Unpublished Disposition, 922 F.2d 845 (9th Cir. 1989)

MEMORANDUM^** 

Nickolas John Andrade appeals his sentence under the Sentencing Guidelines, following a guilty plea, as the result of a plea bargain, for conspiracy to manufacture and distribute methamphetamine and manufacture of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a) (1).

We vacate judgment to permit Andrade the opportunity to withdraw his plea.

FACTS

On December 22, 1988, following a four and one-half hour plea bargaining session, Andrade entered a guilty plea to a two count indictment for conspiracy to manufacture and distribute methamphetamine, 21 U.S.C. §§ 841(a) (1) and 846, and manufacture of methamphetamine, 21 U.S.C. § 841(a) (1). Because the lower court judge who was hearing Andrade's case had previously declared the Sentencing Guidelines to be unconstitutional, the plea agreement was made with the understanding that it was under the "old" sentencing system. The plea agreement document further stated that:

... the Court of Appeals for the Ninth Circuit has since declared the Act unconstitutional. The matter has been argued before the United States Supreme Court, but no decision has yet been rendered. Accordingly, it is contemplated that [the lower court judge] will sentence defendant Andrade under the so-called 'old' or 'parole guidelines' system.

The plea agreement stated that the government would:

5. Reserve its right to appeal the constitutionality question of the Sentencing Reform Act of 1984.

It also stated that the government would:

1. Recommend that a sentence of twelve years be imposed as to each count and that the execution of one of the sentences be suspended and the defendant be placed on five years' probation.

Andrade was scheduled to be sentenced on January 18, 1989, However, Andrade was granted a continuance because that morning, January 18, 1989, the Supreme Court announced its decision in Mistretta v. United States, 488 U.S. 361 (1988), holding the Sentencing Reform Act constitutional.

On April 12, 1989 the lower court judge denied Andrade's request to be sentenced under the plea bargain or, alternatively, to withdraw his plea. Based on a base offense level of 36 and criminal history category of VI, the guideline range was 324 to 405 months. Andrade was sentenced to 324 months, [27 years].

DISCUSSION

Andrade presents six issues in his appeal. Five are easily answered with the law of this circuit. However, the sixth issue, whether Andrade should be allowed to withdraw his plea, is not as easily answered.

(1) The Presentment Clause: In United States v. Litteral, 910 F.2d 547 (9th Cir. 1990) this court ruled that the Sentencing Guidelines do not violate Chadha. The court reiterated this in United States v. Reed, 914 F.2d 1288 (9th Cir. 1990) and in United States v. Scampini, 911 F.2d 350 (9th Cir. 1990).

(2) The Enabling Statute: In United States v. Belgard, 894 F.2d 1092, 1100 (9th Cir. 1990) this court held that the Sentencing Commission followed the congressional directive of the enabling language of 28 U.S.C. § 994(j).

(3) Downward Departure: Andrade seeks review of the district court's refusal to depart downward from the guidelines, as is permitted by section 5K2.0. The panel does not have the jurisdiction to review this challenge. See, United States v. Morales, 898 F.2d 99, 100 (9th Cir. 1990).

(4) Career Offender Status: Andrade argues that he was sentenced in excess of the statutory maximum, however, he pled guilty to violating 21 U.S.C. 841 and 846. The maximum term of imprisonment for each count was 30 years, so his sentence of 27 years is less than the possible 60-year sentence he faced.

(5) Flexible Burdens of Proof: Andrade contends that the sentencing Guidelines allow the "court to determine the facts supporting sentencing a defendant as a career criminal by whatever test or burden of proof the court feels like requiring at that time." However, this court has held that the government bears the burden of proof when seeking to raise the offense level while the defendant bears the burden in attempting to lower the offense level. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990).

(6) Withdrawal of Guilty Plea: Andrade argues that because he did not understand the full impact of the Guidelines being declared constitutional, and because most of what he was being told led him to believe that the Guidelines would not be declared constitutional, he should be allowed to withdraw his plea. Rule 32(d) of the Federal Rules of Criminal Procedure provides in pertinent part:

(d) Plea Withdrawal. If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentencing is imposed, ... the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.

This circuit reviews a district court's decision to grant or deny a withdrawal motion for abuse of discretion. United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990) (per curiam).

Defendant Andrade represented himself, with only standby counsel, throughout most of the proceedings. The plea bargaining took place during the brief time when the Ninth Circuit had declared the Guidelines unconstitutional. Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir. 1988). At the district court level, Andrade's case was the exact one in which the lower court judge chose to declare the Guidelines unconstitutional. Therefore Andrade was in a unique position to develop an expectation that the Guidelines were then unconstitutional and likely to remain such.

Although Andrade knew the case was before the Supreme Court, he contends that, as a layperson, he did not understand the full implications of a potential constitutional ruling. He questioned the lower court judge about the impact of a finding of constitutionality and was told.

"Nobody knows at this point--... I mean, nobody knows that if you came back here for re-sentencing later and the Guidelines law was in effect and it effected a heavier sentence, whether that would be a constitutional increase of a person's sentence. None of us knows the answer to that."

Later, when assessing the chances of the Guidelines being found constitutional, the lower court judge said,

"... that the old law is in effect as it is now, and we believe--I don't know what I believe, whether I believe it is going to stay or not. That's up to the Supreme Court."

Because of all the discussion regarding the provisions of the plea agreement, the lower court judge tried to clarify the situation by asking the government,

"I guess what I don't understand, and I suspect maybe Mr. Andrade doesn't, if the government's position is going to be that it would be looking for a higher sentence if the guidelines law were in effect rather than the old law, why would you agree to recommend a lower sentence under the old law?"

The government then added to Andrade's confusion by responding,

"Because I know [the lower court judge] is going to sentence under the old law, and he would not sentence in accordance with what the sentencing guidelines are ... defendant Andrade under the Sentencing Act would be facing, I believe, a sentence of between twenty-seven and thirty-three years ... That is obviously substantially greater than [the lower court judge] has ever given to a defendant, in my knowledge, in a methamphetamine manufacturing operation."

As a consequence of this, we think it quite likely that Andrade was not able to fully understand the implications of the possible finding of Guideline constitutionality. The colloquy below was just too confusing to hold Andrade to the agreement. We vacate on these grounds.

Further, the Guidelines establish a procedure for rejection a plea. Guideline Sec. 6B1.3 states:

Procedure Upon Rejection of a Plea Agreement (Policy Statement) If a plea agreement pursuant to Rule 11(e) (1) (A) or Rule 11(e) (1) (C) is rejected, the court shall afford the defendant an opportunity to withdraw the defendant's guilty plea. Rule 11(e) (4), Fed. R. Crim. P.

Under Fed. R. Crim. P. Rule 11(e) there are three categories of plea agreements: an agreement that moves for the dismissal of other charges (Rule 11(e) (1) (A)); an agreement that makes a recommendation, or agrees not to oppose the defendant's request for a particular sentence with the understanding that such recommendation or request shall not be binding upon the court (Rule 11(e) (1) (B)); and an agreement that agrees that a specific sentence is the appropriate disposition of the case (Rule 11(e) (1) (C)). Although this is a Rule 11(e) (1) (B) case, we find guidance in the Guidelines and allow Andrade the opportunity to withdraw his plea.

CONCLUSION

We vacate this judgment in order to allow Andrade the opportunity to withdraw his plea. If this opinion adds to the confusion about the Guidelines it can only be during the period from the point the Ninth Circuit declared them unconstitutional in Gubiensio-Ortiz, August 23, 1988, to the day they were held constitutional by the Supreme Court in Mistretta, January 18, 1989.

We take judicial notice that the sentencing judge is no longer available and the Chief Judge of the District should decide to give the case to himself or to some other judge in the district.