US v. Gonzalez-Aguilar, No. 12-50048 (6-13-13)(Tallman with Berzon and M. Smith).

The government promised to recommend the low end of the guideline sentence. It did so, in a sentencing memo, which also pointed out the defendant's long criminal history. The court reviewed the PSR, which made the same observation, and rejected the deal. The defendant still pled guilty, but instead of the low end of 46 months for a 1326, the defendant got 57 months. Was this a breach of the plea? The government has to stick by its plea agreement, and it did argue for the low end, but seemed to back away, focusing on criminal history. The 9th found no breach, and affirmed. This was not a breach, reasoned the 9th, because there was no plain error. The defendant could not prove that the government, pointing out the criminal history, while also stating that the sentence should be the low end, probably undermined the deal. Given the PSR's focus on criminal history, the Court had the information before it, and gave careful consideration. Any tie was speculation, and therefore not plain error.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/13/12-50048.pdf