US v. Plascencia-Orozco, No. 15-50238 (3-29-17)(Bea w/Callahan & Ikuta).  The 9th addresses a series of interesting issues raised by a defendant who attempted to illegally reenter the United States, thereby breaching a prior plea agreement.

In 2008, defendant pled guilty to an importation charge. The plea dismissed aggravated identity theft and attempted reentry charges (defendant had many other prior immigration charges). The plea agreement stated that the defendant must not seek to illegal reenter again. He did. The gov’t sought breach, got a ruling, and convicted.

The 9th affirmed the convictions.  It found that defendant had breached.  He had the opportunity to challenge the breach through pretrial motions.  The 9th held as well that (1) the court did not err in not appointing a fourth lawyer to represent the defendant (bar complaints were filed against prior counsel); (2) the court did not err in not conducting an evidentiary hearing regarding jury bias after the defendant while testifying made an obscene gesture during a sidebar; (3) the issue of breach did not have to go the jury; (4) the prosecutor's err in asking defendant whether another witness lied was remedied by instructions; and (5) the sentence (184 months) was not unreasonable.  The 9th vacated the court's order that the defendant must use his legal name.

The opinion does state that there is a conflict on the standard of review for a breach of plea.  Some cases require de novo of a breach, with deference to facts while others require a review for clear error.  The opinion sidesteps, saying that under any standard, a breach occurred.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/29/15-50143.pdf