                                                                            FILED
                           NOT FOR PUBLICATION                              APR 01 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50168

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00764-JAK-1

  v.
                                                 MEMORANDUM*
ALEJANDRO EFRAIN HERNANDEZ,
AKA Alejandro Hernandez, AKA Lisa,
AKA Jessica Rodriguez, AKA Sergio,
AKA Susie,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                      Argued and Submitted October 21, 2015
                               Pasadena, California

Before: RAWLINSON and NGUYEN, Circuit Judges and PONSOR,** Senior
District Judge.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Michael A. Ponsor, Senior District Judge for the U.S.
District Court for Massachusetts, sitting by designation.

                                          1
      Alejandro Hernandez appeals his sentence of 180 months’ imprisonment for

violating 18 U.S.C. § 2422(b), enticing a minor to engage in sexual activity.

Hernandez asserts that the government breached the plea agreement by arguing for

a sentence above the Guidelines Sentencing Range of 108-135 months agreed upon

by the parties. We review for plain error because Hernandez failed to object in

district court. See United States v. Flores, 802 F.3d 1028, 1034 (9th Cir. 2015).1



      1. Under plain error review, and considering the record as a whole, the

government did not breach the plea agreement.2 See United States v. Ellis, 641

F.3d 411, 417-21 (9th Cir. 2011). Both parties committed in the plea agreement

“not to argue that any specific offense characteristics, adjustments, or departures be

imposed” other than those listed in the plea agreement. The parties also agreed

that “taking into account the factors listed in 18 U.S.C. § 3553(a)(1)-(7) . . . an

appropriate disposition of this case is that the court impose a sentence between 10

years and 15 years’ imprisonment . . .”3 Although the government used the term


      1
          The dissent’s analysis is more akin to de novo review.
      2
        Rather than considering the record as a whole, as we are bound to do, our
colleague in dissent dissects the record piecemeal. See Dissenting Opinion, pp. 1-
2.
      3
          Our colleague in dissent totally ignores this portion of the plea agreement.

                                            2
“departure” twice in its fifteen-page sentencing memorandum, it later explained to

the court that using the term “departure” was a mistake, and it was actually arguing

for imposition of a 15-year sentence under § 3553(a).4 The district court

subsequently explained to the parties that it arrived at Hernandez’s fifteen-year

sentence by applying the § 3553(a) factors. Indeed, Hernandez never asserted any

“breach” of the plea agreement when the government requested an upward

variance under the § 3553(a) factors in its sentencing memorandum.



      2. The district court did not modify Hernandez’s plea agreement in open

court. See United States v. Harris, 628 F.3d 1203, 1207 (9th Cir. 2011)

(recognizing that a plea agreement is modified when there is a “deviat[ion] from

the clear text” of the agreement). The district court did not “deviate[] from the

clear text” of the plea agreement. Id. Nor did the parties express any belief other

than that the Guidelines Sentencing Range was calculated as the “starting point”

for determining the appropriate sentence. United States v. Carty, 520 F.3d 984,

991 (9th Cir. 2008) (en banc).




      4
        It was within the district court’s discretion to accept counsel’s explanation.
See Ellis, 641 F.3d at 418.

                                           3
      3. Because there was no breach or modification of Hernandez’s plea

agreement, the agreement is enforceable. See United States v. Bibler, 495 F.3d

621, 624 (9th Cir. 2007) (setting forth exceptions to enforcement of appeal

waiver). The appeal waiver in the plea agreement requires dismissal of

Hernandez’s appeal. See Harris, 628 F.3d at 1207.5



      APPEAL DISMISSED.




      5
       We decline our dissenting colleague’s invitation to adopt non-binding
precedent from the Fourth Circuit.

                                         4
                                                                                         FILED
United States of America v. Alejandro Efrain Hernandez, No. 14-50168                      APR 01 2016

PONSOR, Senior District Judge, dissenting:                                           MOLLY C. DWYER, CLERK
                                                                                       U.S. COURT OF APPEALS


       The government in this case perpetrated at least two serious violations of Hernandez’s

rights, one at his plea colloquy and one at his sentencing. These, in my view, require remand.

       First, at the plea colloquy, the government explicitly ratified critical misinformation the

judge gave Hernandez regarding his potential maximum sentence. Government counsel agreed

with the court’s erroneous advice that Hernandez would be permitted to withdraw his plea,

pursuant to Fed. R. Crim. P. 11(c)(5)(B), if he received a sentence above a 135 months. In fact,

he faced, and ultimately received, a 180-month prison term without any opportunity to withdraw

his plea. Second, at the sentencing, the government violated the promise it made in the plea

agreement not to argue for a term of imprisonment above the 108-to-135-month sentencing

guideline range, by urging the district court to impose a term of 180 months.

       On the first point, the transcript of the plea colloquy could hardly be clearer. The district

judge addressed Hernandez as follows:

                  You and the government have entered into what we sometimes call a “binding
               plea agreement.” In the agreement, you and the government have agreed to a
               specific sentence or a specific sentencing range. I believe that’s at page 19 of the
               agreement. And that the sentencing range is between 108 and 135 months.
                  Is that correct, Mr. Geragos?

               Mr. Geragos [defense counsel]: Yes, your Honor.

               The Court: Is that correct, Ms. Chou?

               Ms. Chou [government counsel]: That is the sentencing range we stipulated to.

               The Court: Mr. Hernandez, do you understand that the court is not bound to
               accept the terms of the agreement unless I elect to accept the agreement?

               Defendant Hernandez: Yes, I understand.


                                                 1
               The Court: And do you understand that if I choose not to follow the terms of the
               agreement with respect to that sentencing range, after I review the presentence
               report, which hasn’t been prepared yet, I’ll give you the opportunity to withdraw
               your plea of guilty?

               Defendant Hernandez: I understand.

               The Court: And do you understand that if you choose not to withdraw your plea, I
               may impose a more severe sentence than that sentencing range?

               Defendant Hernandez: Yes, your Honor.

       While it is true that the written plea agreement referred to a possible prison term of up to

180 months -- outside the agreed sentencing guideline range -- not one word regarding that

possibility was ever uttered by the district judge in his oral remarks to Hernandez. Instead, as

the transcript makes clear, the district judge told Hernandez that he would receive a sentence of

no more than 135 months, or be allowed to withdraw his plea. More significantly, though she

must have recognized, or at least should have recognized, the court’s misstatement, government

counsel confirmed the error.

       The Fourth Circuit has addressed precisely this situation in terms that I believe are self

evident.

       Because the purpose of the plea colloquy is to establish that the defendant knowingly and
       voluntarily entered his plea, he will naturally, and quite reasonably, rely on the district
       court’s characterization of the material terms disclosed during the hearing. As a
       consequence, where a district court’s mischaracterization of a material term is
       sufficiently pervasive to alter a defendant’s understanding of the terms of his plea, the
       Government’s affirmative acquiescence in the court’s explanation can serve to modify
       the terms of the plea agreement.

United States v. Wood, 378 F.3d 342, 349 (4th Cir. 2004) (emphasis in original)(citations

omitted).

       It is fundamentally wrong to tell a defendant at the time of his plea that there is a binding

range of 108 to135 months and then give him 180 months at sentencing. For this reason alone I

                                                 2
would remand.

       This violation of Hernandez’s rights at the plea colloquy was compounded by the

government’s blatant violation of the plea agreement during the sentencing hearing. The plea

agreement, at paragraph 15, calculated the sentencing guideline range at 108 to 135 months. The

final sentence of the paragraph, coming directly after this calculation stated: “The parties agree

not to argue that any other specific offense characteristics, adjustments, or departures be

imposed.” Despite this language, the government argued both in writing and orally for a

departure above the agreed range, urging the court to impose a sentence of 180 months.

       The government now contends that the reference to a “departure” was a lapsus linguae

and that the term “variance” was intended. First of all, in this context, the distinction strikes me

as a cynical quibble. A plea agreement prohibiting the government from arguing for a

“departure” above the guideline range, while allowing it to argue for the very same enhanced

sentence by using the label “variance,” gives a defendant next to nothing. More importantly, and

at the risk of repetition, the government attorney in fact repeatedly used the term “departure”

itself. The court should not permit the government to retreat from its own words in this way.

       The government’s argument that defense counsel failed to preserve his objection to the

government’s breach does not, for me, hold water. At the sentencing hearing, defense counsel

stated, clumsily but explicitly, that “the problem – that is precisely why in the discussions that

we had prior to this, that it was our position that they were breaching the agreement by urging

the departure.” While he might have pressed his objection more articulately, more forcefully,

and more frequently, defense counsel’s “problem” with the government’s position was made

clear to the court. The objection, for me, was sufficiently preserved.

       Finally, while it is true that the plea agreement in this case contained a waiver of appeal,

                                                  3
it is well established that an appeal waiver does not preclude an appeal based on a breach of the

plea agreement containing the waiver. United States v. Gonzalez, 981 F.2d 1037, 1041 (9th Cir.

1992). Particularly where the government’s breach was so flagrant, I cannot agree that any

waiver justifies dismissal of this appeal.

       Under these circumstances, I believe the case should be remanded to a new district judge

with instructions either to impose a sentence of no more than 135 months, or to allow Hernandez

to withdraw his guilty plea.

       For these reasons, I respectfully dissent.




                                                    4
