United States v. Farias-Contreras

104 F.4th 22

UNITED STATES of America, Plaintiff-Appellee, v. Gerardo FARIAS-CONTRERAS, aka Tomas Gomez, Defendant-Appellant.

No. 21-30055

United States Court of Appeals, Ninth Circuit

Argued and Submitted En Banc January 24, 2024 Pasadena, California

Filed June 3, 2024

Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, District Judge, Presiding, D.C. No. 2:19-cr-00111-WFN-17

Scott A.C. Meisler (argued), Trial Attorney, Appellate Section, Criminal Division; Lisa H. Miller, Deputy Assistant Attorney General; Nicole M. Argentieri, Acting Assistant Attorney General; United States Department of Justice, Washington, D.C.; Caitlin A. Baunsgard, Russell E. Smoot, Ian Garriques, David M. Herzog, and Brian M. Donovan, Assistant United States Attorneys; Vanessa R. Waldref, United States Attorney; United States Department of Justice, Office of the United States Attorney, Eastern District of Washington; Spokane, Washington; for Plaintiff-Appellee.

Stephen R. Hormel (argued), Hormel Law Office LLC, Spokane Valley, Washington, for Defendant-Appellant.

Vincent J. Brunkow (argued) and Daniel J. Yadron, Jr., Federal Defenders of San Diego Inc., San Diego, California, for Amici Curiae Ninth Circuit Federal Public and Community Defenders.

Before: Mary H. Murguia, Chief Judge, and Ronald M. Gould, Johnnie B. Rawlinson, Milan D. Smith, Jr., Morgan Christen, Michelle T. Friedland, Mark J. Bennett, Eric D. Miller, Daniel A. Bress, Patrick J. Bumatay and Roopali H. Desai, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;

Concurrence by Judge Gould;

Concurrence by Judge Bennett

OPINION

M. SMITH, Circuit Judge, with whom MURGUIA, Chief Judge, and GOULD, RAWLINSON, CHRISTEN, FRIEDLAND and DESAI, Circuit Judges, join:

Plea agreements are an essential component of the criminal justice system. It is important—for the government, the defendant, and the functioning of the system—that they be enforced. Defendant-Appellant Gerardo Farias-Contreras appeals his 188-month sentence following his guilty plea to conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841 and 846. He argues that the government breached its promise under the plea agreement not to recommend a sentence in excess of the low-end of the sentencing guidelines range when the government implicitly urged the district court to impose a harsher sentence. In response, the government contends that it merely articulated to the district court why the government's 151-month recommendation—a significant sentence for an older individual with serious medical conditions—was reasonable under the totality of the circumstances. For the reasons below, we conclude that there was no plain error in the government's conduct, and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 28, 2020, Farias-Contreras entered into a plea agreement with the government and pleaded guilty to conspiring to distribute methamphetamine and heroin in violation of 21 U.S.C. §§ 841 and 846. Pursuant to the plea agreement, the government agreed, inter alia, to dismiss two other charges and "not to recommend a sentence in excess of the low-end of the guideline range, as calculated by the United States." The plea agreement allowed Farias-Contreras to recommend any legal sentence and, for purposes of sentencing, allowed either party to present facts not included in the plea agreement's stipulated facts if "relevant to the guideline computation or sentencing." The district court accepted the guilty plea.

On January 19, 2021, Farias-Contreras filed his sentencing memorandum. He argued for a six-level reduction in the base offense level resulting in a guidelines range of 108-135 months and urged either a sentence within that range or a variance below it, citing his many physical disabilities. Thereafter, on January 29, 2021, the government filed its sentencing materials. After reducing the base offense level by three levels, the government calculated a guidelines range of 151-188 months and recommended a 151-month term, i.e., the low-end of the guidelines range.

Explaining its recommendation, the government first noted that Farias-Contreras had been "convicted of an unquestionably serious offense" and that "[d]rug trafficking is nothing less than pumping pure poison into our community." The sentencing memorandum proceeded to cite statistics of drug overdose deaths;¹ quote an excerpt from a book about the families of living drug addicts;² and quote a decades-old Fifth Circuit decision that suggests drug dealing is a "grave offense" worse than murder.³ It concluded by emphasizing that Farias-Contreras was "the top of criminal culpability in this case," that his involvement in drug trafficking appeared to stem back to 1990, that he had not let his physical impairment stop him from engaging in this conduct, and that, ultimately, a significant sentence was warranted to protect the community from his continued illicit activities.

At the sentencing hearing, Farias-Contreras again requested a sentence as low as 108 months. His request for a lower sentence was based principally on his physical condition: he had been shot multiple times, "still has the colostomy," "still has to have a urethra," "still has to use manual methods in order to relieve himself," and "can't walk" without braces.⁴

In response, the government stated first that it stood by the recommendation in its sentencing memorandum. Then, the government immediately noted that "the number of which that we're recommending was something that was of much discussion," prompting the court to ask, "Much discussion where?" The government clarified, "In our office--of what do we do with this particular defendant? [Farias-Contreras] is at the top of the food chain in terms of criminal culpability, in terms of personally directing and organizing the distribution of a massive, massive amount of drugs." The court commented that Farias-Contreras was willing to distribute thirty pounds of drugs back in 1998, to which the government responded, "That's very correct, very correct. So we have this individual, multiple years, multiple pounds, a massive amount of drugs that he is responsible for."

At the end of its exchange with the court, the government reiterated:

[W]e kept coming back in our discussions--everyone was very sympathetic to the physical condition and what that means for him, but we were unanimous in coming back to this physical condition has not deterred his conduct whatsoever. He continued to be a leader/organizer, and there's nothing that will prevent him in the future to returning to that--that role . . . . [E]veryone was unanimous in that a long period of incarceration is going to be necessary to protect the public from the defendant, to protect society.

"[B]ased on the totality of those circumstances," the government again stated that it was recommending the term of incarceration that it outlined in its sentencing memorandum. The government did not specify at the hearing the number of months that it was recommending.

Citing substantially the facts and argument presented by the government, the district court adopted the government's guidelines range and sentenced Farias-Contreras to 188 months' imprisonment. The district court first acknowledged Farias-Contreras's "serious limitations" and that "incarceration is not going to be easy." The court then explained its concerns about the protection of the public and his lack of respect for the law, referencing the government's brief and oral presentation. In particular, the court noted that Farias-Contreras was "top in the chain," "way up in the distribution"; how deeply involved he was in an organization "responsible for distributing in this geographic area huge amounts of methamphetamine"; and that "[l]ives 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 court rejected the government's recommendation as too low and determined that the high end of the guidelines range was justified.

On appeal, Farias-Contreras argues that the government implicitly breached its obligation in the plea agreement "not to recommend a sentence in excess of the low-end of the guideline range, as calculated by the United States." He argues that, although the government technically recommended a low-end sentence of 151 months, statements made by the government in its sentencing memorandum and at the sentencing hearing implicitly urged the district court to impose a longer sentence. A divided three-judge panel vacated Farias-Contreras's sentence and remanded to the district court for reassignment and resentencing. United States v. Farias-Contreras, 60 F.4th 534, 548 (9th Cir. 2023). We granted rehearing en banc, United States v. Farias-Contreras, 83 F.4th 1161 (9th Cir. 2023), and we now affirm the district court.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 18 U.S.C. § 3742(a). See United States v. Heredia, 768 F.3d 1220, 1230 (9th Cir. 2014). Generally, we review a defendant's claim that the government has breached its plea agreement de novo. United States v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000). Because Farias-Contreras failed to raise his objection at sentencing, we review here for plain error. See United States v. Whitney, 673 F.3d 965, 970 (9th Cir. 2012). "Relief for plain error is available 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. Minasyan, 4 F.4th 770, 778 (9th Cir. 2021) (quoting United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008)).

ANALYSIS

Plea agreements are essentially contracts between the government and a defendant. United States v. Myers, 32 F.3d 411, 413 (9th Cir. 1994) (per curiam). As such, they are governed by...