In United States v. Plascencia-Orozco, --- F.3d ---, Case No. 15-50143 (9th Cir. 2017), the Court addressed, and rejected, of host of issues raised in the context of a 1326 trial.
Here is how the opinion starts:
We seldom run into a “frequent flyer” as “frequent” as appellant. Over his 46-year career as an illegal entrant, he has been deported or removed dozens of times. But what makes him stand out as a “cara dura” [chutzpah] is not only that on some of these entries, he used the name and stolen documents of an innocent father of five, but that he now testifies before the wife and mother that he actually fathered two of the innocent’s children. Despite the numerous grounds he now urges on appeal, we affirm.
The opinion then goes on to address the defendant's request for a fourth attorney, plea-agreement breach, multiple alleged evidentiary errors, a substantive reasonableness challenge to the 184 month sentence, and the district court's freestanding order directing
the defendant to use his true legal name.
The breach issue is worth discussing. The defendant had a prior plea agreement in which the government promised not to prosecute him for certain charges unless he again illegally reentered the country. When he did so, the government indicted him on the previously un-pursued charge. The Court held:
[T]he proper way for a defendant to raise a prior plea agreement as a defense to a criminal charge is to move to dismiss that charge under Federal Rule of Criminal Procedure 12(b). If the government thinks that the defendant has breached the plea agreement, such that it no longer applies, then it must proffer sufficient evidence to establish that breach by a preponderance of the evidence. The matter need not be submitted to a jury, nor need it be decided before the indictment or information is filed. The district court followed these procedures here, and its ruling at the motions in-limine hearing that Plascencia had breached his plea agreement was not reversible error.
Also of note, the Court vacated the district court’s order directing the defendant to “use his true
name of Ramiro Plascencia-Orozco.”
