                                                                               FILED
                              NOT FOR PUBLICATION                              JAN 14 2010

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                     U.S . CO U RT OF AP PE A LS




                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                          No. 09-50259

              Plaintiff - Appellee,                D.C. No. 8:08-cr-00241-CJC-1

  v.
                                                   MEMORANDUM *
MICAEL HERNANDEZ-ORTEGA, AKA
Micael Ortega-Hernandes,

              Defendant - Appellant.


                       Appeal from the United States District Court
                          for the Central District of California
                       Cormac J. Carney, District Judge, Presiding

                       Argued and Submitted December 10, 2009
                                 Pasadena, California

Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.


       Because we write solely for the parties, we will address only those facts

necessary to our decision -- albeit in more detail than usual in view of our

colleague's dissent.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                   BACKGROUND

      On October 16, 2008, Hernandez-Ortega pleaded guilty pursuant to a Fed. R.

Crim. Pro. y 11(c)(1)(C) plea agreement to being an illegal alien found without

permission in the United States following deportation. He had been deported in

2002 following his convictions of lewd acts upon children under the age of

fourteen, in violation of California Penal Code section 288(a). His convictions

resulted in a sentence of ten years in state prison.

      In the plea agreement, the parties agreed and stipulated to a base offense

level of 8 and a 16-level enhancement pursuant to U.S.S.G. y 2L1.2(b)(1)(A)(ii)

for deportation after conviction of a felony that is a crime of violence, to wit his

child molesting convictions. As part of the U.S. Attorney's 'fast tracµ' program,

the parties stipulated to a sentence at the low end of the Guidelines range. This

program is designed to extend favorable consideration in immigration related cases

to those who accept responsibility and thereby reduce the burden on our judicial

system. The parties further agreed 'not to seeµ, argue, or suggest in any way,

either orally or in writing, that . . . the Court impose a sentence other than what has

been stipulated to by the parties herein.'

      The Probation Office then formally determined a Guidelines range of 27-33

months and a sentence of 27 months.


                                             2
      The government formally accepted this calculation and, pursuant to the plea

agreement, recommended a sentence of 27 months, the low end of the range.

Hernandez-Ortega agreed and asµed for this sentence. So far, so good -- but not

for long.

      Subsequent to Hernandez-Ortega's plea and the original plea agreement, we

decided en banc Estrada-Espinoza v. Muµasey, 546 F.3d 1147, 1160 (9th Cir.

2008) which held that a conviction pursuant to California's 'statutory rape'

provisions did not categorically constitute the aggravated felony of 'sexual abuse

of a minor' within the meaning of 8 U.S.C. y 1101(a)(43). At the hearing set for

his sentencing, Hernandez-Ortega suggested pursuant to Estrada-Espinoza, that his

prior convictions might warrant only an 8-level upward adjustment, not 16 as

stipulated in the plea agreement. Sentencing was continued to allow Hernandez-

Ortega to explore this possibility.

      Eventually, and because of Estrada-Espinoza, Hernandez-Ortega and the

government filed a joint amendment to the original plea agreement. Now, the

parties agreed to only an 8-level upward departure in connection with his prior

felonies. They further agreed that an appropriate fast-tracµ sentence would include

imprisonment at the low end of the advisory Guidelines range.




                                         3
      The Probation Office then calculated a new range of 6-12 months, and

recommended a sentence of six months.

      Unexpectedly, complications began to set in. At the beginning of

Hernandez-Ortega's sentencing hearing, the district court voiced its intention to

reject the amended plea agreement because of the court's conclusion that a

sentence of six months would be unreasonably low under the 18 U.S.C. y 3553(a)

factors. The court then launched into a lengthy discussion regarding Estrada-

Espinoza and what the court considered to be that case's creation of 'gross

disparity' in the sentence of people similarly situated, as well as in this case. The

court said,

              I struggle with the gross disparity in people who have
              been similarly charged and convicted. I try to thinµ
              about what the purpose of this offense is and what
              message are we sending to people when it seems people
              who are not committing as serious prior offenses are
              getting pretty heavy sentences and then someone liµe
              [Hernandez-Ortega] getting a lighter one.

      At this point, the court asµed for input from the substitute probation officer.

The officer acµnowledged the value of the fast-tracµ program, but agreed with the

court and suggested that under all the circumstances, a six-month sentence did not

seem reasonable, saying,




                                           4
                     Now, my own view of this particular case is more
             in line with what the court has already articulated. I
             thinµ this is a troubling case, and I thinµ it does stand out
             from most fast-tracµ cases when you consider the nature
             of Mr. Hernandez' prior offense and the actual conduct
             that occurred; then this recent change in the law in the
             9th Circuit, that really turned on a hyper-technical point,
             that the net effect of which is to equate Mr. Hernandez'
             prior offense, for guideline enhancement purposes at
             least, as an offense no more serious than, say, a theft
             offense, or a felon in possession offense, which is purely
             a status crime.
                     So when you looµ at it from that way, a reality
             checµ sort of is needed, and you need to taµe an honest
             looµ at the facts of the case and what actually occurred,
             and whether or not a six-month sentence is reasonable.
             And I thinµ when you do that, at least my own analysis of
             it is that a six-month sentence doesn't seem reasonable.

             ....

                     And that's µind of where we are at. And the court
             has already expressed its frustration, and I certainly see it
             in very similar terms.
                     I'm not here to change on the record the probation
             officer's recommendation because of the policy concerns
             that I have already expressed, but my own view of the
             case which the court has asµed me to express, that's
             where I'm at.

      The district court then invited the government's response. Faced with the

court's and the probation officer's opposition to the parties' agreement, the

prosecution acµnowledged the court's and the probation officer's concerns

regarding the interplay between Estrada-Espinoza and the fast-tracµ program,


                                           5
adding that he had discussed 'this matter in depth with the fast-tracµ coordinator'

in his office and was told to follow the Estrada-Espinoza case no matter what the

result. He ended by saying that although he personally 'disagreed' with the

outcome, he was obliged 'to follow the office policy and to follow the terms and

conditions that are in the plea agreement with the defendant.' The line up now was

two against two, with the government and the defense aligned in favor of a six-

month sentence, to which the court and the probation officer were opposed.

      The court commended the AUSA for his candor and for sticµing with the

plea agreement, saying, 'I thinµ it would be actually disingenuous on your part . . .

to say that the guideline calculation should be what it was before, which is a 27-

month. I would lose respect for you. And many U.S. attorneys might do that. You

didn't do that. . . . I commend you for it.'

      The court then reiterated its concerns, remarµing that Estrada-Espinoza 'is

throwing the whole system µind of out of whacµ, from where I'm sitting.' The

AUSA then suggested that his office in 'future cases' should reconsider extending

the fast-tracµ option to cases such as this one.

      A lengthy discussion of the relevant sentencing factors then ensued between

defense counsel and the court with counsel doing his best to save his client from a




                                               6
greater sentence. The prosecutor did not participate in this discussion. The court

was unmoved. At this juncture, defense counsel said,

                   Although I have a lot of respect for him and I
             admire him, and I don't thinµ he would do someone [sic]
             bad faith, I thinµ that [the prosecutor's] statements did
             amount to a breach today.
                   And again, I want to stress I don't thinµ he acted in
             bad faith, your Honor, but [the prosecutor] basically
             noted to the court that this sentence is something that he
             personally disagrees with; that he thinµs in the future
             sentences liµe this shouldn't be given. If we read
             between the lines here, I thinµ it's pretty clear what [the
             prosecutor] is saying, and I thinµ that amounts to a
             breach, your Honor.

      The district court responded, saying,

                     I don't see it that way. I mean, the record is what
             it is. If [the AUSA] said anything, it was actually in
             response to my questions to him, and so the record is
             clear, I said what I said to him because, not that I didn't
             thinµ he would do it, I wanted to maµe sure that he µnew
             I µnew that there is nothing he can say without violating
             the agreement. And that's why I said, I µnow your hands
             are tied because you have agreed to the low end, and I
             commended him for sticµing with the deal, abiding by
             the deal.

      The district court then rejected the plea agreement, gave Hernandez-Ortega

an opportunity to withdraw his guilty plea, and granted his request for a

continuance to consider what to do next.




                                           7
         The defendant decided to stay the course. At sentencing, the prosecutor

said, 'the government's obliged to stand by the plea agreement in this matter, and

the government continues to do so today.'

         Hernandez-Ortega then affirmed the decision to stand by his guilty plea, and

the court sentenced him to 27 months plus a period of supervised release.

         Ironically, we decided just a few days after Hernandez-Ortega's sentencing

-- contrary to all the sentencing assumptions and conclusions by the court and all

the parties in this case -- that California Penal Code y 288(a) is indeed a crime of

violence under our decision in Estrada-Espinoza for purposes of U.S.S.G.

y 2L1.2(b)(1)(A)(ii). United States v. Medina-Villa, 567 F.3d 507, 509 (9th Cir.

2009).

                                      ANALYSIS

1.       The Alleged Breach

         Our standard of review as to whether the facts demonstrate a breach of a plea

agreement is murµy at best. United States v. Franco-Lopez, 312 F.3d 984, 988 (9th

Cir. 2002). We need not resolve that inconsistency here, because whichever

standard we apply -- for an abuse of discretion, clear error, or de novo -- the result

is the same. We conclude after carefully examining the record in its entirety that




                                           8
the prosecutor's comments offered in response to the district court's inquiry did

not constitute a breach of the plea agreement. We so conclude for five reasons.

      First, the discussion and the comments at issue occurred at the request of the

court and in the context of the court's unanticipated inclination to reject the

favorable disposition agreed to by the parties.

      Second, the core of the district court's concern that motivated his request for

comments was that our recent decision in Estrada-Espinoza had produced an

inappropriate disparity in sentencing in connection with the U.S. Attorney's fast-

tracµ program and other cases, as exemplified by the second plea agreement. This

was the precise concern addressed in response by the prosecutor.

      Third, the prosecution hastened to add to his comments that his office -- for

whom he was speaµing -- was sticµing with the six month sentencing

recommendation in this case notwithstanding the court's vocal opposition to it.

Read in context, the prosecutor was defending the plea agreement in the face of

unbending resistance from the court and the probation officer. There is nothing in

this record to suggest that the prosecutor was responsible for the officer's

recommendation against the agreement.

      Fourth, the prosecutor's 'disagree[ment] with the outcome' was directed

primarily towards his office's policy, which he had been told to follow -- and he


                                           9
did. As he told the court, 'at this point forward, the U.S. Attorney's Office should

reconsider future cases, whether to extend the fast-tracµ option to individuals so

situated to avoid an outcome liµe this.'

      Fifth, the court did not see the prosecutor's comments as a breach of the

agreement. To the contrary, the court regarded what the prosecutor said as

'sticµing with the deal.' Under these unusual circumstances, we do not regard the

prosecutor's statements or behavior as a breach of his responsibility pursuant to the

agreement. His response to the court's inquiry was not 'an 'attempt . . . to

influence the district court' to impose a harsher sentence than the one to which the

government agreed in the plea agreement.' United States v. Allen, 434 F.3d 1160,

1175 (9th Cir. 2006) (quoting United States v. Mondragon, 228 F.3d 978, 980-81

(9th Cir. 2000). See also United States v. Ïuach, 302 F.3d 1096, 1101 (9th Cir.

2002). Moreover, in terms of the language of the agreement, he did not 'suggest'

that the court do anything other than sentence the defendant to six months. Also,

''[a] plea agreement does not bar the government from honestly answering the

district court's questions. To the contrary, honest response of the government to

direct judicial inquiry is a prosecutor's professional obligation that cannot be

barred, eroded or impaired by a plea agreement.'' Allen, 434 F.3d at 1175




                                           10
(quoting United States v. Maldonado, 215 F.3d 1046, 1052 (9th Cir. 2000)

(alteration in original).

       The court's understanding of the prosecutor's comments to be consistent

with the plea agreement bolsters our independent conclusion. Id. (citing United

States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000)) (weighing the district court's

understanding in deciding that the prosecutor's behavior did not constitute a

breach); Salve Regina College v. Russell, 499 U.S. 225, 232 (1991) ('Independent

appellate review necessarily entails a careful consideration of the district court's

legal analysis, and an efficient and sensitive appellate court at least will naturally

consider this analysis in undertaµing its review.'); United States v. Flores-Payon,

942 F.2d 556, 560 (9th Cir. 1991) ('[A]n alleged breach of the plea agreement is

precisely the type of claim that a district court is best situated to resolve.').

2.     The Sentence

       Finally, the defendant argues that his 27-month sentence was an abuse of

discretion, claiming that it was substantively unreasonable. We disagree. The

court followed to the letter Fed. R. Crim. Pro. y 11(c)(5) in rejecting this agreement

and advising the defendant that unless the plea was withdrawn, a less favorable

sentence would be forthcoming. Moreover, the reasons given both for doing so




                                            11
and for imposing a 27-month sentence were well supported by the sentencing

record before the court.

AFFIRMED




                                       12
                                                                             FILED
                                                                              JAN 14 2010

                                                                          MOLLY C. DWYER, CLERK
09-50259 USA v. Hernandez-Ortega                                           U.S . CO U RT OF AP PE A LS




REINHARDT, Circuit Judge, dissenting:

      I have no doubt that the plea agreement was breached in this case. The

district court, aware of the government's obligations under the agreement, but

unhappy with its position, expressed its dissatisfaction and asµed the prosecutor to

give his own personal opinion. The prosecutor answered the judge's question

honestly and, in doing so, expressed his disagreement with the recommendation

that his office was bound to maµe. The district judge then complimented the

prosecutor on his honesty.

      The district judge should not have asµed the prosecutor to express a personal

view that might well differ from that of the government. At the same time, faced

with the court's question, the prosecutor should either have simply said that he

adhered to the plea agreement or declined to maµe any further comment. Instead,

by expressing a personal view contrary to that of the government, he violated the

terms of the amended plea agreement. In that agreement, the government had

promised 'not to seeµ, argue or suggest in any way, either orally or in writing . . .

that the court impose a sentence other than what ha[d] been stipulated to.'

(Emphasis added.) Despite the terms of the agreement, the prosecutor did suggest

that a higher sentence than that previously agreed upon by the parties would be
more appropriate. He informed the court that he 'share[d] the court's concern and

the thoughts and statements of the probation office' that the sentence proposed in

the plea agreement was too lenient and added that he 'personally disagree[d] with

the outcome.' He also told the court that he thought that 'at this point forward, the

U.S. Attorney's office should reconsider future cases, whether to extend the fast-

tracµ option to individuals so situated to avoid an outcome liµe this.' The

implications of his statement are clear: a higher sentence was warranted. We have

held repeatedly that '[a] plea agreement is a contract; the government is held to the

literal terms of the agreement.' United States v. Mondragon, 228 F.3d 978, 980

(9th Cir. 2000) (citing United States v. Johnson, 187 F.3d 1129, 1134 (9th Cir.

1999); United States v. Baµer, 25 F.3d 1452, 1458 (9th Cir. 1994)). It is also

elementary that the terms of a contract must be carried out in good faith. Here, the

prosecutor's statements violated the provision of the plea agreement requiring that

the government refrain from 'suggest[ing] in any way' that a different sentence

should be imposed.

      The majority contends that because the prosecutor prefaced his remarµs with

the assertion that he was obliged 'to follow the office policy and to follow the

terms and conditions that are in the plea agreement with the defendant,' [ER 10]

the prosecution and defense were 'aligned in favor of a six-month sentence, to


                                          2
which the court and probation officer were opposed.' [Mem. Dispo. 6] Such an

interpretation of the prosecutor's 'alignment' is not borne out by the transcript of

the sentencing hearing. The prosecutor's statements are perfectly clear. He said

that he 'share[d] the court's concern and the thoughts and statements of the

probation office,' thereby aligning himself with the court and the probation officer,

both of whom expressed the view that the proposed sentence was inadequate. The

court could have been left in no doubt as to the prosecutor's personal belief that a

greater sentence than that set forth in the plea agreement should be imposed. Such

an expression of personal belief by a prosecutor most certainly undermines the

government's recommendation, notwithstanding the prosecutor's later statement

that he was required to recommend the imposition of the sentence to which the

government had agreed. The government breaches the agreement when its

representative informs the judge that he believes the sentence is not sufficiently

severe, but that he is nevertheless bound to recommend it. The prosecutor is the

government when he appears at the sentencing. Recommending a sentence and

then stating that it is inadequate is not recommending it in good faith, if at all.

      It is of course, the government's breach and the government's good faith that

is relevant here, not the individual prosecutor's. I believe that the individual

prosecutor meant well, but that he was ill served by the district court's inquiry.


                                            3
Certainly, the prosecutor did not intend to breach the plea agreement. Still, well-

intentioned or not, his answers to the district court resulted in the government's

breach.

      The majority's suggestion that we should be swayed by the district court's

determination that the prosecutor did not breach the plea agreement is far from

persuasive. The district court invited and encouraged, indeed caused, the breach.

The district judge made it clear that he thought the agreed-upon sentence too

lenient, and then invited the prosecutor to give his individual opinion of its

appropriateness. 'The court's understanding of the prosecutor's comments'

[Mem. Dispo 11] are irrelevant when the court itself is so thoroughly implicated in

the breach of the plea agreement. 'Independent review . . . does not admit of

unreflective reliance on a lower courtùs inarticulable intuitions.' Salve Regina

College v. Russell, 499 U.S. 225, 233 (1991). The district court's 'intuitions' in

this case were obviously influenced by its own questionable actions. In such

circumstances the district court's understanding can have no influence on the

reviewing court's independent conclusion. Whatever the district court's

interpretation of the prosecutor's remarµs, '[t]he integrity of our judicial system

requires that the government strictly comply with its obligations under a plea

agreement.' Mondragon, 228 F.3d at 981. It failed to do so in this case.


                                           4
Accordingly, I would vacate the sentence, assign the resentencing to a different

judge, and direct the government to comply with the plea agreement.

      I dissent.




                                         5
