Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted May 5, 1995.
Appeal from the United States District Court for the District of Oregon, No. CV-92-60013-1-MRH; Michael R. Hogan, District Judge, Presiding.
D.Or.
AFFIRMED.
Before: BROWNING, REAVLEY, and NORRIS, Circuit Judges
Honorable Thomas M. Reavley, Senior United States Circuit Judge for the United States Court of Appeals, Fifth Circuit, sitting by designation.
MEMORANDUM
Appellant Gary Lynn Tucker argued below that he and the Assistant United States Attorney ("AUSA") prosecuting him had entered a valid plea agreement in which he promised to plead guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), in exchange for the AUSA's promise not to seek an enhancement of his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). The district court found that no valid plea agreement existed between the parties. Tucker entered a conditional guilty plea and now appeals the district court's decision. A finding on the existence of a plea agreement is a factual matter that is reviewed for clear error. United States v. Floyd, 1 F.3d 867, 869 (9th Cir. 1993); United States v. Fernandez, 960 F.2d 771, 772 (9th Cir. 1991). We find no clear error in this case and affirm.
Moreover, whether or not the AUSA's representations ever gave rise to a valid agreement between the parties, Tucker did not detrimentally rely upon those representations. He waived his rights to a speedy indictment before negotiations began. Because Tucker did not detrimentally rely upon any agreement, he has no "constitutional right to have the bargain specifically enforced." Mabry v. Johnson, 467 U.S. 504, 507 (1984). See also United States v. Savage, 978 F.2d 1136, 1138 (9th Cir. 1992) (outlining the "detrimental reliance exception" to the general rule that "either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court") (quoting United States v. Ocanas, 628 F.2d 353, 358 (5th Cir. 1980),cert. denied, 451 U.S. 984 (1981)).
AFFIRMED.
FN** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.