Case o' The Week: Stip, Agree, But Not Recommend - Breach and Plea Agreement Appellate Waivers

Does a promise to “stipulate and agree” to a sentence include a promise to recommend that sentence?

   Not in the Ninth.

United States v. Hernandez-Castro, 2016 WL 736530 (9th Cir. Feb. 25, 2015), decision available here.

 

Players: Decision by visiting Sr. Eighth Circuit Judge Melloy, joined by Judges Ikuta and Hurwitz.

Facts: Hernandez-Castro pleaded guilty to conspiracy with intent to distribute heroin. Id. at *1. In the plea agreement, the government “stipulate[d] and agree[d]” to a four level fast track departure. Id. at *1. 

 At sentencing, the district court only departed down two levels for fast track. 

  Neither party objected. Id. 

  Despite a plea agreement with an appellate waiver, Ms. Hernandez-Castro appealed.

Issue(s): “Hernandez-Castro . . .  argues the government breached her plea agreement, thereby invalidating her appeal waiver.” Id. at *1. “Hernandez-Castro argues that the government breached her plea agreement by not objecting when the district court granted only a two-level departure for fast track (rather than the four-level departure in the agreement.” Id. at *2.

Held: “Camarillo-Tello is distinguishable because today we review for plain error. Unlike the plea agreement in Camarillo-Tello, Hernandez-Castro’s plea agreement does not indicate the government ‘will recommend’ the four-level departure for fast track. Rather, paragraph eight of her plea agreement provides ‘the parties stipulate and agree that the following guideline calculations are appropriate for the charge for which the defendant is pleading guilty.’ That language is sufficiently distinct from the language obligating government action in Camarillo-Tello for us to conclude no plain error occurred here.” Id. at *2.

Of Note: The holding of Hernandez-Castro is that a deal that requires the government to “stipulate and agree” to a sentence does not, by necessity, also require the government to “recommend” the sentence. 

  When distinguishing this disappointing opinion, emphasize that this is a plain error case, and that the AUSA did ultimately support other reductions that resulted in a more-lenient sentence. Id. at *2. This very fact-bound sentencing entered into the Court’s plain error analysis, and limits the holding that there was no breach.

How to Use: In United States v. Camarillo-Tello, 236 F.3d 1024 (9th Cir. 2001), the Ninth reversed an illegal reentry sentence when the agreement required the government to recommend a four-level downward departure -- the government breached by failing to argue for the departure in its sentencing memo and argue it at sentencing. Id. at *2.

  Judge Melloy distinguishes Camarillo-Tello by observing that in Hernandez-Castro’s agreement the government didn’t expressly promise to recommend the departure, but instead promised to “stipulate and agree” to it. Not a whole lot of contra proferntem going on against the government-drafter of this contract.

  Remember and cite this very narrow contract interpretation in Hernandez-Castro in four months, when we’re gunning for the plea agreement collateral attack waivers during our Johnson § 2255 tsunami.

                                               

For Further Reading: When district judges know their sentencing decisions are unreviewable because of appellate waivers, it affects sentencing procedures and outcomes. So argues Clinical Professor Kevin Bennardo in a very interesting article. See Kevin Bennardo, Post-Sentencing Appellate Waivers, 48 U. Mich. J. L. Reform 347 (2015), available here.

  The proposed solution? Create post-sentencing appellate waivers, negotiated and memorialized in post-sentencing agreements. Id.

  In addition to some thought-provoking proposals, this article has a useful discussion of the history of sentencing appellate waivers – a handy review as we gear up for the aforementioned Johnson brouhaha ahead.

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Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org

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US v. Hernandez-Castro, No. 14-10497 (2-25-16)(Melloy with Ikuta and Hurwitz). This is a "breach of plea agreement" case.  The 9th held that, under plain error, there is a difference between the government and defendant agreeing to a four level fast track departure -- and the government agreeing to recommend, and then not recommending.  The case here involved a drug "fast track" where there were stipulations to a sentencing range (57 to 71) and use of a minor enhancement.  At sentencing, the court did not enhance for a minor, but only gave a two level departure for fast track.  The court also gave a two level further variance based on guideline drug amendments.  The 9th held that the plea was not breached by the government's failure to say "Hey, we stipulated to a four level departure" because there was no affirmative agreement to so recommend. 

This distinction seems pretty fine.  However, the sentence was below what was originally contemplated (57 to 71), and so there was arguably no "harm" in expectations.

The take away:  make sure the plea states:  the government recommends.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/25/14-10497.pdf

 

 

US v. Eglash, No. 14-30132 (2-17-16)(Christen; concurrence by Kleinfeld; partial dissent by Wallace). This concerns the final step necessary to complete a fraud under Schmuck and US v. Brown, 771 F.3d 1149 (9th Cir 2014).  The 9th held that getting a "notice" from the SSA about an award was a necessary final step.  However, a "summary" of statements was not.  The 9th reversed the former conviction and affirmed the latter.  Kleinfeld thinks Brown was wrongly decided and should go en banc.  Wallace sees no problem.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/02/17/14-30132.pdf

 

Case o' The Week: En Banc Wail from Mail Travail - Eglash and Mail Fraud Elements

“You’ve got mail.”

   (Now go to jail).

United States v. Cory Eglash, No. 14-30132 (9th Cir. Feb. 17, 2016), decision available here.

Players: Decision by Judge Christen, concurrence by Judge Kleinfeld, partial concurrence and partial dissent by Judge Wallace.

Facts: Eglash and his girlfriend, Hayes, ran a coffee shop. Id. at 4. Hayes applied for disability payments: Eglash confirmed he was her caregiver. Id. After Hayes was awarded benefits, Eglash also applied for disability. Id. at 5. 

An investigation revealed Eglash was in fact quite active and very much not disabled (the same was true for Hayes). Id. at 6. 

They were charged and tried for, among other things, mail fraud. Id. One count alleged mail fraud based on a notice of disability award that the SSA sent Hayes. Id. Another count alleged mail fraud based on the summary of statements Eglash made when he talked to the SSA in support of his disability application. Id. 

During trial Eglash move for judgment of acquittal, alleging the government failed to prove the mailings furthered a fraudulent scheme. Id. at 7. The motion was denied: Eglash appealed.

Issue(s): “Eglash claims the district court erred by denying his motion for judgment of acquittal on mail fraud Counts 4 and 6 because the underlying mailings were not shown to further a fraudulent scheme to receive disability benefits.” Id. at 7.

Held: “[T]he notice of disability award marked the last step before Hayes would receive disability benefit payments, the goal of her fraudulent plan with Eglash. Although the Government, not the defendant, mailed the . . . notice of disability award here, each mailing was a contemplated, necessary step in its respective scheme. [T]he notice of award was the golden ring in Eglash’s plot and incident to an essential part of the scheme. We therefore affirm the district court’s judgment on Count 4.” Id. at 9 (quotations and citations omitted) (emphasis added). 

“The summary may have been a predictable consequence of Eglash’s fraudulent application, but the fraud he envisioned was neither dependent upon nor furthered by the Government’s decision to transcribe, in summary form, the fraudulent statements he made when he talked to SSA . . . .Because the underlying mailing was not part of the execution of the scheme as conceived by the perpetrator at the time, . . . and because it did nothing to further the scheme, we reverse Eglash’s mail fraud conviction on Count 6.” Id. at 10 (quotations and citations omitted) (emphasis added).

Of Note: Judge Kleinfeld concedes that upholding the conviction as to the “notice of disability” mailing is required by the Ninth’s decision in Brown, 771 F.3d 1149, 1158 (9th Cir. 2014). Id. at 11 (Kleinfeld, J., concurring). He makes a compelling argument, however, that Brown was wrongly decided, is inconsistent with the Supreme’s fraud decision in Schmuck, and that Brown should go en banc. Id. Judge Kleinfeld asks how a government mailing confirming the success of a scheme can be deemed a mailing executed by the defendant (as required by the mail fraud statute?) Id. at 13. 

Judge Kleinfeld is right – Brown should go en banc.

How to Use: “Eglash was enough of a crook without counts 4 and 6 to make these two counts superfluous. . . . The hardest part of this case to understand is why the government turned an easy and obvious conviction into a difficult appellate case and fractured opinion by overcharging [Eglash].” Id. at 15 (Kleinfeld, J. concurring). 

With no disrespect to Mr. Eglash, Judge Kleinfeld is right -- it makes no sense for an AUSA to hopelessly muddy a record with this charging stretch. Nonetheless, expect government mailings to still show up in mail fraud counts. Preserve your objections: Brown may someday be revisited by the en banc court.

                                               

For Further Reading: How many Supreme Court crim pro decisions swung on Justice Scalia’s vote? Twenty, during the Roberts Court. For a fascinating graphic and article on the stakes for this now-vacant seat, see, Adam Liptak and Quoctrung Bui, Supreme Court Precedents that May be at Risk, available here. 

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Steven Kalar, Federal Public Defender Northern District of California

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