United States v. German Valentin Ruiz

935 F.2d 1033 UNITED STATES of America, Plaintiff-Appellee, v. German Valentin RUIZ, Defendant-Appellant. No. 90-50165. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 8, 1991. Decided June 6, 1991. Joseph T. Vodnoy, Los Angeles, Cal., for defendant-appellant. Edward R. McGah, Jr., Asst. U.S. Atty., Santa Ana, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Alicemarie H. Stotler, District Judge, Presiding. Before BROWNING, D.W. NELSON and REINHARDT, Circuit Judges. D.W. NELSON, Circuit Judge: 1 German Valentin Ruiz appeals his guideline sentence of 151 months for possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841 (a)(1). He claims that the district court erred in refusing to follow the holding of United States v. Restrepo, 883 F.2d 781 (9th Cir.1989) (Restrepo I ), which was withdrawn between his plea agreement and sentencing, 896 F.2d 1228 (9th Cir.1990), and that such a refusal constituted a violation of the ex post facto clause of the Constitution. See U.S. Const. art. I, Secs. 9, 10. We affirm. FACTUAL AND PROCEDURAL BACKGROUND 2 On October 6, 1989, the…

German Valentin Ruiz appeals his guideline sentence of 151 months for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841 (a)(1). He claims that the district court erred in refusing to follow the holding of United States v. Restrepo, 883 F.2d 781 (9th Cir.1989) (Restrepo I), which was withdrawn between his plea agreement and sentencing, 896 F.2d 1228 (9th Cir.1990), and that such a refusal constituted a violation of the ex post facto clause of the Constitution. See U.S. Const, art. I, §§ 9, 10. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 6, 1989, the grand jury returned a three-count first superseding indictment charging appellant Ruiz and a co-defendant with 1) conspiring to distribute approximately 200 kilograms of cocaine in violation of 21 U.S.C. § 846 ; 2) distributing approximately 2 kilograms of cocaine in violation of § 841(a)(1); and 3) possessing with intent to distribute approximately 50 kilograms of cocaine in violation of the latter section. Appellant pled guilty to the third count, and the government and appellant stipulated that the cocaine forming the basis for that count weighed 49, not 50, kilograms.

Following appellant’s…

concurring in the judgment.

The record of the sentencing hearing demonstrates that the government entered into a plea agreement with Ruiz knowing he would misunderstand its effect. At the time the agreement was reached, it was the government’s undisclosed intention to ask that the defendant not be sentenced in accordance with Restrepo I. Moreover, the government knew that Ruiz entered into the agreement in the belief that Restrepo I would be applicable to his case. It was only because of that belief that the defendant sought the change from 50 to 49 kilograms. In the absence of Restrepo I the change would have been of absolutely no significance — as it ultimately turned out to be. The government deliberately did not inform Ruiz that it intended to argue to the district court that Restrepo I should not apply. Instead, through its silence, it misled him as to the practical effect of the bargain he negotiated. While the government may have breached no express promise, its actions display a lack of sensitivity to the nature of the prosecutor’s role. Nonetheless, because Ruiz was given an opportunity to withdraw his plea, he was not prejudiced by the government’s conduct. Accordingly,…