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Sentence Vacated; Remanded Before Different Judge

USA v. Gerardo Farias-Contreras Docket: 21-30055, Opinion Date: February 15, 2023. Defendant appealed his 188-month sentence imposed after he pleaded guilty to a one-count indictment for violation of 21 U.S.C. Sections 841 and 846 pursuant to a plea agreement. He contends that the U.S. Attorney implicitly breached the plea agreement by providing the court, both in its sentencing memorandum and its argument at sentencing, with inflammatory argument and information not relevant to the sentencing determination that could have had but one effect—to increase his sentence beyond the low-end of the U.S. Sentencing Guidelines range. Defendant argued that, by doing so, the government failed to meaningfully abide by its promise in the plea agreement not to recommend a sentence in excess of the low-end of the guidelines range. The Ninth Circuit vacated Defendant’s sentence and remanded for resentencing before a different judge. The panel held that the government implicitly breached the plea agreement, a breach that amounted to plain error. The panel wrote that, at sentencing, the government never once stated affirmatively that it recommended a 151-month sentence or a sentence at the low-end of the calculated guidelines range. The panel rejected the government’s contention that references to damage and danger to society, the community and its families, Defendant’s prior criminal contacts, his high level of culpability, citation to a 30-year-old decision approving life without parole for a minor drug transaction, introduction of the dissension in the U.S. Attorney's Office over the low-end sentence, or its emphasis on the distribution of "massive, massive drug quantities over multiple, multiple years" were made to support the low-end guideline sentence for which the government promised to advocate.

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