This disposition is not appropriate for publication and is not precedent *

except as provided by 9th Cir. R. 36-3.

The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge **

for the U.S. Court of Appeals for the Third Circuit, sitting by designation.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRIAN EDWARD BARKER,

Defendant - Appellant.

No. 09-30339

D.C. No. 1:04-cr-00082-RFC-1

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Richard F. Cebull, Chief District Judge, Presiding

Argued and Submitted November 3, 2010

Portland, Oregon

Before: ALDISERT, W. FLETCHER and FISHER, Circuit Judges.** 

Brian Barker appeals three decisions of the district court: (1) that his

interpretation of an ambiguous plea agreement was unreasonable; (2) that the

government’s potential duty to disclose was outside the remand and also waived;

and (3) that the 21 U.S.C. § 851 information relied on to impose a mandatory life

FILED

DEC 17 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

sentence was procedurally valid and substantively adequate. We affirm because

Barker unreasonably interpreted the plea agreement, waived the duty to disclose

and failed to brief properly a challenge to the § 851 information.

The Reasonable Meaning of the Plea Agreement

Our standard of review of a district court’s construction of a plea agreement

is uncertain, see United States v. Transfiguracion, 442 F.3d 1222, 1227 (9th Cir.

2006), but we need not resolve whether clear error or de novo review applies

because the outcome is the same under either standard. We analyze the

reasonableness of the defendant’s interpretation at the time of his change of plea. 

See United States v. De la Fuente, 8 F.3d 1333, 1337 & nn.7, 8 (9th Cir. 1993).

The plea agreement said:

[T]he United States Attorney for Montana shall cause to

be dismissed with prejudice Counts I and III of the

indictment as those counts apply to the Defendant and

shall bring no further action against the Defendant based

upon the facts alleged in this indictment or the acts or

occurrences giving rise to this indictment.

(Emphasis added.) The meaning of the phrase “acts or occurrences giving rise to”

the Missoula indictment cannot reasonably be interpreted to include a transaction

that occurred well after the Missoula indictment. Even if the drugs found in Butte
3

link the Billings indictment to the Missoula indictment, as reflected in the

presentencing reports’ relevant conduct sections, the Pich transaction charged in

Billings did not give rise to the Missoula indictment. The only ongoing “act or

occurrence” that might have linked the Missoula and Billings indictments was the

conspiracy charged in the Missoula indictment, but Barker successfully argued in

the Billings trial that he did not conspire with Pich and was acquitted on that

charge. Even if Barker was part of an ongoing hub and spoke conspiracy, the Pich

transaction was not part of it. Moreover, before the plea agreement was signed the

government refused to commit to Barker’s counsel that no further indictments were

contemplated. Under these circumstances, as the district court found, Barker’s

interpretation of the plea agreement was not objectively reasonable.

The Duty to Disclose

The district court ruled that it could not reach the government’s duty to

disclose on remand because the issue was both outside the scope of the remand and

waived. We agree. The remand order was limited to an evidentiary hearing on the

meaning of the plea agreement, which involved Barker’s expectations of disclosure

but not the government’s liability to disclose. Moreover, Barker waived the

argument by not raising it at trial, see United States v. Cade, 236 F.3d 463, 467
4

(9th Cir. 2000), and by not distinctly arguing it in his opening brief in the previous

appeal, see James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 n.1 (9th

Cir. 2008). There is no manifest injustice in considering this issue waived because

Barker already knew of the possibility of further charges, and unreasonably

assumed that the plea agreement disclaimed indictment for future acts. See United

States v. Krasn, 614 F.2d 1229, 1234 (9th Cir 1980).

Validity of the § 851 Information

Barker did not brief the validity of the § 851 information in this appeal, but

relied on briefs from his previous appeal and incorporated his argument by

reference in his current brief. This waived the argument. See Ninth Cir. R. 28-

1(b); Fed. R. App. P. 28(a)(9). Further, his previous briefing was itself faulty. He

raised two arguments in the previous opening brief, and then made novel

arguments in his reply brief. The arguments made for the first time in his previous

reply brief were waived at that time. See Omega Envtl., Inc. v. Gilbarco, Inc., 127

F.3d 1157, 1167 (9th Cir. 1997). As to the two issues regarding the § 851

information he briefed properly in the previous appeal, there is no manifest

injustice in holding them waived. First, Barker argues that the two state

convictions relied on by the § 851 information were part of a single criminal
5

episode, which (if true) might invalidate the information. The convictions were in

fact separate, however, and Barker does not appear to have raised this argument at

trial. Second, Barker argues that there was no procedurally valid § 851

information filed after his mistrial. The § 851 filing before his first trial was,

however, sufficient to support the sentence enhancement. The subsequent filing

after the retrial was irrelevant because the superseding indictment was materially

indistinct from the original indictment and Barker had actual notice of the

government’s intent to enhance his sentence. See United States v. Mayfield, 418

F.3d 1017, 1019-20 (9th Cir. 2005).

AFFIRMED