UNITED STATES of America, Plaintiff-Appellee, v. Carlos Oswaldo CORDOVA-PEREZ, Defendant-Appellant

Opinion by Judge THOMPSON; Dissent by Judge FERGUSON.

Carlos Oswaldo Cordova-Perez was convicted in federal district court of violating 8 U.S.C. § 1326 (b)(2). In this appeal, he contends his prosecution was precluded by a state court plea agreement. He also contends the district court violated Rules 11(e) and 32(b)(3) of the Federal Rules of Criminal Procedure when, after accepting his plea of guilty to a lesser charge, the district court reviewed his presentence report, changed its mind on the basis of information contained in the report, revoked its earlier acceptance, and forced him to go to trial for the greater crime, of which he was convicted. Cordova-Perez also argues his trial on the greater charge violated the Double Jeopardy Clause of the United States Constitution.

We have jurisdiction under 28 U.S.C. § 1291 . We reject each of Cordova-Perez’s arguments and affirm his conviction.

I

On October 21, 1993, Cordova-Perez was arrested in Whitefish, Montana and charged in state court with possession of dangerous drugs with intent to sell. He entered a plea agreement, pursuant to which a 10-year sentence was suspended, and he was to be released to the custody of federal…

dissenting:

Because the district court violated both the Constitution and the Federal Rules of Evidence by sua sponte vacating the defendant’s accepted guilty plea, I must dissent.

The defendant in this case was charged in a one count indictment for unlawful entry into the United States after having been deported as an aggravated felon. 8 U.S.C. § 1326 (b)(2). He pleaded not guilty, but subsequently entered into a plea agreement with the government. In accord with the plea agreement, the defendant agreed to plead guilty to the lesser included offense of illegal reentry, 8 U.S.C. § 1326 (a), in exchange for dismissal of the greater offense.

At his ehange-of-plea hearing, the defendant pleaded guilty to the lesser included offense. The district judge questioned the defendant and ascertained that the he was acting voluntarily, that he understood all his rights, and that there was a factual basis for the plea. The district judge unconditionally accepted his guilty plea to the lesser included offense.

The district court then ordered a presen-tence report. After reading the report, the district judge rejected the plea agreement and, over defendant’s objection, vacated the guilty…

65 F.3d 1552 95 Cal. Daily Op. Serv. 7469 , 95 Daily Journal D.A.R. 12,802 UNITED STATES of America, Plaintiff-Appellee, v. Carlos Oswaldo CORDOVA-PEREZ, Defendant-Appellant. No. 94-30298. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 4, 1995. Decided Sept. 25, 1995. Michael Donahoe, Assistant Federal Public Defender, Helena, MT, for defendant-appellant. Robert J. Brooks, Assistant United States Attorney, Butte, MT, for plaintiff-appellee. Appeal from the United States District Court for the District of Montana. Before: SKOPIL, FERGUSON and THOMPSON, Circuit Judges. Opinion by Judge THOMPSON; Dissent by Judge FERGUSON. THOMPSON, Circuit Judge: 1 Carlos Oswaldo Cordova-Perez was convicted in federal district court of violating 8 U.S.C. Sec. 1326 (b)(2). In this appeal, he contends his prosecution was precluded by a state court plea agreement. He also contends the district court violated Rules 11(e) and 32(b)(3) of the Federal Rules of Criminal Procedure when, after accepting his plea of guilty to a lesser charge, the district court reviewed his presentence report, changed its mind on the basis of information contained in the report, revoked its earlier…