald W. Molloy, Senior District Judge, Presiding

                     Argued and Submitted November 3, 2015
                                Portland, Oregon



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FISHER, BERZON and WATFORD, Circuit Judges.

      Jordan Graham appeals her conviction and sentence following her guilty

plea to second-degree murder. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      1. The government did not breach the plea agreement by arguing

premeditation at sentencing, because the agreement contained no provision,

express or implied, limiting such arguments. The government satisfied its

obligations under the plea agreement when it dismissed the first-degree murder

charge and the false statement charge in exchange for Graham’s plea to second-

degree murder. See United States v. Ellis, 641 F.3d 411, 417-18 (9th Cir. 2011).

      2. The district court properly exercised its discretion in determining there

was no “fair and just reason” to permit Graham to withdraw her plea under Federal

Rule of Criminal Procedure 11(d)(2)(B). See United States v. Briggs, 623 F.3d

724, 727-28 (9th Cir. 2010). It did not deny her motion solely because her plea

was knowing and voluntary. See United States v. Ortega-Ascanio, 376 F.3d 879,

884-85 (9th Cir. 2004). Rather, the court correctly considered “all of the factors

and the facts,” including not only voluntariness but also the adequacy of counsel,

Graham’s subjective understanding of the agreement, the adequacy of the Rule 11




                                          2
colloquy, whether there was newly discovered evidence and whether there was

intervening precedent from a higher court.

      3. Although Graham’s guilty plea does not foreclose her appeal of the

district court’s denial of her motion to dismiss the indictment for vindictive

prosecution, see United States v. Garcia-Valenzuela, 232 F.3d 1003, 1005-06 (9th

Cir. 2000), the court properly denied the motion, see United States v. Kent, 649

F.3d 906, 912-14 (9th Cir. 2011). There is no presumption of vindictiveness in the

pretrial setting, see United States v. Goodwin, 457 U.S. 368, 381-82 (1982), and

Graham’s allegations did not establish a prima facie case of actual vindictiveness,

see Nunes v. Ramirez-Palmer, 485 F.3d 432, 441 (9th Cir. 2007).

      4. Graham’s appeal of the denial of her motion to inspect the grand jury

transcript is foreclosed by her guilty plea. See Tollett v. Henderson, 411 U.S. 258,

267 (1973). Because the motion does not attack the court’s power to try Graham

and requests further proceedings, it does not fall within the exception for claims

alleging on the face of the record that the court had no power to enter the

conviction or impose the sentence. See United States v. Broce, 488 U.S. 563, 575-

76 (1989).

      Even if the claim were not barred, the court did not abuse its discretion in

denying the motion. See United States v. Plummer, 941 F.2d 799, 806 (9th Cir.


                                           3
1991). Graham has not shown a particularized or compelling need for the

transcripts sufficient to outweigh the policy of grand jury secrecy, and it was

insufficient for her to assert she had “no way of knowing whether prosecutorial

misconduct occurred.” United States v. DeTar, 832 F.2d 1110, 1113 (9th Cir.

1987).

      5. Graham’s guilty plea forecloses her appeal from the denial of her motion

under Federal Rule of Criminal Procedure 29, and we need not reach the merits of

that claim. See Tollett, 411 U.S. at 267.

      6. The district court properly determined Graham’s fabrication of an email

justified imposing a two-level enhancement for obstruction of justice under the

Sentencing Guidelines. See U.S.S.G. § 3C1.1 cmt. n.4(C). Therefore, we need not

consider whether Graham’s false statements to law enforcement separately

justified the enhancement. See United States v. Hernandez-Valenzuela, 932 F.2d

803, 805 (9th Cir. 1991).

      7. The district court properly denied Graham’s request for a two-level

downward adjustment for acceptance of responsibility. The court’s factual

determination as to whether a defendant accepted responsibility “is entitled to great

deference on review,” U.S.S.G. § 3E1.1 cmt. n.5, and when reviewing under a

clear error standard, we may not reverse absent a definite and firm conviction the


                                            4
district court made a mistake, see United States v. Dann, 652 F.3d 1160, 1176 (9th

Cir. 2011). The district court’s factual determinations here were reasonable.

Graham lied repeatedly to law enforcement and, even after confessing she pushed

Johnson off the ledge, told friends she had been exonerated by multiple polygraph

tests.

         8. The district court did not abuse its discretion in denying Graham’s

motion to supplement the record. See Ashcroft v. Paper Mate Mfg. Co., 434 F.2d

910, 915-16 (9th Cir. 1970). “The district court may not use Federal Rule of

Appellate Procedure 10(e) to supplement the record with material not introduced or

with findings not made.” United States v. Garcia, 997 F.2d 1273, 1278 (9th Cir.

1993). The suggested jury instructions Graham sought to introduce were never

entered in the district court record.

         AFFIRMED.

         Appellant’s two opposed motions to supplement the record, filed

October 22, 2014 and March 4, 2015, are DENIED.




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