United States v. Juan Rodriguez-Garcia

MEMORANDUM *

The district court concluded that the government did not breach the plea agreement. We need not decide whether that determination is reviewed de novo or for clear error because, under either standard of review, the determination is erroneous.

The conviction documents that the government received after signing the plea agreement confirmed that Rodriguez-Garcia had been convicted of violating California Penal Code section 245(b). But that information was already disclosed on Rodriguez-Garcia’s rap sheet, which stated that Rodriguez-Garcia had suffered a parole violation with respect to the 245(b) count and had been ordered “to finish term” on that count. Both entries, which were on the same page, contained the identifying label “CNT:01 # D50749,” and no other entries contained a similar identifier. A defendant cannot be ordered to finish a term of incarceration after violating parole unless he was first convicted of the underlying crime. This entry on Rodriguez-Garcia’s rap sheet therefore gave the government actual notice of Rodriguez-Garcia’s 245(b) conviction.

That the government’s lawyer failed to appreciate subjectively the significance of the information…

dissenting:

The plea agreement in this case states:

When the government entered this agreement, it knew that Rodriguez-Garcia had a 2006 felony conviction for the transportation of marijuana. A month later, the government received Rodriguez-Garcia’s criminal history report, which revealed a 1987 assault conviction under section 245(b) of the California Penal Code. Because the criminal history report was “contrary or additional information ... concerning defendant’s criminal history,” the government did not breach the plea agreement when it changed its sentencing recommendation.

The majority disagrees, claiming that a rap sheet in the government’s possession at the time of the agreement disclosed that Rodriguez-Garcia had been convicted of a violation of section 245(b). A fair review of the rap sheet shows nothing of the sort. 1 Even accepting the appellant’s claims about how the codes and abbreviations in the rap sheet should be interpreted, nothing in the rap sheet states that Rodriguez-Garcia was convicted of a violation of section 245(b). Moreover, because other convictions are noted expressly on the rap sheet, the clear inference is that Rodriguez-Garcia was not convicted…

FILED

NOT FOR PUBLICATION NOV 16 2012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. 12-50076

Plaintiff - Appellee, D.C. No. 3:11-cr-05519-LAB-

v.

MEMORANDUM *

JUAN RODRIGUEZ-GARCIA,

Defendant - Appellant.

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

Argued and Submitted November 5, 2012 Pasadena, California

Before: GRABER, IKUTA, and WATFORD, Circuit Judges.

The district court concluded that the government did not breach the plea

agreement. We need not decide whether that determination is reviewed de novo or

for clear error because, under either standard of review, the determination is

erroneous.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Page 2 of

The conviction documents that the government received after signing the

plea agreement confirmed that Rodriguez-Garcia had been convicted of violating

California Penal Code section 245(b).…