United States v. Bellorin-Torres
341 F. App'x 19
July 21, 2009 · Docket 08-40317
Headnotes
Generated summaries- Headnote 1
The Fifth Circuit applied the three‑part test from Puckett v. United States and United States v. Olano to determine whether the government’s breach of the plea agreement warranted reversal of the sentence.
- Headnote 2
The court noted that because the issue was not raised in district court, only the plain‑error doctrine could be invoked to evaluate the government’s failure to honor the agreement.
- Headnote 3
The record shows the government breached the plea agreement by not filing the sentencing‑reduction motion and by urging the court to impose a higher sentence, which the court classified as a clear error.
- Headnote 4
The court found that with the motion, the advisory range would have been 57‑71 months instead of 70‑87 months, making it likely Bellorin would have received a lower term.
- Headnote 5
The court concluded that the government’s breach of the plea agreement seriously affected the legitimacy of the sentencing process, justifying reversal.
- Headnote 6
Because the breach was a clear error, likely affected the outcome, and harmed the fairness of the process, the court exercised discretion to set aside the 78‑month term.
- Headnote 7
The government failed to file the agreed‑upon § 5K3.1 motion and asked for a high‑end sentence, after which the court imposed a mid‑range term, violating the plea agreement.
- Headnote 8
The Fifth Circuit held that because the government’s failure to file the § 5K3.1 motion was not raised in district court, the court could consider the issue only under the plain‑error standard set out in Puckett v. United States.
- Headnote 9
The court explained that to establish reversible plain error, Bellorin had to show a clear or obvious error that affected his substantial rights, citing Puckett’s definition of a plain error.
- Headnote 10
The court found that the government’s breach created a reasonable probability Bellorin would have received a lower sentence if the § 5K3.1 motion had been filed, satisfying the substantial‑rights prong of the plain‑error test.
- Headnote 11
The court held that the government’s breach of the plea agreement impaired the fairness and integrity of the sentencing proceeding, warranting reversal under the third prong of the plain‑error test.
- Headnote 12
Because the government omitted the agreed‑upon § 5K3.1 motion and instead sought a high‑end sentence, the Fifth Circuit classified this breach as a plain error subject to reversal.
- Headnote 13
Finding the breach plain error that affected substantial rights and the fairness of the proceeding, the court vacated Bellorin’s 78‑month sentence and remanded the case for a new sentencing hearing.
- Headnote 14
The agreement required the government to move for a two‑level reduction under § 5K3.1 and recommend a low‑end sentence, but the court imposed a mid‑range sentence without filing the motion, violating the plea agreement.
- Headnote 15
The Fifth Circuit noted the issue was not raised in district court, so only the Puckett plain‑error standard applied to the government’s breach of the plea agreement.
- Headnote 16
The court described the government’s failure to honor the plea‑agreement terms as a clear or obvious error, satisfying the first prong of the Puckett/Olano test.
- Headnote 17
The court found a reasonable probability Bellorin would have received a lesser sentence had the §5K3.1 motion been filed, satisfying the second prong of the plain‑error test.
- Headnote 18
The breach of the plea agreement was held to impair the fairness and integrity of the sentencing proceeding, meeting the third prong of the plain‑error test.
- Headnote 19
The court identified the omission and contrary recommendation as a clear error arising from the government's breach of its plea‑agreement obligations.
- Headnote 20
The court compared the sentencing ranges with and without the reduction motion, showing that the breach likely led to a higher sentence.
- Headnote 21
Having found the error plain, affecting substantial rights, and harming fairness, the court exercised discretion to vacate Bellorin’s 78‑month sentence and send the case back for a new sentencing hearing.
- Headnote 22
The court held that ignoring the mandatory §5K3.1 motion breached the agreement and, because the issue was raised only on appeal, the error was reviewed under the plain‑error framework.
Opinion
Ramon Anibel Bellorin-Torres pleaded guilty to being a previously-deported alien who was found unlawfully in the United States. He appeals only his sentence.
In exchange for Bellorin’s guilty plea, the Government agreed, inter alia, to move for a two-level reduction in Bellorin’s offense level, pursuant to United States Sentencing Guidelines § 5K3.1, and to recommend that Bellorin be sentenced at the low end of the applicable advisory guidelines sentencing range. At sentencing, however, the Government did not make a § 5K3.1 motion and, when asked for its position on sentencing, requested a sentence at the high end of the sentencing range. Bellorin was sentenced, inter alia, to 78-months’ imprisonment.
As held recently in Puckett v. United States, — U.S.-, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (2009), because the breach-of-the-plea-agreement issue was raised for the first time on appeal, review is only for plain error. To show reversible plain error, Bellorin must show a clear or obvious error that affects his substantial rights. Id. at 1429. If he makes such a showing, our court has discretion to correct the error, but, generally, will correct it only if it seriously affects “the fairness, integrity[,] or public reputation of judicial proceedings”. Id. (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). The Government, through omission and commission, breached the plea agreement. Therefore, as the Government concedes, there was a clear or obvious error. See id.
Concerning whether this plain error affected Bellorin’s substantial rights, there is nothing in the record to indicate that the district court would not have granted a § 5K3.1 motion as a matter of course. Without the § 5K3.1 two-level reduction, Bellorin’s advisory sentencing range was 70 to 87 months; with the reduction, it would have been 57 to 71 months. Additionally, consistent with recommendations by both the Government and the probation officer that Bellorin be sentenced at the high end of the sentencing range, the district court imposed a mid-range sentence of 78 months.
There is a reasonable probability that, had the § 5K3.1 motion been made, Bello-rin would have received a lesser sentence. And, had the Govermnent recommended a low-end sentence, Bellorin’s sentence would likely have been lesser still.
Because the error likely affected the outcome of the sentencing proceedings, Bellorin has shown that his substantial rights were affected. Puckett, 129 S.Ct. at 14334. n. 4. Further, the error affected the fairness, integrity, or public reputation of these proceedings. Accordingly, pursuant to our discretion, Bellorin’s sentence is vacated and this matter is remanded to district court for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.