Vasquez-Ramirez v. United States District Court for the Southern District of California

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: ALVARO VASQUEZ-RAMIREZ, 
ALVARO VASQUEZ-RAMIREZ,
Petitioner, No. 04-75715
v.
UNITED STATES DISTRICT  D.C. No.
CR-04-01037-LAB
COURT FOR THE SOUTHERN OPINION
DISTRICT OF CALIFORNIA,
Respondent,
UNITED STATES OF AMERICA,
Real Party in Interest.

Petition for Writ of Mandamus to the
United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
November 18, 2005—Pasadena, California
Filed April 6, 2006
Before: William C. Canby, Jr., Alex Kozinski and
Eugene E. Siler, Jr.,* Circuit Judges.
Opinion by Judge Kozinski
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
3853
3856 IN RE: VASQUEZ-RAMIREZ
COUNSEL
Steven F. Hubachek, Chase Scolnick and Lori B. Schoenberg,
Federal Defenders of San Diego, Inc., San Diego, California,
for the petitioner.
Michael J. Dowd, Lerach Coughlin Stoia Geller Rudman &
Robbins LLP, San Diego, California, for the respondent.
Carol C. Lam, United States Attorney; Roger W. Haines, Jr.,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division; and David P. Curnow, Assistant United
States Attorney, San Diego, California, for the United States,
real party in interest.
OPINION
KOZINSKI, Circuit Judge:
We consider whether a district judge may reject a guilty
plea that satisfies all of the requirements of Federal Rule of
Criminal Procedure 11(b).
Facts
Alvaro Vasquez-Ramirez was deported from the United
States after having been convicted of an aggravated felony.
He then reentered the United States in violation of 8 U.S.C.
§ 1326 (“Reentry of removed aliens”), a crime carrying a
maximum sentence of 20 years. See 8 U.S.C. § 1326(b)(2). As
IN RE: VASQUEZ-RAMIREZ 3857
is the practice in the Southern District of California, the gov-
ernment offered Vasquez a “fast-track” disposition: If
Vasquez agreed to plead guilty within 60 days, waive his right
to an indictment, waive all rights of appeal and collateral
attack, and depart the United States following imprisonment,
the government would allow him to plead guilty to one felony
count and one misdemeanor count of violating 8 U.S.C.
§ 1325 (“Improper entry by alien”), for a combined maximum
prison sentence of 30 months.1 See 8 U.S.C. § 1325(a).
Vasquez agreed to the deal, signed a plea agreement, and
was arraigned on an information charging two counts of vio-
lating section 1325. But the district court rejected the deal.
The government then obtained, apparently as a result of a
“mix-up,” an indictment charging Vasquez with violating sec-
tion 1326, but also renewed its fast-track offer. Vasquez again
accepted the offer. Pursuant to the renewed agreement,
Vasquez would plead guilty to the two counts of violating
section 1325 charged in the information, and both parties
would recommend that the judge impose the statutory maxi-
mum sentence of 30 months. The plea agreement together
with Vasquez’s criminal history report were submitted to the
district court. This time, a different district judge rejected not
only the plea agreement, but Vasquez’s guilty plea itself:
The court had reviewed the criminal history report.
I have reviewed the report—excuse me—the report
and recommendation. I reject the Plea Agreement in
this case. And accordingly, I am going to give the
defendant, Mr. Vasquez, the right to withdraw his
plea. Actually, he doesn’t need to, because I am not
going to accept the plea. I reject it. The criminal his-
tory category in this case and the criminal history of
the defendant is so high that in good conscience I
would not sentence him to 30 months, and I reject
1
We have previously expressed approval of the fast-track program. See
United States v. Estrada-Plata, 57 F.3d 757, 761 (9th Cir. 1995).
3858 IN RE: VASQUEZ-RAMIREZ
the Plea Agreement. I am not going to follow that.
I am not going to go along with it. I am not going
to dismiss the [section 1326] charge.
Vasquez moved for reconsideration but the district judge
declined. When pressed for his reasons, the judge stated that
he didn’t want to get “mousetrapped” into losing his discre-
tion to impose a sentence longer than 30 months. Vasquez
brings a mandamus petition seeking to compel the district
judge to accept his guilty plea.2 He does not challenge the
judge’s rejection of the plea agreement.
Merits
1. The Supreme Court has emphasized the importance of
treating pleas and plea agreements distinctly, see United
States v. Hyde, 520 U.S. 670, 674 (1997) (“Guilty pleas can
be accepted while plea agreements are deferred, and the
acceptance of the two can be separated in time.”), as have we,
see Ellis v. United States Dist. Court, 356 F.3d 1198, 1206
(9th Cir. 2004) (en banc) (“The plain text of Rule 11 compels
distinct treatment of the plea agreement and the plea itself, as
the Supreme Court concluded in Hyde.”).
[1] The distinction between pleas and plea agreements is
codified in Rule 11, which has separate provisions for each.
See Fed. R. Crim. P. 11(a), (b) (addressing guilty pleas); Fed.
R. Crim. P. 11(c) (addressing plea agreements). These provi-
sions not only treat guilty pleas and plea agreements sepa-
rately, but differently: Although Rule 11(c) explicitly gives
judges discretion to reject certain types of plea agreements,3
2
Vasquez also filed an interlocutory appeal seeking the same relief,
which we dismissed for lack of jurisdiction.
3
One type of agreement that the court can reject is a “charge bargain”
like the one at issue in this case. See Fed. R. Crim. P. 11(c)(1)(A) (“An
attorney for the government and the defendant’s attorney . . . may discuss
and reach a plea agreement. . . . If the defendant pleads guilty . . . to a
lesser or related offense, the plea agreement may specify that an attorney
for the government will . . . not bring, or will move to dismiss, other
charges . . . .”); Fed. R. Crim. P. 11(c)(3)(A), (c)(5) (giving a court the
right to reject a charge bargain of the type specified in Rule 11(c)(1)(A)).
IN RE: VASQUEZ-RAMIREZ 3859
Rule 11(a) does not authorize judges to reject unconditional
guilty pleas. See Fed. R. Crim. P. 11(a)(1) (requiring the
court’s consent for nolo contendere pleas, but not for guilty
or not-guilty pleas); Fed. R. Crim. P. 11(a)(2) (requiring the
court’s consent for conditional guilty pleas and nolo con-
tendere pleas only). And Rule 11(b) lists various requirements
that must be met “[b]efore the court accepts a plea of guilty,”4
without giving judges the option of rejecting a plea once these
requirements are satisfied.
[2] Thus, viewing Rules 11(a) and (b) together, it is clear
that a court must accept an unconditional guilty plea, so long
as the Rule 11(b) requirements are met. The existence or non-
existence of a Rule 11(c) plea agreement is irrelevant to the
separate issue of how a defendant chooses to plead.5
2. We have previously addressed the relationship between
plea agreements and guilty pleas. In Ellis, we issued a writ of
mandamus to a district court that had rejected a plea agree-
ment and vacated the defendant’s previously entered guilty
plea. We held as follows:
If . . . the court rejects a Rule 11(c)(1)(A) or (C) plea
agreement, Rule 11(c)(5) dictates the procedures to
be followed:
[T]he court must do the following on the
record and in open court (or, for good
cause, in camera):
(A) inform the parties that the court rejects
the plea agreement;
4
The Rule 11(b) requirements ensure that the plea be knowing, volun-
tary and intelligent, and that it have a factual basis. There is no dispute that
these requirements were satisfied in this case.
5
Of course, the rejection of a plea agreement does impact the defen-
dant’s ability to change his plea. See pp. 3859-62 infra.
3860 IN RE: VASQUEZ-RAMIREZ
(B) advise the defendant personally that
the court is not required to follow the plea
agreement and give the defendant an oppor-
tunity to withdraw the plea; and
(C) advise the defendant personally that if
the plea is not withdrawn, the court may
dispose of the case less favorably toward
the defendant than the plea agreement con-
templated.
Fed. R. Crim. P. 11(c)(5). Rule 11 thus contemplates
that the district court’s rejection of a plea agreement
allows the defendant, not the court, to make the next
decision with respect to the status of the plea—i.e.,
whether to withdraw the plea and proceed to trial, or
persist in the plea and risk a more severe sentence
under the Sentencing Guidelines.
....
The only course available for the district court, upon
rejecting the plea agreement, is to advise the defen-
dant of his rights, including the right to withdraw the
guilty plea. . . . And should the defendant decide to
maintain his plea of guilty, the court “may dispose
of the case less favorably toward the defendant than
the plea agreement contemplated.” Fed. R. Crim. P.
11(c)(5)(C) . . . .
When his plea agreement was rejected, it became
Ellis’s choice whether to: (i) stand by his plea . . . (ii)
withdraw his plea and attempt to renegotiate a new
plea agreement . . . or (iii) withdraw his plea and
take his chances at trial . . . .
Ellis, 356 F.3d at 1207-08 (alteration in original).
IN RE: VASQUEZ-RAMIREZ 3861
[3] The district judge in this case tried to avoid the stric-
tures of Ellis by refusing to accept Vasquez’s guilty plea in
the first place; thus, he thought, there would be nothing to
vacate. But the judge’s attempt to distinguish a guilty plea
already accepted from one that has only been tendered must
fail; as described above, the act of “accepting” a tendered
guilty plea is non-discretionary once the Rule 11(b) require-
ments are met. A tendered guilty plea that meets the Rule
11(b) requirements is effectively the same as a guilty plea that
has been accepted, even if the judge doesn’t formally “accept”
the plea until later. Thus, when the district judge rejected
Vasquez’s plea agreement, his guilty plea had already been
effectively entered; the judge’s decision not to “accept” the
plea at that point was no different from the Ellis judge’s deci-
sion to vacate an already-accepted plea.
[4] The Supreme Court’s description of the proper
sequence of events accords with our analysis:
[The Federal Rules of Criminal Procedure] explicitly
envision a situation in which the defendant performs
his side of the bargain (the guilty plea) before the
Government is required to perform its side . . . . If
the court accepts the agreement and thus the Govern-
ment’s promised performance, then the contemplated
agreement is complete and the defendant gets the
benefit of his bargain. But if the court rejects the
Government’s promised performance, then the
agreement is terminated and the defendant has the
right to back out of his promised performance (the
guilty plea), just as a binding contractual duty may
be extinguished by the nonoccurrence of a condition
subsequent.
Hyde, 520 U.S. at 677-78 (emphasis added). Once the district
judge rejected Vasquez’s plea agreement, he should have
given Vasquez the same choices we gave Ellis: “(i) stand by
his plea . . . (ii) withdraw his plea and attempt to renegotiate
3862 IN RE: VASQUEZ-RAMIREZ
a new plea agreement . . . or (iii) withdraw his plea and take
his chances at trial . . . .” Ellis, 356 F.3d at 1208.
3. The district judge protests that, were he forced to accept
Vasquez’s guilty plea, he could impose no more than a 30-
month sentence, which he finds inadequate in light of
Vasquez’s criminal history. He also argues that the parties
will be effectuating the very plea agreement he rejected,
which recommended a 30-month sentence. The dissent in
Ellis shared the district judge’s concerns:
The majority states that . . . the judge may still “dis-
pose of the case less favorably toward the defendant
than the plea agreement contemplated” under Rule
11(c)(5). . . . I wish that were so. If a defendant
pleads to lesser charges with a lesser maximum but
open sentencing, and the judge disapproves of the
charge bargain after reading the presentence report,
the judge is limited, under the majority opinion, to
the inadequate conviction, and, if the maximum is
too low, the inadequate sentence. Under the majority
opinion, if the prosecutor and defense agreed to
plead first-degree murder down to a misdemeanor
such as careless use of firearms, and, knowing noth-
ing but the stipulation of facts in the plea bargain,
the court accepted the plea, there would be nothing
the court could do about it when the presentence
report revealed what had occurred.
Ellis, 356 F.3d at 1232 n.7 (Kleinfeld, J., dissenting).
We rejected this argument in Ellis, and we reject it again
here, because it misses the point. Now that the plea agreement
has been rejected, Vasquez’s guilty plea is a naked plea, unen-
cumbered by waivers of his right to appeal or collaterally
challenge the proceedings, and unaccompanied by a govern-
ment promise to drop the section 1326 indictment. There will
be no enforceable agreement to which the government can
IN RE: VASQUEZ-RAMIREZ 3863
point should Vasquez decide to appeal or should he refuse to
depart the country after serving his sentence, and no agree-
ment to which Vasquez can point should the prosecutor
decide to proceed on the indictment. Vasquez is pleading
guilty to the section 1325 charges because he admits he com-
mitted the crime and, most likely, because he believes the
government will not pursue the section 1326 charge.
Should the government indeed decide to drop the section
1326 indictment, it will be exercising classic prosecutorial
discretion. It may have any number of reasons for doing so,
such as wise allocation of scarce resources, none of which are
the district court’s business. It is true that the district judge’s
sentencing discretion will then be capped at the same 30-
month sentence the parties recommended in their plea agree-
ment. But that is just happenstance, a function of the parties’
decision to recommend the statutory maximum sentence; it
doesn’t mean the judge’s rejection of their plea agreement has
been nullified. The district judge will still be free to sentence
Vasquez to any term of imprisonment within the statutory
range; he will have no less discretion than he would if the
government had declined to bring the section 1326 indictment
in the first place. The judge’s sentencing discretion will be
cabined only by the prosecutor’s decision regarding which
charges to pursue, and by Congress’s decision to create a stat-
utory maximum sentence for those charges. A judge has no
constitutional role in either of these decisions; one is strictly
executive and the other is strictly legislative.6
6
The Tenth Circuit has also discussed the impact of charge bargains on
a trial judge’s sentencing discretion, concluding as we do that district
courts should be wary of interfering with prosecutorial discretion:
Though charging decisions implicate executive power, they also
implicate the sentencing discretion of district courts. However,
the court’s sentencing discretion is implicated only as an inciden-
tal consequence of the prosecution’s exercise of executive discre-
tion. In fact, a court’s sentencing discretion is implicated in this
situation in precisely the same manner it is implicated by pro-
3864 IN RE: VASQUEZ-RAMIREZ
[5] By refusing to accept Vasquez’s guilty plea, the district
judge is trying to force the government to pursue a charge it
does not wish to press. As we held in Ellis, this intrudes too
far into the executive function:
The district court viewed the sentence resulting from
Ellis’s plea bargain as not in the best interest of soci-
ety, given Ellis’s criminal history and the circum-
stances of the offense charged. This was a judgment
properly within the judicial function. It is also a
function protected by Rule 11’s provision for the
rejection of a negotiated plea agreement when the
court believes a sentence is too lenient or otherwise
not in the public interest. [United States v. Miller,
722 F.2d 562, 563 (9th Cir. 1983)]. But when the
district court made the further decision that the
[lesser] charge itself was too lenient, it intruded into
the charging decision, a function “generally within
the prosecutor’s exclusive domain.” Id. at 565. . . .
The district court’s decision forced the government
to prepare to try Ellis on a charge it did not want to
bring . . . .
Ellis, 356 F.3d at 1209. Rule 11 does not authorize such an
intrusion.
4. Our reading of Rule 11 is further supported by Rule 32,
which states: “Unless the defendant has consented in writing,
secutorial decisions to bring charges in the first place, where pro-
secutorial discretion is nearly absolute. As such, charge bargains
directly and primarily implicate prosecutorial discretion whereas
judicial discretion is impacted only secondarily. Thus, while dis-
trict courts may reject charge bargains in the sound exercise of
judicial discretion, concerns relating to the doctrine of separation
of powers counsel hesitancy before second-guessing prosecu-
torial choices.
United States v. Robertson, 45 F.3d 1423, 1438 (10th Cir. 1995) (citations
omitted).
IN RE: VASQUEZ-RAMIREZ 3865
the probation officer must not submit a presentence report to
the court or disclose its contents to anyone until the defendant
has pleaded guilty or nolo contendere, or has been found
guilty.” Fed. R. Crim. P. 32(e)(1). The obvious reason for this
rule is that the information in a presentence report, such as
criminal history and related conduct, is irrelevant to the deter-
mination of guilt or innocence, and is only relevant to sen-
tencing.
The Supreme Court has held that:
Rule 32 is explicit. . . . [Its] language clearly permits
the preparation of a presentence report before guilty
plea or conviction[,] but it is equally clear that the
report must not, under any circumstances, be “sub-
mitted to the court” before the defendant pleads
guilty or is convicted. Submissions of the report to
the court before that point constitutes error of the
clearest kind.
Moreover, the rule must not be taken lightly. Presen-
tence reports are documents which the rule does not
make available to the defendant as a matter of right.
There are no formal limitations on their contents,
and they may rest on hearsay and contain informa-
tion bearing no relation whatever to the crime with
which the defendant is charged. . . . [T]here is no
reason for [the judge] to see the document until the
occasion to sentence arises, and under the rule he
must not do so.
Gregg v. United States, 394 U.S. 489, 491-92 (1969).
[6] The parties in this case submitted a criminal history
report to the district court in conjunction with their plea agree-
ment, in compliance with the district judge’s “standard prac-
tice.”7 But this practice is permissible only if the judge
7
This practice gives the judge the flexibility anticipated by Rule
11(c)(3)(A), which allows a district judge to defer his decision on whether
to accept a charge bargain until after he has viewed the presentence report.
3866 IN RE: VASQUEZ-RAMIREZ
adheres to Rule 11 as we have just expounded it, see pp.
3859-62 supra, and considers himself bound to accept a guilty
plea that meets the Rule 11(b) requirements. Otherwise, the
criminal history report might improperly influence the deter-
mination of guilt (i.e., the acceptance of the guilty plea), con-
trary to Rule 32(e) as explained in Gregg.8 When parties
submit their criminal history report together with their plea
agreement, they presume that the only question confronting
the judge is whether to accept the agreement. Had Vasquez
known that the judge would also be deciding whether to
accept his plea, he might not have consented to submitting the
report at that time.
[7] The district judge wants to have it both ways—he wants
to have access to information to which he is only entitled once
the defendant is guilty, and then use it retrospectively to
decide whether to accept the defendant’s guilty plea. This is
not allowed under the Rules.
[8] 5. Finally, our reading of Rule 11 is consistent with the
caselaw of other circuits, many of which have emphasized the
broad discretion of district judges to reject plea agreements,
see, e.g., United States v. Smith, 417 F.3d 483, 487 (5th Cir.
2005); United States v. Gamboa, 166 F.3d 1327, 1330-31
(11th Cir. 1999); United States v. Carrigan, 778 F.2d 1454,
1462 (10th Cir. 1985); United States v. Bean, 564 F.2d 700,
702-04 (5th Cir. 1977), but have discussed district judges’
discretion to reject naked guilty pleas only when the pleas fail
to meet the Rule 11(b) requirements, see, e.g., United States
v. Brown, 331 F.3d 591, 594-95 (8th Cir. 2003) (holding that,
in the context of a plea that lacks a factual basis, the “district
8
The district judge argues that Rule 32 is inapplicable here because the
criminal history report he viewed is not technically a presentence report.
But the information contained in the criminal history report is exactly the
type of information that Rule 32(e)(1) is supposed to prevent the judge
from viewing prior to the determination of guilt or innocence. We thus
treat the criminal history report as the equivalent of a presentence report.
IN RE: VASQUEZ-RAMIREZ 3867
court necessarily possesses broad discretion in deciding to
accept or reject [it]” (emphasis and internal quotation marks
omitted)); United States v. Gomez-Gomez, 822 F.2d 1008,
1011 (11th Cir. 1987) (“In order to safeguard the rights of
defendants, Rule 11 strictly confines a judge’s ability to
accept a guilty plea. Proper operation of these safeguards
demands that the judge retain broad discretion to set a guilty
plea aside, at least until he has fully discharged his Rule 11
responsibilities.” (emphasis added)); see also United States v.
O’Brien, 601 F.2d 1067, 1069 (9th Cir. 1979) (“A trial court
has discretion to accept or reject a guilty plea . . . of one who
protests his innocence.”).9
Although we can find no case dealing with precisely the
same issue we confront here, where a judge rejects a plea that
meets the Rule 11(b) requirements, the D.C. Circuit has come
the closest: It found that a district court abused its discretion
by rejecting a guilty plea without regard for whether the Rule
9
In arguing that he was not required to accept Vasquez’s guilty plea, the
district judge points to the “well-settled proposition that a defendant has
no absolute right . . . to have his guilty plea accepted.” Gomez-Gomez, 822
F.2d at 1010; see also Brown, 331 F.3d at 594 (“There is no absolute right
to have a guilty plea accepted.” (internal quotation marks omitted)). We
agree, of course, that a district court has discretion to reject a guilty plea
in certain circumstances, namely when he feels the plea has failed to meet
the Rule 11(b) requirements. See pp. 3858-59 supra.
Further, courts that discuss this “well-settled proposition” often cite to
Santobello v. New York, 404 U.S. 257, 262 (1971). See, e.g., Brown, 331
F.3d at 594; Gomez-Gomez, 822 F.2d at 1010. But Santobello was decided
before 1975, when Rule 11 was amended to remove the language that
explicitly gave courts the ability to reject a guilty plea. No court seems to
have analyzed whether this “well-settled proposition” still applies post-
1975.
In any event, the Supreme Court in Santobello was reviewing a state
court decision, see 404 U.S. at 260, and therefore could only have held
that there is no constitutional right to have a guilty plea accepted. We do
not dispute this proposition; we hold only that Rule 11 as currently written
does not allow a federal district judge to reject a guilty plea that meets the
Rule 11(b) requirements. See pp. 3858-59 supra.
3868 IN RE: VASQUEZ-RAMIREZ
11(b) requirements had been met, suggesting that a plea rejec-
tion must relate to Rule 11(b)’s requirements. See United
States v. Maddox, 48 F.3d 555, 556, 560 (D.C. Cir. 1995)
(“While district courts must exercise discretion in deciding
whether to accept or reject a guilty plea, that discretion is not
unfettered. . . . In this case, the District Court should have
conducted an inquiry . . . [and] should have gone on to ensure
that all of Rule 11’s requirements were satisfied . . . . It failed
to do so, and therefore abused its discretion.”).
Remedy
Having concluded that the district court erred in refusing to
accept Vasquez’s guilty plea, we must decide whether to issue
a writ of mandamus. We consider five factors when deciding
whether to issue a writ of mandamus: (1) whether the peti-
tioner has any other means of obtaining the relief he desires;
(2) whether the petitioner will suffer harm that is not remedia-
ble on appeal; (3) whether the district court was clearly erro-
neous as a matter of law; (4) whether the district court’s error
is oft repeated, or manifests a blatant disregard of the rules;
and (5) whether the district court’s order raises new and
important issues. See Bauman v. United States Dist. Court,
557 F.2d 650, 654-55 (9th Cir. 1977). Not all have to be met
to warrant a writ of mandamus; we conduct a balancing of the
five factors. See id. at 655.
[9] For the reasons explained above, factors three and five
are easily satisfied in this case: The district judge’s decision
to reject Vasquez’s guilty plea is clearly erroneous and raises
important issues involving prosecutorial discretion and sepa-
ration of powers. Factor four is also satisfied to some degree:
Although the district judge’s error is not oft repeated, it is
contrary to the Federal Rules of Criminal Procedure. The only
two factors remaining involve whether Vasquez can obtain
adequate relief by going to trial on the section 1326 charge—
or pleading guilty to it—and then appealing his conviction.
IN RE: VASQUEZ-RAMIREZ 3869
We have already explained why this alternative remedy is
inadequate:
Substantial prejudice would result to [the defendant],
the government, and the judicial system by requiring
all to proceed through trial . . . before the district
court’s error could be remedied on direct appeal. . . .
The uncorrectable prejudice arising from the district
court’s refusal to proceed on the [lesser] charge is
evident from a consideration of the possible outcome
of a trial on the [greater] charge, were we to deny
mandamus relief. If the jury acquitted the defendant
. . . [he] would go free because he would not, under
the district court’s ruling, have pleaded guilty to the
[lesser] charge, and could not be tried on that charge.
Had the jury, instead, returned a verdict of guilt on
the [greater] charge . . . [the defendant] would have
irreparably suffered the prejudice of the additional,
and unnecessary, financial and emotional burden of
having to stand trial.
Ellis, 356 F.3d at 1210-11 (citing Brown v. Ohio, 432 U.S.
161, 169 (1977) and Arizona v. Washington, 434 U.S. 497,
503-05 (1978)). Thus, a writ of mandamus is the appropriate
remedy.
[10] Finally, Vasquez argues that the case should be reas-
signed to a different district judge. The district judge who
denied Vasquez’s guilty plea has already viewed Vasquez’s
criminal history report and has expressed strong views about
its contents. Further, the judge has told the parties that he will
not grant any motion the government may file to dismiss the
section 1326 indictment, even though he would likely have no
basis for denying such a motion. See Fed. R. Crim. P. 48(a)
(requiring the government to obtain “leave of court” before
dismissing an indictment); United States v. Garcia-
Valenzuela, 232 F.3d 1003, 1008 (9th Cir. 2000) (limiting the
court’s discretion to deny a Rule 48 motion only to situations
3870 IN RE: VASQUEZ-RAMIREZ
in which “the motion [is] clearly contrary to manifest public
interest” (internal quotation marks omitted)). Once again,
Ellis controls:
The district judge has read the presentence report
and has expressed strong views on its contents. . . .
[T]o preserve the appearance of justice, and consis-
tent with the purposes of Rule 32, we conclude reas-
signment is appropriate. . . . Therefore, on remand,
the case shall be reassigned to a different district
judge.
Ellis, 356 F.3d at 1211.
* * *
[11] A district judge retains broad discretion to sentence a
defendant to any term of imprisonment within the statutory
range set by Congress, for the crime the prosecutor has cho-
sen to pursue. See United States v. Booker, 125 S. Ct. 738,
750 (2005). But the judge oversteps his bounds when he
forces the prosecutor to pursue charges the prosecutor would
rather not, just because the judge disagrees with the sentenc-
ing range to which he would otherwise be limited. Once a
prosecutor brings charges against a defendant, Rule 11
requires the judge to accept the defendant’s guilty plea to
those charges, provided the plea meets the requirements of
Rule 11(b). It matters not that the judge feels the prosecutor’s
charging decision was too aggressive or too lenient.
The petition for mandamus is GRANTED. Respondent
shall order the case transferred to another district judge, to be
drawn at random by the clerk of the district court, and the dis-
trict judge to whom the case is transferred shall conduct fur-
ther proceedings consistent with our opinion.