Case o' The Week: Of Articles IIIs and Guilty Pleas - Chavez-Cuevas, Cal Penal Code 211, and "Crime of Violence"

The Hon. Judge Carlos Bea

   How does one end up serving five years in federal custody, with no trial, and no District Judge having accepted a plea of guilt?

  (Hint: The answer ain’t stacked misdemeanors).

United States v. Chavez-Cuevas, 2017 WL 2927635 (9th Cir. July 10, 2016), decision available here.

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

  Hard fought appeal by AFDs Alana McMains and Sara Weinman, Federal Defenders of San Diego, Inc. 

Facts: Chavez-Cuevas was convicted of Cal. Penal Code § 211 robbery. Id. at *1. He was removed, and re-entered illegally to visit his sick mother. Id. Chavez-Cuevas was found, charged with § 1326, and stated his intent to plead guilty before the magistrate.

  The magistrate judge recommended that the district court accept the offered guilty plea. Id. However, “[a]t no point did the district court orally accept Chavez-Cueva’s guilty plea or address the magistrate judge’s above-discussed recommendation.” Id. at *3. The defense did not object. Id. at *3.

  The district court moved onto sentencing, and imposed a 57 month term. Id. at *1. The bulk of that guideline sentence was a sixteen level enhancement for a “crime of violence.” Id. The district court held that California Penal Code § 211 was a crime of violence, based upon the Ninth’s ’08 Becerril–Lopez decision.

Issue(s): “Chavez-Cuevas asserts that the district court erred . . . in applying a 16-level crime of violence sentencing enhancement in light of recent Supreme Court precedent purportedly in conflict with the Ninth Circuit precedent on which the district court relied.” Id.

Held: “[T]he Becerril–Lopez court’s approach complies with the rationale behind the categorical approach, which seeks to impose a sentencing enhancement only for prior crimes that were categorically crimes of violence. In considering the full range of relevant generic offenses, the Becerril–Lopez court properly analyzed exactly this question and rightly determined that while California robbery (§ 211) may be broader than two particular generic offenses, it nevertheless was categorically a crime of violence because its elements would always constitute either generic robbery or generic extortion, both of which are defined as crimes of violence in U.S.S.G. § 2L1.2(b)(1)(A)(ii). For these reasons, the district court properly relied on Becerril–Lopez to impose a 16–level sentencing enhancement.” Id. at *8.

  

Of Note: The lead issue in this case was the plea (or lack thereof). Can a defendant get five years, without an Article III district judge expressing accepting a guilty plea?

  He can now.

   Chavez-Cuevas argued that the failure of the district court to expressly accept a guilty plea was structural error. Id. at *4. Makes sense – as the Seventh has warned, Congress did not authorize D.J.’s to delegate the “vital task” of accepting a guilty plea to magistrates. Id. (quoting Harden, 758 F.3d at 891).

   Judge Bea, unfortunately, does not agree, and concludes that this issue falls into the curséd “plain error” standard of review. Id. *5. With that threshold question decided, it was short work for the panel to find no plain error. Id.

 Another frustrating chink in the eroding bulwark of structural error protections.

How to Use: N.B.: Chavez-Cuevas is instantly outdated. The decision analyzed the definition of “crime of violence” under the old 2015 § 2L1.2 guideline. The new 2016 guideline definitions narrow the definition of “extortion.” (The example used in Chavez-Cuevas wouldn’t satisfy the new extortion definition).

  For any case with a sentencing after 11/1/16, Chavez-Cuevas is a yawner: CPC § 211 robbery does not satisfy the new Guideline definition of “crime of violence.” The Ninth’s Johnson habeas warriors have already briefed this critical distinction -- make sure your court understands that Chavez-Cuevas’ CPC § 211 holding is yesterday’s news.

                                               

For Further Reading: Just last May, an en banc court of the Ninth vindicated the hard-fought litigation of the San Diego Defenders, and prohibited the indiscriminate shackling of pretrial inmates. See Sanchez-Gomez blog here. 

  The United States Marshal in Arizona, and the Arizona Magistrate Judges, seem to have concluded that this en banc decision doesn’t apply to them.

  The Ninth, apparently, disagrees.

  On Friday, the Ninth granted an injunction against the District Court of Arizona and its shackling practices, pending resolution of a mandamus filed by the Defender’s office there. See Rodrigo Zermeno-Gomez, et al v. USDC-AZP, No. 17-71867.

  Congratulations to Arizona AFPD Dan Kaplan for this important first victory: stay tuned for further developments on the Arizona FPD’s mandamus petition.

Image of the Honorable Judge Carlos Bea from https://www.c-span.org/video/?425486-1/ninth-circuit-court-appeals-judges-testify-court-restructuring at 26:47

Image of the seal of the District of Arizona from http://www.azd.uscourts.gov/sites/default/files/district_Arizona_seal_v1_AG.png

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

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Case o' The Week: Let's Make a Deal (but not with the Judge) - Kyle, Rule 11, and judicial involvement in plea negotiations

  What do Monty Hall and a federal district judge have in common?

  Very little, it turns out. United States v. Kyle, 2013 WL 5813119 (9th Cir. Oct. 30, 2013), decision available here.

Players: Decision by District Judge Marshall, joined by Judges Berzon and Bybee. Nice win for ND Cal CJA Attorney Ethan Balogh.

Facts: Investigation revealed that Kyle had molested an infant child and that the molestation had been photographed. Id. He was indicted under 18 USC § 2241(c) for aggravated sexual abuse of a child, and for child pornography charges. Id. at *2. He pleaded guilty pursuant to a plea agreement that jointly recommended 30 years -- the mand-min for the 2241(c) charge. Id. Before sentencing, the district court stated its intent to reject the plea because it was too lenient. Id. Kyle was allowed to withdraw his plea. Before trial was set, the district court engaged in a colloquy with defense counsel, discussing the need for an above-guideline sentence. Id. at *3. The parties promptly returned with a second deal that recommended a sentence range up to 405 months. 405 months was ultimately imposed. Id. at *4. The defense did not object at sentencing. Id. at *4. An appeal followed.

Issue(s): “Kyle argues his guilty plea and sentence must be set aside because the District Court impermissibly and prejudicially participated in plea negotiations.” Id. at *1. [In United States v. Davila, 133 S. Ct. 2139 (2013) the] Supreme Court held that automatic vacatur is inappropriate [when the trial court is involved in plea negotiations], explaining that vacatur of the plea is not in order if the record shows no prejudice to the defendant’s decision to plead guilty.” Id. (internal quotations and citation omitted) . . . We now follow Davila and review the District Court’s alleged violation of Rule 11(c)(1) in light of the prejudice inquiry required.” Id.   

Held: “[W]e find that the District Court participated in the parties’ plea discussions by prematurely committing itself to a sentence of a specific severity. The District Court’s participation prejudiced Kyle. We hold that Kyle’s plea must be VACATED and this appeal REMANDED for further proceedings.” Id.

Of Note: One new rule, one ambiguous rule, comes from Kyle. First, unsurprisingly, the Ninth’s old automatic-vacatur rule has been wiped-out by Davila: a prejudice inquiry is now necessary for Rule 11 violations. Id. at *1. 

  Less clear is the standard of review for Rule 11 violations: plain or harmless error under Rule 52? That rule will have to wait for another day – because Kyle wins anyway on plain error review, the panel “assumes without deciding” that plain error is the appropriate standard. Id. at *4.

How to Use: “We take this opportunity to emphasize that Rule 11(c)(1) is intended to eliminate all judicial pressure from plea discussions.” Id. at *5. Davila wants to prevent judges from leaning on defendants who are deciding whether to plea; Kyle wants the same. Id. at *6. (“[T]he District Court may not indicate what it might find acceptable or unacceptable in resolving the case.”) 

  That’s all well and good, but this line of law also put a quick kibosh on our extraordinarily helpful settlement conferences; magistrate-mediated negotiations that saved our clients decades of custody. Kyle also means that a dissatisfied district judge who busts a (C) plea agreement will no longer give hints on what deal might actually work. That was extraordinarily valuable intel for which we often fished before trudging back to the bargaining table. (Indeed, defense counsel had probed for exactly those clues in Kyle. Id. at *6 n.5). 

  We like the good appellate-court intentions of Davila and Kyle, but the down-and-dirty work of getting tough federal cases resolved wasn’t made any easier by this brace of opinions.  

                                               

For Further Reading: Big week for NorCal. In addition to Ethan’s victory, another ND Cal CJA counsel -- Erik Guzman -- brought home a welcome win with a Ninth reversal on a challenge to a removal order in a Section 1326 case. United States v. Cuenca-Vega, 2013 WL 5814760 (9th Cir. Oct. 2013) (mem). The training grounds for Mssrs. Guzman and Balogh? Defender Services of San Diego, Inc., where they both started their careers as Assistant Defenders. Nice to see the SoCal/NorCal friendship pay-off with a pair of Ninth reversals.

“Let’s Make a Deal” image from http://www.letsmakeadeal.com/lmad-curtain.GIF

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

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Case o' The Week: Critical for the Defense, "Collateral" for a Court? -- Delgado-Ramos, Immigration advisements, and Rule 11

Assume a defendant isn't warned of serious immigration consequences before he or she enters a plea of guilt. If it is the defense attorney who fails to advise his client, that failure is called "ineffective assistance of counsel." Padilla v. Kentucky, 130 S.Ct. 1473 (2010)

And if the district court fails to advise the same client, of the same immigration consequences, before the same guilty plea? Then these immigration ramifications are transformed into mere "collateral consequences" of a plea and there is no error, apparently. United States v. Delgado-Ramos,__ F.3d __, 2011 WL 1312778 (9th Cir. April 7, 2011), decision available here.

Players: Per curiam decision by Judges Rymer, Callahan, and Ikuta.

Facts: Delgado-Ramos entered an open guilty plea to illegal reentry before the Supreme Court’s decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Id. at *1. (Padilla is the important new decision holding that defense counsel was ineffective when he or she failed to advise the client of the immigration consequences of a conviction). While taking the plea, the district court did not advise Delgado-Ramos of the immigration consequences of the conviction. Id.

Issue(s): “Jose Delgado–Ramos appeals his conviction for attempted entry after deportation, see 8 U.S.C. § 1326(a)-(b), on the ground that the district court failed to inform him of the immigration consequences of his plea during the plea colloquy.” Id. at *1. “In United States v. Amador–Leal, 276 F.3d 511 (9th Cir.2002), we held that Rule 11 and due process do not require a district court to inform a defendant of the immigration consequences of his plea . . . Delgado argues, however, that the Supreme Court's recent decision in Padilla ‘casts doubt’ on the continued force of Amador–Leal and requests that we remand this case to the district court so that he ‘can plead anew.’” Id.

Held: “For a three-judge panel to hold that an intervening Supreme Court decision has ‘effectively overruled’ circuit precedent, the intervening decision must do more than simply ‘cast doubt’ on our precedent. Rather, it must ‘undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.’ Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). That high standard is not met here.” Id. at *1. “While Padilla's holding is directly applicable to our Sixth Amendment analysis in Fry, it sheds no light on the obligations a district court may have under Rule 11 and due process. Accordingly, we cannot say that Padilla ‘undercut[s] the theory or reasoning underlying’ our decision in Amador–Leal ‘in such a way that the cases are clearly irreconcilable.’” See Miller, 335 F.3d at 900. Because Amador–Leal remains the law of the circuit, the district court did not err in failing to advise Delgado of the immigration consequences of his plea.” Id. at *3.

Of Note: The panel in Delgado-Ramos goes to great lengths to distinguish Padilla, emphasizing that here the challenge is a Due Process / Rule 11 claim about the validity of a plea of guilt, and in Padilla it was a claim of ineffective assistance of counsel. Id. at *1.

With all respect, the distinction is unpersuasive.

In a nutshell, the panel relies on old case law that excused plea colloquies that did not advise of “collateral consequences.” Id. at *2. No fair reading of Padilla can leave one with the impression that immigration consequences remain “collateral,” anymore.

In the panel’s defense, a three-judge panel has to be chary about finding that intervening Supreme Court precedent has abrogated previous Ninth authority – but the opinion could have more openly conceded how pervasively Padilla has eroded the rationale underlying Ninth Circuit law. Delgado-Ramos in ripe for review, and the Ninth should take this opportunity to take the case en banc, ditch its old Rule 11 law, and get its authority in line with Padilla.

How to Use: It is hard to imagine how the holding of Delgado-Ramos could survive en banc or Supreme Court review. If you have this issue, bring it: this three-judge decision does not close the debate. Unfortunately, to really have the issue on appeal one would have to stay mum at the plea and let the district court forget to advise the client (otherwise, it is an easy error to fix by the district court judge). This failure to object leads to plain error review, and to survive the Olano analysis will be tricky business (particularly when defense counsel should always be giving Padilla advisements in any event, fatally undermining the necessary prejudice showing). Interesting, though, to think how a corrected Delgado-Ramos decision could be used in a habeas corpus challenge to a prior, or a writ of coram nobis.

For Further Reading: Those heartless Feds are going to deport your poor alien client, while relying on completely indecipherable immigration law - shouldn’t they at least give defense counsel a basic "crimigration" primer so you can give the client meaningful Padilla advisements before the plea?

They have – and it is a very useful resource. See Monograph here.


Image of Customs agent from http://www.ehow.com/info_8083203_laws-immigration.html


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: Can't See the Forrester for the Trees - Constitutional Right to Knowingly and Intelligently Reject a Deal

You have a constitutional right to an attorney who doesn't screw-up the description of a plea agreement. You have a constitutional right to be correctly advised of statutory maximum exposures when you make a decision to represent yourself. Do you have a constitutional right to be properly advised of the statutory maximum when you reject a plea agreement? An interesting question, and one that is neatly sidestepped by the Ninth Circuit in the latest iteration of a hard-fought case. United States v. Forrester, __ F.3d __, 2010 WL 10984 (9th Cir. Jan. 5, 2010), decision available here.

Players: Hard-fought case by former San Diego AFPD Ben Coleman.

Facts: Forrester was charged with conspiracy to manufacture and distribute ecstasy from a big L.A. lab. Id. at *1. He went pro per, and survived a Faretta hearing – but was advised of the wrong stat max during the hearing. Id. at *5. Five days before trial, he and his co-d were offered a package deal that capped their exposure at twenty years. If rejected, the government would file a § 851 enhancement that increased Forrester’s stat max to 30. Id. The pair rejected the deal, were convicted at trial, and Forrester got 30. Id. The Ninth remanded on the first appeal, finding a defective waiver of counsel because of the misadvisement of the stat max. Id.

On remand, Forrester moved the district court to strike the § 851 enhancement because he had been mis-advised of the potential penalties at the Faretta hearing. Id. The district court refused, Forrester pleaded guilty, and got thirty - again. Id.

[Ed. Note: Thirty again? Forrester could have presumably insisted on another trial on remand, at considerable expense in resources. To again max him out at thirty years despite the fact he pleaded guilty the second round - seems bad form. This case was remanded yet again by the Ninth for sentencing errors; hopefully Mr. Forrester will come in below thirty this third time around].

Issue(s): (Among many): “Forrester argues that, once a plea offer has been made, a defendant has a right to be accurately informed about his potential exposure before deciding to reject it. He relies on Nunes v. Mueller, a habeas case in which an attorney misinformed the defendant that he had received a plea offer for 22 years as opposed to 11 years . . . . In Nunes, we suggested that the right to make an informed decision about a plea is a corollary to the right to voluntarily and intelligently plead guilty.” Id. at *6.

Held: “Nunes was based on the well-founded constitutional right to effective assistance of counsel . . . . For Nunes to apply here, we would have to find that Forrester suffered a similar unconstitutional deprivation of rights that tainted his rejection of the plea offer. We decline to do so on these facts. Though a defendant may have a right to voluntarily and intelligently reject a plea offer, we need not reach that question in this case because any error was harmless.” Id. at *6.

Of Note: Forrester bristles with issues. One holding of first impression in the opinion relates to wiretaps. Author Judge M. Smith holds that the government can redact portions of a wiretap affidavit and refuse to give redacted sections to the defense, if the government is willing (and able) to disclaim reliance on those redacted portions. Id. at *8-*9. It is another disappointing blow in the sisyphian task of Title III litigation, but note that the holding is narrow – if the government refuses to disclose a portion (typically, relating to an informant), it can’t rely on information in that portion of the affidavit to defend against a necessity or Franks challenge.

How to Use: Is there a constitutional right to be informed of the details of a plea – and the risks in rejecting it? The panel artfully dodges that question in Forrester, because the co-D rejected the deal anyway and it was a package (hence harmless error).

Judge M. Smith agrees that there is a Sixth Amendment right to effective assistance of counsel, that includes a duty to convey and correctly advise regarding plea offers. Id. at *5-*6. But Forrester presented the question in more stark terms – because the defendant was pro per, the Sixth Amendment wasn’t in play. This is an interesting issue to bear in mind when stuck as advisory or “stand-by” counsel for pro per defendants: maybe there is a constitutional obligation for the court, or the government, to correctly advise a defendant about the benefits and consequences of a plea? And how does that jive with Rule 11, which prohibits a district judge from knowing about the details plea discussions before trial? May be a fertile field for future challenges.

For Further Reading: Forrester II familiar? That’s because Forrester I got a good deal of press for creating new (and bad) Fourth Amendment law on searches of IP addresses. See 512 F.3d 500 (9th Cir. 2008). For a blog on the unfortunate first Forrester, visit the posting, "Finding Forrester" here.



Image of the Hon. Milan D. Smith from http://georgewbush-whitehouse.archives.gov/index.html . Image of the poster from the movie, "Finding Forrester," from http://www.impawards.com/2000/finding_forrester.html

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Case o' The Week: Eleven is Better, Macinas-Flores

Like Nigel Tufnel, the Arizona Federal Public Defender likes Eleven. Rule Eleven of the Federal Rules of Criminal Procedure, to be precise -- the Rule that brought that office two big victories in the Ninth this week. See United States v. Macinas-Flores, 2009 WL 4282018 (9th Cir. Dec. 2, 2009), decision available here; see also United States v. Roblero-Solis, 2009 WL 4282022 (9th Cir. Dec. 2, 2009), decision available here.

(Ed Note - this memorandum discusses Macnas-Flores, and salutes the Roblero-Solis opinion in the "for further reading" section).

Players: Big win for D. Az. AFPD Dan Kaplan.

Facts: Folks in the US tipped-off ICE that their undocumented-alien relatives were being held hostage in a Phoenix stash house by alien smugglers. Id. at *1. The relatives were told to pay the smugglers, or the aliens would be beaten and raped. Id. ICE and the Phoenix police searched the stash house and found aliens, Macinas-Flores (and a co-defendant) and a loaded shotgun. Id.

On the eve of trial Macinas-Flores tried to plead to a deal to the gun alone (a § 924(c) charge), with a locked range of 25-45 years. Id. When the district court launched into the plea inquiry, Macinas-Flores answered, “I’m not really guilty.” Id. at *2. The trial judge stopped the plea proceeding, rejected the plea, called in the jury, and – after conviction – sentenced the defendant to life.

Issue(s): “Defendant argues that the district court erred in its handling of his guilty plea. He contends that the plea met all the requirements of Fed. R. Crim. P. 11(b), and that therefore the court had no discretion to reject it . . . . Alternatively, defendant argues that even if the court had discretion to reject his plea, it did not adequately explain its reasons for doing so and thus failed to actually exercise discretion.” Id.

Held: “Because the district court abruptly cut off the plea colloquy, we cannot conclude the plea satisfied all of Rule 11(b)’s requirements. As discussed below, however, we agree with defendant’s alternative argument and therefore the district court’s rejection of defendant’s guilty plea and remand for a new plea hearing.” Id.

Of Note: Macinas-Flores denied guilt, and the district court erred by rejecting the plea? The key to this counter-intuitive holding is Alford or nolo contendere pleas, “a plea of guilty in which a defendant maintains his innocence.” Id. at *3. A district court doesn’t have to accept an Alford plea, but it does have to engage in the Rule 11 inquiry and analysis that permits an appellate court to review the proceeding. That didn’t happen here, which bought the defendant a reversal and a chance to reclaim that fantastic 25-45 year deal

How to Use: Wisconsin District Judge Lynn S. Adelman (right) visits the Ninth and authors this opinion. (Recall his admirable and famous decision in the post-Booker Ranum opinion (blog on Ranum available here)). He's a seasoned and thoughtful jurist and a welcome visitor - hope he returns to the West again soon.

In Macinas-Flores, Judge Adelman brushes back the government’s whine of plain error in an analysis that is worth a close read. Id. at *8. Turns out a defendant does not “object” to a court’s ruling (like refusal to take a plea): instead, the party takes an “exception to the ruling.” Id. at *8. Under Fed. Rule of Criminal P. 51(a), exceptions to rulings of the court are unnecessary. Hence, one needn’t complain about a court’s erroneous ruling to avoid plain error review. Id. This is an adoption of a Seventh Circuit rule and is new to the Ninth – worth exploring the outer parameters of this distinction if you’re trying to dodge plain error review.

For Further Reading: One victory was not enough for Arizona last week – “the intrepid federal public defender” in Tuscon (a direct quote) chalked up another Rule 11 win as well. United States v. Roblero-Solis, et al., 2009 WL 4282022 (9th Cir. Dec. 2, 2009). Hard to imagine, but in enlightened Tuscon federal magistrates conducted the Rule 11 colloquy with fifty to a hundred defendants at a time. Id. at *2-*3. The government’s “Operation Streamline” churned undocumented aliens through the court en masse and cranked out dozens of simultaneous misdemeanor § 1325 convictions. Id. at *2.

Judge Noonan is thankfully unpersuaded by the remarkable efficiency of this judicial cattle call – he writes that the procedure violates Rule 11's demand that defendants be addressed “personally.” Id. at *8.

And the standard of review for the procedure in this case? Plain error! A bit of a head-scratcher, considering the Macinas-Flores rejection of Rule 11 plain error was delivered the same day . . . .


Image of Spinal Tap's Amps from http://citifield.files.wordpress.com/2009/07/spinaltap-11.jpg . Image of the Honorable Lynn Adelman from http://www.legis.wi.gov/senate/sen28/news/Photos/2009/images/Inauguration_adelman.jpg

Steven G. Kalar, Senior Litigator N.D. Cal. FPD.

Case o' The Week: The Ten Most Terrifying Words in the English Language: "I'm From the Government and I'm Here to Help You," Garcia-Aguilar

The government developed a sudden concern for defendants' rights to proper plea advisements in Garcia-Aguilar -- and Chief Judge Kozinski ain't buying it. Garcia-Aguilar v. United States District Court for the Southern District of California, 2008 WL 3009680 (9th Cir. Aug. 6, 2008), decision available here. This laudable San Diego Defender mandamus victory is a defense win in a quirky little corner of Section 1326 law, with some good ramifications for other defense strategies.

The case does, however, embrace a rule that promotes sloppy advisements during guilty pleas -- not a great development for Rule 11 practice.

Players: Nice win for San Diego Defenders Zandra Lopez, Michelle Betancourt, and Shaffy Moeel. Former San Diego AFPD David Zugman on the team with the briefing and on oral argument.

Facts: San Diego had “defective” § 1326 indictments, that failed to allege that an alien had been removed from the country after having been convicted of a felony. Id. at *1. The Ninth has held that this flaw is Apprendi error that (theoretically) limits a defendant’s exposure to two years. Id. at *2 (citing United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006)).

Garcia-Aguilar and other § 1326 defendants entered guilty pleas before the magistrates to these indictments. After the guilty pleas the government “belatedly” brought superseding indictments that alleged the necessary missing fact. Id. To fix its mistake, the government argued that the original guilty plea colloquies were defective, because the magistrates had advised the defendants they were looking at twenty years – when in reality, they were only looking at two years because of the “defective” indictment. Id.

On the government’s motion, the district courts refused to accept these unconditional guilty pleas. Id.

Issue(s): “We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.” Id. at *1.

Held: “The district court shall accept defendant’s unconditional pleas to the original indictments.” Id. at *4.

Of Note: As Arizona Defender Jon Sands has noted, Chief Judge Kozinski gives us the following wonderful quote: “These consolidated cases show again why the ten most terrifying words in the English language may be, ‘I’m from the government and I’m here to help you.” Id. at *1. Hard to fault a decision that is both a defense win and that mocks the government.

The troubling holding, however, is that it doesn’t matter how badly a court screws up an advisement at a plea, as long as it gets the highest possible maximum sentence right. Id. at *2. (Here, the magistrates were eighteen years off). Why not just guess “life,” and avoid any potential Rule 11 error? When a plea advisement is just a wild stab at the worst-case-scenario, then it stops becoming an advisement altogether. This Garcia-Aguilar "advisement rule" isn’t new, and maybe its full scope will be limited to these odd facts, but the case doesn’t exactly encourage careful practice in the trial courts.

How to Use: Does this mandamus decision have application beyond this quirky corner of Section 1326 litigation? It does, in our post-Apprendi world. Occasionally the feds screw up an indictment and fail to allege a fact that increases a statutory maximum sentence. What happens if a defendant jumps on that defect and pleads guilty out of the gate? Game over – under Garcia-Aguilar, the government can’t supersede: “the government has no power to force the defendant to go through the ordeal again to serve its own purpose.” Id. at *3. If this results in a dramatically lower sentence for the defendant, then “so be it.” Id. at *4. Moreover, if the district court balks, mandamus lies to force the court to take the plea.

Of course, there’s a caveat or two. In Garcia-Aguilar, there were no other crimes with which to charge the defendant: illegal reentry was the only arrow in the government’s quiver. That’s usually not true, where many other potential charges (not Blockburger-barred) can be brought in a superceding indictment. (Think “receipt” of child porn versus straight “possession,” or a spare § 924(c) charge).

Moreover, Garcia-Aguilar and his other consolidated defendants aren’t out of the woods, yet. In United States v. Salazar-Lopez, for example, there was a similar problem with the indictment – but the Ninth “cured” it through the magic of harmless error analysis. 506 F.3d 748, 752 (9th Cir. 2007). Undoubtably those clever San Diegians have figured out how to skirt this problem, but the Salazar-Lopez harmless error “cure” illustrates that the “quick plea” strategy still carries with it some dangers.

For Further Reading: Can a court stall a defendant’s quick guilty plea, to let the government allege priors and to fix mistakes in the indictment? Yep. See 21 USC § 851(a)(1) (allowing delay for good cause); see also United States v. Duffy, 179 F.3d 1304, 1305 (11th Cir. 1999) (notice of priors filed by government during plea hearing timely).


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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