Unpublished Disposition, 865 F.2d 266 (9th Cir. 1987)

MEMORANDUM^* 

Defendant Salcedo, along with nine other defendants, was charged in a twenty-four count indictment for conspiracy to aid and abet the distribution of cocaine, causing a financial institution to file false currency transaction reports, making a false document within the jurisdiction of a federal agency, money laundering, and aiding and abetting. Pursuant to a written plea agreement with the government, defendant Salcedo pleaded guilty to counts three, thirteen and sixteen of the indictment, which charged him with causing a financial institution to file a false currency transaction report (count three), and aiding and abetting the making of a false document within the jurisdiction of a federal agency (counts thirteen and sixteen). The district court on November 23, 1987, sentenced Salcedo to five years on count three, two years on count thirteen to run consecutively to the sentence on count three, and a suspended sentence with probation on count sixteen. Salcedo appeals the conviction and sentence, claiming that the government failed to live up to its end of the plea agreement at the sentencing hearing and that the district judge failed to comply with Federal Rule of Criminal Procedure 11(e) (4). Finding none of his claims persuasive, we affirm the conviction and sentence.

The plea agreement between Salcedo and the government provided in pertinent part that:

(5) ... At sentencing, the government will advise the court of Mr. Salcedo's cooperation or lack thereof with law enforcement.

(6) If Mr. Salcedo fully complies with the understanding specified in this agreement, the United States Attorney's Office for the Central District of California will not use any of the information derived therefrom, to prosecute him for any offense arising in the Central District of California. The government also will recommend that any term of imprisonment imposed on more than one count run concurrently with any term of imprisonment on the other two counts. The government will also recommend that the court not sentence Mr. Salcedo to more than three years in prison. E.R. at 41.

Salcedo argues that the government failed to comply with the agreement in two ways. First, he claims the government violated the agreement by using information obtained from him pursuant to the agreement against him at sentencing. Second, Salcedo claims that the government violated the agreement by undermining the credibility of the three-year sentence recommendation by "expressing reservations about the soundness of the recommendation" Brief of Appellant at 17.

Since neither of these alleged breaches of the plea agreement was raised below, this panel must determine de novo the meaning of the agreement and whether it has been violated. In interpreting the agreement, we must apply contract law standards of interpretations. In particular, we look to "what was 'reasonably understood by [the defendant] when he entered his plea of guilty.' " United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979) (quoting United States v. Crusco, 536 F.2d 21, 27 (3rd Cir. 1976)).

* Salcedo's first claim is easy to dispense with. Assuming that the government used information obtained from Salcedo against him at sentencing, this action would not have violated the plea agreement, which only provided that the government would not use any information given by Salcedo to "prosecute" him. Moreover, even if sentencing is considered part of prosecution for the purposes of the agreement, Salcedo's claim does not prevail. The information that the government allegedly "used against" Salcedo was the fact that he was at the top of the criminal hierarchy. This fact had already been alleged, albeit in somewhat different terms, in the indictment itself, which was obviously filed before the plea agreement was executed.

II

Salcedo's second claim is more complicated. Although Salcedo recognizes that the Supreme Court in United States v. Benchimol, 471 U.S. 453 (1985) held that, absent specific contractual agreement to the contrary, the prosecutor is not obliged to "enthusiastically" support any sentence recommendation it makes pursuant to a plea agreement, Salcedo argues that the government nevertheless may not undermine the recommendation by expressing reservations about it to the sentencing judge. Salcedo points out that the Court in Benchimol itself, a case in which the prosecutor merely concurred in defense counsel's restatement of the sentence recommendation called for by the plea agreement without elaboration or explanation, noted that the prosecutor had simply refused to enthusiastically support the recommendation, but had not expressed reservations about it.

In making his argument, Salcedo focuses on four exchanges between the district judge and the prosecutor. Each of these exchanges, Salcedo contends, amounts to the government "expressing reservations" about its recommendation. We cannot agree with Salcedo's interpretation of the record.

First, Salcedo alleges that the prosecutor violated the agreement by not taking issue with the district judge when the judge "conclude [d] tentatively ... that I really ought not to pay much attention to these [sentencing] recommendations [regarding Salcedo and other defendants]." See Brief of Appellant at 9-10. This argument is unpersuasive. First, as the Supreme Court has explicitly held, there is simply no duty to enthusiastically push for a recommendation. If a judge decides to disregard a sentence recommendation even in the face of the prosecutor's intelligent articulation of the reasoning behind the recommendation, the prosecutor need not persist in trying to convince the judge otherwise. Moreover, the prosecutor in this case did try to convince the district judge that he ought to take the recommendations seriously after the district judge made the statement quoted above. When viewed in context, this exchange does not a constitute breach of the plea agreement.

The same is true of the statement by the prosecutor that the contours of the hierarchy became more clear after the plea agreement was entered into. Salcedo claims that the government tried to deceive the district judge at sentencing, by making him think that at the time the three-year sentence recommendation was agreed to the government did not know that Salcedo was at the top of the organization, the implication being that the government would have recommended a longer sentence had it been aware of all the facts. As noted above, the indictment itself alleges that Salcedo was at the top of the criminal hierarchy, and the statement that Salcedo relies upon to demonstrate government deceit is nothing more than a simple answer to a question put by the judge. There was no deceit involved. Moreover, right after the offending statement was made, the prosecutor tried to defend the three-year recommendation. Viewed in context, this exchange does not constitute breach.

Salcedo also relies on a third comment by the prosecutor: that a 50% reduction from a sentence of 12 to 16 years would not be unreasonable. See Brief of Appellant at 26. Because, however, in making this statement the prosecutor made clear that he was not backing away from the three-year sentence recommendation, but instead was merely commenting on the extent to which the sentence should be reduced because of cooperation, we do not believe that this remark by itself undermined the recommendation.

The fourth exchange is a bit more difficult. It took place when the district judge asked the prosecutor to explain the reasoning behind the three-year recommendation. One of the three reasons given by the prosecutor was that the government did not think the judge would agree that a sentence longer than three years was appropriate. The clear implication of the prosecutor's statements is that the government would have asked for a longer sentence if it knew then what it knows now. Salcedo argues that this was tantamount to a "personal reservation" about the recommendation in violation of the plea agreement. Although the question is a close one, we do not agree. In arriving at this conclusion, we take note of the fact that the prosecutor, shortly after making the damaging statement, vigorously defended the three-year recommendation, stressing the extent of Salcedo's cooperation. Moreover, the damaging statement Salcedo relies upon came in response to a direct question by the district judge. Salcedo does not argue that the prosecutor has the authority to lie to or refuse to answer relevant questions from the district judge. We hold that on the facts of this case that the prosecutor, when placed in a somewhat awkward position, discharged his obligations under the plea agreement.

III

Salcedo's final claim does not relate to the plea agreement; instead it is predicated on Federal Rule of Criminal Procedure 11(e) (4).¹  Salcedo claims that Rule 11(e) (4) imposes a duty upon judges who know at the time of the plea that the recommended sentence will not be followed to so advise the defendant when the plea is accepted. Because Judge Hupp did not so advise Salcedo at the time the plea was accepted, the argument runs, Salcedo should now be able to withdraw his plea. Salcedo recognizes that there is no case authority for reading into Rule 11(e) (4) such a duty, but would have this panel fashion a new rule of law.

We need not reach the question of whether district judges should be subject to the duty Salcedo describes, however, because we conclude that Salcedo has not demonstrated that Judge Hupp knew, at the time the plea was accepted, that he would not follow the sentence recommendation. As we read the record, Judge Hupp simply had not considered the sentence question when he accepted the plea. Indeed, in the course of informing Salcedo (many times) that the recommendation was just that--and no more--Judge Hupp indicated that he would and could not sentence until he considered all the variables discussed in the probation report.

For the foregoing reasons, the conviction and sentence of the district court are

AFFIRMED.