United States v. Victor Gonzalez Vazquez , 719 F.3d 1086 ( 2013 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                No. 11-30176
    Plaintiff-Appellee,
    D.C. No.
    v.                         2:10-cr-00324-
    RAJ-1
    VICTOR M. GONZALEZ
    VAZQUEZ,
    Defendant-Appellant.              OPINION
    Appeal from the United States District Court
    for the Western District of Washington
    Richard A. Jones, District Judge, Presiding
    Argued and Submitted
    July 13, 2012—Seattle, Washington
    Filed June 18, 2013
    Before: Mary M. Schroeder, Andrew J. Kleinfeld,
    and Milan D. Smith, Jr., Circuit Judges.
    Opinion by Judge Kleinfeld
    2          UNITED STATES V. GONZALEZ VAZQUEZ
    SUMMARY*
    Criminal Law
    The panel affirmed a jury conviction and vacated a
    sentence for possession with intent to distribute
    methamphetamine, in a case in which the defendant argued
    that the district court should have ordered the government to
    comply with a plea agreement for safety-valve or minor-
    participant sentencing and should not have assigned a
    criminal history point to his prior Washington state
    conviction for driving with a suspended license.
    The panel held that the record supports the district court’s
    finding that no agreement was made, and concluded that there
    is no evidence of any promise upon which the defendant
    relied to his detriment.
    The panel held that the district court erred in treating the
    defendant’s suspended sentence for the prior conviction as a
    “sentence of probation of more than one year” under U.S.S.G.
    § 4A1.2(c)(1)(A), where the conditions of the defendant’s
    suspended incarceration did not limit or require any conduct
    beyond that of a law abiding individual.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. GONZALEZ VAZQUEZ           3
    COUNSEL
    Sharon J. Blackford, Sharon Blackford PLLC, Seattle,
    Washington, for Defendant-Appellant.
    Andrew C. Friedman, Assistant United States Attorney,
    Seattle, Washington, for Plaintiff-Appellee.
    OPINION
    KLEINFELD, Senior Circuit Judge:
    We address enforcement of a plea bargain and the effect
    of a prior Washington sentence under the federal sentencing
    guidelines.
    Facts
    Gonzalez Vazquez was found guilty by a jury of
    possession with intent to distribute methamphetamine,1 and
    sentenced to 144 months imprisonment. He argues that the
    court should have ordered the government to comply with a
    plea agreement for safety valve or minor participant
    sentencing, and that his guidelines calculation should not
    have been adjusted upward for a 2008 conviction for driving
    with a suspended license.
    Gonzalez Vazquez was pulled over for a routine driving
    stop in September 2010, but could not produce his
    registration and proof of insurance, and his license was
    1
    
    21 U.S.C. §§ 841
    (a)(1) and (b)(1)(A)(viii).
    4           UNITED STATES V. GONZALEZ VAZQUEZ
    suspended. He was arrested, and his van was impounded.
    After his own remarks and a dog sniff suggested drugs, the
    police got a search warrant and found a bag of
    methamphetamine and a drug ledger. His fingerprints were
    found on both.
    Before trial, Gonzalez Vazquez’s attorney and the
    prosecutor exchanged numerous emails over a period of
    several months about a possible plea agreement. In
    November 2010, the prosecutor offered an agreement,
    “approved by my higher ups.” If executed, the plea
    agreement would have provided Gonzalez Vazquez with a
    shorter sentence than that which he ultimately received,
    although it would have also required him to plead guilty to
    certain charges which, ultimately, he was not convicted of.
    This proposal was never agreed to. On December 28, the
    prosecutor described two other possible plea options, but
    wrote “I caution however that I would still need to clear this
    with my chain of command.” The central focus of the
    negotiations was the possibility of “safety valve” relief to
    avoid a statutory mandatory minimum sentence.2 The
    2
    
    18 U.S.C. § 3553
    (f) (“[I]n the case of an offense under [
    21 U.S.C. § 841
    ], the court shall impose a sentence pursuant to [the sentencing]
    guidelines . . . without regard to any statutory minimum sentence, if the
    court finds at sentencing, after the Government has been afforded the
    opportunity to make a recommendation, that– (1) the defendant does not
    have more than 1 criminal history point, as determined under the
    sentencing guidelines; (2) the defendant did not use violence or credible
    threats of violence or possess a firearm or other dangerous weapon (or
    induce another participant to do so) in connection with the offense; (3) the
    offense did not result in death or serious bodily injury to any person; (4)
    the defendant was not an organizer, leader, manager, or supervisor of
    others in the offense, as determined under the sentencing guidelines and
    was not engaged in a continuing criminal enterprise . . . ; and (5) not later
    than the time of the sentencing hearing, the defendant has truthfully
    UNITED STATES V. GONZALEZ VAZQUEZ                           5
    prosecutor made clear that he did not yet have supervisory
    approval of any deal. Eligibility for the “safety valve” would
    depend on the “proffer interview.” The interview, in March
    2011, went badly. Gonzalez Vazquez was asked how he
    happened to have a backpack in the van he was driving
    containing ammunition and almost a pound of
    methamphetamine. He said a man he met at a party had told
    him he could drive the van, it was not his backpack, and he
    was merely an innocent victim of circumstance. The
    prosecutor and the Immigration and Customs Enforcement
    agent told Gonzalez Vazquez they did not believe the man
    would leave $20,000 worth of methamphetamine in a van in
    a parking lot and let Gonzalez Vazquez drive it even after he
    had told the man his license was suspended. After the proffer
    interview, the prosecutor offered a less favorable deal, but
    Gonzalez Vazquez never agreed to it. The district court made
    a finding of fact that “it’s abundantly clear that the parties
    never reached any final understanding of the terms or
    conditions of the negotiations.”
    At sentencing, the district court increased Gonzalez
    Vazquez’s criminal history score by one point, which had the
    effect of raising him to a higher criminal history category. A
    criminal history score of 0-1 points would have put him in
    Criminal History Category I. A score of 2 points raised him
    up to Criminal History Category II. He has one point that no
    one disputes for a 2008 methamphetamine possession
    provided to the Government all information and evidence the defendant
    has concerning the offense or offenses that were part of the same course
    of conduct or of a common scheme or plan, but the fact that the defendant
    has no relevant or useful other information to provide or that the
    Government is already aware of the information shall not preclude a
    determination by the court that the defendant has complied with this
    requirement.”).
    6               UNITED STATES V. GONZALEZ VAZQUEZ
    conviction. The conviction at issue was for driving while his
    license was suspended. The judgment is not in the record.
    All the district court had was the statement in the presentence
    report that he had been convicted in Everett, Washington
    Municipal Court for driving while license suspended, had
    pleaded guilty, and that his May 2008 sentence was as
    follows:
    90 days custody imposed with 84 days
    suspended for 24 months; $873 fine; no
    similar violations; no driving without license
    and insurance.
    As we explain below, the guidelines generally do not count
    sentences for driving with a suspended license, and various
    other minor offenses, unless the sentence was probation for
    more than a year or imprisonment of at least 30 days.
    Gonzalez Vazquez argues that the 2008 suspended sentence
    should not have been counted.
    Analysis
    I. The plea agreement.
    We begin with the district court’s finding of fact, that no
    agreement was made. “[I]t’s abundantly clear that the parties
    never reached any final understanding of the terms or
    conditions . . . .” We review findings of fact in sentencing for
    clear error.3 The record amply supports the finding.
    “Even if the agreement has not been finalized by the
    court, ‘[a] defendant’s detrimental reliance on a prosecutorial
    3
    United States v. Jennings, 
    711 F.3d 1144
    , 1146 (9th Cir. 2013).
    UNITED STATES V. GONZALEZ VAZQUEZ                       7
    promise in plea bargaining could make a plea agreement
    binding.’”4 The defense theory in this case is that Gonzalez
    Vazquez subjected himself to the proffer interview in reliance
    on the prosecutor’s promise that even if the proffer was not
    believed the government would argue for a sentence within
    a 63–to–78 month range, in exchange for guilty pleas to
    methamphetamine, ammunition, and immigration crimes and
    an agreement that Gonzalez Vazquez would not ask the court
    for safety valve relief. But the prosecutor expressly
    “caution[ed] that I would still need to clear this with my chain
    of command.”
    We can find nothing in the record to suggest that the
    prosecutor’s supervisors ever approved this possible deal.
    Instead, the emails show continuing negotiations about
    varying possible deals over the next few months. There is not
    evidence of any promise (as opposed to a unilateral hope)
    upon which Gonzalez Vazquez relied to his detriment.
    II. The sentence.
    The more difficult question in this case is the additional
    point added to Gonzalez Vazquez’s criminal history
    computation because of his driving with a suspended license
    conviction. The sentencing matrix under the guidelines uses
    the horizontal axis for criminal history, the vertical axis for
    the seriousness of the offense.5 Two points generate a one-
    4
    United States v. Savage, 
    978 F.2d 1136
    , 1138 (9th Cir. 1992) (quoting
    McKenzie v. Risley, 
    801 F.2d 1519
    , 1527 (9th Cir.1986)).
    5
    See U.S.S.G. Chap. 5, Part A, Sentencing Table.
    8               UNITED STATES V. GONZALEZ VAZQUEZ
    level increase in criminal history.6 That has a substantial
    impact on the sentencing range, raising it in this case from
    188–235 months to 210–262 months. The general philosophy
    of the guidelines regarding criminal history is that a
    defendant with a record of prior criminal conduct is more
    culpable, more likely to commit further crimes, less likely to
    be rehabilitated, and that general deterrence requires harsher
    sentences for recidivists.7 But quite a few misdemeanors and
    petty offenses can, in some circumstances, be excluded from
    this calculation. In particular, sentences for driving with a
    suspended license are counted, where the federal conviction
    is dissimilar as it is here, only if “the sentence was a term of
    probation of more than one year or a term of imprisonment of
    at least thirty days.”8
    Gonzalez Vazquez argues that the district court ought not
    to have added a point for this prior offense, because he was
    sentenced neither to a term of probation nor to imprisonment
    for at least thirty days. The district court accepted the view
    of the probation officer and the prosecution that his sentence
    amounted to probation, generating the point. We review
    interpretation of the guidelines and inclusion of a prior
    conviction for criminal history purposes de novo.9
    To the extent we know what Gonzalez Vazquez’s
    sentence was (the record includes only the quotation or
    6
    
    Id.
    7
    U.S.S.G. Chap. 4, Part A, Introductory Commentary.
    8
    U.S.S.G. § 4A1.2(c)(1)(A) (2010).
    9
    United States v. Lichtenberg, 
    631 F.3d 1021
    , 1024 (9th Cir. 2011);
    United States v. Laurienti, 
    611 F.3d 530
    , 551 (9th Cir. 2010).
    UNITED STATES V. GONZALEZ VAZQUEZ                9
    paraphrase in the presentence report, not the Washington
    municipal court judgment), it did not include the word
    “probation.” The judge did not say he was imposing any sort
    of probation. The government does not argue to the contrary.
    Instead, it argues that Gonzalez Vazquez’s suspended
    sentence ought to be treated as a sentence of probation.
    Probation often includes conditions such as regular
    reporting to the probation officer, not leaving the jurisdiction
    without permission from the probation officer, refraining
    from alcohol, and other restraints designed to regulate the
    individual’s conduct more narrowly than the conduct of
    persons not convicted of the crime. For example, the
    standard conditions of probation in federal cases include “the
    defendant shall not leave the judicial district or other
    specified geographic area without the permission of the court
    or probation officer,”10 “the defendant shall work regularly at
    a lawful occupation unless excused by the probation officer
    for schooling, training, or other acceptable reasons,”11 and
    “the defendant shall not associate with any persons engaged
    in criminal activity, and shall not associate with any person
    convicted of a felony unless granted permission to do so by
    the probation officer,”12 in addition to whatever special
    conditions the district judge imposes. Law abiding people
    generally may travel where they want, need not report to any
    government official when they do, may drink appropriately,
    and in general may do or not do what they like within the law.
    Probationers often lose these liberties. Washington, like
    10
    U.S.S.G. § 5B1.3(c)(1).
    11
    U.S.S.G. § 5B1.3(c)(5).
    12
    U.S.S.G. § 5B1.3(c)(9).
    10          UNITED STATES V. GONZALEZ VAZQUEZ
    other states and the federal government, hires professional
    probation officers to perform continuing supervision of
    offenders who are not incarcerated.13
    Gonzalez Vazquez was not subject to those sorts of
    conditions. The conditions of his suspended 84 days of
    incarceration were merely that he commit “no similar
    violations; no driving without license and insurance.” Those
    conditions did not restrain his conduct any more than anyone
    else’s. No one, not even the policeman who stopped him or
    the judge who sentenced him, or us, may drive in Washington
    on a suspended license, or without a driver’s license, or
    without insurance.14 The significance of the conditions
    placed on Gonzalez Vazquez was that he was subject to a
    recidivism penalty of another 84 days of incarceration if he
    committed these illegal acts within two years, in addition to
    whatever sentence he might receive for the subsequent
    13
    See, e.g., 
    Wash. Rev. Code § 72
    .04A.050 (“The powers and duties of
    the state board of prison terms and paroles, relating to . . . the supervision
    of persons placed on probation by the courts . . . are transferred to the
    secretary of corrections.”); 
    id.
     at § 72.09.050 (“The secretary may employ
    persons to aid in performing the functions and duties of the department [of
    corrections].”); id. at § 36.01.070 (authorizing counties to “engage in
    probation and parole services and employ personnel therefor under such
    terms and conditions as any such county shall so determine”).
    14
    
    Wash. Rev. Code § 46.20.342
    (1) (“It is unlawful for any person to
    drive a motor vehicle in this state while that person is in a suspended or
    revoked status or when his or her privilege to drive is suspended or
    revoked in this or any other state.”); 
    id.
     at § 46.20.005 (“[I]t is a
    misdemeanor for a person to drive any motor vehicle upon a highway in
    this state without a valid driver’s license issued to Washington residents
    under this chapter.”); id. at § 46.30.020(1)(a) (“No person may operate a
    motor vehicle . . . in this state unless the person is insured under a motor
    vehicle liability policy . . . .”).
    UNITED STATES V. GONZALEZ VAZQUEZ                 11
    offense. His conditions did not in the slightest limit or
    require any conduct beyond that of a law abiding individual.
    All they affected was the subsequent penalty for subsequent
    misconduct that would have been misconduct for anyone.
    The sentence Gonzalez Vazquez received, to the extent
    we know from the record what it was, did not include
    probation. Nor did his sentence deprive him of any liberties
    at all that probationers often lose. He remained as free to do
    as he chose, within the confines of the law, as a man who had
    never been convicted of anything.
    The government’s argument for counting a point against
    Gonzalez Vazquez requires two steps, first that we interpret
    his Washington sentence as implying that he was on
    probation, and second, that unsupervised probation with no
    restraints beyond what the law imposes on everyone be
    counted as “probation of more than one year” for purposes of
    the sentencing guideline exception for counting misdemeanor
    sentences as criminal history points.
    Neither party has cited, and we have not found, a
    Washington Supreme Court or Washington Court of Appeals
    decision holding one way or the other on whether a
    suspended sentence of the sort Gonzalez Vazquez received
    amounts to probation. The sentence says “suspended” and
    does not say “probation.” We have carefully examined the
    Washington statutes, without finding a clear answer.
    Washington has what it calls the “Probation Act,” enabling its
    courts to grant or deny probation and impose conditions in
    their discretion.15 And in a separate provision, Washington
    has what it calls the “Suspended Sentence Act,” enabling
    15
    See Probation Act, Wash. Rev. Code. § 9.95.200 et seq.
    12           UNITED STATES V. GONZALEZ VAZQUEZ
    courts to suspend sentences and in their discretion assign
    probation officers to supervise convicted defendants.16
    Washington has held that the Suspended Sentence Act and
    the Probation Act are distinct, that the Probation Act did not
    repeal by implication the Suspended Sentence Act, and that
    where a court suspended a sentence even with conditions but
    did not mention probation, the suspended sentence
    established “absolutely nothing indicating that the court was
    using the Probation Act in suspending the appellant’s
    sentence.”17 Subsequent cases leave room for argument on
    whether a suspended sentence may imply probation, but
    whatever argument there may be has not, so far as we can
    find, been resolved by any Washington Supreme Court or
    Washington Court of Appeals decision.
    Thus we do not know with certainty whether Gonzalez
    Vazquez was, by implication from his suspended sentence,
    sentenced to probation for his prior “driving while license
    suspended” conviction. We could avoid the issue, perhaps,
    if federal law established clearly that unsupervised probation
    with no restraints beyond what the law imposes on everyone
    amounts to a “term of probation” under the sentencing
    guidelines, but it does not. We have no circuit law directly on
    point. The other circuits are divided,18 but the circuit
    16
    See Suspended Sentence Act, Wash. Rev. Code. § 9.92.060 et seq.
    17
    State v. Davis, 
    355 P.2d 344
    , 348 (Wash. 1960).
    18
    Compare Harris v. United States, 
    204 F.3d 681
     (6th Cir. 2000)
    (holding that an Ohio sentence suspended “provided no convictions” is
    “probation” under the guidelines), and United States v. Binford, 
    108 F.3d 723
     (7th Cir. 1997) (holding that an Illinois sentence of court supervision
    is “probation” under the guidelines), and United States v. Lloyd, 
    43 F.3d 1183
     (8th Cir. 1994) (holding that an Illinois sentence of conditional
    UNITED STATES V. GONZALEZ VAZQUEZ                       13
    addressing a state statute most similar to Washington’s holds
    that a stay of imposition of sentence without any supervision
    or conditions beyond compliance with the law does not
    amount to “probation” under the guidelines.19
    We held in United States v. Gonzales20 that an entirely
    suspended sentence is not a “term of imprisonment” under the
    guidelines, because that term applies only to sentences “for
    which the defendant actually served a period of
    imprisonment.”21 We did not have occasion to address in
    Gonzales whether a Washington sentence for this offense
    suspended for more than one year ought to be treated as a
    sentence of probation for more than one year. We held in
    United States v. McCrudden22 that unsupervised probation
    counts as probation,23 but we have not held that a Washington
    suspended sentence should or should not be treated as a
    sentence of probation.
    It is not clear from the Washington statute whether a court
    that suspends all or part of a sentence merely may, or must,
    discharge is “probation” under the guidelines), and United States v.
    Caputo, 
    978 F.2d 972
     (7th Cir. 1992) (same), with United States v.
    Johnson, 
    43 F.3d 1211
     (8th Cir. 1995) (holding that a Minnesota stay of
    imposition of sentence without a term of probation is not “probation”
    under the guidelines).
    
    19 Johnson, 43
     F.3d 1211.
    20
    United States v. Gonzales, 
    506 F.3d 940
     (9th Cir. 2007) (en banc).
    21
    
    Id. at 942
    .
    22
    United States v. McCrudden, 
    894 F.2d 338
     (9th Cir. 1990).
    23
    
    Id. at 339
    .
    14          UNITED STATES V. GONZALEZ VAZQUEZ
    direct any supervision of misdemeanants. The statute
    authorizes municipal courts to “impose sentence by
    suspending all or a portion of the defendant’s sentence or by
    deferring the sentence of the defendant and may place the
    defendant on probation . . . .”24 The statute may someday be
    read by the Washington courts to imply that probation must
    be imposed if all or any portion of a sentence is suspended, or
    to imply the opposite. Neither construction has yet been
    made.
    Because Gonzalez Vazquez’s Washington “driving while
    license suspended” sentence did not expressly impose any
    probation, and Washington law does not establish that a
    suspended sentence implies probation, the better inference is
    that Gonzalez Vazquez was not sentenced to probation. The
    guidelines require that his driving with suspended license
    conviction not be counted. We therefore conclude that he
    24
    
    Wash. Rev. Code § 3.50.320
    . Other Washington statutes relating to
    municipal court sentencing are similarly ambiguous. Section 3.50.330,
    provides that “[f]or . . . two years after imposition of sentence . . . the
    court shall have continuing jurisdiction and authority to suspend or defer
    the execution of all or any part of the sentence upon stated term, including
    installment payment of fines. A defendant who has been sentenced, or
    whose sentence has been deferred, and who then fails to appear for any
    hearing to address the defendant’s compliance with the terms of probation
    when ordered to do so by the court, shall have the term of probation tolled
    until such time as the defendant makes his or her presence known to the
    court on the record.” Section 35.20.255 provides that “[j]udges of the
    municipal court, in their discretion, shall have the power in all criminal
    proceedings within their jurisdiction including violations of city
    ordinances, to defer imposition of any sentence, suspend all or part of any
    sentence including installment payment of fines, fix the terms of any such
    deferral or suspension, and provide for such probation as in their opinion
    is reasonable and necessary under the circumstances of the case . . . .”
    UNITED STATES V. GONZALEZ VAZQUEZ         15
    should not have received an additional point for that
    conviction and sentence.
    CONVICTION AFFIRMED; SENTENCE VACATED
    and REMANDED.