                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                   In the                                 July 23, 2007
                       United States Court of Appeals                                Charles R. Fulbruge III
                                       for the Fifth Circuit                                 Clerk
                                             _______________

                                               m 06-40937
                                             _______________




                                    UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                                  VERSUS

                              FRANCISCO JAVIER ARAGUZ-BRIONES,

                                                               Defendant-Appellant.


                                      _________________________

                              Appeal from the United States District Court
                                  for the Southern District of Texas
                                        m 1:04-CR-201-ALL
                                ______________________________



Before SMITH, BENAVIDES, and DENNIS,                       Francisco Araguz-Briones appeals his sen-
  Circuit Judges.                                       tence, claiming that the government failed to
                                                        perform its contractual obligation to move for
JERRY E. SMITH, Circuit Judge:*                         a one-level downward departure. We vacate
                                                        and remand.

                                                                               I.
   *                                                        Araguz-Briones pleaded guilty, pursuant to
     Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                        a plea agreement, of being an alien found un-
termined that this opinion should not be published
and is not precedent except under the limited
                                                        lawfully in the United States following depor-
circumstances set forth in 5TH CIR. R. 47.5.4.          tation and after having been convicted of an
                                                        aggravated felony in violation of 8 U.S.C.
§ 1326(a) and (b). The plea agreement con-              to ninety months’ incarceration.
tained an appeal waiver provision in which
Araguz-Briones waived the right to challenge                                   II.
his sentence on appeal or in a post-conviction             Araguz-Briones claims the government
proceeding but reserved the right to appeal the         breached the plea agreement by not moving for
sentence if it exceeded the statutory maximum           a one-level downward departure at resentenc-
or was an upward departure from the sentenc-            ing. The government counters that it was
ing guidelines. The agreement obligated the             released from its obligation when the first pan-
government “to recommend . . . [a] one-level            el of this court found that the appeal waiver
departure under 5K3.1 for early disposition             provision was not knowing and voluntary,
plea at arraignment.” When discussing the ap-           because that provision cannot be severed from
peal waiver at rearraignment, the magistrate            the rest of agreement. We thus face the ques-
judge advised Araguz-Briones that he “could             tion whether a court should hold the govern-
still appeal from an illegal sentence.” He was          ment to its obligations under a plea agreement
sentenced to seventy-five months’ incarcera-            after the court invalidates a defendant’s obli-
tion.                                                   gation not to appeal his sentence. In other
                                                        words, can a defendant keep the benefit of his
   Araguz-Briones appealed, arguing that he             plea agreement after being relieved of his bur-
had been sentenced under the mandatory                  den? This is a question of first impression in
guidelines scheme found unconstitutional in             this court, and Araguz-Briones faces a steep
United States v. Booker, 543 U.S. 220 (2005).           hurdle on appeal.
The government claimed that the appeal waiv-
er provision of the plea agreement barred the                                    A.
appeal. This court disagreed, holding that, be-             Araguz-Briones concedes that he did not
cause the court had advised Araguz-Briones              object to the government’s refusal to move for
that he could appeal an illegal sentence, the ap-       a downward departure, and thus we review
peal waiver was not knowing and voluntary,              only for plain error. United States v. Branam,
so the sentence could be appealed. The court            231 F.3d 931, 933 (5th Cir. 2000). Under the
vacated the sentence and remanded for resen-            plain error standard, we may correct the sen-
tencing.                                                tence only if there is: “(1) error; (2) that is
                                                        plain; (3) that affects substantial rights; and (4)
   At resentencing, the government argued               the error seriously affects the fairness, integ-
that by appealing, Araguz-Briones had                   rity, or public reputation of judicial proceed-
breached his plea agreement and deprived the            ings.” United States v. Lewis, 412 F.3d 614,
government of the benefit of its bargain, so the        616 (5th Cir. 2005) (citing United States v.
government had decided not to move for the              Cotton, 535 U.S. 625, 631 (2002)). Further,
§ 5K3.1 one-level downward departure. Ara-              an error is plain only if it is clear under current
guz-Briones did not object, and the downward            law. United States v. Salinas, 480 F.3d 750,
departure was not given.1 He was sentenced              756 (5th Cir. 2007) (citing United States v.


   1                                                       1
     Without the one-level departure, Araguz-              (...continued)
Briones’s advisory guidelines range was 77-96           months; if the departure had been given, the range
                                  (continued...)        would have been 70-87 months.

                                                    2
Olano, 507 U.S. 725, 734 (1993)).                           The importance placed by the government
                                                         on appeal waivers is demonstrated by the At-
                        B.                               torney General’s guidelines for fast-track pro-
   We begin by examining the effect of this              grams.2 All defendants who, like Araguz-Bri-
court’s finding, in the first appeal, that the ap-       ones, agree to a plea bargain under a fast-track
peal waiver provision was not knowing and
voluntary. Araguz-Briones argues that even
                                                            2
under the plain error standard this holding had               In United States v. Perez-Pena, 453 F.3d 236,
the effect of severing the appeal waiver provi-          238 (4th Cir.), cert. denied,127 S. Ct. 542 (2006),
sion and left the remainder of the agreement             the court provided a comprehensive description of
intact.                                                  this process:

   Plea bargains are interpreted in accordance                “Fast-tracking” refers to a procedure that
                                                            originated in states along the United States-
with general contract principles. United States
                                                            Mexico border, where district courts experi-
v. Story, 439 F.3d 226, 231 (5th Cir. 2006).                enced high caseloads as a result of immigration
Whether a contract “is entire or severable                  violations. To preserve resources and increase
turns on the parties’ intent at the time the                prosecutions, prosecutors sought to obtain
agreement was executed, as determined from                  pre-indictment pleas by offering defendants
the language of the contract and the surround-              lower sentences through charge-bargaining or
ing circumstances.” Nat’l Iranian Oil Co. v.                through motions for downward departure.
Ashland Oil, Inc., 817 F.2d 326, 333-34 (5th
Cir. 1987). The government argues that, un-                    Congress officially sanctioned the use of de-
der general contract principles, the appeal                 parture fast-track programs in 2003, with its
waiver provision cannot be severed from the                 enactment of the Prosecutorial Remedies and
agreement, and thus the waiver’s invalidation               Other Tools to end the Exploitation of Children
by the first panel nullified the plea agreement             Today Act of 2003 (“PROTECT Act”), Pub.
and released the government from its obliga-                L. No. 108-21, § 401(m)(2)(B), 117 Stat. 650,
                                                            675 (2003). In conjunction with authorizing the
tions.
                                                            Attorney General to create and implement such
                                                            programs, Congress directed the Sentencing
   Whether the appeal waiver provision is sev-              Commission to promulgate “a policy statement
erable turns on whether it is an “essential                 authorizing a downward departure of not more
term” of the bargain. Id. The government                    than 4 levels if the Government files a motion
urges that the waiver is an essential term be-              for such departure pursuant to an early disposi-
cause the goal of a plea agreement is to offer              tion program authorized by the Attorney Gen-
a defendant a lower sentence than he may re-                eral and the United States Attorney.” Id.
ceive at trial in exchange for saving the gov-              Pursuant to this directive, the Commission
ernment the effort that would be expended if                adopted § 5K3.1 of the sentencing guidelines,
the case were tried and appealed. An agree-                 providing that “[u]pon motion of the Govern-
ment that waives most appellate rights saves                ment, the court may depart downward not more
the government more effort than does an                     than 4 levels pursuant to an early disposition
                                                            program authorized by the Attorney General of
agreement that does not waive those rights,
                                                            the United States and the United States Attor-
and thus the inclusion of an appeal waiver
                                                            ney for the district in which the court resides.”
should result in a better bargain for the defen-            United States Sentencing Guidelines Manual
dant.                                                       § 5K3.1, p.s. (2004).

                                                     3
program are required, pursuant to a memoran-             and voluntary; that is a question of first im-
dum from the Attorney General to all U.S.                pression in this circuit.
Attorneys, to waive their right “to appeal, and
to challenge the resulting conviction under [28             We typically do not extend precedent when
U.S.C. § 2255], except on the ground of inef-            deciding such questions under plain error.
fective assistance of counsel.” Perez-Pena,              See, e.g., United States v. Hull, 160 F.3d 265,
453 F.3d at 239. This requirement indicates              272 (5th Cir. 1998). In this particular case we
that the waiver is essential to the bargain.             choose to follow United States v. Stevens, 66
                                                         F.3d 431, 437 (2d Cir. 1995), and vacate the
                       C.                                sentence and remand. At the government’s
    The government claims the plea agreement             option, the district court shall either (1) resen-
contains an anti-severability clause evincing            tence Araguz-Briones, with the government’s
the parties’ intent that the agreement must              moving for the one-level § 5K3.1 reduction as
stand or fall as a whole. The pertinent section          called for in the plea agreement, or (2) vacate
of that clause reads, “If the defendant should           the plea agreement in its entirety and allow the
fail in any way to fulfill completely all of the         parties either to reach a new agreement or to
obligations under this plea agreement . . . the          go to trial.3 Araguz-Briones “may not, how-
United States will be released from its obliga-          ever (unless the government consents), retain
tions under the plea agreement.”                         the benefits of the sentencing agreement while
                                                         being relieved of its burdens.” Stevens, 66
    This clause supports the government’s posi-          F.3d at 437. Because these are unique facts
tion but is not determinative. It is not an anti-        and we are reviewing for plain error, we limit
severability clause; it requires Araguz-Briones          our holding to the facts and arguments pre-
to fulfill his contractual “obligations,” not to         sented in this case.
adhere to all the terms of the contract. Be-
cause the first panel ruled that the appeal                                    III.
waiver was not enforceable, Araguz-Briones                   To preserve the issue for further review,
was arguably no longer obligated, under the              Araguz-Briones challenges the constitutional-
agreement, to refrain from appealing. We                 ity of 8 U.S.C. § 1326(b). He made the same
need not decide whether the clause, standing             argument in his first appeal, and we reject his
alone, is effective as an anti-severabilityclause.       claim now for the same reasons as before. See
It lends at least some support to the govern-            United States v. Araguz-Briones, 170 Fed.
ment’s contention that the parties did not               Appx. 332 (5th Cir.), cert. denied 126 S. Ct.
intend for the contract to be severable. Based           2341 (2006).
on the guidelines for the fast-track program
and the language of the plea agreement,                     The sentence is VACATED, and the case is
Araguz-Briones has not shown, under the plain
error standard, that the appeal waiver provi-               3
sion is severable.                                             See also United States v. Bushert, 997 F.2d
                                                         1343, 1354 n.23 (11th Cir. 1993). The Bushert
                                                         court noted that if the government had asked the
                     D.
                                                         court to allow the defendant to replead “to protect
   We turn to the question of the proper rem-
                                                         its bargaining position more fully,” the court would
edy when a non-severable provision of a plea             have entertained the request. Id. Here the govern-
agreement is found to have been not knowing              ment has made such a request.

                                                     4
REMANDED for resentencing consistent with
this opinion.




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