USA v. Paul Gabriel Morales Heredia

Filing

FILED OPINION (ALEX KOZINSKI, KIM MCLANE WARDLAW and RAYMOND C. FISHER) VACATED; REMANDED. Judge: AK , Judge: KMW Authoring, Judge: RCF . FILED AND ENTERED JUDGMENT. [9269398]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 12-50331
D.C. No.
8:12-cr-00006SVW-1

PAUL GABRIEL MORALES HEREDIA,
AKA Alejandro Montada Heredia,
AKA Alejandro Montada, AKA Paul
Gabriel Morales, AKA Paul Heredia
Morales,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
May 15, 2014—Pasadena, California
Filed October 8, 2014
Before: Alex Kozinski, Chief Judge, and Kim McLane
Wardlaw and Raymond C. Fisher, Circuit Judges.
Opinion by Judge Wardlaw

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UNITED STATES V. MORALES HEREDIA
SUMMARY*

Criminal Law
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.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
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.

OPINION
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,

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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.
I.
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

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(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.1 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.2
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.3 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.4 By 2004, that number had grown to more than

1

See Alan D. Bersin, Reinventing Immigration Law Enforcement in the
Southern District of California, 8 FED. SENT’G REP. 254, 254–55 (1996).
2

See William Braniff, Local Discretion, Prosecutorial Choices and the
Sentencing Guidelines, 5 FED. SENT’G REP. 309, 309 (1993).
3

See generally U.S. GEN. ACCOUNTING OFFICE, GAO-01-842, INS’
SOUTHWEST BORDER STRATEGY: RESOURCE AND IMPACT ISSUES REMAIN
AFTER SEVEN YEARS (2001).
4

See At Nearly 100,000, Immigration Prosecutions Reach All-Time
High in FY 2013, TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE
(Nov. 25, 2013), http://trac.syr.edu/immigration/reports/336.

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13,000.5 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.6
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.7
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

5

See Changes in Criminal Enforcement of Immigration Laws,
TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE (May 13, 2014),
http://trac.syr.edu/immigration/reports/354.
6

Id. While the number of § 1326 charges has increased in rough parallel
with the number of § 1325 charges, the number of § 1326 convictions has
started to decline as defendants increasingly resolve their cases by
pleading to misdemeanors. See Despite Rise in Felony Charges, Most
Immigration Convictions Remain Misdemeanors, TRANSACTIONAL
R E C O R D S A C C E S S C LE A R I N G H O U S E ( J une 2 6 , 20 1 4) ,
http://trac.syr.edu/immigration/reports/356. In the District of Arizona, in
particular, almost 90 percent of defendants initially charged under § 1326
are eventually convicted under § 1325. See id.
7

See UNITED STATES COURTS FOR THE NINTH CIRCUIT, 2012 ANNUAL
REPORT 65 (2012).

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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.8 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.9 In other border districts where the federal
government had committed additional resources to
enforcement, fast-track programs also emerged, and
prosecutions rapidly increased.10
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. 10821, § 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 fasttrack 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

8

See Bersin, supra note 1, at 256.

9

See id.

10

See id. at 258 n.1; see also Thomas E. Gorman, A History of FastTrack Sentencing, 21 FED. SENT’G REP. 311, 311 (2009).

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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/fasttrack-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 otherwise potentially
intractable, resource issue” posed by the number of
immigration crimes on the federal criminal docket.11 Id.

11

The government has also responded to these resource challenges by
appointing Special Assistant United States Attorneys to handle criminal
prosecutions. These attorneys may be on loan from other government
agencies, or may be unpaid volunteers. See Joe Davidson, ‘Special’
Assistant United States Attorneys Work for Free, WASH. POST, July 18,
2013.

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Because the object of a fast-track plea is to achieve
greater than normal efficiency through a lighter than normal
sentence, the parties in a fast-track case typically encourage
the district court to impose the negotiated sentence. Federal
Rule of Criminal Procedure 11 provides them with the means
to do so. Rule 11 governs the process for entering pleas and
sets forth requirements for the district court’s acceptance of
a guilty plea. See Fed. R. Crim. P. 11(a), (b). It also
recognizes three distinct types of plea agreements. See Fed.
R. Crim. P. 11(c)(1). The government may agree to dismiss
or not to bring further charges; to make a sentencing
recommendation that does not bind the district court; or to
make a sentencing recommendation that binds the district
court if the court accepts the agreement. Id.
Specifically, Rule 11(c)(1)(C) authorizes the government
to “agree that a specific sentence or sentencing range is the
appropriate disposition of the case, or that a particular
provision of the Sentencing Guidelines . . . or sentencing
factor does or does not apply.” The agreement “is contingent
until the court accepts” it. Freeman v. United States, 131 S.
Ct. 2685, 2692 (2011) (plurality opinion). When presented
with a Rule 11(c)(1)(C) agreement, the district court may
accept the agreement, reject the agreement, or wait to
consider the agreement until it has reviewed the presentence
report. See Fed. R. Crim. P. 11(c)(3). If the district court
ultimately accepts the agreement, it must impose the
recommended sentence. See Fed. R. Crim. P. 11(c)(4). If it
ultimately rejects the agreement, it must give the defendant

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the opportunity to withdraw his plea. See Fed. R. Crim. P.
11(c)(5).12
While Rule 11(c)(1)(C) may apply to any offense, it plays
a particularly important role in fast-track illegal reentry cases.
The Department of Justice requires that United States
Attorneys retain the discretion to compel defendants who
wish to participate in fast-track programs to enter into Rule
11(c)(1)(C) agreements. See Cole Memorandum at 4. In
some judicial districts, fast-track defendants are in fact
required to enter into Rule 11(c)(1)(C) agreements.13 In
2006, the Central District of California began to offer a Rule
11(c)(1)(C) agreement as its standard fast-track plea offer to

12

Sentence bargains are a longstanding, though controversial, practice.
See Joshua D. Asher, Note, Unbinding the Bound: Reframing the
Availability of Sentence Modifications for Offenders Who Entered Into
11(c)(1)(C) Plea Agreements, 111 COLUM. L. REV. 1004, 1005–06,
1021–23 & n.90 (2011). One district judge has described Rule
11(c)(1)(C) pleas as “the best tool between the extremes of no prosecution
at all and an effort to obtain the most severe sentence available under the
law and the Guidelines.” John Gleeson, The Sentencing Commission and
Prosecutorial Discretion: The Role of the Courts in Policing Sentence
Bargains, 36 HOFSTRA L. REV. 639, 641 (2008). But Rule 11(c)(1)(C),
like other procedural provisions that allocate power to prosecutors to
determine sentences, also raises the concern that “the prosecutor becomes
the adjudicator—making the relevant factual findings, applying the law to
the facts, and selecting the sentence or at least the sentencing range.”
Rachel E. Barkow, Institutional Design and the Policing of Prosecutors:
Lessons from Administrative Law, 61 STAN. L. REV. 869, 878 (2009).
13
See Fast-Track Policies for Illegal Reentry Cases by District
and Circuit, D EFENDER S ERVICES O FFICE (Dec. 2013),
http://www.fd.org/docs/select-topics/sentencing-resources/fast-trackpolicies-for-illegal-reentry-cases-by-district-and-circuit-%28december2013%29.pdf?sfvrsn=4.

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most defendants charged with illegal reentry.14 As far as we
are aware, this policy remains in effect. In the Central
District and throughout the Ninth Circuit, Rule 11(c)(1)(C)
agreements are a common way of resolving illegal reentry
prosecutions. See, e.g., United States v. Gonzalez, 502 F.
App’x 665 (9th Cir. 2012); United States v. Soto-Lopez,
475 F. App’x 144 (9th Cir. 2012); United States v. Martinez,
357 F. App’x 100 (9th Cir. 2009); United States v. CruzGramajo, 570 F.3d 1162, 1166–67 (9th Cir. 2009).
II.
Within this larger context, enter (or, reenter) Morales.
Like so many others, Morales, a native and citizen of Mexico,
has repeatedly crossed the southwest border into the United
States without authorization. After being removed from the
United States in 1992, 2009, and 2010, he again entered
without inspection in 2011.
Immigration authorities
apprehended him. The government charged Morales in an
information with illegal reentry, in violation of 8 U.S.C.
§ 1326. The government also provided notice that one of
Morales’s prior removals had occurred subsequent to an
aggravated felony conviction, thereby increasing the statutory
maximum penalty from two years’ imprisonment to twenty
years’ imprisonment. See 8 U.S.C. § 1326(b)(2).
In January 2012, Morales and the government executed a
written fast-track plea agreement under Rule 11(c)(1)(C).
Morales agreed to plead guilty to the sole count of illegal
reentry in the information at the earliest opportunity provided

14

See Memorandum Reporting Revisions to Illegal Reentry Fast-Track
Program in Central District of California, 21 FED. SENT’G REP. 349, 350
(2009).

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by the government. He agreed to waive his constitutional
rights to be indicted by a grand jury, to contest his guilt at
trial, to confront adverse witnesses, to testify on his own
behalf, and to avoid self-incrimination. Morales also
promised not to pursue any affirmative defenses, to seek the
suppression of evidence under the Fourth or Fifth
Amendments, or to pursue any other pretrial motions.
Finally, he agreed to waive his right to appeal his conviction.
Morales acknowledged that his conviction might subject him
to deportation.
In return, the United States promised to recommend a
particular sentence that would bind the district court unless it
rejected the agreement. The parties agreed on the applicable
provisions of the United States Sentencing Guidelines. They
also agreed that Morales’s total offense level under the
Guidelines was nine. This included the four-level reduction
advised by the Guidelines for participation in a fast-track
program. See U.S.S.G. § 5K3.1. The parties agreed that the
probation office could prepare a presentence report (PSR) that
addressed only Morales’s criminal history, and that no further
factual development of the record was required. The parties
acknowledged that the district court would calculate
Morales’s criminal history category. The intersection of the
criminal history category with Morales’s stipulated total
offense level would determine his sentencing range under the
Guidelines. See U.S.S.G. ch. 5, pt. A.
Morales and the United States agreed that the appropriate
disposition of the case was a prison term equal to the low end
of the applicable Guidelines range, plus the statutory
maximum of three years of supervised release, see 18 U.S.C.
§ 3583(b)(2). They did so despite the provision of the
Sentencing Guidelines advising against supervised release in

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cases involving aliens who, like Morales, would likely be
deported after incarceration. See U.S.S.G. § 5D1.1(c).
Morales acknowledged that the conditions of his supervised
release would include compliance with the immigration laws
of the United States.
Both parties agreed to recommend that the district court
impose the stipulated sentence. They also agreed that they
would not “seek, argue, or suggest in any way, either orally
or in writing, that any other specific offense characteristics,
adjustments, departures, or variances in sentence . . . be
imposed, or that the Court impose a sentence other than what
has been stipulated to by the parties herein.” Both reserved
the right to “supplement the facts” by supplying the court
with relevant information, as well as the right to “correct any
and all factual misstatements” relating to the district court’s
Guidelines calculations. If the district court imposed the
stipulated sentence, both parties waived the right to appeal
any part of the sentence except the court’s calculation of
Morales’s criminal history category.
The district court provisionally accepted Morales’s plea
of guilty, while cautioning Morales that it reserved the right
to reject the Rule 11(c)(1)(C) plea agreement and that, if it
did so, Morales would have an opportunity to withdraw his
plea. Several weeks later, Morales’s probation officer
disclosed his presentence report to the parties and the district
court. The PSR detailed Morales’s criminal history, which
included felony convictions for burglary, receiving stolen
property, and the sale of heroin, as well as a misdemeanor
domestic violence conviction. The probation officer
determined that Morales had three criminal history points,
resulting in a criminal history category of II and, with the
fast-track downward adjustment in offense level, an

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applicable Guidelines range of six to twelve months in prison.
The probation officer recommended that the district court
impose the stipulated low-end sentence of six months’
imprisonment plus three years of supervised release.
The government then filed its sentencing position in the
district court. The government recommended a low-end
sentence of six months’ imprisonment and a three-year period
of supervised release, as it had agreed to do. It then went on
to detail “[d]efendant’s 20-year criminal history” already
identified in the PSR. Discussing Morales’s 1993 conviction
for possession of heroin for sale, the government noted that
Morales had been “arrested with 56 balloons filled with over
9 grams of heroin.” Addressing Morales’s 1995 domestic
violence conviction, the government explained that Morales
“allegedly choked the mother of his then-infant daughter,
grabbed her face, shook her vigorously, shoved her against a
wall, and cut her lip.” Morales’s criminal history, the
government argued, “communicates a consistent disregard for
both the criminal and immigration laws of the United States.”
Furthermore, though it argued that a six-month sentence
was reasonable, the government also noted that “defendant’s
demonstrated propensity for drug trafficking and theft-related
offenses is also concerning, and an appropriate sentence is
warranted to ensure sufficient deterrence to future criminal
conduct.” And, to support the recommended term of
supervised release, the government stated that Morales “poses
a danger to the community because his criminal history
includes both drug trafficking and battery.”
Defense counsel promptly emailed the prosecutor to
express his view that the government had breached the plea
agreement by failing to recommend, in substance, a sentence

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at the low end of the Guidelines range. Counsel urged the
government to withdraw its sentencing position and file a
new one. The prosecutor denied breaching the agreement.
Shortly thereafter, the government filed a supplemental
sentencing position without withdrawing the original. In its
supplemental memorandum, the government corrected two
technical errors and reiterated its support for a “low-end 6month prison term” and a three-year period of supervised
release. The government stated that it had “consistently
advocated” for this sentence and that its prior memorandum
had “analyze[d] defendant’s criminal history because
criminal history is a major component of any thorough
[sentencing] analysis.”
A few weeks later, the district court informed the parties
that it would not accept the terms of the Rule 11(c)(1)(C)
agreement and that Morales therefore had the right to
withdraw his guilty plea. Defense counsel immediately
moved for specific performance of the plea agreement,
arguing that the government’s initial sentencing
memorandum had breached it. At a hearing on the motion,
the district court expressed its view that Rule “11(c)(1)(C) is
a different kind of plea agreement,” and that it retained
discretion to reject the agreement irrespective of the
government’s statements. Defense counsel argued that “the
breach[] jurisprudence is no less applicable in the 11(c)(1)(C)
context than it is in any other plea agreement context.”
The district court denied Morales’s motion for specific
performance of the plea agreement in a written order. It
explained: “The Government’s brief description of
Defendant’s criminal history and prior immigration violations
had no effect on this Court’s rejection of the Rule 11(c)(1)(C)
plea.” Rather, it had determined that the stipulated sentence

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was inadequate “on the basis of its independent review” of
the PSR. The district court noted that “all of the cases cited
by Defendant . . . did not involve[] a Rule 11(c)(1)(C) plea.”15
Four days later, at the sentencing hearing, Morales
declined to withdraw his guilty plea when given the
opportunity to do so. The district court sentenced him to
twenty-one months of incarceration—three-and-a-half times
longer than the stipulated prison term—and three years of
supervised release. The twenty-one month prison term was
equal to the high end of the Guidelines range that would have
applied without the four-level downward adjustment for a
fast-track plea. Morales timely appealed.
III.
We have jurisdiction to review Morales’s sentence
pursuant to 18 U.S.C. § 3742(a). Because Morales’s counsel
objected to the government’s statements before the district
court, we review de novo whether the government breached
the plea agreement. United States v. Whitney, 673 F.3d 965,
970 (9th Cir. 2012).
IV.
A.
“[C]riminal justice today is for the most part a system of
pleas, not a system of trials.” Lafler v. Cooper, 132 S. Ct.
1376, 1388 (2012). In the vast majority of criminal cases, a

15

We cannot discern from the record whether the district court found
that there was no breach or that any breach was harmless. The difference
is immaterial to our analysis, as either conclusion was error.

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prosecutor’s promise of less harsh treatment induces the
defendant to waive his constitutional rights and admit guilt.
Plea bargaining is desirable because it conserves resources,
encourages prompt and final resolution of criminal cases,
helps avoid the “corrosive impact” of prolonged pretrial
detention, and abates the risk to public safety caused by
lengthy pretrial release. Santobello v. New York, 404 U.S.
257, 260–61 (1971). “However, all of these considerations
presuppose fairness” in the plea bargaining process. Id. at
261. Accordingly, when the prosecutor makes a promise to
the defendant, that “promise must be fulfilled.” Id. at 262.
The integrity of the criminal justice system depends upon the
government’s strict compliance with the terms of the plea
agreements into which it freely enters. See Whitney, 673 F.3d
at 974.
Plea agreements are “essentially contracts.” Puckett v.
United States, 556 U.S. 129, 137 (2009). We enforce their
literal terms, construing any ambiguities in the defendant’s
favor. See United States v. Franco-Lopez, 312 F.3d 984, 989
(9th Cir. 2002). In interpreting the agreement and crafting an
appropriate remedy for any breach, our task is to “secure the
benefits promised [the defendant] by the government in
exchange for surrendering his right to trial.” Id.
The government breaches its agreement with the
defendant if it promises to recommend a particular
disposition of the case, and then either fails to recommend
that disposition or recommends a different one. See, e.g.,
United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir.
1999). See generally 5 WAYNE R. LAFAVE ET AL., CRIMINAL
PROCEDURE § 21.2(d) (3d ed. 2013). When it offers to
recommend a specific sentence, the government induces the
defendant to forfeit his constitutional rights in exchange for

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a “united front.” United States v. Camarillo-Tello, 236 F.3d
1024, 1028 (9th Cir. 2001). “[W]hen the sentencing court
hears that both sides believe a certain sentence is appropriate
and reasonable in the circumstances, this is more persuasive
than only the defendant arguing for that sentence. . . . [T]his
‘united front’ is the defendant’s benefit of the bargain.” Id.
The government’s promise to recommend a particular
disposition can be broken either explicitly or implicitly. See
Whitney, 673 F.3d at 971. The government is under no
obligation to make an agreed-upon recommendation
“enthusiastically.” Johnson, 187 F.3d at 1135. However, it
may not superficially abide by its promise to recommend a
particular sentence while also making statements that serve
no practical purpose but to advocate for a harsher one. See
Whitney, 673 F.3d at 971; United States v. Mondragon,
228 F.3d 978, 981 (9th Cir. 2000); Johnson, 187 F.3d at 1135.
That is, the government breaches its bargain with the
defendant if it purports to make the promised
recommendation while “‘winking’ at the district court” to
impliedly request a different outcome. United States v. Has
No Horses, 261 F.3d 744, 750 (8th Cir. 2001). An implicit
breach of the plea agreement occurs if, for example, the
government agrees to recommend a sentence at the low end
of the applicable Guidelines range, but then makes
inflammatory comments about the defendant’s past offenses
that do not “provide the district judge with any new
information or correct factual inaccuracies.” Whitney,
673 F.3d at 971 (quoting Mondragon, 228 F.3d at 980).
B.
As the district court observed, we have not previously
applied the principles governing the breach of plea

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19

agreements to Rule 11(c)(1)(C) agreements.16 The only
logical conclusion, however, is that those principles apply
with equal force in this context. Our decisions in Mondragon
and Whitney confirm that the government breached its
agreement with Morales by denying him the united front for
which he bargained. The government’s statements in this
case did at least as much to recommend a harsher than
agreed-upon sentence as the statements that breached the plea
agreements in Mondragon and Whitney.
In Mondragon, the government promised the defendant
that it would “make no recommendation regarding [the]
sentence.” 228 F.3d at 979. After defense counsel
characterized the defendant’s previous crimes as “petty,” the
district court asked the government whether it had any
comment. Id. The government pointed out in response that
the defendant had frequently run from law enforcement,
resisted arrest, and skipped court dates. See id. We rejected
the government’s argument that its comments served the
legitimate purpose of responding to the court’s question or
correcting factual misstatements by opposing counsel. See id.
at 980. Because the “prosecutor’s comments did not provide
the district judge with any new information or correct any
factual inaccuracies,” but simply repeated information
already contained in the PSR, we concluded that “the
comments could have been made for only one purpose: to
16

In United States v. Gonzalez-Aguilar, 718 F.3d 1185 (9th Cir. 2013),
we reviewed a similar alleged breach of a Rule 11(c)(1)(C) agreement for
plain error. We declined to decide whether the government had breached
the agreement by including aggravating facts in its sentencing
memorandum because we held that the defendant could not show any
breach affected his substantial rights. Id. at 1187. Here, because defense
counsel timely objected below, we address the questions left open in
Gonzalez-Aguilar.

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influence the district court to impose a harsher sentence.” Id.
By implicitly making a sentencing recommendation, the
government breached the plea agreement. Id.
In Whitney, the government promised the defendant it
would recommend a sentence at the low end of the applicable
Guidelines range. See Whitney, 673 F.3d at 968. After
defense counsel stated that the defendant was merely a
nonviolent thief, and “not a good thief,” the government
responded to “rebut[]” the claim, arguing that the defendant
was in fact a “good thief.” Id. at 969–70. As in Mondragon,
the prosecutor’s comments provided no new factual
information to the district court. See id. at 971. We rejected
as “disingenuous” the government’s argument that it was
compelled to provide an argument to “justify even its low-end
guideline sentence recommendation.” Id. at 971–72. The
district court had given no indication that it was considering
imposing a sentence lower than the government’s
recommendation; the defendant could not have requested a
below-Guidelines sentence under the terms of the plea
agreement; and the probation office recommended a sentence
more than double the low end of the Guidelines range. See
id. at 972. We therefore concluded that the prosecutor’s
critical comments “could only have been intended” to
persuade the district court to impose a higher sentence than
the government had promised to recommend, “and not to
guard against an unsolicited downward departure.”17 Id.

17
We are not persuaded by the government’s attempt to distinguish
Whitney on the basis that the prosecutor there also separately breached the
plea agreement by divulging confidential information. Whitney analyzed
the two separate breaches of the plea agreement independently of each
other. See Whitney, 673 F.3d at 970–71.

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21

Here, the parties agreed to recommend that Morales
receive a prison term equal to the low end of the applicable
Guidelines range plus a three-year term of supervised release.
The government breached its agreement, however, through its
repeated and inflammatory references to Morales’s criminal
history in its sentencing memorandum. Like Mondragon and
Whitney, all of the aggravating factual information in this
memorandum had already been provided to the district court
in the PSR. Moreover, there was no reason to believe that the
district court was considering imposing a sentence less harsh
than the stipulated one. Nor were the government’s
statements made off the cuff or in response to commentary or
argument by the defense. Rather, given the opportunity to
argue for the low-end sentence it had promised to
recommend, the government offered a series of prejudicial
“statements related to the seriousness of the defendant’s prior
record.” Whitney, 673 F.3d at 971. The central theme of the
government’s sentencing position was that Morales was a
dangerous recidivist who had spent twenty years flouting the
law and menacing others. Whether intentional or not, the
government breached the plea agreement by implicitly
recommending a higher sentence than agreed upon.
We recognize that this case differs from Whitney in a
significant respect: Here, the government bound itself to
recommend not only a low-end Guidelines sentence, but also
a statutory maximum three-year term of supervised release.
This supervised release term is contrary to the Guidelines,
which provide that “[t]he court ordinarily should not impose
a term of supervised release” when a defendant, like Morales,
is “likely [to] be deported after imprisonment.” U.S.S.G.
§ 5D1.1(c) (emphasis added). The government contends that
the inflammatory material was properly included in the

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sentencing memorandum to support the recommended threeyear term of supervised release. We disagree.
As an initial matter, this does not appear to have been the
government’s actual motivation for the offending statements,
almost none of which appear in the portion of the sentencing
memorandum that discusses supervised release. Furthermore,
while the government could permissibly make some factual
reference to Morales’s criminal history to justify the
stipulated term of supervised release, the government offers
no justification for the depth and tone of its discussion. That
Morales possessed 56 balloons of heroin when arrested for
selling drugs, and that his misdemeanor domestic violence
conviction was for choking and shoving the mother of his
infant daughter, are prejudicial details likelier to inflame than
to provide information relevant to the imposition of
supervised release. See U.S.S.G. § 5D1.3(b). And the
prosecutor’s references to Morales’s “propensity for drug
trafficking” and “consistent disregard for both the criminal
and immigration laws of the United States” are merely
pejorative editorializing.18

18

The government could, for example, have said the criminal history
was found in the PSR and incorporated it in its sentencing memorandum
by reference. The discussion of Morales’s criminal history in the PSR
included no editorializing or inflammatory language. Indeed, the
probation office adopted this approach in justifying its sentencing
recommendation to the district court:
In regard to Morales’ criminal history, he has felony
convictions for drug sales, receiving stolen property,
and commercial burglary. He also has a misdemeanor
conviction for spousal abuse. The longest sentence he
received in the past was a year in county jail. . . .

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23

Most important, the particular context of this fast-track
plea agreement negates the government’s purported
justification for its statements. Morales was induced to enter
into a fast-track plea by the offer of a binding sentencing
recommendation resulting in a lower prison term than he
would receive if he pleaded guilty later. To his detriment,
Morales stipulated to the three-year term of supervised
release even though he knew he would be deported following
his release.19 As the parties acknowledged in briefing and at
oral argument, a three-year term of supervised release is

After considering the nature and circumstances of
Morales’ offense as well as his history and
characteristics, a six month sentence followed by three
years supervised release is recommended as sufficient
but not greater than necessary. A sentence of this
length is the same length as the actual time served for
the one year county jail sentence that Morales served in
the past and it is hoped it will have an adequate
deterrent effect and also promote respect for the
law. . . .
The advisory guidelines discourage a term of
supervised release when not required by statute and
when the defendant is a deportable alien. However, a
three year term is recommended as agreed to by the
parties and as a term of this length will protect the
public in light of Morales’ prior convictions for drug
sales.
19

A mandatory condition of supervised release is that the defendant not
commit any federal, state, or local crime. See 18 U.S.C. § 3583(d).
Morales’s supervised release also included the routine condition that he
comply with all immigration rules and regulations and not reenter the
United States illegally. Morales thereby agreed to additional punishment
should he again be caught unlawfully returning to the United States. He
could be incarcerated for violating the terms of his supervised release, as
well as subject to another § 1326 prosecution.

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apparently a common provision of fast-track pleas in illegal
reentry cases in the Central District of California.20 The
government had no reason to call special attention to the
ugliest aspects of Morales’s past to justify what is, in these
circumstances, a routine recommendation.
Indeed, given the government’s promise of leniency, it is
notable that its sentencing memorandum contained no
mitigating information at all. Rather, it emphasized that
Morales, a “danger to the community,” needed to be
“deterre[d]” because of his “20-year criminal history,” his
“consistent disregard” for the law, and his criminal
“propensity.” The reader is left to wonder why the
government believed a low-end Guidelines sentence was
appropriate in the first place. Accordingly, we conclude that,
as a whole and in context, the government’s pejorative
comments about Morales’s criminal history and detailed
descriptions of his prior offenses served “no purpose” but to
argue for a harsher punishment than it had agreed to
recommend. Whitney, 673 F.3d at 971. By implicitly
advocating for a sentence other than the stipulated one, the
government breached the plea agreement.
The government also breached its agreement with
Morales in a second, independent way. The government did
not only agree to recommend a particular sentence, as in
Whitney, or to avoid recommending a sentence, as in

20

A review of our cases confirms that a three-year term of supervised
release is not uncommon in illegal reentry prosecutions in the Central
District of California. See, e.g., United States v. Gutierrez, No. 13-50008;
United States v. Cardenas, 13-50045; United States v. Canas, 540 F.
App’x 789 (9th Cir. 2013); United States v. Meza, 319 F. App’x 695 (9th
Cir. 2009); United States v. Ceja-Licea, 264 F. App’x 594 (9th Cir. 2008).

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Mondragon. It also expressly promised in the plea agreement
not to “seek, argue, or suggest in any way” that the district
court impose a “sentence other than what has been stipulated
to by the parties herein.” We enforce the literal terms of this
promise and require the government’s strict compliance with
it. See Whitney, 673 F.3d at 974; Franco-Lopez, 312 F.3d at
989.
Even if the inflammatory language in the government’s
sentencing position had partially served a legitimate purpose,
which it did not, it surely also “suggest[ed]” that the district
court impose a harsher sentence. The government freely
undertook a broad commitment to Morales to avoid even the
implication that a sentence other than the stipulated one might
be appropriate. See WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 2286 (2002) (defining “suggest” as “to mention
. . . as a possibility,” “put forward by implication,” or
“propose . . . as desirable or fitting”). At a minimum, by
characterizing Morales as a dangerous criminal, the
sentencing memorandum suggested in some way that a
sentence other than six months in prison could be advisable.
Under this provision of the contract between Morales and the
government, it is irrelevant whether these statements also
served another purpose. Therefore, even if we did not
conclude that the offending language had “no practical
purpose” but to argue implicitly for a harsher than stipulated
punishment, we would still conclude that the government
breached the express terms of this plea agreement.
C.
The government’s breach of the plea agreement was
neither cured nor curable before the district court.

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The government filed a supplemental sentencing position
in the district court in response to defense counsel’s
objection. This supplemental filing did not acknowledge, let
alone rectify, the government’s previous errors. It merely
corrected two clerical mistakes and argued that the
government’s initial sentencing memorandum had properly
“analyze[d]” Morales’s criminal history to support the
recommended three-year term of supervised release. The
government’s denial that it had breached the agreement did
not restore the united front for which Morales had bargained.
Moreover, even if the government had acknowledged its
error in its supplemental memorandum, doing so would not
have cured the breach. Only “some breaches may be curable
upon timely objection” to the district court. Puckett, 556 U.S.
at 140 (emphasis in original). For example, if the prosecution
makes a “mere slip of the tongue or typographical error,”
United States v. Alcala-Sanchez, 666 F.3d 571, 576 (9th Cir.
2012), or “simply forg[ets] its commitment and is willing to
adhere to the agreement,” Puckett, 556 U.S. at 140, the
prosecution may cure the inadvertent mistake by promptly
discharging its obligations. But a breach like the one that
occurred here cannot be undone. Once the prosecution has
forcefully argued for a sentence other than the stipulated one
and has denied the defendant a united front, “one really
cannot calculate how the government’s error and breach may
have affected the perceptions of the sentencing judge.”
Alcala-Sanchez, 666 F.3d at 577. That the district court
claimed not to have been influenced by the government’s
sentencing memorandum is simply “irrelevant.” CamarilloTello, 236 F.3d at 1028; accord Santobello, 404 U.S. at 262;
Gunn v. Ignacio, 263 F.3d 965, 969–70 (9th Cir. 2001).

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Nor does Morales’s decision not to withdraw his plea
before his sentence was imposed cure the government’s
breach.21 Morales bargained for the opportunity to withdraw
his plea if the district court rejected the plea agreement
despite the government’s support. To conclude that
Morales’s choice not to withdraw his plea somehow negates
the breach would force Morales to bear the burden of the
government’s error. Indeed, it would effectively license the
government to violate Rule 11(c)(1)(C) agreements with
impunity, as the defendant would be compelled either to
accept the result of the proceedings infected by the breach or
to risk proceeding to trial or attempting to negotiate a new
agreement with no leverage. We decline to “lessen the
government’s duty of strict compliance” in this manner.
Alcala-Sanchez, 666 F.3d at 577.
V.
We do not review the breach of a plea agreement for
harmless error on appeal. See, e.g., Mondragon, 228 F.3d at
981. Rather, “automatic reversal is warranted when objection
to the Government’s breach of a plea agreement has been
preserved.” Puckett, 556 U.S. at 141 (citing Santobello,
404 U.S. at 261–62). Furthermore, “case law requires” that
any further proceedings occur before a different judge, even
if we have no doubt that the first district judge treated the
defendant fairly and impartially. Alcala-Sanchez, 666 F.3d
at 577 n.2 (quoting United States v. Johnson, 187 F.3d 1129,
1136 n.7 (9th Cir. 1999)); accord Whitney, 673 F.3d at 968

21

Once the district court rejected the plea agreement, as distinct from the
plea itself, Morales’s guilty plea became a “naked” plea, unaccompanied
by any waiver of appellate review. See In re Vasquez-Ramirez, 443 F.3d
692, 697 (9th Cir. 2006).

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n.1. Once the district judge has seen or heard the offending
words that denied the defendant the benefit of his bargain,
any further proceedings before him would necessarily be
tainted by the government’s breach. The only way to undo
the damage is to reassign the case.
When the district court rejects a Rule 11(c)(1)(C) plea
agreement after overruling the defendant’s objection to an
alleged breach, the defendant may appeal the district court’s
order rejecting the plea agreement after the district court has
entered judgment and imposed a sentence. See United States
v. Samueli, 582 F.3d 988, 993–94 (9th Cir. 2009); In re
Morgan, 506 F.3d 705, 708–12 (9th Cir. 2007). When the
district court finds that the government breached a Rule
11(c)(1)(C) agreement and the defendant timely moves for
specific performance, the district court must grant the motion,
order the government to fulfill its obligations under the
agreement, and immediately transfer the case to a different
district judge to ensure that the decision to accept or reject the
agreement will be untainted by the breach.22 See Puckett, 556
U.S. at 140. If the district court fails to grant the defendant’s
motion for specific performance and instead rejects the Rule
11(c)(1)(C) agreement, it commits an error of law and thereby
abuses its discretion. See Perry v. Brown, 667 F.3d 1078,
1084 (9th Cir. 2012) (“[A]n error of law constitutes an abuse
of discretion.”).

22

Morales’s counsel did not seek the correct remedy before the district
court, but instead suggested that the district court was required to impose
a six-month sentence. The government’s breach does not strip the district
court of its discretion to accept or reject the plea agreement; it merely
requires prompt reassignment so the court’s discretion may be exercised
independently of the government’s breach.

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Vacatur of the defendant’s sentence alone is an
inadequate remedy for the district court’s erroneous rejection
of a Rule 11(c)(1)(C) agreement after the government
breaches the plea agreement. By entering into a Rule
11(c)(1)(C) agreement, the defendant bargains for a binding
sentencing stipulation and for the opportunity to withdraw his
guilty plea if the district court rejects the stipulation after the
government has advocated for it. If we were to vacate only
the defendant’s sentence and the government were to perform
its obligations under the plea agreement before a different
judge on remand, the district court would still retain the
discretion not to accept the stipulated sentence. The
defendant would be unable to withdraw his plea, however,
because he is already subject to a judgment of conviction. A
remand for resentencing only would therefore fail to “secure
the benefits promised” the defendant, leaving him in a worse
position than if the government had not committed the
breach. Franco-Lopez, 312 F.3d at 989.
Accordingly, 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.23 The defendant must have the opportunity

23

We have suggested that, when the district court erroneously rejects a
Rule 11(c)(1)(C) agreement for reasons unrelated to any breach, “any
legally cognizable harm can be remedied on direct or collateral review of
whatever sentence the district court ultimately imposes.” In re Morgan,
506 F.3d 705, 713 (9th Cir. 2007) (emphasis added). Review of the
sentence alone may provide a sufficient remedy under those circumstances
because the defendant has not been denied the benefit of his bargain with
the government, which does not and cannot promise that the district court
will not err.

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to withdraw his plea after the district court exercises its
discretion to accept or reject the agreement in a manner
unaffected by the government’s breach.
In this case, however, Morales appealed only his sentence
and did not seek vacatur of his conviction. We therefore
vacate only his sentence and remand for resentencing before
a different district judge.
VI.
The Department of Justice has prosecuted an increasing
number of federal immigration crimes in recent decades. To
alleviate the resulting strain on the criminal justice system, it
recommends substantial sentencing discounts for defendants
who quickly plead guilty and waive important constitutional
and procedural rights. Fast-track agreements, including those
pursuant to Rule 11(c)(1)(C), serve the interests of all
involved. The government is obligated to adhere strictly to
their terms, just as it must—and usually does—honor its
promises under all plea agreements.
The purpose of a fast-track plea is to achieve unusual
efficiency through unusual leniency. Absent exceptional
circumstances, therefore, the government should have little
need to colorfully recount the details of the defendant’s
criminal history in its sentencing position in a fast-track case.
In this case, the government’s inflammatory discussion of
Morales’s previous crimes served no practical purpose but to
argue implicitly for a harsher punishment than the
government had agreed to recommend. It also violated the
government’s express promise not to suggest in any way that
the district court impose a sentence other than the stipulated
one.

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Morales would ordinarily be entitled to vacatur of his
conviction and sentence and a remand for further proceedings
before a different district judge. But here, in light of the only
remedy Morales requested, we vacate his sentence. On
remand, the Clerk of the United States District Court for the
Central District of California shall reassign the case to a
different district judge.
VACATED AND REMANDED with instructions.