In rе Alvaro VASQUEZ-RAMIREZ, Alvaro Vasquez-Ramirez, Petitioner, v. United States District Court for the Southern District of California, Respondent, United States of America, Real Party in Interest.
No. 04-75715
United States Court of Appeals, Ninth Circuit
Argued and Submitted Nov. 18, 2005. Filed April 6, 2006.
443 F.3d 692
Before: WILLIAM C. CANBY, JR., ALEX KOZINSKI and EUGENE E. SILER, JR.,* Circuit Judges. KOZINSKI, Circuit Judge.
Steven F. Hubachek, Chase Scolnick and Lori B. Schoenberg, Federal Defenders of San Diego, Inc., San Diego, CA, for the petitioner. Michael J. Dowd, Lerach Coughlin Stoia Geller Rudman & Robbins LLP, San Diego, CA, for the respondent. Carol C. Lam, United States Attorney; Roger W. Haines, Jr., Assistant United States Attorney, Chief, Appellate Section, Criminal Division; and Dаvid P. Curnow, Assistant United States Attorney, San Diego, CA, for the United States, real party in interest.
Alvaro Vasquez-Ramirez was deported from the United States after having been convicted of an aggravated felony. He then reentered the United States in violation of
Vasquez agreed to the deal, signed a plea agreement, and was arraigned on an information charging two counts of violating
The court hаd reviewed the criminal history report. I have reviewed the report—excuse me—the report and recommendation. I reject the Plea Agreement in this case. And accordingly, I am going to give the defendant, Mr. Vasquez, the right to withdraw his plea. Actually, he doesn‘t need to, because I am not going to accept the plea. I reject it. The criminal history category in this case and the criminal history of the defendant is so high that in good conscience I would not sentence him to 30 months, and I reject the Plea Agreement. I am not going to follow that. I am not going to go along with it. I am not going to dismiss the [section 1326] charge.
Vasquez moved for reconsideration but the district judge declined. When pressed for his reasons, the judge stated that he didn‘t want to get “mousetrapped” into losing his discretion to impose a sentence longer than 30 months. Vasquez brings a mandamus petition seeking to compel the district judge to accept his guilty plea.2 He does not challenge the judge‘s rejection of the plea agreement.
Merits
1. The Suрreme Court has emphasized the importance of treating pleas and plea agreements distinctly, see United States v. Hyde, 520 U.S. 670, 674, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997) (“Guilty pleas can be accepted while plea agreements are deferred, and the acceptance of the two can be separated in time.“), as have we, see Ellis v. United States Dist. Court, 356 F.3d 1198, 1206 (9th Cir.2004) (en banc) (“The plain text of Rule 11 compels distinct treatment of the plea agreement and the plea itself, as the Supreme Court concluded in Hyde.“).
The distinction between pleas and plea agreements is codified in
Thus, viewing Rules 11(a) and (b) together, it is clear that a court must
2. We hаve previously addressed the relationship between plea agreements and guilty pleas. In Ellis, we issued a writ of mandamus to a district court that had rejected a plea agreement and vacated the defendant‘s previously entered guilty plea. We held as follows:
If ... the court rejects a Rule 11(c)(1)(A) or (C) plea agreement, Rule 11(c)(5) dictates the procedures to be followed:
[T]he court must do the following on the record and in open court (or, for good cause, in camera):
(A) inform the рarties that the court rejects the plea agreement;
(B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and
(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.
The only course available for the district court, upon rejecting the plea agreement, is to advise the defendant of his rights, including the right to withdraw the guilty plea. . . . And should the defendant decide to maintain his plea of guilty, the court “may dispose of the case less favorably toward the defendant than the plea agreement contemplated.”
When his plea agreement was rejected, it became Ellis‘s choice whether to: (i) stand by his plea ... (ii) withdraw his plea and attempt to renegotiate a new plea agreement ... or (iii) withdraw his plea and take his chances at trial. . . .
Ellis, 356 F.3d at 1207-08 (alteration in original).
The district judge in this case tried to avoid the strictures of Ellis by refusing to accept Vasquez‘s guilty plea in the first place; thus, he thought, there would be nothing to vacatе. But the judge‘s attempt to distinguish a guilty plea already accepted from one that has only been tendered must fail; as described above, the act of “accepting” a tendered guilty plea is non-discretionary once the Rule 11(b) requirements are met. A tendered guilty plea that meets the Rule 11(b) requirements is effectively the same as a guilty plea that has been accepted, even if the judge doesn‘t formally “accept” the plea until later. Thus, when the district judge rejected Vasquez‘s plea аgreement, his guilty plea had already been effectively entered; the judge‘s decision not to “accept” the plea at that point was no different from the Ellis judge‘s decision to vacate an already-accepted plea.
The Supreme Court‘s description of the proper sequence of events accords with our analysis:
[The Federal Rules of Criminal Procedure] explicitly envision a situation in which the defendant performs his side of the bargain (the guilty plea) before the Government is required to perform its side. . . . If the court accepts the agreement and thus the Government‘s promised performance, then the contemplated agreement is complete and the defendant gets the benefit of his bargain. But if the court rejects the Government‘s promised performance, then the agreement is terminated and the defendant has the right to back out of his promised performance (the guilty plea), just as a binding contractual duty may be extinguished by the nonoccurrence of a condition subsequent.
Hyde, 520 U.S. at 677-78 (emphasis added). Once the district judge rejected Vasquez‘s plea agreement, he should have given Vasquez the same choices we gave Ellis: “(i) stand by his plea ... (ii) withdraw his plea and attempt to renegotiate a new plea agreement ... or (iii) withdraw his plea and take his chances at trial. . . .” Ellis, 356 F.3d at 1208.
3. The district judge protests that, were he forced to accept Vasquez‘s guilty plea, he could impose no more than a 30-month sentence, which he finds inadequate in light of Vasquez‘s criminal history. He also argues that the parties will be effectuating the very plea agreement he rejected, which recommended a 30-month sentence. The dissent in Ellis shared the district judge‘s concerns:
The majority states that ... the judge may still “dispose of the case less favorably toward the defendant than the plea agreement contemplated” under
Rule 11(c)(5) . . . . I wish that were so. If a defendant pleads to lesser charges with a lesser maximum but open sentencing, and the judge disapproves of the charge bargain after reading the presentence report, the judge is limited, under the majority opinion, to the inadequate conviction, and, if the maximum is toо low, the inadequate sentence. Under the majority opinion, if the prosecutor and defense agreed to plead first-degree murder down to a misdemeanor such as careless use of firearms, and, knowing nothing but the stipulation of facts in the plea bargain, the court accepted the plea, there would be nothing the court could do about it when the presentence report revealed what had occurred.
Ellis, 356 F.3d at 1232 n. 7 (Kleinfeld, J., dissenting).
We rejected this argument in Ellis, and we reject it again here, because it misses the point. Now that the рlea agreement has been rejected, Vasquez‘s guilty plea is a naked plea, unencumbered by waivers of his right to appeal or collaterally challenge the proceedings, and unaccompanied by a government promise to drop the
Should the government indeed decide to drop the
By refusing to accept Vasquez‘s guilty plea, the district judge is trying to force the government to pursue a charge it does not wish to press. As we held in Ellis, this intrudes too far into the executive function:
The district court viewed the sentence resulting from Ellis‘s plеa bargain as not in the best interest of society, given Ellis‘s criminal history and the circumstances of the offense charged. This was a judgment properly within the judicial function. It is also a function protected by
Rule 11 ‘s provision for the rejection of a negotiated plea agreement when the court believes a sentence is too lenient or otherwise not in the public interest. [United States v. Miller, 722 F.2d 562, 563 (9th Cir.1983) ]. But when the district court made the further decision that the [lesser] charge itself was too lenient, it intruded into the charging decision, a function “generally within the prosecutor‘s exclusive domain.” Id. at 565.... The district court‘s decision forced the government to prepare to try Ellis on a charge it did not want to bring....
Ellis, 356 F.3d at 1209. 4. Our reading of The Supreme Court has held that: Moreover, the rule must not be taken lightly. Presentence reports are documents which the rule does not make available to the defendant as a matter of right. There are no formal limitations on their contents, and they may rest on hearsay and contain information bearing no relation whatever to the crime with which the defendant is charged. . . . [T]here is no reason for [the judge] to see the document until the occasion to sentence arises, and under the rule he must not do so. Gregg v. United States, 394 U.S. 489, 491-92, 89 S.Ct. 1134, 22 L.Ed.2d 442 (1969). The parties in this case submitted a criminal history report to the district court in conjunction with their plea agreement, in compliance with the district judge‘s “standard practice.”7 But this practice is permissible only if the judge adheres to The district judge wants to have it both ways—he wants to have access to information to which he is only entitled once the defendant is guilty, and then use it retrospectively to decide whether to accеpt the defendant‘s guilty plea. This is not allowed under the Rules. 5. Finally, our reading of Although we can find no case dealing with precisely the same issue we confront here, where a judge rejects a plea that meets the Rule 11(b) requirements, the D.C. Circuit has come the closest: It found that a district court abused its discretion by rejecting a guilty plea without regard for whether the Rule 11(b) requirements had been met, suggesting that a plea rejection must relate to Having concluded that the district court erred in refusing to accept Vasquez‘s guilty plea, we must decide whether to issue a writ of mandamus. We consider five factors when deciding whether to issue a writ of mandamus: (1) whether the petitioner has any other means of obtaining the relief he desires; (2) whether the petitioner will suffer harm that is not remediable on appeal; (3) whether the district court was clеarly erroneous as a matter of law; (4) whether the district court‘s error is oft repeated, or manifests a blatant disregard of the rules; and (5) whether the district court‘s order raises new and important issues. See Bauman v. United States Dist. Court, 557 F.2d 650, 654-55 (9th Cir.1977). Not all have to be met to warrant a writ of mandamus; we conduct a balancing of the five factors. See id. at 655. For the reasons explained above, factors three and five are easily satisfied in this case: The district judge‘s decision to reject Vasquez‘s guilty plea is clearly erroneous and raises imрortant issues involving prosecutorial discretion and separation of powers. Factor four is also satisfied to some degree: Although the district judge‘s error Substantial prejudice would result to [the defendant], the government, and the judicial system by requiring all to proceed through trial ... before the district court‘s error could be remedied on direct appeal. . . . The uncorrectable prejudice arising from the district court‘s refusal to proceed on the [lesser] charge is evident from a consideration of the possible outcome of a trial on the [greater] charge, were we to deny mandamus relief. If the jury acquitted the defendant ... [he] would go free because he would not, under the district court‘s ruling, have pleaded guilty to the [lesser] charge, and could not be tried on that charge. Had the jury, instead, returned a verdict of guilt on the [greater] charge ... [the defendant] would have irreparably suffered the prejudice of the additional, and unnecessary, financial and emotional burden of having to stand trial. Ellis, 356 F.3d at 1210-11 (citing Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) and Arizona v. Washington, 434 U.S. 497, 503-05, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)). Thus, a writ of mandamus is the appropriate remedy. Finally, Vasquez argues that the case should be reassigned to a different district judge. The district judge who denied Vasquez‘s guilty plea has already viewed Vasquez‘s criminal history report and has exрressed strong views about its contents. Further, the judge has told the parties that he will not grant any motion the government may file to dismiss the The district judge has read the presentence report and has exprеssed strong views on its contents. . . . [T]o preserve the appearance of justice, and consistent with the purposes of * * * A district judge retains broad discretion to sentence a defendant to any term of imprisonment within the statutory range set by Congress, for the crime the prosecutor has chosen to pursue. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 750, 160 L.Ed.2d 621 (2005). But the judge oversteps his bounds when he forces the prosecutor to pursue charges the prosecutor would rather not, just because the judge disagrees with the sentencing range to which he would otherwise be limited. Once a prosecutor brings charges against a defendant, The petition for mandamus is GRANTED. Respondent shall order the case
Remedy
Notes
United States v. Robertson, 45 F.3d 1423, 1438 (10th Cir.1995) (citations omitted).Though charging decisions implicate executive power, they also implicate the sentencing discretion of district courts. However, the court‘s sentencing discretion is implicated only as an incidental consequence of the prosecution‘s exercise of executive discretion. In fact, a court‘s sentencing discretion is implicated in this situation in precisely the same manner it is implicated by prosecutorial decisions to bring charges in the first place, where prosecutorial discretion is nearly absolute. As such, charge bargains directly and primarily implicate prosecutorial discretion whereas judicial discretion is impacted only secondarily. Thus, while district courts may reject charge bargains in the sound exercise of judicial discretion, concerns relating to the doctrine of separation of powers counsel hesitancy before second-guessing prosecutorial choices.
Further, courts that discuss this “well-settled proposition” often cite to Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). See, e.g., Brown, 331 F.3d at 594; Gomez-Gomez, 822 F.2d at 1010. But Santobello was decided before 1975, when Rule 11 was amendеd to remove the language that explicitly gave courts the ability to reject a guilty plea. No court seems to have analyzed whether this “well-settled proposition” still applies post-1975.
In any event, the Supreme Court in Santobello was reviewing a state court decision, see