F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 14 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 03-2246
v. (D. New Mexico)
OSWALDO MATA-VASQUEZ, (CR-02-1521-WPJ)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY , LUCERO , and TYMKOVICH, Circuit Judges.
Oswaldo Mata-Vasquez pleaded guilty to one count of reentry into the
United States following deportation and a prior conviction for an aggravated
felony, a violation of 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(1). The district court
denied his motion for downward departure on the grounds of diminished capacity
under USSG § 5K2.13, denied his request to continue the sentencing hearing, and
sentenced him to thirty-three months’ imprisonment.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.
Prior to sentencing, Mr. Mata-Vasquez and the government’s attorney
reached an oral agreement that the government would not oppose his motion for
downward departure. Mr. Mata-Vasquez now contends that the government’s
attorney breached that agreement by commenting on Mr. Mata-Vasquez’s criminal
history at sentencing. We agree, and therefore vacate Mr. Mata-Vasquez’s
sentence and remand the case for resentencing before a different judge.
I. FACTUAL BACKGROUND
In August 2002, Mr. Mata-Vasquez pleaded guilty to unlawfully reentering
the United States after a felony conviction, in violation of 8 U.S.C. § 1326(a)(1),
(a)(2), and (b)(1). There was no written plea agreement.
Mr. Mata-Vasquez objected to the initial presentence report and presented a
psychological evaluation that indicated that, with an IQ of 51, he suffered from
diminished capacity. In response, the probation office prepared an addendum to
the presentence report that recommended a downward departure based on
diminished capacity. In turn, Mr. Mata-Vasquez filed a motion for downward
departure. He argued that the offense was non-violent, that he was suffering from
significantly reduced mental capacity, that the diminished capacity was not caused
by the voluntary use of drugs or alcohol, that his diminished capacity contributed
to the commission of the offense, and that his criminal history did not indicate a
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need to protect the public. The motion did not request a specific level of
departure but instead sought a sentence of time-served. Prior to sentencing, Mr.
Mata-Vasquez’s attorney and Assistant United States Attorney Mark D’Antonio
entered into an oral agreement that the government would not oppose a four-level
downward departure on the grounds of diminished capacity.
At sentencing, Mr. Mata-Vasquez’s counsel first sought the four-level
departure that would reduce Mr. Mata-Vasquez’s base offense level to 9, resulting
in a sentencing range of 21 to 27 months. Counsel cited Mr. Mata-Vasquez’s
psychological evaluations and low IQ, which placed him “firmly in the bottom 1%
of the population.” Rec. vol. I, doc. 30, at 2-3 (Evaluation Report filed June 27,
2003). Defense counsel noted that Mr. Mata-Vasquez’s IQ level of about forty
points below the average prisoner placed him “well out of the Heartland,” given
the average IQ levels among the prison population to date. Id. vol. III, at 4
(Sentencing Hr’g dated Sept. 22, 2003) (citing United States v. Adonis , 744 F.
Supp. 336, 341 (D.D.C. 1990)) (“According to the most comprehensive study of
IQ levels and mental retardation among the prison population to date, the average
IQ of this population is 93.2. . . .”). Mr. Mata-Vasquez’s counsel then asked for
an additional two level downward departure, which would result in a sentence
“very close to . . . time served.” Id. at 6.
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In response, Mick Guitierrez, the Assistant United States Attorney handling
the sentencing hearing, conceded that the government had agreed not to oppose a
four-level reduction. However, the AUSA stated “that’s as far as the
Government’s willing to go,” and proceeded to “make a couple of observations.”
Id. at 7. Defense counsel attempted to interrupt, but was quieted by the court.
The AUSA then advised the court that it “may not depart below the
applicable guideline range if . . . the defendant’s criminal history indicates a need
to incarcerate the defendant to protect the public.” Id. (quoting USSG § 5K2.13).
The government observed that Mr. Mata-Vasquez had the highest possible
criminal history category of VI, and reminded the court that Mr. Mata-Vasquez
was convicted of assault and family violence, and theft over $1,500. The
government continued:
Now, the Court may be thinking: Why on the one hand does the
Government agree to four levels and on the other hand say he’s got a
criminal history category VI, and the two don’t comport? And I
think that, in dealing with any type of defendant, the Court will use
its discretion in trying to figure out what is a just result in this. And
I believe, Mr. D’Antonio, in dealing with [defense counsel] – since
he had given his word that he’d be going the four levels, then I won’t
object to that. But I would point out to the Court and caution the
Court to not go any further because of these facts that are presented
in the case.
Id. at 8 (emphasis supplied).
Mr. Mata-Vasquez’s counsel sought a continuance, claiming that the
government’s argument was inconsistent with the agreement made with Mr.
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D’Antonio and violated an oral agreement not to bring up “any negative aspects
about Mr. Oswaldo Mata-Vasquez.” Id. at 9. The court denied the motion. The
court stated that “[t]he Government comments about – or the dispute about what,
in fact, the Government would oppose and not oppose does not influence my
decision.” Id. at 11. The court noted Mr. Mata-Vasquez’s IQ, and then
immediately noted that
Mr. Mata-Vasquez’s presentence report indicates also the following
facts: That at the time of his arrest, he admitted he was a citizen of
Mexico and in the United States illegally; that he has a criminal history
dating back to age 16, in 1995 including a conviction for assault and
family violence in 2000; he has a sixth grade education and specialized
training and skills as a mechanic an electrician, and know how to fix
televisions, VCR’s and radios.
. . . [A]lthough he may not fully comprehend why it is wrong to return
to the United States, he does, apparently, understand the wrongfulness
of his actions.
Id. at 12-13.
The court concluded that Mr. Mata-Vasquez was “not entitled to a
downward departure based on a diminished mental capacity.” Id. at 13. The
court observed, echoing the argument of the AUSA that the “two don’t comport,”
that it was “having troubling squaring an allegation of diminished capacity or IQ
of the range being asserted by the defendant with the long criminal history that is
presented to the Court.” Id.
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The court found that it was not authorized to depart for two reasons: First,
Mr. Mata-Vasquez did “understand the wrongfulness of his actions.” Id. at 13
(referring to USSG 5K2.13 comment (n.1), which defines “significantly reduced
mental capacity” where “the defendant, although convicted, has a significantly
impaired ability to . . . understand the wrongful of the behavior comprising the
offense or to exercise the power of reason.”). Second, “his extensive criminal
history,” id. , suggested “a need to incarcerate the defendant to protect the public.”
USSG § 5K2.13. Finally, the court noted that “[e]ven if departure were
authorized under the facts of this case, which I do not believe it is , I would still
exercise my discretion not to depart.” Id. (emphasis supplied)
Mr. Mata-Vasquez’s counsel again sought a continuance, citing the absence
of Mr. D’Antonio from the hearing. The government did not oppose the
continuance. The court rejected this motion, stating “I put on the record that I
don’t believe any dispute between what . . . Mr. D’Antonio[] may or may not have
said had any influence on my decision to deny[] the motion [to depart].” Id. at
14.
Defense counsel sought another continuance, citing the absence of two
family members who could present testimony regarding Mr. Mata-Vasquez. The
court denied the motion. Defense counsel asked the court to reconsider its refusal
to grant a continuance, citing recent Supreme Court jurisprudence regarding
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mentally incapacitated defendants, and emphasizing Mr. Mata-Vasquez’s
significantly reduced mental capacity. When asked, the government replied that
“the Court can go to sentencing.” Id. at 16.
The court allowed Mr. Mata-Vasquez to make a statement and proceeded to
sentence him to thirty-three months’ incarceration and two years’ supervised
release.
Defense counsel sought an additional continuance, citing the problems Mr.
Mata-Vasquez has faced while in protective custody (which included abuse), and
suggested that prison personnel observations might support a downward
departure. The government opposed the continuance and the court rejected the
motion.
II. DISCUSSION
On appeal, Mr. Mata-Vasquez challenges the district court’s denial of his
requests to continue the sentencing hearing. He contends that the AUSA’s
comments at sentencing breached the government’s agreement that it would not
oppose a four-level downward departure. Mr. Mata-Vasquez requests this court
to vacate his sentence and remand the case for resentencing before a different
judge.
A. Jurisdiction and Standard of Review
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We must first determine whether we have jurisdiction over this appeal. As
a general rule, absent the district court’s misunderstanding of its authority to
depart, we lack jurisdiction to review a sentencing court’s discretionary refusal to
depart downward from the guideline sentencing range. See United States v.
Brown , 316 F.3d 1151, 1154 (10th Cir. 2003). However, we do have jurisdiction
to review a defendant’s contention that the government has breached an
agreement regarding a request for departure. See United States v. Brye , 146 F.3d
1207, 1209 (10th Cir. 1998). “Whether government conduct has violated a plea
agreement is a question of law which we review de novo.” Id. (internal quotation
marks omitted).
B. Breach of the Agreement
Mr. Mata-Vasquez contends that the AUSA’s comments at sentencing
breached the agreement not to oppose a four-level departure motion. The
government disagrees, maintaining that the AUSA “did nothing more than recite
the applicable law . . . , refer the court to the facts in the presentencing report,
and urge the court not to depart more than four levels.” Aple’s Br. at 19.
According to the government, “[t]he fact that the court disagreed with both [Mr.]
Mata-Vasquez and the government and denied [Mr.] Mata-Vasquez’s motion does
not mean that the government breached its agreement.” Id.
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The parties acknowledge that the oral agreement in question was equivalent
to a plea agreement. We therefore consider our plea agreement jurisprudence,
applying general principles of contract law to determine the obligations of the
parties. See Brye , 146 F.3d at 1210. This Court construes the agreement
according to “what the defendant reasonably understood” at the time of the
agreement. United States v. Veri , 108 F.3d 1311, 1313 (10th Cir. 1997). We will
hold the government to those promises “that it actually made to the defendant.”
United States v Peglera , 33 F.3d 412, 413 (4th Cir. 1994).
Moreover, “[b]oth to protect the plea bargaining defendant from
overreaching by the prosecutor and to insure the integrity of the plea bargaining
process, the most meticulous standards of both promise and performance must be
met by the government.” United States v. Ingram , 979 F.2d 1179, 1184 (7th Cir.
1992). “Because a government that lives up to its commitments is the essence of
liberty under law, the harm generated by allowing the government to forego its
plea bargain obligations is one which cannot be tolerated.” Peglera , 33 F.3d at
414.
Applying those principles, this court has carefully scrutinized the
statements of government lawyers who have allegedly violated plea agreements
through arguments at sentencing. We have concluded that a government lawyer
may not “accomplish ‘through indirect means what it promised not to do
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directly.’” United States v. Hawley , 93 F.3d 682, 692 (10th Cir. 1996) (quoting
United States v. Hand , 913 F.2d 854, 856 (10th Cir. 1990) (internal quotation
marks omitted). In determining whether the government has fulfilled its
obligations, we have considered not only attorneys’ explicit statements but also
the implications of those statements, noting that the government may breach an
agreement by “thinly disguised . . . effort[s] to persuade the court in a way that
the government promised it would not do.” Brye , 146 F.3d at 1213 (quoting
Hawley , 93 F.3d at 693).
For example, in Brye , we concluded that the government had breached its
agreement not to oppose a motion for downward departure on the grounds of
coercion and duress by the defendant. Although the government attorney did not
expressly state that it opposed the departure motion, he did refer the court to the
Guidelines and the record in the following terms:
Section 5K2.12 speaks of “serious” duress. The
guideline drafters further provided that the extent of
departure, if any, should be based upon the reasonableness
of the defendant's conduct and whether it would have
[been] less harmful.
One of the best methods for the court to determine
this issue is to review the defendant’s own words , captured
in a wiretap, as he spoke those words just prior to, and
after, the car chase. They reflect defendant's decisions in
dealing with what had, undisputably, been a long-standing
“family” matter, potentially involving inter-family
violence. The real issue seems to be whether the “duress”
was so extreme that defendant acted reasonably by
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breaking the law to protect himself and others, or whether
this was a case of mutual combatants.
146 F.3d at 1213 (emphasis added).
We concluded that the implication of this statement was clear: Judge
Briscoe, writing for the court, noted: “By pointing out the ‘real issue’ and
highlighting the ‘defendant’s own words’ as ‘one of the best methods for the
court to determine this issue,’ the government was obviously, albeit subtly, taking
a position on whether defendant should receive a downward departure for
coercion and duress.” Id. We added that “perhaps the best indication of the fact
that the government’s statements were meant to persuade is that the court
ultimately resolved defendant’s motion by reviewing defendant’s ‘own words’ in
the tape-recorded conversations and concluding the brothers had a ‘mutual
disagreement.’” Id.
Brye is applicable here. Like the prosecutor in Brye , the AUSA, although
not directly opposing the motion for downward departure, informed the district
court that a four-level departure did not “comport” with Mr. Mata-Vasquez’s
criminal history. The government then sought to distance itself from its words by
suggesting to the court that it had the discretion to determine the appropriate
result in the case. The AUSA undermined the persuasive effect of the
government’s agreement to a four-level departure by pointing to parts of the
record that suggested that departure was not warranted – indeed, not possible –
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and by reminding the court that it need not depart as much as the parties had
agreed. See United States v. Cooper , 70 F.3d 563, 567 (10th Cir. 1995) (noting
that “[t]he prosecutor has many ethical duties, including ethical duties of deciding
what charges to bring and what plea agreements to make” and stating that “[i]f at
a later date the government discovers facts that cause it to believe that its
prosecutorial discretion was not properly exercised, it has the ethical obligation to
withdraw from the plea agreement and advise the defendant so that he or she may
prepare for trial or renegotiate”)
As in Brye , this was “a thinly disguised, if disguised at all, attempt to
persuade the court in a way that the government had promised it would not do.”
146 F.3d at 1213. Moreover, just as in Brye , the persuasive effect of the
government’s indirect advocacy against departure is apparent from the district
court’s ruling. In refusing to depart to any degree, the court referred to Mr. Mata-
Vasquez’s history—the very factor that the AUSA had stated did not “comport”
with departure. We therefore conclude that the government breached its
agreement not to object to a four-level departure.
C. Remedy for Breach
Having determined that the government breached the agreement, we turn to
the question of remedy. When the government inadvertently breaches a plea
agreement, “the interests of justice and appropriate recognition of the duties of
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the prosecution in relation to promises made in the negotiation of pleas of guilty
will be best served by remanding the case to the state courts for further
consideration.” Santobello v. New York, 404 U.S. 257, 263 (1971). Following
Santobello , this circuit has remanded cases to the district court to determine
whether the appropriate remedy for the government’s breach of the plea
agreement should be withdrawal of the plea agreement or resentencing before a
different judge. See Brye , 146 F.3d at 1214; Hawley , 93 F.3d at 694.
Here, Mr. Mata-Vasquez seeks only resentencing before a different judge.
That remedy is pro forma , and usually afforded. See Brye , 146 F.3d at 1213
(“Since it does not appear that the government’s breach [was] egregious or
intentional, . . . we remand only for resentencing by a different judge.”). The fact
that the district court stated that the AUSA’s comments did not affect its decision
does not alter our analysis. See Santobello, 404 U.S. at 262 (stating that it need
not consider whether the prosecutor’s recommendation influenced the sentencing
court); Hawley , 93 F.3d at 693 (“The government breached its plea agreement
with Hawley, and Hawley is entitled to relief regardless of whether the
government’s conduct actually affected the sentencing judge.”) (emphasis
supplied). As in Santobello , “[w]e emphasize that this is in no sense to question
the fairness of the sentencing judge; the fault here rests on the prosecutor, not on
the sentencing judge.” 404 U.S. at 263.
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III. CONCLUSION
Accordingly, we conclude that Mr. Mata-Vasquez is entitled to specific
performance of the government’s agreement not to oppose, either directly or
indirectly, a four-level downward departure. We therefore VACATE Mr. Mata-
Vasquez’s sentence and remand for resentencing by a different judge.
Entered for the Court
Robert H. Henry
Circuit Judge
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