Case o' The Week: Once More Into the Breach - Plascencia-Orozco and Breach of Plea Agreements

Honorable Judge Carlos Bea

 Practice pointer: When an opinion starts by observing that a defendant stands out as a “cara dura,” things probably won’t end well.

United States v. Plascencia-Orozco, 2017 U.S. App. LEXIS 5445 (9th Cir. Mar. 29, 2017), opinion available here.

Players: Decision by Judge Bea, joined by Judges Callahan and Ikuta.

Facts: Plascencia-Orozo stole the I.D. of U.S. citizen “Del Muro.” He attempted unlawful entry using the Del Muro identity in 2008 and 2011. Id. at *4.

  In 2008, Plascencia plead guilty to importation of marijuana: remaining counts were dismissed pursuant to a plea agreement. Id. The plea agreement allowed the dismissed agg ID and reentry charges to be resuscitated in the event of a breach, or if Plascencia unlawfully returned to the U.S. during his term of supervised release. Id. at *11.

  Plascencia was removed after serving his term.

  Two months later, in 2011, he was caught attempting to reenter again, with the “Del Muro” identity.

  Plascencia was charged with agg ID theft and attempted illegal reentry. Id. One set of the agg ID / reentry charges came from the (dismissed) 2008 counts, on a theory Plascencia had breached his ‘08 plea agreement. Id. at *5-*6.

  In a pretrial hearing, the district court found a breach of the plea agreement by a preponderance of the evidence. Plascencia was convicted after trial. Id. at *3, *6.

Issue(s): “Plascencia argues that the district court erred by ruling that Plascencia had breached his 2008 plea agreement at a pretrial motions-in-limine hearing. Instead, Plascencia argues, the district court should have submitted the issue to the jury. Alternatively, Plascencia contends, it should have at least required the government to seek a finding of breach before reindicting Plascencia on the 2008 charges.” Id. at *16.

Held: “We have never squarely held that a district judge may find that a defendant breached a prior plea agreement at a pretrial hearing, without submitting the question to a jury.” Id. at *18 (footnote omitted). “We join the First Circuit in holding that the question of breach is for the district judge, not a jury, to decide.” Id. at *19.

  “We have also never expressly addressed whether the government must seek a judicial finding of breach before indicting a defendant on charges barred by a plea agreement. [W]e think that . . . —a motion to dismiss under Rule 12(b), with an evidentiary hearing to resolve disputed factual issues and a burden of proof that rests squarely on the government—are sufficient to protect a defendant’s due-process right to enforce the terms of his plea agreement. Plascencia has pointed us to no statute or case law requiring the government to seek a preindictment finding of breach, and we decline to recognize such a requirement here.” Id. at *21 (footnote omitted).

  “In sum, we conclude that the proper way for a defendant to raise a prior plea agreement as a defense to a criminal charge is to move to dismiss that charge under Federal Rule of Criminal Procedure 12(b). If the government thinks that the defendant has breached the plea agreement, such that it no longer applies, then it must proffer sufficient evidence to establish that breach by a preponderance of the evidence. . . . The matter need not be submitted to a jury, nor need it be decided before the indictment or information is filed. The district court followed these procedures here, and its ruling at the motions-in-limine hearing that Plascencia had breached his plea agreement was not reversible error.” Id. at *23.

Of Note: The defense of this case was – challenging. Plascencia initiated bar complaints against two attorneys, ended up with three attorneys, and was denied a fourth. He made “an obscene gesture” at a juror, and testified that he was the father of Del Muro’s children (contradicting the testimony of the mother of Del Muro’s children). The only (somewhat) bright spot is the Ninth’s reversal of a “free standing” order that Plascencia to use his true name in the future. Id. at *37-*38.

How to Use: Judge Bea notes (and avoids) conflicted standards of review in the breach context. Id. at *14 n. 8. Despite that sidestep, Plascencia creates new law for breach in the Ninth, and lays out the analysis of breach under the existing rules. It is now a lead Ninth opinion on how to tackle breached plea agreements.

                                               

For Further Reading: Can you exploit a D.J.’s wink, and deliberately breach a plea agreement when a better sentence than the deal is the likely outcome?

  For a good article on this ethical bind, see Can Defense Counsel Ethically Breach a Plea Agreement?, available here.

Image of the Honorable Carlos Bea from http://abovethelaw.com/2006/11/atl-party-crash-the-final-fed-soc-photos/

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

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Case o' The Week: Ninth Fords Restitution jurisprudence - Alvarez and Restitution After Paroline

  F-o-r-d = “Fix or Repair Daily.” 

  (Here, on the defendant’s dime).

United States v. Pablo Alvarez, 2016 WL 4547362 (9th Cir. Sept. 1, 2016), decision available here.

The Honorable Judges Callahan, Clifton and Ikuta (left to right)

  Players: Decision by Judge Clifton, joined by Judges Callahan and Ikuta.

Facts: Alvarez and a co-D were caught illegally transporting aliens. Id. at *1. Alvarez was driving his own Chevy; the co-D drove a Ford that Alvarez had rented. Id. After a high-speed chase they hit spikes that the Border Patrol put across the road. The rental Ford was damaged. Id. Alvarez plead to a deal that promised a low-end custodial recommendation. Id. 

  The deal didn’t (really) discuss restitution. The PSR did -- it recommended Alvarez pay for the damage for the rental Ford. Id. 

  Over defense objection the court ordered $2,900 in restitution. Id.

Issue(s): “On appeal, Alvarez argues that the Supreme Court's decision in Paroline . . . established that restitution is a form of punishment. He contends, therefore, that restitution cannot be imposed as a condition of supervised release under the relevant statutes. For the same reason, he argues that restitution cannot be imposed based on facts not found by a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000).” Id.

Held: “[R]estitution is not clearly a form of punishment and can be imposed as a condition of supervised release.” Id. 

  “Because Paroline did not establish that restitution is a punishment, Alvarez also cannot succeed on his argument that the district court violated Apprendi by imposing restitution based on facts not found by a jury. . . . [T]he Ninth Circuit “has categorically held that Apprendi and its progeny ... don't apply to restitution.” . . . . Paroline is not “clearly irreconcilable” with that authority, and Green is still viable precedent.

Of Note: The district court didn’t advise Alvarez that restitution was a potential consequence of the guilty plea – a clear Rule 11 error. Id. at *6 (“Where restitution is a possible penalty for a crime, Rule 11 of the Federal Rules of Criminal Procedure requires that a defendant be advised of the court's authority to impose restitution before the court can accept a guilty plea.”) Why not reversed? Because, in the Ninth, that error is harmless if the defendant was told he was subject to a fine in excess of the restitution imposed (which happened here). Id. at *6. (Harmlessness also got a boost by the DJ’s offer to let Alvarez withdraw his plea – which he rejected). Id. 

How to Use: The Court also rejected Alvarez’s claim that the government breached the plea by asking for restitution – even though that term was not laid out in the agreement. Id. at *5. Central to that analysis was the defendant’s “reasonable expectation” as to whether restitution would be imposed. Id. at *6. Alvarez conceded at the first sentencing hearing that he knew he would have to pay for restitution: “I know that for a fact, and I have no problem doing that.” Id. “The government did not breach the agreement by pursuing restitution subsequent to Alvarez's clear statement that he expected to have to pay it.” Id. Alavarez later changed his view, and switched counsel – but his first disclaimer still killed the breach claim. 

   “The reasonable expectations of the defendant can be ascertained through the objective proof on the record,” explains Judge Clifton, id. at *5: beware of those prior hearing transcripts when mulling a breach argument.

                                               

For Further Reading: Are permanent residents entitled to bail hearings while awaiting deportation rulings? “Of course,” held the Ninth. Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002) (affirming Nor Cal's own Judge Illston). 

  “Wrong,” the Supreme Court countered. Demore v. Kim, 123 S.Ct. 1708 (2003). 

  DOJ got the Ninth reversed based on government statistics, after assuring the Supremes that removal hearings were quick, deportation appeals were rare, and immigration appeals were speedily resolved. 

   The glitch? The Feds’ stats were wrong. See blog entry here.  

   The government’s data had “several significant errors,” now confesses the Acting Solicitor General. See letter here. 

   Turns out the Executive Office for Immigration Review’s numbers were plagued with “serious errors in the query of its data it undertook at the time.” Id.  

   Is the government now urging reconsideration of Kim? 

   No – though DOJ “greatly regret[s] the necessity for this letter.” Id.

Image of Judges Callahan, Clifton, and Ikuta from https://www.youtube.com/watch?v=b-mfYE7MH0o

 "Three kinds of lies" quote from http://www.quotesvalley.com/images/31/there-are-three-types-of-lies-lies-damn-lies-and-statistics5.png

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

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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.

Image of contract from http://static1.squarespace.com/static/54b5b627e4b0ad6fb5d09409/t/552065b3e4b019d7121fd8b5/1428186547561/breach.jpg?format=1500w

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

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