                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 11-30176
            Plaintiff-Appellee,
                                            D.C. No.
              v.                         2:10-cr-00324-
                                             RAJ-1
VICTOR M. GONZALEZ
VAZQUEZ,
         Defendant-Appellant.              OPINION


      Appeal from the United States District Court
        for the Western District of Washington
       Richard A. Jones, District Judge, Presiding

                 Argued and Submitted
          July 13, 2012—Seattle, Washington

                   Filed June 18, 2013

   Before: Mary M. Schroeder, Andrew J. Kleinfeld,
       and Milan D. Smith, Jr., Circuit Judges.

              Opinion by Judge Kleinfeld
2          UNITED STATES V. GONZALEZ VAZQUEZ

                           SUMMARY*


                          Criminal Law

    The panel affirmed a jury conviction and vacated a
sentence for possession with intent to distribute
methamphetamine, in a case in which the defendant argued
that the district court should have ordered the government to
comply with a plea agreement for safety-valve or minor-
participant sentencing and should not have assigned a
criminal history point to his prior Washington state
conviction for driving with a suspended license.

    The panel held that the record supports the district court’s
finding that no agreement was made, and concluded that there
is no evidence of any promise upon which the defendant
relied to his detriment.

    The panel held that the district court erred in treating the
defendant’s suspended sentence for the prior conviction as a
“sentence of probation of more than one year” under U.S.S.G.
§ 4A1.2(c)(1)(A), where the conditions of the defendant’s
suspended incarceration did not limit or require any conduct
beyond that of a law abiding individual.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             UNITED STATES V. GONZALEZ VAZQUEZ           3

                              COUNSEL

Sharon J. Blackford, Sharon Blackford PLLC, Seattle,
Washington, for Defendant-Appellant.

Andrew C. Friedman, Assistant United States Attorney,
Seattle, Washington, for Plaintiff-Appellee.


                               OPINION

KLEINFELD, Senior Circuit Judge:

    We address enforcement of a plea bargain and the effect
of a prior Washington sentence under the federal sentencing
guidelines.

                                  Facts

    Gonzalez Vazquez was found guilty by a jury of
possession with intent to distribute methamphetamine,1 and
sentenced to 144 months imprisonment. He argues that the
court should have ordered the government to comply with a
plea agreement for safety valve or minor participant
sentencing, and that his guidelines calculation should not
have been adjusted upward for a 2008 conviction for driving
with a suspended license.

    Gonzalez Vazquez was pulled over for a routine driving
stop in September 2010, but could not produce his
registration and proof of insurance, and his license was


 1
     21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii).
4           UNITED STATES V. GONZALEZ VAZQUEZ

suspended. He was arrested, and his van was impounded.
After his own remarks and a dog sniff suggested drugs, the
police got a search warrant and found a bag of
methamphetamine and a drug ledger. His fingerprints were
found on both.

    Before trial, Gonzalez Vazquez’s attorney and the
prosecutor exchanged numerous emails over a period of
several months about a possible plea agreement. In
November 2010, the prosecutor offered an agreement,
“approved by my higher ups.” If executed, the plea
agreement would have provided Gonzalez Vazquez with a
shorter sentence than that which he ultimately received,
although it would have also required him to plead guilty to
certain charges which, ultimately, he was not convicted of.
This proposal was never agreed to. On December 28, the
prosecutor described two other possible plea options, but
wrote “I caution however that I would still need to clear this
with my chain of command.” The central focus of the
negotiations was the possibility of “safety valve” relief to
avoid a statutory mandatory minimum sentence.2 The

    2
    18 U.S.C. § 3553(f) (“[I]n the case of an offense under [21 U.S.C.
§ 841], the court shall impose a sentence pursuant to [the sentencing]
guidelines . . . without regard to any statutory minimum sentence, if the
court finds at sentencing, after the Government has been afforded the
opportunity to make a recommendation, that– (1) the defendant does not
have more than 1 criminal history point, as determined under the
sentencing guidelines; (2) the defendant did not use violence or credible
threats of violence or possess a firearm or other dangerous weapon (or
induce another participant to do so) in connection with the offense; (3) the
offense did not result in death or serious bodily injury to any person; (4)
the defendant was not an organizer, leader, manager, or supervisor of
others in the offense, as determined under the sentencing guidelines and
was not engaged in a continuing criminal enterprise . . . ; and (5) not later
than the time of the sentencing hearing, the defendant has truthfully
           UNITED STATES V. GONZALEZ VAZQUEZ                           5

prosecutor made clear that he did not yet have supervisory
approval of any deal. Eligibility for the “safety valve” would
depend on the “proffer interview.” The interview, in March
2011, went badly. Gonzalez Vazquez was asked how he
happened to have a backpack in the van he was driving
containing ammunition and almost a pound of
methamphetamine. He said a man he met at a party had told
him he could drive the van, it was not his backpack, and he
was merely an innocent victim of circumstance. The
prosecutor and the Immigration and Customs Enforcement
agent told Gonzalez Vazquez they did not believe the man
would leave $20,000 worth of methamphetamine in a van in
a parking lot and let Gonzalez Vazquez drive it even after he
had told the man his license was suspended. After the proffer
interview, the prosecutor offered a less favorable deal, but
Gonzalez Vazquez never agreed to it. The district court made
a finding of fact that “it’s abundantly clear that the parties
never reached any final understanding of the terms or
conditions of the negotiations.”

    At sentencing, the district court increased Gonzalez
Vazquez’s criminal history score by one point, which had the
effect of raising him to a higher criminal history category. A
criminal history score of 0-1 points would have put him in
Criminal History Category I. A score of 2 points raised him
up to Criminal History Category II. He has one point that no
one disputes for a 2008 methamphetamine possession


provided to the Government all information and evidence the defendant
has concerning the offense or offenses that were part of the same course
of conduct or of a common scheme or plan, but the fact that the defendant
has no relevant or useful other information to provide or that the
Government is already aware of the information shall not preclude a
determination by the court that the defendant has complied with this
requirement.”).
6               UNITED STATES V. GONZALEZ VAZQUEZ

conviction. The conviction at issue was for driving while his
license was suspended. The judgment is not in the record.
All the district court had was the statement in the presentence
report that he had been convicted in Everett, Washington
Municipal Court for driving while license suspended, had
pleaded guilty, and that his May 2008 sentence was as
follows:

             90 days custody imposed with 84 days
             suspended for 24 months; $873 fine; no
             similar violations; no driving without license
             and insurance.

As we explain below, the guidelines generally do not count
sentences for driving with a suspended license, and various
other minor offenses, unless the sentence was probation for
more than a year or imprisonment of at least 30 days.
Gonzalez Vazquez argues that the 2008 suspended sentence
should not have been counted.

                                   Analysis

I. The plea agreement.

    We begin with the district court’s finding of fact, that no
agreement was made. “[I]t’s abundantly clear that the parties
never reached any final understanding of the terms or
conditions . . . .” We review findings of fact in sentencing for
clear error.3 The record amply supports the finding.

   “Even if the agreement has not been finalized by the
court, ‘[a] defendant’s detrimental reliance on a prosecutorial

    3
        United States v. Jennings, 711 F.3d 1144, 1146 (9th Cir. 2013).
             UNITED STATES V. GONZALEZ VAZQUEZ                       7

promise in plea bargaining could make a plea agreement
binding.’”4 The defense theory in this case is that Gonzalez
Vazquez subjected himself to the proffer interview in reliance
on the prosecutor’s promise that even if the proffer was not
believed the government would argue for a sentence within
a 63–to–78 month range, in exchange for guilty pleas to
methamphetamine, ammunition, and immigration crimes and
an agreement that Gonzalez Vazquez would not ask the court
for safety valve relief. But the prosecutor expressly
“caution[ed] that I would still need to clear this with my chain
of command.”

    We can find nothing in the record to suggest that the
prosecutor’s supervisors ever approved this possible deal.
Instead, the emails show continuing negotiations about
varying possible deals over the next few months. There is not
evidence of any promise (as opposed to a unilateral hope)
upon which Gonzalez Vazquez relied to his detriment.

II. The sentence.

    The more difficult question in this case is the additional
point added to Gonzalez Vazquez’s criminal history
computation because of his driving with a suspended license
conviction. The sentencing matrix under the guidelines uses
the horizontal axis for criminal history, the vertical axis for
the seriousness of the offense.5 Two points generate a one-




 4
  United States v. Savage, 978 F.2d 1136, 1138 (9th Cir. 1992) (quoting
McKenzie v. Risley, 801 F.2d 1519, 1527 (9th Cir.1986)).
 5
     See U.S.S.G. Chap. 5, Part A, Sentencing Table.
8               UNITED STATES V. GONZALEZ VAZQUEZ

level increase in criminal history.6 That has a substantial
impact on the sentencing range, raising it in this case from
188–235 months to 210–262 months. The general philosophy
of the guidelines regarding criminal history is that a
defendant with a record of prior criminal conduct is more
culpable, more likely to commit further crimes, less likely to
be rehabilitated, and that general deterrence requires harsher
sentences for recidivists.7 But quite a few misdemeanors and
petty offenses can, in some circumstances, be excluded from
this calculation. In particular, sentences for driving with a
suspended license are counted, where the federal conviction
is dissimilar as it is here, only if “the sentence was a term of
probation of more than one year or a term of imprisonment of
at least thirty days.”8

    Gonzalez Vazquez argues that the district court ought not
to have added a point for this prior offense, because he was
sentenced neither to a term of probation nor to imprisonment
for at least thirty days. The district court accepted the view
of the probation officer and the prosecution that his sentence
amounted to probation, generating the point. We review
interpretation of the guidelines and inclusion of a prior
conviction for criminal history purposes de novo.9

    To the extent we know what Gonzalez Vazquez’s
sentence was (the record includes only the quotation or

    6
        Id.
    7
        U.S.S.G. Chap. 4, Part A, Introductory Commentary.
    8
        U.S.S.G. § 4A1.2(c)(1)(A) (2010).
 9
   United States v. Lichtenberg, 631 F.3d 1021, 1024 (9th Cir. 2011);
United States v. Laurienti, 611 F.3d 530, 551 (9th Cir. 2010).
             UNITED STATES V. GONZALEZ VAZQUEZ                9

paraphrase in the presentence report, not the Washington
municipal court judgment), it did not include the word
“probation.” The judge did not say he was imposing any sort
of probation. The government does not argue to the contrary.
Instead, it argues that Gonzalez Vazquez’s suspended
sentence ought to be treated as a sentence of probation.

    Probation often includes conditions such as regular
reporting to the probation officer, not leaving the jurisdiction
without permission from the probation officer, refraining
from alcohol, and other restraints designed to regulate the
individual’s conduct more narrowly than the conduct of
persons not convicted of the crime. For example, the
standard conditions of probation in federal cases include “the
defendant shall not leave the judicial district or other
specified geographic area without the permission of the court
or probation officer,”10 “the defendant shall work regularly at
a lawful occupation unless excused by the probation officer
for schooling, training, or other acceptable reasons,”11 and
“the defendant shall not associate with any persons engaged
in criminal activity, and shall not associate with any person
convicted of a felony unless granted permission to do so by
the probation officer,”12 in addition to whatever special
conditions the district judge imposes. Law abiding people
generally may travel where they want, need not report to any
government official when they do, may drink appropriately,
and in general may do or not do what they like within the law.
Probationers often lose these liberties. Washington, like


 10
      U.S.S.G. § 5B1.3(c)(1).
 11
      U.S.S.G. § 5B1.3(c)(5).
 12
      U.S.S.G. § 5B1.3(c)(9).
10          UNITED STATES V. GONZALEZ VAZQUEZ

other states and the federal government, hires professional
probation officers to perform continuing supervision of
offenders who are not incarcerated.13

    Gonzalez Vazquez was not subject to those sorts of
conditions. The conditions of his suspended 84 days of
incarceration were merely that he commit “no similar
violations; no driving without license and insurance.” Those
conditions did not restrain his conduct any more than anyone
else’s. No one, not even the policeman who stopped him or
the judge who sentenced him, or us, may drive in Washington
on a suspended license, or without a driver’s license, or
without insurance.14 The significance of the conditions
placed on Gonzalez Vazquez was that he was subject to a
recidivism penalty of another 84 days of incarceration if he
committed these illegal acts within two years, in addition to
whatever sentence he might receive for the subsequent


  13
     See, e.g., Wash. Rev. Code § 72.04A.050 (“The powers and duties of
the state board of prison terms and paroles, relating to . . . the supervision
of persons placed on probation by the courts . . . are transferred to the
secretary of corrections.”); id. at § 72.09.050 (“The secretary may employ
persons to aid in performing the functions and duties of the department [of
corrections].”); id. at § 36.01.070 (authorizing counties to “engage in
probation and parole services and employ personnel therefor under such
terms and conditions as any such county shall so determine”).
  14
     Wash. Rev. Code § 46.20.342(1) (“It is unlawful for any person to
drive a motor vehicle in this state while that person is in a suspended or
revoked status or when his or her privilege to drive is suspended or
revoked in this or any other state.”); id. at § 46.20.005 (“[I]t is a
misdemeanor for a person to drive any motor vehicle upon a highway in
this state without a valid driver’s license issued to Washington residents
under this chapter.”); id. at § 46.30.020(1)(a) (“No person may operate a
motor vehicle . . . in this state unless the person is insured under a motor
vehicle liability policy . . . .”).
             UNITED STATES V. GONZALEZ VAZQUEZ                 11

offense. His conditions did not in the slightest limit or
require any conduct beyond that of a law abiding individual.
All they affected was the subsequent penalty for subsequent
misconduct that would have been misconduct for anyone.

    The sentence Gonzalez Vazquez received, to the extent
we know from the record what it was, did not include
probation. Nor did his sentence deprive him of any liberties
at all that probationers often lose. He remained as free to do
as he chose, within the confines of the law, as a man who had
never been convicted of anything.

    The government’s argument for counting a point against
Gonzalez Vazquez requires two steps, first that we interpret
his Washington sentence as implying that he was on
probation, and second, that unsupervised probation with no
restraints beyond what the law imposes on everyone be
counted as “probation of more than one year” for purposes of
the sentencing guideline exception for counting misdemeanor
sentences as criminal history points.

    Neither party has cited, and we have not found, a
Washington Supreme Court or Washington Court of Appeals
decision holding one way or the other on whether a
suspended sentence of the sort Gonzalez Vazquez received
amounts to probation. The sentence says “suspended” and
does not say “probation.” We have carefully examined the
Washington statutes, without finding a clear answer.
Washington has what it calls the “Probation Act,” enabling its
courts to grant or deny probation and impose conditions in
their discretion.15 And in a separate provision, Washington
has what it calls the “Suspended Sentence Act,” enabling

 15
      See Probation Act, Wash. Rev. Code. § 9.95.200 et seq.
12           UNITED STATES V. GONZALEZ VAZQUEZ

courts to suspend sentences and in their discretion assign
probation officers to supervise convicted defendants.16
Washington has held that the Suspended Sentence Act and
the Probation Act are distinct, that the Probation Act did not
repeal by implication the Suspended Sentence Act, and that
where a court suspended a sentence even with conditions but
did not mention probation, the suspended sentence
established “absolutely nothing indicating that the court was
using the Probation Act in suspending the appellant’s
sentence.”17 Subsequent cases leave room for argument on
whether a suspended sentence may imply probation, but
whatever argument there may be has not, so far as we can
find, been resolved by any Washington Supreme Court or
Washington Court of Appeals decision.

     Thus we do not know with certainty whether Gonzalez
Vazquez was, by implication from his suspended sentence,
sentenced to probation for his prior “driving while license
suspended” conviction. We could avoid the issue, perhaps,
if federal law established clearly that unsupervised probation
with no restraints beyond what the law imposes on everyone
amounts to a “term of probation” under the sentencing
guidelines, but it does not. We have no circuit law directly on
point. The other circuits are divided,18 but the circuit


 16
      See Suspended Sentence Act, Wash. Rev. Code. § 9.92.060 et seq.
 17
      State v. Davis, 355 P.2d 344, 348 (Wash. 1960).
   18
      Compare Harris v. United States, 204 F.3d 681 (6th Cir. 2000)
(holding that an Ohio sentence suspended “provided no convictions” is
“probation” under the guidelines), and United States v. Binford, 108 F.3d
723 (7th Cir. 1997) (holding that an Illinois sentence of court supervision
is “probation” under the guidelines), and United States v. Lloyd, 43 F.3d
1183 (8th Cir. 1994) (holding that an Illinois sentence of conditional
              UNITED STATES V. GONZALEZ VAZQUEZ                       13

addressing a state statute most similar to Washington’s holds
that a stay of imposition of sentence without any supervision
or conditions beyond compliance with the law does not
amount to “probation” under the guidelines.19

    We held in United States v. Gonzales20 that an entirely
suspended sentence is not a “term of imprisonment” under the
guidelines, because that term applies only to sentences “for
which the defendant actually served a period of
imprisonment.”21 We did not have occasion to address in
Gonzales whether a Washington sentence for this offense
suspended for more than one year ought to be treated as a
sentence of probation for more than one year. We held in
United States v. McCrudden22 that unsupervised probation
counts as probation,23 but we have not held that a Washington
suspended sentence should or should not be treated as a
sentence of probation.

    It is not clear from the Washington statute whether a court
that suspends all or part of a sentence merely may, or must,


discharge is “probation” under the guidelines), and United States v.
Caputo, 978 F.2d 972 (7th Cir. 1992) (same), with United States v.
Johnson, 43 F.3d 1211 (8th Cir. 1995) (holding that a Minnesota stay of
imposition of sentence without a term of probation is not “probation”
under the guidelines).
 19
      Johnson, 43 F.3d 1211.
 20
      United States v. Gonzales, 506 F.3d 940 (9th Cir. 2007) (en banc).
 21
      Id. at 942.
 22
      United States v. McCrudden, 894 F.2d 338 (9th Cir. 1990).
 23
      Id. at 339.
14          UNITED STATES V. GONZALEZ VAZQUEZ

direct any supervision of misdemeanants. The statute
authorizes municipal courts to “impose sentence by
suspending all or a portion of the defendant’s sentence or by
deferring the sentence of the defendant and may place the
defendant on probation . . . .”24 The statute may someday be
read by the Washington courts to imply that probation must
be imposed if all or any portion of a sentence is suspended, or
to imply the opposite. Neither construction has yet been
made.

    Because Gonzalez Vazquez’s Washington “driving while
license suspended” sentence did not expressly impose any
probation, and Washington law does not establish that a
suspended sentence implies probation, the better inference is
that Gonzalez Vazquez was not sentenced to probation. The
guidelines require that his driving with suspended license
conviction not be counted. We therefore conclude that he



  24
     Wash. Rev. Code § 3.50.320. Other Washington statutes relating to
municipal court sentencing are similarly ambiguous. Section 3.50.330,
provides that “[f]or . . . two years after imposition of sentence . . . the
court shall have continuing jurisdiction and authority to suspend or defer
the execution of all or any part of the sentence upon stated term, including
installment payment of fines. A defendant who has been sentenced, or
whose sentence has been deferred, and who then fails to appear for any
hearing to address the defendant’s compliance with the terms of probation
when ordered to do so by the court, shall have the term of probation tolled
until such time as the defendant makes his or her presence known to the
court on the record.” Section 35.20.255 provides that “[j]udges of the
municipal court, in their discretion, shall have the power in all criminal
proceedings within their jurisdiction including violations of city
ordinances, to defer imposition of any sentence, suspend all or part of any
sentence including installment payment of fines, fix the terms of any such
deferral or suspension, and provide for such probation as in their opinion
is reasonable and necessary under the circumstances of the case . . . .”
        UNITED STATES V. GONZALEZ VAZQUEZ         15

should not have received an additional point for that
conviction and sentence.

   CONVICTION AFFIRMED; SENTENCE VACATED
and REMANDED.
