981 F.2d 1037 | 9th Cir. | 1992
Lead Opinion
ORDER
On June 1, 1992, appellee moved to dismiss this appeal on the basis that appellant
In his response, appellant contends, among other issues, that the government breached the plea agreement by opposing a two-level reduction in sentencing for acceptance of responsibility.
If appellant’s contention is true, appellant may be entitled to specific performance or some other relief. See United States v. Goroza, 941 F.2d 905 (1991). We do not decide the merits of appellant’s contention that the government breached the plea agreement.
Appellant’s opening brief and excerpts of record are due January 11,1993; appellee’s brief is due February 10, 1993; the reply brief, if any, is due February 24, 1993.
. Cf. United States v. Santiago-Martinez, 980 F.2d 582 (9th Cir.1992). (Appeal dismissed by merits panel after briefing was completed on the ground that appellant expressly waived his right to appeal the sentence.)
Dissenting Opinion
dissenting:
Like every other circuit to consider the issue, we have held that plea agreements waiving defendants’ right to appeal are valid and enforceable. See, e.g., United States v. Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir.1990), cert. denied, — U.S. -, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991).
I
United States v. Arana-Galicia, No. 91-50846.
In February 1991, Jose Manuel Arana-Galicia was indicted for possessing marijuana with intent to distribute and aiding and abetting possession of marijuana with intent to distribute. 18 U.S.C. § 2, 21 U.S.C. § 841(a)(1). He pleaded guilty pursuant to an oral agreement. RT 9/3/91 at 5. Ara-na’s lawyer recited the terms of the plea bargain:
[T]he Government has agreed in exchange for his plea to dismiss the underlying indictment at the time of sentencing, that the readily provable amount of marijuana in this case is between 80 and a hundred kilos.... The Government will recommend acceptance of responsibility. The Government will recommend the low end of the guidelines. The Government ... will recommend a downward departure ... to 33 months in custo-dy_ Mr. Arana will waive all appellate rights with respect to sentencing if the Government complies with the plea bargain.
Id. at 16-17 (emphasis added).
Nonetheless, Arana filed a notice of appeal. His lawyer, Assistant Federal Public
The matter was then presented to us, and we ordered the government to file a supplemental brief on whether the appeal should be dismissed, in response to which the government has urged that we do so. My colleagues now refuse to dismiss the appeal; deny Cohen’s request to withdraw; order him to submit an Anders brief; and set this case for briefing on the merits. I’m at an utter loss to understand why.
Arana doesn’t argue that the government failed to hold up its end of the bargain. The prosecution in fact complied with each and every one of its obligations under the plea agreement. It agreed at sentencing that the amount of marijuana was between eighty and one hundred kilos, yielding an offense level of 24. RT 11/25/91 at 9-10. It recommended an acceptance of responsibility reduction, id., and a three-level reduction for substantial assistance, RT (sealed sidebar conference) 12/3/91 at 3, 6-7. The court accepted all of the government’s recommendations. RT 12/3/91 at 3. The court ultimately imposed 27 months in custody, even though the government had only promised to recommend 33 months. Id.
Nor does Arana contend that his guilty plea, entered in open court, wasn’t knowingly and voluntarily made, the standard by which we review it. See Brady v. United States, 397 U.S. 742, 747-48, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). Chief Judge Keep reviewed all of the terms of the agreement with Arana, RT 9/3/91 at 16-22, and she reiterated at sentencing that he had waived his right to appeal, RT 12/3/91 at 4-5. Arana’s counsel now states that “[i]n my opinion, Mr. Arana’s waiver of appeal was knowing and volun-tary_ Mr. Arana validly waived his appeal.” Declaration of David J. Cohen in Support of Motion to Show Cause Why Appeal Should Not Be Dismissed, 6/18/92 at f 7. He also recognizes that “Mr. Arana can only succeed in this appeal if he demonstrates that his waiver was not knowing and voluntary. I cannot ethically assert such a claim because I do not believe it has any merit.” Id. It 9.
United States v. Gonzalez, No. 92-50268.
Sergio Gonzalez, an I.N.S. inspector, pleaded guilty to charges of accepting bribes and conspiring to accept bribes in exchange for permitting vehicles he suspected of transporting cocaine to enter the United States without inspection. .18 U.S.C. §§ 201(b)(2), 371. In return for the dismissal of certain other charges pending against him, he also signed a written plea agreement waiving his right to appeal “any sentence imposed at or below the U.S.S.G. range determined to apply by the Probation Department or the District Court.” Plea Agreement, 10/29/91 at ¶ 11. As part of the plea agreement, the government undertook as follows:
The Government agrees that if the Court finds that defendant Gonzalez accepts responsibility for his offense, the Government will not oppose a two-level reduction pursuant to U.S.S.G. § 3E1.1.
Id. II9. Gonzalez appealed, and the government moved to dismiss the appeal based on the plea agreement. An earlier motions panel ordered Gonzalez to submit a statement of the issues he wished to raise on appeal, and he has listed several, including whether he was sentenced under the appropriate Guideline section and whether an upward adjustment for abuse of trust was
As a threshold matter, Gonzalez argues that the government broke its promise not to oppose an acceptance of responsibility reduction. The probation officer recommended a two-level reduction for acceptance of responsibility, but the government objected. RT 3/2/92 at 7. The court tentatively ruled that “I think I am going to ... give him ... acceptance of the responsibility.” Id. at 14. The prosecutor then explained “[t]he reason[s] that the government is urging acceptance of responsibility not be given.” Id. at 15. He concluded them by saying that until Gonzalez “is willing to step up to the podium and tell the court, I did it for greed, we do not believe that he has accepted responsibility for the offense.” Id. at 16. The court observed that “[t]he prosecutor points out a very good point, he is not willing to accept full responsibility.” Id. at 17. The court then ruled that “I won't deduct two points for acceptance of responsibility.” Id. at 18.
II
A. As we recognized in Navarro-Botel-lo, “public policy strongly supports plea agreements, such as the one[s] made by [appellants in these cases].” 912 F.2d at 321. Plea bargains are an important — indeed an essential — component of our criminal justice system; they provide vast benefits to the government, to our courts, to the public and to criminal defendants. See, e.g., Frank H. Easterbrook, Plea Bargaining as Compromise, 101 Yale L.J.1969, 1975 (1992); see also Fed.R.Crim.Proc. II.
When the plea agreement contains a clause waiving the defendant’s right to appeal, it becomes a negotiated aspect of the deal. The assurance that the plea won’t be set aside on appeal enables the prosecutor to cut short the time and other resources she will devote to the case. See Navarro-Botello, 912 F.2d at 322. The courts also benefit when the case is put to rest, obviating the need for a judicial resolution of the matter. The public receives a benefit because its servants in the judicial and executive branches are freed to devote their limited resources to other cases. And last— but by no means least — the defendant receives a benefit in the form of reduced charges, a favorable sentence recommendation or some other substantial advantage to which he wouldn’t otherwise be entitled.
The defendant breaches the contract when he nevertheless files a notice of appeal after agreeing not to do so, thereby denying the government, the public and the courts the benefit of the plea agreement. I see no justification for abetting this duplicity by ordering a reluctant defense lawyer to file a brief, compelling the government to respond and requiring a merits panel to consider the very appeal the defendant agreed not to take. Even if the merits panel eventually concludes that Arana’s appeal is meritless (as I’m confident it will), substantial expenditures of prosecutorial and judicial resources will already have been wasted. It is precisely to avoid the expenditure of these resources that the government includes no-appeal clauses in many plea bargains.
Because the terse order in Arana doesn’t explain the majority's reasons for refusing to dismiss the appeal, I can only surmise why it’s doing so. The part of the order which calls for attorney Cohen to file an Anders brief suggests my colleagues harbor the suspicion that the record here, after all, might contain some basis for setting aside the conviction or the sentence. An-ders itself stands for the proposition that a
It is a much different matter, however, when the defendant has ceded his right to appeal. Any arguable issues contained in the record become irrelevant; only the plea bargain matters, because the defendant has traded away the right to have any issues — even strong, viable ones — considered on appeal. When, as in Arana-Gali-cia, the defense lawyer who negotiated the plea represents to us that the defendant entered the agreement knowingly and voluntarily, the district court makes findings to the same effect and everyone agrees that the government faithfully upheld its end of the deal, continuing with the appeal becomes little more than a charade. And a costly charade, at that: A pointless expenditure of time, effort and money, leading to only one possible result — the eventual dismissal of the appeal.
Gonzalez’s case is somewhat more complicated. He, at least, raises a bona fide argument that the government violated the terms of the plea agreement by refusing to recommend a downward adjustment based on acceptance of responsibility. “The Supreme Court and this court have unequivocally held that prosecuting attorneys must keep promises made in plea agreements.” United States v. Fisch, 863 F.2d 690, 690 (9th Cir.1988) (per curiam). Where the prosecution fails to make a promised sentencing recommendation, it breaches the plea agreement. Arguably, then, Gonzalez should be permitted to appeal on the narrow issue of whether the government has breached its responsibilities under the plea agreement. But see Part 11(B), infra. There’s no justification, however, for permitting Gonzalez to bring an appeal as to any other issue, as he now proposes to do. See Statement in Response to Motion to Dismiss Appeal, 7/7/92 at 2 (listing among the issues to be presented on appeal the propriety of the sentencing range selected by the district court and whether Gonzalez deserved an upward adjustment for abuse of trust). Were we to conclude the government breached its side of the bargain, the most Gonzalez could possibly hope to receive is a two-level downward departure for acceptance of responsibility.
Having been advised by the defendant that he seeks to raise issues on appeal in addition to the breach of the plea bargain, my colleagues nonetheless set a briefing schedule that does not limit Gonzalez to the one issue that he is (arguably) entitled to appeal. The government will obviously have to respond to whatever issues Gonzalez raises, even if the merits panel ultimately concludes such claims aren’t “properly before it,” see maj. op. at 1038. The only inference to be drawn from this ruling is that a defendant need do no more than raise a single issue that calls into question the validity of the plea bargain before he can impose on the government the cost of defending a full merits appeal. We shouldn’t let one side so easily deprive the other of the benefit of its bargain.
B. Although it is a closer question, I also believe that Gonzalez is precluded from raising by way of direct appeal even his claim that the government welshed on the plea bargain. Navarro-Botello suggested that a waiver of the right to appeal might not preclude the appeal if the sentence imposed by the court did not conform, to the negotiated agreement. 912 F.2d at 321. In United States v. Serrano, 938 F.2d 1058, 1060 (9th Cir.1991), we subsequently permitted an appeal on the basis of
What neither Navarro-Botello nor Serrano addressed, however, is the general rule that an issue may not normally be raised on appeal unless it has first been presented to the district court.
I see no justification for creating a wholesale exemption from the contemporaneous objection requirement in cases where a defendant claims that there’s a defect in the plea bargain. Indeed, all of the policies of the contemporaneous objection rule apply with particular vigor to such a situation. To begin with, whether a plea bargain is defective or has been violated normally turns on facts not in the record. The government’s failure to live up to its side of the bargain is only one such issue; others include whether the defendant was properly advised by counsel, whether collateral promises were made to him, whether he was competent to enter the plea and whether he spoke and understood English.
In Gonzalez, for example, it isn’t at all clear from the terms of the plea bargain whether the government had agreed not to argue against a downward departure under any circumstances (the defendant’s position) or whether it merely agreed that if the district court found acceptance of responsibility, the prosecutor wouldn’t argue against the court’s exercise of discretion to depart downward (presumably the government’s position). Similarly, in Serrano we remanded to the district court to resolve factual disputes bearing on whether the defendant had fulfilled his obligation to cooperate with the government. 938 F.2d at 1061-62. When an objection is raised in the district court, the inquiry can be made before an appeal is taken, which is the ordinary way of proceeding in such matters.
Furthermore, plea bargains are contracts and their interpretation, including the appropriate remedy for their breach, depends upon “what the parties to the plea bargain reasonably understood to be the terms of the agreement.” Escamilla, 975 F.2d at 571 (internal quotation marks omitted). Again, Gonzalez illustrates why the district court is best equipped to make this determination in the first instance. The agreement specifies that if “Gonzalez fails to comply with any of the above terms and conditions, [it] is null and void.” Plea Agreement ¶ 13. By its terms this clause applies only to breaches by defendant, but Gonzalez contends that he’s entitled to the same remedy for breaches by the government. See Statement in Response to Motion to Dismiss Appeal, 7/7/92 at 2. This is precisely the type of issue best addressed by the district court in the first instance.
Finally, the district court has ways of obviating the issue if given a chance to do
In sum, I would allow an appeal in a case such as Gonzalez’s only where the validity of the plea bargain was first challenged in the district court or where there is a reason the issue couldn’t have been raised there. In all other cases, if that plea bargain contains a no-appeal clause, I would dismiss the appeal. An alternative approach might be to remand automatically such cases to the district court for further fact-finding and initial determination of the alleged breach, much as we do in cases that raise a Houston v. Lack issue. See, e.g., Vaughan v. Ricketts, 950 F.2d 1464, 1468 (9th Cir.1991).
Ill
No doubt my colleagues believe they err on the side of caution by allowing these appeals to proceed despite the agreement that they were not to be filed in the first place. But caution can be a costly commodity, and the price for it will be paid in large part by defendants in future cases. To the extent the government can never be certain whether, and to what extent, we will force it to defend an appeal even after a Navarro-Botello plea bargain, it will surely factor that risk into its calculus before entering such agreements. A harried Assistant United States Attorney might well be willing to strike a generous deal with a defendant if she can be sure that the case will promptly and permanently disappear from her docket; the incentive to settle will be decidedly less if she has to contemplate the possibility that she will, nonetheless, have to defend a full-blown appeal on the merits. Criminal defendants usually have few enough bargaining chips; sparing the government the time and expense of a trial and appeal is the primary currency in which they must deal. To the extent our rulings today suggest that the government can never enjoy such an assurance of repose, we shave the already thin coin most defendants have in buying a reduction in punishment.
Finally, we should pause to consider the awkward position in which we place defense counsel like Mr. Cohen. How can a defense attorney, acting in good faith, negotiate for a no-appeal clause in a plea bargain when he knows full well he has not just the opportunity but the obligation to turn around and violate that clause by pursuing an appeal? Cohen, it seems to me, has tried hard to be a forceful advocate for his client, while acting in good faith toward the court and opposing counsel. Such professional integrity deserves commendation, not the rebuke implicit in our order. By refusing to accede to defense counsel’s eminently reasonable request that he be let out of an impossible situation we have made it much more difficult for someone in Cohen’s position to discharge all his professional and ethical responsibilities. We should think long and hard before we force a member of our bar into such a tight box.
Worse still, once it’s established that Navarro-Botello waivers do not preclude appeal, attorneys will feel compelled to file a notice of appeal in every case to protect themselves from claims of malpractice or ineffective assistance of counsel. What we have tolerated out of an abundance of caution in a single case will surely become the norm, and we’ll all fare the worse for it. Because I believe the majority’s orders today impose unacceptable — and ultimately unbearable — costs upon all of the beneficiaries of our plea bargaining system, I respectfully dissent.
This dissent also applies to United States v. Arana-Galicia, 981 F.2d 1044 (9th Cir.1992), which follows.
. Accord United States v. Melancon, 972 F.2d 566 (5th Cir.1992); United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992); United States v. Wiggins, 905 F.2d 51, 53-54 (4th Cir.1990).
. Indeed, 85% of all federal criminal convictions in the year ending June 30, 1989, the most recent year for which statistics are available, were settled by a plea of guilty. See U.S. Dep’t of Justice, Sourcebook of Criminal Justice Statistics 502 tbl. 5.25 (Kathleen Maguire & Timothy J. Flanagan eds. 1990).
. More likely, defendant would only be entitled to a remand for the district court to consider such a downward departure in light of a favorable recommendation by the government.
. Because the statement in Navarro-Botello was . dictum, there is understandably no reference in the opinion to whether the defendant objected in the district court that the sentence violated the agreement. Likewise, there is no mention of a timely objection in Serrano, although Serrano had objected to other aspects of his sentence. See 938 F.2d at 1059-61. These cases stand only for the proposition that an appeal may be taken when the court does not follow the plea agreement in sentencing the defendant. Neither is inconsistent with my position that the method by which a defendant must challenge a departure from the agreement is a timely motion or objection in the district court. Cf. United States v. Vroman, 975 F.2d 669, 672 (9th Cir.1992) (circuit precedent not binding when prior panel fails to consider an argument later panel finds persuasive); United States v. Faulkner, 952 F.2d 1066, 1071 n. 3 (9th Cir.1991) (same).
. Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), held that pro se prisoners are deemed to file their notices of appeal within the meaning of Fed.R.App.Proc. 4(a)(1) at the time they deliver them to prison authorities. The exact time when a prisoner hands his notice of appeal to the warden will never be apparent from the face of the record. Because of the need for factual determinations in such cases, we decided in Miller v. Sumner, 872 F.2d 287, 289 (9th Cir.1989) (per curiam), that a “[rjemand to the district court for a determination of timeliness appears to be the only available method of following the dictates of Houston.”