United States v. Clive Wilson

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10404
Plaintiff-Appellee, D.C. No.
2:19-cr-00091-MTL-1
v.
CLIVE MILTON WILSON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Argued and Submitted December 9, 2021
San Francisco, California
Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges.
Dissent by Judge BUMATAY
Clive Wilson pleaded guilty to illegally reentering the United States as a
previously removed alien, in violation of 8 U.S.C. § 1326(a), (b)(1). At sentencing,
Wilson and the government submitted a sentence bargain plea agreement, stipulating
to a maximum sentence of twelve months. The district court rejected that agreement,
and sentenced Wilson to fifteen months in prison and three years of supervised
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
release. Wilson now appeals and argues, inter alia, that the district court did not
give sufficient reasons for rejecting his plea agreement. We have jurisdiction under
28 U.S.C. § 1291, and we vacate Wilson’s conviction and sentence and remand for
further proceedings.
Wilson argues that under In re Morgan, 506 F.3d 705 (9th Cir. 2007), the
district court erred in rejecting his plea agreement. In Morgan, we explained that
Federal Rule of Criminal Procedure 11 “clearly vests district courts with the
discretion to accept or reject plea agreements, including those that contain a
stipulated sentence term.” Id. at 709 (citing Fed. R. Crim. P. 11(c)(3)(A)). But “the
broad discretion granted by Rule 11 is not unbounded.” Id. at 710. In particular,
courts may not engage in “the categorical rejection of a sentence bargain
independent of any consideration of the specific circumstances giving rise to the
bargain.” Id. at 712; see also id. (explaining that the “categorical rejection of
sentence bargain plea agreements is error”). Instead, “district courts must consider
individually every sentence bargain presented to them and must set forth, on the
record, the court’s reasons in light of the specific circumstances of the case for
rejecting the bargain.” Id.Based on our review of the sentencing transcript, some of the district court’s
statements could be construed as rejecting Wilson’s plea agreement at least in part
because Wilson and the government stipulated to a below-Guidelines sentence. For
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example, the district court in rejecting the plea agreement stated that “the plea
agreement should have encompassed the sentencing range for this offense level and
criminal history category,” and that the parties agreeing in a plea agreement “to
deviate downward or vary downward from what Mr. Wilson would be expected to
get based on this,” including based on his glaucoma, was not “a reason why you
should tie my hand as the judge.” To the extent the district court imposed a
categorical rule rejecting plea agreements in those circumstances, that would have
been error under Morgan, as the government acknowledged at oral argument.
The government argues that the better interpretation of the district court’s
rejection of the plea agreement is that the court reasoned, in light of Wilson’s
particular crime and the circumstances relating to his glaucoma, that the stipulated
sentence was too lenient and not in the public interest. Although the court may have
intended to express that sentiment at sentencing, on this record it is not clear whether
the court rejected the plea agreement for reasons unrelated to Wilson’s specific
circumstances.1 See Morgan, 506 F.3d at 712. For that reason, we vacate Wilson’s
conviction and sentence and remand for further proceedings consistent with this
decision. See United States v. Smith, 60 F.3d 595, 600 (9th Cir. 1995) (explaining
1
Our fine dissenting colleague is thus incorrect in stating “the district court gave
more than sufficient reason for this court to defer to its ruling.” Neither the
sentencing transcript considered as a whole nor a faithful application of Morgan
readily permits that conclusion.
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that errors under Federal Rule of Criminal Procedure 11 require vacatur of a
conviction unless the error was minor or technical).2
VACATED and REMANDED.
2
Because we vacate Wilson’s conviction and remand for further proceedings, we
do not reach the issue of whether the district court properly imposed a term of
supervised release. See U.S.S.G. § 5D1.1(c) & cmt. n.5; Valdavinos-Torres, 704
F.3d 679, 693 (9th Cir. 2012). The district court may consider supervised release as
part of any resentencing.
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FILED
DEC 27 2021
United States v. Wilson, No. 19-10404
MOLLY C. DWYER, CLERK
Bumatay, J., dissenting: U.S. COURT OF APPEALS
It is a well-established precedent of our court that “we assume the district
judge knew the law.” United States v. Diaz, 884 F.3d 911, 916 (9th Cir. 2018). In
this case, we ignore that assumption and vacate a conviction. And we do so for no
good reason.
Under Federal Rule of Criminal Procedure 11, district courts enjoy “broad
discretion” to accept or reject plea agreements. In re Morgan, 506 F.3d 705, 710
(9th Cir. 2007). As with most matters of discretion, that authority is “not
unbounded.” Id. We have said that district courts may not adopt “categorical rules
to reject sentence bargains.” Id. at 711. So a district court may not reject a plea
agreement as being “unwise as a matter of policy.” Id. at 708. Nor may a court
reject a plea “in a vacuum, detached from the particular facts and circumstances of
the case before it.” Id. at 711. But so long as the district court provides
“individualized reasons for rejecting the agreement, based on the specific facts and
circumstances presented,” this court will show considerable deference to its
decision. Id.In this case, the district court gave more than sufficient reason for this court
to defer to its ruling. First, the probation office strenuously objected to the
stipulated plea agreement, noting that the instant offense was Wilson’s fourth
immigration conviction and that the stipulated sentence would not appropriately
1
deter him from further criminal activity. The district court expressly overruled
objections to the presentence report’s conclusion.
Second, the district court later articulated that it was rejecting the stipulated
plea because it “would have been more appropriate for the parties to file a joint
request for a variance or a deviation or to ask for a lower sentenc[e]” based on
Wilson’s “glaucoma situation,” which the court noted was “tragic.” The district
court also expressed sympathy for Wilson’s medical condition but believed that his
medical situation alone was not sufficient reason to “tie my hands as the judge.”
Instead, the district court reasoned that such mitigating factors “should be
presented at a [sentencing] hearing[,] . . . and that’s why I ultimately rejected the
agreement.” In other words, the district court rejected the plea agreement because
it didn’t find Wilson’s medical situation warranted the stipulated plea. This is
precisely the type of judgment call we rely on district courts to make.
Nowhere did the district court hold that it was rejecting the plea agreement
because “Wilson and the government stipulated to a below-Guidelines sentence,”
as the majority contends. Indeed, the district court’s reasoning for rejecting the
plea agreement is a far cry from In re Morgan, where we held the district court
abused its discretion because it summarily rejected the stipulated plea as
“unreasonable as a matter of law, not necessarily unreasonable as a matter of fact.”
2
Id. at 708. Given the specific facts cited by the district court, its decision to the
reject the plea agreement was entitled to deference by this court.
For these reasons, I respectfully dissent.
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