U.S. v. Garcia
| Decision Date | 19 November 2007 |
| Docket Number | No. 05-30415.,No. 05-30356.,No. 05-30391.,05-30356.,05-30391.,05-30415. |
| Citation | 507 F.3d 1213 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Adrian GARCIA, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Ivan Torres, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Miguel Plascencia-Alvarado, also known as Esteban Garcia-Morales also known as Angel Caloca, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mary Anne Royle, Vancouver, WA, for defendant-appellant Adrian Garcia.
Nancy L. Talner, Seattle, WA, for defendant-appellant Miguel Plascencia-Alvarado.
Jeffrey E. Ellis, Law Offices of Ellis, Holmes & Witchley, PLLC, Seattle, WA, for defendant-appellant Ivan Torres.
John L. Lulejian (argued), Assistant United States Attorney, and James M. Lord, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington; Marsha J. Pechman, District Judge, Presiding. D.C. Nos. CR-04-00301-016-MJP, CR-04-00301-003-MJP, CR-04-00301-007-MJP.
Before: J. CLIFFORD WALLACE, KIM MCLANE WARDLAW and RAYMOND C. FISHER, Circuit Judges.
This appeal requires us to consider several allegations of sentencing error. Initially, we must decide whether we have jurisdiction to review a sentence that is imposed in accordance with a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) and that is not contingent upon the advisory Sentencing Guidelines. We also must determine whether a district court commits plain error by failing to explicitly set the maximum number of non-treatment related drug tests to which the defendant will be exposed as a condition of supervised release. Finally, we must evaluate whether a district court commits plain error by imposing a financial disclosure condition on a defendant who has been convicted of a drug trafficking offense and has a history of drug use. We hold that we do not have jurisdiction to review a sentence within the range agreed to in a Rule 11(c)(1)(C) plea agreement, and that the district court did not commit plain error by imposing either condition.
Because the issues on appeal are exclusively related to sentencing, we need not recount detailed facts of the underlying criminal offenses to which the defendants pled guilty. Rather, we explain only those facts relevant to our resolution of the defendants' allegations of sentencing error.
Adrian Garcia, Ivan Torres and Miguel Plascencia-Alvarado were all involved in a large-scale drug trafficking conspiracy in the Western District of Washington. After being charged with various crimes, all three entered into Rule 11 written plea agreements. See Fed.R.Crim.P. 11(c)(1)(C).1 Garcia pled guilty to conspiracy to distribute less than 500 grams of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C); Plascencia-Alvarado pled guilty to conspiracy to distribute methamphetamine and cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C); and Torres pled guilty to conspiracy to distribute less than five grams of methamphetamine and less than 50 grams of a mixture containing methamphetamine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C), as well as witness tampering in violation of 18 U.S.C. § 1513(b)(2). In accordance with their respective plea agreements, Garcia was sentenced to 48 months imprisonment and Plascencia-Alvarado was sentenced to 60 months imprisonment. Torres was sentenced to 66 months imprisonment, also pursuant to his plea agreement, and is subject to various supervised release conditions. Garcia and Plascencia-Alvarado appeal their sentences, and Torres appeals the district court's imposition of certain supervised release conditions.
Garcia's and Plascencia-Alvarado's plea agreements are nearly identical in all material respects. In both plea agreements, the defendants accepted that the maximum statutory penalty for their offenses is 20 years imprisonment, waived their right to a trial and agreed that the district court "will consider the factors set forth in Title 18, United States Code, Section 3553(a), including the sentencing range calculated under the United States Sentencing Guidelines" but "is not bound by any recommendation regarding the sentence to be imposed, or by any calculation or estimation of the Sentencing Guidelines range offered by the parties, or by the United States Probation Department." Most importantly, Garcia agreed that "the appropriate sentence of imprisonment to be imposed by the Court at the time of sentencing should be within the range of twenty-four (24) to forty-eight (48) months," and Plascencia-Alvarado agreed that the appropriate sentence in his case was "fifty-four (54) to ninety (90) months." In light of these stipulated sentencing ranges, the parties acknowledged that "the Court retains full discretion to impose a sentence within the range agreed to above." (Emphasis added.)
At sentencing, the district court accepted Garcia's plea agreement and calculated the advisory guidelines range.2 In so doing, the court, over Garcia's objection, attributed to him "the amount of cocaine that the Garcia arm of this organization was responsible for," which was nearly five kilograms. The district court also granted Garcia a three-point reduction for acceptance of responsibility, and adjusted downward the Presentence Report's criminal history calculation. After rejecting Garcia's request for a two-point reduction for his minor role in the offense, the district court arrived at a guidelines recommended range of 97 to 121 months. However, because the district court had accepted the plea agreement, Garcia was ultimately sentenced to 48 months imprisonment.3 Garcia appeals this sentence, arguing that the district court erred in calculating the guidelines range because it applied the wrong burden of proof with respect to the drug quantity attributed to Garcia. Had the district court applied the correct evidentiary standard, Garcia argues, it would have arrived at a lower guidelines calculation and he would have received a 24-month sentence.
As with Garcia, the district court accepted Plascencia-Alvarado's plea agreement and calculated his advisory guidelines range to be 108 to 135 months imprisonment. Plascencia-Alvarado argued to the district court that he should receive a 54-month sentence (at the low end of the plea agreement stipulation) because of various equities he believed were in his favor, including his relationship with his young daughter. He further claimed that other similarly situated defendants received comparable sentences. The district court rejected these arguments and sentenced Plascencia-Alvarado to 60 months imprisonment (still at the lower end of his plea agreement's stipulated range).4 Plascencia-Alvarado appeals this sentence as unreasonable in light of the 18 U.S.C. § 3553(a) factors.
Torres' plea agreement stipulated to a fixed sentence of 66 months and acknowledged "that the Court retains full discretion with regard to the imposition of a term of supervised release, the conditions of supervised release, fines, forfeiture or restitution." At sentencing, the district court accepted the Rule 11 plea agreement and sentenced Torres to the agreed upon term. The district court also imposed several conditions of supervised release, including that Torres (1) "shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court;" (2) "shall submit to mandatory drug testing pursuant to 18 U.S.C. § 3563(a)(5) and 18 U.S.C. § 3583(d)" (drug testing condition); and (3) "shall provide his probation officer with access to any requested financial information, including authorization to conduct credit checks and obtain copies of defendant's Federal Income Tax Returns" (financial disclosure condition). Although Torres did not object to these conditions at sentencing, he now argues that the district court erred in imposing them.
As an initial matter, the government argues that we lack jurisdiction to review these defendants' sentences because they each received a sentence within the range stipulated to in their plea agreements.6 That is, because the defendants received the benefit of their plea bargains, they may not now challenge the sentences.
18 U.S.C. § 3742(a) grants appellate courts limited jurisdiction to review a defendant's challenge to a district court's sentence. See United States v. Barron-Rivera, 922 F.2d 549, 553 (9th Cir.1991). To entertain either Garcia's or Plascencia-Alvarado's claim of sentencing error, we must find that some provision of § 3742(a) applies, thus establishing our jurisdiction. Specifically, the statute provides in relevant part:
(a) Appeal by a defendant. 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; or
(3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater fine or term of imprisonment, probation, or supervised release than the maximum established in the guideline range ...; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
18 U.S.C. § 3742(a). Garcia asserts that we may review his sentence for guidelines calculation error under either § 3742(a)(1) or (2), whereas Plascencia-Alvarado relies only on § 3742(a)(1) to argue that we have jurisdiction to determine whether his sentence is unreasonable.7 We conclude that we are without jurisdiction to entertain either...
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