FILED
NOT FOR PUBLICATION NOV 25 2009
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. 09-30022
Plaintiff - Appellee, D.C. No. 4:08-cr-00064-SEH-1
v.
MEMORANDUM *
WALLACE JOHN BEAR,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted November 2, 2009 **
Portland, Oregon
Before: FISHER and PAEZ, Circuit Judges, and MOSKOWITZ, District Judge. ***
Wallace John Bear (“Bear”) appeals a life sentence imposed following his
guilty plea to second degree murder in violation of 18 U.S.C. §§ 1111 and 1153(a).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we
affirm.
Bear argues that in requesting the district court to impose a life sentence, the
government breached the parties’ written plea agreement. We disagree.
In the plea agreement, Bear and the government agreed that “[t]he United
States and the Defendant reserve all right, without condition, to make any
appropriate sentencing recommendation.” Because the terms of the plea agreement
were unambiguous and imposed no limitation on the government’s sentence
recommendation, the government did not breach the plea agreement when it argued
for a life sentence.
We also reject Bear’s argument that the government’s sentencing
recommendation rendered its promise to request a Sentencing Guidelines point
reduction illusory. Before imposing sentence, the district court, as required,
calculated the applicable Sentencing Guidelines range, which included downward
adjustments for Bear’s acceptance of responsibility and early plea as requested by
the government. See United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en
banc) (noting that the starting point for determining an appropriate sentence is to
calculate the applicable Sentencing Guideline range).
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Finally, Bear argues that his life sentence is unreasonable. A sentencing
judge is in a superior position to make factual determinations and evaluate their
import under 18 U.S.C. § 3553(a), United States v. Overton, 573 F.3d 679, 700
(9th Cir. 2009) (quoting United States v. Cherer, 513 F.3d 1150, 1160 (9th Cir.
2008)), and only a procedurally erroneous or substantively unreasonable sentence
will be set aside. See Carty, 520 F.3d at 993. Here, the district court adequately
considered the sentencing factors in 18 U.S.C. § 3553(a) and explained its reasons
for imposing the statutory maximum sentence of life in prison. Id. The district
court did not abuse its discretion, and the sentence is not unreasonable. See id.;
Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
3