United States v. Francisco Santiago-Hernandez

dissenting.

The “bright line rule” under Fed. R.Crim.P. 11(c)(1) that prohibits judges from participating in the plea bargaining process extends to the sentencing phase, and has been recognized to preclude courts from eliciting waivers from the defendant, including waivers of the statutory right to appeal, or of objections to a presentence report. United States v. Bruce, 976 F.2d 552, 556 (9th Cir.1992); United States v. Gonzalez-Melchor, 648 F.3d 959 (9th Cir.2011); United States v. Markin, 263 F.3d 491 (6th Cir.2001). Among the many reasons for extending this prohibition is the explicit recognition that a judge who offers a sentence in exchange for a waiver of some right “may view unfavorably a rejection of the waiver and take that rejection into account at sentencing.” Gonzalez-Melchor, 648 F.3d at 964 . This loss of impartiality, as well as the threat to judicial integrity and the unacceptably-high risk of coercion that unfailingly accompanies a judge’s negotiation with a criminal defendant exists whenever that negotiation takes place, and no matter what type of waiver is sought and whether that negotiation is successful.

Despite the majority’s conclusion to the contrary,…

MEMORANDUM *

Francisco Santiago-Hernandez appeals the sentence imposed by the district court following his guilty plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326 (a). We affirm.

Santiago-Hernandez argues that the district court committed reversible error by supposedly negotiating the sentence with him, relying on United States v. Gonzalez-Melchor, 648 F.3d 959 (9th Cir.2011). There was no negotiation. The record shows that the district judge was thinking out loud about his possible sentencing options and invited the defendant to comment. The defendant objected to one of the options, and the judge imposed the other one. This is unlike Gonzalez-Melchor , where a reduced sentence was offered in exchange for an appeal waiver. See id. at 965 .

Santiago-Hernandez also argues that the district court committed procedural error by failing to explain sufficiently why a twelve-month prison sentence, followed by one year of supervised release was not greater than necessary under 18 *842 U.S.C. § 3553 (a), given that the court was also contemplating a possible five-year probationary sentence. However, the court explained that the defendant’s serious and recent…

FILED

NOT FOR PUBLICATION AUG 14 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50034

Plaintiff - Appellee, D.C. No. 3:11-cr-05151-LAB-

v.

MEMORANDUM *

FRANCISCO JAVIER SANTIAGO-

HERNANDEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted August 7, 2012 Pasadena, California

Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.

Francisco Santiago-Hernandez appeals the sentence imposed by the district

court following his guilty plea to illegal reentry after deportation in violation of

U.S.C. § 1326(a). We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Santiago-Hernandez argues that the district court committed reversible error

by supposedly negotiating the sentence with him, relying on United States v.

Gonzalez-Melchor, 648 F.3d 959 (9th Cir. 2011). There was no negotiation.…