Argued and Submitted, Pasadena, California: May 15,
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Central District of California. D.C. No. 8:12-cr-00006-SVW-1. Stephen V. Wilson, District Judge, Presiding.
The panel vacated a sentence for illegal reentry in violation of 8 U.S.C. § 1326, and remanded for resentencing, in a case in which the defendant and the government executed a fast-track plea agreement under Fed. R. Crim. P. 11(c)(1)(C).
The panel held that the government breached the plea agreement through its repeated and inflammatory references to the defendant's criminal history in its sentencing memorandum, serving no practical purpose but to argue implicitly for a higher punishment than it had agreed to recommend. The panel held that the government also breached the plea agreement by violating its promise not to suggest in any way that the district court impose a sentence other than the stipulated one.
The panel explained that when a defendant timely objects, moves for specific performance, and successfully appeals the district court's post-breach order rejecting a Rule 11(c)(1)(C) plea agreement, the appropriate remedy is to vacate the conviction and sentence and remand for further proceedings before a different judge. Because the defendant appealed only his sentence and did not seek vacatur of his conviction, the panel vacated only his sentence and remanded for resentencing before a different district judge.
Sean K. Kennedy, Federal Public Defender, Jonathan D. Libby (argued), Deputy Federal Public Defender, Los Angeles, California, for Defendant-Appellant.
André Birotte Jr., United States Attorney, Robert E. Dugdale, Assistant United States Attorney, Chief, Criminal Division, L. Ashley Aull (argued), Assistant United States Attorney, Nathaniel B. Walker, Special Assistant United States Attorney, Los Angeles, California, for Plaintiff-Appellee.
Before: Alex Kozinski, Chief Judge, and Kim McLane Wardlaw and Raymond C. Fisher, Circuit Judges. Opinion by Judge Wardlaw.
WARDLAW, Circuit Judge:
Every day along the southwest border, previously deported aliens lacking entry documents are arrested, detained, and charged with illegal reentry. Once convicted, they serve a term of imprisonment, and then are again deported. The numbers are so great that federal prosecutors in these border states began to resort to an efficient means of securing a conviction: a " fast-track" plea agreement that binds the government and the defendant, but not the district judge.
The government secures the benefit of a streamlined process that minimizes the burden on its prosecutorial resources. It need not go before a grand jury to secure an indictment; battle motions, including collateral attacks on the underlying deportation; prosecute a jury trial; or oppose an appeal. The defendant, in turn, waives constitutional and other rights and agrees to a term of incarceration and, often, a term of supervised release ordinarily discouraged by the U.S. Sentencing Guidelines. What is the incentive for the defendant to take this deal? The prosecutor binds his office to recommend a four-level downward departure in the offense level now advised by the Guidelines, and to present a " united front" in favor of a reduced sentence to the district judge. If the judge does not accept this sentence, the defendant may walk away from his guilty plea, and proceedings will begin anew.
Paul Gabriel Morales Heredia (Morales) was one such defendant. But in Morales's case, the orderly and efficient plea-bargaining process did not play out as intended. The government extended the promise of a reduced prison term with one hand and took it away with the other. The prosecutor's recommendation of a six-month prison term rang hollow as he repeatedly and unnecessarily emphasized Morales's criminal history, adding for good measure his personal opinion that " defendant's history communicates a consistent disregard for both the criminal and immigration laws of the United States." Morales's counsel timely objected and sought specific performance of the plea agreement. The district judge denied this relief on the irrelevant ground that the prosecutor's statements did not influence him. We conclude that Morales is entitled to relief, and we vacate his sentence and remand for further proceedings before a different judge.
The Immigration and Nationality Act of 1952 imposed felony criminal liability for a previously deported alien who subsequently entered, attempted to enter, or was found in the United States. See Pub. L. 82-414, § 276, 66 Stat. 163, 229 (1952) (codified as amended at 8 U.S.C. § 1326). For several decades thereafter, this provision--like the immigration laws as a whole--was lightly enforced along the southwest border. Aliens were seldom charged with illegal reentry under § 1326. A few were charged with misdemeanor improper entry, 8 U.S.C. § 1325, and most were simply deported without criminal sanctions. In 1992, out of more than 565,000
undocumented aliens apprehended in the Southern District of California, only 245 were charged with a felony of any kind, and many of those charges arose from conduct other than the unlawful entry itself.
In the mid-1990s, the federal government increased its enforcement of the immigration laws in the southwest, rapidly expanding the resources available to the Border Patrol. Since then, the United States has prosecuted increasing numbers of aliens for illegal reentry under § 1326 and improper entry under § 1325. In 1993, the Department of Justice initiated fewer than 2,500 illegal reentry prosecutions. By 2004, that number had grown to more than 13,000. In each of the past five years, the federal government has initiated over 30,000 illegal reentry prosecutions, including an all-time high of 37,440 last year. These prosecutions constitute a significant proportion of the federal criminal docket. More than a third of all federal defendants in the Ninth Circuit are charged with immigration offenses.
Fast-track plea programs are both a response to and a cause of this rise in prosecutions. In 1993, the United States Attorney's Office for the Southern District of California began to offer accelerated plea deals to defendants charged with illegal reentry under 8 U.S.C. § 1326(b), who faced increased sentencing exposure because their previous removal had occurred subsequent to a felony conviction. See United States v. Estrada-Plata, 57 F.3d 757, 759 (9th Cir. 1995). Defendants were required to waive indictment, plead guilty at the initial appearance, waive appeal of their sentence, and stipulate to a two-year sentence, below the applicable range of the then-binding Guidelines. See id. In 1995, the same United States Attorney's Office began to offer fast-track pleas to all illegal reentry defendants with substantial criminal histories, requiring defendants to plead guilty under § 1326(a) and to stipulate to the entry of an order of removal that would result in their deportation immediately upon their release from prison. Making widespread use of fast-track pleas, the Southern District of California prosecuted more felony immigration offenses in 1995 than it had in the previous ten years
combined. In other border districts where the federal government had committed additional resources to enforcement, fast-track programs also emerged, and prosecutions rapidly increased.
In 2003, Congress endorsed fast-track pleas by directing the United States Sentencing Commission to promulgate a policy statement authorizing reduced sentences for participants in fast-track programs. See Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650, 675 (2003). The Sentencing Guidelines now permit the district court to adjust the offense level of a defendant who participates in a fast-track program not more than four levels downward. See U.S.S.G. § 5K3.1. The courts of appeals eventually split over whether a district court could impose a below-Guidelines sentence for a defendant in a district without a fast-track program on the basis of an unwarranted sentencing disparity with a fast-track defendant who had committed the same offense. Compare, e.g., United States v. Gonzalez-Zotelo, 556 F.3d 736, 739-40 (9th Cir. 2009), with United States v. Rodriguez, 527 F.3d 221, 227-29 (1st Cir. 2008). The Department of Justice responded in 2012 by establishing uniform eligibility requirements for fast-track pleas for all defendants across the country. See Memorandum for All United States Attorneys from James M. Cole, Deputy Attorney General, at 2 (Jan. 31, 2012) [hereinafter " Cole Memorandum" ], available at http://www.justice.gov/dag/fast-track-program.pdf.
While the details may vary from district to district, all fast-track programs " are based on the premise that a defendant who promptly agrees to participate in such a program saves the government significant and scarce resources that can be used to prosecute other defendants, and . . . has demonstrated an acceptance of responsibility above and beyond what is already taken into account by the adjustments contained in the Sentencing Guidelines." Id. at 1. According to the Department of Justice, fast-track plea agreements have become an important nationwide tool to address the " compelling, and ...