USA v. Ramiro Plascencia-Orozco

Filing

FILED OPINION (CONSUELO M. CALLAHAN, CARLOS T. BEA and SANDRA S. IKUTA) VACATED; AFFIRMED. Judge: CTB Authoring, FILED AND ENTERED JUDGMENT. [10375509] [15-50143, 15-50238]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 15-50143
D.C. No.
3:11-cr-03627JAH-1

RAMIRO PLASCENCIA-OROZCO, AKA
Alberto Jose Del Muro, AKA Alberto
Jose Muro-Guerrero,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding

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UNITED STATES V. PLASCENCIA-OROZCO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

No. 15-50238
D.C. No.
3:08-cr-00139BEN-1

RAMIRO PLASCENCIA-OROZCO,
Defendant-Appellant.
OPINION

Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted December 8, 2016
Pasadena, California
Filed March 29, 2017
Before: Consuelo M. Callahan, Carlos T. Bea,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Bea

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SUMMARY *

Criminal Law
The panel affirmed the defendant’s conviction and
sentence for aggravated identity theft and attempted illegal
reentry, and vacated the district court’s order directing the
defendant to use his true legal name.
The panel held that the district court did not abuse its
discretion by denying the defendant’s request for a fourth
attorney.
The panel held that the district court did not abuse its
discretion by ruling that the defendant breached the terms of
his 2008 plea agreement when he attempted to reenter the
United States unlawfully in 2011. The panel held that the
district court, which ruled on the breach at a motions-inlimine hearing, did not abuse its discretion by refusing to
submit the issue of a breach to a jury or by allowing the
government to reindict the defendant on the 2008 charges
without first seeking a judicial finding of breach. The panel
explained that the proper way for a defendant to raise a prior
plea agreement as a defense to a criminal charge is to move
to dismiss that charge under Federal Rule of Criminal
Procedure 12(b). The panel held that the district court did
not err by failing to hold an evidentiary hearing sua sponte.
The panel held that the district court did not commit
errors that cumulatively rendered the defendant’s trial
*

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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fundamentally unfair. The panel held that the district court
did not abuse its discretion by admitting a Mexican birth
certificate that the government claimed belonged to the
defendant, that the district court did not err by failing to hold
a hearing on potential jury bias, that the district court did not
abuse its discretion by allowing the government to elicit
testimony about testimony in unrelated prior proceedings,
and that the district court did not plainly err by allowing the
government to question the defendant about a witness’s
credibility.
The panel held that the district court did not abuse its
discretion by sentencing the defendant to 184 months’
imprisonment.
The panel agreed with the parties that the district court
lacked the authority to issue a freestanding order directing
the defendant to use his true legal name.

COUNSEL
Robert L. Swain (argued), San Diego, California, for
Defendant-Appellant.
Daniel E. Zipp (argued), Assistant United States Attorney;
Helen H. Hong, Chief, Appellate Section, Criminal
Division; Laura E. Duffy, United States Attorney; United
States Attorney’s Office, San Diego; California, for
Plaintiff-Appellee.

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OPINION
BEA, Circuit Judge:
We seldom run into a “frequent flyer” as “frequent” as
appellant. Over his 46-year career as an illegal entrant, he
has been deported or removed dozens of times. But what
makes him stand out as a “cara dura” 1 is not only that on
some of these entries, he used the name and stolen
documents of an innocent father of five, but that he now
testifies before the wife and mother that he actually fathered
two of the innocent’s children. Despite the numerous
grounds he now urges on appeal, we affirm.
I. Background
The
appellant,
Ramiro
Plascencia-Orozco
2 is a citizen and national of Mexico. He was
(“Plascencia”),
first removed from the United States by immigration
authorities in 1971, after he was arrested for entering the
country without inspection or authorization. Between 1971
and 2011, Plascencia was similarly removed from the United
States at least twenty more times and was convicted of at
least eleven separate immigration offenses. In 1986 or 1987,
Plascencia stole identification documents, including a birth
certificate, from a United States citizen named Alberto Jose
Del Muro Guerrero. Plascencia attempted to enter the United
1

A Spanish term roughly equivalent to “chutzpah.”

2
The defendant-appellant’s name is one of the disputed issues on
this appeal. Although the government contends that the defendantappellant’s name is Ramiro Plascencia-Orozco, the defendant-appellant
maintains that his name is Alberto Del Muro-Guerrero. Because we
ultimately affirm Plascencia’s conviction and sentence, we shall refer to
the defendant-appellant as “Plascencia.”

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States using Del Muro’s birth certificate on several
occasions, including in January 2008 and August 2011.
Plascencia’s 2008 and 2011 entry attempts are the subject of
this appeal.
A. Plascencia’s 2008 Entry Attempt
In January 2008, Plascencia attempted to enter the
United States at the Calexico Port of Entry in California.
When asked for identification, Plascencia presented Del
Muro’s birth certificate. U.S. Customs and Border
Protection officers then searched Plascencia’s car and found
over one hundred kilograms of marijuana hidden inside.
Plascencia was arrested and charged with (1) importation of
marijuana into the United States, 21 U.S.C. §§ 952, 960;
(2) possession of marijuana with intent to distribute, 21
U.S.C. § 841(a)(1); (3) attempted illegal reentry, 8 U.S.C.
§ 1326; and (4) aggravated identity theft, 18 U.S.C.
§ 1028A.
Plascencia pleaded guilty to the importation-ofmarijuana charge, and in exchange, the government
dismissed the remaining charges against him and promised
“not [to] prosecute [Plascencia] thereafter on such dismissed
charges unless [he] breaches the plea agreement . . . or [he]
unlawfully returns to the United States during the term of
supervised release.” Plascencia was sentenced to 46 months’
imprisonment and three years’ supervised release. In June
2011, when he finished serving his prison sentence,
Plascencia was removed from the United States by
immigration authorities and prohibited from “being in the
United States . . . at any time.”

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B. Plascencia’s 2011 Entry Attempt
In August 2011, less than two months after his removal,
Plascencia again attempted to enter the United States using
Del Muro’s birth certificate. This time, Plascencia presented
himself at the San Ysidro Port of Entry in California. An
immigration officer ran a computer search on Del Muro’s
birth certificate and learned that its owner had been
“permanently banned” from the United States. Plascencia
was taken into custody and later indicted on four charges:
two counts of aggravated identity theft, 18 U.S.C. § 1028A,
and two counts of attempted illegal reentry, 8 U.S.C. § 1326.
One set of identity-theft and illegal-reentry charges arose out
of Plascencia’s August 2011 entry attempt; the other was
revived from his 2008 entry attempt on the theory that
Plascencia had breached his plea agreement by “unlawfully
return[ing] to the United States” in 2011.
Plascencia’s trial was held in August 2014 before Judge
John Houston of the U.S. District Court for the Southern
District of California. The government put on testimony
from Alberto Del Muro, Del Muro’s wife, Matilde, and
multiple law enforcement officers, including the officers
who stopped Plascencia as he was attempting to enter the
United States in 2008 and 2011. Plascencia testified in his
own defense but called no other witnesses. The jury returned
a verdict of guilty on all counts, and the court sentenced
Plascencia to 184 months’ imprisonment followed by three
years’ supervised release. Plascencia timely filed this appeal,
in which he alleges errors in his pretrial proceedings, trial,
and sentencing. 3

3
Initially, this appeal was consolidated with an appeal from the trial
of the 2008 attempted entry, in which Plascencia was convicted of

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II. Standard of Review

A district court’s denial of a criminal defendant’s request
for a new attorney is reviewed for abuse of discretion. United
States v. Lindsey, 634 F.3d 541, 554 (9th Cir. 2011). So are
a district court’s evidentiary rulings, see United States v.
Lozano, 623 F.3d 1055, 1059 (9th Cir. 2010); its decision
whether to conduct an evidentiary hearing on potential juror
bias, Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir.
2008); and the sentence that it imposes, Gall v. United
States, 552 U.S. 38, 52 (2007).
Ninth Circuit case law is less clear as to the standard of
review that applies to a district court’s interpretation of a
plea agreement. See United States v. Transfiguracion,
442 F.3d 1222, 1227 (9th Cir. 2006). Some authority
maintains that “[t]he district court’s interpretation and
construction of a plea agreement is reviewed for clear error.”
United States v. Clark, 218 F.3d 1092, 1095 (9th Cir. 2000);
importing marijuana and sentenced to 46 months’ imprisonment
followed by three years’ supervised release. In 2015, the district judge in
those proceedings, Judge Roger Benitez, found that Plascencia’s 2011
entry attempt and subsequent conviction before Judge Houston violated
a condition of Plascencia’s supervised release. For this violation, Judge
Benitez sentenced Plascencia to 36 months’ imprisonment, to run
concurrently with Plascencia’s existing 184-month sentence. Plascencia
appealed this sentence also, and the two appeals were consolidated here.
At oral argument, however, Plascencia conceded that his appeal of
the 36-month sentence imposed by Judge Benitez is now moot, because
Plascencia has already served that sentence. See United States v.
Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999) (a defendant’s challenge
to an already-served sentence is moot unless the defendant alleges
“collateral consequences . . . in any possible future sentencing” (internal
citations and quotation marks omitted)). We agree, and we therefore do
not address the 36-month sentence on this appeal.

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see also United States v. Floyd, 1 F.3d 867, 869 (9th Cir.
1993). Other authority maintains that “[w]e review a district
court’s interpretation of the terms of a plea agreement de
novo,” but “[w]e consider whether the facts demonstrate that
there was a breach of a plea agreement under the more
deferential clearly erroneous standard of review.” United
States v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996). We
need not resolve this conflict here, however, because we
agree with the district court’s interpretation of the plea
agreement “[e]ven under the less deferential de novo
standard of review.” Transfiguracion, 442 F.3d at 1227; see
also United States v. Franco-Lopez, 312 F.3d 984, 988 (9th
Cir. 2002).
Even if a district court rules erroneously at a criminal
defendant’s trial, that error does not necessarily warrant
reversal on appeal. If the defendant objects to the erroneous
ruling, this Court reviews for “harmless error.” Fed. R. Crim.
P. 52(a). An error is harmless if it “does not affect substantial
rights.” Id. “An error affects ‘substantial rights’ if the
defendant is prejudiced in such a manner as to ‘affect the
outcome of the district court proceedings.’” United States v.
Mitchell, 568 F.3d 1147, 1150 (9th Cir. 2009) (internal
alterations omitted) (quoting United States v. Olano,
507 U.S. 725, 734 (1993)).
By contrast, where the defendant fails to object to a
district court’s erroneous ruling, that ruling is reviewed for
“plain error.” Fed. R. Crim. P. 52(b). Plain error exists only
if “(1) there was error; (2) the error committed was plain;
(3) the error affected substantial rights; and (4) the error
seriously affected the fairness, integrity, or public reputation
of judicial proceedings.” United States v. GonzalezAparicio, 663 F.3d 419, 428 (2011). On plain error review,
“[i]t is the defendant rather than the [g]overnment who bears

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the burden of persuasion with respect to prejudice.” Olano,
507 U.S. at 734.
III. Discussion
A. The District Court Did Not Abuse Its Discretion
by Denying Plascencia’s Third Request for New
Counsel.
Initially, the district court appointed Leila Morgan of the
Federal Defenders of San Diego, Inc., as Plascencia’s
attorney. Morgan requested a competency hearing for
Plascencia. At that hearing, she told the court during a
sidebar that “[Plascencia] has a substantial delusion that he
is an individual [Del Muro] who the government believes he
is not.” As a result, Morgan explained, Plascencia could not
“effectively communicate [with her] and help [her] with his
defense.” After the sidebar, Plascencia asked the court to
appoint a new attorney, claiming that Morgan was
“ineffective” and that “there [was] a conflict of interest.” The
court deferred its decision on Plascencia’s request until the
results of Plascencia’s competency evaluation were
available. In August 2012, while awaiting his competency
hearing, Plascencia filed a complaint against Morgan with
the California Bar Association, and the district court granted
Morgan’s request to withdraw from the representation. 4
The district court then appointed a second attorney,
Merle Schneidewind. At a December 2012 status hearing,
Schneidewind told the court that Plascencia had filed a state
bar complaint against him as well. Plascencia did so after
Schneidewind had refused Plascencia’s demands for money,
which Schneidewind characterized as “basically extortion.”
4

Plascencia was eventually found competent to stand trial.

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Plascencia then told the district court he wanted a new
attorney. The court initially denied Plascencia’s request, but
in April 2013, Schneidewind told the court that the
California Bar Association had informed him that “although
[he was] not required to recuse [himself]” from the case,
doing so was likely “the more prudent course of action.” The
court agreed and appointed Plascencia a third attorney,
Robert Carriedo.
Plascencia filed state bar complaints against Carriedo as
well, and on August 13, 2014, he again asked the court to
appoint him a new lawyer. 5 The court asked Plascencia why
he wanted new counsel, and he told the court that Carriedo
had failed to procure transcripts from prior proceedings in
which immigration authorities had purportedly determined
that Plascencia was in fact a United States citizen. Carriedo
explained that he had gathered all the documents from the
relevant proceedings, but that none of them demonstrated
that Plascencia was a United States citizen. Plascencia also
complained that Carriedo had failed to procure certain
witnesses who knew Plascencia “about 20 years ago.”
According to Carriedo, those witnesses either were dead,
could not be found, or were in Mexico and unwilling to
testify. The court denied Plascencia’s request to replace
Carriedo at the August 13 hearing. Plascencia renewed his
request on August 19, the day his trial was scheduled to
begin, and again on August 20, the day the first witness was

5
Initially, Plascencia asked to represent himself, but after some
dialogue, he told the court that he wanted a new lawyer. (“The Court: Do
you want to represent yourself or not? The Defendant: No, no, no. . . The
Court: The court finds that the defendant has explicitly stated that he
does not care to represent himself.”).

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scheduled to take the stand. The court denied his request
both times.
A district court’s denial of a criminal defendant’s request
for a new attorney is reviewed for abuse of discretion.
Lindsey, 634 F.3d at 554. This Court considers three factors
when determining whether a district court abused its
discretion: “1) the timeliness of the motion; 2) the adequacy
of the district court’s inquiry into the defendant’s complaint;
and 3) whether the asserted conflict was so great as to result
in a complete breakdown in communication and a
consequent inability to present a defense.” United States v.
Prime, 431 F.3d 1147, 1154 (9th Cir. 2004).
Here, all three factors support the district court’s ruling.
Plascencia requested a replacement for Carriedo on August
13 (six days before trial was scheduled to begin), August 19
(the day the court empaneled a jury), and August 20 (the day
the first witnesses were heard). Thus, none of his three
requests were timely. Cf. Prime, 431 F.3d at 1155 (request
made ten days before trial untimely); United States v.
Garcia, 924 F.2d 925, 926 (9th Cir. 1991) (request made six
days before trial untimely). The district court repeatedly
inquired into Plascencia’s reasons for wanting a new
attorney, and determined that those reasons were
unfounded. 6 Instead, the court found, Carriedo had engaged
in “competent efforts to . . . represent [Plascencia,]” despite
Plascencia’s “efforts to stonewall [Carriedo’s] efforts with
frivolous complaints.” Moreover, although Plascencia’s
attorneys told the court that communicating with Plascencia
was difficult, there was not a “complete breakdown and a
6

Again, these reasons included Carriedo’s failure to procure certain
documents and locate certain witnesses from Plascencia’s prior
immigration proceedings.

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consequent inability to present a defense,” because
Plascencia ultimately testified in his own defense. For these
reasons, and because the record supports the district court’s
finding that Plascencia’s requests were dilatory tactics rather
than genuine complaints about his attorneys’ performance,
we conclude that the district court did not abuse its discretion
by denying Plascencia’s request for a fourth attorney.
B. The District Court Did Not Abuse Its Discretion
by Ruling that Plascencia Had Breached the
Terms of His Plea Agreement.
Plascencia’s 2008 plea agreement provided that the
government would “not prosecute” Plascencia on the illegalreentry, identity-theft, and possession-of-marijuana charges
arising out of his 2008 entry attempt unless Plascencia
“breach[ed] the plea agreement” or “unlawfully return[ed] to
the United States during the term of supervised release.” In
the event of a breach, the agreement provided, “the
[g]overment may pursue any charges including those that
were dismissed, promised to be dismissed, or not filed as a
result of this agreement.”
In August 2014, at a pretrial hearing on the parties’
motions in limine, the government asked the district court to
rule that Plascencia had breached the terms of his 2008 plea
agreement by attempting to reenter the United States
unlawfully in 2011. To reinstate the charges, the government
argued, it needed to prove only that Plascencia had breached
the agreement by a “preponderance of the evidence.” The
government contended that the grand jury’s “finding that
there is probable cause to believe that [Plascencia unlawfully

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reentered the United States in August 2011]” was sufficient
to support such a finding. 7
Plascencia argued that the issue of breach should be
submitted to the jury, because the conduct giving rise to the
claimed breach—Plascencia’s 2008 entry attempt—was the
same conduct underlying the reinstated illegal-reentry
charge. The district court rejected this argument, holding
instead that whether Plascencia had breached his plea
agreement was “a legal issue for [the] court to decide.” The
court found that “there [was] evidence presented to a
preponderance of the evidence” that Plascencia had
breached the agreement, and it allowed the government to
proceed on the 2008 charges. On appeal, Plascencia
challenges this ruling on three grounds.
The District Court Did Not Err by Concluding
that Plascencia Had Breached His Plea
Agreement by “Unlawfully Return[ing]” to
the United States.
First, Plascencia argues that because he was convicted
only of attempted illegal reentry in violation of 8 U.S.C.
§ 1326, he only attempted “[to] return[] [unlawfully] to the
United States” and therefore did not breach the literal terms
of his plea agreement. Because Plascencia did not raise his
argument in the proceedings below, we review the district

7

We note that on this appeal, Plascencia does not challenge the
sufficiency of the evidence of breach of the 2008 plea agreement
presented by the government at the motions-in-limine hearing. We
therefore do not review the district court’s ruling that the government’s
evidence here established Plascencia’s breach by a preponderance of the
evidence.

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court’s contrary ruling for plain error. 8 We conclude that the
district court did not err, let alone plainly err, by concluding
that Plascencia had breached his plea agreement by
“unlawfully return[ing]” to the United States.
Because “plea agreements are contractual in nature,” we
measure them “by contract law standards.” Clark, 218 F.3d
at 1095(internal citations and alterations omitted). In
construing a plea agreement, we proceed in three steps: First,
we ask whether “the terms of the plea agreement on their
face have a clear and unambiguous meaning.” Id. If they do,
then we “will not look to extrinsic evidence to determine
their meaning.” Id. If not, then we turn to “the facts of the
case to determine what the parties reasonably understood to
be the terms of the agreement.” Id. Finally, if ambiguities
still remain, we construe those ambiguities against the
government. Id.
As an initial matter, we note again that nothing in the
plea agreement suggests that to “return[] [unlawfully] to the
United States” means “to be convicted of illegal reentry
under 8 U.S.C. § 1326.” Thus, the fact that Plascencia was
ultimately convicted of attempted illegal reentry—rather
than the completed crime—does not by itself mean that
Plascencia did not “unlawfully return[] to the United States”

8

As noted above, the case law on the standard of review that we
apply to a district court’s construction of a plea agreement is conflicted.
Compare United States v. Clark, 218 F.3d 1092, 1095 (9th Cir. 2000)
with United States v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996). We
need not resolve that conflict, however, because we reach the same
conclusion as the district court even under the “less deferential de novo
standard of review.” United States v. Transfiguracion, 442 F.3d 1222,
1227 (9th Cir. 2006).

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within the meaning of his plea agreement. 9 The “terms of
[Plascencia’s] plea agreement on their face have a clear and
unambiguous meaning,” and we need not inquire into what
Plascencia and the government “reasonably might have
believed” the phrase “unlawfully returns to the United
States” to mean when they entered into the plea agreement.
Clark, 218 F.3d at 1095.
Plascencia presented himself at a United States
immigration checkpoint and sought authorization to enter
the United States. Because the immigration checkpoint itself
is situated in the United States, 10 Plascencia violated the
terms of the plea agreement and “unlawfully return[ed] to
the United States” by presenting himself there. The district
9
Nor does the fact that Plascencia passed through the point of entry
“under official restraint” compel that conclusion, as Plascencia urged at
oral argument. Although entering the United States under “official
restraint” is a defense to a charge of illegal reentry, see United States v.
Lombera-Valdovinos, 429 F.3d 927, 928–30 (9th Cir. 2005), nothing in
the plea agreement suggests that it is also an exception for “unlawfully
return[ing] to the United States” under the agreement.
10
At Plascencia’s trial, U.S. Customs and Border Protection Officer
Willard David Reeves testified twice that the San Ysidro Point of Entry,
where Plascencia presented himself in 2011, is located in the United
States. On direct examination, the government asked Officer Reeves, “If
someone is standing in pre-primary”—the area where “the individuals
who are applying for admission stand and walk in [to the checkpoint]”—
“are they technically in the United States?” Officer Reeves answered,
“Yes.” Later, on cross examination, Plascencia asked Officer Reeves,
“You gave a little background . . . which indicates that . . . [a person is]
actually in the United States before [he] come[s] to a booth [at the San
Ysidro Point of Entry.]” Again, Officer Reeves answered, “Yes, sir.”
Plascencia does not point to, nor have we identified, anything in the
record that contradicts Officer Reeves’s testimony that a person who
presents himself for inspection at the San Ysidro Point of Entry is
physically present in United States territory.

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court therefore did not err, let alone plainly err, by
concluding that Plascencia had breached the terms of his
plea agreement.
The District Court Did Not Err by Ruling that
Plascencia Had Breached His Plea Agreement
at a Pretrial Motions-in-Limine Hearing.
Next, Plascencia argues that the district court erred by
ruling that Plascencia had breached his 2008 plea agreement
at a pretrial motions-in-limine hearing. Instead, Plascencia
argues, the district court should have submitted the issue to
the jury. Alternatively, Plascencia contends, it should have
at least required the government to seek a finding of breach
before reindicting Plascencia on the 2008 charges. Both
arguments raise questions of law, which we review de novo.
“[A] criminal defendant has a due process right to
enforce the terms of his plea agreement.” Buckley v.
Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc) (citing
Santobello v. New York, 404 U.S. 257, 261–62 (1971)). Our
law provides numerous procedural safeguards to ensure that
a defendant has an opportunity to exercise this right. If the
government indicts a defendant on charges that the
defendant believes are barred by a preexisting plea
agreement, the defendant may move to dismiss those
charges. See Transfiguracion, 442 F.3d at 1231; Fed. R.
Crim. P. 12(b)(1) (“A party may raise by pretrial motion any
defense, objection, or request that the court can determine
without a trial on the merits.”). If such a motion presents
disputed issues of fact, the defendant is entitled to an
evidentiary hearing on those issues. See United States v.
Packwood, 848 F.2d 1009, 1011 (9th Cir. 1988). And in all
cases, the government bears the burden of proving that the
defendant breached his agreement by a preponderance of the
evidence. See id.

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Here, Plascencia failed to take advantage of these
safeguards. At no time during the three years between
Plascencia’s indictment and his trial did Plascencia move to
dismiss the charges against him on grounds that they were
barred by his plea agreement. See Fed. R. Crim. P. 12(b)(1).
Instead, Plascencia waited to address the issue until the
government—in an abundance of caution—asked the district
court to make a finding of breach at a motions-in-limine
hearing on the eve of Plascencia’s trial. Even then,
Plascencia argued only that the issue of breach should be
submitted to the jury. He did not request an evidentiary
hearing or argue that the government had failed to prove
breach by a preponderance of the evidence.
Having failed to avail himself of the existing procedures
for enforcing his plea agreement, Plascencia invites us to
recognize a new one: a requirement that a district court must
submit the issue of a defendant’s breach to a jury—or, in the
alternative, that the government must secure a judicial
finding of breach before indicting a defendant on charges
that would otherwise be barred by his plea agreement. We
decline Plascencia’s invitation on both counts.
a. The District Court Did Not Abuse Its
Discretion by Refusing to Submit the Issue
of Breach to a Jury.
We have never squarely held that a district judge may
find that a defendant breached a prior plea agreement at a
pretrial hearing, without submitting the question to a jury.11
The First Circuit has, and we find its reasoning persuasive.

11
In United States v. Packwood, 848 F.2d 1009 (9th Cir. 1988), we
affirmed the district court’s order granting a defendant’s motion to

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In United States v. Gonzalez-Sanchez, 825 F.2d 572 (1st
Cir. 1987), the First Circuit affirmed a district court’s denial
of a defendant’s motion to dismiss the charges against him
under Federal Rule of Criminal Procedure 12(b), where the
district court found that the defendant had breached his plea
agreement by “fail[ing] to cooperate honestly” with the
government. Id. at 579. Recognizing that “[t]his Circuit and
others have set forth safeguards to insure that the
government does not arbitrarily or capriciously disregard its
obligations under a plea agreement,” the First Circuit
rejected the argument that the question of breach should
have been submitted to a jury. Id. at 578. Instead, it held that
“[t]he factual determination whether the plea agreement has
been breached lies with the trial judge.” Id. We join the First
Circuit in holding that the question of breach is for the
district judge, not a jury, to decide.
Plascencia contends that our holding could lead to an
“absurd result[]” in a case like his: What if the district judge
determined before trial that Plascencia had “unlawfully
return[ed]” to the United States, such that the government
could prosecute him on the 2008 charges, but the jury
returned a verdict of “not guilty” on the 2011 charge of
illegal reentry?
This result is not “absurd,” however, because the jury’s
verdict and the district judge’s factual finding are subject to
dismiss under Federal Rule of Criminal Procedure 12(b), where the
defendant argued that the charges against him were barred by a plea
agreement. See id. at 1012. Packwood is not directly on point, because
neither party in that case argued that the issue of breach should have been
submitted to the jury. If we were to agree with Plascencia today,
however, our holding would be in tension with Packwood, where we
affirmed a district court’s order deciding a breach issue in a pretrial
motion.

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different standards of proof. To bring charges barred by a
plea agreement, the government need prove the defendant’s
breach only “by a preponderance of the evidence.”
Packwood, 848 F.2d at 1011. A conviction for illegal
reentry, by contrast, requires proof beyond a reasonable
doubt. It is not “absurd” that a proffer of evidence might
satisfy the lower preponderance-of-the-evidence standard
(thereby allowing the charges to be reinstated) but not the
higher beyond-a-reasonable-doubt standard (thereby
resulting in an acquittal). The district court therefore did not
abuse its discretion by refusing to submit the issue of
Plascencia’s breach to the jury.
b. The District Court Did Not Err by Allowing
the Government to Reindict Plascencia on
the 2008 Charges Without First Seeking a
Judicial Finding of Breach.
We have also never expressly addressed whether the
government must seek a judicial finding of breach before
indicting a defendant on charges barred by a plea agreement.
But again, we think that the procedures outlined above—a
motion to dismiss under Rule 12(b), with an evidentiary
hearing to resolve disputed factual issues and a burden of
proof that rests squarely on the government—are sufficient
to protect a defendant’s due-process right to enforce the
terms of his plea agreement. Plascencia has pointed us to no
statute or case law requiring the government to seek a
preindictment finding of breach, 12 and we decline to
recognize such a requirement here.

12

In his opening brief, Plascencia cites United States v. Rendon,
752 F.3d 1130 (8th Cir. 2014), for the proposition that “the government
is generally required to ‘file[] a motion asking the district court to find

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The government, citing United States v. Verrusio,
803 F.2d 885 (7th Cir. 1986), urges us to reach this
conclusion for a different reason. We are not persuaded by
Verrusio’s reasoning, however, and we decline to adopt it
here.
In 1979, George Verrusio was arrested for possessing
cocaine and agreed to testify about “his knowledge of and
involvement in a conspiracy . . . to transport cocaine” in
exchange for the government’s promise not to prosecute him
on certain drug charges. Id. at 887. After Verrusio testified,
“the government came to believe that Verrusio had not been
truthful in his . . . testimony” and reinstated the drug charges
against him. Id. Before his trial, Verrusio moved to dismiss
the charges, arguing that they were barred by his plea
agreement. Id. The district court denied Verrusio’s motion,
and Verrusio appealed, arguing—as Plascencia argues
here—that “the government, as a matter of due process, must
obtain a judicial determination that he breached the plea
agreement before it can reindict him on charges that were
dismissed or not brought pursuant to the plea agreement.” Id.
at 888.
The Seventh Circuit rejected this argument. “The
advantage for which [Verrusio] bargained,” the Seventh
Circuit explained, “was that he would not run the risk of
conviction on charges arising out of his participation in the
conspiracy to transport cocaine.” Id. at 889 (emphasis in
original). Because Verrusio “would be deprived of the
benefit of his bargain only if he was tried pursuant to the
the defendant in breach of a plea agreement before it is released from its
obligations’ under the agreement.” But Rendon said only that “the
government typically files” such a motion, not that the government must
do so. Rendon, 752 F.3d at 1135 (emphasis added).

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second indictment [which brought the three drug charges],”
that indictment “standing alone did not constitute a
deprivation of Verrusio’s [due-process] interest in
enforcement of the plea agreement,” and it did not violate
the terms of his plea agreement. Id.
We decline to adopt this reasoning here. In Plascencia’s
plea agreement, the government promised “not to prosecute”
Plascencia on the 2008 charges. To “prosecute” a person
means “[t]o institute and pursue a criminal action against”
that person. See “Prosecute,” Black’s Law Dictionary (10th
ed. 2014) (emphasis added). Thus, in our view, the
government’s promise not to “prosecute” Plascencia was a
promise not to reinstate the 2008 charges against him—not
just a promise not to try him on those charges.
In any case, Plascencia never moved to dismiss the
charges against him. Instead, the government went out of its
way to request a judicial finding that those charges were not
barred by Plascencia’s 2008 plea agreement because
Plascencia had breached the agreement. Because the
government was under no obligation to seek this finding in
the first place, its decision to seek the finding after
reinstating the 2008 charges against Plascencia could not
have been reversible error.
In sum, we conclude that the proper way for a defendant
to raise a prior plea agreement as a defense to a criminal
charge is to move to dismiss that charge under Federal Rule
of Criminal Procedure 12(b). If the government thinks that
the defendant has breached the plea agreement, such that it
no longer applies, then it must proffer sufficient evidence to
establish that breach by a preponderance of the evidence. See
Packwood, 848 F.2d at 1011. The matter need not be
submitted to a jury, nor need it be decided before the
indictment or information is filed. The district court

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followed these procedures here, and its ruling at the motionsin-limine hearing that Plascencia had breached his plea
agreement was not reversible error.
The District Court Did Not Err by Failing to
Hold an Evidentiary Hearing Sua Sponte.
Finally, Plascencia argues that the district court erred by
failing to hold an evidentiary hearing on the issue of breach.
A district court’s decision whether to hold an evidentiary
hearing is reviewed for abuse of discretion. Packwood,
848 F.2d at 1010. Because Plascencia never requested an
evidentiary hearing, the district court’s failure to conduct
one sua sponte is reviewed for plain error. Fed. R. Crim. P.
52(b).
District courts hold evidentiary hearings on breach-ofplea-agreement claims where necessary “to resolve a factual
dispute between the parties over what they reasonably
understood when entering into a plea agreement.” Id. at
1011. Here, Plascencia did not even request a hearing—let
alone identify a “factual dispute” that would necessitate one.
The district court’s failure to order an evidentiary hearing
sua sponte was therefore not error, let alone plain error.
C. The District Court Did Not Commit Errors That
Cumulatively Rendered Plascencia’s Trial
Fundamentally Unfair.
Plascencia also contends that the district court
committed a series of trial errors “which, when taken
together, rendered the proceedings fundamentally unfair.”
But only one of these claimed errors—a question posed to
Plascencia regarding the truthfulness of Matilde Del Muro’s
testimony—was actually error, and the district court took
steps to remedy it. Plascencia’s trial was therefore not “so

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infected with unfairness as to make the resulting conviction
a denial of due process.” Parle v. Runnels, 505 F.3d 922, 927
(9th Cir. 2007).
The District Court Did Not Abuse Its
Discretion by Admitting into Evidence a
Mexican Birth Certificate that the
Government Claimed Belonged to Plascencia.
During its case-in-chief, the government proffered a
birth certificate purporting to certify the birth of an
individual named “Ramiro Plascencia-Orozco” in Mexico. It
also identified the individual’s parents. Defense counsel
objected to the government’s proffer, arguing that although
Plascencia had given the name “Ramiro Plascencia-Orozco”
to immigration officials before, he had also given dozens of
other names, 13 and the government had offered no reason to
believe that “Ramiro Plascencia-Orozco” was Plascencia’s
true name, as opposed to another alias. On appeal, Plascencia
offers a refined version of this argument: The birth
certificate was irrelevant evidence because the government
failed to establish that the birth certificate was Plascencia’s.
This Court reviews a district court’s evidentiary rulings for
abuse of discretion. United States v. Pablo Varela-Rivera,
279 F.3d 1174, 1178 (9th Cir. 2002).
Under Federal Rule of Evidence 402, all “relevant
evidence is admissible unless” some controlling law
provides otherwise; conversely, “[i]rrelevant evidence is not
13
According to the testimony given by the immigration officer in
charge of Plascencia’s file, whenever Plascencia was arrested for an
immigration violation, law enforcement officers recorded the name that
he gave and took his fingerprints. By cross-referencing the fingerprints
electronically, the government was able to compile a list of the aliases
he had given over the years.

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admissible.” “Evidence is relevant if [] it has any tendency
to make a fact more or less probable than it would be without
the evidence; and [] the fact is of consequence in determining
the action.” Fed. R. Evid. 401. Moreover, under Rule 104(b),
“[w]hen the relevance of evidence depends on whether a fact
exists, proof must be introduced sufficient to support a
finding that the fact does exist.” A court determines whether
such proof is “sufficient” by “examin[ing] all the evidence
in the case and decid[ing] whether the jury could reasonably
find the conditional fact . . . by a preponderance of the
evidence.” Huddleston v. United States, 485 U.S. 681, 690
(1988).
Here, the government adduced several items of evidence
suggesting that “Ramiro Plascencia-Orozco”—as opposed
to any of the other aliases Plascencia had given to law
enforcement officials—was Plascencia’s true name. For
example, Alberto Del Muro testified that when he first met
Plascencia in 1986, Plascencia told Del Muro his name was
“Ramiro.” Moreover, one of the government’s witnesses, a
retired immigration officer, testified that when he arrested
Plascencia in 1975—Plascencia’s second-ever immigration
arrest—Plascencia gave the name “Ramiro PlascenciaOrozco.” This officer also testified that Plascencia gave him
the names of his parents in 1975, which matched the names
of the parents listed on the Mexican birth certificate.
From this evidence, a jury could “reasonably find,” by a
“preponderance of the evidence,” that the Mexican birth
certificate belonged to Plascencia. Id. at 690. Thus, the
government introduced sufficient evidence to defeat
Plascencia’s objection to the birth certificate’s relevance,
and the district court did not abuse its discretion by admitting
the birth certificate.

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The District Court Did Not Err by Failing to
Hold a Hearing on Potential Jury Bias After
Plascencia Made an Obscene Gesture
Towards a Juror.

Next, Plascencia argues that the district court erred by
“not asking the jury whether it would be biased against [him]
because of [a] gesture” that he made to one of the jurors
while he was on the witness stand. The trial transcript does
not specify exactly what the gesture was, but according to
the clerk of court, who reported the incident to the district
judge, it was “inappropriate” and “aggressive.” At the
government’s suggestion, the court advised Plascencia
outside the presence of the jury that he was “not to
communicate with the jury” and that “the jury takes into
account what you say and your actions in determining your
credibility.”
Plascencia’s counsel did not object to this admonition,
nor did he propose that the district court investigate whether
the gesture had biased any members of the jury. On appeal,
however, Plascencia argues that the district court should
have “undertake[n] some minimal inquiry to explore the
existence of any bias,” and that “the absence of any
questioning into the matter was an abuse of discretion.”
Although we ordinarily review for abuse of discretion a
district court’s failure to hold a hearing on potential jury
bias, United States v. Ivester, 316 F.3d 955, 960 (9th Cir.
2003), because Plascencia did not request such a hearing at
trial, we review the district court’s decision here for plain
error. Fed. R. Crim. P. 52(b). However, we conclude that the
district court did not err, let alone plainly err, by failing to
hold a hearing on potential jury bias.

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Due process requires that a criminal defendant be
afforded a hearing to determine whether bias may have
resulted from “an unauthorized external contact” with a
juror. Tarango v. McDaniel, 837 F.3d 936, 948–49 (9th Cir.
2016) (emphasis added). A defendant’s conduct in court is
not an “external” influence, however. See United States v.
Lopez, 271 F.3d 472, 488–89 (3d Cir. 2001) (affirming a
defendant’s conviction and holding that the district court did
not abuse its discretion by “not questioning a juror to
ascertain if she was biased against [the defendant]” where
the juror “sent the [district] judge a note . . . requesting that
[the defendant] stop staring at her,” because the court “was
not confronted with the exertion of an outside
influence”(emphasis added)). This is especially so where—
as here—the defendant takes the witness stand in his own
defense. In such cases, the jury may properly consider a
defendant’s demeanor on the stand in determining his
credibility as a witness. See United States v. Schuler,
813 F.2d 978, 981 n.3 (9th Cir. 1987).
Here, Plascencia made the purportedly offensive gesture
during a sidebar while he was on the witness stand. Thus, the
gesture was not “extrinsic” to the proceedings; rather, as the
district judge explained to Plascencia, it went to his
credibility as a witness. The gesture therefore could not have
given rise to a cognizable claim of jury bias.
Moreover, the district court took the curative step of
instructing Plascencia to refrain from making such gestures
in the future. The district court therefore did not err by failing
to hold a hearing on the possibility of jury bias.

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The District Court Did Not Abuse Its
Discretion by Allowing the Government to
Elicit Testimony About the Del Muros’
Testimony in Unrelated Prior Proceedings.

On its direct examination of Alberto Del Muro and
Matilde Del Muro, the government asked both witnesses
about prior instances in which they had testified against
Plascencia. Plascencia did not object to either line of
questioning at trial. Then, on cross-examination, the
government asked Plascencia about the Del Muros’ prior
testimony against him:
Q: You’ve heard that man, Alberto Del Muro,
testify against you in three separate cases
now; correct? . . .
A: Yes.
Q: And his wife, Matilde Del Muro, has also
testified against you in three separate trials;
correct?
A: That’s correct. . . .
Q: Now, in those trials, Mr. Del Muro and his
wife provided details about their family
members and their life to the jury? . . .
A: Well, yes. . . .
This time, Plascencia did object to the line of questioning.
On appeal, Plascencia argues that the district court
should have excluded this testimony because it “painted
[Plascencia] as a person who would not learn his lesson.”

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Because Plascencia did not object to the Del Muros’
testimony at trial, we review the admission of that testimony
for plain error. Because Plascencia did object to the
government’s questioning of him on cross-examination, we
review the admission of that testimony for harmless error.
Under Federal Rule of Evidence 403, a district court
“may exclude relevant evidence if its probative value is
substantially outweighed by . . . a danger of unfair
prejudice.” “Application of Rule 403 must be cautious and
sparing,” however, “because the Rule’s major function is
limited to excluding matter of scant or cumulative probative
force, dragged in by the heels for the sake of its prejudicial
effect.” United States v. Haischer, 780 F.3d 1277, 1282 (9th
Cir. 2015) (internal quotation marks, alterations, and
citations omitted).
A defendant commits the crime of aggravated identity
theft if he “knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another
person.” 18 U.S.C. § 1028A(a)(1) (emphasis added). The
statutory term “knowingly” requires that the defendant
“knew that the means of identification at issue belonged to
another person.” Flores-Figueroa v. United States, 556 U.S.
646, 657 (2009). Here, the probative value of the Del Muros’
and Plascencia’s testimony about the Del Muros’ prior court
appearances was that it proved that Plascencia knew that
Alberto Del Muro was a real person. This, in turn, proved
that Del Muro’s birth certificate “belonged to another
person” and was not a forged document giving a fictional
identity. True, the testimony had some prejudicial effect,
because it suggested that Plascencia had been the subject of
judicial proceedings regarding similar alleged misconduct in
the past. This testimony was not “dragged in by the heels for

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the sake of its prejudicial effect,” however, and the district
court did not abuse its discretion by allowing it. 14
The District Court Did Not Plainly Err by
Allowing the Government to Question
Plascencia About the Credibility of Matilde
Del Muro.
On its cross-examination of Plascencia, the government
asked Plascencia whether Matilde Del Muro was lying when
she testified that Alberto Del Muro—and not Plascencia—
was the father of her five children:
Q: So it is your testimony that the woman that
was here that testified, Matilde Del Muro, is
the mother of two of your children?
A: Yes, that is correct. . . .
Q: So the five kids that the gentlemen named
Alberto Del Muro testified were his children
that he had raised, it’s your testimony that
two of those children are your children?
A: Yes.

14

Plascencia also argues that this testimony was “irrelevant” and
“rank hearsay.” Because the testimony had probative value, however, as
explained above, it was not irrelevant. See Fed. R. Evid. 402. And
because the government asked about Alberto Del Muro’s prior testimony
against Plascencia to establish only that Plascencia knew that Del Muro
was a real person, Del Muro’s testimony was not “offer[ed] in evidence
to prove the truth of the matter[s] asserted [therein],” and hence was not
hearsay. See Fed. R. Evid. 801(c)(2).

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Q: And that Matilde Del Muro [was] lying
about that to the jury the other day?
A: That’s true.
Plascencia’s counsel did not object to this line of
questioning. Nonetheless, the next day, the government
asked the district court to instruct the jury to “disregard that
question and any answer given by the defendant.” The court
agreed and further instructed the jury “not to consider the
testimony of any witness, including the defendant, regarding
whether another witness lied in his or her testimony.”
On appeal, the government concedes that its question to
Plascencia about the truthfulness of Matilde Del Muro’s
testimony was improper. See United States v. AlcantaraCastillo, 788 F.3d 1186, 1191 (9th Cir. 2015) (“A prosecutor
must not ask defendants during cross-examination to
comment on the truthfulness of other witnesses.”).
Nonetheless, the government argues, the error does not
warrant reversal of Plascencia’s conviction because it was
not plain.
Because Plascencia did not object to the questioning at
trial, we review for plain error. Again, plain error occurs
where “(1) there was error; (2) the error committed was
plain; (3) the error affected substantial rights; and (4) the
error seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Gonzalez-Aparicio,
663 F.3d at 428. An error “affec[ts] substantial rights” if it
“affected the outcome of the district court proceedings.”
Olano, 507 U.S. at 734.
Here, even if the prosecutor’s question did improperly
“vouch[] for [Matilde’s] testimony” by suggesting that it was
truthful, Alcantara-Castillo, 788 F.3d at 1192, it likely did

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not “affect[] the outcome of the district court proceedings,”
because the district court instructed the jury to disregard the
testimony, and because as noted above, the government
adduced substantial additional evidence of Plascencia’s
guilt. Moreover, this single question could not have
“seriously affected the fairness, integrity, or public
reputation” of Plascencia’s trial. Thus, the district court’s
conceded error in allowing the government to ask Plascencia
about the truthfulness of Matilde Del Muro’s testimony was
not plain and does not warrant reversal.
D. The District Court Did Not Abuse Its Discretion
by Sentencing Plascencia to 184 Months’
Imprisonment.
Plascencia was convicted on all four of the counts
charged in the indictment: two counts of attempted illegal
reentry (one arising out of the 2008 entry attempt and one
arising out of the 2011 entry attempt) and two counts of
aggravated identity theft (same). The district court correctly
determined that under the United States Sentencing
Guidelines, Plascencia’s sentencing range for the two counts
of attempted illegal reentry was 130 to 162 months’
imprisonment. See U.S.S.G. § 2L1.2. The district court
sentenced Plascencia to 160 months’ imprisonment on these
two counts. The district court also imposed the mandatory
sentence of 24 months’ imprisonment on each of the
aggravated-identity-theft counts, to run concurrently with
each other but consecutively with the 160-month sentence.
See 18 U.S.C. § 1028A(a), (b). Thus, Plascencia’s total
sentence was 184 months.
When reviewing a sentence imposed under the U.S.
Sentencing Guidelines, we “first ensure that the district court
committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range,

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treating the Guidelines as mandatory, [or] failing to consider
the [18 U.S.C.] § 3553(a) factors.” Gall v. United States,
552 U.S. 38, 51 (2007). Then, we “consider the substantive
reasonableness of the sentence imposed under an abuse-ofdiscretion standard.” Id. “In determining whether a sentence
is unreasonable, we are guided by the sentencing factors set
forth in 18 U.S.C. § 3553(a), including the sentencing range
established by the Sentencing Guidelines.” United States v.
Plouffe, 445 F.3d 1126, 1131 (9th Cir. 2006). As relevant
here, these factors include “the seriousness of the offense,”
“the need . . . to promote respect for the law,” and “the need
. . . to protect the public from further crimes of the
defendant.” 18 U.S.C. § 3553(a)(2).
On appeal, Plascencia argues that his sentence was
“substantively unreasonable” because the district court
failed to consider three factors: (1) Plascencia’s claimed
“personality disorder,” which led him to believe that he was
Alberto Del Muro; (2) Plascencia’s “age and health
problems,” and (3) the fact that courts typically impose
lower sentences for illegal reentry.
But the district court did consider the third factor: It
explained that “[Plascencia’s] record is unlike other [illegalreentry] defendants,” because of “[t]he length of [his] record,
the number of law enforcement contacts [he has] had over
the years, the number of removals from the United States,
[and] the number of [aliases he has] used to avoid detection.”
And although the district court did not directly address the
other two factors, it did list several other reasons for
imposing a harsher-than-usual sentence. These included:
(1) the fact that Plascencia’s identity theft had targeted the
same victim for over 25 years and had caused him
“extraordinary prejudice”; (2) Plascencia’s refusal to accept
responsibility for his actions; (3) the fact that “a short

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custodial sentence . . . would provide only a temporary
reprieve for the victim”; (4) Plascencia’s “record of criminal
convictions,” which “reflect[s] that prior interventions of the
justice system have been ineffective in deterring criminal
conduct on [his] behalf”; and (5) Plascencia’s “lack of
respect for the law . . . including the intentional activities
requiring appointment of multiple counsel [and] bogus
filings before . . . the California bar against [his] lawyers.”
Because these reasons closely track the sentencing
factors in § 3553(a), the district court did not abuse its
discretion by imposing a 160-month sentence for
Plascencia’s illegal-reentry convictions. Moreover, the
consecutive 24-month sentence for the aggravated-identitytheft counts was required by statute, and Plascencia does not
argue that the district court abused its discretion by imposing
it. See 18 U.S.C. § 1028A(b). Thus, the district court did not
abuse its discretion by imposing a total sentence of 184
months’ imprisonment.
E. The District Court Lacked Authority to Order
Plascencia to Use the Name “Ramiro PlascenciaOrozco.”
In addition to the 184-month prison sentence and the
three-year term of supervised release, the district court also
ordered Plascencia to “use his true name of Ramiro
Plascencia-Orozco.” This was a standalone order signed by
the district judge and issued after the sentencing hearing. In
its answering brief, the United States “concede[d] that the
district court did not have the authority to issue a freestanding order regarding the use of Plascencia’s name.” In
light of this concession, the United States asked us to remand
the case to the district court so that the requirement could be
included as a condition of Plascencia’s supervised release.

Case: 15-50143, 03/29/2017, ID: 10375509, DktEntry: 63-1, Page 35 of 35

UNITED STATES V. PLASCENCIA-OROZCO

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At oral argument, however, the United States withdrew its
request, and Plascencia did not object.
Because neither party has asked us to do so, we will not
remand this case to the district court. We agree with the
parties, however, that the district court lacked the authority
to issue a freestanding order directing Plascencia to use his
true legal name. We therefore vacate the district court’s
March 30, 2015 order directing Plascencia to “use his true
name of Ramiro Plascencia-Orozco.”
IV. Conclusion
For the foregoing reasons, the district court’s March 30,
2015 order is VACATED. Plascencia’s conviction and
sentence are AFFIRMED.