United States v. Juan Rodriguez-Garcia ( 2012 )

FILED
NOT FOR PUBLICATION NOV 16 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50076
Plaintiff - Appellee, D.C. No. 3:11-cr-05519-LAB-1
v.
MEMORANDUM *
JUAN RODRIGUEZ-GARCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted November 5, 2012
Pasadena, California
Before: GRABER, IKUTA, and WATFORD, Circuit Judges.
The district court concluded that the government did not breach the plea
agreement. We need not decide whether that determination is reviewed de novo or
for clear error because, under either standard of review, the determination is
erroneous.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 3
The conviction documents that the government received after signing the
plea agreement confirmed that Rodriguez-Garcia had been convicted of violating
California Penal Code section 245(b). But that information was already disclosed
on Rodriguez-Garcia’s rap sheet, which stated that Rodriguez-Garcia had suffered
a parole violation with respect to the 245(b) count and had been ordered “to finish
term” on that count. Both entries, which were on the same page, contained the
identifying label “CNT:01 #D50749,” and no other entries contained a similar
identifier. A defendant cannot be ordered to finish a term of incarceration after
violating parole unless he was first convicted of the underlying crime. This entry
on Rodriguez-Garcia’s rap sheet therefore gave the government actual notice of
Rodriguez-Garcia’s 245(b) conviction.
That the government’s lawyer failed to appreciate subjectively the
significance of the information disclosed on Rodriguez-Garcia’s rap sheet is
irrelevant. Nothing in footnote one of the plea agreement says that application of
the footnote turns on the government’s subjective lack of awareness of the
significance of information already within its possession. At the very least, the
footnote is ambiguous on that score, and Rodriguez-Garcia reasonably interpreted
the footnote to prevent the government from altering its sentencing
recommendation based on a conviction already disclosed on his rap sheet. See
Page 3 of 3
United States v. De La Fuente, 8 F.3d 1333, 1337 & n.7 (9th Cir. 1993) (plea
agreement must be construed in accordance with the defendant’s objectively
reasonable understanding of its terms when he pleaded guilty).
Because the government breached its obligations under the plea agreement,
we must vacate Rodriguez-Garcia’s sentence and remand the case to a different
district judge for resentencing. United States v. Alcala-Sanchez, 666 F.3d 571, 577
& n.2 (9th Cir. 2012). In doing so, we intend no criticism of the district court; we
remand to a different judge only because our case law demands this remedy. Id.Rodriguez-Garcia’s sentence is VACATED and the case REMANDED
for resentencing before a different judge.
FILED
United States v. Rodriguez-Garcia, No. 12-50076 NOV 16 2012
MOLLY C. DWYER, CLERK
IKUTA, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS
The plea agreement in this case states:
The parties agree that, if before defendant is sentenced, contrary or additional
information is discovered concerning defendant’s criminal history that changes
defendant’s applicable [specific offense characteristics], then the Government
may recommend a sentence based upon any such changes.
When the government entered this agreement, it knew that Rodriguez-Garcia
had a 2006 felony conviction for the transportation of marijuana. A month later,
the government received Rodriguez-Garcia’s criminal history report, which
revealed a 1987 assault conviction under section 245(b) of the California Penal
Code. Because the criminal history report was “contrary or additional information
. . . concerning defendant’s criminal history,” the government did not breach the
plea agreement when it changed its sentencing recommendation.
The majority disagrees, claiming that a rap sheet in the government’s
possession at the time of the agreement disclosed that Rodriguez-Garcia had been
convicted of a violation of section 245(b). A fair review of the rap sheet shows
nothing of the sort.1 Even accepting the appellant’s claims about how the codes
and abbreviations in the rap sheet should be interpreted, nothing in the rap sheet
1
A copy of the rap sheet is attached.
1
states that Rodriguez-Garcia was convicted of a violation of section 245(b).
Moreover, because other convictions are noted expressly on the rap sheet, the clear
inference is that Rodriguez-Garcia was not convicted of a section 245(b) violation.
Most important, the district court, which had twenty years of reviewing such rap
sheets, concluded that “the rap sheet is devoid of any disposition” for the section
245(b) charge. We are bound by this factual finding, because it is not clearly
erroneous.
In reaching a contrary conclusion, the majority relies on a chain of
inferences viewed with the clarity of hindsight. The majority points out that
halfway down the page of coded rap sheet entries there is a reference to a parole
violation. Rodriguez-Garcia associates this reference with a prior entry that lists a
section 245(b) charge. Putting these two entries together, the majority infers that a
parole violation implies a prior conviction. Maj. Op. at 2. But the problem with
this inference is that the parole violation does not clearly refer to the section 245(b)
charge. In fact, the connection between the parole violation and the section 245(b)
charge is so unclear that it was missed by the experienced district court as well as
by both parties’ lawyers in the proceedings below. At a minimum, the government
cannot be charged with actual knowledge of information that can be inferred only
through aggressive interpretation and guesswork. See, e.g., United States v. Sutton,
2
794 F.2d 1415, 1423 (9th Cir. 1986) (holding that the government’s agreement not
to file charges against the defendant based on “conduct known to the government”
referred only to criminal activity actually known to the government, not activity
“that reasonably could have been known”).
Because the district court’s ruling was not clearly erroneous and because we
may not hold that the government had actual knowledge of a conviction merely
because it failed to make a chain of inferences, the government did not breach its
plea agreement. I dissent.
3