United States v. Walter Rausini

MEMORANDUM *

Walter Pierre Rausini appeals the district court’s imposition of sentence following the government’s motion for sentence reduction pursuant to Federal Rule of Criminal Procedure 35. We vacate and remand.

The government breached its post-conviction agreement with the defendant by submitting to the district court a letter from a co-defendant’s family member that argued for no sentence reduction. The letter did not fall under the Crime Victims’ Rights Act, as asserted by the government before the district court, because the author of the letter was not a family member of one of the victims. See 18 U.S.C. § 3771 (e) (defining crime victims as “legal guardians of the crime victim or the representatives of the crime victim’s estate, family members, or any other persons appointed as suitable by the court”). Nor did the letter fall within the government’s promise in the agreement to elicit the views of the victims’ families because the author was not part of either family.

The government does not contest that precedent regarding the breach of plea agreements applies to Rausini’s claim that the government breached his cooperation agreement. When the defendant’s plea “rests…

dissenting:

I respectfully dissent.

I agree with the district court that there was no breach of the November 8, 2000 agreement. The government did nothing more than forward to the judge a letter specifically addressed to the judge that should have been sent to the judge directly but was sent to the U.S. Attorney’s Office instead. The government did not solicit the letter, argue that the letter was relevant, should be taken into account, or had any significance whatsoever. It simply acted as a conduit. Nothing in the agreement prohibited this, and government counsel can hardly be faulted for failing to hide from the judge a communiqué intended for her but misdirected to them.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT APR 26 2013

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 11-10601

Plaintiff - Appellee, D.C. No. 3:95-cr-00319-MHP-

v.

MEMORANDUM*

WALTER PIERRE RAUSINI,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Marilyn H. Patel, Senior District Judge, Presiding

Argued and Submitted April 15, 2013 San Francisco, California

Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

Walter Pierre Rausini appeals the district court’s imposition of sentence

following the government’s motion for sentence reduction pursuant to Federal

Rule of Criminal Procedure 35. We vacate and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The government breached its post-conviction agreement with the defendant

by submitting to the district court a letter from a co-defendant’s family member

that argued for no sentence reduction. The letter did not fall under the…