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

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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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