United States v. Manzo

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-35848
Plaintiff-Appellee,

D.C. Nos.
v. 2:10-cv-00058-WFN
JOSE LUIS MANZO, 2:07-cr-02042-
Defendant-Appellant.
 WFN-2

UNITED STATES OF AMERICA,  No. 10-35849
Plaintiff-Appellee,

D.C. Nos.
v. 2:10-cv-00058-WFN
JOSE LUIS MANZO, 2:07-cr-02071-
Defendant-Appellant.
 WFN-1

UNITED STATES OF AMERICA,  No. 10-35871
Plaintiff-Appellee,
D.C. Nos.
v.  2:10-cv-03012-WFN
JOSE LUIS MANZO, 2:07-cr-02088-WFN
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding

Argued and Submitted
February 10, 2012—Seattle, Washington

Filed April 5, 2012
3695
3696 UNITED STATES v. MANZO
Before: Mary M. Schroeder, Arthur L. Alarcón, and
Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould
3698 UNITED STATES v. MANZO

COUNSEL

Matthew Campbell, Assistant Federal Public Defender, Spo-
kane, Washington, for the defendant-appellant.

Shawn N. Anderson, Assistant United States Attorney, Yak-
ima, Washington, for the plaintiff-appellee.

OPINION

GOULD, Circuit Judge:

Jose Luis Manzo (“Manzo”) appeals the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate the sentences
he received after (1) his jury conviction of conspiracy to pos-
sess with intent to manufacture a controlled substance in vio-
lation of 21 U.S.C. §§ 841(c), 846; (2) his guilty plea to
distribution of a controlled substance in violation of 21 U.S.C.
§ 841(a)(1); and (3) his guilty plea to a supervised release vio-
lation. We have jurisdiction under 28 U.S.C. §§ 1291, 2253,
and we reverse and remand to the district court for proceed-
ings consistent with this opinion.
 UNITED STATES v. MANZO 3699
I

Manzo was charged, inter alia, with conspiracy to possess
pseudoephedrine with intent to manufacture methamphet-
amine (“the manufacturing case”) and with distribution of 50
or more grams of actual methamphetamine (“the distribution
case”). Manzo was also charged with a supervised release vio-
lation. Manzo went to trial in the manufacturing case, the jury
found him guilty, and sentencing was continued pending reso-
lution of the charges in the distribution case.

Pursuant to a plea agreement, Manzo pleaded guilty in the
distribution case. By accepting the plea agreement, Manzo
agreed, inter alia, to waive his right to direct appeal or collat-
eral attack of his convictions in both the manufacturing case
and the distribution case, except to assert ineffective assis-
tance of counsel and to appeal incorrect Guidelines calcula-
tions and any sentence flowing from such a mistake. The
government agreed, inter alia: (1) that it would not file more
charges against Manzo; (2) that a Sentencing Guidelines base
offense level of 34 applied to Manzo’s criminal conduct in the
distribution case; (3) that the government would recommend
a three-level downward adjustment upon Manzo’s acceptance
of responsibility, adjusting the applicable offense level to 31;
and (4) that the government would recommend that the sen-
tence imposed in the distribution case run concurrently to the
sentence imposed in the manufacturing case.

After accepting Manzo’s guilty plea, the district court set
a date on which, pending the presentence report (“PSR”), sen-
tence would be imposed in the manufacturing case, the distri-
bution case, and the supervised release violation. The PSR
noted that under U.S.S.G. § 3D1.2(d), “[w]hen the offense
level is determined largely on the basis of the total amount of
harm or loss, the quantity of a substance involved, or some
other measure of aggregate harm,” counts are considered to
involve “substantially the same harm” and are to be grouped
into a single group. Accordingly, the PSR grouped the manu-
3700 UNITED STATES v. MANZO
facturing case and the distribution case together, and for the
purpose of determining a single quantity of the two sub-
stances involved in Manzo’s conduct (pseudoephedrine and
methamphetamine), converted each into the comparable
amount of marijuana per the Drug Equivalency Tables and
added the converted amounts together. This calculation
yielded an offense level of 38, not a level of 34 to which the
parties had agreed in the plea agreement for the distribution
case. The PSR also recommended no downward departure for
acceptance of responsibility because Manzo did not meet the
criteria with respect to the manufacturing case in which he
had gone to trial. In addition, the PSR determined that
Manzo’s prior criminal conduct placed him in a Criminal His-
tory Category of III, which, along with an offense level of 38,
yielded a Guidelines range of 292-365 months with respect to
the distribution case sentence, well beyond the 135-168
months that Manzo apparently had expected when he entered
his plea bargain on that count.

Manzo, through his attorney, filed objections to the PSR,
but Manzo’s attorney did not advise Manzo to seek to with-
draw from the plea agreement in light of its failure to take into
account the applicability of the grouping provision. The dis-
trict court overruled Manzo’s objections, concluded that the
PSR correctly grouped the offenses and that a base offense
level of 38 applied to Manzo.

The government agreed with the district court that a base
offense level of 38 was correct based on the grouping provi-
sion and then proceeded to recommend that Manzo be sen-
tenced within the range of 292-365 months that it required,
instead of recommending a base offense level of 34, with a
corresponding guidelines range of 135-168 months.1 With
1
The government stated at the sentencing hearing:
Is there a reason for me to recommend anything less than [the
PSR’s recalculated] range? And I could not, based on his con-
 UNITED STATES v. MANZO 3701
respect to the downward departure based on early acceptance
of responsibility, the government noted that Manzo took
responsibility for his conduct involved in the distribution
case, but the government did not affirmatively recommend, as
agreed, that the district court apply a three-level downward
departure as to Manzo’s distribution case sentence. Manzo did
not argue during the sentencing proceedings and hearing that
in making those recommendations, the government breached
the plea agreement. After hearing from both sides, the district
court sentenced Manzo to 292 months in the distribution case,
240 months, the statutory maximum, in the manufacturing
case, and 16 months for the supervised release violation, all
to run concurrently. On direct appeal, we affirmed the sen-
tence, and concluded, under plain error review, that the gov-
ernment did not breach the plea agreement. See United States
v. Manzo, 337 F. App’x. 642 (9th Cir. 2009) (Manzo I).2

Manzo then filed in the district court a § 2255 motion to
vacate the sentence imposed, asserting ineffective assistance
of counsel and breach of the plea agreement. Manzo argued
that his attorney gave him ineffective assistance of counsel by
not anticipating that the offenses would be grouped for sen-
tencing, and by not advising Manzo to withdraw from the plea

duct, based on, again, the breadth of his conduct, the stiff
offenses that are provided for in the federal guidelines are abso-
lutely appropriate to this type of defendant, to the conduct that
he’s engaged in, again, to the breadth, the scale of it. And if a
guideline range sentence as set forth in the presentence report
isn’t appropriate for Mr. Manzo, then I wonder who it would be
appropriate for.
2
On direct appeal, we affirmed the district court’s determination from
a preponderance of the evidence as to the quantity of pseudoephedrine
involved in Manzo’s conviction in the manufacturing case. Id. at 644. The
district court pointed out that the jury found Manzo responsible for the
amount of pseudoephedrine that the PSR used to calculate the base offense
level. Accordingly, we reject Manzo’s argument that the district court
erred in the amount of pseudoephedrine it attributed to Manzo in sentenc-
ing.
3702 UNITED STATES v. MANZO
agreement once it was clear that the offenses would be
grouped for sentencing. The district court rejected this argu-
ment, concluding that Manzo did not establish constitutionally
deficient performance as required under Strickland v. Wash-
ington, 466 U.S. 668 (1984) because sentencing miscalcula-
tions do not rise to the level of constitutionally deficient
performance. Having reached this conclusion, the district
court did not address the issue of prejudice. Manzo also
argued that the government breached the plea agreement
because it recommended neither a base offense level of 34 nor
a downward departure for acceptance of responsibility, but
the district court rejected this claim concluding that the gov-
ernment performed as promised. Manzo appeals the district
court’s decision on both grounds, ineffective assistance of
counsel and breach of the plea agreement by the government.

II

We review de novo both a district court’s denial of habeas
relief, Lopez v. Schriro, 491 F.3d 1029, 1036 (9th Cir. 2007),
and the effectiveness of counsel, United States v. Labrada-
Bustamante, 428 F.3d 1252, 1260 (9th Cir. 2005). There is
some confusion as to what the standard of review is for
alleged violations of plea agreements. United States v. Trans-
figuracion, 442 F.3d 1222, 1227 (9th Cir. 2006); see also
United States v. Mondragon, 228 F.3d 978, 980 (9th Cir.
2000). Manzo, however, did not raise the issue of breach of
the plea agreement before the sentencing court. Accordingly,
we review Manzo’s plea agreement breach claim for plain
error. United States v. Whitney, ___ F.3d __, 2012 WL
718483 *3 (March 7, 2012). Plain error is “(1) error, (2) that
is plain, and (3) that affect[s] substantial rights . . . . If all
three conditions are met, [we] may then exercise [our] discre-
tion to notice a forfeited error, but only if (4) the error seri-
ously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Cotton, 535 U.S. 625,
631 (2002) (internal citations and quotations marks omitted).
 UNITED STATES v. MANZO 3703
III

We address the appealed claims of ineffective assistance of
counsel and of plea agreement breach in turn.

A

[1] Manzo argues that his counsel gave him ineffective
assistance of counsel. To establish ineffective assistance of
counsel, Manzo must show “both that his counsel’s perfor-
mance was deficient and that the deficient performance preju-
diced his defense.” Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.
1986) (citing Strickland, 466 U.S. at 687). We agree with
Manzo that his counsel’s failure to anticipate that the offenses
would be grouped for sentencing purposes and then advise
Manzo to move to withdraw his agreement to plead guilty was
constitutionally deficient. This was not a minor technical
error, but rather it had major impact on the calculation of the
discretionary Sentencing Guidelines. We have previously
stated that, “[t]hough a mere inaccurate prediction, standing
alone, would not constitute ineffective assistance, the gross
mischaracterization of the likely outcome . . . , combined with
the erroneous advice on the possible effects of going to trial,
falls below the level of competence required of defense attor-
neys.” Id. at 865 (citations omitted). Here, Manzo waived crit-
ical rights without the benefit of understanding the impact that
grouping would have on his sentence. It is hard to avoid the
conclusion that because of the grouping of offenses for sen-
tencing purposes, Manzo did not get the benefit of the bargain
that led him to plead guilty in the distribution case and forego
appeal rights in the manufacturing case. We conclude that his
counsel’s failure to anticipate the applicability of the grouping
provision to Manzo’s sentencing and failure then to advise
Manzo to move to withdraw from the plea agreement was
constitutionally deficient. Id. at 864-65 (concluding that there
was ineffective assistance of counsel where counsel told Iaea
that if he accepted a plea agreement, he would likely be sen-
tenced to probation for his offenses when in fact he was sen-
3704 UNITED STATES v. MANZO
tenced to a life term, a separate 25-year term, and a separate
10-year term).

[2] The question remains, however, whether Manzo was
prejudiced by his counsel’s performance. The effects of
grouping on the offense level and on acceptance of responsi-
bility require assessment in a prejudice analysis of whether if
correctly advised Manzo would have pleaded guilty anyway
and declined the chance to withdraw his plea and go to trial.
The record does not contain the historical views of defense
counsel or of Manzo on these points. The district court did not
address this issue of prejudice, and we decline to engage in
that analysis in the first instance. Accordingly, we REVERSE
the district court’s denial of Manzo’s § 2255 motion and
REMAND the matter to the district court with instructions to
consider whether Manzo was prejudiced by his counsel’s per-
formance.

B

Manzo contends that the government breached its plea
agreement with respect to the distribution sentence by merely
agreeing before the district court that in light of the grouping,
a base offense level of 38 was a correct calculation without
recommending a base offense level of 34, per the agreement’s
terms, and by not recommending a downward departure for
Manzo’s acceptance of responsibility. The government con-
cedes that like Manzo’s attorney, it did not contemplate that
the offenses would be grouped under the Sentencing Guide-
lines. The parties acknowledge then that there was a mutual
mistake as to the applicability of the grouping provision to
Manzo’s convictions. The government argues that it is
excused from performance of its contractual obligations
because of this mutual mistake of law; namely that because
the plea agreement did not contemplate that the sentences
would be subject to grouping, it was appropriate for the gov-
ernment not to perform as expressly promised.
 UNITED STATES v. MANZO 3705
[3] “We construe a plea agreement as a contract between
the prosecutor and the defendant.” United States v. Gonzalez-
Melchor, 648 F.3d 959, 963 (9th Cir. 2011). “[W]hen a plea
rests in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the induce-
ment or consideration, such promise must be fulfilled.” Santo-
bello v. New York, 404 U.S. 257, 262 (1971). We have
previously declined to excuse the government from its con-
tractual obligations under a plea agreement even where the
plea agreement is premised on a mutual mistake of law. See
Transfiguracion, 442 F.3d at 1229 (“The inability to rescind
a plea agreement based on a mutual mistake of law applies to
criminal defendants as well as to the government.”). That both
the government and Manzo’s counsel did not consider the
application of the Sentencing Guidelines grouping provision
does not “void an otherwise valid plea agreement,” and does
not relieve the government of performing as promised. Id. at
1230.

Here, although the manufacturing conviction and the distri-
bution conviction were grouped for the purpose of sentencing,
separate sentences were imposed as to each conviction. With
respect to the distribution case sentence, the government had
agreed that a base offense level of 34 would apply to Manzo’s
sentence and promised to recommend a 3-level downward
departure upon Manzo’s acceptance of responsibility. At the
sentencing hearing, however, the government did neither and
so breached the express terms of the plea agreement.3
3
We address Manzo’s claim on the merits. On direct appeal, we summa-
rily rejected Manzo’s argument that the government breached the plea
agreement. Manzo I, 337 F. App’x. at 642. In an unpublished decision, we
simply stated: “Manzo also argues the government breached the plea
agreement by failing to recommend a downward departure. Manzo
neglected to raise this claim at the sentencing hearing, and no plain error
occurred.” Id. Having so decided, normally, the “law of the case” doctrine
would bar us from reconsidering Manzo’s breach claim here. See United
States v. Scrivner, 189 F.3d 825, 827 (9th Cir. 1999). “The ‘law of the
case’ doctrine provides that one panel of an appellate court will not as a
3706 UNITED STATES v. MANZO
First, with respect to the base offense level, at this hearing
the government agreed that a base offense level of 38 was
correct based on the grouping provision and then recom-
mended that Manzo be sentenced within that range instead of
recommending a base offense level of 34. The government
must be truthful with the district court as to the legal import

general rule reconsider questions which another panel has decided on a
prior appeal in the same case.” Id. at 827 (internal quotation marks omit-
ted); accord White v. United States, 371 F.3d 900, 902 (7th Cir. 2004)
(“Invoking the doctrine of the law of the case, the courts, including our
court, forbid a prisoner to relitigate in a collateral proceeding an issue that
was decided on his direct appeal.”). However, “[a] court may depart from
the law of the case if . . . the first decision was clearly erroneous.” See
Scrivner, 189 F.3d at 827 (citing United States v. Alexander, 106 F.3d 874,
876 (9th Cir. 1997)); see also United States v. Van Alstyne, 584 F.3d 803,
813 (9th Cir. 2009) (stating that the law of the case doctrine is “not an
inexorable command”); White, 371 F.3d at 903 (stating that the law of the
case “must be followed . . . on a later appeal . . . unless . . . the prior deci-
sion was clearly erroneous and would work manifest injustice.”) (internal
quotation marks and citation omitted); United States v. Maybusher, 735
F.2d 366, 370 (9th Cir. 1984) (stating that the law of the case doctrine “ex-
presses only the practice of courts generally to refuse to reopen questions
formerly decided, and is not a limitation of their power.”). The summary
disposition by our court’s prior panel in one conclusory sentence gives us
no hint of the reasoning supporting that decision. By contrast, our review
of the record, described below, supports our conclusion that there was a
breach of the plea agreement by the government and that the previous and
summary conclusion to the contrary in Manzo I was clear error.
Alternatively, the government does not argue that the law of the case
doctrine precludes Manzo from asserting breach of the plea agreement on
this appeal of the district court’s denial of his motion under § 2255.
Accordingly, we deem the issue waived. See United States v. Guess, 203
F.3d 1143, 1145-46 (9th Cir. 2000) (concluding that the government
waived the issue of procedural default in a § 2255 motion when it did not
raise the issue before the district court); see also 5 Charles Wright &
Arthur R. Miller, Federal Practice and Procedure § 1278 (3d ed. 1998)
(“It is a frequently stated proposition of virtually universal acceptance by
the federal courts that a failure to plead an affirmative defense as required
by Federal Rule 8(c) results in the waiver of that defense and its exclusion
from the case.”).
 UNITED STATES v. MANZO 3707
of the grouping provision on the correct guidelines calcula-
tion. United States v. Maldonado, 215 F.3d 1046, 1052 (9th
Cir. 2000) (“We conclude that a plea agreement does not bar
the government from honestly answering the district court’s
questions.”). This obligation, however, did not preclude the
government from answering the district court truthfully and
then performing as promised under the plea agreement,
namely to recommend that the district court, in its discretion,
sentence Manzo in accordance with the promised figure, a
base offense level of 34. Id. (concluding there was no breach
of the plea agreement where “[a]t the sentencing hearing and
in its written objections the government acknowledged its cal-
culation error and stated that it stood by its plea agreement to
recommend a base offense level of 32” even though a level
of 34 was the correct calculation).

[4] Second, with respect to acceptance of responsibility,
although the government said that Manzo took responsibility
for the conduct involved in the distribution case, the govern-
ment did not affirmatively recommend, as agreed, that the dis-
trict court give a three-level downward departure to Manzo’s
distribution case sentence. See Whitney, 2012 WL 718483, at
*4 (“Although the prosecutor uttered the requisite words by
recommending a sentence at the low-end of the guidelines,
her additional statements constituted an argument for a higher
sentence.”). Instead, the government advocated for no adjust-
ment based on Manzo’s acceptance of responsibility because
he went to trial in the manufacturing case and argued for a
sentence far above one within the agreed-upon range in the
plea agreement. See id. at *3 (concluding that the government
breached the plea agreement where it “implicitly argu[ed] for
a sentence greater than the terms of the plea agreement speci-
fied that the prosecution would recommend”). For example,
the government concluded its statements to the district court
by saying, “[Manzo’s] the one that got himself there. I’d ask
that the guideline range sentence [as calculated in the PSR,
which recommended no downward departure for acceptance
of responsibility] be imposed.” Accordingly, although the cir-
3708 UNITED STATES v. MANZO
cumstances involving the misapprehended requirement for
grouping of offenses is mitigating, we conclude that the gov-
ernment breached the express terms of its plea agreement with
Manzo. He did not get what he bargained for in the plea
agreement. This breach in our view would negatively impair
the integrity and reputation of judicial proceedings. It might
further make it harder for the government to reach plea agree-
ments in the future.

[5] The issue of breach is clouded and mitigated by the fact
that the plea agreement was underinclusive in scope and affir-
matively did not anticipate the grouping of offenses for sen-
tencing that would be required. There was certainly no
intentional breach, and the breach occurred only because the
parties hadn’t anticipated grouping. But in any event, Manzo
did not receive the benefit of his bargain, namely “the presen-
tation of a ‘united front’ to the court,” through no fault of his
own. United States v. Alcala-Sanchez, 666 F.3d 571, 575 (9th
Cir. 2012); see also In re Vasquez-Ramirez, 443 F.3d 692,
697 (9th Cir. 2006) (“If the court accepts the agreement and
thus the Government’s promised performance, then the con-
templated agreement is complete and the defendant gets the
benefit of his bargain.”). Because of both the government’s
and Manzo’s counsel’s mistake of law, Manzo, at the time he
entered into the plea agreement, had the reasonable expecta-
tion that the government would at least recommend the down-
ward departure for acceptance of responsibility. See United
States v. De la Fuente, 8 F.3d 1333, 1337 n.8 (9th Cir. 1993)
(“[I]t is the defendant’s understanding at the time of the plea
that controls.”); United States v. Kamer, 781 F.2d 1380, 1387
(9th Cir. 1986) (“In determining whether a plea agreement has
been broken, courts look to what was reasonably understood
by the defendant when he entered his plea of guilty.”) (inter-
nal quotation marks omitted). It would be manifestly unjust to
hold Manzo to the terms of the plea agreement, notwithstand-
ing the unanticipated effects of the grouping provision, yet to
excuse the government from performing per the express
terms. See Whitney, at *7 (“Ignoring the government’s failure
 UNITED STATES v. MANZO 3709
to adhere to this promise in the face of [the defendant’s] own
compliance would substantially challenge notions of fairness
and integrity within the judiciary.”). Our interest then in pre-
serving the integrity of the plea bargaining process along with
principles of equity support our decision to provide relief for
Manzo. See Santobello, 404 U.S. at 260 (“The disposition of
criminal charges by . . . ‘plea bargaining,’ is an essential com-
ponent of the administration of justice.”); see also Morales v.
Trans World Airlines, Inc., 504 U.S. 374, 381 (1992) (citation
and internal quotation marks omitted) (explaining that equita-
ble remedies are traditionally available where no legal remedy
is available). The plea agreement breach and sentencing on a
basis so different from Manzo’s plea agreement was plain
error that affected Manzo’s substantial rights.

IV

We REVERSE the district court’s denial of Manzo’s
§ 2255 motion and REMAND the matter to the district court
with instructions to consider, for the purposes of the ineffec-
tive assistance of counsel claim, whether Manzo was preju-
diced by his counsel’s performance. If so, Manzo’s
distribution conviction and sentence should be vacated, and if
he wants to undertake the attendant risks,4 he may go to trial
on the distribution offense, and may appeal the manufacturing
offense trial conviction, an appeal that was foreclosed by the
plea agreement. If not, we REMAND for resentencing before
a different district judge and order the government’s specific
performance of the terms of the plea agreement. See Mondra-
gon, 228 F.3d at 981 (reasoning that remand to a different
judge does not suggest the fault rests with the sentencing
4
Absent a plea agreement, the government may charge additional
offenses beyond those entered in the plea and that in itself would not be
vindictive prosecution. See United States v. Kent, 649 F.3d 906, 913-14
(9th Cir. 2011) (concluding that there was no presumption of vindictive
prosecution where the government decided to file an additional charge
after Kent decided to enter an unconditional plea instead of to cooperate).
3710 UNITED STATES v. MANZO
judge, rather the fault rests with the prosecutor, and the
Supreme Court requires remand to a different judge).

REVERSED and REMANDED.