United States v. Ellis
2011 U.S. App. LEXIS 10570
| 9th Cir. | 2011Background
- Between November 29, 2006 and May 3, 2007, Ellis committed seven armed bank robberies.
- Ellis pleaded guilty to all seven counts on June 1, 2009 pursuant to a plea agreement.
- Paragraph 14 of the plea agreement restricted argument to only the stipulated offense characteristics/adjustments; the government could argue for an upward criminal history departure but not for an upward offense-level departure.
- The PSR calculated a total offense level of 29 and a criminal history category II, aligning with the plea agreement’s offense-level calculation.
- The district court departed upward to criminal history III, producing a Guideline range of 102–135 months, and then imposed a 151-month sentence under 18 U.S.C. § 3553(a).
- Ellis argued the government breached the plea agreement and asserted procedural errors and substantive unreasonableness; the Ninth Circuit rejected these claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of plea agreement | Ellis asserts government breached paragraph 14 by Booker-based arguments. | Ellis contends the government advocated for harsher terms than agreed. | No breach; arguments did not change the offense-level calculation. |
| Upward departure/departure reasoning | Ellis argues procedural error in applying an upward criminal history departure. | Ellis contends the district court abused its discretion in departing. | Departure analyzed for reasonableness under Mohamed; sentence upheld as substantively reasonable. |
| Reasonableness of above-Guidelines sentence | Ellis argues sentence is procedurally flawed and substantively unreasonable. | Government argues significant § 3553(a) factors justify variance. | Court affirmed 151-month sentence as reasonable under 3553(a). |
Key Cases Cited
- Mohamed v. United States, 459 F.3d 979 (9th Cir. 2006) (departure framework replaced by post-Booker reasonableness standard; harmless error if sentence reasonable)
- Gall v. United States, 552 U.S. 38 (S. Ct. 2007) (sentencing is advisory; procedural error requires remand unless harmless)
- Kimbrough v. United States, 552 U.S. 85 (S. Ct. 2007) (advisory guidelines start point; court may vary based on § 3553(a) factors)
- Santobello v. New York, 404 U.S. 257 (S. Ct. 1971) (plea agreement enforceable; breach impact depends on sentencing context)
- United States v. Tankersley, 537 F.3d 1100 (9th Cir. 2008) (review of departures for reasonableness rather than § 5K2.0 application)