[00:00:13] Speaker 00:
Good morning, Your Honors, and may it please the court, James Chavez on behalf of Mr. Moon Yost.

[00:00:20] Speaker 00:
This appeal raises a single issue, which is whether the government, at sentencing, breached the plea agreement.

[00:00:27] Speaker 00:
by failing to provide a united front, thereby depriving Mr. Munoz of the benefit of his bargain.

[00:00:35] Speaker 00:
The critical moment in this case is when the district judge took the bench and told the parties that he, Judge Huey, he was not going to follow the recommendation of the parties.

[00:00:51] Speaker 00:
He was going to give a sentence above the 37-month recommendation

[00:00:56] Speaker 00:
that was made in the papers by the government council.

[00:01:01] Speaker 00:
And the breach occurred at the sentencing hearing in four ways.

[00:01:05] Speaker 00:
The calendar assistant, Mr. Christopher Alexander, who was a 20-year veteran of the Department of Justice.

[00:01:13] Speaker 00:
The first thing he did was he distanced himself from the recommendation.

[00:01:18] Speaker 00:
He explained it, made clear to the court that this was somebody else's case.

[00:01:23] Speaker 00:
That was clear from the papers.

[00:01:25] Speaker 04:
But it was.

[00:01:25] Speaker 04:
It was.

[00:01:27] Speaker 00:
Yes, Your Honor.

[00:01:29] Speaker 00:
The sentencing memorandum was filed.

[00:01:31] Speaker 00:
There was a sentencing memorandum in this case filed by the assigned prosecutor, Mr. Green.

[00:01:36] Speaker 04:
And also the actual agreement was not for 37 months.

[00:01:40] Speaker 00:
I'm sorry.

[00:01:41] Speaker 04:
The agreement was not for 37 months.

[00:01:44] Speaker 04:
So even within the agreement, there was a discretionary decision made to make it 37 to 46 months, and the prior person decided to recommend the bottom of the guidelines.

[00:01:59] Speaker 04:
So we needed some explanation for that.

[00:02:01] Speaker 00:
Yeah, the 37-month sentence

[00:02:04] Speaker 00:
was something that we signed the plea agreement, and then there was a number of months until the sentencing hearing happened, and it was consistent advocacy on my behalf for the low-end recommendation.

[00:02:17] Speaker 04:
But there was no agreement to that.

[00:02:18] Speaker 00:
Huh?

[00:02:19] Speaker 04:
There was no agreement to that.

[00:02:20] Speaker 00:
No, there was no agreement.

[00:02:21] Speaker 00:
And you were asking for 24, right?

[00:02:24] Speaker 00:
Well, and this is why I say that the critics... Let me answer that.

[00:02:30] Speaker 00:
Yes and no, if I may.

[00:02:32] Speaker 02:
OK, what's the no part?

[00:02:33] Speaker 00:
The no is not one single time during the sentencing hearing did I ask the court for a variance.

[00:02:39] Speaker 00:
At no point during the sentencing hearing did I ask the court for 24 months.

[00:02:43] Speaker 00:
Had you filed something?

[00:02:46] Speaker 00:
I had filed, yes, Your Honor.

[00:02:47] Speaker 00:
That doesn't count?

[00:02:49] Speaker 02:
It does count.

[00:02:50] Speaker 02:
And the plea agreement says defendant may request additional downward adjustments, which you did, right, in your written submission, yes?

[00:02:58] Speaker 00:
Yes, Your Honor.

[00:02:59] Speaker 02:
And then it says the government will oppose any downward adjustments.

[00:03:03] Speaker 02:
So doesn't the government have the right, if you've decided to make a request for a downward adjustment that you may or may not make and the government explicitly reserves the right and says it will oppose, don't they have the right to speak in support of that?

[00:03:20] Speaker 00:
Yes, Your Honor, but that's why I began by pointing the court to the critical moment at the sentencing hearing where the game changed, if you will.

[00:03:30] Speaker 00:
The sentencing judge told the government, I'm not giving 37 months.

[00:03:35] Speaker 04:
I'm going above that.

[00:03:36] Speaker 04:
And then you, I guess it was you, got up and I gather you were the lawyer for the defendant at the hearing.

[00:03:44] Speaker 00:
I'm sorry, my hearing is over.

[00:03:45] Speaker 04:
Who was the lawyer for the defendant at the hearing?

[00:03:48] Speaker 00:
I was, Your Honor.

[00:03:48] Speaker 04:
And you got up and said in no uncertain terms and several times that there was a shocking amount of an amazing amount and so on.

[00:03:58] Speaker 04:
And then what the government lawyer did was get up and say the same thing actually in a milder form than you had said it.

[00:04:05] Speaker 04:
And you said it presumably because the district court

[00:04:09] Speaker 04:
you didn't want to be countering the district court's observation.

[00:04:12] Speaker 04:
You wanted to get some credibility.

[00:04:15] Speaker 04:
And presumably that's what the government was doing too, or at least isn't that a fair reading?

[00:04:19] Speaker 04:
You didn't want to appear to be countering the district court's observation as to the large amount of drugs.

[00:04:26] Speaker 04:
And you had just done the same thing.

[00:04:28] Speaker 00:
I would disagree, Your Honor.

[00:04:29] Speaker 00:
And here are the reasons.

[00:04:31] Speaker 00:
The reasons is because

[00:04:33] Speaker 00:
The judge, it is true, the judge told us at the very beginning of the hearing the reason he was going to go above was because of the quantity.

[00:04:42] Speaker 00:
And so I addressed my comments directly to that concern.

[00:04:46] Speaker 02:
Where you said you were shocked by the amount.

[00:04:48] Speaker 00:
Mr. Munoz was shocked, my client was shocked, and I was shocked.

[00:04:52] Speaker 00:
I said both of us.

[00:04:53] Speaker 02:
As Judge Berzon was saying, you said it twice.

[00:04:54] Speaker 02:
You were shocked by the amount, and you said obviously it was an incredible amount of drugs.

[00:04:59] Speaker 02:
It was a ton of meth, right?

[00:05:00] Speaker 00:
Yes.

[00:05:03] Speaker 04:
And then the government lawyer said essentially the same thing but less of it.

[00:05:08] Speaker 04:
How could that be a breach of the agreement?

[00:05:10] Speaker 00:
Yes, and I guess what's important is that the government failed to present any mitigating evidence in this case.

[00:05:16] Speaker 00:
They didn't present Mr. Alexander at the sentencing hearing, did not say anything mitigating about Mr. Munoz.

[00:05:24] Speaker 00:
I directed my comments to the court's concern.

[00:05:26] Speaker 00:
I would be

[00:05:28] Speaker 00:
not doing my job if I wasn't centering on what the court wanted to talk about.

[00:05:33] Speaker 00:
But then I talked about how it was shocking to my client.

[00:05:36] Speaker 00:
He did not know he was smuggling 2,000 pounds of drugs.

[00:05:40] Speaker 00:
I was attempting to mitigate that concern.

[00:05:42] Speaker 00:
He got $12,000, right?

[00:05:45] Speaker 00:
He didn't get $12,000.

[00:05:46] Speaker 00:
He presumably would have gotten 12,000.

[00:05:48] Speaker 00:
But that was what the number was.

[00:05:51] Speaker 02:
Yes.

[00:05:52] Speaker 02:
And the judge said that's above market.

[00:05:56] Speaker 00:
That is above market for, I would disagree with that statement, but that is what the judge said.

[00:06:04] Speaker 01:
I mean, it just seems that you're asking the government's attorney to walk a very fine line, because the plea agreement expressly allows them to oppose the at least written request for further downward variance than what was agreed to.

[00:06:24] Speaker 01:
But then also asking them to

[00:06:26] Speaker 01:
So they're going to oppose that, but then somehow ask them to also defend against what the court is indicating, which is to go above what was agreed to by arguing against themselves, essentially.

[00:06:40] Speaker 01:
I mean, it just seems like if that's what you want, then maybe you should ask for something lower than what was in the plea agreement or negotiate a different plea agreement.

[00:06:51] Speaker 00:
There's always a strategy with your judge.

[00:06:54] Speaker 00:
Judge Huey was a new judge at that point.

[00:06:56] Speaker 00:
We were all learning his sentencing practices.

[00:06:58] Speaker 00:
Had I the knowledge I knew about his sentencing practices, I would have recommended 37 months.

[00:07:03] Speaker 00:
Absolutely.

[00:07:04] Speaker 00:
Certainty.

[00:07:05] Speaker 00:
He's a very nice man.

[00:07:06] Speaker 00:
I practiced with him for many years.

[00:07:08] Speaker 00:
A lot of respect for Judge Huey, but I think he got this one wrong.

[00:07:11] Speaker 00:
The failure here is the government failed to present any mitigating evidence.

[00:07:17] Speaker 04:
Essentially, you're backing off the fact that there was a new person and you're backing off the fact that there was some repetition of the amount.

[00:07:30] Speaker 04:
Now you're saying the problem is that they didn't present mitigating evidence.

[00:07:33] Speaker 04:
That's basically what we're down to.

[00:07:35] Speaker 00:
If I misspoke, I did not mean to back off any of those arguments, Your Honor.

[00:07:40] Speaker 00:
It is a problem.

[00:07:42] Speaker 00:
The whole problem is that Mr. Alexander didn't stand by Mr. Green's decision in this case when the court said he was going to give more than 37 months.

[00:07:51] Speaker 00:
A USA Alexander said absolutely nothing to convince the court that the court should give 37 months.

[00:07:59] Speaker 02:
But he did say after he was accused of breaching,

[00:08:04] Speaker 02:
There's no breach the United States is recommending lower than what it could have recommended which would have been a within guideline range sentence The CDR 15 so at the end of the day to be clear the United States is recommending 37 months the judge says I want to make sure that's what you're saying, right?

[00:08:24] Speaker 02:
That's your recommendation, right?

[00:08:26] Speaker 02:
Yes So I'm missing it here.

[00:08:30] Speaker 00:
Yes the the

[00:08:31] Speaker 00:
The prosecutor, Mr. Alexander, said the 37 month recommendation was more than fair.

[00:08:38] Speaker 00:
The other really important fact that he said more than fair, that's from the quote, he said the recommendation was more than fair.

[00:08:45] Speaker 00:
That undermines it.

[00:08:47] Speaker 00:
Two, he made the recommendation.

[00:08:50] Speaker 04:
As to that, isn't it relevant that he wasn't banned by the 37 months?

[00:08:55] Speaker 04:
He could at that point have come in and said, actually, I reflected it should be 46 months.

[00:09:00] Speaker 04:
So from that point of view, it was more than fair, more than even what they had promised.

[00:09:08] Speaker 00:
The court had said it was going to give a sentence above what the parties were recommending.

[00:09:13] Speaker 00:
The game at that point was to convince the court to follow the recommendation of the parties.

[00:09:17] Speaker 00:
And Mr. Alexander did nothing.

[00:09:19] Speaker 00:
And I'd like to reserve the last minute of my time.

[00:09:21] Speaker 00:
Thank you.

[00:09:21] Speaker 02:
All right.

[00:09:22] Speaker 00:
Thank you.

[00:09:24] Speaker 00:
We'll hear from the government.

[00:09:36] Speaker 03:
Good morning, Your Honors.

[00:09:36] Speaker 03:
May it please the Court, Andrew Chang for the United States.

[00:09:39] Speaker 03:
The prosecutor below did not breach the plea agreement.

[00:09:43] Speaker 03:
This is a plea agreement that contemplated substantial advocacy between the parties, and it's a plea agreement that authorized substantial advocacy between the parties.

[00:09:52] Speaker 03:
What the prosecutor said in this case was tethered to that important provision, and that's why his comments were permissible.

[00:10:00] Speaker 03:
I think what's the issue that's before the Court is whether this prosecutor

[00:10:04] Speaker 03:
went too far, like the prosecutor did in Farias Contreras.

[00:10:08] Speaker 03:
But by any measure, that answer is no.

[00:10:11] Speaker 03:
The prosecutor's statements in this case have to be viewed in context of what the defense had presented to the judge before he even went up to the podium.

[00:10:22] Speaker 03:
And in this case, the defense unequivocally filed a sentencing memorandum that requested a variance to 24 months in custody, and then

[00:10:32] Speaker 03:
when it was the defense's turn to speak at sentencing, in response to the judge's tentative, the judge did not say that he was going to sentence above 37 months.

[00:10:43] Speaker 03:
The judge said that that was his tentative inclination.

[00:10:47] Speaker 03:
By no means was it final.

[00:10:49] Speaker 03:
When the defense heard that, the defense amplified its arguments from its sentencing memorandum in a number of significant ways.

[00:10:59] Speaker 03:
The defense introduced the defendant's family that was sitting in the courtroom, introduced that family to the judge, and then stated several times that the defendant has incredible family support.

[00:11:12] Speaker 03:
That is a significant sentencing argument because for judges who are inclined to take a chance on a first-time offender, they want to see proof of family support.

[00:11:23] Speaker 03:
And the defense counsel in this case was giving that to the court.

[00:11:27] Speaker 03:
The defense in this case also advocated for the defendant's several equities, including his relationship with his daughter, the fact that he had no criminal history, the fact that he had steady employment.

[00:11:40] Speaker 04:
He also talked about how the defendant... What's the relevance of all this?

[00:11:43] Speaker 04:
I'm sorry, you're... What's at issue here is the government's behavior, not the defense's.

[00:11:47] Speaker 03:
Well, the government was responding.

[00:11:49] Speaker 03:
The government was responding.

[00:11:50] Speaker 04:
But you didn't respond to any of that.

[00:11:52] Speaker 04:
You didn't say he didn't have support of his family or it shouldn't matter that it was a first offense or any of that.

[00:11:58] Speaker 04:
You didn't respond to any of those points.

[00:12:01] Speaker 03:
Well, he was responding to the fact that the defendant was asking for a below-guidelines sentence.

[00:12:06] Speaker 03:
Right.

[00:12:07] Speaker 03:
And, you know, in sort of in context,

[00:12:11] Speaker 03:
The government really didn't say that much at all.

[00:12:14] Speaker 03:
If you kind of look back and look at what the government was saying to the court, it was a 30-second response that didn't even cover, you know, half a page of a sentencing transcript.

[00:12:24] Speaker 03:
And what he did was very quickly summarize his colleagues' recommendation, presented it to the court by couching it under the term we, which indicated that he embraced that recommendation.

[00:12:36] Speaker 03:
In one sentence, in a single sentence, he reminded the court about the numerical quantity of the drugs, and then he moved on to make the recommendation.

[00:12:44] Speaker 03:
There was no pejorative editorializing in this case.

[00:12:48] Speaker 03:
There was no divulging of internal office discussions that may have suggested dissent.

[00:12:54] Speaker 03:
He didn't fail to make the explicit recommendation that the government was promising.

[00:12:59] Speaker 03:
He did so three times.

[00:13:01] Speaker 03:
And as the court has mentioned, he did so by making the lowest possible recommendation that the government could make.

[00:13:08] Speaker 03:
And so under these circumstances, I don't think that there is any question that his purpose was just to oppose the variance request, and that was proper.

[00:13:18] Speaker 03:
One last thing I want to add is that the sentencing judge in this case made an explicit finding about the prosecutor's intent.

[00:13:28] Speaker 03:
And I think that's important because when we're talking about implicit breach, for us, Contreras is telling the court to examine things like, you know, good faith, intent, purpose.

[00:13:41] Speaker 03:
And the district judge in this case is the, you know, the only judge involved in this case who had the advantage and the benefit of not just hearing what was said.

[00:13:50] Speaker 02:
Although we, I mean, the district court did say there was no breach here.

[00:13:55] Speaker 02:
But basically, don't we review that finding de novo?

[00:14:00] Speaker 03:
Well, this court has not been entirely consistent in applying the standard review.

[00:14:05] Speaker 03:
Sometimes it's applied de novo.

[00:14:07] Speaker 03:
Sometimes it's applied clear error.

[00:14:10] Speaker 03:
I would submit that under either standard of review, this court can affirm.

[00:14:13] Speaker 03:
But we don't have to reach that question.

[00:14:16] Speaker 03:
You don't have to reach it, but I just want to make the point that this is a case where I think clear error can be applied just because the district court made that finding about the prosecutor's intent.

[00:14:29] Speaker 03:
And that is a question of fact.

[00:14:31] Speaker 03:
That is usually reserved for the... Is intent the question as to breach?

[00:14:39] Speaker 04:
When it comes to... A breach of contract is usually not an intent question.

[00:14:44] Speaker 03:
Well, I think when it comes to implicit breach, I think intent is relevant, and I think Ferris Contreras said that because it directed lower courts to examine things like good faith.

[00:14:57] Speaker 02:
Yeah, I'm not sure that here where the argument is the words were a breach, and we're looking at whether the words were a breach.

[00:15:06] Speaker 02:
I'm not sure it would be relevant whether the prosecutor, what the prosecutor intended because there's no question what he said.

[00:15:13] Speaker 02:
But in any case.

[00:15:15] Speaker 03:
If that's the case, Your Honor, then I would welcome a de novo review on the record of this case.

[00:15:22] Speaker 04:
The one thing the government didn't do was explain why it was giving this recommendation.

[00:15:29] Speaker 04:
It just kept saying this is our recommendation.

[00:15:32] Speaker 04:
But it never really explained why it was recommending

[00:15:36] Speaker 04:
quite a low sentence for the crime.

[00:15:42] Speaker 03:
Well, I don't think that there's anything in the plea agreement that required the government to explain why he was giving a low sentence.

[00:15:48] Speaker 04:
And that was true in the sentencing memorandum, too.

[00:15:51] Speaker 04:
The sentencing memorandum just said there are mitigating factors.

[00:15:53] Speaker 04:
It didn't say what they were.

[00:15:55] Speaker 03:
Well, I think if the sentencing memorandum said that there was mitigating factors, I think that it was referring to some of the things that was brought up in the PSR.

[00:16:06] Speaker 03:
But I think if you're talking about the government sentencing memorandum, it did give an explanation for why it was giving... Well, the only explanation was there are mitigating factors.

[00:16:16] Speaker 03:
No, the explanation was the government was anticipating that the defense would ask for an even lower sentence.

[00:16:24] Speaker 04:
Well, I know, but it didn't explain why it was recommending 37 months.

[00:16:30] Speaker 03:
It was recommended 37 months in anticipation of the fact that the defendant was going to request even less.

[00:16:37] Speaker 03:
And the prosecutor was asking the judge to not go below 37 months.

[00:16:45] Speaker 04:
As for, you know, I agree that there's a... But once the judge said, I'm going to go over 37 months, I'm going to go to what, 56 or something, or 46, I can't remember what he said.

[00:16:54] Speaker 04:
But whatever it was, at that point, it did become relevant to know why the district... I mean, if you were... The prosecutor here probably sufficiently

[00:17:12] Speaker 04:
in what he was, did what he was supposed to do.

[00:17:16] Speaker 04:
But he certainly didn't try very hard to persuade the judge that 37 months as opposed to what the judge was recommending.

[00:17:23] Speaker 04:
He said nothing that would have caused the judge to accept the 37 months rather than what he, rather than his tentative.

[00:17:32] Speaker 04:
Basically nothing.

[00:17:33] Speaker 03:
Well, I think that's true.

[00:17:36] Speaker 03:
The prosecutor did not say much in this case, and I don't see how a prosecutor who really doesn't say too much can be accused of violating the plea agreement.

[00:17:48] Speaker 03:
What the prosecutor did here

[00:17:49] Speaker 03:
Was the court's inclination that it may sentence higher, but then he also heard the defense make an argument that was consistent with the sentencing memorandum Also, it's a cut.

[00:18:01] Speaker 01:
I'm sorry I was gonna say I was gonna ask your friend across the aisle about this, but I might as well ask you as well I read at page er 10 11 to 12

[00:18:12] Speaker 01:
Mr. Alexander says, the assigned prosecutor took into consideration the defendant's early disposition in this matter, elected to grant a minor role adjustment safety valve, and despite the plea agreement, providing for a within range sentence, went to the low end, recommended 37 months in custody.

[00:18:30] Speaker 01:
As the court noted, this was an incredible amount of controlled substance.

[00:18:34] Speaker 01:
But at the end of the day, we feel that the 37 months is more than fair, given that this individual did accept responsibility in this matter.

[00:18:41] Speaker 01:
It's maybe not the most fulsome explanation, but it seems to me that they're saying we think 37 months is fair despite the large amount because he accepted responsibility.

[00:18:52] Speaker 01:
I mean I guess to me I read that as some defense of the 37th month recommendation at the low end.

[00:19:00] Speaker 03:
Yeah, and I think that's right your honor.

[00:19:02] Speaker 03:
He didn't say much, but he did say that.

[00:19:04] Speaker 03:
He did say that the defendant had accepted responsibility.

[00:19:09] Speaker 03:
And the minor role.

[00:19:11] Speaker 02:
I think he mentioned the minor role, too.

[00:19:13] Speaker 01:
I think that was all to get to the range, the guideline range, and then the low end was the acceptance of responsibility.

[00:19:21] Speaker 03:
Correct.

[00:19:22] Speaker 03:
He did say that.

[00:19:23] Speaker 03:
And then he did say that that was a more than fair recommendation, because he could have recommended higher, but he didn't.

[00:19:31] Speaker 03:
And the reason why he used the word more than fair is because he just didn't want the judge to go any lower than 37.

[00:19:39] Speaker 02:
Alright, thank you counsel.

[00:19:40] Speaker 03:
Thank you your honor.

[00:19:41] Speaker 03:
Alright, you have a little bit of time left.

[00:19:50] Speaker 00:
Your honor, Mr. Munoz was entitled to a united front at that sentencing hearing and that was especially important in this case where the judge took the bench and the first thing he said, I'm not giving either of these sentences.

[00:20:05] Speaker 00:
I would like to focus, I would like to, a subject that in case it hasn't come up during this is Camarillo-Teo, which is a 2001 decision written by the late, great Betty Fletcher.

[00:20:14] Speaker 00:
And it is specifically about the government's failure to recommend the fast track plea agreement and explain the fast track adjustment here.

[00:20:24] Speaker 00:
And that is an important thing that shows exactly the prosecutor's mindset at the sentencing hearing.

[00:20:29] Speaker 00:
The judge declined to give four levels for fast track, only gave two.

[00:20:34] Speaker 00:
The government failed to object to that, even though they were obliged to recommend the four levels.

[00:20:38] Speaker 00:
They did at the beginning of the hearing.

[00:20:40] Speaker 00:
And then when I objected to the court not giving the four levels, the prosecutor did not join in that recommendation, or in that objection, nor did they defend it.

[00:20:50] Speaker 00:
And so I think that that reflect and I think that that is almost an explicit breach of the plea agreement here and shows the level of advocacy that was happening that was next to nothing in this case on behalf of Mr. Munoz in the face of

[00:21:08] Speaker 00:
the district court telling the parties it was not going to give 37 months.

[00:21:15] Speaker 00:
At no point, that is why after I gave my sentencing pitch, as is reflected in the record, I went over and whispered into Mr. Alexander's ear, United Front.

[00:21:27] Speaker 00:
Because that's what this court has held is the standard.

[00:21:31] Speaker 00:
It's not what happened here.

[00:21:34] Speaker 00:
And so, Your Honor, the government can oppose a variance, but not by undermining its own recommendation, abandoning mitigation completely, and distancing itself from the plea agreement.

[00:21:47] Speaker 02:
All right.

[00:21:48] Speaker 02:
We thank counsel for their arguments.

[00:21:49] Speaker 02:
Thank you.

[00:21:49] Speaker 02:
And the case just argued is submitted.