Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Dec. 7, 1998.
Appeal from the United States District Court for the District of Guam John C. Coughenour, District Judge, Presiding.
Before SCHROEDER, REINHARDT, and HAWKINS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Harland Torres Wolford ("Wolford") appeals the district court's denial of his motion to dismiss his indictment. We REVERSE.
Wolford pled guilty in 1993 to a charge of possessing stolen firearms in violation of 18 U.S.C. § 922(j). As part of the plea agreement, the government promised not to prosecute him for any other known offenses. Two years later, the Ninth Circuit ruled that section 922(j) requires proof that the firearms were stolen before entering interstate commerce. See United States v. Cruz, 50 F.3d 714 (9th Cir.1995). The government offered no such proof at Wolford's trial and now concedes that Wolford's conduct was not criminal under the Cruz interpretation of section 922(j). After Cruz, the government successfully moved to vacate Wolford's conviction and sentence and indicted him under 18 U.S.C. § 842(h), which criminalizes possession of stolen explosives, but contains no interstate commerce requirement.
Wolford moved to set aside the second indictment on double jeopardy grounds and on the grounds that the government violated the plea agreement's grant of immunity for "other known offenses." The district court denied his motion. On appeal, we find that the plea agreement provides sufficient cause to reverse and therefore do not reach the question of double jeopardy.
At argument, the government conceded that it could charge Wolford under section 842(h) only if the vacating of Wolford's section 922(j) conviction somehow voided the entire plea agreement. United States v. Sandoval-Lopez, 122 F.3d 797, 800-02 (9th Cir.1997), made clear that the government is not released from the terms of a plea agreement when the defendant successfully challenges a conviction in circumstances like Wolford's. The same rule must apply when it is the government that moves to set aside the defendant's conviction. Thus, there remained a valid plea agreement that was breached when the government charged Wolford under section 842(h).
REVERSED.