Saturday, April 08, 2006

Case o' the Week: Victory in Vasquez, right to plea guilty

Writing for the Ninth, Judge Kozinski reins in a district court judge who forgot the Executive controls charge bargaining – not the bench. In re: Alvaro Vasquez-Ramirez, __ F.3d. __, Slip. Op. 3853 (9th Cir. April 6, 2006), available here. An interesting and important win by the San Diego Community Defender (view from Hubachek's office, left).

Players: Another creative victory by San Diego Community Defender team Steve Hubachek, Chase Scolnick and Lori B. Shoenberg.

Facts: Vasquez-Ramirez negotiated a “fast-track” deal: a plea to reentry charges that carried a 30-month stat max. Slip op. at 3857. The deal was part of an 11(c)(1)(C) agreement. Id. (Ed. note: This deal likely cut the defendant’s exposure by ½ to 1/3 of his guideline range under the original charge, Section 1326 illegal reentry). The district court thought the deal was too lenient, rejected the plea agreement, and rejected the plea. Id. at 3858. The defendant petitioned for mandamus.

Issue(s): “We consider whether a district court may reject a guilty plea that satisfies all of the requirements of Federal Rule of Criminal Procedure 11(b).” Id. at 3856.

Held: “A district judge retains broad discretion to sentence a defendant to any term of imprisonment within the statutory range set by Congress, for the crime the prosecutor has chosen to pursue. See United States v. Booker, 125 S. Ct. 738, 750 (2005). But the judge oversteps his bounds when he forces the prosecutor to pursue charges the prosecutor would rather not, just because the judge disagrees with the sentencing range to which he would otherwise be limited. Once a prosecutor brings charges against a defendant, Rule 11 requires the judge to accept the defendant’s guilty plea to those charges, provided the plea meets the requirements of Rule 11(b). It matters not that the judge feels the prosecutor’s charging decision was too aggressive or too lenient.” Id. at 3870.

Of Note: In the last five years, the defense bar has been a bit player in a separation-of-powers war between the branches. In the PROTECT Act, Congress stripped the judiciary of much of its sentencing discretion. In Booker, the judiciary took it back. In Vasquez-Ramirez, the Ninth brushes back district courts with a strong endorsement of the Executive’s power to charge bargain. See id. at 3863 (“Should the government indeed decide to drop the section 1326 indictment, it will be exercising classic prosecutorial discretion. It may have any number of reasons for doing so, such as wise allocation of scarce resources, none of which are the district court’s business.”) (emphasis added).

Which branch should the Defense back in this battle? Whichever one happens to favor our client, that day.

How to Use: Vasquez-Ramirez reinforces a truism: the best deal is to charges with stat max caps– misprision, telephone counts, § 1325 illegal entry, misdemeanors. As Kozinski bluntly observes, it is “none of . . . the district court’s business” if the government decides to cap a sentence with a charge bargain deal. Of course, the trick is actually getting these deals, and finding an AUSA willing to stand up to Article III displeasure at “lenient” Article I charging decisions. (If only Article I was as deferential when Article III complained of overcharging . . . )

For Further Reading: Do appellate attorneys wear natty suits and listen to Vivaldi while drafting their briefs? Not in San Diego. Chief Appellate Attorney Steve Hubachek favors very loud Hawaiian shirts and cranks the Sex Pistols while coming up with the Community Defender’s latest novel argument. That appellate division is responsible for a string of aggressive and creative challenges, including Ruiz (Giglio disclosure), Ubaldo-Figueroa (due process at deportation hearings), Navarro-Vargas (grand jury instructions) and – with Ben Coleman – Buckland (§ 851 unconstitutional under Apprendi). See Community Defender website, here. The Ninth is a much more interesting place to litigate thanks to Hastings’ grad “Huba” and his crew.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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