Sunday, December 21, 2008

Case o' The Week: The Real Deal, United States v. Augustine Murillo & Suspended Sentences

The Ninth continues its holiday break from criminal decisions, with the second straight week of civil cases filling its plate. This gives us a chance to reach back a bit and look a little decision with a big (unwritten) sub-context: United States v. Augustine Garcia Murillo, __ F.3d __, 2008 WL 5049914 (9th Cir. Dec. 1, 2008), decision available here.

Players: Decision by Judge Rymer (left), reversing District Judge Manuel Real (below right).

Facts: There’s two sets of facts in this case: those in the brief opinion, and the back story. (This COTW memo is longer than the opinion!)

From the opinion: Murillo pleaded guilty to illegal reentry. Id. at *1. Judge Manuel Real (important fact) “imposed a suspended sentence and then placed the defendant on probation for five years with a condition that he spend twelve months in custody during the probationary period.” Id.

From the back story: Murillo took a “fast track” deal under Fed. R. Crim. Proc. 11(c)(1)(C). Appellant’s (Gov’t) Brief, 2008 WL 891256 *3. This deal knocks an extra four offense levels off an illegal reentry defendant’s guideline range. Id. at *4. The deal was a joint recommendation for the low-end of Murillo’s range: 18 months. Id.

At sentencing, District Judge Real rejected the parties’ joint-recommended sentence of eighteen months, and imposed a sentence of five years of probation with a condition of twelve months custody. Id. Judge Real justified his sentence by reference to Section 3553(a)(4) and Booker. Id. at *14. When the government objected, Judge Real replied, “Take it up. I want to know if that’s right . . . If you don’t want to save money for the United States, take it up, so we’ll get the court of appeals to see whether or not that’s a legal sentence.” Id.

The government took it up.

Issue(s): (Ed. note: Because there is no statement of issues, this is a summary):

1. Suspended sentences:
Do district court have the power to suspend the imposition of a sentence?

2. Probation:
Can a district court impose a constant period of imprisonment as a condition of probation?

Held: “We reverse the district court and vacate the sentence.” Murillo, 2008 WL 5049914, *1.

1. Suspended Sentences:
“Under our current sentencing scheme, district courts do not have the power to suspend the imposition of a sentence.” Id.

2. Confinement as condition of probation: “[A] district court may not impose a constant period of imprisonment as a condition of probation.” Id. “[W]e direct that on remand the case be reassigned to a different district judge for resentencing.” Id.

Of Note: Wasn’t it a tad cowardly of the government to run to the Ninth for relief? This was a locked deal: if the government didn’t like Real’s sentence it could have busted the (c)(1)(C) plea in the district court and duked it out there.

Moreover, defense counsel was in an awkward spot – Murillo had agreed to a specific deal, and the defense was both contractually and honor-bound to not advocate for Real’s lower sentence. This means that the Ninth decided these issues on a poorly-formed record with a hamstrung defense counsel.

Third, and perhaps most importantly, this was an appeal from the Honorable Manuel Real (right). One suspects that this fact is a proxy for more background facts in the decision, or for more analysis in support of the holdings. Ninth Circuit wonks (and CD Cal. counsel) may understand this sub-text. That sub-text won’t, however, be clear when Murillo is later cited against the defense in future cases.

How to Use: With little analysis Murillo states sweeping rules which may, in fact, be wrong (or rather, overbroad). For example, the decision states that a district court does not have the power to suspend a sentence, citing United States v. Mueller, 463 F.3d 887 (9th Cir. 2006). Fair enough, but Mueller was largely concerned with whether a court can grant a probationary sentence in a mandatory minimum case. 463 F.3d at 890-91. Section 1326 (illegal reentry) cases carry no mandatory minimums – and it isn’t clear that probation is prohibited for these cases after Booker.

Similarly, the Ninth chides that a district court can’t impose constant imprisonment as a condition of probation. Fair enough, but Judge Real could have easily imposed a twelve-month custodial sentence under Booker, with a term of supervised release to follow – and that would have been bullet-proof on appeal. Murillo neglects to note that option.

For Further Reading: For more on the Hon. Manuel Real saga, see a Wall Street Journal blog entry here discussing cases which have been taken from the district court judge.

Steven Kalar, Senior Litigator N.D. Cal F.P.D. Website at

Photo of Hon. Pamela Rymer from . Image of Hon. Manuel Real from


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