Tuesday, January 10, 2012

U.S. v. Alcala-Sanchez (9th Cir. - Jan. 10, 2012)

This is what happens when you have too many criminals and too few prosecutors.

Sergio Alcala-Sanchez is walking along I-905, about three miles north of the Mexican border.  Border Patrol stops him and determines that he's an unauthorized alien, and has been previously deported from the United States.  So Alcala-Sanchez gets criminally charged.  (Suggestion:  If you're committing a crime by your mere presence in the United States, perhaps walking alongside a heavily-traveled interstate just north of the border is not a preferred way of avoiding detection.)

We've got a "fast track" program down here in San Diego that gives you big benefits if you plead guilty fully and quickly.  We do so because we have so many border crimes that we've got to process these things along or else the judiciary (and U.S. Attorney's Office) will be swamped.  So Alcala-Sanchez pleads guilty and in return gets a decent plea agreement.  In particular, the government promised that they'd only suggest a total offense level of 12, which would result in a guideline range of two to three years in prison.  A decent deal for both sides.

But when the Probation Office calculated an offense level of 20, rather than sticking to the deal, the U.S. Attorney's Office said:  "Okay."  It filed a sentencing memorandum that said, yep, the offense level is 20, which means a range of five to six-and-a-half years (rather than two or three), and recommended the top range of six-and-a-half.

At which point Alcala-Sanchez's lawyer says:  "You breached the agreement!  Withdraw that thing!  You promised me you'd only ask for two or three!"

Then, at the sentencing hearing, the AUSA who negotiated the plea appeared.  She said, essentially, well, yes, I negotiated the plea, and I hear what defendant's saying about us being in breach.  I'm not saying that he's wrong, because I don't want to lie about the deal I struck.  But I wasn't the attorney who submitted the sentencing recommendation -- a different AUSA did that -- and I'm just a junior person, and am totally not "comfortable making a recommendation that is different than what the sentencing assistant was going to recommend."  In short:  Yes, I made that deal, and yes, I feel bound to it, but no way I'm going to challenge in open court what my bosses have apparently done.  You have to take that up with them.

So the district judge sets another hearing for the following week.  At which point the line attorney who negotiated the plea agreement again appears and "apologized profusely" for the fact that the U.S. Attorney recommended a deal different than the plea agreement.  And says that, at this point, the government's willing to let Alcala-Sanchez have the benefit of his deal, and will only recommend two to three years.

But the defendant says:  "Yeah, I hear you, but you still breached of the agreement.  Sure, you're willing to say now that I should only get two to three.  But you've already argued otherwise.  You can't unring the bell.  I negotiated for us having a unified front.  You didn't do that.  Sure, you're now willing to go along with what I've requested.  But you've also made it clear that you're only doing that because I've got you by the short hairs.  So the district court knows how you really feel, and will probably sentence me at this point to the higher number.  I want to withdraw the plea."

At which point the AUSA who submitted the sentencing recommendation says:  This wasn't deliberate.  This was just a mistake.  "This is what happens when these cases get handed from person to person to person, Your Honor."  And the line attorney adds to this by noting the “overwhelming number of cases that [she] personally ha[d].”  Mistakes happen when you're crushed.  Plenty of 'em.  Don't blame us.

The district court listens to all of this, accepts the government's position, holds that they're not in breach, and ultimately accepts the five-to-seven year range initially suggested by the government but departs downward, sentencing the defendant to four years.

Alcala-Sanchez appeals.  The Ninth Circuit reverses.  It's a breach.  You agreed to do one thing.  You did another.  That you then backtracked doesn't mean you didn't breach.  Defendant didn't get the benefit of the bargain or the unified front he requested.  Back to the Southern District.  This time before a different judge.

Which is understandable.  As well as highlights one of the many problems you have when there are too many offenders and too few resources with which to prosecute them.

Just one more thing.  It of course makes sense to remand to a different judge.  But will that really solve the problem?  It's not like the new judge will not know everything that has already transpired.  The initial U.S. Attorney recommendation.  The breach.  The relevant (and changing) positions of the parties.  It's not like there's going to be a "unified front" at this point either.  Since the new district judge can (and surely will) learn everything that the initial judge knew, and will know it instantly upon reading the Ninth Circuit's opinion.  An event that's surely going to happen, right?  What district judge is going to take a remanded case and not read the published appellate opinion that remanded it?

Sure, maybe the new judge is slightly less invested in achieving the same outcome as the initial sentence.  But it hardly puts the defendant back in the position for which he bargained.  It's simply the best we can do.