USA. v. Ruiz

Decision Date05 March 2001
Docket NumberNo. 00-50048,00-50048
Citation241 F.3d 1157
Parties(9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANGELA RUIZ, Defendant-Appellant
CourtU.S. Court of Appeals — Ninth Circuit

Troy A. Britt, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

David P. Curnow, Assistant United States Attorney, Criminal Division, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California Howard B. Turrentine, Senior District Judge, Presiding. D.C. No.CR-99-02604 HBT

Before: Robert Boochever, A. Wallace Tashima, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Boochever; Concurrence by Judge Tashima; Dissent by Judge Tallman.

BOOCHEVER, Circuit Judge:

Angela Ruiz ("Ruiz") appeals from the sentence imposed by the district court after she pled guilty to charges of marijuana importation. Ruiz challenges the Government's refusal to recommend, and the district court's denial of, a downward departure from the applicable sentencing guideline range under the "fast track" program. We reverse and remand.

BACKGROUND

Ruiz was arrested for importing marijuana from Mexico into the United States. The Government offered a plea bargain which, among other things, provided for a two-level downward departure from the otherwise applicable sentencing guideline range under the "fast track" program. The United States Attorney's Office for the Southern District of California adopted the "fast track" program to minimize the expenditure of government resources and expedite the processing of more routine cases. Plea bargains offered under this program require defendants to plead guilty, as well as waive their rights to an indictment, to an appeal, and to present motions. Defendants must also waive their rights to receive certain information pursuant to Brady v. Maryland, 373 U.S. 83 (1963). In exchange, the Government promises to recommend a two-level downward departure to the sentencing judge.1

According to Ruiz, she declined to accept the plea bargain because it contained an unconstitutional waiver of Brady rights. She subsequently pled guilty to the charges with no plea agreement. At the sentencing hearing, Ruiz requested several downward departures, including a two-level "fast track" departure. The Government opposed the request. Ruiz claimed that she nevertheless qualified for the departure because, aside from refusing to waive her Brady rights, she substantially complied with the requirements of the "fast track" program (e.g., entering an early guilty plea and declining to file motions). Ruiz also argued that the Government opposed the "fast track" request only because she refused to enter into a plea agreement containing an unconstitutional waiver of her Brady rights.

The district court denied the downward departure because the Government provided no "fast track" recommendation and no plea agreement required the Government to do otherwise. Ruiz's sentencing range was 18-24 months. Had Ruiz received the two-level "fast track" departure, the range would have been 12-18 months. The district court sentenced Ruiz to 18 months.

DISCUSSION

Ruiz argues that the Government's refusal to recommend a two-level "fast track" departure was unconstitutional. At the center of Ruiz's appeal is the contention that the right to receive undisclosed Brady evidence cannot be waived through plea agreements. Ruiz argues that, because Brady rights are not waivable, prosecutors cannot condition the benefits of a plea bargain (e.g., a "fast track" recommendation) on the waiver of such rights; or, stated alternatively, prosecutors cannot withhold the benefits of a plea bargain simply because a defendant refuses to waive her unwaivable Brady rights. According to Ruiz, the Government withheld the "fast track" recommendation for this unconstitutional reason and, therefore, the district court had authority to provide a remedy (e.g., grant the two-level "fast track" departure on its own).

Ruiz asks this court to vacate her sentence and remand the case so the district court may determine whether the Government acted with an unconstitutional motive and, if so, whether it should exercise its discretion to provide a remedy for the violation.

I. Appellate Jurisdiction

As an initial matter, the Government contends that we lack jurisdiction over Ruiz's appeal. The Government argues that its refusal to recommend a "fast track" departure and the district court's denial of Ruiz's request for the same are not reviewable. We disagree.

The statute governing a defendant's right to appeal a federal sentence, 18 U.S.C. S 3742(a), provides in relevant part:

A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence--

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines[.]

As a general rule, under 18 U.S.C. S 3742, we cannot review a district court's discretionary denial of a defendant's request for a downward departure from the sentencing guidelines. United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990). This general rule of nonreviewability, however, does not insulate any and all decisions by district courts to reject downward departures. It only precludes appellate review of the court's exercise of discretion in such matters. See id. (decision to deny departure not reviewable because it "was an act of discretion"). Claims that the district court failed to exercise any discretion at all in rejecting a downward departure are reviewable. United States v. Cervantes-Valenzuela, 931 F.2d 27, 29 (9th Cir. 1991) (per curiam). Also, we have jurisdiction over claims that the district court rested its decision not to depart on an erroneous belief that it lacked authority to do so. United States v. Eaton, 31 F.3d 789, 793 (9th Cir. 1994).

Jurisdiction is also proper over constitutional challenges to the sentencing process, like the challenge Ruiz brings here. See, e.g., United States v. Khoury , 62 F.3d 1138, 1140-41 (9th Cir. 1995) (holding that appellate courts have jurisdictionover constitutional challenges to government's refusal to recommend and district court's denial of downward departure); United States v. Arishi, 54 F.3d 596, 597-98 (9th Cir. 1995) (same); see also Wade v. United States, 504 U.S. 181 (1992) (exercising jurisdiction over similar claim); United States v. Mikaelian, 168 F.3d 380, 384 (9th Cir. 1999) (same); United States v. Murphy, 65 F.3d 758, 762-64 (9th Cir. 1995) (same); United States v. Treleaven, 35 F.3d 458, 460-61 (9th Cir. 1994) (same).

Although the above cases do not expressly state that constitutional challenges are reviewable under section 3742(a)(1) as claims that the sentence was "imposed in violation of law," other circuits have articulated this sensible rationale. See, e.g., United States v. Senn, 102 F.3d 327, 331 (7th Cir. 1996) (constitutional claim that prosecutor arbitrarily refused to recommend greater downward departure satisfies "violation of law" standard of section 3742(a)); United States v. Graham, 72 F.3d 352, 358 n.8 (3rd Cir. 1995) (constitutional claim that prosecutor tainted sentencing hearing by introducing undisclosed allegations satisfies "violation of law " standard); United States v. Holmes, 60 F.3d 1134, 1137 (4th Cir. 1995) (constitutional claim that district court sentenced defendant at top of guideline range because victims were black was claim that sentence was "imposed in violation of law"); see also United States v. Drown, 942 F.2d 55 (1st Cir. 1991) ("When a defendant unsuccessfully challenges not the judge's exercise of discretion but the constitutionality of the scheme under which he was sentenced, the court of appeals has appellate jurisdiction under 18 U.S.C. S 3742(a)(1).").

For the foregoing reasons, we conclude that a constitutional challenge to a prosecutor's refusal to recommend a downward departure, and a district court's refusal to grant such a departure, is appealable under 18 U.S.C.S 3742(a)(1) as a claim that the sentence was "imposed in violation of law." Therefore, we have jurisdiction over Ruiz's constitutional challenge to the Government's refusal to recommend a "fast track" departure and the district court's refusal to grant the same.2

The Government argues in the alternative (and the dissent would agree) that, by pleading guilty, Ruiz forfeited her right to challenge the constitutionality of the Brady waiver contained in the plea bargain she rejected before entering her guilty plea. Generally, an unconditional guilty plea extinguishes the right to appeal all rulings and constitutional defects preceding the plea. United States v. Broce, 488 U.S. 563 (1989).

The Government mischaracterizes Ruiz's appeal. Ruiz claims that the Government violated her constitutional rights after she pled guilty. Specifically, she asserts that the Government unconstitutionally refused to recommend the "fast track" departure at the sentencing hearing. As the alleged constitutional violation from which Ruiz seeks relief did not occur until after the guilty plea, Ruiz is entitled to seek review. We recognize that, to prevail on her downward departure claim, Ruiz must show that the Brady waiver contained in the rejected plea agreement is unconstitutional. However, this showing is only relevant as evidence that the Government acted with an unconstitutional motive at the sentencing hearing.

The Government also suggests that Ruiz's appeal must fail because Ruiz is trying to enforce the terms of a plea bargain (i.e., the two-level "fast track" departure) which she rejected. Again, the Government mischaracterizes Ruiz's appeal. Ruiz is not attempting to enforce the rejected plea agreement as a contract. As discussed above, she brings a...

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