USA v. Sergio Alcala-Sanchez

Filing

FILED OPINION (DOROTHY W. NELSON, RONALD M. GOULD and SANDRA S. IKUTA) VACATED; REMANDED., Judge: RMG Authoring,. FILED AND ENTERED JUDGMENT. [8024965]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SERGIO ALCALA-SANCHEZ,
Defendant-Appellant.

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


No. 11-50030
D.C. No.
3:10-cr-03434DMS-1
OPINION

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted
December 9, 2011—Pasadena, California
Filed January 10, 2012
Before: Dorothy W. Nelson, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Gould

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COUNSEL
Vincent J. Brunkow and Devin Burstein, Federal Defenders of
San Diego, Inc., San Diego, California, for the defendantappellant.
Bruce R. Castetter and Anne Kristina Perry, United States
Attorney’s Office, San Diego, California, for plaintiffappellee.

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OPINION
GOULD, Circuit Judge:
Sergio Alcala-Sanchez (“Alcala”) appeals the sentence
imposed after he pled guilty to being a deported alien found
in the United States in violation of 8 U.S.C. § 1326. Alcala
contends that the government breached the plea agreement,
notwithstanding the government’s later admission that it made
a mistake in its initial sentencing recommendation and its substitution of the recommendation to which Alcala and the government had agreed in the plea agreement. We have
jurisdiction under 28 U.S.C. § 1291. We vacate Alcala’s sentence and remand for resentencing before a different district
judge.
I
On August 1, 2010, a Customs and Border Patrol agent saw
Alcala walking along Interstate 905, about three miles north
of the San Ysidro, California Port of Entry. The agent contacted Alcala. After first giving the agent a false name and
date of birth, Alcala admitted that he was in the United States
illegally and gave his true identity. Alcala had previously
been deported from the United States.
The government filed a one-count Information charging
Alcala with being a deported alien found in the United States,
in violation of 8 U.S.C. § 1326(a) and (b). Alcala entered into
a “Fast-Track” plea agreement with the government. He pled
guilty to the charge in the Information and admitted the elements of the offense. Alcala also admitted to being deported
after a 1995 conviction for burglary, an aggravated felony, in
violation of California Penal Code § 459.
In the plea agreement, the parties agreed that U.S. Sentencing Guidelines (“U.S.S.G.”) § 2L1.2 applied, and they agreed
to the following Guidelines calculations: a base offense level

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of 8, an 8-level enhancement for the 1995 aggravated felony
conviction, a 3-level reduction for acceptance of responsibility, and a 1-level reduction for fast-track departure. Pursuant
to these calculations, the government agreed to recommend a
total offense level of 12. The parties did not agree on Alcala’s
criminal history category, and the government could recommend a sentence at the high end of the Guidelines range.
The Probation Office filed a presentence report (“PSR”).
Though the PSR recognized the parties’ agreement to recommend a total offense level of 12, it calculated a total offense
level of 20 and a Guidelines range of 63 to 78 months.1 The
PSR determined that Alcala’s 1993 conviction for dissuading
a witness by force or threat, in violation of California Penal
Code § 136.1(c)(1), constituted a crime of violence. Accordingly, the PSR calculated a 16-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). It also calculated reductions for
acceptance of responsibility and fast-track departure that
matched those set out in the plea agreement. The PSR recommended a sentence of 63 months, the low end of the Guidelines range.
The government then filed a sentencing summary chart
repeating the PSR’s calculations of an offense level of 20 and
a Guidelines range of 63 to 78 months, and recommending a
sentence of 78 months, at the high end of the Guidelines
range.
Alcala filed a sentencing memorandum and objections to
the PSR. He objected to the government’s sentencing recommendation, stating, “[T]he government is bound by the terms
of the plea agreement to recommend an 8-level increase, or
they are in breach of the agreement. The government’s recommendation should be 33 months in custody.” Alcala recommended a sentence of 27 months, the low end of the
Guidelines range—27 to 33 months—at a total offense level
1

The PSR calculated Alcala’s criminal history category as V.

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of 12. He also contended that his § 136.1 conviction did not
constitute a crime of violence.
The prosecutor who submitted the sentencing summary
chart did not appear at the January 13, 2011 sentencing hearing. Instead, the prosecutor who had negotiated the plea
agreement, appeared and stated, “I understand that there is a
dispute between the parties about the guideline recommendation and what the plea agreement would call for.” She added
that though she had negotiated the plea, she did not submit the
sentencing summary chart and was “just not comfortable
making a recommendation that is different than what the sentencing assistant was going to recommend.” The district court
continued the sentencing hearing to the next week.
At the continued hearing, the prosecutor who made the sentencing recommendation appeared and began by “apologiz[ing] profusely” to the district court and to defense counsel.
She said, “I read through the presentence report more carefully, I think, than I did the plea agreement.” The prosecutor
continued, “I recognize that the probation department determined that the defendant was guilty of a crime that would
result in a plus 16; however, it is the position of our office that
the defendant is entitled to the benefit of his bargain.” She
then reported the government’s corrected Guidelines calculations to the district court: a criminal history category of V, an
adjusted offense level of 12, and a Guidelines range of 27 to
33 months. Consistent with the plea agreement, she then recommended a 33-month sentence.
Defense counsel reasserted the position that the government had breached the plea agreement. The prosecutor who
filed the sentencing summary chart responded on behalf of the
government:
This is what happens when these cases get handed
from person to person to person, Your Honor. I
know that I did not put the time and energy into

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researching the issue of the plus eight versus plus 16
as was put into by [the parties].
I must assume that it was the position of this case,
and our office on this case, at the time it was submitted with the P.S.R. that the plus eight was appropriate. I have no problem standing by that.
The district court then confirmed that the government meant
to “withdraw the sentencing summary chart that [it] initially
filed,” “stand by the plea agreement,” “argue that the [§ ]
136.1[conviction] is a plus eight, not a plus 16,” and “urge the
court to sentence Mr. Alcala within the 27 to 33 month
range.” Defense counsel acknowledged the government’s
attempt to “mitigate the damage caused by the breach” and
said that she “believed this really was just a mistake.” But
defense counsel continued to maintain the argument that the
government had breached the plea agreement, urging, “I am
not sure you can unring that bell. . . . All of [what has happened] has now become part of [the district court’s] sentencing calculus, for better or worse.” The assigned prosecutor
again apologized and stressed that she “made a mistake.” She
also noted the “overwhelming number of cases that [she] personally ha[d].”
The district court concluded that the government had not
breached the plea agreement. The district court accepted the
government’s representations that Alcala’s § 136.1 conviction
was a plus 8 and that the government was requesting a sentence within the 27- to 33-month range set forth in the plea
agreement, but stated that it had an independent obligation to
calculate the correct Guidelines range and arrive at a just and
fair sentence under 18 U.S.C. § 3553(a). The district court
concluded that Alcala’s § 136.1 conviction was a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a plus 16, and
it calculated the Guidelines range as 63 to 78 months. After
hearing argument on the § 3553(a) factors, the district court

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departed downward from the Guidelines range and sentenced
Alcala to 48 months.
II
We have not been entirely consistent in our standards for
reviewing a claim that the government breached a plea agreement. United States v. Ellis, 641 F.3d 411, 417 (9th Cir.
2011); United States v. Mondragon, 228 F.3d 978, 979-80
(9th Cir. 2000). Compare, e.g., United States v. Schuman, 127
F.3d 815, 817 (9th Cir. 1997) (de novo standard), with United
States v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996) (clearly
erroneous standard).
Because the district court clearly erred in determining that
the government did not breach the plea agreement, the result
is the same under either standard, so we need not resolve the
inconsistency here. See Ellis, 641 F.3d at 417.
III
Alcala contends that the government breached the plea
agreement and that the appropriate remedy is remand for
resentencing before a different judge. We agree.
[1] “[W]hen a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said
to be part of the inducement or consideration, such promise
must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262
(1971). A plea agreement is a contract, and the government is
held to its literal terms. Mondragon, 228 F.3d at 980. Requiring the government to strictly comply with the terms of a plea
agreement encourages plea bargaining, “an essential component of the administration of justice,” Santobello, 404 U.S. at
260, because it ensures that a defendant gets the benefit of his
or her bargain—the presentation of a “united front” to the
court. See United States v. Camarillo-Tello, 236 F.3d 1024,
1028 (9th Cir. 2001).

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It does not matter that a breach is inadvertent, see Santobello, 404 U.S. at 262, or “that the statements or arguments
the prosecutor makes in breach of the agreement do not influence the sentencing judge.” Gunn v. Ignacio, 263 F.3d 965,
969-70 (9th Cir. 2001).
In Santobello, the State agreed in the plea agreement to
make no recommendation as to the sentence. 404 U.S. at 258.
Months later, at the sentencing hearing, a new prosecutor
replaced the prosecutor that had negotiated the plea. Id. at
259. The new prosecutor recommended the maximum sentence. Id. Over defense counsel’s objection, the sentencing
judge stated, “I am not at all influenced by what the District
Attorney says,” and imposed the maximum sentence. Id. at
259-60. The United States Supreme Court, despite stating it
had “no reason to doubt” the sentencing judge’s assertion that
the prosecutor’s recommendation did not influence him,
vacated the judgment and remanded the case. Id. at 262-63.
The Court stated, “The staff lawyers in a prosecutor’s office
have the burden of ‘letting the left hand know what the right
hand is doing’ or has done. That the breach of agreement was
inadvertent does not lessen its impact.” Id. at 262.
[2] In this case, which in material respects is similar to
Santobello, the government breached the literal terms of the
plea agreement. See Mondragon, 228 F.3d at 980. It promised
to recommend a total offense level of 12 and no more than a
33-month sentence and instead submitted a sentencing summary chart recommending a total offense level of 20 and a 78month sentence. This did not present a “united front” to the
court. See Camarillo-Tello, 236 F.3d at 1028. It does not matter that the breach was inadvertent, caused by a heavy workload for government lawyers, or the result of “cases get[ting]
handed from person to person” at the U.S. Attorney’s Office.
See Santobello, 404 U.S. at 262. “The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know
what the right hand is doing’ or has done.” Id. The district
court clearly erred in holding that no breach occurred.

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[3] Here, unlike in Santobello, 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.
The government’s breach was no mere slip of the tongue or
typographical error. The government not only recommended
a higher Guidelines range than the range set forth in the plea
agreement, but also recommended a high-end Guidelines sentence that was higher than the sentence recommended in the
PSR. The government did not quickly change its position after
Alcala, ten days before the first sentencing hearing, filed his
sentencing memorandum contending that the plea agreement
obligated the government to recommend an 8-level enhancement and a 33-month sentence or else be “in breach.” Thereafter, at the first sentencing hearing, the government did not
retract its sentencing recommendation, despite the fact that
the prosecutor who had negotiated the plea agreement
appeared for the government. And at the second sentencing
hearing, rather than take an unequivocal position from the
outset that a plus-8 rather than a plus-16 enhancement was
appropriate, the prosecutor who submitted the sentencing
summary chart attributed her mistake to “cases get[ting]
handed from person to person” and said that she would stand
by the plus 8 but could not give “a more detailed explanation

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of what our position is with regard to . . . a plus 16.” These
equivocations left room for doubt about the government’s
position on the issue.
[4] The prosecutor who made the sentencing recommendation admitted her mistake and eventually urged the district
court to adopt a 33-month sentence based on a plus-8
enhancement as promised. But at that late stage, the breach,
however inadvertent, could not be undone. See Santobello,
404 U.S. at 262 (“[A]t this stage the prosecution is not in a
good position to argue that its inadvertent breach of agreement is immaterial.”); see also United States v. Kurkculer,
918 F.2d 295, 302 (1st Cir. 1990) (“The Court in Santobello
nowhere suggested that a mere withdrawal of the offending
recommendation with substitution of the agreed recommendation would have been a sufficient remedy.”).
[5] That the government changed its recommendation
before the district court sentenced Alcala does not change our
conclusion. As explained above, in these circumstances one
really cannot calculate how the government’s error and breach
may have affected the perceptions of the sentencing judge.
Equally important, under Santobello and our precedent, the
argued impact on the sentencing judge, when there is a breach
of a plea agreement by making an erroneous sentencing recommendation and subsequent correction, is irrelevant. See
Santobello, 404 U.S. at 262; Gunn, 263 F.3d at 969-70; Mondragon, 228 F.3d at 981. “The integrity of our judicial system
requires that the government strictly comply with its obligations under a plea agreement.” Mondragon, 228 F.3d at 981.
To excuse plea agreement breaches in light of later attempted
mitigation would lessen the government’s duty of strict compliance.
[6] Here, the 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.
We remand for resentencing before a different district judge

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to eliminate impact of the government’s prior mistake and
breach. See Santobello, 404 U.S. at 263; Mondragon, 228
F.3d at 981.2
Alcala’s sentence is VACATED and the case
REMANDED for resentencing before a different judge.

2

As we said in United States v. Johnson, “We remand to a different
judge for re-sentencing because the case law requires us to do so. We
intend no criticism of the district judge by this action, and none should be
inferred.” 187 F.3d 1129, 1136 n.7 (9th Cir. 1999).