We're pretty hard core about not allowing federal judges to engage in plea negotiations. Or, on the civil side, settlement negotiations, for that matter. We want our judges to be neutral decisionmakers, not participants. Sometimes I find that's too bad, since occasionally there's a case that won't settle but that I know would if the judge were permitted to lean in and set the lawyers (and clients) straight. But that's the way it is, and as a general rule, I understand why.
So when I saw this case, out of San Diego, I was thinking: "You can't do that. Who's the judge that did this?" And saw that it was Judge Burns, who's a smart, and strong-willed, jurist. But in this case, the latter got ahead of the former. Since everyone -- both the diverse panel on the Ninth Circuit (Judges Nelson, Bybee and Milan Smith) and me -- agrees that he did something he shouldn't have done.
It's a routine border case the likes of which we have down here every day. Several years ago, Gonzalez-Melchor gets caught crossing the border and admits that he's come over six or seven times before, so the immigration judge deports him -- denying him (and a ton of other people) voluntary departure because s/he's convinced he's just coming back anyway. Later, he's caught crossing the border again, so now we criminally prosecute him for being a deported alien found in the U.S. (That's why the IJ didn't allow voluntary departure; so that next time, he'd be put in prison rather than put back on a bus to Mexico.)
Gonzalez-Melchor is convicted at a bench trial, and now it's time to sentence him. At which point Judge Burns says that he's inclined to give him two points for acceptance of responsibility, and that if Gonzalez-Melchor agrees to waive his right to appeal to the Ninth Circuit, as well as truly promise to never come back, Judge Burns will knock off a substantial amount of additional time as well, and only sentence him to five years or so. At which point the lawyer quickly communicates with the client and the client accepts this deal.
The problem is that this violates Rule 11. This is basically Judge Burns giving a plea deal to a defendant: waive your right to appeal (and do some other things) and I'll knock some time off your sentence. The government can make such an offer, and then the judge can decide whether or not to accept the resulting deal. But the judge can't cut out the middleman and make an offer like that himself.
So Gonzalez-Melchor's waiver of his right to appeal is invalid. Which makes sense, and I agree is required by Rule 11.
P.S. - Looks to me like there's confusion about dates in Judge Smith's opinion. The opinion says Gonzalez-Melchor was before the IJ "on September 8, 1995," and two paragraphs later the opinion says: "Four years later, on September 9, 2009," he was caught reentering the U.S. Seems like "Four" should be "Fourteen"or, perhaps, "1995" should be "2005".
