                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 07 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10115

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00096-LKK-1

 v.
                                                 MEMORANDUM*
MARK C. ANDERSON,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                             Submitted May 12, 2015**
                              San Francisco, California

Before: THOMAS, Chief Judge and BENAVIDES,*** and OWENS, Circuit
Judges.




        *
             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 Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
      After pleading guilty to multiple counts involving embezzlement, tax fraud,

and arson, Mark Anderson (“Anderson”) appeals his guilty plea and sentence,

asserting ineffective assistance of counsel as his basis for challenging both the plea

agreement itself and the district court’s denial of his motion to withdraw his guilty

plea, and asserting error in the district court’s sentence.1 We AFFIRM.

      I. Background

      Anderson was indicted on March 15, 2007, and faced 19 charges of arson,

interstate transportation of fraudulently obtained property, mail fraud, using a

fictitious name in connection with a scheme to defraud, and tax evasion. Broadly, the

indictment alleged that Anderson, during his operation of a wine storage business,

embezzled wine held in storage on behalf of his clients, transporting the wine to

buyers across state lines, fraudulently executing this scheme using two aliases, and

failing to report the income from the embezzlement for tax purposes; the indictment

further alleged that Anderson’s scheme culminated in him setting fire to the storage

warehouse, which resulted in injury.

      The allegations underlying Anderson’s representation-related claims concern

his attorney Mark Reichel (“Reichel”), who was appointed as counsel by the court on

October 30, 2007. While incarcerated pending trial, Anderson filed three letters
      1
        Anderson initially appealed the district court’s imposition of restitution, but
he has since abandoned this argument.

                                           2
complaining of Reichel. However, Anderson stated he wished to proceed with Reichel

and, at a subsequent hearing on the letter-complaints, the courted found that Anderson

was receiving appropriate representation based on evidence including Reichel’s

activities and investigatory bills. After a brief interlude, Anderson again wrote several

more letters to the court complaining of inadequacies and inattentiveness in Reichel’s

representation. At a subsequent hearing on these complaints, the court reiterated its

previous finding about the adequacy of Reichel’s representation, but agreed with

Reichel’s suggestion to record attorney-client conversations and provide those

recordings to the court under seal. Within six weeks, the court held a final hearing in

which it found no merit to Anderson’s last two letter-complaints about Reichel.

      On November 16, 2009, Anderson pleaded guilty pursuant to a written plea

agreement which stipulated that the attributable loss “would not exceed $200 million,

thus increasing the offense level by 26.” At the plea colloquy, Anderson affirmed the

following: his sufficient discussion of the plea agreement with Reichel; the truth and

accuracy of the government’s recitation of the factual basis; and his understanding of

the sentencing implications, specifically including mandatory minimum sentences, of

the plea agreement.

      The initial presentence investigation report (“PSR”) recommended a sentence

of 280 years imprisonment but, in response to defense arguments, the final PSR

                                           3
reduced the recommended sentence to 30 years. Beginning after the issuance of the

first PSR, Anderson wrote several letters to the court indicating his desire to vacate

his guilty plea, and questioning the factual basis of his plea. At a status conference,

the court appointed Jan Karowsky (“Karowsky”) as additional counsel to advise

Anderson on his plea withdrawal since Reichel had recommended against the

withdrawal. Thereafter, the court relieved Reichel as Anderson’s counsel, and

Karowsky continued as counsel for Anderson.

      On March 29, 2011, Anderson filed a motion to withdraw his guilty plea, based

on ineffective assistance of counsel, which he supported with a declaration refuting

factual stipulations of the plea agreement and asserting his innocence of counts to

which he had previously pleaded guilty. After an evidentiary hearing, the district court

denied the motion, and noted many of Anderson’s allegations had been refuted by

testimony.

      On January 25, 2012, Anderson filed a sentencing memorandum, which the

government opposed by arguing that Anderson had breached the agreement. The

district court sentenced Anderson, inter alia, to serve 324 months in prison and to pay

restitution of $70.3 million. Anderson timely appealed.



      II. Ineffective Assistance of Counsel at Plea-Bargaining Stage

                                           4
      Though we normally refrain from considering claims of ineffective assistance

of trial counsel on direct appeal, “the record on appeal is sufficiently developed to

permit determination of the issue.” United States v. Jeronimo, 398 F.3d 1149, 1156

(9th Cir. 2005), overruled on other grounds by United States v. Castillo, 496 F.3d 947,

957 (9th Cir. 2007) (en banc). Since such claims present mixed questions of law and

fact, claims of ineffective assistance of counsel are reviewed de novo and “[t]o the

extent it is necessary to review findings of fact made in the district court, the clearly

erroneous standard applies.” Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002).

      Within the Strickland rubric, Anderson must make the bipartite showing of (1)

deficient performance of counsel, and (2) prejudice resulting from that deficient

performance. See United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). Anderson first asserts that

Reichel’s performance was deficient due to “a personal conflict with Mr. Anderson

that prevented him from acting as an advocate for Mr. Anderson.” This argument,

however, is unavailing because the conflict of which Anderson complains is not the

type of conflict which can independently support Anderson’s claim. See Plumlee v.

Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) (en banc) (noting that “in order to succeed

on a claim based on an alleged conflict, there must be a showing of an actual conflict,

namely that a defendant’s attorney is representing conflicting interests”). Beyond the

                                           5
lack of legal conflict, the factual bases for the alleged conflict are contradicted by the

findings of the district court, and Anderson fails to support a “definite and firm

conviction that a mistake has been committed.” Allen v. Woodford, 395 F.3d 979, 992

(9th Cir. 2004) (quoting United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000)).

Anderson also asserts that Reichel’s deficient performance is evidenced by an

“illusory plea agreement,” bereft of benefits in Anderson’s favor. However, the plea

agreement conveyed substantial benefits to Anderson in the joint recommendation by

the parties, the government’s recommendation of a reduction for acceptance of

responsibility and the lower end of the guidelines range. See, e.g., United States v.

Heredia, 768 F.3d 1220, 1231 (9th Cir. 2014) (noting that the defendant benefits from

a “united front” by all parties at sentencing).

      III. Withdrawal of Guilty Plea

      Anderson also asserts error in the district court’s decision to deny his motion

for withdrawal of a guilty plea, which we review for an abuse of discretion. United

States v. Briggs, 623 F.3d 724, 727 (9th Cir. 2010). Prior to sentencing, a district court

may permit withdrawal upon a showing of “a fair and just reason.” Fed. R. Crim. P.

11(d)(2)(B). Anderson attempted to make this showing by asserting ineffective

assistance of counsel, alleging that Reichel misrepresented both the finality of the

plea, and the likely sentence as less than 18 months. This argument is unavailing

                                            6
since, during the plea colloquy and prior to Anderson’s guilty plea, the district court

expressly clarified the pertinent sentencing considerations in a way which contradicted

the alleged misrepresentations by Reichel, noting both the mandatory minimum

sentence associated with one count as well as the final nature of the plea.

      IV. Breach of Plea Agreement

      Anderson asserts that the government breached the plea agreement by failing

to make recommendations consistent with the agreement’s terms. Where, as here, a

defendant fails to make a timely objection, we review the claim for plain error, United

States v. Gonzalez-Aguilar, 718 F.3d 1185, 1187 (9th Cir. 2013); plain-error relief is

available only “if there has been (1) error; (2) that was plain; (3) that affected

substantial rights; and (4) that seriously affected the fairness, integrity, or public

reputation of the judicial proceedings.” Id. Importantly, “[w]here a defendant has

breached a plea agreement, courts have found the government to be free from its

obligations.” United States v. Sandoval-Lopez, 122 F.3d 797, 800 (9th Cir. 1997).

      Under the terms of the plea agreement, the Government agreed to two

concessions: (1) to not oppose a two-level reduction in Anderson’s offense level based

on his acceptance of responsibility; and (2) to recommend the low end of the

applicable guidelines range, “as set forth in the stipulations” agreed to by the parties.

We find merit in the government’s position that Anderson’s filings after pleading

                                           7
guilty did not reflect acceptance of responsibility, and that Anderson’s sentencing

memorandum betrayed the agreed stipulations of the agreement.

      In the first instance, the government’s opposition to a reduction for acceptance

of responsibility was not error in light of Anderson’s numerous, post-plea filings

asserting his innocence or challenging the factual basis of the agreement. In light of

the district court’s finding after the evidentiary hearing that the majority of

Anderson’s withdrawal-related allegations had been refuted, Anderson’s post-plea

declaration is fairly characterized as obstructive behavior and a violation of the plea

agreement. See U.S.S.G. § 3C1.1. In the second instance, Anderson’s sentencing

memorandum argued for a 24-level increase in the base offense level, which was

directly at odds with the 26-level increase stipulated in the plea agreement. With

Anderson having thus violated the agreement’s terms, the government was not

obligated by those same terms, and we find no error in the government’s failure to

make a sentencing recommendation consistent with the plea agreement. Even

assuming the government’s inaction constituted a breach of the agreement, Anderson

has not made the requisite further showing that, absent the breach, a more lenient

sentence was “reasonably probable,” rather than merely “possible.” Gonzalez-Aguilar,

718 F.3d at 1189.

      V. Reasonableness of Sentence

                                          8
      Anderson also challenges the reasonableness of the district court’s sentence,

broadly arguing that the court failed to properly apply the factors under 18 U.S.C. §

3553(a). We review sentencing decisions for an abuse of discretion, and consider the

totality of the circumstances in evaluating the substantive reasonableness of a

sentence. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The

district court sentenced Anderson within the guidelines range and, contrary to

Anderson’s arguments, the record reflects that the court’s determination was

supported by its express consideration of the § 3553(a) factors. We therefore find no

abuse of discretion in the district court’s sentence.

      AFFIRMED.




                                           9
