United States v. Gonzalez-Aguilar

The defendant bears the burden of showing that there is a “reasonable probability” that an imposed sentence would have been less had the government not breached the plea agreement.

Ubaldo Gonzalez-Aguilar entered a guilty plea to being a previously deported alien found in the United States, which is a violation of 8 U.S.C. § 1326. The government recommended the court impose a sentence of 46 months. However, the District Court for the Central District of California decided that 46 months would be inadequate and imposed a sentence of 57 months. Immediately after his sentence was imposed, Gonzalez-Aguilar filed this appeal and argued, under plain error review, that the government breached a promise to recommend a sentence of 46 months, which fell at the low end of the sentencing guideline range. Gonzalez-Aguilar claimed that the government caused the breach of the plea agreement by describing his past convictions and using inflammatory language in the sentencing memorandum to the district court, arguing that the government’s conduct in the memorandum was only to cause the court to impose a higher sentence. A defendant’s rights are substantially affected when the government breaches a plea agreement, and the government failed to foreclose to the defendant the lower sentence in the plea agreement. However, in order to succeed on plain error review, a defendant must prove the alleged error was prejudicial and that there was a “reasonable probability that the error affected the outcome.” The Ninth Circuit held that because Aguilar could not establish that it was “reasonably probable” that he would have “received a more lenient sentence” had the government not breached the plea agreement, he was not entitled to relief. Thus, the sentence imposed by the district court was affirmed. Since Gonzalez- Aguilar did not establish that the alleged breach of the plea agreement constituted plain error, the panel did not determine whether the government’s arguments constituted a breach of the agreement. AFFIRMED.