In United States v. Torres-Giles, --- F.4th ---, No. 22-50112 (9th Cir. 2023), the Court affirmed a sentence in a case in which Urbano Torres-Giles pleaded guilty to attempted reentry following removal and entered a Federal Rule of Criminal Procedure 11(c)(1)(B).
During sentencing, the district court stated it rejected the plea agreement because of its fast-track recommendation. On appeal, the Court explained that the defendant has no right to withdraw a Type B plea if the court does not follow the government’s recommendation or the defendant’s request, and a Type B agreement is not binding upon the court. Further, so long as the defendant is apprised of the consequences of entering into a Type B plea agreement and accedes to them voluntarily, he has no right to withdraw from the agreement on the ground that the court does not accept the sentencing recommendation or request. Accordingly, the district court’s use of the word “reject” in the context of a Type B plea agreement can have no legal effect.
The majority also held the district court did not plainly err in its factual finding that Torres-Giles had assured the court at the prior sentencing hearing that he would not return to the United States.
There is a good dissent on this issue by Judge Mendoza. He explains: "a district court’s speculation about statements potentially made during a prior hearing is a “clearly erroneous fact” that cannot be used as a sentencing factor."
Moreover, the attorney-client relationship “is a quintessential principal-agent relationship” where “the client retains ultimate dominion and control over the underlying claim.” Mr. Torres-Giles exercised that control by correcting his lawyer. Unlike trial management decisions, which are “the lawyer’s province,” the decision to admit or deny an aggravating sentencing factor is of the kind “reserved for the client.” The sentencing court should not have relied on the attorney’s uncertain memory given Mr. Torres-Giles’s statement that his attorney was wrong; that “I didn’t say those things.” The majority also faults Mr. Torres-Giles for not presenting a transcript from the prior hearing or other evidence to support his claim. But that is not his burden. A sentencing court may not assume an aggravating factor and require the defendant to disprove it.
