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United States v. Alvarez

*fn* submitted pasadena california: November 4, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RAMON ALVAREZ, AKA JOSE RODRIGUEZ-RODRIGUEZ, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California. D.C. No. CR-89-0975-01-R. John S. Rhoades, District Judge, Presiding

Before: Beezer, Kozinski, and Kleinfeld, Circuit Judges.

MEMORANDUM

Ramon Alvarez pleaded guilty pursuant to a written plea agreement. If he pleaded guilty, truthfully disclosed information and testified, and committed no further crimes, then the government was obligated to recommend a downward departure. If he did not perform these conditions, then the agreement was to be "null and void." Alvarez did not perform the conditions, so the government refused to recommend the departure downward. He appeals, claiming that the district court should have ordered the government to perform its promises anyway, or else should have allowed him to withdraw his plea. We affirm.

I. Facts

Alvarez pleaded guilty to conspiracy to possess cocaine with intent to distribute, 21 U.S.C. §§ 846 and 841(a)(1), and possession of an unregistered firearm, 26 U.S.C. § 5861 (d). According to the colloquy when he entered his plea, Alvarez and another man, Bravo, arranged to buy $1 million worth of cocaine from undercover agents. Their real intention was to steal the cocaine from the agents instead of paying for it, aided by a fully automatic MAC-10 machine gun with silencer concealed at Alvarez's residence. The statutory maximum imprisonment was twenty years for the conspiracy count, and ten years for the weapon.

When the Judge asked Alvarez at the plea proceedings if he understood that he would not be allowed to withdraw his plea even if the guideline sentencing range turned out to be higher than he expected, Alvarez did not respond, and his attorney suggested that Alvarez was confused because the plea bargain provided for a recommendation of a downward departure. The Judge then ensured that defendant understood that the guidelines sentence would be considerably higher than the sentence under the agreement, but whether the government made the recommendation would depend on Alvarez's compliance with the conditions. The Judge explained that although he would not be bound by the government's departure recommendation, generally he followed such recommendations. Alvarez would not be allowed to withdraw his plea even if his attorney incorrectly computed the guidelines sentence or the Judge chose not to follow the government's recommendation for a downward departure.

The plea agreement provided, in relevant part:

1. The United States will accept a guilty plea . . . .

4. The defendant agrees that he shall truthfully disclose all information . . . .

6. If defendant abides by the provisions of this agreement, the Government will recommend a downward departure from the sentencing guidelines and recommend five years in custody.

7. The defendant understands that the sentence to be imposed is within the sole discretion of the sentencing Judge, and the United States has not, and will not, make any promises or representations as to what sentence the defendant will receive.

10. . . . A further condition of this agreement is that the defendant must not commit any further crimes. Should it be established that the defendant has intentionally provided materially false, incomplete, or misleading testimony or information, or has otherwise violated any provisions of this plea agreement, this plea agreement shall be null and void, and defendant shall thereafter be subject to prosecution for any federal criminal violation of which the United States Government has knowledge, including but not limited to perjury and obstruction of Justice.

Shortly before he was to be sentenced, Alvarez was placed in a cell with Bravo, against whom he was to provide evidence pursuant to his plea agreement. The government has offered no explanation for this bizarre placement. When Alvarez was taken from his cell to the United States Attorney's office, he refused to answer government questions, violating the condition of his plea agreement that he truthfully disclose all information. Alvarez was then brought into court, where he said "I do not want to proceed into any agreement," and requested a new attorney. He claimed that when he pleaded guilty, he was under the influence of drugs and was under pressure from the prosecutor and his attorney. The Judge warned him that the appointment of new counsel did not mean he was entitled to withdraw his plea, and the guideline sentencing range was 210 to 262 months. Sentencing was postponed to give Alvarez an opportunity to confer with his new attorney.

That night, Alvarez and Bravo took a prison guard hostage in their cell. The hostage standoff lasted seventeen hours. They were indicted and sentencing in Alvarez's cocaine case was postponed pending Disposition of the hostage case. Alvarez presented a defense of duress, urging that Bravo had forced him to engage in the crimes, but the jury rejected it. Alvarez was convicted of kidnapping, hostage taking, attempted escape, and ...


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