UNITED STATES of America, Plaintiff-Appellee, v. Ubaldo GONZALEZ-AGUILAR, aka Roberto Sanchez Aguilar, aka Arturo Diaz, aka Arturo Cruz Garcia, aka Waldo Gonzalez, aka Wbaldo Gonzalez, aka Jorge Padilla Rodriguez, Defendant-Appellant.
No. 12-50048
United States Court of Appeals, Ninth Circuit
June 13, 2013
Argued and Submitted April 11, 2013.
718 F.3d 1185
REVERSED AND REMANDED with instructions.
Matthew Brady Larsen (argued), Deputy Federal Public Defender, Federal Public Defender‘s Office, Los Angeles, CA, for Defendant-Appellant.
Before: MARSHA S. BERZON, RICHARD C. TALLMAN, and MILAN D. SMITH, JR., Circuit Judges.
OPINION
TALLMAN, Circuit Judge:
Ubaldo Gonzalez-Aguilar pled guilty to one count of being a previously deported alien found in the United States, in violation of
BACKGROUND
On August 16, 2011, Ubaldo Gonzalez-Aguilar was charged in a one count Information with being a previously deported alien found in the United States, in violation of
After taking Gonzalez-Aguilar‘s guilty plea, the district court reserved approval of the plea agreement pending preparation of a presentence report so the court could make its own determination on whether to accept the plea agreement and stipulated sentence. In the Initial Presentence Report, filed on October 31, 2011, the United States Probation Office recounted Gonzalez-Aguilar‘s extensive record of prior offenses and determined that Criminal History Category V applied. The Probation Office calculated Gonzalez-Aguilar‘s resulting Guidelines range at 46 to 57 months of imprisonment.
On November 3, 2011, the government filed a sentencing memorandum, in which it evaluated Gonzalez-Aguilar‘s prior convictions in light of the sentencing factors articulated in
After considering the Initial Presentence Report and the sentencing positions filed by both parties, the district court declined to accept the plea agreement. The district judge concluded that a term of imprisonment for “46 months will be inadequate” and stated that he intended “to impose a sentence that is more severe than that.” The court continued sentencing proceedings in order to permit Gonzalez-Aguilar to decide whether “he want[ed] to persist in the guilty plea, in which case ... [the judge warned that] the sentence will be less favorable than that called for by the 11(c)(1)(C) agreement.” On January 30, 2012, Gonzalez-Aguilar declined to withdraw his guilty plea and proceeded to sentencing. The district court imposed a sentence of 57 months of imprisonment and three years of supervised release. Gonzalez-Aguilar immediately filed this appeal.
DISCUSSION
“A defendant‘s claim that the government breached [the terms of a] plea agreement is generally reviewed de novo.” United States v. Whitney, 673 F.3d 965, 970 (9th Cir. 2012). However, Gonzalez-Aguilar‘s counsel forfeited his claim by failing to timely object to the alleged breach during district court proceedings. Accordingly, we are limited to plain error review on appeal. See United States v. Cannel, 517 F.3d 1172, 1175-76 (9th Cir. 2008). “Relief for plain error is [only] available if there has been (1) error; (2) that was plain; (3) that affected substantial rights; and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Id. at 1176.
Gonzalez-Aguilar claims that the government implicitly breached the plea agreement by describing his prior convictions and including inflammatory language in its sentencing memorandum. Gonzalez-Aguilar contends that this conduct constituted a breach because the government‘s arguments “serve[d] no purpose but ‘to influence the court to give a higher sentence.‘” Whitney, 673 F.3d at 971 (quoting United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999)). We need not decide whether the arguments contained in the government‘s sentencing memorandum constituted a breach of the plea agreement because, even if a breach occurred, Gonzalez-Aguilar has not established that this alleged breach amounted to plain error.
Specifically, Gonzalez-Aguilar cannot demonstrate that the alleged breach impacted his substantial rights by “affect[ing] the outcome of the district court proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). Gonzalez-Aguilar argues that if the government had presented a united front with the defense in its sentencing memorandum then “it is probable” that the court would have accepted the plea agreement, but this speculative assertion is not supported by the record. See Whitney, 673 F.3d at 973.
The record establishes that the district court conducted its own independent evaluation of the propriety of the stipulated sentence. In doing so, the court was deeply influenced by the Initial and Revised Presentence Reports, relied extensively on the Reports’ description of Gonzalez-Aguilar‘s criminal past, and would not have lightly disregarded the facts contained in the Reports. The district court cited its reasons for imposing a lengthier sentence based on the criminal history discussion contained in the Presentence Reports.
Gonzalez-Aguilar notes the similarities between the district court‘s reasons for imposing a 57-month sentence, referencing his “unbroken string of violations of law,” and the government‘s description in its sentencing memorandum of Gonzalez-Aguilar‘s “extensive string of crimes.” The mere usage of the word “string” is insufficient proof that the government‘s sentencing memorandum persuaded the court to reject the plea agreement or impose a harsher sentence than the agreed upon term. Moreover, this argument ignores the impact of Gonzalez-Aguilar‘s extensive criminal record on an objective reader and the judge‘s obligation to fashion an appropriate sentence for a recidivist offender like Gonzalez-Aguilar.
Furthermore, Gonzalez-Aguilar cannot claim that the district court would not have received the information contained in the government‘s sentencing memorandum if not for the prosecutor‘s alleged misconduct. The information contained in the government‘s sentencing memorandum regarding Gonzalez-Aguilar‘s prior criminal convictions was already conveyed to the district court, in far greater detail, in the Initial and Revised Presentence Reports. Five pages of the Initial Presentence Report, and seven pages of the Revised Presentence Report, were devoted to describing Gonzalez-Aguilar‘s extensive criminal history, listing fifteen separate offenses. The district court was not required to turn a blind eye to the reality of a long criminal history in deciding whether to accept or reject the stipulated sentence the parties urged upon the court.
The Presentence Reports and the government‘s sentencing memorandum contain similar rhetoric, which Gonzalez-Aguilar claims is objectionable. Gonzalez-Aguilar complains that the government, in its sentencing memorandum, referenced his “extensive criminal history,” described his “many past sentences, terms of probation, and five deportations,” and concluded that he “continues to flout the law and shows no signs of stopping.” However, the Probation Officer included nearly identical language in the Initial and Revised Presentence Reports, detailing Gonzalez-Aguilar‘s “more than two decades of criminal conduct,” and concluding that “[b]ased on [Gonzalez-Aguilar‘s] prior criminal convictions and arrest history, as well as his multiple removals from the United States, it is clear that he lacks respect for the law in the United States.” The Initial Presentence Report was drafted and provided to the court before the parties filed their sentencing memoranda.
As a result, Gonzalez-Aguilar has not convinced us that, absent this reference in the government‘s sentencing memorandum, “it is probable that” the court would have accepted the plea agreement and imposed a more lenient sentence. Whitney, 673 F.3d at 973.1 Instead, Gonzalez-Agui-
Mere “possibility” is insufficient to establish prejudice. Rather, as the Supreme Court has clearly stated, to prevail on plain error review, a defendant must show that the alleged error was “‘prejudicial,’ which means that there is a reasonable probability that the error affected the outcome“—here the longer sentence imposed. United States v. Marcus, 560 U.S. 258, 264 (2010) (emphasis added). The Court clarified that it is not sufficient for the defendant to state that there is a “possibility, however remote” that the defendant could have obtained a better outcome or sentence absent the error. Id. at 2163. Instead, where a breach of the plea agreement is alleged, the defendant must prove that it is “reasonabl[y] probable” that he or she would have received a more lenient sentence if the government had not committed the breach, not just merely that it is “possib[le].” Id. at 2163-64. As we held in Whitney, “[t]o conclude that a defendant‘s substantial rights were affected, there must be a reasonable probability that the error affected the outcome of the [sentencing].” Whitney, 673 F.3d at 972 (second alteration in original).
“It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice[, and] ... a court of appeals cannot correct the forfeited error unless the defendant shows that the error was prejudicial.” Olano, 507 U.S. at 734; see also United States v. Lorenzo, 995 F.2d 1448, 1458 n. 4 (9th Cir. 1993) (“[I]f plain error applies, it appears that the appellants, rather than the government, [must] pay the price for the inadequacy of the record.“). Absent proof of prejudice, Gonzalez-Aguilar cannot establish plain error and he is not entitled to relief.