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 www.ndcalfpd.org

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