Metropolitan News-Enterprise


Thursday, August 7, 2008


Page 1


Court Rejects Attempt to Amend Indictments After Plea Entry


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals ruled yesterday that the government could not use three defendants’ rights against them to excuse its failure to plead a charge increasing their sentences from two to 20 years.

Ordering the district court to accept the men’s guilty pleas, a three-judge panel rejected the government’s argument that magistrate judges who warned the defendants during plea colloquies that an unpled subsection of the statute they were accused of violating might result in term longer than their indictments indicated violated the men’s right to know their maximum possible sentence.

“These consolidated cases show again why the ten most terrifying words in the English language may be, ‘I’m from the government and I’m here to help you,’” Chief Judge Alex Kozinski wrote.

Previoiusly Removed

Guillermo Garcia-Aguilar, Erick Manjarrez-Cervantez and Fredis Avilo Mejia-Lemus were each arrested for reentering the country illegally after having previously been removed, and were charged in indictments alleging violations of 8 U.S.C. § 1326.

The statute generally provides for a maximum term of imprisonment of two years, and each defendant, in proceedings before magistrate judges in the U.S. District Court for the Southern District of California, entered unconditional guilty pleas.

During plea colloquies, the magistrate judges advised the defendants that, as having previously been removed after being convicted of a felony, each could face a possible maximum sentence of 20 years under a more specific provision, Sec. 1326(b)(2).

The magistrate judges then recommended acceptance of the pleas by the district court, but the government, realizing its failure to specifically allege the men had been convicted of felonies prior to removal, brought superseding indictments specifically alleging violations of the subsection.

Acceptance Declined

U.S. District Judges Larry A. Burns, Roger T. Benitez and Audrey B. Collins declined to accept the respective pleas, agreeing with the government that the magistrate judges—by advising the defendants they could face up to 20 years, rather than a mere two under the statute cited in the original indictments—had failed to identify the “maximum possible penalty” as required by Federal Rule of Criminal Procedure 11(b).

But the Ninth Circuit, on the defendant’s petition for a writ of mandamus, ordered the district court to reverse course.

“Rule 11(b) is there for the defendant’s benefit, so it seems quite noble at first for the U.S. Attorney to stick up for defendants’ rights,” Kozinski wrote. “But this generosity comes at a steep price…18 years more than the two-year maximum sentence available under defendants’ original indictments, which did not charge any conduct that could increase the maximum penalty.”

Noting that the defendants “reject the government’s help,” Kozinski said that the government should have known that the sequence of the defendants’ prior conviction and removal was a fact separate from the prior conviction itself requiring a separate charge in the indictment and proof at trial under the U.S. Supreme Court’s decision in Apprendi v. New Jersey (2000) 530 U.S. 466.

Even if federal prosecutors misunderstood Apprendi, he continued, they should have realized their mistake when briefs filed in another case in the Southern District raised the issue before the defendants entered their pleas.

“At that point, the U.S. Attorney likely could have brought superseding indictments alleging the necessary fact,” Kozinski wrote. “Instead, the prosecutors extracted unconditional guilty pleas to the original indictments.”

Alleged Error

Turning to the magistrate judges’ alleged error, Kozinski noted that Rule 11(b) required only that the judges tell the defendants the possible maximum sentence, and said that judges had correctly warned the defendants because 20-year sentences were “entirely possible” under the court’s previous opinion in United States v. Salazar-Lopez (2007) 506 F.3d 748.

There, the Ninth Circuit had affirmed a conviction under Sec. 1326(b)(2), despite the government’s failure to plead the subsection, because the error was harmless in light of the “overwhelming and uncontroverted” evidence of the prior removal.

He continued:

“The government here had ample opportunity to decide what charges to bring against defendants; it exercised its prosecutorial discretion when it first indicted defendants, then again when it helped extract guilty pleas to those indictments. Acceptance of the guilty pleas that the government helped obtain in no way undermines the government’s charging decision; rather, it confirms it.

“The government now regrets that it failed to charge defendants with violating section 1326(b)(2). But the government has no power to void a knowing, voluntary and unconditional guilty plea so that it can fix its charging error.”

Judge M. Margaret McKeown and U.S. District Judge Robert E. Jones of the District of Oregon, sitting by designation, joined Kozinski in his opinion.

San Diego attorney David J. Zugman, who represented Garcia-Aguilar, told the MetNews that he was very happy with the result, and said that it would be helpful in another case on which he is working with similar facts, but which the court had declined to consolidate.

Remarking that his client and the others have now each served more than two years, he said the next step would be to obtain his client’s release.

The case is Garcia-Aguilar v. U.S. District Court (United States), 07-71408.


Copyright 2008, Metropolitan News Company