U.S. v. Alcala-Sanchez, No. 11-50030 (1-10-12) (Gould with Nelson and Ikuta).

"A promise made," Robert Service penned, "is a debt unpaid." The 9th followed this sentiment, although not so poetically, in this breach of a plea bargain case, holding the government failed to pay its debt of a sincere recommendation. The government offered a fast-track deal to a 1326 defendant, agreed that the prior conviction was a +8 (total 16), and agreed to recommend an offense level of 12 (with no agreement as to the sentence within the range). The probation officer in the PSR concluded, however, that "dissuading a witness by force or threat" was a crime of violence, and worthy of a +16. The government filed a sentencing chart/memo that repeated the PSR's calculations. At sentencing, the prosecutor who negotiated the deal, but not the one who filed the sentencing chart/memo appeared, and refused to disagree. The sentencing was continued, at which at various hearings, the prosecutor acknowledged the breach, but dithered a bit. It finally withdrew the chart and stuck by the deal. There was a lot of explaining about groaning caseloads and mistakes caused by workload. He defendant argued the government still had breached, but the court found that the government was not in breach because it stuck by its plea. On appeal, the 9th acknowledged an inconsistency in its standards of review for claims that the government breached its plea breach of plea (de novo vs clearly erroneous), but decided that because the court clearly erred, resolution of the inconsistency could wait for another day, or breach. The breach here was the failure of the government to live up to its bargain from the get go. The government breached by making a wrong recommendation. Even though the prosecutor eventually admitted her mistake, and fell in line with the recommendation, it did not matter. A breach, intentional or inadvertent, still was a breach. The defendant lost his right to a "united" front as to the argument that the offense level was a +8 and not a +16. The sentence had to be vacated and remanded, and to a different judge.

Congratulations to Deputy Fed Defenders Vince Brunkow and Devin Burstein of the Fed Defenders of San Diego.