Docket Nº:0110532
Case Date:July 12, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit





UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TRUONG QUANG QUACH, Defendant-Appellant.

No. 01-10532; D.C. No. CR-98-00376-WBS


Appeal from the United States District Court for the Eastern District of California

William B. Shubb, Chief Judge, Presiding

Submitted July 12, 2002* San Francisco, California

Filed September 13, 2002

Before: Raymond C. Fisher and Richard A. Paez, Circuit Judges, and Thomas J. Whelan, District Judge.**

Opinion by Judge Paez

*The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). **The Honorable Thomas J. Whelan, United States District Judge for the Southern District of California, sitting by designation.


Julie Elizabeth Mumma, Sacramento, California, for the defendant-appellant.

Kenneth J. Melikian and R. Steven Lapham, Assistant United States Attorneys, Sacramento, California, for the plaintiff-appellee.


PAEZ, Circuit Judge:

Defendant Truong Quang Quach ("Defendant") appeals his 30-month sentence for misprision of felony, which the district court imposed after he pled guilty pursuant to a written plea agreement. Defendant asserts that the government breached the plea agreement at the sentencing hearing (1) by making a statement in violation of its obligation to recommend sentencing at the low end of the applicable United States Sentencing Guidelines range, and (2) by not filing a motion pursuant to § 5K1.1 of the Sentencing Guidelines for a downward departure for his substantial assistance to the government.

We conclude that the government complied with its obligation to recommend that Defendant be sentenced at the low end of the Sentencing Guidelines. We hold, however, that the government failed to make the requisite determination whether Defendant had provided substantial assistance prior to sentencing to warrant a § 5K1.1 motion. Although we hold that the government erred by refusing to make this determination, we express no view about whether the government should have moved for a downward departure under § 5K1.1. Accordingly, we vacate Defendant’s sentence. In light of the district judge’s unequivocal statement that he would have denied such a motion even if the government had made it, we direct that the case be reassigned to a different district judge.

I. Procedural History

On August 20, 1999, one year after being indicted for misprision of felony, 18 U.S.C. § 4, and for making false statements, 18 U.S.C. § 1001, Defendant pled guilty to misprision of felony pursuant to a written plea agreement. The plea agreement provided that the government would recommend that Defendant be sentenced at the low end of the Sentencing Guidelines range calculated and recommended by the United States Probation Office. The agreement also provided that if Defendant "cooperat[ed] fully and provid[ed] substantial assistance to the government," the government "w[ould] move" pursuant to § 5K1.1 of the Sentencing Guidelines for a downward departure of as low as one-third of the sentence imposed (i.e., up to a two-thirds downward departure). The plea agreement defined "cooperation" as:

(1) respond truthfully and completely to all questions posed to [Defendant] by law enforcement personnel; (2) attend all meetings, grand jury sessions, trials, and other court proceedings at which [Defendant’s] presence is requested by the government or compelled by subpoena or court order; (3) testify truthfully before any grand jury, at trial, or any other court proceeding which [Defendant] is requested or required to attend; (4) produce voluntarily any and all documents, records, or other tangible evidence the government requests; (5) assist the government in its efforts to apprehend fugitives Trung Pham and Tu Truong; (6) never falsely inculpate or exculpate anyone; and (7) not participate in any criminal activity during the time period that [Defendant] is cooperating with the government.

Additionally, if Defendant provided information that was the but for cause of the apprehension of fugitive Pham, the government was obligated to move for a sentence of probation pursuant to either § 5K1.1 or Rule 35(b) of the Federal Rules of Criminal Procedure.1

Defendant was initially scheduled to be sentenced on Janu-ary 26, 2000. After having granted numerous continuances, at a hearing on January 31, 2001, the district court expressed its

1Rule 35(b) provides in pertinent part:

If the Government so moves within one year after the sentence is imposed, the court may reduce a sentence to reflect a defendant’s subsequent substantial assistance in investigating or prosecuting another person . . . . The court may consider a government motion to reduce a sentence made one year or more after the sentence is imposed if the defendant’s substantial assistance involves information or evidence not known by the defendant until one year or more after sentence is imposed.

concern with the length of time that Defendant’s case had been pending. The following exchange occurred at that hearing, which is the basis for Defendant’s argument that the government breached its obligation to recommend sentencing at the low end of the Sentencing Guidelines:

THE COURT: And I am not inclined to sentence to anything lower than the top of the guidelines in [Defendant’s] case. And that would hold true whether I sentence him after all of these other cases are over or whether I sentence him today. As a matter of fact, I would think that he would be more valuable to [the government] as a witness if he’s going to testify at some future trial where he can say I’ve already been sentenced by the Court, and there’s nothing more the government can do for me.

GOVERNMENT: I understand that, your Honor. Your Honor, I can only indicate this: Our position, that is, the government’s, is not necessarily inconsistent with the Court’s with regards to the defendant’s ultimate sentencing. I did indicate in the plea agreement to [defense counsel], however, that she could make an argument for a lower sentence, and she won’t really actually be able to do so unless and until time has passed with regard to that other case.

On September 5, 2001, Defendant was finally sentenced. At the sentencing hearing, the district court rejected Defendant’s argument that the government violated the plea agreement at the January 31 hearing by agreeing with the court that Defendant should be sentenced at the high end of the Sentencing Guidelines range.

The court then asked for the government’s sentencing recommendation, and the government recommended sentencing at the low end of the Sentencing Guidelines range. The government also indicated that, after resolution of a co-

defendant’s case, it might file a motion under Rule 35(b) of the Federal Rules of Criminal Procedure requesting that Defendant’s sentence be reduced.

Defendant argued that the government was obligated to bring a § 5K1.1 motion at that time. The district court then asked the government to make the motion. The government refused, stating that it would not do so because Defendant had not "completed" his cooperation. In response, the court told Defendant that if he had interpreted the plea agreement otherwise, he could withdraw his plea. Defendant declined to withdraw his plea. The district court then sentenced him to 30 months in prison.

II. Standard of Review

We review de novo a district court’s interpretation of a plea agreement. United States v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996). There is some uncertainty in our case law about the standard of review — clear error or de novo — for determining whether the government has breached a plea agreement. See...

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