Saturday, January 14, 2012

Case o' The Week: Into the Breach, Leaps the Ninth Circuit - Alcala-Sanchez

True, the government agreed to recommend less than three years in its deal; yes, the AUSA recommended over six years in a sentencing memo, but, if the government is really really sorry for the mistake, isn't that enough?
Nope. United States v. Alcala-Sanchez, 2012 WL 45462 (9th Cir. Jan. 10, 2012), decision available here.

Players: Decision by Judge Gould. Big win by San Diego Ass’t Fed. Defenders Vince Brunkow and Devin Burstein.

Facts: Alcala-Sanchez pleaded guilty to a fast-track illegal reentry deal, with the government promising to recommend within the range of offense level 12. Id. at *1. The PSR, unfortunately, hit the defendant with (an apparently missed) +16 crime of violence: it reckoned offense level twenty. Id. Probation thus recommended 63 months: nearly twice the 33 months the government could seek under the deal. Id.

A different AUSA than the one who negotiated the deal submitted a sentencing memo, agreed with the PSR and recommended 78 months. Id. “Breach!” howled the defense. Id. Eventually – but not immediately – the government recanted and recommended a sentence within the plea agreement’s range. Id. The district court found no breach, agreed with Probation’s calculations, and started sentencing from that higher offense level 20 range. Id. at *3.

Issue(s): “Alcala contends that the government breached the plea agreement and that the appropriate remedy is remand for resentencing before a different judge.” Id. at *3.

Held: “We agree.” Id. “Here . . . . the government admitted its mistake and recommended the agreed-upon sentence before the district court sentenced Alcala. But we conclude that the government’s later actions did not cure its earlier breach. Alcala had lost the benefit of his bargain that contemplated that the government would present a united front with him in recommending a total offense level of 12 and a 33–month sentence. Although the government in the end gave the court the correct recommendation stating that Alcala deserved the benefit of his bargain, the district court might well have thought from the government’s initial submission and its qualified statements in open court that it truly thought Alcala deserved more but it was required to assent to the plea agreement provision. Because the district court has an independent duty and freedom in rendering sentence, the harm to Alcala from the government’s initial breach and subsequent attempt to cure it is not calculable. Id. at *4.

Of Note: Is the standard of review for the government’s breach of a plea agreement de novo, or clearly erroneous? Yes – at least in the Ninth. Id. at *3. Judge Gould notes that the Court “has not been entirely consistent” in applying its standard of review for this issue, but finds it unnecessary to resolve this issue in this case. Id.

How to Use: What is the remedy for this breach? It could be remand, with an order that the government sincerely recommend what it was supposed to recommend (and again be ignored again by the D.J.). Happily, the Ninth will have none of that – the remedy here is specific performance. Id. at *5 (“[T]he government breached the plea agreement, so we must vacate Alcala’s sentence and give Alcala the benefit of his bargain, specific performance of the plea agreement.”) (emphasis added).

This is potent stuff. Note that the opinion doesn’t say that Probation was wrong with its higher offense level, but it doesn’t matter – the government struck a deal (maybe a deal with “wrong” guidelines?) and now it and the court, it seems, are stuck with the deal. Alcala-Sanchez gives some real teeth to breach law, and in the process facilitates negotiated settlements, by apparently holding district courts to the government’s deal when the AUSA goes sideways on a bargain. It is a great opinion to wave around when an AUSA is caving to a Probation Officer intent on busting a nice negotiated dispo.
For Further Reading: Not a good week for the Feds, in the Ninth. In the remarkable United States v. Lopez-Avila decision, the Ninth calls out an Arizona AUSA by full name – repeatedly – for misrepresentations of a transcript on cross-examination. 2012 WL 89727 (9th Cir. Jan. 12, 2012), decision available here. Author Judge Bea is so palpably angry at this misconduct that he provides the web site for filing a DOJ Office of Professional Responsibility complaint in the opinion itself. Id. at *8 (Link to DOJ complaint here).

Lopez-Avila is a well-written, forceful decision that promises to be a lead prosecutorial misconduct case. Read Lopez-Avila soon: if experience is any guide, the Arizona USAO is even now lobbying to try to get the AUSA’s name removed from the opinion.

 Image of "Breach" (from arcade game) from

Steven Kalar, Senior Litigator ND Cal FPD
Website at


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