                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 26 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 11-10601

              Plaintiff - Appellee,              D.C. No. 3:95-cr-00319-MHP-7

  v.
                                                 MEMORANDUM*
WALTER PIERRE RAUSINI,

              Defendant - Appellant.


                  Appeal from the United States District Court
                      for the Northern District of California
                 Marilyn H. Patel, Senior District Judge, Presiding

                       Argued and Submitted April 15, 2013
                            San Francisco, California

Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.


       Walter Pierre Rausini appeals the district court’s imposition of sentence

following the government’s motion for sentence reduction pursuant to Federal

Rule of Criminal Procedure 35. We vacate and remand.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The government breached its post-conviction agreement with the defendant

by submitting to the district court a letter from a co-defendant’s family member

that argued for no sentence reduction. The letter did not fall under the Crime

Victims’ Rights Act, as asserted by the government before the district court,

because the author of the letter was not a family member of one of the victims. See

18 U.S.C. § 3771(e) (defining crime victims as “legal guardians of the crime victim

or the representatives of the crime victim’s estate, family members, or any other

persons appointed as suitable by the court”). Nor did the letter fall within the

government’s promise in the agreement to elicit the views of the victims’ families

because the author was not part of either family.

      The government does not contest that precedent regarding the breach of plea

agreements applies to Rausini’s claim that the government breached his

cooperation agreement. When the defendant’s 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.” Santobello v. New

York, 404 U.S. 257, 262 (1971). “The integrity of our judicial system requires that

the government strictly comply with its obligations under a plea agreement.”

United States v. Mondragon, 228 F.3d 978, 981 (9th Cir. 2000). When the

government obligated itself to file a Rule 35 motion, it was precluded from


                                          2
submitting evidence effectively opposing its own compelled motion by proxy. See

United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999) (holding that

prosecutor’s introduction of statement from victim of defendant’s prior crime was

attempt to influence court to impose sentence longer than prosecutor’s

recommendation). As we held in United States v. Franco-Lopez, 312 F.3d 984

(9th Cir. 2002), the literal terms of an agreement may be followed, and yet a breach

will still occur if the government acts in such a way as to render its promise

“illusory.” Id. at 988-91. That the government electronically filed the letter with a

statement that “the United States Attorney’s Office hereby submits this letter” in

anticipation of Rausini’s sentencing hearing increased the risk that the district court

could view the letter as a proxy recommendation against reducing Rausini’s

sentence.

      The district court properly excluded the letter from its consideration.

However, harmless error analysis does not apply to a governmental breach of a

plea agreement, so the court’s statement that it would not consider the letter is

insufficient to cure the breach. See Mondragon, 228 F.3d at 981 (“It is of no

consequence that the district judge did not construe the prosecutor’s statements as a

‘comment on the sentence’ or a ‘recommendation with respect to sentencing,’ or

that the statements may have had no effect upon the sentence. The harmless error


                                          3
rule does not apply when the government breaches a plea agreement.”).

Moreover, “[i]t does not matter that a breach is inadvertent, or that the statements

or arguments the prosecutor makes in breach of the agreement do not influence the

sentencing judge.” United States v. Alcala-Sanchez, 666 F.3d 571, 575 (9th Cir.

2012) (internal quotation marks and citations omitted). In addition, the transcript

of the hearing reflects that the contents of the letter, including the recommendation

that the sentence not be reduced, were discussed, at least in part.

      Thus, because of the government’s breach, we must vacate the sentence and

remand for a new hearing on the Rule 35 motion. We need not, and do not, reach

any other issue raised by the parties on appeal.

      VACATED AND REMANDED.




                                          4
                                                                                   FILED
United States v. Rausini, No. 11-10601                                             APR 26 2013

                                                                              MOLLY C. DWYER, CLERK
SILVERMAN, Circuit Judge, dissenting:                                          U.S. COURT OF APPEALS




      I respectfully dissent.



      I agree with the district court that there was no breach of the November 8,

2000 agreement. The government did nothing more than forward to the judge a

letter specifically addressed to the judge that should have been sent to the judge

directly but was sent to the U.S. Attorney’s Office instead. The government did

not solicit the letter, argue that the letter was relevant, should be taken into

account, or had any significance whatsoever. It simply acted as a conduit.

Nothing in the agreement prohibited this, and government counsel can hardly be

faulted for failing to hide from the judge a communiqué intended for her but

misdirected to them.
