United States v. Alberto Loza-Gracia
2012 U.S. App. LEXIS 2611
| 5th Cir. | 2012Background
- Loza-Gracia pled guilty to conspiracy to possess with intent to distribute cocaine under a written plea agreement stipulating a base offense level of 26.
- The PSR acknowledged the 26 base level but recommended a 34 base level as a career offender based on prior convictions.
- The district court adopted the PSR’s 34 base level and sentenced Loza-Gracia to 188 months.
- Loza-Gracia argued the plea agreement was breached when the PSR recommended 34 instead of 26.
- The plea agreement stated the Court was not bound by its guideline recommendations and the Government’s agreement did not bind the Probation Office or the district court.
- Loza-Gracia relied on a belief of a “bait-and-switch” and sought remand for resentencing before a different judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PSR’s 34 base level breached the plea agreement. | Loza-Gracia (plaintiff) | Loza-Gracia (defendant) | No breach; PSR not binding on Probation Office or court; sentence affirmed. |
Key Cases Cited
- United States v. Talbert, 501 F.3d 449 (5th Cir. 2007) (probation office as a separate judicial branch actor)
- United States v. Davis, 151 F.3d 1304 (10th Cir. 1998) (probation officers communicate ex parte with the court)
- United States v. Roberts, 624 F.3d 241 (5th Cir. 2010) (breach when government advocates for career offender against plea)
- United States v. Munoz, 408 F.3d 222 (5th Cir. 2005) (breach for advocating an abuse-of-trust adjustment not in plea)
- United States v. Saling, 205 F.3d 764 (5th Cir. 2000) (breach for arguing for different sentencing terms)
- United States v. Traugott, 364 F. App’x 925 (5th Cir. 2010) (unpublished; government did not breach by applying career offender)