Appeal from the United States District Court for the District of Montana. D.C. No. CR-94-00004-CCL. Charles C. Lovell, District Judge, Presiding.
Before: Otto R. Skopil, Jr., Warren J. Ferguson and David R. Thompson, Circuit Judges. Opinion by Judge Thompson; Dissent by Judge Ferguson.
Carlos Oswaldo Cordova-Perez was convicted in federal district court of violating 8 U.S.C. § 1326(b)(2). In this appeal, he contends his prosecution was precluded by a state court plea agreement. He also contends the district court violated Rules 11(e) and 32(b)(3) of the Federal Rules of Criminal Procedure when, after accepting his plea of guilty to a lesser charge, the district court reviewed his presentence report, changed its mind on the basis of information contained in the report, revoked its earlier acceptance, and forced him to go to trial for the greater crime, of which he was convicted. Cordova-Perez also argues his trial on the greater charge violated the Double Jeopardy Clause of the United States Constitution.
We have jurisdiction under 28 U.S.C. § 1291. We reject each of Cordova-Perez's arguments and affirm his conviction.
On October 21, 1993, Cordova-Perez was arrested in Whitefish, Montana and charged in state court with possession of dangerous drugs with intent to sell. He entered a plea agreement, pursuant to which a 10-year sentence was suspended, and he was to be released to the custody of federal immigration officials for deportation to El Salvador. While he was still in state custody, he was indicted on the federal charge of unlawful reentry into the United States after having been deported as an aggravated felon, a violation of 8 U.S.C. § 1326(b)(2).
Cordova-Perez pleaded not guilty to the federal charge. He then moved to dismiss the indictment on the ground that his plea agreement in state court contemplated that he would be deported to El Salvador in exchange for his guilty plea to the state drug charge, and that he would not be subjected to further criminal proceedings. The district court denied the motion, finding that the state court plea agreement did not preclude Cordova-Perez's prosecution in federal court.
Cordova-Perez then entered a plea agreement with the United States Attorney's Office. Under the terms of this agreement, he agreed to plead guilty to a separate information charging him with a violation of the lesser offense of 8 U.S.C. § 1326(a), in exchange for dismissal of the greater offense for which he had been indicted. By this agreement, Cordova-Perez avoided the 15-year statutory maximum sentence for the greater offense, section 1326(b)(2), and limited his prison-term exposure to two years on the lesser offense, section 1326(a).
On March 8, 1994, the parties appeared before the district court for a change-of-plea hearing. After ascertaining that Cordova-Perez was acting voluntarily and understood the rights he was waiving by pleading guilty, the district court accepted his guilty plea to the lesser offense. The court then ordered a presentence report, and scheduled sentencing for a later date.
By the time the matter was called for sentencing, the court had reviewed Cordova-Perez's presentence report. Having reviewed that report, the court concluded it could not accept the plea agreement. The court explained that the plea agreement did not reflect the seriousness of Cordova-Perez's actual offense behavior, undermined the Sentencing Guidelines, and was contrary to the public interest. The court then rejected the plea agreement, vacated Cordova-Perez's guilty plea to the lesser offense, reinstated the original indictment, and set the matter for trial. After a jury trial, Cordova-Perez was found guilty and sentenced to 70 months imprisonment. This appeal followed.
We first consider Cordova-Perez's argument that the Disposition of the state court proceedings precluded his federal prosecution.
We agree with Cordova-Perez that the parties to the state plea agreement, as well as the state court, contemplated he would be deported after pleading guilty to the state charge. No one considered the possibility that he would be subjected to a separate federal prosecution.*fn1 But it is well settled that states cannot bind the federal government to the terms of a plea agreement to which the federal government is not a party. See, e.g., Fourth Street Pharmacy v. U.S. Dept. of Justice, 836 F.2d 1137, 1139 (8th Cir. 1988).*fn2
Perhaps because he recognizes this principle, Cordova-Perez asserts that an INS agent who was present at his change-of-plea hearing in state court promised he would be deported immediately and would not be prosecuted federally. Cordova-Perez argues that he and the state court relied on this promise, and the promise binds the federal government.
We reject this argument. The INS agent's comments were a straightforward response to a question posed by the state court Judge regarding deportation procedures. There was no promise. Moreover, even if the agent's comments could be construed as an implied promise that Cordova-Perez would not be prosecuted in federal court, Cordova-Perez is not entitled to the relief he seeks because he has not established that the INS agent was authorized to bind the United States Attorney. See United States v. Fuzer, 18 F.3d 517, 520-21 (7th Cir. 1994).
Cordova-Perez next contends the district court violated Rules 11(e) and 32(b)(3) of the Federal Rules of Criminal Procedure when, based on information it obtained from his presentence report, the court rejected the plea agreement and vacated his guilty ...