In United States v. Farias-Contreras, --- F.4th ---, No. 21-30055 (9th Cir. 2023), a divided panel vacated a sentence and remanded for resentencing before a different judge in a case in which the defendant contended that the government failed to meaningfully abide by its promise in the plea agreement not to recommend a sentence in excess of the low-end of the guidelines range.
On appeal, Farias-Contreras argued: "the U.S. Attorney implicitly breached the plea agreement by providing the court, both in its sentencing memorandum and its argument at sentencing, with inflammatory argument and information not relevant to the sentencing determination that could have had but one effect—to increase his sentence beyond the low-end of the U.S. Sentencing Guidelines range. Farias-Contreras argue[d] that, by doing so, the government failed to meaningfully abide by its promise in the plea agreement not to recommend a sentence in excess of the low-end of the guidelines range."
On plain-error review, the majority agreed: "The government’s arguments implicitly breached the plea agreement, and amounted to plain error that affected FariasContreras’s substantial rights and undermined the integrity of the judiciary. We therefore vacate Farias-Contreras’s sentence and remand for resentencing before a different judge."
The opinion contains lots of helpful language on the government's obligations to present a united front at sentencing. Here are a few notable quotes:
"[T]he government may not purport to make the bargained-for recommendation while 'winking at the district court” to impliedly request a different outcome.'"
"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.' '[W]hen the government obligates itself to make a recommendation at the low end of the guidelines range, it may not introduce information that serves no purpose but ‘to influence the court to give a higher sentence.’ 'This prohibition precludes referring to information that the court already has before it, including statements related to the seriousness of the defendant’s prior record, statements indicating a preference for a harsher sentence, or the introduction of evidence that is irrelevant to any matter the government is permitted to argue.' 'Such statements are recognized as introduced ‘solely for the purpose of influencing the district court to sentence [the defendant] more harshly.'"
Next, in
United States v. Michell, --- F.4th ---, No. 19-10059 (9th Cir. 2023), another divided panel affirmed the defendant’s 2018 convictions for unlawful possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), in a case in which the defendant, relying on the Supreme Court's post-conviction decision in
Rehaif v. United States, 139 S. Ct. 2191 (2019), argued on appeal that his convictions should be overturned due to the district court's failure to instruct the jury that the government must prove that he belonged to the relevant category of persons barred from possessing a firearm.
The main issue was whether, on appeal, the Court could take judicial notice of conviction documents not introduced at trial. The Court concluded it could, because it was reviewing for plain error.
"When an appellate court conducts plain-error review of a Rehaif error, any 'argument that plain-error review must focus exclusively on the trial record contravenes both logic and precedent.' Following the Supreme Court’s lead, the Ninth Circuit has frequently looked outside the trial record when deciding Rehaif claims."
"Under plain-error review of an instructional error, we ask simply whether there is a reasonable probability that, in a new trial, a jury would acquit a defendant. And our precedent is clear that we can and should take judicial notice of facts outside the record on plain-error review to answer that question, which is not tantamount to filling gaps in the government’s case in an earlier trial. To do otherwise would burden courts with the expense and waste of judicial resources on retrial, even though the outcome is inevitable."
