Opinion
No. 06-10244, 06-10254. D.C. No. CR-96-00094-MHP.
Argued and Submitted December 8, 2006 San Francisco, California.
March 19, 2007.
Appeal from the United States District Court for the Northern District of California Marilyn H. Patel, District Judge, Presiding.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Chhayarith Reth appeals from the sentences imposed on him following his guilty pleas made pursuant to a plea agreement. He contends that the government breached the terms of the plea agreement by failing to file a motion for a downward departure under 18 U.S.C. § 3553, and that the District Court abused its discretion in denying his motion to compel the government to file such a motion. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons given below, we will vacate the sentences and remand for resentencing with instructions to order specific performance of the plea agreement.
We review a district court's order refusing to compel the government's specific performance of a plea agreement for abuse of discretion. See United States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir. 2006). There is a conflict in our case law concerning the appropriate standard of review — clear error or de novo — to be applied to a district court's interpretation of a plea agreement. See id. at 1227-28 (noting, but declining to resolve, the standard of review conflict).
"Plea agreements are contractual by nature and are measured by contract law standards." United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 2002); United States v. Trapp, 257 F.3d 1053, 1056 (9th Cir. 2001). We "enforce the literal terms of the plea agreement, but construe ambiguities in favor of the defendant, ordinarily placing on the government responsibility for any lack of clarity." Franco-Lopez, 312 F.3d at 989 (internal quotation marks and citations omitted). In addition, "[b]ecause the defendant in a plea agreement relinquishes his constitutional right to a trial, the integrity of our judicial system requires that the government strictly comply with its obligations under a plea agreement." United States v. Allen, 434 F.3d 1166, 1174 (9th Cir. 2006) (internal quotation marks, citations, and brackets omitted); Santobello v. New York, 404 U.S. 257, 262 (1971) ("[W]hen 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.").
Enforcing the literal terms of the plea agreement and construing any ambiguities in Reth's favor, we hold that the government materially breached the agreement when it filed a motion for downward departure under § 5K1.1 of the United States Sentencing Guidelines, claiming that "[Reth] has substantially fulfilled his obligations to the government and is entitled to a sentence reduction," but failed to file a motion for a downward departure under § 3553. Its failure to file a § 3553 motion violated the government's stipulation in the plea agreement that "if, in its sole and exclusive judgment, it decides that [Reth] ha[s] cooperated fully and truthfully, provided substantial assistance to law enforcement authorities, and otherwise complied fully with this Agreement, it will file with the Court a motion under § 5K1.1 of the Sentencing Guidelines and 18 U.S.C. [§] 3553." (emphasis added). We read this stipulation to mean that the government was required to file both a § 5K1.1 motion and a § 3553 motion upon a determination in its discretion that Reth had fulfilled his contractual obligations, not that the government could cherry-pick which of the two motions to file.
We reject the government's contention that its filing of the § 5K1.1 motion did not trigger a contractual obligation to file a § 3553 motion because it filed the § 5K1.1 motion outside of the terms of the plea agreement. The plea agreement provided that the agreement "sets forth all the terms of the plea bargain" and that any modification must be in writing. Neither the plea agreement, nor any written modification thereto, contemplated the filing of a § 5K1.1 motion except as provided under the terms set forth in the plea agreement. Indeed, even the government concedes that it recommended a sentence of only twenty-four years in the § 5K1.1 motion because that was the minimum sentence that the parties could request under the terms of the plea agreement. At a minimum, there is a lack of clarity in the plea agreement as to whether the government was permitted to file an extra-contractual § 5K1.1 motion, and we place responsibility for that lack of clarity on the government. See Franco-Lopez, 312 F.3d at 989.
Having filed a § 5K1.1 motion in accordance with the terms of the plea agreement, the government cannot now free itself of its concomitant obligation to file a § 3553 motion. Rather, it must "strictly comply with its obligations under a plea agreement." Allen, 434 F.3d at 1174 (internal quotation marks omitted). Its failure to do so constituted a breach of the plea agreement.
We also reject the government's argument that Reth received the benefit of his bargain despite the government's failure to file a § 3553 motion. As a result of the government's failure to file the motion, the District Court did not have the contemplated "authority to impose a sentence below a level established by statute as a minimum sentence." 18 U.S.C. § 3553(e). Thus, Reth did not receive the benefit of his bargain.
In summary, we conclude that, under either a de novo or clear error standard of review, the District Court erred in finding that the government did not breach the plea agreement. Because the government breached the agreement, we also conclude that the District Court abused its discretion in denying Reth's motion to compel the government to file a § 3553 motion.
As a result of the foregoing conclusions, we will vacate the sentences and remand to a different judge for resentencing with instructions to grant Reth's motion to compel the government to file a § 3553 motion. See United States v. Mondragon, 228 F.3d 978, 981 (9th Cir. 2000) ("Considering the government's breach of the plea agreement, we vacate appellant's sentence and remand for resentencing. As we are required to do, we remand for resentencing before a different judge."). "'We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutors, not on the sentencing judge.'" Id. (quoting Santobello, 404 U.S. at 263).
VACATED AND REMANDED.