Morgan v. United States District Court for the District of Arizona , 506 F.3d 705 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: CHAD HARLEY MORGAN, 
Petitioner,
CHAD HARLEY MORGAN, No. 07-70201
Petitioner,
D.C. No.
v.  CR-06-00238-PCT-
UNITED STATES DISTRICT FJM
COURT FOR THE DISTRICT OF OPINION
ARIZONA,
Respondent,
UNITED STATES OF AMERICA,
Real Party in Interest.

Petition for Writ of Mandamus
Argued and Submitted
April 20, 2007—San Francisco, California
Filed October 9, 2007
Before: Alfred T. Goodwin, Sidney R. Thomas, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Goodwin
13607
IN RE MORGAN 13609
COUNSEL
Craig Orent, Assistant Federal Public Defender, Phoenix, Ari-
zona, for the defendant-petitioner.
Linda C. Boone, Assistant United States Attorney, Phoenix,
Arizona, for the United States of America, real party in inter-
est.
13610 IN RE MORGAN
OPINION
GOODWIN, Circuit Judge:
Chad Harley Morgan (“Morgan”) petitions this court for a
writ of mandamus after the district court rejected the stipu-
lated sentence called for by Morgan’s plea agreement with the
government. The government does not oppose the petition,
and both parties assign error to the district court’s conclusion
that the stipulated sentence was “unreasonable as a matter of
law.” We deny Morgan’s petition. However, because we con-
clude that the district court erred, we remand this matter for
further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
While imprisoned at a detention center on the Hopi Indian
Reservation in Arizona, Morgan and fellow inmate Derrick
Mase (“Mase”) attacked another man without provocation.
Morgan placed the victim in a choke hold, and after Mase
punched the victim in the face several times, Morgan threw
him to the ground, head first. The victim sustained serious
head injuries, leading to approximately one month of hospital-
ization during which he required a feeding tube, sedation, and
intubation. Morgan and Mase were both indicted in the Dis-
trict of Arizona and charged with one count of assault result-
ing in serious bodily injury, in violation of 18 U.S.C. §§ 1153
and 113(a)(6). Both men pleaded guilty to the charged offense
under plea agreements with stipulated terms of imprisonment,
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C):
thirty-seven months for Morgan, thirty-three months for
Mase.
In November 2006, Mase proceeded to sentencing. Noting
the stipulated prison term in the agreement, the district court
initially stated: “Ordinarily we would summarily reject plea
agreements like this because they don’t leave us anything to
do. But in this case it’s a plea to what looks like it turns out
IN RE MORGAN 13611
to be the high end of the advisory guideline.” The court later
reiterated its general aversion to stipulated sentences, stating:
“I usually don’t take pleas to specific terms because it doesn’t
leave me anything to do, but I do consider them. And in this
case it may be a perfectly acceptable plea because it’s at the
high end of the range.” After both the government and Mase’s
counsel addressed the plea’s propriety, the court undertook its
own analysis. The court noted first that the sentence was
within the advisory guideline range and explained that a sen-
tence at the high end of the range was justified in light of the
severity of Roy’s injuries, as well as Mase’s substantial juve-
nile and adult criminal record. The court stated that it had
considered all of the factors required by 18 U.S.C. § 3553.
Having considered the specific facts of Mase’s case through
the statutorily required lens, the court “satisfied [it]self” that
the stipulated term was reasonable.
Morgan was sentenced three weeks later. At the outset of
the sentencing hearing, the court noted that the thirty-seven
month term to which the parties stipulated was the maximum
sentence under the applicable guideline range but indicated
that an upward departure may be appropriate, given the extent
of Roy’s injuries and Morgan’s role in causing them. Mor-
gan’s attorney argued in favor of the stipulated sentence, and
the court also heard from the probation officer, who stated
that the stipulated sentence “might serve as a deterrent factor”
and that he believed the sentence “will have some impact on”
Morgan. The court nonetheless rejected the stipulated sen-
tence, explaining that, in its opinion, “unless it’s a slam-dunk
case of reasonableness, it seems to me that a plea agreement
in which the parties have stipulated to a particular number of
months is unwise as a matter of policy, because it leaves no
judging to the judge.” Reasoning that acceptance of stipulated
sentences as a general matter renders a district court’s entry
of judgment a mere formality, the court concluded: “I don’t
think that’s what Article III federal court should be reduced
to. So for that reason, we’re going to reject the Rule
11(c)(1)(C) stipulated term in this agreement as being unrea-
13612 IN RE MORGAN
sonable as a matter of law, not necessarily unreasonable as a
matter of fact.”
The district court then explained to Morgan his options,
stating that the rejection of the stipulated term entitled Mor-
gan to withdraw from the plea agreement and go to trial or to
maintain his plea and go forward with sentencing, “with the
possibility that the sentence might be more onerous to you
than the cap in your plea agreement.”
In a short minute order filed the same day, the district court
“reject[ed] the Rule 11(c)(1)(C) stipulated term in the plea
agreement as being unreasonable as a matter of law” and
granted Morgan’s motion for a thirty-day continuance until
January 18, 2007. After the district court denied Morgan’s
subsequent request to continue the sentencing hearing another
sixty days, Morgan filed in this court an emergency request
to stay the sentencing hearing (which was granted) and the
instant mandamus petition.
II. DISCUSSION
We have noted in various contexts the broad discretion that
district courts enjoy when choosing to accept or reject plea
agreements. See Vasquez-Ramirez v. United States Dist.
Court, 443 F.3d 692, 699 (9th Cir. 2006); United States v.
Miller, 722 F.2d 562, 563-64 (9th Cir. 1983). Following the
lead of numerous other circuits, we take this opportunity to
emphasize that this court reviews for an abuse of discretion a
district court’s decision to reject a plea agreement. See, e.g.,
United States v. Smith, 417 F.3d 483, 486-87 (5th Cir. 2005).
A. Rule 11
[1] Federal Rule of Criminal Procedure 11 is the starting
point when addressing whether, and under what circum-
stances, a district court may reject a plea agreement entered
into between the government and a defendant. Where, as here,
IN RE MORGAN 13613
a defendant pleads guilty to a charged offense, Rule
11(c)(1)(C) allows the parties to agree that “a specific sen-
tence or sentencing range is the appropriate disposition of the
case.” When the parties reach this type of sentencing agree-
ment, “the court may accept the agreement, reject it, or defer”
its decision pending review of a presentence report. Fed. R.
Crim. P. 11(c)(3)(A). But while the court is free to accept or
reject a plea agreement, it may not do so on a piecemeal basis,
and a Rule 11(c)(1)(C) stipulated sentence “binds the court
once the court accepts the plea agreement.” Fed. R. Crim. P.
11(c)(1)(C). If the court accepts a plea agreement containing
a Rule 11(c)(1)(C) stipulation, it must notify the defendant
that “the agreed disposition will be included in the judgment.”
Fed. R. Crim. P. 11(c)(4). Conversely, if the court rejects such
a plea agreement, it must (1) inform the parties, (2) advise the
defendant that the court is not bound by the plea agreement
and give the defendant an opportunity to withdraw the guilty
plea, and (3) advise the defendant that if the plea is not with-
drawn, “the court may dispose of the case less favorably
toward the defendant than the plea agreement contemplated.”
Fed. R. Crim. P. 11(c)(5).
B. Categorical rejection of Rule 11(c)(1)(C) stipula-
tions is improper
In both its oral decision and minute order, the district court
rejected only “the Rule 11(c)(1)(C) stipulated term in the
agreement,” rather than rejecting the plea agreement en toto.
However, as relevant to this petition, Rule 11 does not distin-
guish between “sentence bargains,” such as the one at issue
in this case, and so-called “charge bargains,” in which a crim-
inal defendant typically pleads guilty to a specific charge in
exchange for the prosecution agreeing to drop other charges.
Instead, Rule 11 refers to the singular “plea agreement,” lan-
guage this court has consistently read to mean that rejection
of a stipulated sentence constitutes rejection of the entire plea
agreement, thereby triggering the mechanisms in current Rule
11(c)(5). See, e.g., United States v. Reyes, 313 F.3d 1152,
13614 IN RE MORGAN
1157 (9th Cir. 2002) (holding, where district court stated that
it accepted a plea agreement “ ‘as in every detail and part’ ”
but imposed a longer sentence than contemplated by the plea
agreement, that “the district court did not ‘accept’ the plea
agreement,” but rather “rejected the plea and substituted its
own view of the appropriate sentence under the guidelines”);
United States v. Mukai, 26 F.3d 953, 955 (9th Cir. 1994)
(“The rules contain no provision for the district court to mod-
ify a [former] Rule 11(e)(1)(C) plea agreement . . . .”); United
States v. Fernandez, 960 F.2d 771, 773 (9th Cir. 1991) (per
curiam) (holding that the district court “could not both accept
the plea agreement made pursuant to [former] Rule
11(e)(1)(C), which calls for a specific sentence, and reject the
sentencing provision of that agreement”).1
[2] Rule 11 clearly vests district courts with the discretion
to accept or reject plea agreements, including those that con-
tain a stipulated sentence term. Fed. R. Crim. P. 11(c)(3)(A).
The rule also specifies procedures the district court must fol-
low once it accepts or rejects a plea agreement. Fed. R. Crim.
P. 11(c)(4), (c)(5). However, nowhere does Rule 11 define the
criteria by which a district court should exercise the discretion
the rule confers, or explain how a district court should deter-
mine whether to accept a plea agreement.2 Although the rule
1
The stipulated sentences in Reyes, Mukai, and Fernandez were gov-
erned by former Rule 11(e)(1)(C), which contained the provisions found
in current Rule 11(c)(1)(C), the operative rule in this case. Compare
Mukai, 26 F.3d at 955, with Ellis v. United States Dist. Court, 356 F.3d
1198, 1207 n.12 (9th Cir. 2004) (en banc); see also Ellis, 356 F.3d at 1200
& n.3. The current version of Rule 11 became effective on December 1,
2002, as part of a general restyling of the Federal Rules of Criminal Proce-
dure “to make them more easily understood and to make style and termi-
nology consistent throughout the rules.” Fed. R. Crim. P. 11 advisory
committee notes.
2
This conspicuous omission also appears to be intentional, as the
drafters stated that the decision to accept or reject a plea agreement should
be “left to the discretion of the individual trial judge,” rather than gov-
erned by any bright-line test. Fed. R. Crim. P. 11, advisory committee
notes.
IN RE MORGAN 13615
on its face offers no guidance on this point, our case law
clearly establishes that the broad discretion granted by Rule
11 is not unbounded. And, while we have not previously con-
sidered the precise issue presented by this petition — whether
a district court may reject a plea agreement on the ground that
it is “unreasonable as a matter of law” — our cases provide
the necessary guidance to resolve this question.
In United States v. Miller, 722 F.2d 562 (9th Cir. 1983), the
defendant initially pleaded not guilty to three counts of armed
bank robbery before pleading guilty to one count in exchange
for dismissal of the remaining two. 722 F.2d at 563. The plea
agreement did not stipulate a specific sentence or require the
government to recommend a particular sentence. Id.
Announcing “a general policy not to accept single count pleas
to multiple count indictments,” the district court rejected the
plea agreement with no further discussion. Id. Grounding our
holding on three bases, and distinguishing between “charge
bargains” in which the prosecution agrees to drop certain
counts and “sentence bargains” in which the prosecution
either recommends or stipulates to a specific sentence, id., we
held that “such categorical rules to govern charge bargaining
are impermissible,” id. at 565. First, and critically, we
explained that such rules are antithetical to the general propo-
sition that “the existence of discretion requires its exercise.”
Id. Because Rule 11 allows district courts to assess the wis-
dom of plea bargains, this power must be exercised reason-
ably, and “[w]hen a court establishes a broad policy based on
events unrelated to the individual case before it, no discretion
has been exercised.” Id. Second, we noted that separation of
power principles require the judiciary and executive to remain
independent. Id. Because deciding which charges to bring is
a matter of prosecutorial discretion and because categorical
limitations on charge bargains “may force prosecutors to
bring charges they ordinarily would not, or to maintain
charges they would ordinarily dismiss,” such limitations
impermissibly intrude upon the executive’s exclusive domain.
Id. Third, the Federal Rules require courts to respect prosecu-
13616 IN RE MORGAN
torial charging decisions by granting leave to dismiss charges
unless the dismissal is “clearly contrary to manifest public
interest.” Id. at 565-66 (internal quotation marks and citations
omitted). Guided by these three considerations, and by a need
to ensure that “judicial discretion is exercised with due regard
for prosecutorial independence,” we held that district courts
“must review individually every charge bargain placed before
them.” Id. at 566.
By its terms the Miller prohibition of categorical rules does
not necessarily apply to a district court’s consideration of sen-
tence bargains. Id. at 564 (“The proper judicial role in the sen-
tence bargaining process is not raised by this case.”). This
should not surprise. Because there was no sentence bargain
implicated in Miller, there was no reason for this court to con-
sider whether the standard applicable to a district court’s con-
sideration of a charge bargain should apply in the sentence
bargaining context, particularly in light of the different inter-
ests implicated by the two types of plea agreements. As we
explained in Miller, a prosecutor plays a strictly advisory role
in sentencing decisions but retains “almost absolute” discre-
tion in charging decisions. Id. “Thus, sentence bargains raise
the possibility of improper prosecutorial influence over sen-
tencing while charge bargains raise the possibility of improper
judicial influence over charging.” Id.
While Miller left open the question of whether a district
court may adopt categorical rules to reject sentence bargains,
an en banc panel of this court recently held that a district court
acts within its discretion when it rejects a sentence bargain
after an individualized analysis of the specific circumstances
presented. In Ellis v. United States District Court, 356 F.3d
1198 (9th Cir. 2004) (en banc), the district court accepted the
defendant’s guilty plea to second degree murder and deferred
acceptance of the plea agreement. 356 F.3d at 1204. The
agreement stipulated a 132-month term of imprisonment, but
after reading the sentencing memoranda and hearing argu-
ment, the district court rejected the agreement, concluding
IN RE MORGAN 13617
that in light of the defendant’s prior record and the circum-
stances of the charged offense the contemplated sentence
would not serve justice. Id. at 1201-02. The en banc court
considered at length whether the district court had thereafter
improperly refused to let the defendant either withdraw or
stand by his guilty plea. But the court also emphasized both
the broad discretion Rule 11 confers on district courts, as well
as the requirement that a district court’s discretion not be
exercised in a vacuum, detached from the particular facts and
circumstances of the case before it. Because the district court
rejected the plea agreement due to its concerns that the stipu-
lated sentence would not serve justice on the facts of the case
before it, we concluded that “[t]he district court here was free
to, and in fact did, reject the proposed plea agreement because
it did not believe the guidelines sentence supported by the
negotiated charge was adequate to serve the public interest.”
Id. at 1209. Further underscoring the necessity that a district
court make an individualized assessment of a stipulated sen-
tence’s propriety in light of the specific facts and circum-
stances presented, we explained:
The district court viewed the sentence resulting from
[the defendant’s] plea bargain as not in the best
interest of society, given [his] 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 other-
wise not in the public interest.
Id. (citation omitted) (emphasis added).3
3
This analysis is in harmony with the approach taken by other circuits,
which have uniformly upheld rejection of both charge and sentence bar-
gain plea agreements when a district court undertakes an individualized
analysis of the specific facts presented by the case before it. See, e.g.,
United States v. Smith, 417 F.3d 483, 486-87 (5th Cir. 2005); United
States v. Gamboa, 166 F.3d 1327, 1330-31(11th Cir. 1999); United States
v. Greener, 979 F.2d 517, 519-20 (7th Cir. 1992); United States v. Carri-
gan, 778 F.2d 1454, 1462 (10th Cir. 1985).
13618 IN RE MORGAN
[3] This petition therefore presents a question not directly
answered by either Miller or Ellis: Whether, when consider-
ing a sentence-bargain plea agreement, a district court must
provide individualized reasons for rejecting the agreement,
based on the specific facts and circumstances presented. The
answer to that question is yes.
[4] We are mindful of the distinctions Miller drew between
charge and sentence bargaining and the differing separation of
powers concerns attached to each type of plea agreement.
However, we are not persuaded that those differences require,
or authorize, the categorical rejection of a sentence bargain
independent of any consideration of the specific circum-
stances giving rise to the bargain. Although the Supreme
Court does not appear to have directly addressed the issue of
rejecting plea agreements, the Court has held that a district
court may reject a guilty plea itself “in exercise of sound judi-
cial discretion.” Santobello v. New York, 404 U.S. 257, 262
(1971). But see Vasquez-Ramirez v. United States Dist. Court,
443 F.3d 692, 700 n.9 (9th Cir. 2006) (explaining that Santo-
bello may be limited by later amendments to Rule 11 not at
issue here). As we stated in Miller, “the existence of discre-
tion requires its exercise,” and “[w]hen a court establishes a
broad policy based on events unrelated to the individual case
before it, no discretion has been exercised.” 722 F.2d at 565.
On the other hand, a district court properly exercises its dis-
cretion when it rejects a plea agreement calling for a sentence
the court believes “is too lenient or otherwise not in the public
interest” in light of the factual circumstances specific to the
case. Ellis, 356 F.3d at 1209.
[5] Rule 11 vests district courts with considerable discre-
tion to assess the wisdom of plea bargains, to which attaches
a concomitant responsibility to exercise that discretion rea-
sonably. We accordingly hold that district courts must con-
sider individually every sentence bargain presented to them
and must set forth, on the record, the court’s reasons in light
of the specific circumstances of the case for rejecting the bar-
IN RE MORGAN 13619
gain. The district court here did not engage in this analysis,
ruling instead that the sentence contemplated by Morgan’s
plea agreement was “unreasonable as a matter of law, not nec-
essarily as a matter of fact.” This type of categorical rejection
of sentence bargain plea agreements is error, and we remand
to the district court to make an individualized assessment of
the propriety of Morgan’s stipulated sentence, in light of the
factual circumstances specific to this case.
C. Mandamus
Authorized by 28 U.S.C. § 1651(a), mandamus is “an
extraordinary remedy that may be obtained only to confine an
inferior court to a lawful exercise of its prescribed jurisdiction
or to compel it to exercise its authority when it is its duty to
do so.” Cordoza v. Pac. States Steel Corp., 320 F.3d 989, 998
(9th Cir. 2003) (internal quotation marks and citations omit-
ted). Before mandamus relief may be granted, this court
“must be firmly convinced that the district court has erred,
and that the petitioner’s right to the writ is clear and indispu-
table.” Valenzuela-Gonzalez v. United States Dist. Court, 915
F.2d 1276, 1279 (9th Cir. 1990) (internal quotation marks and
citations omitted).
Although we decide de novo whether the writ should issue,
id., we review the district court’s underlying orders for clear
error, Cordoza, 320 F.3d at 998. We have adopted five guide-
lines, first articulated in Bauman v. United States Dist. Court,
557 F.2d 650 (9th Cir. 1977), to determine whether the writ
should issue: whether (1) Morgan has no other adequate
means, such as a direct appeal, to attain the desired relief; (2)
he will be damaged or prejudiced in a way not correctable on
appeal; (3) the district court’s order is clearly erroneous as a
matter of law; (4) the district court’s order is an oft-repeated
error, or manifests a persistent disregard of the federal rules;
and (5) the district court’s order raises new and important
problems, or an issue of law of first impression. Cordoza, 320
F.3d at 998 (citations omitted).
13620 IN RE MORGAN
The first two factors weigh against Morgan. He has not
shown a legally cognizable harm that could not be remedied
on appeal. He has no absolute right to have his plea agreement
accepted. North Carolina v. Alford, 400 U.S. 25, 38 (1970).
Nor does he possess a constitutional or statutory right to a
specific sentence, only to a “reasonable” one. United States v.
Booker, 543 U.S. 220, 264 (2005). Additionally, because the
district court has rejected his plea agreement, it must also give
Morgan an opportunity to withdraw his guilty plea. Fed. R.
Crim. P. 11(c)(5)(B). Moreover, because the plea agreement
has been rejected, if Morgan persists in his guilty plea it will
be a “naked plea, unencumbered by waivers of his right to
appeal or collaterally challenge the proceedings.” Vasquez-
Ramirez v. United States Dist. Court, 443 F.3d 692, 697 (9th
Cir. 2006). Therefore, any legally cognizable harm can be
remedied on direct or collateral review of whatever sentence
the district court ultimately imposes.
[6] The third factor helps Morgan little more. Although the
district court erred by categorically rejecting Morgan’s plea
agreement as a matter of law, we do not consider this ruling
“clear error.” Because no prior Ninth Circuit authority prohib-
ited the course taken by the district court, its ruling is not
clearly erroneous. The fourth factor also weighs against Mor-
gan. Although the district court indicated its general aversion
to stipulated sentences, there is nothing in the record before
us that indicates an “oft-repeated” practice of rejecting stipu-
lated sentences “as being unreasonable as a matter of law, not
necessarily unreasonable as a matter of fact.” Indeed, the dis-
trict court accepted the stipulated sentence in Mase’s plea
agreement. Finally, the fifth factor is of no help. While this
case presents a question of first impression in the Ninth Cir-
cuit, this fact alone does not justify the “extraordinary reme-
dy” of mandamus.
[7] Accordingly, we deny Morgan’s petition, vacate the
stay of his sentencing hearing, and remand to the district court
IN RE MORGAN 13621
for further proceedings.
VACATED AND REMANDED.