                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 27 2010

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-30055

              Plaintiff - Appellee,              D.C. No. 3:06-CR-00357-BR-1

  v.
                                                 MEMORANDUM*
ROBERT LEE WINGFIELD,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                             Submitted July 7, 2010**
                             San Francisco, California

Before: HUG, SKOPIL and BEEZER, Circuit Judges.

       Defendant-appellant Robert Wingfield (“Wingfield”) appeals from a final

judgment convicting him of one count of bank robbery, in violation of 18 U.S.C.

§ 2113(a), and one count of possession of a destructive device, in violation of 26


        *
             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).
U.S.C. § 5861(d). Wingfield pleaded guilty to the crimes with a plea agreement,

and the district court sentenced him to 108 months imprisonment, 22 months less

than the low end of the applicable guidelines range. Wingfield argues on appeal

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

court abused its discretion by applying a particular sentence enhancement.

      We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291, and we

affirm.

      The facts of this case are known to the parties. We do not repeat them.

                                          I

      Our “standard of review for a district court’s determination concerning an

alleged breach of a plea agreement [is] ‘inconsistent.’” United States v.

Franco-Lopez, 312 F.3d 984, 988 (9th Cir. 2002). We have reviewed such

determinations under both a de novo standard and the more deferential clearly

erroneous standard. Id. (citations omitted).

      We review “the district court’s application of the Sentencing Guidelines to

the facts of [a] case for abuse of discretion.” United States v. Stoterau, 524 F.3d

988, 997 (9th Cir. 2008).




                                          2
                                         II

      Regardless of the standard of review that we apply, the district court

properly concluded that the government has complied with the terms of the plea

agreement.

      “Plea agreements . . . are measured by contract law standards.”

Franco-Lopez, 312 F.3d at 989. Courts construe ambiguities in the plea agreement

against the government and will use the defendant’s reasonable beliefs at the time

of pleading to construe the agreement. Id.

      Here, the plea agreement states: “The government will take no position on

the applicability of the § 2K2.1(b)(6) enhancement, but defendant understands that

the government is obliged to fully apprise the court of all relevant facts.” The

government subsequently stated in its sentencing memoranda that “the Court must

impose either the [§ 2K2.1(b)(6) enhancement] or alternatively the two-level multi-

count adjustment under USSG § 3D1.4, but not both.”

      In so doing, the government complied with the terms of the plea agreement.

The government’s sentencing memoranda expressly explained that it was taking no

position on whether § 2K2.1(b)(6) applied, and the government clearly stated that

it recommended the exact same sentence regardless of whether the court applied

§ 2K2.1(b)(6). The sentence that Wingfield objects to is simply the government’s


                                          3
clarification of the sentencing framework, depending on whether the district court

applied or refused to apply the enhancement. Wingfield could not reasonably have

believed that the plea agreement prohibited the government from mentioning

§ 2K2.1(b)(6) in this fashion. See Franco-Lopez, 312 F.3d at 989.

                                        III

      Wingfield also argues that the district court abused its discretion by applying

a sentence enhancement for obstruction of justice pursuant to USSG § 3C1.2.1

This argument is unconvincing. The district court acted well within its discretion

in concluding that a “substantial cause” for Wingfield’s evading the police was to

avoid detection for the convicted crimes. United States v. Duran, 37 F.3d 557, 560

(9th Cir. 1994).

      AFFIRMED.




      1
       The government argues that Wingfield waived appeal of this issue
according to the terms of the plea agreement. We disagree. The plea agreement
expressly reserves Wingfield’s right to appeal “on grounds of reasonableness of the
sentence.” If, as Wingfield argues, the district court had applied the enhancement
without any factual support, the sentence would be presumptively unreasonable.

                                         4
