United States v. Higginbotham

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 4 2026

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-4074

D.C. No. Plaintiff - Appellee, 2:19-cr-00214-KJM-1 v.

MEMORANDUM* DARREL KIETH HIGGINBOTHAM, AKA Darrel Higginbotham,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of California

Kimberly J. Mueller, District Judge, Presiding Argued and Submitted May 21, 2026 San Francisco, California

Before: COLLINS, JOHNSTONE, and DE ALBA, Circuit Judges.

Darrel Kieth Higginbotham appeals the district court’s imposition of a 120- month sentence following his guilty plea to one count of possessing a firearm in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we dismiss the appeal.

We review for plain error whether the government breached the plea agreement because Higginbotham did not raise this issue before the district court. See Puckett v. United States, 556 U.S. 129, 133, 135 (2009).

The government did not breach the plea agreement. The agreement conditioned the government’s recommendation for a three-level sentencing reduction on Higginbotham “clearly demonstrat[ing] acceptance of responsibility for his conduct as defined in U.S.S.G. § 3E1.1.” See United States v. Cannel, 517 F.3d 1172, 1176–77 (9th Cir. 2008). Because the district court found that Higginbotham testified falsely at a post-plea evidentiary hearing about the number of uncharged firearms he owned and possessed for purposes of calculating his offense level, he failed to accept responsibility as contemplated by the agreement. See U.S. Sent’g Guidelines Manual § 3E1.1 cmt. n.1(A), n.4 (U.S. Sent’g Comm’n 2023). As a result, the government was not obligated to recommend acceptance of responsibility credit and did not breach the plea agreement by advocating against it. See Cannel, 517 F.3d at 1176–77.

Nor did the government breach the agreement by arguing for a two-level obstruction enhancement because the agreement allowed it to do so. Thus, the district court did not plainly err in failing to find that the government breached the plea agreement. See Puckett, 556 U.S. at 143. We enforce the agreement’s appellate waiver and dismiss this appeal. See United States v. Plancarte, 147 F.4th

2 24-4074 908, 912 n.2, 916 (9th Cir. 2025).

DISMISSED.

3 24-4074