Wednesday, October 08, 2014

U.S. v. Heredia (9th Cir. - Oct. 8, 2014)

The U.S. enters into a "fast track" agreement with Paul Heredia -- as it does with thousands of other "illegal reentry" defendants every single year -- in which it agrees to recommend a six-month prison term and not try to get Heredia sentenced to more than than in return for Heredia's immediate entry of a guilty plea as well as other terms.  "Justice" on a mass scale.

The U.S. later seems to get cold feet about the deal it struck, and so at sentencing, it gives the district court a litany of bad facts about Heredia that seemed designed to make sure that Judge Wilson, who's not bound by the plea agreement, doesn't give Heredia the deal that was struck.  The U.S. is successful, and Judge Wilson gives Heredia a prison term that's three-and-a-half times the agreed-upon deal.

Heredia appeals.  The Ninth Circuit reverses and assigns the case to a different judge on remand.  Judge Wardlaw holds that you can't strike a deal for a six-month term and then slam the defendant at sentencing by repeatedly highlighting all of the bad facts from the guy's criminal history in an effort to tank the deal.

Which makes sense.

Though, with a bright U.S. Attorney, I'm not sure how long the decision will remain of practical import to anyone other than Heredia.

Remember that these fast-track deals are pretty much contracts of adhesion.  Take the same deal that we give to every single other illegal reentry dude or we throw the book at you.  I'm confident what every single Fortune 500 company would do when confronted with a situation like this:  Simply change the fine print.  Put an express provision in the deal that says that even though you agree to recommend a six-month sentence, "nothing herein shall prevent or in any way preclude the United States from introducing in the district court the criminal history of the defendant, including the details of these offenses, and/or supplementing the PSR to including additional facts regarding defendant's prior convictions."  That's what the AUSA did here and that the Ninth Circuit found improper.  But just put in the contract that it's okay.  No more problem.  No more reversals.

We'll see how the U.S. Attorney responds to this one.