Sunday, November 25, 2007

Case o' The Week: Congress isn't bad enough -- Ninth Limits its Own j/x (Again), United States v. Garcia

Hard to tell, sometimes, who is more eager to strip the Ninth of its jurisdiction to hear criminal appeals -- Congress, or the Ninth itself. See United States v. Adrian Garcia, __ F.3d __, 2007 WL 4096184 (9th Cir. Nov. 19, 2007), decision available here. Garcia is the latest in a string of decisions this year, some good, some bad, where the Ninth wrestles with its own j/x to hear criminal appeals. Unfortunately, the decision falls into the latter category: an opinion that deserves en banc review, either on its own merits or as part of the impending Zavala/Carty discussion.

Players: Decision by Judge Fisher.

Facts: Garcia pleaded guilty to a drug conspiracy with a Federal Rule of Criminal Procedure 11(c)(1)(C) agreement. Id. The deal was for a sentence within the range of twenty-four to forty-eight months. Id. Over Garcia’s objection, the district court attributed nearly five kilograms of conspiracy cocaine to him, resulting in a guideline range of 97 to 121 months. Id. at *2. Nonetheless, the district court honored the (c) deal and imposed a sentence at the high end of the deal’s range: 48 months. Id. at *2. On appeal, Garcia argued the court used the wrong burden of proof to attribute drug quantity and thus started with the wrong guidelines. Id.

Co-D Plascencia-Alvarado had a similar issue: the court put his guidelines at 108-135 months, the defendant asked for 54 months based on Section 3553 factors, and he was sentenced to 60 (at the lower end of the (c) deal’s stipulated range.) “Plascencia-Alvarado appeals this sentence as unreasonable in light of the 18 USC § 3553(a) factors.” Id.Neither Garcia nor Plascencia-Alvarado expressly waived the right to appeal the district court’s sentence.” Id. at *3 n. 6. [Ed. note: Important fact, to be buried in a footnote . . . .]

Issue(s): “We must decide whether we have jurisdiction to review a sentence that is imposed in accordance with a plea agreement under . . . 11(c)(1)(C) and that is not contingent upon the advisory Sentencing Guidelines.” Id. at *1.

Held: “[W]e hold that we do not have jurisdiction to review a sentence that was imposed pursuant to a Rule 11(c)(1)(C) plea agreement and was not contingent on the guidelines, where the defendant claims only that there was some error in the district court’s calculation of the guidelines or application of Booker.” Id. at *4.

Of Note: With all respect, criminal appellate jurisdiction has been a mess in the Ninth this year. In the horrible Bibler case, the Ninth found that it lacked jurisdiction to review a Montana sentence that everyone – including the government – agreed was flat-out wrong. Though it let this unjust result stand, the Ninth later retracted its language finding it lacked jurisdiction. See United States v. Bibler, 495 F.3d 621 (9th Cir. Jul. 19, 2007).

In July, AFPD Dave Porter secured a great win in Castillo, where Judge Bybee jealously protected the Ninth’s jurisdiction to hear criminal appeals. See United States v. Castillo, 496 F.3d 947 (9th Cir. July 25, 2007) (en banc). As Bybee explained,“Regardless of whether a defendant enters into a conditional plea or an unconditional plea, we retain jurisdiction to hear the appeal. The preclusive effect we give to the plea agreement may depend on the nature of the plea and the circumstances in which it is brought to our attention . . . .” Id. at 957. (emphasis added).

Despite Bibler and Castillo, here, in Garcia, Judge Fisher takes a dangerous jurisdiction-stripping approach that embraces the first (erroneous) Bibler approach, and that seems squarely at odds with the spirit of Castillo (and with the holding in Plouffe). See Plouffe, 445 F.3d 1126, 1130 (9th Cir. 2006) (“Booker also states that ‘the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a))’”) (emphasis added) (citation omitted).

This Garcia decision saves an AUSA who foolishly forgot an appellate waiver, id. at *3 n.6, and punishes a pair of defendants who the Court thinks already got a lucky sentencing break, id. at *3. Unfortunately, to (inexplicably) avoid deciding the merits, the Court unnecessarily carves into its own jurisdiction. Not to be cynical, but the Ninth has never reversed a sentence under Booker reasonableness review in a published decision. Why did Garcia have to stretch to forge a new, and unpersuasive, jurisdictional bar, to avoid "reasonableness" review here?

How to Use: While the en banc petition in Garcia is pending, add one phrase in the plea agreement: this deal is “conditioned on a properly-calculated guideline range.” Id. at *3. This phrase would have created j/x in this case (although it is unclear why, in a post-Booker world and post-Plouffe). Of course, good luck getting another 11(c)(1)(C) deal that doesn't include explicit appellate waivers -- they must be using old Wordperfect plea templates at the W.D. of Washington USAO office.

For Further Reading: Recall that the Ninth has Zavala / Carty on its en banc back-burner. See blog here. This pair of cases will address appellate review of Section 3553 challenges (as well as Rita "reasonableness" for an in-guideline sentence). By finding no jurisdiction for § 3553(a) reasonableness review in this decision, Garcia gums the works in those important two cases – hopefully, it will be flipped there, if not sooner.

Steven Kalar, Senior Litigator. Website at


Labels: , , , ,


Blogger Greg May said...

In light of the fact that AUSAs are unlikely to agree to ANY language that gets around Garcia's holding, it might be an academic point, but . . . is the plea language you suggest enough? Wouldn't that only require a properly determined RANGE, and couldn't the court properly determine the range but so foul up a section 3553 analysis so as to impose an unduly harsh sentence?

Finally, might an AUSA agree to language that would get around Garcia's holding in exchange for a higher stipulated range? I'm not sure that is a good idea for a defendant, but a defendant particularly confident that he will be (or at least should be) sentenced near the low end of the stipulated range might consider it.

Monday, November 26, 2007 2:01:00 PM  
Blogger Steve Kalar said...

Greg, some very interesting points. I've had several other comments today about my suggestion to negotiate for properly-calculated guidelines in a plea agreement.
First, you're right -- I think the discussion is academic. In the ND Cal I've never seen an 11(c)(1)(C) agreement that doesn't include a slew of appellate waivers. The rarity of the procedural posture in this case is one reason why this jurisdiction-stripping is so frustrating: Garcia is one case in a million, so there was no need to create a new, bad rule limiting Section 3553 appellate jurisdiction.
Regarding the language I suggested in a plea agreement: I agree, it is confusing. But, in my defense, I copied it right from the opinion. I think the rationale of the defendants in Garcia was that the district court erred in its guideline calculations, and hence (coming from the higher guidelines) got stuck at the high-end of the stipulated range in the deal. Thus, if the defendant had preserved the right to challenge those guideline calculations, it could have affected the 3553 analysis.
Frankly though, I don't understand the reasoning in the Garcia decision. What does the accuracy of the guideline calculation have to do with whether the sentence imposed (in that stipulated range) was "reasonable" on a Booker appeal? I suspect the Garcia case was a decision about the equities -- it was perceived that the defendants had already caught a break, and it was -- greedy? -- for them to seek a second bite of the sentencing apple via Booker. Just a hunch, but burying a fact like the lack of an appellate waiver in a footnote gives the reader a clue.
Again, the frustration is that some -- bad -- defense facts unnecessarily created a very bad new rule stripping appellate jurisdiction. Not clear why the sentencing appeals couldn't have instead been denied, on the merits, in a simple mem dispo if that's the way the panel was leaning.


Monday, November 26, 2007 3:36:00 PM  
Blogger Greg May said...

What Garcia seemed to be looking for, from my reading of the case, was a rule that says if 3553 would result in a sentence near the low end of the guideline range, then the court must impose a sentence at the low end of the stipulated range. The way I read it, he seemed to think that because the calculated guideline range was so much higher than the stipulated range, the court gave him the max allowed by the stipulated range without regard to what sentence he might have actually received had he been sentenced under the guidelines.

Finally, even if the court unnecessarily went out of its way to formulate this jurisdictional rule in a very rare circumstance, that same rarity means this should really have very limited impact.

Wednesday, November 28, 2007 2:58:00 PM  

Post a Comment

<< Home