MEMORANDUM**

This appeal arises from the denial of Lininger's petition for habeas relief under 28 U.S.C. Sec. 2255. We are presented with the issue whether the government breached the plea agreement by its recommendation at sentencing. Lininger also complains that the government violated his constitutional rights and Fed.R.Crim.P. 11(e). We affirm.

Lininger is serving a ten-year sentence imposed after his guilty plea to a violation of 18 U.S.C. Sec. 2314 for interstate transportation of stolen property.

Before the plea, FBI Special Agent Sibley visited Lininger in jail several times. They discussed his possible violation of 18 U.S.C. Sec. 2314 and he provided information about stolen property. No counsel was present but Sibley explained Lininger's rights.

During one visit, Lininger requested a public defender and Sibley agreed to inform the U.S. Attorney's office. He also gave Lininger a proposed plea agreement. Lininger read it, asked line-by-line questions and signed it that day.

In testimony before a grand jury, he was advised of his rights, waived counsel and stated that he had agreed to plead guilty to one count. When the indictment was filed, he pleaded not guilty. Counsel was appointed. Shortly thereafter, he appeared with counsel and changed his plea to guilty, pursuant to the original agreement.

At sentencing, the prosecutor recommended "far in excess of five years." The plea agreement required that the government not recommend a specific sentence. Lininger's counsel made no objection to the government's recommendation.

Five years later, Lininger sought habeas relief under 28 U.S.C. Sec. 2255. He alleged a breach of the plea agreement, constitutional violations and a Rule 11(e) violation. The court denied without a hearing. He appeals.

Lininger contends that the prosecutor breached the plea agreement at sentencing when he recommended that the court "impose a substantial period of incarceration, far in excess of the five years suggested by [defense counsel]." The district court concluded that this recommendation did not constitute a breach. We agree.

It is further understood that the sentence to be imposed upon you is within the sole discretion of the sentencing judge. This office cannot and does not make any promise or representation as to what sentence you may receive, nor will it recommend any specific sentence to the sentencing judge.

What the parties agreed to in a plea agreement "is a question of fact to be resolved by the district court." United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir.1980). We review these findings only for clear error. United States v. Read, 778 F.2d 1437, 1441 (9th Cir.1985).

In denying the petition, the district judge observed:

In the instant case, the U.S. Attorney's comments did not amount to a breach of the agreement. The reasonable interpretation of the agreement is that the government would make a general, but not a specific recommendation as to a particular number of years. It is important to note that the government did not promise to be silent at sentencing nor did it promise to make no sentencing recommendation. Rather, the promise was to not "recommend any specific sentence."

At the sentencing hearing, the judge considered the probation officer's report which recommended a ten-year sentence. Defense counsel requested a five-year sentence. The U.S. Attorney did not recommend a specific number of years.

There was no clear error. Any dispute over the terms of a plea agreement "will be determined by objective standards." United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979). The standard applied is "what was reasonably understood by [the defendant] when he entered the plea of guilty." United States v. Travis, 735 F.2d 1129, 1132 (9th Cir.1984).

This case differs from Santobello v. New York, 404 U.S. 257, 262 (1971), where the Court found a breach. There the government agreed to make no sentence recommendation but at sentencing, the prosecutor unknowingly recommended the maximum sentence of one year.

Here, the U.S. Attorney asked for a sentence in excess of the one defense counsel recommended. A specific recommendation would have been to request a ten-year sentence. The language in the plea agreement leaves open the possibility of a general recommendation by the government. The U.S. Attorney's comments were general, not specific. I hold the comments did not amount to a breach of the agreement.

There was no clear error here.

2. Constitutional and Rule 11(e) Allegations

Lininger presents other arguments. He alleges that Sibley's conduct before the plea agreement was signed violated appellant's Fifth and Sixth Amendment rights. He also claims a violation of Fed.R.Crim.P. 11(e) because no attorney was present during plea negotiations. We review de novo and conclude that both arguments lack merit.

First, this court holds that a voluntary and intelligent plea precludes subsequent habeas relief for pre-plea constitutional violations. Mitchell v. Superior Court, 632 F.2d 767, 769 (9th Cir.1980). Lininger's guilty plea was voluntary and intelligent. Absence of counsel at the preliminary negotiations in jail became irrelevant when, after signing the agreement, he pleaded not guilty. Counsel represented him later when he actually entered his guilty plea. He had the opportunity then to renegotiate the terms of the prior agreement. He also was given abundant information on his rights, and waived counsel before the grand jury.

Second, his argument based on lack of counsel under Rule 11(e) fails. That rule discusses plea agreement procedure and the types of agreements the government and a defendant may reach with a plea. It does not say that absence of counsel during some plea negotiations amounts to a violation of Rule 11(e). Even if that were true, the facts show that Lininger was represented by counsel during final plea discussions and when he entered his plea.

AFFIRMED.