U.S. v. Estrada-Plata

• Decision Date: 09 June 1995
• Docket Number: 94-56538,D,ESTRADA-PLAT,Nos. 94-50178,s. 94-50178
• Citation: 57 F.3d 757
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martinefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 757

57 F.3d 757

UNITED STATES of America, Plaintiff-Appellee, v. Martin ESTRADA-PLATA, Defendant-Appellant.

Nos. 94-50178, 94-56538.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 10, 1995.

Decided June 9, 1995.

Conrad Herring, San Diego, CA, for defendant-appellant.

Steven A. Peak, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of California.

Before: WALLACE, Chief Judge, HUG, and HAWKINS, Circuit Judges.

MICHAEL DALY HAWKINS, Circuit Judge:

We consider here claims that the government has some obligation to make available a discretionary plea agreement to a defendant who: (a) fails to meet fair and uniformly applied time requirements; and (b) in any event, refuses to unconditionally accept the government's offer. We hold the government has no such obligation.

Defendant Martin Estrada-Plata ("Estrada") was convicted and sentenced to 57 months in custody for being a deported alien found in the United States after a felony conviction, in violation of 8 U.S.C. Sec. 1326(b). Estrada's consolidated appeals concern the government's application of its early disposition ("fast-track") plea bargaining policy for Sec. 1326(b) cases. Estrada, who did not plead under the fast-track policy, claims he was subjected to selective prosecution. He challenges the district court's denial of his motions to dismiss the indictment, refusal to depart downward on his sentence, and denial of his 28 U.S.C. Sec. 2255 motion on that basis. He also claims that his 57-month sentence violates due process and the Eighth Amendment. We have jurisdiction under 28 U.S.C. Secs. 1291 and 2255, and we affirm.

I. BACKGROUND

A. The Fast-Track Policy

On July 22, 1993, the United States Attorney's Office for the Southern District of California implemented the fast-track policy for immigration defendants charged with violating Sec. 1326(b). That section carries a maximum penalty of 5 or 15 years, depending upon whether the defendant was convicted of an aggravated felony. Under the fast-track policy, defendants may enter a pre-indictment guilty plea to a violation of Sec. 1326(a), which carries a 2-year sentence. The policy requires that the defendant waive indictment, enter a guilty plea at the first appearance before the district court, waive appeal of all sentencing issues, stipulate that the applicable guideline range exceeds the 2-year statutory maximum, stipulate to the 2-year sentence, and agree not to seek any downward adjustments or departures.

B. Estrada's Case

Defendant Estrada was charged with violating Sec. 1326(b). Estrada's counsel did not know about the fast-track policy when he appeared with Estrada for the preliminary examination on August 5, 1993. On that date, a government attorney asked Estrada to waive the 10-day time limit for the preliminary examination (a prerequisite to accepting a plea bargain under the fast-track policy). When Estrada refused, Estrada's case was presented to the grand jury, which returned an indictment.

On August 12, Estrada's counsel spoke with another government attorney assigned to the case. It became apparent that, through some misunderstanding or miscommunication, Estrada was not given an opportunity to consider the fast-track plea bargain before he was indicted. The government attorney offered to let Estrada plead under the fast-track policy, but asked for an answer by the following day.

Estrada's counsel did not discuss the plea offer with the government attorney again until a telephone conversation on August 20. The offer had not been withdrawn, but Estrada was asked to respond to the offer that day. Later on August 20, Estrada's counsel left a message with the government attorney that Estrada was unable to stipulate to a 2-year sentence. Estrada's counsel did not request any discovery or additional time to consider the offer before rejecting the plea bargain.

C. Procedural History

Estrada filed several pretrial motions challenging the government's fast-track policy, including motions to dismiss the indictment for (1) discriminatory plea bargaining, (2) equal protection and due process violations in connection with the government's enforcement of immigration laws, and (3) race-based selective prosecution. The district court denied the motions. And, after a stipulated facts trial, Estrada was convicted.

In connection with his sentencing, Estrada filed several motions for downward departure, arguing the same issues raised in his pretrial motions. He also moved for downward departure on the ground that his sentencing range (63-78 months) as set forth in the presentence report violated due process and the Eighth Amendment. The court denied Estrada's motions for downward departure, and sentenced Estrada to 57 months in custody.

Finally, Estrada filed a 28 U.S.C. Sec. 2255 motion, claiming that he discovered "new evidence" of alleged misrepresentations by the government in describing the discovery procedures applicable to fast-track cases. The district court denied the motion finding, among other things, that no misrepresentations had been made.

II. DISCUSSION

A. Selective Prosecution Claims

Estrada made three different selective prosecution claims in his motions to dismiss the indictment. First, he claimed that he was discriminated against when he was not offered the fast-track plea bargain under the same terms as other Sec. 1326(b) defendants. Second, he claimed that the fast-track policy discriminates against all Sec. 1326(b) defendants on the basis of their race. Finally, he argued that the government violated equal protection and due process by prosecuting him, when it refused to prosecute known undocumented aliens working for the United States Forest Service.

It is well-settled that "[t]here is no constitutional right to a plea bargain, and the decision whether to offer a plea bargain is a matter of prosecutorial discretion." United States v. Moody, 778 F.2d 1380, 1385-86 (9th Cir.1985), amended, 791 F.2d 707 (9th Cir.1986); see also United States v. Sustaita, 1 F.3d 950, 952 (9th Cir.1993). In order to challenge a prosecutor's plea bargaining or charging decision, Estrada must establish a prima facie case of invidious discrimination, by showing that (1) others similarly situated to him were not prosecuted or were given more favorable plea bargains; and (2) his prosecution was based on an impermissible motive, i.e. a discriminatory purpose or intent. See United States v. Wayte, 710 F.2d 1385, 1387 (9th Cir.1983), affirmed 470 U.S. 598, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). ¹ These are essentially factual determinations which we review for clear error. See United States v. Gutierrez, 990 F.2d 472, 475 (9th Cir.1993), overruled on other grounds, United States v. Armstrong, 48 F.3d 1508, 1513 n. 1 (9th Cir.1995) (en banc); cf. Moody, 791 F.2d at 707 n. 1.

1. The Fast-Track Policy Applied To Estrada

On appeal, Estrada argues that he was not offered the fast-track plea bargain under the same terms as it was offered to other Sec. 1326(b) defendants, because other Sec. 1326(b) defendants "usually" have two weeks to consider the offer. He claims that he was not given adequate time or discovery to make an informed decision, and that the government intended to discriminate against him because he insisted on asserting his Sixth Amendment right to effective assistance of counsel. The district court rejected these arguments, and so do we.

There is no evidence that Estrada was treated differently than similarly situated defendants. The record demonstrates that Estrada rejected the plea bargain offer after having 9 days (from August 12 to August 20) to consider it. Estrada did not demonstrate that 9 days was inadequate time, or that other Sec. 1326(b) defendants were given a more significant opportunity to evaluate their cases. Moreover, as the district court noted, Estrada's counsel never requested any discovery and never asked the government for additional time to review his client's record.

Even if we assume that Estrada was treated differently, there is absolutely no evidence of discriminatory intent by the government. It is true that it is impermissible for the government to prosecute a defendant on the basis of his exercise of a constitutional right, such as the right to effective assistance of counsel. See Moody, 778 F.2d at 1386 (and cases cited therein). But to establish a prima facie case of selective prosecution, the defendant "must present enough evidence to demonstrate a reasonable inference of invidious discrimination." United States v. Redondo-Lemos, 955 F.2d 1296, 1302 (9th Cir.1992). Estrada did not present any evidence that the government's action here was for the purpose of, or intended to, deny him his Sixth Amendment right to effective assistance of counsel. His claim therefore fails.

2. The Fast-Track Policy Applied To All Sec. 1326(b) Defendants

Estrada also argues that the fast-track policy discriminates against all Sec. 1326(b) defendants on the basis of their race, by depriving them of effective assistance of counsel in determining whether to accept the plea bargain. We disagree.

The fast-track policy undoubtedly affects Hispanics more than other races, because the Southern District of California includes a portion of the United States/Mexico border. We need not consider whether this fact alone establishes that similarly situated defendants are treated differently, because Estrada clearly failed to establish the second prong of the selective prosecution inquiry. See Redondo-Lemos, 955 F.2d at 1301 (it is not enough that enforcement decision has discriminatory effect, prosecution must be motivated by discriminatory purpose). Estrada has not demonstrated that the government had any discriminatory intent or purpose in implementing the fast-track policy. Rather, the evidence is clear that the government selected Sec. 1326(b) cases for the fast-track...