                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 26 2010

                                                                        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. 08-30467

               Plaintiff - Appellee,             D.C. No. 6:07-CR-60033-MRH

   v.
                                                 MEMORANDUM *
 MATTHEW HARWAY,

               Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Oregon
                            Michael R. Hogan, Presiding

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Matthew Harway appeals from the 151-month sentence imposed following

his guilty-plea conviction for possession with intent to distribute 50 grams of

heroin, in violation of 21 U.S.C § 841(a)(1), and (b)(1)(C). We have jurisdiction

          *
             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).

AK/Research
pursuant to 28 U.S.C. § 1291, and we affirm.

       Harway contends that the government’s sentencing recommendation

constituted a breach of the plea agreement, thereby entitling him to specific

performance of the plea agreement. The government’s recommendation for a

sentence at the low-end of the applicable advisory Guidelines range following

application of the career offender adjustment did not contradict the plain language

of the plea agreement. The district court did not err in concluding that there was

no breach of the plea agreement. See United States v. Franco-Lopez, 312 F.3d

984, 989 (9th Cir. 2002) (holding that when construing a plea agreement, this court

must determine what the defendant reasonably believed to be the terms of the plea

agreement at the time of the plea).

       AFFIRMED.




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