United States v. 2020-11-23 | 19-10432 | USA V. WILLIAM FULLER | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM ERNEST FULLER,
Defendant-Appellant.
No. 19-10432
D.C. No.
4:06-cr-00825-RCC-LAB-1
MEMORANDUM
*
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Submitted November 19, 2020
**
Phoenix, Arizona
Before: TALLMAN, BYBEE, and BADE, Circuit Judges.
Appellant William Ernest Fuller appeals the district court’s imposition of a
lifetime term of supervised release. He claims that the government breached its
promise set forth in the written revocation disposition agreement to make no
FILED
NOV 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
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).

recommendation regarding an additional term of supervised release when it
informed the district court at sentencing, contrary to defense counsel’s
misrepresentation, that it did not concur with the probation officer’s
recommendation of no further supervised release. Because the parties are familiar
with the facts, we will not recite them here. We have jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a). We affirm.
“A defendant’s claim that the government breached its plea agreement is
generally reviewed de novo.” United States v. Whitney, 673 F.3d 965, 970 (9th
Cir. 2012). However, because Fuller’s counsel failed to timely object to the
prosecutor’s statements during the district court proceedings, the court is limited to
plain error review on appeal. Id.; see also United States v. Hernandez-Castro, 814
F.3d 1044, 1045–46 (9th Cir. 2016). “Relief for plain error is available 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.” United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008).
According to Fuller, the government breached its promise to “take no
position on the issue of supervised release” by informing the district court that it
did not agree with the probation officer’s recommendation of no further supervised
release. We need not decide whether the government’s statements constituted a
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breach because, even if a breach occurred, Fuller cannot carry his burden to show
that the alleged breach affected his substantial rights.
“[W]here a breach of the plea agreement is alleged, the defendant must
prove that it is reasonably probable that he or she would have received a more
lenient sentence if the government had not committed the breach, not just merely
that it is possible.” United States v. Gonzalez-Aguilar, 718 F.3d 1185, 1189 (9th
Cir. 2013) (internal quotations omitted). Nothing in the record indicates that the
government’s statements influenced the district court’s decision to impose a
lifetime term of supervised release. Rather, in rejecting the probation officer’s
recommendation, the district court emphasized that (1) Fuller’s conduct was
“awfully close” to his original offense; and (2) the recommendation for no further
supervised release was not based on Fuller’s success but because probation was
“tired of dealing with [him].” In other words, the district judge made clear that he
had independently reviewed the record and was not convinced that supervised
release was no longer necessary. See Gonzalez-Aguilar, 718 F.3d at 1187–89
(finding no impact on substantial rights when it was clear that the district judge
independently evaluated the sentence and was “deeply influenced” by the
presentence report, and the prosecutor made no statements regarding the
defendant’s criminal history at sentencing). Fuller has therefore failed to show a
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reasonable probability that, absent the government’s statements, the district court
would have imposed a lesser term of supervised release.
AFFIRMED.
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