United States v. Jay Crisolo , 620 F. App'x 601 ( 2015 )

FILED
NOT FOR PUBLICATION OCT 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10248
Plaintiff - Appellee, D.C. No. 1:08-cr-00497-SOM-2
v.
MEMORANDUM*
JAY K. CRISOLO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Submitted October 15, 2015**
Honolulu, Hawaii
Before: O’SCANNLAIN, TALLMAN, and M. SMITH, Circuit Judges.
Jay Crisolo appeals the sentence imposed after he pled guilty to one count
of conspiracy to possess with intent to distribute methamphetamine (21 U.S.C.
§ 846), three counts of distribution of methamphetamine (21 U.S.C. §§ 841(a)(1)
*
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).
and 841(b)(1)(A), (B)), one count of being a felon in possession of a firearm (18
U.S.C. §§ 922(g)(1) and 924(a)(2)), and four counts of use of a telephone to
facilitate a conspiracy to distribute methamphetamine (21 U.S.C. § 843(b)). On
appeal, Crisolo argues that although he pled guilty without a written plea
agreement, the government breached the terms of an oral agreement by failing to
move for a downward departure under 18 U.S.C. § 3553(e) in exchange for
Crisolo’s substantial assistance.
In general, a claim that the government breached a plea agreement “cannot
be raised for the first time on appeal.” United States v. Maldonado, 215 F.3d 1046,
1051 (9th Cir. 2000). Crisolo did not argue before the district court that there
existed a binding oral agreement, let alone that the government breached such an
agreement. He thus failed to preserve that argument. Fed. R. Crim. P. 51(b). We
therefore review his claim for plain error. See Fed. R. Crim. P. 52(b); Puckett v.
United States, 556 U.S. 129, 134–35, 143 (2009); United States v. Cannel, 517
F.3d 1172, 1175–76 (9th Cir. 2008).
Under such review, Crisolo has failed to establish “clear or obvious” error.
See Puckett, 556 U.S. at 135. Crisolo points to no objective evidence establishing
that the government agreed to file a § 3553(e) motion. See Davis v. Woodford, 446
F.3d 957, 961–92 (9th Cir. 2006). At most, the language in the pre-sentence
2
report and in Crisolo’s sentencing memorandum shows only that the government
considered filing a § 3553(e) motion, not that it promised to do so. At sentencing,
Crisolo never argued that such a promise existed, nor did he object to the district
court’s conclusion that no agreement governed the means by which the
government would reward Crisolo’s assistance. The district court’s conclusion on
this point was not clearly erroneous. See United States v. Helmandollar, 852 F.2d
498, 501 (9th Cir. 1988).
Because neither the existence of an oral cooperation agreement nor the terms
of such an agreement are “clear or obvious” on the face of the record, Crisolo’s
claim fails under plain error review.
AFFIRMED.
3