U.S. v. Nagra

Decision Date08 June 1998
Docket Number97-30106,Nos. 97-30105,s. 97-30105
Citation147 F.3d 875
Parties98 Cal. Daily Op. Serv. 4323, 98 Daily Journal D.A.R. 5968 UNITED STATES of America, Plaintiff-Appellee, v. Jit Singh NAGRA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mohan Singh NAGRA, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Anna-Mari Sarkanen, Seattle, Washington, for defendant-appellant Jit Singh Nagra.

Lenell Nussbaum, Seattle, Washington, for defendant-appellant Mohan Singh Nagra.

Helen J. Brunner, Assistant U.S. Attorney, Seattle, Washington, for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Washington; John C. Coughenour, Presiding. D.C. No. CR-95-27-JCC.

Before: ALARCON and HAWKINS, Circuit Judges, and BREWSTER, District Judge. *

BREWSTER, District Judge:

Brothers Jit Singh Nagra and Mohan Singh Nagra each appeal from sentences imposed following remands from this court. Appellants pled guilty to separate but virtually identical two-count informations charging (1) conspiracy to defraud the United States and the Immigration and Naturalization Service in violation of 18 U.S.C. § 371 and (2) encouraging or inducing the illegal entry or residence of an alien in violation of 8 U.S.C. § 1324(a)(1)(D)(1988). In prior appeals, this court vacated Appellants' sentences and remanded because the trial court had imposed departures without articulating sufficient supporting factual findings. On remand, Appellants moved to withdraw their guilty pleas. The trial court denied their motions, made findings, and re-imposed the original sentences. Appellants timely appealed.

We have jurisdiction over these appeals pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We are asked to review (1) the district court's denial of Appellants' motions to withdraw their guilty pleas, (2) the district court's factual finding that each Appellant smuggled at least 180 aliens, and (3) the sentences imposed. We affirm in part, reverse in part, and remand for resentencing.

I. Introduction

Appellants were arrested in September 1994 at the conclusion of a sting operation directed at alien smuggling. In January 1995, they agreed to plea bargains on the above-mentioned two-count informations. The conspiracy count charges conspiracy to defraud the United States and the Immigration and Naturalization Service by violating 8 U.S.C. § 1324(a)(1)(A-D) [alien violations], 18 U.S.C. § 1546(a) [counterfeiting immigration documents], 18 U.S.C. § 201(c)(1)(A) [giving gratuity to government official], 31 U.S.C. § 5324 [structuring financial transactions so as to evade reporting requirements], and 18 U.S.C. § 1956(a)(2)(B)(i) [money laundering].

The factual bases in the informations set forth, inter alia, that between 1985 and 1994, Appellants joined and participated in a conspiracy to smuggle an unspecified number of Pakistani and Indian nationals into the United States and to perpetuate their stay by illegally purchasing immigration documents from public officials.

A magistrate judge received the guilty pleas and found that the pleas were "supported by an independent basis in fact containing each of the essential elements of the ... offenses." Guilty pleas were also accepted from Jit Nagra's wife and Appellants' father pursuant to separate plea agreements offered in a package deal. Appellants filed no objections to the magistrate judge's recommendations, and the district court accepted their guilty pleas.

Separate Presentence Reports ("PSR"s) prepared in April 1995 for each Appellant calculated guideline ranges of incarceration of 63-78 months, based on total offense levels of 26 and criminal history categories of I. Probation recommended six-level upward departures on the grounds that the smuggling conspiracy either had the ability to, or actually did bring, thousands of aliens into the United States.

At the first sentencing proceeding, the district court reduced Appellants' offense levels by three for acceptance of responsibility, reducing their sentencing guideline ranges to 46-57 months. To support the recommended upward departures, the government reiterated its belief that the conspiracy involved several thousand aliens (the government's sentencing memorandum suggests as many as 10,000 or more), that some aliens were subjected to dangerous or inhumane treatment, and, as to Jit Singh Nagra, that he carried a firearm. No evidence was taken. The district court agreed that upward departures of six levels were appropriate "for the reasons set forth in the presentence report" and imposed sentences of 96 months. Appellants appealed.

On appeal, the Nagras challenged only the fact and extent of the district court's upward departures. In an unpublished disposition, the panel found that the district court failed to determine the number of aliens involved in the smuggling operation and to explain the basis for its upward departures. Accordingly, the panel "remand[ed] so that the court can make a finding on the approximate number of aliens smuggled in the conspiracy" and instructed the district court to explain the extent of any departures, analogizing to other provisions of the Guidelines and to append to the presentence reports a finding of fact on the approximate number of aliens smuggled in the conspiracy.

On remand, the government filed a new sentencing memorandum that included a summary of tape recordings made by INS agents during the course of their investigation. The government provided Appellants with transcripts of the tape recordings themselves. Upon reviewing the transcripts, Appellants discovered that the transcripts did not support assertions made in the summary of the tape recordings as to the number of aliens smuggled by Appellants.

The government then abandoned the use of the evidence from the tapes, and instead submitted a revised sentencing memorandum supported by transcripts of grand jury testimony. Based on this evidence, the government requested a finding that "the testimony of witnesses before the grand jury accounts for at least 180 people who were seeking to enter the United States with the help of defendants during the period from August 1989 through the summer of 1994."

In view of their discovery about the tape recordings, Appellants moved to withdraw their guilty pleas. Appellants argued that the informations to which they pled guilty were based substantially on an affidavit similar to the faulty summary, and that they would not have pled guilty if the unedited transcripts had been available. Appellants also challenged the guilty pleas on other grounds that will be addressed below. The district court reviewed the motions under the "fair and just reason" standard used for presentence motions to withdraw guilty pleas. The Court denied the motions, finding that there was adequate evidence to support the guilty pleas on all counts and that any exculpatory material previously withheld by the government was not material to the plea.

At resentencing, the court found that "[t]he approximate number of aliens smuggled in the conspiracy which can be attributed to each defendant is at least 180" and "substantially exceeds 100." On that basis, the Court reimposed six-level upward departures so that "the sentences of Jit Singh Nagra and Mohan Nagra shall remain the same." The court sentenced each defendant to 96 months of incarceration, three years of supervised release, and $100,000 fines. The Nagras then filed the instant appeals.

II. Motions to Withdraw Guilty Pleas

Appellants challenge the district court's denial of their motions to withdraw their guilty pleas. Appellants argue that government misrepresentations and withholding of evidence "favorable" to Appellants prior to their plea violated their due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that their pleas were defective. We reject their arguments and affirm the trial court's denial of their motions to withdraw their guilty pleas.

A. No Manifest Injustice Caused by Denial of Motions

On appeal, this court reviews for an abuse of discretion a district court's denial of a motion to withdraw a guilty plea. See United States v. Alber, 56 F.3d 1106, 1111 (9th Cir.1995). The district court properly considered Appellants' motions to withdraw their guilty pleas under the "fair and just reason" standard set forth in Fed.R.Crim.P. 32(e). While this standard generally is applied liberally, a more stringent standard is appropriate in cases, including those before us, in which a defendant seeks to withdraw a guilty plea on remand when reversal did not undermine the validity of the conviction. Such an attempt is " 'akin to that of a defendant who seeks to withdraw his plea after sentencing.' " United States v. Ramos, 923 F.2d 1346, 1358 (9th Cir.1991) (applying post-sentencing standard to defendant whose co-defendant had already been sentenced) (quoting United States v. Kay, 537 F.2d 1077, 1078 (9th Cir.1976) (per curiam ) (same)). A guilty plea cannot be withdrawn after sentencing unless a "manifest injustice" would result. United States v. Baker, 790 F.2d 1437, 1438 (9th Cir.1986).

There can be no manifest injustice in refusing to permit a defendant to withdraw a guilty plea when there is no serious contention that the defendant is innocent of the crimes charged. See Id. (rejecting an appeal of a denial of a motion to withdraw plea where the defendant contended that "he was led to plead guilty by a recklessly erroneous or willfully false statement by the prosecutor that six or seven witnesses would testify as to [defendant's] drug activities" because there is no manifest injustice in allowing a plea to stand if the defendant does not seriously assert his innocence.)

In these cases, there is no evidence that any misrepresentations concealed any evidence whatsoever that Appellants were in fact innocent of the...

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