Petition for Writ of Certiorari — Gerardo Farias-Contreras, Petitioner v. United States

IN THE SUPREME COURT OF THE UNITED STATES

GERARDO FARIAS-CONTRERAS,

aka, Tomas Gomez,

PETITIONER,

VS.

UNITED STATES OF AMERICA,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX

Stephen R. Hormel

Hormel Law Office, L.L.C.

17722 East Sprague Avenue

Spokane Valley, WA 99016

Telephone: (509) 926-5177

Facsimile: (509) 926-4318

Attorney for Petitioner Farias-Contreras

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30055

Plaintiff-Appellee, D.C. No.

2:19-cr-00111-

V. WFEN-17

GERARDO FARIAS-CONTRERAS,

AKA Tomas Gomez, OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Washington

Wm. Fremming Nielsen, District Judge, Presiding

Argued and Submitted En Banc January 24, 2024

Pasadena, California

Filed June 3, 2024

Before: Mary H. Murguia, Chief Judge, and Ronald M.

Gould, Johnnie B. Rawlinson, Milan D. Smith, Jr., Morgan

Christen, Michelle T. Friedland, Mark J. Bennett, Eric D.

Miller, Daniel A. Bress, Patrick J. Bumatay and Roopali H.

Desai, Circuit Judges.

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Opinion by Judge Milan D. Smith, Jr.;

Concurrence by Judge Gould;

Concurrence by Judge Bennett

SUMMARY*

Criminal Law

The en banc court affirmed a sentence in a case in which

the defendant argued that the government breached its

promise under the plea agreement not to recommend a

sentence in excess of the low-end of the sentencing

guidelines range when the government implicitly urged the

district court to impose a harsher sentence.

Considering the record in toto, a majority of the panel

found that the government’s conduct crossed the line from

permissible advocacy to an improper end-run of the plea

agreement; the government thus implicitly breached its

promise not to recommend a sentence in excess of the lowend of the calculated guideline range.

The majority concluded, however, that the error was not

plain because this court’s precedent does not make

sufficiently clear to what extent the government may

respond to a defendant’s request for a downward departure

without implicitly breaching the plea agreement.

The majority took the opportunity to clarify this court’s

law on the subject. In cases involving an implicit breach

" This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

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USA V. FARIAS-CONTRERAS 3

claim, courts must look first to the plain language of the plea

agreement. As long as the agreement does not expressly

prohibit the government from responding to a defendant’s

request for a sentence lower than what is recommended by

the government, the government has the latitude to

respond. But the government’s response must be tethered to

its obligations under the plea agreement, even when

responding to the defendant’s specific request for a

downward departure or to the court’s questions. While a

prosecutor need not invoke magic words each time he or she

argues against mitigation or answers the court’s questions,

the government must comply with the letter and spirit of the

plea agreement. That is, the government’s arguments must

be made in good faith and advance the objectives of the plea

agreement. This is a fact-specific inquiry based on contract

principles. Courts should look at the totality of

circumstances and consider, inter alia, the sequencing,

severity, and purpose of the statements. To the extent this

court’s precedent can be read to prohibit the government

from presenting any information that is already known and

contained in the presentence report, the majority rejected

such a categorical rule. In cases where the government is

entitled to respond to arguments by the defense, repeating

facts in the presentence report does not constitute a per se

breach.

Concurring, Judge Gould, joined by Judges Rawlinson

and Desai, joined the majority in full. He wrote separately

to add that the conclusion that there was error not only has

the fundamental principles of contract law supporting it but

also the constitutional protections given to plea bargains.

Concurring in the judgment, Judge Bennett, joined by

Judges Miller, Bress, and Bumatay, agreed with the majority

that the court should affirm and that no categorical rule

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prohibits the government from presenting information

already known to the court. He disagreed with the

majority’s conclusion that the government implicitly

breached the plea agreement.

COUNSEL

Scott A.C. Meisler (argued), Trial Attorney, Appellate

Section, Criminal Division; Lisa H. Miller, Deputy Assistant

Attorney General; Nicole M. Argentieri, Acting Assistant

Attorney General; United States Department of Justice,

Washington, D.C.; Caitlin A. Baunsgard, Russell E. Smoot,

lan Garriques, David M. Herzog, and Brian M. Donovan,

Assistant United States Attorneys; Vanessa R. Waldref,

United States Attorney; United States Department of Justice,

Office of the United States Attorney, Eastern District of

Washington; Spokane, Washington; for Plaintiff-Appellee.

Stephen R. Hormel (argued), Hormel Law Office LLC,

Spokane Valley, Washington, for Defendant-Appellant.

Vincent J. Brunkow (argued) and Daniel J. Yadron, Jr.,

Federal Defenders of San Diego Inc., San Diego, California,

for Amici Curiae Ninth Circuit Federal Public and

Community Defenders.

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USA V. FARIAS-CONTRERAS 5

OPINION

M. SMITH, Circuit Judge, with whom MURGUIA, Chief

Judge, and GOULD, RAWLINSON, CHRISTEN,

FRIEDLAND and DESAT, Circuit Judges, join:

Plea agreements are an essential component of the

criminal justice system. It is important—for the

government, the defendant, and the functioning of the

system—that they be enforced. Defendant-Appellant

Gerardo Farias-Contreras appeals his 188-month sentence

following his guilty plea to conspiracy to distribute

controlled substances in violation of 21 U.S.C. §§ 841 and

846. He argues that the government breached its promise

under the plea agreement not to recommend a sentence in

excess of the low-end of the sentencing guidelines range

when the government implicitly urged the district court to

impose a harsher sentence. In response, the government

contends that it merely articulated to the district court why

the government’s 15l-month recommendation—a

significant sentence for an older individual with serious

medical conditions—was reasonable under the totality of the

circumstances. For the reasons below, we conclude that

there was no plain error in the government’s conduct, and

we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 28, 2020, Farias-Contreras entered into a

plea agreement with the government and pleaded guilty to

conspiring to distribute methamphetamine and heroin in

violation of 21 U.S.C. §§ 841 and 846. Pursuant to the plea

agreement, the government agreed, inter alia, to dismiss two

other charges and “not to recommend a sentence in excess of

the low-end of the guideline range, as calculated by the

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United States.” The plea agreement allowed Farias-

Contreras to recommend any legal sentence and, for

purposes of sentencing, allowed either party to present facts

not included in the plea agreement’s stipulated facts if

“relevant to the guideline computation or sentencing.” The

district court accepted the guilty plea.

On January 19, 2021, Farias-Contreras filed his

sentencing memorandum. He argued for a six-level

reduction in the base offense level resulting in a guidelines

range of 108—135 months and urged either a sentence within

that range or a variance below it, citing his many physical

disabilities. Thereafter, on January 29, 2021, the

government filed its sentencing materials. After reducing

the base offense level by three levels, the government

calculated a guidelines range of 151-188 months and

recommended a 151-month term, i.e., the low-end of the

guidelines range.

Explaining its recommendation, the government first

noted that Farias-Contreras had been “convicted of an

unquestionably serious offense” and that “{d]rug trafficking

is nothing less than pumping pure poison into our

community.” The sentencing memorandum proceeded to

cite statistics of drug overdose deaths;! quote an excerpt

' The memorandum stated: “The effects of drug trafficking are massive,

and in some respects, incalculable, especially when all the collateral

consequences are considered. The damage the drugs this Defendant

were peddling cause irreparable harm to the community in general as

well as to families whose members are addicted to controlled substances.

According to the Center for Disease Control, in 2018 in the United

States, 67,367 individuals died from a drug overdose. In 2019, drug

overdose deaths climbed to a record high — with a reported 70,980

deaths.” (footnotes omitted).

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USA V. FARIAS-CONTRERAS 7

from a book about the families of living drug addicts;? and

quote a decades-old Fifth Circuit decision that suggests drug

dealing is a “grave offense” worse than murder.3 It

concluded by emphasizing that Farias-Contreras was “the

top of criminal culpability in this case,” that his involvement

in drug trafficking appeared to stem back to 1990, that he

had not let his physical impairment stop him from engaging

in this conduct, and that, ultimately, a significant sentence

* The memorandum stated: “Importantly, the damage is not limited to

families who have suffered a death. As aptly recorded by Sam Quinones

in the book ‘Dreamland’ about the families of living drug addicts:

I met with other parents whose children were still

alive, but who had shape-shifted into lying, thieving

slaves to an unseen molecule. These parents feared

each night the call that their child was dead in a

McDonald’s bathroom. They went broke paying for

rehab, and collect calls from jail. They moved to

where no one knew their shame. They prayed that the

child they’d known would reemerge.”

> The memorandum stated: “‘Measured thus by the harm it inflicts upon

the addict, and through him, upon society as a whole, drug dealing in its

present epidemic proportions is a grave offense of high rank.’

Terrebonne v. Butler, 820 F.2d 156, 157 (Sth Cir. 1987), cert. denied,

484 U.S. 1020 (1989). The Circuit Court continued:

Except in rare cases, the murderer’s red hand falls on

one victim only, however grim the blow; but the foul

hand of the drug dealer blights life after life and, like

the vampire of fable, creates others in its owner’s evil

image—others who create others still, across our land

and down our generations, sparing not even the

unborn.

Terrebonne, 820 F.2d at 157-58. While this opinion was authored over

30 years ago, it continues to ring true today.”

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was warranted to protect the community from his continued

illicit activities.

At the sentencing hearing, Farias-Contreras again

requested a sentence as low as 108 months. His request for

a lower sentence was based principally on his physical

condition: he had been shot multiple times, “still has the

colostomy,” “still has to have a urethra,” “still has to use

manual methods in order to relieve himself,” and “can’t

walk’? without braces.4

99 ce

In response, the government stated first that it stood by

the recommendation in its sentencing memorandum. Then,

the government immediately noted that “the number of

which that we’re recommending was something that was of

much discussion,” prompting the court to ask, “Much

discussion where?” The government clarified, “In our

office--of what do we do with this particular defendant?

[| Farias-Contreras] is at the top of the food chain in terms of

criminal culpability, in terms of personally directing and

organizing the distribution of a massive, massive amount of

drugs.” The court commented that Farias-Contreras was

willing to distribute thirty pounds of drugs back in 1998, to

which the government responded, “That’s very correct, very

correct. So we have this individual, multiple years, multiple

pounds, a massive amount of drugs that he is responsible

for.”

* Farias-Contreras also argued that “[o]ur government has said that for

every year of life, there’s two years that are taken off his life in longevity

while he’s in prison, and that’s going to be happening. Prison for him is

two times. It’s twice as hard as it is for anybody else, and he’s going to

be punished. He’s going to be punished for [his physical condition].”

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At the end of its exchange with the court, the government

reiterated:

[W]e kept coming back in our discussions--

everyone was very sympathetic to the

physical condition and what that means for

him, but we were unanimous in coming back

to this physical condition has not deterred his

conduct whatsoever. He continued to be a

leader/organizer, and there’s nothing that will

prevent him in the future to returning to that-

-that role.... [E]veryone was unanimous in

that a long period of incarceration is going to

be necessary to protect the public from the

defendant, to protect society.

‘“TBjased on the totality of those circumstances,” the

government again stated that it was recommending the term

of incarceration that it outlined in its sentencing

memorandum. The government did not specify at the

hearing the number of months that it was recommending.

Citing substantially the facts and argument presented by

the government, the district court adopted the government’s

guidelines range and sentenced Farias-Contreras to 188

months’ imprisonment. The district court first

acknowledged Farias-Contreras’s “serious limitations” and

that “incarceration is not going to be easy.” The court then

explained its concerns about the protection of the public and

his lack of respect for the law, referencing the government’s

brief and oral presentation. In particular, the court noted that

Farias-Contreras was “top in the chain,” “way up in the

distribution”; how deeply involved he was in an organization

“responsible for distributing in this geographic area huge

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amounts of methamphetamine”; and that “[l]ives are lost.

Lives are ruined. Families broken up, jobs lost, health

deteriorated. Children become--it becomes available for

children. Addicts are fed. So it’s serious, very serious.” The

court rejected the government’s recommendation as too low

and determined that the high end of the guidelines range was

justified.

On appeal, Farias-Contreras argues that the government

implicitly breached its obligation in the plea agreement “not

to recommend a sentence in excess of the low-end of the

guideline range, as calculated by the United States.” He

argues that, although the government technically

recommended a low-end sentence of 151 months, statements

made by the government in its sentencing memorandum and

at the sentencing hearing implicitly urged the district court

to impose a longer sentence. A divided three-judge panel

vacated Farias-Contreras’s sentence and remanded to the

district court for reassignment and resentencing. United

States v. Farias-Contreras, 60 F.4th 534, 548 (9th Cir.

2023). We granted rehearing en banc, United States v.

Farias-Contreras, 83 F.4th 1161 (9th Cir. 2023), and we

now affirm the district court.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 18 U.S.C. § 3742(a).

See United States v. Heredia, 768 F.3d 1220, 1230 (9th Cir.

2014). Generally, we review a defendant’s claim that the

government has breached its plea agreement de novo.

United States v. Mondragon, 228 F.3d 978, 980 (9th Cir.

2000). Because Farias-Contreras failed to raise his objection

at sentencing, we review here for plain error. See United

States v. Whitney, 673 F.3d 965, 970 (9th Cir. 2012). “Relief

for plain error is available if there has been (1) error; (2) that

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was plain; (3) that affected substantial rights; and (4) that

seriously affected the fairness, integrity, or public reputation

of the judicial proceedings.” United States v. Minasyan, 4

F.4th 770, 778 (9th Cir. 2021) (quoting United States y.

Cannel, 517 F.3d 1172, 1176 (9th Cir. 2008)).

ANALYSIS

Plea agreements are essentially contracts between the

government and a defendant. United States v. Myers, 32

F.3d 411, 413 (9th Cir. 1994) (per curiam). As such, they

are governed by principles of contract. See id. “In

construing an agreement, the court must determine what the

defendant reasonably understood to be the terms of the

agreement when he pleaded guilty.” United States v. De la

Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993) (footnotes

omitted). We hold the government to “the literal terms of

the agreement,” Myers, 32 F.3d at 413 (quoting United

States v. Escamilla, 975 F.2d 568, 571 (9th Cir. 1992)), and

construe any ambiguities in the defendant’s favor, Heredia,

768 F.3d at 1230.

At the time of sentencing, the law governing the pleabargaining process was best summarized in our decisions in

Whitney, 673 F.3d 965, and Heredia, 768 F.3d 1220. In

Whitney, we explained that the government breaches its

agreement by “implicitly arguing for a sentence greater than

the terms of the plea agreement specified that the

prosecution would recommend.” Whitney, 673 F.3d at 971.

“Although a sentencing recommendation need not be made

enthusiastically, when the government obligates itself to

make a recommendation at the low end of the guidelines

range, it may not introduce information that serves no

purpose but to influence the court to give a higher sentence.”

Id. (cleaned up). We explained further that “[t]his

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prohibition precludes referring to information that the court

already has before it, including statements related to the

seriousness of the defendant’s prior record, statements

indicating a preference for a harsher sentence, or the

introduction of evidence that is irrelevant to any matter that

the government is permitted to argue.” Jd. (cleaned up).

Such statements were recognized as introduced “solely for

the purpose of influencing the district court to sentence [the

defendant] more harshly.” Jd. (quoting United States v.

Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999)).

In Heredia, we added that “the government breaches its

bargain with the defendant if it purports to make the

promised recommendation while ‘winking’ at the district

court to impliedly request a different outcome.” 768 F.3d at

1231 (internal quotation marks omitted). “An implicit

breach of the plea agreement occurs if, for example, the

government agrees to recommend a sentence at the low end

of the applicable Guidelines range, but then makes

inflammatory comments about the defendant’s past offenses

that do not ‘provide the district judge with any new

information or correct factual inaccuracies.’” Jd. (quoting

Whitney, 673 F.3d at 971).

Farias-Contreras makes a strong argument that the

government’s conduct breached the plea agreement.

Although the government promised “not to recommend a

sentence in excess of the low-end of the guideline range, as

calculated by the United States,” it spent five pages in its

sentencing memorandum arguing for why Farias-Contreras

should be given a “significant sentence” and reiterated the

same at the sentencing hearing. The government also made

several inflammatory arguments, including in its sentencing

memorandum statistics on drug overdose deaths, an excerpt

from the book Dreamland about drug users shape-shifting

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USA V. FARIAS-CONTRERAS 13

into “lying, thieving slaves,’ and a comparison of drug

dealers to “the vampire of fable, creat[ing] others in its

owner’s evil image.” Indeed, the government conceded at

oral argument in our court that several of these remarks were

ill-advised, and all but conceded that this case turns on the

plainness prong.>

Moreover, the government seemed to invite the district

court’s skepticism as to its recommendation by noting

“much discussion” in the U.S. Attorney’s Office on what to

“do with this particular defendant.” That is, the government

seemed to suggest that some prosecutors in the office did not

agree with the low-end recommendation in light of Farias-

Contreras being “at the top of the food chain in terms of

criminal culpability, in terms of personally directing and

organizing the distribution of a massive, massive amount of

drugs,” thereby “‘winking’ at the district court to impliedly

request a different outcome.” See Heredia, 768 F.3d at 1231

(internal quotation marks omitted). The government’s nod

to the court also supports the inference that any improper

statements by the government were aimed at obtaining a

sentence higher than what it recommended, rather than

> In response to the government’s suggestion that this would be a “much

easier case” had the prosecutor “signpost{ed]” her responses, the panel

asked: “By making [that] argument, doesn’t the government expose

itself? If the defense counsel had objected, this would be a very different

argument.”

The government conceded: “I think that’s right. I think you’re right,

Your Honor. I think some of these remarks, I think, are, well I should

say, the sentencing memo is—I don’t actually think the prosecutor did

anything wrong at the hearing. The sentencing memo is close to the line.

I would acknowledge that. But I do think the plain error rule serves a

really important purpose in this context.”

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merely asking for a sentence above Farias-Contreras’s

request for 108 months.

On the other hand, a number of facts weigh against

finding a breach. First, the government did, as promised,

recommend the low-end of the guidelines both in its

sentencing memorandum and at the sentencing hearing, even

if only perfunctorily. Second, the plea agreement did not

expressly prohibit the government from responding to

Farias-Contreras’s request for a below-guidelines sentence;

to the contrary, the plea agreement allowed either party to

present and argue “additional facts which are relevant to the

guideline computation or sentencing, unless otherwise

prohibited in this Plea Agreement.” See United States v.

Maldonado, 215 F.3d 1046, 1052 (9th Cir. 2000) (“[T]he

government has a duty to ensure that the court has complete

and accurate information, enabling the court to impose an

appropriate sentence.”). But see United States v. Moschella,

727 F.3d 888, 892 (9th Cir. 2013) (moting that the

government expressly “reserved the right to oppose any

defense argument for a reduced sentence” in the plea

agreement). Finally, the government agreed that Farias-

Contreras’s physical condition was a mitigating factor for

purposes of sentencing, noting that he is someone “who has

very significant and undeniable physical limitations and

concerns about being potentially vulnerable in the Bureau of

Prisons.”

Although this case presents a close question, considering

the record here in toto, a majority of the panel finds that the

government’s conduct crossed the line from permissible

advocacy to an improper end-run of the plea agreement. The

prosecutor simply went too far. The government does not

have carte blanche to use inflammatory rhetoric and to argue

in excess for “a long period of incarceration” whenever a

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USA Vv. FARIAS-CONTRERAS 15

defendant requests a below-guidelines sentence. To do so,

in addition to inviting the court’s skepticism as to the

government’s bona fide position, is to act “solely for the

purpose of influencing the district court to sentence [the

defendant] more harshly.” Whitney, 673 F.3d at 971

(quoting Johnson, 187 F.3d at 1135). Thus, the government

implicitly breached its promise not to recommend a sentence

in excess of the low-end of the calculated guideline range.

However, the error was not plain. An error is plain when

it is “clear or obvious, rather than subject to reasonable

dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009).

{T]he second prong of plain-error review .. . will often have

some ‘bite’ in plea-agreement cases. Not all breaches will

be clear or obvious.” /d. at 143.

Here, Farias-Contreras relies principally on our

decisions in Heredia, Whitney, and Mondragon. But, as the

government argues, none of those precedents is sufficiently

instructive so as to signal “clear or obvious” error. For

example, in Heredia, the parties agreed to recommend that

the district court impose a stipulated sentence and that they

would not argue “in any way” for an adjustment, departure,

or variance in sentence. 768 F.3d at 1228. In Whitney, the

plea agreement precluded the defendant from requesting a

below-guidelines sentence, and he did not do so. 673 F.3d

at 972. And in Mondragon, the plea agreement provided that

the government would not make any recommendation

regarding sentencing. 228 F.3d at 980. Unlike in those

cases, the thrust of the issue here is that Farias-Contreras

retained the right to request “any legal sentence,” in fact

argued for one as low as 108 months, and now contests the

government’s response to his request.

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Even if we construed those cases to support Farias-

Contreras’s claim, our decision in Moschella creates at least

a “reasonable dispute” as to whether the government’s

sentencing arguments crossed the line. See Puckett, 556

US. at 135. In Moschella, the plea agreement required the

government to recommend a sentence no higher than the

low-end of the guidelines range, allowed the defendant to

argue for a below-guidelines sentence, and reserved the

government’s right to oppose that argument and to

supplement the facts by providing relevant information to

the court. Moschella, 727 F.3d at 890. At sentencing, the

government opposed the defendant’s request for a

downward variance, arguing that the offense was serious and

that the defendant was “motivated by greed, and that he was

a danger to society.” Jd. at 891. We held that there was no

implicit breach because the government’s remarks

“highlighting certain aspects of the offense” were “a fair

response to [the defendant’s] request for a downward

variance from the low-end of the advisory Guidelines

range.” Id. at 892.

Because Moschella was based on facts substantially

analogous to those here, and because our precedent does not

make sufficiently clear to what extent the government may

respond to a defendant’s request for a downward departure

without implicitly breaching the plea agreement, we find that

the error committed by the government was not plain. We

affirm on that basis and need not address the remaining

prongs.

We take this opportunity, however, to clarify our law on

the subject. In cases involving an implicit breach claim such

as this, courts must look first to the plain language of the plea

agreement. As long as the agreement does not expressly

prohibit the government from responding to a defendant’s

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USA V. FARIAS-CONTRERAS 17

request for a sentence lower than what is recommended by

the government, the government has the latitude to respond.

In other words, as a default rule, the government can respond

even if the plea agreement is silent on the issue.

But the government’s response must be tethered to its

obligations under the plea agreement, even when responding

to the defendant’s specific request for a downward departure

or to the court’s questions. While a prosecutor need not

invoke magic words—such as reiterating the government’s

recommendation for a low-end sentence—each time he or

she argues against mitigation or answers the court’s

questions, the government must comply with the letter and

spirit of the plea agreement. That is, the government’s

arguments must be made in good faith and advance the

objectives of the plea agreement. Cf Appling v. State Farm

Mut. Auto. Ins. Co., 340 F.3d 769, 779 (9th Cir. 2003)

(noting that state law implies a covenant of good faith and

fair dealing in every contract). This is a fact-specific inquiry

based on contract principles. Courts should look at the

totality of circumstances and consider, inter alia, the

sequencing, severity, and purpose of the statements.

Finally, to the extent our precedent can be read to

prohibit the government from presenting any information

that is already known and contained in the presentence

report, we reject such a categorical rule. In cases where the

government is entitled to respond to arguments by the

defense, repeating facts in the presentence report does not

constitute a per se breach.

CONCLUSION

Under our rules, as clarified here, the government’s

conduct in this case constitutes an implied breach of the

agreement. But because the law was not clear at the time of

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sentencing, we do not find plain error. Accordingly, we

affirm Farias-Contreras’s sentence.

AFFIRMED.

GOULD, Circuit Judge, concurring, with whom

RAWLINSON and DESAI, Circuit Judges, join:

I join the majority opinion in full. I write separately to

add that the conclusion that there was error not only has the

fundamental principles of contract law supporting it but also

the constitutional protections given to plea bargains.

I

Plea agreements are not ordinary contracts. Puckett v.

United States, 556 U.S. 129, 137 (2009) (although plea

bargains are “essentially contracts,” “the analogy may not

hold in all respects.”); see also United States v.

Transfiguracion, 442 F.3d 1222, 1228 (9th Cir. 2006).

Because a plea agreement involves a criminal defendant, we

have said that “[t]he interests at stake and the judicial context

in which they are weighed require that something more than

contract law be applied.” United States v. Barron, 172 F.3d

1153, 1158 (9th Cir. 1999). In assessing a plea agreement,

we not only engage in contract interpretation, but also ensure

the guarantees of a criminal defendant’s constitutional

rights. See Santobello v. New York, 404 U.S. 257, 262

(1971); see also United States v. Jackson, 21 F.4th 1205,

1213 (9th Cir. 2022) (“[W]e are mindful of the unique

constitutional concerns involved in plea agreements.”).

We have held that the government must “strictly comply

with its obligations under a plea agreement.” United States

v. Mondragon, 228 F.3d 978, 981 (9th Cir. 2000). Similarly,

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our sister circuits have held that the Constitution demands

that courts “scrutinize the government’s conduct to ensure

that it comports with the highest standard of fairness.”!

United States v. Vaval, 404 F.3d 144, 152 (2d Cir. 2005)

(quoting United States v. Lawlor, 168 F.3d 633, 637 (2d Cir.

1999)). The majority’s overview of the law, which builds on

the principles articulated in United States v. Whitney, 673

F.3d 965 (9th Cir. 2012) and United States v. Heredia, 768

' See also United States v. Kurkculer, 918 F.2d 295, 297 (1st Cir. 1990)

(requiring “more than good faith by the government in securing through

plea bargaining a defendant’s waiver of constitutional rights”); United

States v. Cruz, 95 F.4th 106, 110 Gd Cir. 2024) (“Because defendants

give up many constitutional rights by entering plea bargains, courts must

carefully scrutinize them to insure that the government has fulfilled its

promises.” (cleaned up)); United States v. Warner, 820 F.3d 678, 683

(4th Cir. 2016) (“[W]e nonetheless give plea agreements greater scrutiny

than we would apply to a commercial contract because a defendant's

fundamental and constitutional rights are implicated.” (cleaned up));

United States v. Munoz, 408 F.3d 222, 226 (Sth Cir. 2005) (‘“[T]he

Government must strictly adhere to the terms and conditions of its

promises in [a plea] agreement.”); United States v. Ligon, 937 F.3d 714,

718 (6th Cir. 2019) (“Because a defendant obtains a plea agreement only

at the expense of his constitutional nights, prosecutors are held to

meticulous standards of performance.” (cleaned up)); United States v.

Bowler, 585 F.2d 851, 854 (7th Cir. 1978) (holding prosecutors to the

“most meticulous standards of both promise and performance”); United

States v. Brown, 5 F.4th 913, 916 (8th Cir. 2021) (requiring of the

government “‘meticulous fidelity to the plea agreement”); United States

v. Villa-Vazquez, 536 F.3d 1189, 1199 (10th Cir. 2008) (because the

enforceability of a plea agreement is to some extent “a matter of

constitutional due process,” the government has a “heightened

responsibility”); United States v. Hunter, 835 F.3d 1320, 1330-31 (11th

Cir. 2016) (holding prosecutors to the “most meticulous standards of

both promise and performance’); United States v. Moreno-Membache,

995 F.3d 249, 256 (D.C. Cir. 2021) (“We are loath to assume that a

defendant surrendered a panoply of constitutional rights in exchange for

a meaningless and valueless promise.’’).

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F.3d 1220 (9th Cir. 2014), clarifies what is required under

this exacting standard. Strict compliance with the terms of a

plea agreement is essential to ensure fair treatment by the

government and to protect the fundamental rights of the

criminal defendant entering the plea bargain.

I express two additional points, both of which support

the majority opinion’s correct conclusion that there was

error.

A

First, if a plea agreement is silent on the matter, the

default rule established by the court’s majority opinion today

makes clear that the government can respond to a

defendant’s request for a lower sentence. This default rule,

standing alone, does not convey the full importance and

authority of a plea bargain. For a plea agreement to be valid,

a defendant must enter into it fully aware of its terms.

Santobello, 404 U.S. at 261-62. Because the government

bears “responsibility for any lack of clarity” in a plea

agreement, the government should set a defendant’s

expectations through clear and express communication.

United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.

2002) (quoting United States v. Anderson, 970 F.2d 602, 607

(9th Cir. 1992)).

Most important in interpreting the terms of a plea

agreement entered by a criminal defendant is the perspective

of the defendant, not that of the government. We have held

that we determine “what the defendant reasonably

understood to be the terms of the agreement when he pleaded

guilty.” United States v. De la Fuente, 8 F.3d 1333, 1337 &

n.7 (9th Cir. 1993) (emphasis added). Any unintended

ambiguities in a plea bargain may be interpreted adversely

to the government, and so the government is best served by

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making the parties’ aims clear and express in a plea bargain.

This is a sensible application of the basic contract principle

of contra proferentem. Transfiguracion, 442 F.3d at 1228.

But we do not treat a defendant who exchanges his

constitutional rights the same as an ordinary, private

contracting party. The Fourth Circuit has explained that,

while private contracting parties would be equally at fault

for mistakes in negotiating a contract, shortcomings of a

criminal defense counsel in plea bargaining are less relevant

because “the validity of a bargained guilty plea depends

finally upon the voluntariness and intelligence with which

the defendant—and not his counsel—enters the bargained

plea.” United States v. Harvey, 791 F.2d 294, 301 (4th Cir.

1986). It is the government that bears “primary

responsibility for insuring precision in the agreement.” Id.

Because “a defendant's liberty is at stake, the government is

ordinarily held to the literal terms of the plea agreement it

made so that the government gets what it bargains for but

nothing more.” Transfiguracion, 442 F.3d at 1228 (cleaned

up). The government, rather than the defendant, will more

likely bear the consequences for not expressly specifying a

plea agreement’s terms at the outset.

B

Second, the prosecutor can breach a plea agreement even

by arguments made because of the prosecutor’s duty to

advocate for the highest appropriate sentence on behalf of

the government or because of the prosecutor’s duty to

respond honestly to inquiries made by the sentencing court.

See United States v. Maldonado, 215 F.3d 1046, 1052 (9th

Cir. 2000). Prosecutors must “remain aware of the

possibility of conflict” between their various duties, and

“may not attempt to use one duty as an instrument for

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thwarting” the government’s obligations under a plea

agreement. United States v. Saxena, 229 F.3d 1, 6 (Ast Cir.

2000); accord Munoz, 408 F.3d at 227; see e.g., Whitney,

673 F.3d at 969-72 (holding there was error and that it was

plain even though the prosecutor stated at the sentencing

hearing that defendant’s arguments put her “between a rock

and a hard spot”). Even if a prosecutor unintentionally

violates a plea agreement’s implicit terms, it will still be a

breach of the plea agreement. Heredia, 768 F.3d at 1232-

33.

It is prudent, even if not necessary, for a prosecutor to

specify the number of months the government recommends.

A prosecutor’s argument that does not state the months

recommended can more easily be construed as involving

“inflammatory comments” or “pejorative editorializing” that

“serves no purpose but to influence the court to give a higher

sentence.” Heredia, 768 F.3d at 1231, 1233; Whitney, 673

F.3d at 971 (internal quotation marks omitted). Without an

anchor in a specific number of months being recommended,

such comments are more likely, as here, to constitute a

breach of the plea agreement. Cf United States v.

Moschella, 727 F.3d 888, 892 (9th Cir. 2013) (noting that

“in arguing against a downward variance, the prosecutor

affirmatively recommended three times that the district court

impose the agreed-upon 33-month sentence”). The

prosecutor must provide substantial “justification for the

depth and tone of [the prosecutor’s] discussion.” Heredia,

768 F.3d at 1233. A prosecutor’s utterance of the months of

sentence recommended is not a per se fulfillment of the

government’s duties under a plea agreement. A prosecutor

who perfunctorily recommends a specific sentence, but

urges inflammatory language that induces a higher sentence,

speaks with a forked tongue.

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For the government to honor a plea agreement in good

faith, proportionality is important. In a_ properlyimplemented plea bargain, a defendant loses the right to

defend against a criminal charge, while gaining the benefit

of knowing what sentence will be recommended by the

government to the court. And the government gains the

certainty of a criminal conviction rather than the uncertainty

of a trial where guilt needs to be proved beyond a reasonable

doubt. Honoring a plea bargain in words and deed presents

a “united front” to the sentencing court that gains “the added

persuasiveness of the government’s support” for a

recommended sentence. United States v. Camarillo-Tello,

236 F.3d 1024, 1028 (9th Cir. 2001).

While no categorical rule prohibits the government from

presenting information already in the presentence report, the

government should temper recitation of a defendant’s

criminal history with support for the agreed upon sentencing

recommendation. Cf Heredia, 768 F.3d at 1224 (stating that

the prosecutor’s recommendation of a six-month prison term

“rang hollow’ because the prosecutor unnecessarily

reiterated the defendant’s criminal history). A prosecutor’s

duty to urge an appropriate sentence is not a license to use

any means in responding to a defendant’s request for a lower

sentence. A deal is a deal, and the government must abide

by the terms of its plea agreement. Some response to a

request for a lower sentence than recommended by the

government is appropriate and may be necessary for the ends

of justice to be met. But excess in response defeats the

purposes of and contradicts the terms of the plea agreement.

I

In cases involving an alleged implicit, as opposed to

explicit, breach of a plea agreement, the court must be

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particularly mindful of holding the government to a high

standard of fairness.

BENNETT, Circuit Judge, with whom Circuit Judges

MILLER, BRESS, and BUMATAY join, concurring in the

judgment:

I agree with the majority that we should affirm. [ also

agree with the majority that no categorical rule prohibits the

government from presenting information already known to

the court. I respectfully disagree, however, with the

majority’s conclusion that the government implicitly

breached the plea agreement. !

The government agreed “not to recommend a sentence

in excess of the low-end of the guideline range, as calculated

by the United States.” It fulfilled that promise. It repeated—

multiple times—that the court should give a sentence at the

bottom of the guideline range it calculated. Also, as

permitted by the express terms of the plea agreement, the

government introduced “additional facts ... relevant to the

guideline computation or sentencing.” Those added facts

served a manifestly valid purpose: to respond to Farias-

Contreras’s arguments for a much lower sentence than the

one recommended by the government and to justify the

government’s own recommendation of 151 months. Thus,

no matter the test for determining whether the government

' The government argued in its supplemental brief to the en banc court

that there was no implicit breach. Contrary to the majority’s suggestion,

the government maintained that position at oral argument: “We are

asking the court to hold at prong one [of the plain error test] that there

was no error, but at a minimum that the error was not plain and not

prejudicial.”

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implicitly breached a plea agreement, there was no implicit

breach here.

I

Farias-Contreras was charged with conspiracy to

distribute 500 grams or more of methamphetamine or to

distribute heroin, and possession with intent to distribute 500

grams or more of methamphetamine. He entered into a plea

agreement with the government in which he pleaded guilty

to the conspiracy charge. The plea agreement contained a

lengthy statement of stipulated facts showing that Farias-

Contreras had supplied multi-pound quantities of heroin and

methamphetamine to many individuals over many years.

The presentence report (“PSR”) stated that Farias-Contreras

was responsible for a total converted drug weight of at least

186,181 kilograms, which is more than 200 tons. The PSR

also noted:

Mr. Farias-Contreras utilized drug

runners/couriers. The drug runners/couriers

would travel from and to the Eastern District

of Washington to the greater Los Angeles

area, to retrieve large quantities of controlled

substances from various locations at the

direction of Mr. Farias-Contreras. The drug

runners/couriers would then bring the

controlled substances to the Eastern District

of Washington and distribute the substances

to customers as directed by Mr. Farias-

Contreras.

The plea agreement expressly allowed the parties to

supplement the facts: “This statement of facts does not

preclude either party from presenting and arguing, for

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sentencing purposes, additional facts which are relevant to

the guideline computation or sentencing, unless otherwise

prohibited in this Plea Agreement.” The government agreed

“not to recommend a sentence in excess of the low-end of

the guideline range, as calculated by the United States.” The

agreement permitted Farias-Contreras to “recommend any

legal sentence.”

The PSR calculated a guideline range of 235 to 293

months. Farias-Contreras objected, noting that in his view

the correct guideline range was 210 to 262 months. Farias-

Contreras’s sentencing memorandum argued that the court

should depart significantly downward to a range of 108 to

135 months—more than 50% lower than the PSR-calculated

guideline range—for various reasons, including because of

his significant medical conditions.

The government then filed its sentencing memorandum,

seeking a sentence of 151 months.? And as it promised, the

government did not recommend a sentence above the low

end of the guideline range it calculated; it affirmatively

recommended “a term of incarceration of 151 months’—the

low end of its calculated guideline range. In other words, the

government started its path toward the supposed breach with

a low-end guideline calculation that was 35% less than the

PSR’s, and 28% less than Farias-Contreras’s own

calculation (before his recommended departure).

The government’s memorandum then argued that

despite his physical limitations, Farias-Contreras was at “the

top of criminal culpability . . . as a multi-pound-level source

of supply to multiple individuals, spanning over the course

? Farias-Contreras has never claimed that the government breached the

plea agreement by recommending a sentence of 151 months.

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of multiple years.” The memorandum highlighted facts from

the PSR that supported the government’s recommendation.

The memorandum also included supplemental information

about the harm that drug trafficking causes to the

community, including drug-overdose statistics, an excerpt

from a book about families living with drug addicts,’ and a

Fifth Circuit case* discussing drug-dealing offenses.> See

Maj. 6-7. The majority takes issue with this supplemental

information. Maj. 6—7, 12-13. But all of it was relevant to

sentencing, as it concerned the “seriousness of [Farias-

Contreras’s| offense.” 18 U.S.C. § 3553(a)(2)(A). Thus, the

express terms of the plea agreement allowed the government

to introduce such information. And again, Farias-Contreras

was asking for a possible sentence of 108 months—30% less

than the government’s low-end recommendation of 151

months (and 54% less than the PSR’s low-end calculation).

At sentencing, Farias-Contreras’s counsel told the court

that the prosecutor had been “straightforward and level and

frank,” “honest,” and “fair’—seemingly the opposite of a

prosecutor who had supposedly breached the plea

agreement. Farias-Contreras’s counsel again argued that the

court should impose a sentence as low as 108 months—a

> At sentencing, Farias-Contreras’s counsel mentioned the book that the

government quoted: “The memorandum that the United States wrote

with the quote from the book explaining that about—discouraged that

this problem is with methamphetamines and stuff, he [Farias-Contreras]

gets that.”

* I cannot conceive of a situation in which citing a decision by a sister

circuit could constitute an implicit breach of a plea agreement. But even

if such a circumstance could exist, there would still be no implicit breach

here given the circumstances.

° For simplicity, I refer to this information as the “supplemental

information.”

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sentence far below the government’s low-end

recommendation of 151 months—because of his undisputed

severe physical impairments.

The government, consistent with its obligation under the

plea agreement, explicitly told the court twice during the

sentencing hearing that it stood by the recommendation in its

memorandum—the low-end guideline sentence of 151

months. The government stated that it was “standing by the

recommendation . . . in [its] sentencing memo,” and again

that it was “recommending the term of incarceration . . .

outlined in [its] sentencing memo.”

The district court determined that the government’s

recommendation was “too low” and imposed a sentence of

188 months (the high end of the court’s calculated guideline

range, but still 20% below the low end of the PSR’s

guideline range). The district court imposed this sentence

mainly because Farias-Contreras was a leader of a large

drug-trafficking organization and had trafficked drugs for a

long time. At the outset of the sentencing hearing, the court

noted its concern that Farias-Contreras’s “entire adult

life... ha[{d] been dedicated to dealing drugs” and that he

lacked “respect for the law.” The court then turned to the

PSR, highlighting information that showed Farias-Contreras

had distributed large amounts of heroin and

methamphetamine to multiple purchasers and had been

dealing drugs for a long time. For example, he employed a

courier who regularly transported 20 to 25 pounds of

methamphetamine to Washington every few weeks and

returned to California with $30,000 to $40,000 each time. In

1998, Farias-Conteras was convicted of possession of a

controlled substance for sale and sentenced to two years’

imprisonment. In connection with that conviction, the PSR

noted that Farias-Contreras told a confidential informant that

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USA V. FARIAS-CONTRERAS 29

he would sell the informant 30 pounds of methamphetamine.

In 2008, he was dealing drugs in pound quantities.

The district court concluded sentencing with: “I think the

high end is justified for the reasons that I’ve stated. In brief

summary, a huge organization over a long period of time,

[Farias-Contreras was] one of the top dogs in it, and so the

188 months, I think, is a fairly low sentence.”

Il

“Plea agreements are contractual in nature and are

measured by contract law standards.” United States v.

Keller, 902 F.2d 1391, 1393 (9th Cir. 1990). Thus, “[w]e

enforce their literal terms.” United States v. Heredia, 768

F.3d 1220, 1230 (9th Cir. 2014). “In determining whether a

plea agreement has been broken, [we] look to what was

reasonably understood by the defendant when he entered his

plea of guilty.” United States v. Travis, 735 F.2d 1129, 1132

(9th Cir. 1984) (cleaned up) (quoting United States v. Arnett,

628 F.2d 1162, 1164 (9th Cir. 1979)), overruled on other

grounds by United States v. Medina-Luna, 98 F 4th 976, 980

(9th Cir. 2024). When the government promises to

recommend a particular sentence, it commits an implicit

breach if it “superficially abide[s] by its promise to

recommend a particular sentence while also making

statements that serve no practical purpose but to advocate for

a harsher one.” Heredia, 768 F.3d at 1231.

There can be no implicit breach when, as here, the

government’s acts conformed to “what was reasonably

understood by the defendant when he entered his plea of

guilty.” Travis, 735 F.2d at 1132 (cleaned up) (quoting

Arnett, 628 F.2d at 1164); see also Metcalf Constr. Co. v.

United States, 742 F.3d 984, 991 (Fed. Cir. 2014) (“[A]n act

will not be found to violate the duty [of good faith and fair

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