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Ninth Circuit: Government’s Inflammatory Arguments in Sentencing Memorandum and at Sentencing Hearing Implicitly Breached Plea Agreement Promise Not to Recommend Sentence in Excess of Low-End Guidelines Range

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit ruled that the Government’s inflammatory arguments in its sentencing memorandum and at the sentencing hearing implicitly breached the plea agreement because the sole effect of the arguments was to increase the defendant’s sentence beyond the low-end of the U.S. Sentencing Guidelines range – something the Government had promised not to do in the plea agreement.

In 2020, Gerardo Farias-Contreras agreed to plead guilty to conspiracy to distribute 500 grams or more of methamphetamine or heroin pursuant to a plea agreement that included the proviso that the “United States agrees not to recommend a sentence in excess of the low-end of the guideline range, as calculated by the United States.” According to the presentence report (“PSR”), Farias-Contreras’s adjusted advisory Guidelines range was 151-188 months in prison.

In its six-page sentencing memorandum, the Government devoted just two sentences to the recommended 151-month term of imprisonment. The remainder of the memorandum focused on the overwhelming harm drug trafficking does to families and communities; on Farias-Contreras’s long history of drug trafficking; and on information already contained in the PSR.

 The memorandum argued: “Drug trafficking is nothing less than pumping pure poison into our community. The effects of drug trafficking are massive, and in some respects, incalculable, especially when all the collateral consequences are considered. The damage the drugs this Defendant were [sic] peddling cause irreparable harm to the community in general as well as to families whose members are addicted
to controlled substances.”

The memorandum included nationwide statistics from the Center for Disease Control showing 67,367 deaths from drug overdose in 2018 and a record high of 79,980 deaths in 2019. And the memorandum quoted from the book Dreamland by Sam Quinones, describing in detail the horrors parents of addicted children experience.

The memorandum also quoted extensively from Terrebonne v. Butler, 820 F.2d 156 (5th Cir. 1987), wherein a sentence of life without parole imposed on a small-time drug dealer was upheld: “Except in rare cases, the murderer’s red hand falls on one victim only, however grim the blow; but the foul hand of the drug dealer blights life after life and, like the vampire of fable, creates others in its owner’s evil image – others who create others still, across our land and down our generations, sparing not even the unborn.” Terrebonne.

The Government then argued in the memorandum that Farias-Contreras was at “the top of criminal culpability in this case,” citing information already contained in the PSR, characterizing his criminal conduct as a “dedicated lifestyle,” with his drug trafficking going back to 1990, and his prior contacts with law enforcement doing nothing to dissuade him from drug trafficking.

At the sentencing hearing, the Government never once stated affirmatively that it recommended a sentence at the low-end of the Guideline ranges. Instead, Government counsel informed the U.S. District Court for the Eastern District of Washington that Farias-Contreras’ sentence was the subject of much debate in the U.S. Attorney’s Office, with some arguing for a sentence above the low-end.

Government counsel told the judge that the attorneys were unanimous only in that “a long period of incarceration is going to be necessary to protect the public from the defendant, to protect society.” And Government counsel argued that Farias-Contreras’ codefendant had been sentenced to 240 months in prison, even though the codefendant had been involved for only one year compared with Farias-Contreras’ dealing multiple pound-level quantities “since 2008.”

The sentencing court stated it was “concerned about protection of the public” and that Farias-Contreras’ entire adult life “has been dedicated to dealing drugs....” The district judge observed that Government counsel “in her brief and in her oral presentation” indicated Farias-Contreras was at the top of the chain in drug distribution.

And the sentencing judge opined that “the damage that can be done and was done to the citizens of our community by making available those drugs in our area can’t be quantified. It’s impossible to tell. Lives are lost. Lives are ruined. Families broken up, jobs lost, health deteriorated. Children become – it becomes available for children. Addicts are fed. So it’s serious, very serious.” The District Court then sentenced Farias-Contreras to 188 months in prison.

He appealed, contending that the Government’s inflammatory arguments were designed to obtain a sentence greater than the low-end of the Guidelines range, which was a breach of the plea agreement. Because defense counsel failed to timely object, the issue was reviewed for plain error. The Court could grant relief only “if there has been (1) error; (2) that was plain; (3) that affected substantial rights; and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Whitney, 673 F.3d 965 (9th Cir. 2012).

The Court observed “when a 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 (1971). Plea agreements are contracts between the government and the defendant and “are measured by contract law standards.” United States v. Franco-Lopez, 312 F.3d 984 (9th Cir. 2002).

In the present case, the Government agreed “not to recommend a sentence in excess of the low-end of the guideline range, as calculated by the United States.” This type of promise may be broken “either explicitly or implicitly.” United States v. Heredia, 768 F.3d 1220 (9th Cir. 2014). “The government is under no obligation to make an agreed-upon recommendation enthusiastically. However, it may not superficially abide by its promise to recommend a particular sentence while also making statements that serve no practical purpose but to advocate for a harsher one.” Id. “[T]he government may not purport to make the bargained-for recommendation while ‘winking at the district court’ to impliedly request a different outcome.” United States v. Has No Horses, 261 F.3d 744 (8th Cir. 2001).

The Court stated: “The government implicitly breaches an agreement to recommend a sentence at the low-end of the guideline range or the functional equivalent – here, not to recommend a sentence in excess of the low-end of the guideline range – if it then makes inflammatory comments about the defendant’s past offenses that do not provide the district judge with any new information or correct factual inaccuracies.” See Heredia. “Given the clear, binding, and longstanding precedent governing a prosecutor’s promise not to recommend a sentence exceeding the low-end of the guideline range, the government here implicitly breached the plea agreement, a breach that amounted to plain error,” the Court determined. 

The Court also concluded that Farias-Contreras’ substantial rights were affected. The reasons the District Court gave for imposing a sentence at the high-end of the Guidelines range were quotes and paraphrases of the prosecutor’s arguments made in the memorandum and made during her presentation at sentencing.

And with regard to the final requirement of plain error – integrity of the judiciary – “[t]he integrity of the criminal justice system depends upon the government’s strict compliance with the terms of the plea agreements into which it freely enters.” Heredia. When it is determined that the Government breached a plea agreement, remand to a different judge for sentencing is required. Whitney.

Accordingly, the Court vacated Farias-Contreras’ sentence and remanded to the District Court for the Clerk of the Court to reassign the case for resentencing. See: United States v. Farias-Contreras,60 F.4th 534 (9th Cir. 2023).



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