Case o' The Week: Bust a Deal, Face the Wheel -- Breach of 11(c)(1)(C) deals and Morales-Heredia
Bust a deal, face the (DJ) wheel.
United States v. Morales-Heredia, 2014 WL 5018109 (9th Cir. Oct. 8, 2014), decision available here.
Players: Decision by Judge Wardlaw, joined by CJ Kozinski and Judge Fisher. Big win for CD Cal AFPD Jonathan Libby.
Facts: Morales-Heredia (“Morales”) plead guilty to a standard fast-track for illegal reentry. Id. at *4. Morales made standard concessions: early plea, proceed by Information, no pretrial motions, no appeal. Id. The gov’t promised to recommend -4 OL for a fast-track dispo, and to recommend low-end. The agreement also included 3 years of supervised release (despite USSG guidance against S/R terms for illegal reentry cases). Id. Both parties agreed not to seek a variance from this 11(c)(1)(C) deal. Id. At sentencing, the gov’t recommended the low end – but in the sentencing memo the AUSA detailed Morales’ criminal history, arguing it showed a “consistent disregard for both the criminal and immigration laws of the United States.” Id. at *5. Defense counsel complained to the AUSA of breach, but the government refused to withdraw its memo. Id. at *6. The district court busted the (c) deal and denied the defense motion for specific performance because of breach. Id. Instead, the district court imposed triple the agreed-upon sentence in the plea agreement: Morales appealed. Id.
Issue(s): “As the district court observed, we have not previously applied the principles governing the breach of plea agreements to Rule 11(c)(1)(C) agreements.” Id. at *8.
Held: “The only logical conclusion, however, is that those principles apply with equal force in this context.” Id.
“The government breached its agreement . . . through its repeated and inflammatory references to Morales’s criminal history in its sentencing memorandum.” Id. at *9. “Whether intentional or not, the government breached the plea agreement by implicitly recommending a higher sentence than agreed upon.” Id. “[The government] also expressly promised in the plea agreement not to ‘seek, argue, or suggest in any way” that the district court impose a ‘sentence other than what has been stipulated to by the parties herein.’ We enforce the literal terms of this promise and require the government’s strict compliance with it.” Id. at *10 (emphasis in original).
Of Note: What’s the remedy for breach? In this case, Morales only appealed his sentence, so the Court vacated the sentence and remanded – with instructions to reassign to a different district judge. Id. at *12. Judge Wardlaw carefully lays out the procedures after a finding of breach – including an emphasis that this is not reviewed for harmless error, but instead “automatic reversal is warranted when objection . . . has been preserved.” Id. at *11. The opinion is a helpful primer on the mechanics of breach, and what remedies await if found on appeal.
How to Use: Morales-Heredia gives us a welcome new holding: breach jurisprudence applies to (c) deals. Id. at *7. It is also, however, an excellent opinion on the spirit of breach.
|Hon. Judge Kim Wardlaw|
Here, the AUSA technically “honored” the deal with a low-end rec. Id. at *8. Judge Wardlaw, however, examines (and rejects) all possible rationales for the AUSA’s “inflammatory language” in the sentencing memo and holds the government still breached the express terms of the plea agreement. Id. at *10. Morales-Heredia describes a familiar problem in sentencing memos – and the automatic reversal, and reassignment to another judge, is a remedy with teeth.
For Further Reading: Judge Wardlaw, who hales from SoCal, shows a real understanding of the realities of fast-track dispositions. Morales-Heredia spends much time explaining these deals, with heavy citations to supporting docs (including fd.org sources). Id. at *3 n.13.
Illustrates that the immigration guideline needs work – hopefully the Sentencing Commission will get around to real reform this cycle. See press release on Commission priorities here.
Image of the Hon. Judge Kim Wardlaw from http://weblaw.usc.edu/ckfinder/userfiles/images/judge%20wardlaw%20for%20web.jpg
Image of “Bust a Deal” from http://sd.keepcalm-o-matic.co.uk/i/bust-a-deal-and-face-the-wheel.png
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org