* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. PATRICK J. McGRAW, a/k/a P.J. McGRAW, Defendant-Appellant. No. 98-3008 (D.C. No. 97-CR-20037) (D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY, McKAY, and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Defendant Patrick J. McGraw operated an adult entertainment club called Shadows in Kansas City, Kansas. He also owned Shad ows’ parent corporation, McGoo’s. During an investigation of defendant, the government estimated defendant’s corporate income by reviewing invoices from liquor distributors and estimating the number of drinks per bottle and pric e per drink. In 1994, defendant and the government entered into a plea ag reement under which defendant agreed to waive indictment and plead guil ty to one count of tax evasion for the tax year ending March 31, 1993, based on anunderstatement of corporate income. The agreement specified, in part, that def endant would file amended corporate tax returns for prior years, pay addition al tax, and assist the government in its investigation of others. The agreement spec ified that the government would recommend a sentence of probation, but if the distr ict court did not accept that recommendation, defendant would be allowed to withd raw his guilty plea and the government would be allowed to “seek an indictment on the instant charge and any other additional charges it so desires.” Appel lee’s Suppl. App. at 5. The district court did not accept the recommended sente nce. Defendant withdrew his guilty plea, but paid additional tax and filed amen ded tax returns for the specified years. The information was dismissed. In 1997, defendant was indicted for filing false ta x returns for the same tax years for which he filed amended returns. He filed a motion to dismiss the-3-

indictment, arguing that the 1994 plea agreement es topped the government from proceeding with the 1997 prosecution. He also argu ed that the government violated Fed. R. Crim. P. 11(e)(6) by using stateme nts made during the 1994 plea negotiations in forming the 1997 indictment. The d istrict court denied the motion to dismiss. Defendant then entered a plea of guilty conditioned on bringing this appeal. See Fed. R. Crim. P. 11(a)(2). The district court sen tenced him to eight months’ incarceration and a $10,000 fine. We have jurisdiction under 28 U.S.C. § 1291. Whether the government has violated a plea agreemen t is a question of law which we review de novo. See United States v. Cooper , 70 F.3d 563, 565 (10th Cir. 1995). Plea agreements are governed by contract principles. See id. When defendant withdrew his guilty plea, he rescind ed the plea agreement and it ceased to bind him or the government. Cf. Santobello v. New York , 404 U.S. 257, 269 (1971) (stating that “when a plea rests inany significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled”); United States v. Brye , 146 F.3d 1207, 1210 (10th Cir. 1998) (holding that appeals court examines “the nature of the government’s promise” in plea ag reement and “defendant’s reasonable understanding . . . [when] the guilty pl ea was entered”). The cases defendant cites as authority for his position are i napposite because they are all-4-

premised on a guilty plea actually being entered. Moreover, the agreement in this case warned defendant that if he should withdraw hi s plea, the government would be free to pursue indictment on any matter. Defend ant has not shown that the government relied on any statements made by him dur ing plea negotiations in forming the basis for the 1997 indictment. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge