United States v. Gerardo Farias-Contreras

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-30055
Plaintiff-Appellee, D.C. No. 2:19-cr-
00111-WFN-17
v.
GERARDO FARIAS-CONTRERAS, OPINION
AKA Tomas Gomez,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Argued and Submitted May 18, 2022
Seattle, Washington
Filed February 15, 2023
Before: Kim McLane Wardlaw, Ronald M. Gould, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Wardlaw;
Dissent by Judge Bennett
2 UNITED STATES V. FARIAS-CONTRERAS
SUMMARY *
Criminal Law
The panel vacated a sentence and remanded for
resentencing before a different judge in a case in which the
defendant contended that the government failed to
meaningfully abide by its promise in the plea agreement not
to recommend a sentence in excess of the low-end of the
guidelines range.
The panel held that the government implicitly breached
the plea agreement, a breach that amounted to plain
error. The panel wrote that, at sentencing, the government
never once stated affirmatively that it recommended a 151-
month sentence or a sentence at the low-end of the calculated
guidelines range. Far from presenting a “united front” to the
judge that would have given the defendant the benefit of his
bargain, government counsel informed the judge about
splintered considerations within the U.S. Attorney’s
Office. Moreover, government counsel dwelled on
information—including the defendant’s prior criminal
contacts—already before the district court, making an
argument concerning the defendant’s drug dealing
“lifestyle” that was inflammatory and could serve no other
purpose but to influence the court to give a higher
sentence. The panel rejected the government’s contention
that references to damage and danger to society, the
community and its families, the defendant’s prior criminal
contacts, his high level of culpability, citation to a 30-year-
*
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. FARIAS-CONTRERAS 3
old decision approving life without parole for a minor drug
transaction, introduction of the dissension in the U.S.
Attorney's Office over the low-end sentence, or its emphasis
on the distribution of "massive, massive drug quantities over
multiple, multiple years" were made to support the low-end
guideline sentence for which the government promised to
advocate.
Given that the prosecution’s inflammatory arguments
became the court’s stated reasons for the sentence imposed,
the panel held that there is a reasonable probability that the
sentence was influenced by those arguments, and the
defendant’s substantial rights were thus affected. Given that
the government did not strictly comply with its obligation
not to recommend a sentence in excess of the low-end of the
guideline range, the panel concluded that this implicit breach
amounted to a serious violation of the integrity of the plea
bargain process and the judicial system.
Dissenting, Judge Bennett wrote that the defendant
cannot establish any error, much less plain error. He wrote
that the government exceeded its obligation by affirmatively
recommending a low-end guideline sentence several
times. It also introduced supplemental facts, which the
agreement expressly allowed it to do. But even if the
government somehow implicitly breached the plea
agreement by providing accurate supplemental facts, any
breach was not obvious under this court’s precedent. Judge
Bennett wrote that the record also fails to show a reasonable
probability that any implicit breach affected the
sentencing. Judge Bennett wrote that on a more practical
level, the majority's precedential decision, unless rejected en
banc or by the Supreme Court, will materially and
unnecessarily harm future defendants in plea negotiations.
4 UNITED STATES V. FARIAS-CONTRERAS
COUNSEL
Stephen R. Hormel (argued), Hormel Law Office LLC,
Spokane Valley, Washington, for Defendant-Appellant.
Caitlin A. Baunsgard (argued) and Brian M. Donovan,
Assistant United States Attorneys; James A. Goeke; Vanessa
R. Waldref, United States Attorney; Department of Justice
United States Attorney’s Office, Spokane, Washington; for
Plaintiff-Appellee.
OPINION
WARDLAW, Circuit Judge:
Gerardo Farias-Contreras appeals his 188-month
sentence imposed after he pleaded guilty to a one-count
indictment for violation of 21 U.S.C. §§ 841 and 846
pursuant to a plea agreement. He contends that the U.S.
Attorney implicitly breached the plea agreement by
providing the court, both in its sentencing memorandum and
its argument at sentencing, with inflammatory argument and
information not relevant to the sentencing determination that
could have had but one effect—to increase his sentence
beyond the low-end of the U.S. Sentencing Guidelines
range. Farias-Contreras argues that, by doing so, the
government failed to meaningfully abide by its promise in
the plea agreement not to recommend a sentence in excess
of the low-end of the guidelines range. We agree. The
government’s arguments implicitly breached the plea
agreement, and amounted to plain error that affected Farias-
Contreras’s substantial rights and undermined the integrity
UNITED STATES V. FARIAS-CONTRERAS 5
of the judiciary. We therefore vacate Farias-Contreras’s
sentence and remand for resentencing before a different
judge.
I.
In a superseding indictment dated November 5, 2019, the
United States charged Gerardo Farias-Contreras with
conspiracy to distribute 500 grams or more of
methamphetamine or heroin in violation of 21 U.S.C. §§ 841and 846 (Count One), and with possession with the intent to
distribute 500 grams or more of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) (Count Eighteen).
A. The Plea Agreement
On October 28, 2020, the parties entered into a plea
agreement in which Farias-Contreras agreed to plead guilty
to Count One of the superseding indictment, and the
government agreed to dismiss Count Eighteen. In the
“Statement of Facts,” the parties agreed to facts constituting
an “adequate factual basis” for the plea. However, the
“statement of facts [did] not preclude either party from
presenting and arguing, for sentencing purposes, additional
facts which are relevant to the guideline computation or
sentencing, unless otherwise prohibited in this Plea
Agreement.”
In exchange for Farias-Contreras’s waiver of his
constitutional rights attendant to a jury trial, the government
agreed not to file any new charges based on facts then
known, to dismiss Count Eighteen from the indictment, and
to dismiss a second indictment charging illegal reentry in
violation of 8 U.S.C. § 1326. The parties made other
agreements related to sentencing, including as to specific
offense characteristics, role adjustment, acceptance of
6 UNITED STATES V. FARIAS-CONTRERAS
responsibility, and criminal history. Most importantly to
Farias-Contreras, as to the length of incarceration, the
“United States agree[d] not to recommend a sentence in
excess of the low-end of the guideline range, as calculated
by the United States.” The government also agreed that
Farias-Contreras was permitted to “recommend any legal
sentence.”
Farias-Contreras pleaded guilty pursuant to this plea
agreement the same day. The district court accepted the
guilty plea and ordered a presentence report (PSR) prepared.
Ultimately, after reduction of the offense level, the
government calculated the adjusted advisory guideline range
for Farias-Contreras’s term of incarceration as 151–188
months.
B. The Government’s Sentencing Memorandum
In its sentencing memorandum, the government
recommended a 151-month term of incarceration and
indicated that such a sentence would satisfy 18 U.S.C.
§ 3553(a). It did so in two sentences of its six-page
memorandum. The remainder of the memorandum focused
on the social, communal and familial impact of drug
trafficking generally, Farias-Contreras’s prior contacts with
law enforcement, and information already contained in the
PSR. The government’s memorandum argued:
Drug trafficking is nothing less than pumping
pure poison into our community. The effects
of drug trafficking are massive, and in some
respects, incalculable, especially when all the
collateral consequences are considered. The
damage the drugs this Defendant were [sic]
peddling cause irreparable harm to the
UNITED STATES V. FARIAS-CONTRERAS 7
community in general as well as to families
whose members are addicted to controlled
substances.
The government included nationwide statistics on drug-
related deaths, writing “[a]ccording to the Center for Disease
Control, in 2018 in the United States, 67,367 individuals
died from a drug overdose. In 2019, drug overdose deaths
climbed to a record high – with a reported 70,980 deaths.”
And it emphasized that drug-related deaths were a problem
“in this community.”
The government then elaborated on the harm suffered by
families of drug addicts, noting, “[a]s aptly recorded by Sam
Quinones in the book ‘Dreamland’ about the families of
living drug addicts:
I met with other parents whose children were
still alive, but who had shape-shifted into
lying, thieving slaves to an unseen molecule.
These parents feared each night the call that
their child was dead in a McDonald’s
bathroom. They went broke paying for
rehab, and collect calls from jail. They
moved to where no one knew their shame.
They prayed that the child they’d known
would reemerge.
The government then discussed punishment, citing a
decades-old out-of-circuit decision that invoked the then-
developing Supreme Court Eighth Amendment
disproportionality jurisprudence. Terrebonne v. Butler, 820
F.2d 156, 157 (5th Cir. 1987), cert. denied, 489 U.S. 1020(1989). In Terrebonne, the Fifth Circuit upheld a life
8 UNITED STATES V. FARIAS-CONTRERAS
sentence without parole imposed on a small-time drug
dealer, concluding that the sentence was not disproportionate
to his crime and thus was not cruel and unusual punishment.
Terrebonne, 820 F.2d at 158. The government quoted
extensively from the Fifth Circuit’s rationale, including
these excerpts:
“Measured thus by the harm it inflicts upon
the addict, and through him, upon society as
a whole, drug dealing in its present epidemic
proportions is a grave offense of high rank.”
[ . . . ] The Circuit Court continued:
Except in rare cases, the murderer’s
red hand falls on one victim only,
however grim the blow; but the foul
hand of the drug dealer blights life
after life and, like the vampire of
fable, creates others in its owner’s
evil image – others who create others
still, across our land and down our
generations, sparing not even the
unborn.
Terrebonne, 820 F.2d at 157-58.
The government concluded by arguing that “[w]hile this
opinion was authored over 30 years ago, it continues to ring
true today.”
The government next contended that Farias-Contreras
was at “the top of criminal culpability in this case,” pointing
to information already before the district court in the PSR,
and characterizing Farias-Contreras’s offense conduct as a
“dedicated lifestyle.”
UNITED STATES V. FARIAS-CONTRERAS 9
The government then described a prior interaction
Farias-Contreras had with federal agents in 2016, also
included in the PSR, where the agents failed to locate
evidence of controlled substances that two confidential
informants had said would be at Farias-Contreras’s
residence. The government argued that this interaction “did
not dissuade or deter the Defendant,” writing, “[a]s the
evidence in this case shows, the Defendant continued on his
illicit endeavor, returning to supplying others with poison.”
The government continued, “The Defendant’s
involvement in drug trafficking appears to stem back the
[sic] 1990, as evidenced by his criminal history.” A
cooperating defendant “places the Defendant’s role as a
source of supply of multiple pounds of controlled substances
dating back to 2008.”
The government concluded its argument as to the gravity
of Farias-Contreras’s role in the offense with the following
assertion: “When you contemplate that amount of drugs,
over that extended period of time, the effects of his own
personal conduct, on society, on communities, on families,
are astronomical.”
The government next argued that Farias-Contreras’s
“significant physical limitations” 1 were “evidenc[e of] his
dedication to this lifestyle,” because he “has not let his
physical impairment stop him from engaging in this
conduct.” The government explained: “He personally
1
Farias-Contreras was shot multiple times in 2004, resulting in eighteen
surgeries to repair damage from the bullets. As a result of the shooting,
Farias-Contreras was suffering from a number of ailments including: “a
broken spine which causes him to walk with braces and a walker; he has
problems with his intestines; he manually extracts his feces; and he
utilizes a catheter to urinate.”
10 UNITED STATES V. FARIAS-CONTRERAS
directed and organized others to engage in this illicit conduct
as well as himself, personally, travel to/from California to
collect drug proceeds as well as recruit new customers and
couriers.”
The government’s argument culminated with its
assertion that “[n]othing this Defendant has encountered in
his life thus far has changed his course. He continues to
choose to engage in significant drug trafficking. A
significant sentence is warrant [sic] to protect the community
from his continued illicit activities. The Defendant and
others must be deterred.”
C. The Sentencing Hearing
At the sentencing hearing, the government reiterated
many of these arguments. Defense counsel first offered
Farias-Contreras’s physical impairments as a reason that the
court should impose a sentence below the low-end of the
guidelines, arguing:
This is—this is a man, Judge, who was shot
in the chest and in the stomach. And he still
has the colostomy. He still has to have a
urethra. He still has to use manual methods
in order to relieve himself. He can’t walk.
Yesterday, we had a problem with the braces
being in shoes.
Defense counsel argued that given Farias-Contreras’s
physical condition, his time of incarceration should be
decreased because:
Our government has said that for every year
of life, there’s two years that are taken off his
life in longevity while he’s in prison, and
UNITED STATES V. FARIAS-CONTRERAS 11
that’s going to be happening. Prison for him
is two times. It’s twice as hard as it is for
anybody else, and he’s going to be punished.
He’s going to be punished for that.
[…]
When he was 35 years old, he was shot. I
think it was three times in the chest and the
back, severed L – L-2 and L-3. He’s
paralyzed. He’s had 18 surgeries.
Yesterday, he – he can’t walk without the
braces that are in his shoes. When he was
transferred yesterday – just to give you an
example as far as mobility, when he was
brought back from Ellensburg, the jail
wouldn’t let him have his shoes but they let
him have his braces, but he can’t – the shoes
form the basis for the braces so he couldn’t
walk, just not his shoes. So his physical
condition is – is serious and is debilitating
and makes him susceptible to conditions
while in prison . . .
Based on his physical condition and the difficulties Farias-
Contreras would face in prison, defense counsel asked for a
108–121 month term of incarceration.
When asked to respond, government counsel stated,
“we’re standing by the recommendation that we have in our
sentencing memo, and as I hope came through in [our]
sentencing memo, the number of which that we’re
recommending was something that was of much
12 UNITED STATES V. FARIAS-CONTRERAS
discussion.” 2 The district court cut in, asking “Much
discussion where?” Government counsel responded:
In our office—of what do we do with this
particular defendant? He is at the top of the
food chain in terms of criminal culpability, in
terms of personally directing and organizing
the distribution of a massive, massive amount
of drugs . . . [W]e have this individual,
multiple years, multiple pounds, a massive
amount of drugs that he is responsible for.
Government counsel again returned to the dissension
within the U.S. Attorney’s Office as to the appropriate term
of incarceration: “But we kept coming back in our
discussions – everyone was very sympathetic to the physical
condition and what that means for him, but we were
unanimous in coming back to this physical condition has not
deterred his conduct whatsoever.” Government counsel told
the district court that Farias-Contreras “continued to be a
leader/organizer, and there’s nothing that will prevent him in
the future to returning to that – that role.” She again
reiterated information already before the court from the PSR:
I think he’s not a person who was a user of
controlled substance and then, you know, as
2
Contrary to the dissent’s suggestion, Diss. Op. 36 n.3, it was plainly the
U.S. Attorney who introduced the irrelevant fact that there had been
“much discussion” about the recommended sentence, which naturally
prompted the court’s question, “Much discussion where?” The U.S.
Attorney could have answered the court’s question with the words “in
our office,” but instead chose to elaborate on the substance of the
discussion within the U.S. Attorney’s Office.
UNITED STATES V. FARIAS-CONTRERAS 13
we frequently see, using snowballs into, you
know, little distributor, then bigger
distributor. That’s not how he presents. I
think it’s safe to conclude that it’s more of a
lifestyle. It’s something that is his primary
occupation, his profession. He’s been a
source of supply for years, and he’s actively
recruiting others, both as customers and
couriers, as outlined in the PSIR.
Government counsel summed up the Office’s
discussions: “[E]veryone was unanimous in that a long
period of incarceration is going to be necessary to protect the
public from the defendant, to protect society.” She again
referenced the recommendation made in the government’s
sentencing memorandum, but never expressly stated that the
government recommended the low-end of the guidelines or
a 151-month sentence.
After Farias-Contreras’s allocution, the district court
began explaining the basis for the sentence about to be
pronounced, mentioning Farias-Contreras’s physical
impairments and another mitigating factor. However, the
court then stated, “I am concerned about protection of the
public . . . it’s fair to say that your entire adult life,
apparently, has been dedicated to dealing drugs, and that’s a
serious concern for the protection of the public. . . . [T]here’s
been no respect for the law on your part.”
The court observed that government counsel “in her brief
and in her oral presentation, indicated that you were top in
the chain, which indicates that you were way up in the
distribution.” The district court then pointed to certain
paragraphs of the PSR that supported the government's
14 UNITED STATES V. FARIAS-CONTRERAS
characterization of Farias-Contreras. The district court
summed up by echoing the government’s arguments:
So we have a big drug organization operating
in the central part of our state. I think there
are 18 or 19 defendants listed in this case
being a member of that conspiracy. The
activities are clear, and you were one of the
top – top dogs in that conspiracy, and the
damage that can be done and was done to the
citizens of our community by making
available those drugs in our area can’t be
quantified. It’s impossible to tell.
Lives are lost. Lives are ruined. Families
broken up, jobs lost, health deteriorated.
Children become – it becomes available for
children. Addicts are fed. So it’s serious,
very serious.
The court then imposed a sentence of 188 months,
concluding that the high-end of the guidelines was justified
for the reasons stated: “a huge organization over a long
period of time, you were one of the top dogs in it, and so the
188 months, I think, is a fairly low sentence.”
II.
A defendant’s claim that the government breached its
plea agreement is generally reviewed de novo. United States
v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000). In this
case, however, defense counsel did not object to the
government’s statements at sentencing. Because Farias-
Contreras forfeited his claim of prosecutorial breach by
failing to timely object, we must review that claim for plain
UNITED STATES V. FARIAS-CONTRERAS 15
error. See United States v. Whitney, 673 F.3d 965, 970 (9th
Cir. 2012). Under plain error review, we may grant relief
only “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. (citation omitted).
III.
A.
Farias-Contreras contends that the government
implicitly breached its promise “to not recommend a prison
sentence in excess of the low-end of the sentencing guideline
range,” as calculated by the United States. He argues that
although the government stated once in its sentencing
memorandum that it recommended a 151-month sentence
and said twice during sentencing that it was standing by the
recommendation made in its sentencing memorandum, the
arguments made in both the sentencing memorandum and at
the sentencing hearing undercut those representations and
could only be understood to militate toward a much longer
term of incarceration. We agree.
The law governing the plea-bargaining process has long
been well-settled. Deemed both essential to and highly
desirable for the criminal justice system, plea-bargaining
resulting in the court’s acceptance of a guilty plea “must be
attended by safeguards to insure the defendant what is
reasonably due in the circumstances.” Santobello v. New
York, 404 U.S. 257, 262 (1971). And though the
circumstances may vary, the Supreme Court has held that
“when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be
fulfilled.” Id.16 UNITED STATES V. FARIAS-CONTRERAS
It is also well-settled that plea agreements are contracts
between the government and the defendant, and “are
measured by contract law standards.” United States v.
Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 2002) (citation
omitted). We enforce such contracts by their literal terms
but construe any ambiguities in favor of the defendant. See
id.; see also United States v. Johnson, 187 F.3d 1129, 1134
(9th Cir. 1999) (“Plea agreements are contracts, and the
government is held to the literal terms of the agreement.”
(citation omitted)). When we interpret the agreement and
craft remedies for any breach, we must “secure the benefits
promised [to the defendant] by the government in exchange
for surrendering his right to trial,” Franco-Lopez, 312 F.3d
at 989, that is, for surrendering his right to require the
government to prove guilt beyond a reasonable doubt.
Here, the government agreed “not to recommend a
sentence in excess of the low-end of the guideline range, as
calculated by the United States.” This type of promise can
be broken “either explicitly or implicitly.” United States v.
Heredia, 768 F.3d 1220, 1231 (9th Cir. 2014); see also
Whitney, 673 F.3d at 972 (same). “The government is under
no obligation to make an agreed-upon recommendation
‘enthusiastically.’ However, it may not superficially abide
by its promise to recommend a particular sentence while also
making statements that serve no practical purpose but to
advocate for a harsher one.” Heredia, 768 F.3d at 1231(citation omitted). In other words, the government may not
purport to make the bargained-for recommendation while
“winking at the district court” to impliedly request a
different outcome. United States v. Has No Horses, 261 F.3d
744, 750 (8th Cir. 2001) (internal quotation marks omitted).
The government implicitly breaches an agreement to
recommend a sentence at the low-end of the guideline range
UNITED STATES V. FARIAS-CONTRERAS 17
or the functional equivalent—here, not to recommend a
sentence in excess of the low-end of the guideline range—if
it “then makes inflammatory comments about the
defendant’s past offenses that do not ‘provide the district
judge with any new information or correct factual
inaccuracies.’” Heredia, 768 F.3d at 1231 (quoting Whitney,
673 F.3d at 971). “[W]hen the government obligates itself
to make a recommendation at the low end of the guidelines
range, it may not introduce information that serves no
purpose but ‘to influence the court to give a higher
sentence.’” Whitney, 673 F.3d at 971 (quoting Johnson, 187
F.3d at 1135). “This prohibition precludes referring to
information that the court already has before it, including
statements related to the seriousness of the defendant’s prior
record, statements indicating a preference for a harsher
sentence, or the introduction of evidence that is irrelevant to
any matter the government is permitted to argue.” Id.(internal quotation marks and citations omitted). “Such
statements are recognized as introduced ‘solely for the
purpose of influencing the district court to sentence [the
defendant] more harshly.’” Id. (quoting Johnson, 187 F.3d
at 1135) (alteration in original).
This type of agreement—that the government will not
recommend in excess of the low-end of the guideline
range—is of immense importance to the defendant. We have
“previously recognized the importance of the government’s
sentencing recommendation as a bargained-for benefit to the
defendant.” Id. at 973. Indeed, although such a
recommendation is not binding on the court, “[w]hat the
defendant wants and is entitled to [in entering into a plea
agreement] is the added persuasiveness of the government’s
support regardless of outcome.” United States v. Camarillo-
Tello, 236 F.3d 1024, 1028 (9th Cir. 2001). Where, as here,
18 UNITED STATES V. FARIAS-CONTRERAS
the plea agreement allows the defense to argue for a below-
guideline sentence, the government’s commitment to
recommending the low-end guideline sentence operates as a
bulwark against imposition of a sentence above that.
1. Error that was plain
Given the clear, binding, and longstanding precedent
governing a prosecutor’s promise not to recommend a
sentence exceeding the low-end of the guideline range, the
government here implicitly breached the plea agreement, a
breach that amounted to plain error. The government broke
its promise in numerous ways, both in its sentencing
memorandum and at sentencing.
At sentencing, the government never once stated
affirmatively that it recommended a 151-month sentence or
a sentence at the low-end of the calculated guideline range.
The government never offered a reason that supported
imposition of a sentence at the low-end of the guideline
range. To the contrary, government counsel volunteered to
the court that Farias-Contreras’s sentence was the subject of
much discussion in the U.S. Attorney’s Office, which she
had hoped came through in her sentencing memorandum.
This indicated that there was disagreement among the
prosecutors within the U.S. Attorney’s Office as to whether
the low-end guideline sentence was appropriate. Far from
presenting a “united front” to the judge that would have
given Farias-Contreras the benefit of his bargain, see
Camarillo-Tello, 236 F.3d at 1028, government counsel
informed the judge about the splintered considerations
entertained within the U.S. Attorney’s Office. Further
retreating from the contractually agreed-upon sentence,
government counsel told the judge that the one thing the
attorneys were unanimous about was “that a long period of
UNITED STATES V. FARIAS-CONTRERAS 19
incarceration is going to be necessary to protect the public
from the defendant, to protect society.” Not once during the
sentencing hearing did the government suggest that a low-
end guideline sentence would serve that purpose.
Moreover, government counsel dwelled on information
already before the district court. For example, paragraphs
195–204 of the PSR described Farias-Contreras’s 1998 law
enforcement contact involving a failed sale of thirty pounds
of methamphetamine. The government next compared
Farias-Contreras’s conduct with a co-defendant who was
involved only for a “year time frame,” but had been
sentenced to 240 months of imprisonment. The government
argued that Farias-Contreras was involved “since 2008 at a
pound-level quantity, multiple pound-level quantities,” a
statement which can only be understood as advocating for a
sentence equal to or above the co-defendant’s 240-month
sentence. The district court in response pointed to the PSR,
stating “[w]ell . . . he was willing to distribute 30 pounds
way back in 1998.” The government seized the opportunity
to double down, reemphasizing, “That’s very correct, very
correct. So we have this individual, multiple years, multiple
pounds, a massive amount of drugs that he is responsible
for.” Government counsel then pivoted to “previous law
enforcement interventions” in 2016 that she acknowledged
she had already argued in her sentencing memorandum,
when drugs were not found in Farias-Contreras’s residence
and he was not charged with any drug-related crime. She
summarized the PSR, opined that drug dealing was Farias-
Contreras’s dedicated “lifestyle,” and stated “[h]e’s been a
source of supply for years, and he’s actively recruiting
others, both as customers and couriers, as outlined in the
PSR.”
20 UNITED STATES V. FARIAS-CONTRERAS
This argument was inflammatory and provided the
district court with no information that had not been presented
to it in the sentencing memorandum or the PSR. This
information, and that set forth in the sentencing
memorandum, could serve no other purpose but to
“influence the court to give a higher sentence.” Whitney, 673
F.3d at 971 (citation omitted); see also Heredia, 768 F.3d at
1232 (same); Mondragon, 228 F.3d at 980 (same).
The dissent makes much of the fact that the government
told the court twice that it stood by “the recommendation . . .
in [its] sentencing memo” at the sentencing hearing. Diss.
Op. 33, 36. But the government used the 151-month figure
only once and only in its sentencing memorandum—
government counsel never expressly told the court that the
government did not oppose the 151-month sentence. And at
the sentencing hearing, government counsel only technically
complied with the government’s obligation not to argue for
a sentence in excess of the low-end of the guideline range.
“Although the prosecutor uttered the requisite words by
[stating she was abiding by the recommendation in the
sentencing memorandum], her additional statements
constituted an argument for a higher sentence, breached the
government’s obligation to recommend a low-end Guideline
sentence, and likely had an impact on the [high-end
Guideline] sentence imposed.” Whitney, 673 F.3d at 972.
Failing to reiterate the 151-month figure, when paired with
the government’s inflammatory arguments, further
contributed to implicit breach of its agreement.
The government and the dissent argue that the
information referenced in its sentencing memorandum and
at the sentencing hearing were simply facts that supported
the 151-month sentence it advocated for. Diss. Op. 36–38.
The dissent relies on United States v. Moschella, 727 F.3d
UNITED STATES V. FARIAS-CONTRERAS 21
888 (9th Cir. 2013), in which our court found no implicit
breach of a plea agreement where “arguments were a fair
response to Defendant’s request for a downward variance
from the low-end of the advisory Guidelines range,” and “the
government’s arguments at sentencing were directed to the
specific objective identified in and permitted by the plea
agreement.” Id. at 892; Diss. Op. 37 (quoting Moschella,
727 F.3d at 892).
We recognize that the plea agreement allowed either
party to “present[] and argu[e] . . . additional facts which are
relevant to the guideline computation or sentencing, unless
otherwise prohibited in this Plea Agreement.” Indeed, it is
widely accepted that the government commits no breach in
“bringing all relevant facts to the attention of the court.” 5
Wayne R. LaFave et al., Criminal Procedure § 21.2(d) (4th
ed. 2015). However, in its sentencing memorandum and at
the sentencing hearing, the government did not limit itself to
relevant facts. Instead, government counsel introduced
unrelated nationwide drug statistics, opinions about the
impact of drugs on the local community, and intra-office
discussions on the appropriateness of Farias-Contreras’s
sentence given his high level of culpability. Government
counsel even quoted with approval from a decades-old
nonbinding Fifth Circuit decision sanctioning a life-without-
parole sentence for a minor drug dealer, and from an
opinion-laden book on the poisonous evils of drugs. This
information extended far beyond the actual criminal conduct
Farias-Contreras pleaded guilty to, and thus was not limited
to “relevant facts” as the dissent baldly suggests. Diss. Op.
37–38. Nor was it “directed to the specific objective
identified in and permitted by the plea agreement.” If
anything, this case is an example of where “the Government
attorney appearing personally in court at the time of the plea
22 UNITED STATES V. FARIAS-CONTRERAS
bargain expressed personal reservations [, both hers and that
of her office,] about the agreement to which the Government
had committed itself.” United States v. Benchimol, 471 U.S.
453, 456 (1985). And the government provides us with no
persuasive reason to believe the aggravating information it
provided to the court was in support of a low-end guideline
sentence as opposed to a much higher sentence.
The government argues that the information it provided
was necessary to counteract Farias-Contreras’s request for a
below-guideline sentence. But when the government
entered into the plea agreement, it knew Farias-Contreras
would ask for a below-guideline sentence. Indeed, the plea
agreement expressly allowed him to “recommend any legal
sentence.” Moreover, the mitigating evidence available to
defense counsel was limited primarily to Farias-Contreras’s
physically impaired condition, and the government
minimized even that by arguing that his physical
impairments did not impede his criminal conduct. We
therefore fail to understand why the government needed to
introduce extraneous and irrelevant information in response
to defense counsel’s argument for a below-guideline
sentence, or to reemphasize matters of which the court was
well aware.
In sum, we must reject the government’s contention that
references to damage and danger to society, this community
and its families, Farias-Contreras’s prior criminal contacts
(that did not result in any criminal history points), Farias-
Contreras’s “top of the criminal chain” role, citation to a
thirty-year-old decision approving life without parole for a
minor drug transaction, introduction of the dissension in the
U.S. Attorney’s Office over the low-end sentence and the
Office’s unanimity as to a “long period of incarceration,” or
its emphasis on Farias-Contreras’s distribution of “massive,
UNITED STATES V. FARIAS-CONTRERAS 23
massive drug quantities over multiple, multiple years” were
made to support the low-end guideline sentence for which
the government promised to advocate. The government thus
implicitly breached its promise to not recommend a sentence
in excess of the low-end of the calculated guideline range.
2. Substantial Rights
Farias-Contreras “must additionally show that the
government’s conduct affected both his substantial rights
and the integrity, fairness or public reputation of the judicial
proceedings.” Whitney, 673 F.3d at 972 (citing United States
v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008)). We must
determine whether there is a reasonable probability that the
government’s breach in implicitly arguing for a higher
sentence rather than unequivocally recommending the low-
end guideline sentence resulted in the 188-month high-end
sentence imposed. We have “previously recognized the
importance of the government’s sentencing recommendation
as a bargained-for benefit to the defendant, and held that the
persuasive force behind a sentencing recommendation is
enhanced when it is urged by the government in addition to
the defense.” Id. at 973. Here, Farias-Contreras was denied
the benefit of the government’s agreement not to argue for a
sentence above the low-end of the guideline range.
There is a reasonable probability that the government’s
inflammatory argument affected the sentencing judge’s
high-end guideline determination. Though it is true that the
district court independently reviewed the PSR, the reasons
the court gave in disregarding the government’s wink and
nod toward a low-end sentence were the very arguments
government counsel made to ostensibly support its 151-
month recommendation.
24 UNITED STATES V. FARIAS-CONTRERAS
First, the district court noted its concern for the
“protection of the public,” and that “it’s fair to say that your
entire adult life, apparently, has been dedicated to dealing
drugs.” It was the government that created this
characterization, making this “dedicated lifestyle” argument
first in its sentencing memorandum, and then again
throughout its argument at the sentencing hearing. The
district court then explicitly referred to the prosecutor’s
statements, saying that the prosecutor, “in her brief and in
her oral presentation, indicated that you were top in the
chain, which indicates that you were way up in the
distribution.” The court then specifically referenced various
paragraphs within the PSR, but returned to the prosecutor’s
top of the chain argument, as well as the prosecutor’s
arguments regarding protecting the public, community, and
families. The court concluded its reasoning repeating
virtually verbatim statements earlier made by the
government:
So we have a big drug organization operating
in the central part of our state . . . The
activities are clear, and you were one of the
top—top dogs in that conspiracy, and the
damage that can be done and was done to the
citizens of our community by making
available those drugs in our area can’t be
quantified. It’s impossible to tell.
Next, adopting the themes emphasized in the
government’s sentencing memorandum, particularly the
excerpts from the novel Dreamland, that described the effect
of drug trafficking generally, the district court further
elaborated on the reason for the sentence it intended to
impose:
UNITED STATES V. FARIAS-CONTRERAS 25
Lives are lost. Lives are ruined. Families
broken up, jobs lost, health deteriorated.
Children become—it becomes available for
children. Addicts are fed. So it’s serious,
very serious.
The court immediately thereafter imposed the 188-month
sentence, reasoning that “the high end is justified for the
reasons that I’ve stated.” Even if, as the dissent argues, the
district court also considered Farias-Contreras’s criminal
history as part of his sentencing, Diss. Op. 39–41, its reliance
on these broader themes makes clear that government
counsel’s arguments had an impact on the court’s final
determination.
The government analogizes this case to our previous
decision in United States v. Gonzalez-Aguilar, 718 F.3d
1185 (9th Cir. 2013). There, the defendant pleaded guilty to
one count of being a previously deported noncitizen found
in the United States in violation of 8 U.S.C. § 1326. Id. at
1186. The defendant entered into a plea agreement,
requiring the government to stipulate to recommending a 46-
month sentence (the low-end of the applicable guidelines
range) and to “not seek, argue, or suggest in any way, either
orally or in writing, that any other specific offense
characteristics, adjustments, departures, or variances in
sentence . . . be imposed, or that the Court impose a sentence
other than what has been stipulated to by the parties.” Id.(alteration in original). There, in its sentencing
memorandum, the government advocated for a 46-month
prison sentence followed by three years of supervised
release, stating that the defendant had fourteen other drug
related criminal offenses and that the defendant “continues
to flout the law and shows no signs of stopping.” Id. at
26 UNITED STATES V. FARIAS-CONTRERAS
1186–87. Gonzalez-Aguilar ultimately received a 57-month
sentence followed by three years of supervised release and
appealed, claiming that the government implicitly breached
the plea agreement in describing his former convictions and
including “inflammatory language.” Id. at 1187.
Without deciding whether the government’s arguments
amounted to a breach, we found that Gonzalez-Aguilar’s
substantial rights were not violated. Id. “The record
establishe[d] that the district court conducted its own
independent evaluation of the propriety of the stipulated
sentence.” Id. In that case, however, the district court
recited its own independent reasons for imposing a lengthier
sentence, namely Gonzalez-Aguilar’s other offenses that
were laid out in the PSR but not fully addressed by the
government’s sentencing memorandum. Id. at 1187–88.
Additionally, Gonzalez-Aguilar was unable to show that the
district court would have otherwise been unaware of
Gonzalez-Aguilar’s criminal history, given that it was
already conveyed “in far greater detail” in the PSR. Id. at
1188. Thus, Gonzalez-Aguilar’s arguments amounted to
“only speculation,” failing to prove that it was reasonably
probable that, absent the government’s arguments, the court
would have accepted the plea agreement or imposed a more
lenient sentence. Id. at 1188–89.
Here there is no such speculation. In handing down
Farias-Contreras’s sentence, the district court reiterated the
arguments and themes that the government articulated
throughout its sentencing memorandum and its oral
argument. Some of this information, including the
dissension within the U.S. Attorney’s Office over what
would have been a more appropriate sentence, would never
have been before the district court, but for the government’s
choice to inform the judge about the internal discussions.
UNITED STATES V. FARIAS-CONTRERAS 27
This stands in stark contrast to Gonzalez-Aguilar where the
PSR included all the court’s cited reasons for disregarding
the stipulated sentence. And the district court here, instead
of engaging in a purely independent evaluation, credited the
government’s arguments made in both the sentencing
memorandum and at the hearing. For example, the court
noted that the prosecutor “in her brief and in her oral
presentation, indicated that you [referring to Farias-
Contreras] were top in the chain, which indicates that you
were way up in the distribution.” Thus, Gonzalez-Aguilar
does not control our analysis here.
Given that the prosecution’s inflammatory arguments
became the court’s stated reasons for the sentence imposed,
there is a reasonable probability that the sentence was
influenced by those arguments. Farias-Contreras’s
substantial rights were thus affected.
3. Integrity of the Judiciary
“The integrity of the criminal justice system depends
upon the government’s strict compliance with the terms of
the plea agreements into which it freely enters.” Heredia,
768 F.3d at 1230; see also Mondragon, 228 F.3d at 981(same). In Whitney, we elaborated on why the government’s
faithful compliance with its contractually-obligated duty is
so strictly required:
A defendant forfeits many of his
constitutional rights when he enters into a
plea agreement with the government. In
addition to sacrificing these rights, he
relieves the government of its burden to
prove his guilt beyond a reasonable doubt,
and eliminates the need for the government to
28 UNITED STATES V. FARIAS-CONTRERAS
expend its limited time and resources on a full
criminal trial. He does so not out of a
benevolent concern for the efficient
allocation of government resources, but in
order to receive the benefits of the bargain
into which he has entered. The government’s
inducement of the defendant’s plea, and the
consequent forfeiture of his constitutionally-
guaranteed rights, requires that “a promise or
agreement of the prosecutor . . . must be
fulfilled.”
Whitney, 673 F.3d at 974 (alteration in original) (quoting
Santobello, 404 U.S. at 262). Therefore, unless there are
“clearly countervailing factors, the government’s breach of
the parties’ plea agreement must be considered a serious
violation of the integrity of the plea bargain process and the
judicial system.” Id. To determine whether a clearly
countervailing factor exists, we look to situations where “the
defendant himself has engaged in conduct that undermined
the parties’ obligations.” Id.; see, e.g., Puckett v. United
States, 556 U.S. 129, 142–43 (2009) (explaining that
expecting the government to advocate for a sentencing
reduction for acceptance of responsibility contained in a plea
agreement would be “ludicrous” when the defendant
continued to engage in criminal activity after signing the
agreement).
Here, no clearly countervailing factors exist. The
government cannot point to a single breach of the plea
agreement on Farias-Contreras’s part. Even though defense
counsel argued for a sentence lower than the guideline range
calculated by the government, the plea agreement explicitly
permitted him to do so. Given that the government did not
UNITED STATES V. FARIAS-CONTRERAS 29
strictly comply with its obligation “not to recommend a
sentence in excess of the low-end of the guideline range,”
this implicit breach amounted to “a serious violation of the
integrity of the plea bargain process and the judicial system.”
Whitney, 673 F.3d at 974. 3
B.
The government agrees that if we determine that the
prosecutor breached the plea agreement, remand to a
different judge for resentencing is required under our
precedent. Id. at 968 n.1.
IV.
For the reasons given, we vacate Farias-Contreras’s
sentence and remand to the district court for the Clerk of the
Court to reassign this case for resentencing. We take no
position as to the appropriateness of the sentence; we simply
conclude there is a reasonable probability that it was the
product of the prosecutor’s implicit breach of its promise and
thus Farias-Contreras was deprived of the benefit of his plea
bargain.
SENTENCE VACATED; REMANDED.
3
Thus, there is no need for the government to be “upset” with this result,
Diss. Op. 41, and there is no reason for the government to take this result
out on future defendants—the government need only live up to the long-
standing contractual principles governing plea agreements, even if it
later develops buyer’s remorse because the “low-end of the guideline
range” turns out to be lower than expected.
30 UNITED STATES V. FARIAS-CONTRERAS
BENNETT, Circuit Judge, dissenting:
I respectfully dissent because Gerardo Farias-Contreras
cannot establish any error, much less plain error. The
government complied with the terms of the plea agreement.
As promised, it did not recommend a sentence above the
low-end guideline range. In fact, it exceeded its obligation
by affirmatively recommending a low-end guideline
sentence several times. It also introduced supplemental
facts, which the agreement expressly allowed it to do. Quite
simply, the government did not breach the plea agreement.
But even if the government somehow implicitly breached the
plea agreement by providing accurate supplemental facts,
any breach was not obvious under our precedent. The record
also fails to show a reasonable probability that any implicit
breach affected the sentencing. The district court made clear
that it imposed a high-end sentence because Farias-
Contreras was a leader of a huge drug-trafficking
organization and had trafficked enormous quantities of
dangerous drugs for more than two decades. These crucial
facts were in the presentence report (“PSR”), and thus there
is no reasonable probability that the government’s
supplemental facts affected the sentencing. Finally, on a
more practical level, I believe that the majority’s
precedential decision, unless rejected en banc or by the
Supreme Court, will materially and unnecessarily harm
future defendants in plea negotiations.
I
Farias-Contreras was charged with conspiracy to
distribute 500 grams or more of methamphetamine or heroin,
and possession with intent to distribute 500 grams or more
of methamphetamine. He entered into a plea agreement with
the government in which he pleaded guilty to the conspiracy
UNITED STATES V. FARIAS-CONTRERAS 31
charge. The plea agreement contained a lengthy statement
of stipulated facts showing that Farias-Contreras had
supplied multi-pound quantities of methamphetamine and
heroin to many individuals over many years. As just one
example, the parties stipulated that a drug runner for Farias-
Contreras, on each of multiple occasions, delivered to just
one of Farias-Contreras’s many customers five to ten pounds
of methamphetamine and about two kilograms of heroin.
Farias-Contreras’s drug runner received all these drugs
directly from Farias-Contreras.
The plea agreement expressly allowed the parties to
supplement the facts: “This statement of facts does not
preclude either party from presenting and arguing, for
sentencing purposes, additional facts which are relevant to
the guideline computation or sentencing, unless otherwise
prohibited in this Plea Agreement.” The government agreed
“not to recommend a sentence in excess of the low-end of
the guideline range, as calculated by the United States.” The
agreement permitted Farias-Contreras to “recommend any
legal sentence.”
The PSR calculated a base offense level of 38:
The guideline for a violation of 21 U.S.C. §
841(a)(1) is USSG §[] 2D1.1. In the plea
agreement, the parties stipulated the
defendant’s relevant conduct involved no less
than 90,000 kilograms of converted drug
weight resulting in a base offense level of 38
pursuant to USSG §[] 2D1.1(a)(5), (c)(1).
The defendant distributed methamphetamine,
methamphetamine (actual), and heroin.
When an offense involves multiple types of
controlled substances, each substance is
32 UNITED STATES V. FARIAS-CONTRERAS
converted to a total converted drug weight to
determine the base offense level. At least
90,000 kilograms or more of converted drug
weight establishes a base offense level of 38.
Here, the defendant is responsible for at least
186,181.40 kilograms.[ 1] This calculation
takes into account the quantities the
defendant stipulated to in the plea agreement.
This officer believes the parties [sic]
stipulation to a base offense level of 38 is
reasonable.
Based upon a total offense level of 38 and a Criminal History
Category of I, the PSR calculated a guideline imprisonment
range of 235 to 293 months and recommended a sentence
within that range.
Farias-Contreras filed a sentencing memorandum in
which he explained that, under the plea agreement, the
government would likely calculate an advisory guideline
range of 210–262 months. Farias-Contreras argued that the
court should depart significantly downward to a range of
108–135 months for various reasons, including because of
his significant physical medical conditions.
About one week later, the government filed its
sentencing memorandum. It ultimately sought an advisory
guideline range of 151–188 months. As promised, the
government did not recommend a sentence above the low-
end of the guideline range; it affirmatively recommended “a
term of incarceration of 151 months”—the low-end of its
calculated guideline range. The government’s memorandum
1
186,181.40 kilograms equals about 410,000 pounds, more than 200
tons.
UNITED STATES V. FARIAS-CONTRERAS 33
argued that despite his physical limitations, Farias-Contreras
was at “the top of criminal culpability . . . as a multi-pound-
level source of supply to multiple individuals, spanning over
the course of multiple years.” The memorandum highlighted
facts from the PSR that supported its argument. The
government’s memorandum also included supplemental
information about the harm to the community caused by
drug trafficking in general.
At sentencing, Farias-Contreras’s counsel continued to
argue that the court should use an advisory range of 108–121
months—a range well below the government’s low-end
recommendation of 151 months. The government,
consistent with its obligations under the plea agreement,
explicitly told the court two times during the sentencing
hearing that it stood by the recommendation in its
memorandum, which was the low-end guideline sentence of
151 months: “we’re standing by the recommendation that we
have in our sentencing memo,” and “we are recommending
the term of incarceration that we have outlined in our
sentencing memo.” The district court determined that the
government’s recommendation was “too low” and imposed
a high-end sentence of 188 months.
The district court imposed a high-end sentence mainly
because Farias-Contreras was a leader of a large drug-
trafficking organization and had trafficked drugs for a long
time. At the outset of sentencing, the court noted its concern
that Farias-Contreras’s “entire adult life . . . ha[d] been
dedicated to dealing drugs” and that he lacked “respect for
the law.” Then, turning to the PSR, the court stated:
I went through the presentence report. I spent
a lot of time in that presentence report. . . .
34 UNITED STATES V. FARIAS-CONTRERAS
And I’m not going to go through the whole
thing, but, Mr. Farias-Contreras, your activity
for many, many years, starting in,
apparently . . . —that we’re aware of that you
ran afoul of the law was 1998 in California
where you indicated that you were able to sell
30 pounds of methamphetamine, and you got
two years in jail; so that goes way back.
Now, I’m just going to make reference to
some of the paragraphs in the presentence
report that I think are significant because
they’re descriptive of how deeply involved
you were in this big organization that was
responsible for distributing in this geographic
area huge amounts of methamphetamine.
(emphasis added).
The PSR paragraphs discussed by the district court
established that Farias-Contreras had distributed large
amounts of methamphetamine and heroin to multiple
purchasers. He personally transported drugs from California
to Washington, collected drug proceeds from customers, and
took the proceeds back to California. He also dispatched
others to bring drugs to Washington. One of his several
couriers transported ten to fifteen pounds of drugs about
twenty-four times. He employed another courier who
regularly transported twenty to twenty-five pounds of
methamphetamine to Washington per trip and returned to
California with $30,000 to $40,000 each time. These trips
happened every few weeks.
Farias-Contreras had been dealing drugs for a long time.
In 1993 he was convicted of criminal conspiracy and
UNITED STATES V. FARIAS-CONTRERAS 35
sentenced to four years; he served about five months. 2 In
1998, he was convicted of possession of a controlled
substance for sale and sentenced to two years. In connection
with that conviction, the PSR noted that Farias-Contreras
told a confidential informant that he would sell the informant
thirty pounds of methamphetamine. In 2008, he was dealing
drugs in pound quantities.
The district court concluded sentencing with: “I think the
high end is justified for the reasons that I’ve stated. In brief
summary, a huge organization over a long period of time,
[Farias-Contreras was] one of the top dogs in it, and so the
188 months, I think, is a fairly low sentence.”
At no time prior to or during sentencing, did Farias-
Contreras claim that the government had breached the plea
agreement or done anything improper. Indeed, Farias-
Contreras’s counsel told the court at sentencing that the
prosecutor had been “straightforward and level and frank.”
II
There is no dispute that our review is for plain error, and
that Farias-Contreras bears the burden of satisfying this
“difficult” standard. Greer v. United States, 141 S. Ct. 2090,
2097 (2021) (quoting Puckett v. United States, 556 U.S. 129,
135 (2009)). Farias-Contreras must therefore establish that
there was error, the error was plain, there is a reasonable
probability that the error affected the outcome, and the error
seriously affected “the fairness, integrity, or public
reputation” of the sentencing proceedings. Id. at 2096–97
2
The PSR noted that the original charges were “criminal conspiracy
and manufacture/controlled substance.”
36 UNITED STATES V. FARIAS-CONTRERAS
(quoting Rosales-Mireles v. United States, 138 S. Ct. 1897,
1905 (2018)). Farias-Contreras has not satisfied his burden.
There was no error because the government complied
with the plea agreement’s terms. The majority incorrectly
suggests that the government had an obligation to “expressly
t[ell] the court that [it] did not oppose the 151-month
sentence.” Maj. Op. 20. The plea agreement contained no
such obligation. Rather, the government agreed “not to
recommend a sentence in excess of the low-end of the
guideline range, as calculated by the United States.” The
government did just that by recommending throughout the
sentencing proceedings that the court impose the sentence
recommended in its sentencing memorandum, which was
the low-end sentence of 151 months. That the government
included additional information to support its
recommendation and rebut Farias-Contreras’s request for a
lower sentence did not cause an implicit breach because the
plea agreement expressly permitted the parties to supplement
the facts for sentencing purposes. See United States v.
Moschella, 727 F.3d 888, 892 (9th Cir. 2013) (finding no
implicit breach where the plea agreement permitted the
parties to supplement the facts).
And the majority is simply wrong that the additional
information served no purpose other than to influence the
court to impose a higher sentence than the government
recommended. 3 The additional information served
3
I note that some of the information that the majority takes issue with
was provided by the prosecutor in direct response to questions and
remarks from the court. For example, the prosecutor mentioned in
passing that there had been “much discussion” about the government’s
recommended sentence, but the prosecutor elaborated when the court
interrupted and asked, “Much discussion where?”
UNITED STATES V. FARIAS-CONTRERAS 37
manifestly valid purposes. First, the government had the
absolute right to respond to Farias-Contreras’s arguments for
a much lower sentence than the sentence the government had
recommended (a recommendation in absolute accord with
the plea agreement). And second, the government had the
right—perhaps even the obligation—to try to justify its
recommended sentence. Indeed, in a case involving
materially similar circumstances, we found no implicit
breach.
In Moschella, the government promised to recommend a
low-end guideline sentence. 727 F.3d at 890. But the
agreement also allowed the defendant to argue for a below-
guideline sentence, permitted the government to oppose any
defense motion for a below-guideline sentence, and
permitted either party to supplement the facts with relevant
information. Id. at 890, 892. The defense argued for a
below-guideline sentence, and the government urged the
court to reject such argument—highlighting the seriousness
of the offense and stating that the defendant had been
“motivated by greed, and that he was a danger to society.”
Id. at 891. We held that there was no implicit breach because
the government’s “arguments were a fair response to
Defendant’s request for a downward variance from the low-
end of the advisory Guidelines range,” and “the
government’s arguments at sentencing were directed to the
specific objective identified in and permitted by the plea
agreement.” Id. at 892.
So too here. Farias-Contreras could and did argue for a
sentence well below the government’s recommendation.
And under the plea agreement, the government could and did
supplement the facts with relevant information. Nothing in
the plea agreement prohibited the government from
opposing Farias-Contreras’s request for a lower sentence.
38 UNITED STATES V. FARIAS-CONTRERAS
So, as in Moschella, the government’s supplemental
information and related arguments were a fair response to
Farias-Contreras’s request for a much lower sentence, and
there was no implicit breach.
The majority finds that the government had no valid
reason for providing the supplemental information because
the information was “irrelevant.” Maj. Op. 22. According
to the majority, the plea agreement limited the government
to “relevant facts,” meaning information related to Farias-
Contreras’s “actual criminal conduct.” Maj. Op. 21. But the
plea agreement was not so limited. The agreement allowed
either party to present “additional facts which are relevant to
. . . sentencing.” All the supplemental information provided
by the government was relevant to sentencing. See 18
U.S.C. § 3553(a). Thus, the government could present the
additional information, and it had a valid reason for doing
so: to explain why its recommended sentence, and not the
much lower sentence recommended by the defendant, was
justified under the circumstances.
Even if there was an implicit breach, it was not plain. To
be plain, “the legal error must be clear or obvious, rather than
subject to reasonable dispute.” Puckett, 556 U.S. at 135.
The majority mostly relies on three cases to find plain error:
United States v. Heredia, 768 F.3d 1220 (9th Cir. 2014),
United States v. Whitney, 673 F.3d 965 (9th Cir. 2012), and
United States v. Mondragon, 228 F.3d 978 (9th Cir. 2000).
Maj. Op. 16–20. But all three cases are materially
distinguishable because in each case the facts were such that
the government’s supplemental information and related
arguments served no purpose other than to argue improperly
for a harsher sentence. See Heredia, 768 F.3d at 1234;
Whitney, 673 F.3d at 971; Mondragon, 228 F.3d at 980.
UNITED STATES V. FARIAS-CONTRERAS 39
Further, even if the three cases could be construed to
support an implicit breach, Moschella, at the very least,
creates a reasonable dispute as to whether the government
implicitly breached the plea agreement. As discussed above,
in Moschella we found no breach under similar
circumstances. Farias-Contreras therefore cannot show any
implicit breach was plain. See Puckett, 556 U.S. at 135.
Farias-Contreras also cannot show that there is “a
reasonable probability that the error affected the
[sentencing].” United States v. Marcus, 560 U.S. 258, 262
(2010). A “possibility” of a different outcome is not enough.
United States v. Gonzalez-Aguilar, 718 F.3d 1185, 1189 (9th
Cir. 2013). The record shows that the district court imposed
a high-end sentence because Farias-Contreras was a leader
of a large drug organization and had a long drug-trafficking
history. Those were the central facts supporting the district
court’s high-end sentence. Indeed, the district court
highlighted those facts at the start:
I am concerned about protection of the
public, and I’ll expand on it in a minute why
I say that, but it’s fair to say that your entire
adult life, apparently, has been dedicated to
dealing drugs, and that’s a serious concern
for the protection of the public. I’m also
concerned about the lack—there’s been no
respect for the law on your part.
The district court then elaborated on several paragraphs
of the PSR containing the key facts that Farias-Contreras had
been a leader and had a long drug-trafficking history: “[T]he
evidence . . . makes it clear the distribution that you were
involved included large amounts of drugs—
40 UNITED STATES V. FARIAS-CONTRERAS
methamphetamine, heroin—and you were distributing it to
many purchasers.” An informant said “that he traveled for
you, 10 to 15 pounds of meth per trip, maybe as many as 24
trips, and you gave him the instructions and the orders.” The
PSR “talks about the fact you were a supplier to somebody .
. . starting way back in 2008. That’s . . . a long time ago.
You were dealing pound quantities.”
The district court summarized the relevant parts of the
PSR:
So we have a big drug organization operating
in the central part of our state. I think there
are 18 or 19 defendants listed in this case
being a member of that conspiracy. The
activities are clear, and you were one of the
top—top dogs in that conspiracy, and the
damage that can be done and was done to the
citizens of our community by making
available those drugs in our area can’t be
quantified. It’s impossible to tell.
Lives are lost. Lives are ruined. Families
broken up, jobs lost, health deteriorated.
Children become—it becomes available for
children. Addicts are fed. So it’s serious,
very serious.
In closing, the district court reiterated that the facts in the
PSR were central to its decision: “In brief summary, a huge
organization over a long period of time, [Farias-Contreras
was] one of the top dogs in it, and so the 188 months, I think,
is a fairly low sentence.”
UNITED STATES V. FARIAS-CONTRERAS 41
Viewing the record as a whole, the district court was
deeply influenced by the facts in the PSR showing that
Farias-Contreras had been dealing drugs for over two
decades and was a leader of a huge organization that
trafficked, at minimum, hundreds of pounds of
methamphetamine. Given the record, there is no reasonable
probability that the government’s (entirely appropriate)
supplemental information affected the outcome of the
proceedings.
* * *
In short, Farias-Contreras fails to show that he is entitled
to plain-error relief. The majority errs by holding otherwise.
And although the majority’s decision helps this defendant, it
likely does so at the expense of future defendants. Even
though the government recommended a low-end sentence
and the plea agreement permitted it to supplement the facts,
the majority finds that the government still committed an
implicit breach. How will the government protect itself in
future plea negotiations, when it followed the letter of its
agreement? It could refuse to agree to recommend a
particular “low-end” sentence. It could load the plea
agreement with the most damaging possible facts. It could
reserve the right to make any argument at all. None of this
would be desirable for defendants.
The government should be understandably upset with
this unjust result. The defendant was directly responsible for
both ending and ruining many lives. The government agreed
to a generous plea bargain. The government did not just
adhere to the letter of its bargain—it adhered to the spirit as
well. As a result, the government affirmatively
recommended a term of 151 months, which was far below
the PSR’s recommended range of 235 to 293 months. Yet
42 UNITED STATES V. FARIAS-CONTRERAS
the majority finds not just that the government breached its
agreement, but that the breach was plain.
Reversal under plain error review requires that any error
had a “serious effect on the fairness, integrity, or public
reputation of judicial proceedings.” Greer, 141 S. Ct. at
2096–97 (internal quotation marks omitted) (quoting
Rosales-Mireles, 138 S. Ct. at 1905). Nothing remotely like
that occurred here. I respectfully dissent.