United States v. William H. Hicks

CUDAHY, Circuit Judge,

concurring in part and dissenting in part.

As the multiple opinions in Gonzalez in the Ninth Circuit suggest, see United States v. Gonzalez, 16 F.3d 985 (9th Cir.1993) (merits) and United States v. Gonzalez, 981 F.2d 1037, 1038 (9th Cir.1992) (Kozinski, J., dissenting on preliminary motion to dismiss), the solution to this puzzle is not obvious. The majority says that it does not condone the government’s handling of the matter, but the government seems to have successfully precluded our examination of the merits by securing a promise not to appeal as part of an agreement that the government has now-breached.

I do not agree with the majority that it is “splitting hairs” to see the defendant’s waiver of. the breach of the plea bargain as' it affects the acceptance of responsibility claim as separate and distinct from the issue of his right to appeal. As Gonzalez points out:

Where the sole purpose of asserting a plea agreement breach is to avoid a waiver of the right to appeal, it would be meaningless to make such an argument below for the simple reason that district courts need not concern themselves with a defendant’s appeal beyond informing him of the right.

16 F.3d at 989.

We, not the district court, are the first level at which the question of appeal rights can be meaningfully raised. To determine whether there is a right to appeal, we must decide whether the plea agreement has been breached. I would hold that it had been, but only for the limited purpose of examining the acceptance of responsibility issue.1 And ap*382pellate review of that issue, at least as it is governed by the plea bargain, is presumably limited to plain error since breach of the plea agreement was not raised below. Unlike the Gonzalez merits panel, I would not hold that all points raised at the district court are now open to appellate review. I would restrict the appeal to “the narrow issue of whether the government has breached its responsibilities under the plea agreement.” Maj. Op. at 380. If we conclude, as I think we should— even as a matter of plain error — “that the government did indeed breach its side of the bargain, the most [Hicks] could hope for is specific performance, which ... would be the promised three-level departure downward for acceptance of responsibility.” Id.

As Judge Kozinski notes in his dissent in Gonzalez (motion to dismiss):

There’s no justification, however, for permitting Gonzalez to bring an appeal as to any other issue, as he now proposes to do.... Were we to conclude the government breached its side of the bargain, the most Gonzalez could possibly hope to receive is a two-level downward departure for acceptance of responsibility. Alternatively, of course, defendant could seek to set aside the plea bargain and go to trial, obviously risky business.

981 F.2d at 1041 (citation and footnote omitted).

Here the majority as much as concedes that the government has breached its plea bargain. I agree. I would therefore reverse the adjustment of two instead of three levels for acceptance of responsibility and remand for resentencing in accordance with this opinion, and particularly with the understanding that under the plea bargain the government is bound to advocate an adjustment of three levels. In the alternative, the defendant may ask to withdraw the guilty plea and go to trial.

Essentially, it seems to me that a breach of a plea agreement as it affects the right to appeal is not waivable in the district court. It is a matter for our determination in the first instance. I therefore respectfully dissent to the extent indicated.

. Here, in contrast to the Gonzalez merits panel’s -. hypothesis, the defendant seeks specific performance of the plea agreement, so his assertion of . a plea agreement breach in the trial court would not have been for the “sole purpos'e’’ of avoiding a waiver of his appeal right. Nevertheless, as in Gonzalez, the defendant's "inaction ... has no bearing'on whether the government did in fact breach the agreement for purposes of determin*382ing whether [the defendant] may bring this appeal at all.” 16 F.3d at 989.