United States v. Micael Hernandez-Ortega

MEMORANDUM *

Because we write solely for the parties, we will address only those facts necessary to our decision — albeit in more detail than usual in view of our colleague’s dissent.

BACKGROUND

On October 16, 2008, Hernandez-Ortega pleaded guilty pursuant to a Fed. R.Crim. Pro. § 11(c)(1)(C) plea agreement to being an illegal alien found without permission in the United States following deportation. He had been deported in 2002 following his convictions of lewd acts upon children under the age of fourteen, in -violation of California Penal Code section 288(a). His convictions resulted in a sentence of ten years in state prison.

In the plea agreement, the parties agreed and stipulated to a base offense level of 8 and a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii) for deportation after conviction of a felony *672 that is a crime of violence, to wit his child molesting convictions. As part of the U.S. Attorney’s “fast track” program, the parties stipulated to a sentence at the low end of the Guidelines range. This program is designed to extend favorable consideration in immigration related cases to those who accept responsibility and thereby reduce the burden…

dissenting:

I have no doubt that the plea agreement was breached in this case. The district court, aware of the government’s obligations under the agreement, but unhappy with its position, expressed its dissatisfaction and asked the prosecutor to give his own personal opinion. The prosecutor answered the judge’s question honestly and, in doing so, expressed his disagreement with the recommendation that his office was bound to make. The district judge then complimented the prosecutor on his honesty.

*676 The district judge should not have asked the prosecutor to express a personal view that might well differ from that of the government. At the same time, faced with the court’s question, the prosecutor should either have simply said that he adhered to the plea agreement or declined to make any further comment. Instead, by expressing a personal view contrary to that of the government, he violated the terms of the amended plea agreement. In that agreement, the government had promised “not to seek, argue or suggest in any way, either orally or in writing ... that the court impose a sentence other than what ha[d] been stipulated to.” (Emphasis added.) Despite the terms of the…

BACKGROUND

On October 16, 2008, Hernandez-Ortega pleaded guilty pursuant to a Fed. R.

Crim. Pro. y 11(c)(1)(C) plea agreement to being an illegal alien found without

permission in the United States following deportation. He had been deported in

2002 following his convictions of lewd acts upon children under the age of

fourteen, in violation of California Penal Code section 288(a). His convictions

resulted in a sentence of ten years in state prison.

In the plea agreement, the parties agreed and stipulated to a base offense

level of 8 and a 16-level enhancement pursuant to U.S.S.G. y 2L1.2(b)(1)(A)(ii)

for deportation after conviction of a felony that is a crime of violence, to wit his

child molesting convictions. As part of the U.S. Attorney's 'fast tracµ' program,

the parties stipulated to a sentence at the low end of the Guidelines range. This

program is designed to extend favorable consideration in immigration related cases

to those who accept responsibility and thereby reduce the burden on our judicial

system. The parties further agreed 'not to seeµ, argue, or suggest in any way,

either orally or in writing, that . . . the Court impose a…