[00:00:03] Speaker 01:
Good morning, and may it please the Court.

[00:00:05] Speaker 01:
My name is Angela Chuang from the Federal Public Defender's Office, appearing on behalf of the Appellant, Mr. Dalen Gutierrez.

[00:00:12] Speaker 01:
I'd like to reserve two minutes for rebuttal.

[00:00:16] Speaker 01:
As the Supreme Court has repeatedly recognized, our criminal justice system is more, for the most part, a system of pleas, not a system of trials.

[00:00:25] Speaker 01:
That is an acknowledgement of the reality that the vast majority

[00:00:29] Speaker 01:
of criminal cases, roughly 97 percent in the federal system, resolved by plea.

[00:00:35] Speaker 01:
It is crucial to the integrity of that judicial process that relies so heavily on resolution by plea that the parties be able to negotiate plea agreements without the interference of the judge presiding over the case.

[00:00:49] Speaker 01:
Because our system is also an adversarial one.

[00:00:52] Speaker 01:
in which the judge must remain a neutral arbiter and must maintain impartiality throughout all stages of the proceedings, pre- and post-plea.

[00:01:01] Speaker 01:
These bedrock principles are the main concerns behind Rule 11's absolute prohibition on judicial participation in plea negotiations, which this Court's long-standing precedent recognizes as having no exceptions.

[00:01:16] Speaker 03:
in this case.

[00:01:18] Speaker 03:
Maybe you're about to get to this.

[00:01:20] Speaker 03:
You pointed to some comments from the district court judge that you think crossed the rule 11 line, but how did that affect anything?

[00:01:29] Speaker 03:
We have the appellate waiver, which we have to get through too, but just to hit the substance first, how did that actually affect anything?

[00:01:38] Speaker 03:
Because you ended up with the plea agreement not being changed.

[00:01:41] Speaker 01:
Well, that was only after months and multiple hearings at which the court tried to get the parties to pressure the parties into rewriting a plea agreement, including terms that he preferred.

[00:01:54] Speaker 03:
Right, but where did that?

[00:01:55] Speaker 03:
It didn't work, though, right?

[00:01:57] Speaker 03:
Even based on your characterization, it didn't actually change the plea agreement.

[00:02:02] Speaker 01:
It did not because Mr. Gutierrez resisted the participation, but Rule 11 doesn't talk about successful participation in plea negotiations.

[00:02:10] Speaker 01:
It is participation period that can cause a harm.

[00:02:13] Speaker 03:
The harm here- Okay, but so how did this affect anything, right?

[00:02:15] Speaker 03:
Because he wants to plead guilty still, right?

[00:02:17] Speaker 03:
He's not trying to withdraw the plea?

[00:02:19] Speaker 01:
The harm here was to the judges impartiality at sentencing.

[00:02:24] Speaker 01:
That's what was affected here.

[00:02:26] Speaker 01:
What happened over the course of those several hearings where the district court not only tried to get the parties to reshape their plea agreement along its its own preferred terms it also.

[00:02:37] Speaker 01:
at the last hearing before setting a sentencing date, attempted to directly negotiate an additional appeal waiver from Mr. Gutierrez in exchange for proceeding to sentencing.

[00:02:47] Speaker 01:
This created the danger and, at the least, the perception that this judge was no longer neutral.

[00:02:54] Speaker 01:
And as the Rule 11 case law has stated,

[00:02:58] Speaker 01:
When a judge participates in plea negotiations like this, they essentially remove themselves from the role of being a neutral arbiter and become a participant in an adversarial process.

[00:03:09] Speaker 01:
That's not what is supposed to happen.

[00:03:11] Speaker 01:
That's what the rule 11 prohibition is seeking to avoid.

[00:03:14] Speaker 01:
Here, it is the government's burden to show that there was harmless error.

[00:03:19] Speaker 01:
And the error that, the harm that, that inured to Mr. Gutierrez is not a coerced plea, which is only one of the things that Rule 11 seeks to avoid, but impartiality at sentencing.

[00:03:33] Speaker 01:
And as the Adams Court has stated, a defendant's

[00:03:38] Speaker 01:
may require the protection of the prophylactic rule of rule 11, more so at sentencing than with regard to trial.

[00:03:46] Speaker 04:
Is there any indication that the judge gave a harsher sentence?

[00:03:49] Speaker 04:
I mean, clearly, at least based on the transcripts, the judge was maybe a little bit flustered.

[00:03:53] Speaker 04:
But I think in many ways, it was good intentions here, because you want to make sure the defendant was put on notice and didn't want to create a potential appellate issue.

[00:04:00] Speaker 04:
But is there any indication that the judge was biased or did something to increase the sentence?

[00:04:06] Speaker 01:
The real question is whether there's evidence that the impartiality at sentencing was not affected.

[00:04:13] Speaker 01:
It is the government's burden to prove harmless error.

[00:04:15] Speaker 01:
Here, this record is devoid of any evidence that a 65-month sentence that was imposed on Mr. Gutierrez would have been the sentence that the court imposed if it had not violated Rule 11 over the course of multiple hearings.

[00:04:29] Speaker 01:
And the fact that the court imposed a sentence that was higher even than the government's recommendation here, which is an uncommon occurrence in this district,

[00:04:36] Speaker 01:
That supports an inference of harm.

[00:04:38] Speaker 02:
But it was lower than what the probation office was recommending, which was 78 months.

[00:04:42] Speaker 02:
And it was 32 months lower than the guideline range that was 97 to 121.

[00:04:49] Speaker 01:
Yes, that's correct.

[00:04:50] Speaker 01:
But whether or not a sentence is lower than the guidelines range doesn't unequivocally show or doesn't show that

[00:04:58] Speaker 01:
that the sentencing decision wasn't affected by the judge's rule 11 violations.

[00:05:03] Speaker 01:
If it even affected it by one month, if say he would have imposed a sentence of 64 months versus 65 in the absence of Mr. Gutierrez's resistance of his rule 11 violations, that is a harm.

[00:05:17] Speaker 03:
We said that, I mean, you're trying to basically use the rule 11 violation, alleged rule 11 violation, as sort of a way of attacking the impartiality on the sentence that was given.

[00:05:29] Speaker 03:
I've usually thought of this as the relief one would seek in this situation, as more relief from the plea agreement.

[00:05:34] Speaker 03:
But you're not asking to have the plea agreement.

[00:05:38] Speaker 03:
You want the plea agreement.

[00:05:39] Speaker 03:
You just think it affects the sentence.

[00:05:41] Speaker 03:
Are there cases where courts have said, well, this rule 11 violation sort of bled into the sentencing?

[00:05:47] Speaker 01:
Yes, so I would point to Adams, which was a Fifth Circuit case.

[00:05:52] Speaker 01:
That was a case where the court remanded for resentencing.

[00:05:55] Speaker 01:
It did not vacate the conviction.

[00:05:57] Speaker 01:
It remanded for resentencing as the appropriate remedy to a different district court judge.

[00:06:01] Speaker 01:
The Eighth Circuit also, in Harrison, a 2020 case, remanded for resentencing by a different judge.

[00:06:08] Speaker 01:
In that case, the Circuit spoke about needing to neutralize the taint in the specific case.

[00:06:14] Speaker 01:
And in that situation, the taint was at sentencing.

[00:06:18] Speaker 03:
And here same here the taint was at sentencing But what indication the record is there that this did go through to sentencing because there definitely were some fireworks here in this case in the in the district court But then the sentencing was later and the district court walked through the factors and as Judge Navarro pointed out I think he pretty good consideration to mitigating factors gave a lower sentence than much lower than probation and

[00:06:43] Speaker 01:
The question here is whether there is evidence that there was no effect, and that simply does not exist in this record.

[00:06:51] Speaker 01:
And if anything, I think the overall record of what happened at the course of these multiple hearings demonstrate a court that is increasingly resentful of Mr. Gutierrez and me as his counsel for resisting his attempts to rewrite the plea agreement that the parties had entered into.

[00:07:08] Speaker 02:
Wasn't the judge just trying to make sure that the defendant was aware of the foreseeable consequence of his plea agreement?

[00:07:17] Speaker 01:
I think that is belied by the record, Your Honor.

[00:07:19] Speaker 01:
So Mr. Gutierrez, at the second status hearing after his change of plea, reaffirmed to the court that he understood what he was getting into at the time that he changed plea, that he understood, and as the plea agreement explicitly states,

[00:07:33] Speaker 01:
that the court would independently calculate guidelines and that it could end up coming up with a higher guidelines calculation than applied to his case.

[00:07:41] Speaker 01:
He reaffirmed that.

[00:07:42] Speaker 01:
At that point, that wasn't enough for the district court judge.

[00:07:47] Speaker 01:
He said explicitly to the parties, I want a corrected plea agreement, and then directed the parties

[00:07:51] Speaker 01:
to revise their plea agreement to include certain terms.

[00:07:55] Speaker 01:
So I think that went far beyond ensuring the voluntariness of Mr. Gutierrez's plea.

[00:08:01] Speaker 01:
I would also note that there is no good motives exception to Rule 11.

[00:08:05] Speaker 01:
That much is clear.

[00:08:07] Speaker 01:
Even if a court is motivated by trying to ensure that the defendant's voluntariness or looking out for a defendant, they still cannot

[00:08:17] Speaker 01:
cross the line that rule 11 draws and participate in plea negotiations like he did here.

[00:08:23] Speaker 01:
And I would, I think I'm running out of time.

[00:08:25] Speaker 02:
So if we were to remand and order reassignment to a different judge, then could your client still receive the upper guideline range sentence of 121 months?

[00:08:38] Speaker 01:
I don't believe so.

[00:08:39] Speaker 01:
I think there may be a presumption of vindictiveness on resentencing after appeal.

[00:08:43] Speaker 01:
But what Mr. Gutierrez is requesting, the remedy that he's seeking of resentencing by a different district court judge who has not relinquished their role as a neutral arbiter- What would be the cap on the next judge?

[00:08:56] Speaker 02:
What would be the number that you think would not justify some other retaliation?

[00:09:03] Speaker 01:
I think that would, if the next judge imposed a higher sentence in 65 months, there may be a presumption of vindictiveness.

[00:09:12] Speaker 03:
That's hard to see that, though.

[00:09:13] Speaker 03:
I mean, perhaps, but just as a theoretical matter, it does seem that it could go back and your client could receive a much higher sentence than what he received here.

[00:09:23] Speaker 01:
Well, Your Honor, I would disagree with that, but what Mr. Gutierrez is asking for is

[00:09:28] Speaker 01:
a fair shot at a neutral sentencing overseen by a judge who has not impermissibly participated in plea negotiations like this.

[00:09:36] Speaker 01:
That is it.

[00:09:37] Speaker 01:
And I think I believe I'm out of time and would reserve for rebuttal.

[00:09:42] Speaker 04:
Thank you.

[00:10:00] Speaker 00:
Good morning, Your Honor, and may it please the Court.

[00:10:02] Speaker 00:
My name is Ross Mazur, and I represent the United States.

[00:10:06] Speaker 00:
Let me pick up where the Court's questions left off about harmlessness, because there's no dispute in this case that the alleged error had no impact on the defendant's decision to plead.

[00:10:21] Speaker 00:
So any error would have been harmless.

[00:10:23] Speaker 00:
The defense doesn't dispute that fact.

[00:10:26] Speaker 00:
They only argue that the Davila standard is not the only standard to evaluate harmlessness in the context of Rule 11.

[00:10:33] Speaker 00:
Davila is the sole standard for harmlessness.

[00:10:36] Speaker 00:
The question is whether, but for the alleged error, the defendant would have entered the plea or the terms of the plea would have changed.

[00:10:43] Speaker 00:
In this case, there's no question that they wouldn't have.

[00:10:47] Speaker 03:
So you think this alleged error could never bleed into sentencing, just as a matter of law?

[00:10:56] Speaker 00:
As a matter of law, the harmlessness question for a Rule 11 violation is whether the violation affected the defendant's decision to plead.

[00:11:05] Speaker 00:
And notably, the defense hasn't cited a single case, not in their opening brief, not in their reply brief, for any court that has adopted

[00:11:11] Speaker 00:
and a potential effect on sentencing standard to evaluate harmlessness under Rule 11.

[00:11:16] Speaker 00:
Now, the defense relies on cases like Adams, the Fifth Circuit case from 1981.

[00:11:23] Speaker 00:
But Adams is distinguishable in two respects.

[00:11:26] Speaker 00:
First, it involved the defendant who was coerced by the district judge to go to trial, not to accept the plea.

[00:11:33] Speaker 00:
which is a rare case under Rule 11.

[00:11:35] Speaker 00:
And what the Adams and other similar cases have said is that after a trial conviction, the court's going to remand for resentencing rather than vacate the entire trial conviction, not to benefit the defendant, but to avoid a windfall of reversing a trial conviction.

[00:11:52] Speaker 00:
And so in those cases, resentencing might be the appropriate remedy.

[00:11:56] Speaker 00:
And maybe more importantly, Adams was decided before Davila.

[00:12:00] Speaker 00:
And this is really one of the fundamental analytical mistakes on the defense side, that they conflate harmlessness with remedy.

[00:12:07] Speaker 00:
And so it's true that once Davila identified a Rule 11 error, it then went immediately into, well, what should the remedy be, whether it's vacating the conviction or just remanding for resentencing?

[00:12:19] Speaker 00:
Post-Davila, any question of remedy

[00:12:22] Speaker 00:
Any question of whether the court should vacate the judgment or just remand for resentencing has to go through harmlessness.

[00:12:32] Speaker 00:
And the harmlessness standard is the one announced in Davila that this court has consistently followed since then, and that's whether the alleged error had an effect on the defendant's decision to plead.

[00:12:45] Speaker 00:
That is the only harmlessness standard, and the defense does not dispute that it is met in this case.

[00:12:50] Speaker 00:
any alleged any error would have been harmless.

[00:12:54] Speaker 03:
I guess I don't know that we've said that it can't you know that the defense theory here that it will have an error can essentially bleed into sentencing.

[00:13:01] Speaker 03:
I don't think we've ever foreclosed that as a theory either though.

[00:13:07] Speaker 00:
It's true that an alleged rule 11 error may have an effect on sentencing, but that's just not the standard for harmlessness.

[00:13:14] Speaker 00:
And it's worth noting in response to some of your earlier questions, Judge Bras, that in this case, there is absolutely no reason to think that any error had an impact on sentencing.

[00:13:25] Speaker 00:
For one thing, at the sentencing proceeding, there was no discussion whatsoever of any of the disagreement at the prior status hearings.

[00:13:32] Speaker 00:
The court didn't bring up the guidelines calculation in the plea agreement.

[00:13:36] Speaker 00:
The court imposed a significant downward variance, not just from the guidelines range, but a sentence well below what even the probation office had recommended.

[00:13:44] Speaker 00:
And, you know, that despite some pretty serious aggravating factors in this case.

[00:13:50] Speaker 00:
And when the court explained its reasons for that kind of variance, it said that it believed the defendant, you know, after arrest had taken efforts, you know, made efforts at rehabilitation that the court considered to be genuine.

[00:14:04] Speaker 00:
The court conducted a model sentencing and the defense has never suggested otherwise.

[00:14:10] Speaker 03:
I why were the two enhancements is not noted in the plea agreement that the district court seemed to be concerned with that I don't know if that's just a practice of your office not to have every possible one except that in this case the ones that were not included seem like ones that were probably obvious in both sides agreed to that later.

[00:14:31] Speaker 00:
I yes your honor the truth is this is this case involves some unusual facts and this was not standard practice and the part of the reason that there was no rule 11 violation at all even without getting into harmlessness is because the district court was trying to respond to the unusual circumstances here and the problem what was unusual about it

[00:14:53] Speaker 00:
Well, the problem from the court's perspective was that the plea agreement didn't just reach a compromise about sentencing, but it included a guidelines calculation that the parties subsequently repudiated.

[00:15:05] Speaker 00:
Once the court got the PSR, you know, the parties said, yeah, that's the correct guidelines range.

[00:15:09] Speaker 00:
That's what you should do with sentencing.

[00:15:12] Speaker 00:
But that was inconsistent with the guidelines range in the plea agreement, which the parties didn't want to undo.

[00:15:19] Speaker 00:
And so at that point, the judge is allowed to make sure that the defendant understood what he was facing.

[00:15:26] Speaker 03:
So what was unusual is not that the plea agreement contained an adjusted defense level, which I guess you do do, but it's just that it omitted things that you later realized both sides should have been in there.

[00:15:37] Speaker 00:
Yes, except that the parties had reached a compromise about a particular range.

[00:15:43] Speaker 00:
Yeah.

[00:15:43] Speaker 00:
Yeah, and which enhancements to include before they drafted the plea agreement.

[00:15:49] Speaker 00:
And that's what's not standard practice.

[00:15:53] Speaker 00:
That even though the parties may compromise on a recommendation, they still include the correct guidelines range.

[00:16:00] Speaker 00:
Because the court has an independent obligation to calculate that.

[00:16:03] Speaker 00:
If it doesn't, that's automatic reversal on appeal.

[00:16:07] Speaker 00:
And in this case, the court was concerned about the information gap, the fact that the parties didn't communicate to the court what the correct guidelines range was, and also may not have communicated to the defendant what the guidelines range was.

[00:16:21] Speaker 00:
And that's exactly what the record reflects over and over again.

[00:16:24] Speaker 00:
I'll point you just as one example to the minute entry after the first status hearing.

[00:16:30] Speaker 00:
and I may not have the ER site, but the court stated that it was concerned about voluntariness, quote, particularly because the record does not indicate the defendant was apprised of the enhancements before pleading guilty.

[00:16:44] Speaker 00:
So those were the unusual circumstances.

[00:16:46] Speaker 03:
So would it violate rule 11 for the court to then say, and I want you to change the plea agreement?

[00:16:55] Speaker 00:
You know, as the government said below, the court could not make the parties rewrite the terms of the agreement.

[00:17:01] Speaker 00:
But that doesn't mean that the courts express preference that the parties redo the plea agreement so as not having to establish voluntariness retroactively after the fact.

[00:17:15] Speaker 00:
violated rule 11.

[00:17:17] Speaker 00:
So the court couldn't make the parties rewrite the plea agreement, but none of its comments violated rule 11.

[00:17:22] Speaker 00:
And I think that gets into another reason why there was no rule 11 violation here, which is the lack of coercion that was involved.

[00:17:32] Speaker 00:
Unlike virtually every other rule 11 case where the court finds a rule 11 error, in this case, the district court was not pushing for any particular disposition.

[00:17:43] Speaker 00:
not trial or versus plea agreement, not a higher sentence or a lower sentence.

[00:17:48] Speaker 00:
What the court's concern was that the guidelines range by the party's own admission, the guidelines range in the plea agreement wasn't correct.

[00:17:56] Speaker 00:
The court said in the same breath, you can reach any terms you want.

[00:18:00] Speaker 00:
compromise on any sentence you want, but the guidelines range has to be correct.

[00:18:05] Speaker 00:
And I think maybe the last factor, just showing that there was no rule 11 violation, was the timing of the challenged remarks, which came after the finalized plea agreement was presented to the court.

[00:18:19] Speaker 00:
you know when that happens it is harder to establish a rule 11 violation because any remarks are a bit more attenuated from from the plea bargain and so I don't think there was any so there was no rule 11 violation but I'd like to just address the waiver issue because I think that's the easiest way for the court to resolve this case is not not just to affirm the district court but to dismiss the appeal on waiver grounds now

[00:18:47] Speaker 00:
Forthrightly, the government acknowledges that an appellate waiver is not enforceable against a Rule 11 claim when the Rule 11 claim implicates the voluntariness of the plea, which in most cases it does.

[00:19:02] Speaker 00:
But in the minority of cases where the Rule 11 claim does not go to knowledge or voluntariness, then an appellate waiver is enforceable.

[00:19:11] Speaker 00:
Now the defense only response to this argument is that Rule 11 claims are categorically

[00:19:17] Speaker 00:
invariably exempt or categorically unwaverable.

[00:19:23] Speaker 00:
The problem is that that position is foreclosed by this court's decision in Myers, the case cited in all three briefs.

[00:19:31] Speaker 00:
The first issue in Myers was whether a criminal defendant can in fact waive a rule 11C1.

[00:19:38] Speaker 00:
And this court said on page 1255 of the opinion,

[00:19:41] Speaker 00:
And I'm quoting, as to the first inquiry, we hold that rule 11C1 is waivable.

[00:19:47] Speaker 00:
And because the defense only claim in this case is that rule 11C1 is categorically unwaivable, not that it wasn't validly waived in this case.

[00:19:57] Speaker 04:
But didn't the Court of Myers say that the defendant didn't knowingly waive rule 11C?

[00:20:04] Speaker 00:
Yes, it did.

[00:20:05] Speaker 04:
First, they found that it was waivable, and under the facts of that case, that- That suggests maybe that the appellate waiver has to expressly, it's not clear from the opinion, maybe it's suggesting that the appellate waiver has to expressly reference Rule 11, just can't be a broad, I waive all issues, and maybe it has to say expressly, I also waive Rule 11 challenges.

[00:20:28] Speaker 00:
I don't think that's the right reading of Meyer's judgely.

[00:20:32] Speaker 00:
It's true that Meyer's arose in a different factual context, a magistrate judge's participation in a settlement conference rather than an appellate waiver and a plea agreement.

[00:20:43] Speaker 00:
But in reaching its conclusion, Meyer's relied on general waiver principles from Davila and similar Supreme Court and Ninth Circuit cases that said that

[00:20:52] Speaker 00:
The federal rules of criminal procedure are presumptively waivable.

[00:20:57] Speaker 00:
And, you know, quoting Davila, that a violation of Rule 11C1 is no more serious than a violation of any other provision of Rule 11.

[00:21:06] Speaker 00:
Otherwise, Myers cited cases that addressed a waiver in the context of a plea agreement.

[00:21:14] Speaker 00:
And Myers has subsequently been cited by cases that discuss an appellate waiver in the context of a plea agreement, including

[00:21:20] Speaker 00:
the King case which the defense relies on.

[00:21:23] Speaker 00:
And so I do think that the Myers squarely forecloses this issue and that the easiest way to resolve this case is by dismissing it as waived.

[00:21:32] Speaker 00:
Unless the court has any further questions, the government would ask you to dismiss this case or alternatively to affirm the judgment.

[00:21:38] Speaker 02:
Can I ask one last question on which one is the valid plea that we're talking about here?

[00:21:43] Speaker 02:
Is it the plea that was taken before

[00:21:47] Speaker 02:
the two enhancements were discovered, or is it the reaffirmation plea that is kind of a general, yes, I do, without very much other information provided, that was like two hearings later?

[00:21:59] Speaker 00:
At the court's request, the defendant confirmed that he didn't want to withdraw from the plea, but there was only ever one plea agreement and one guilty plea, and then that was the one taken before the PSR came out.

[00:22:13] Speaker 02:
Thank you.

[00:22:14] Speaker 04:
Great.

[00:22:15] Speaker 00:
Thank you.

[00:22:25] Speaker 01:
Your honors, I'd first like to talk about, practically speaking, how plea negotiations work in this district.

[00:22:32] Speaker 01:
It is not unusual for plea agreements to come up with, to have different guidelines calculations than what the PSR ultimately calculates.

[00:22:41] Speaker 01:
There is no requirement, no requirement in rule 11 and no case law that I'm aware of that requires a plea agreement to have the exact same guidelines as the PSR calculates.

[00:22:51] Speaker 01:
Practically speaking, how this works is that the government extends a plea offer to the defense.

[00:22:56] Speaker 01:
It often includes an offense level calculation.

[00:22:59] Speaker 01:
And if it ignores the client's benefit, then it is our duty to advise them to take it.

[00:23:04] Speaker 01:
Presumably, when the government is deciding what kind of offer to make, they are deciding what enhancements to include in that guidelines calculation, as it would be their burden to prove enhancements.

[00:23:17] Speaker 04:
If I can ask one clarifying question, assuming there's a rule 11 violation and you don't want to disturb the plea agreement, are you advocating for a per se rule that the sentence also has to be vacated?

[00:23:29] Speaker 01:
I think that would have to be a case by case basis seeing where essentially the harm was.

[00:23:37] Speaker 04:
How do we determine that then?

[00:23:39] Speaker 01:
Well, I think many cases may involve a coerced plea.

[00:23:43] Speaker 01:
Many Rule 11 cases do involve a case where a defendant gives in to the court's pressure and ultimately enters into a plea.

[00:23:50] Speaker 04:
But here it isn't.

[00:23:51] Speaker 01:
Here, that's not the case.

[00:23:53] Speaker 01:
But I think for policy reasons,

[00:23:57] Speaker 01:
a defendant like Mr. Gutierrez who resists the court's pressure to not be placed in a worse position than a defendant who ultimately enters into a coerced plea agreement.

[00:24:06] Speaker 01:
Because otherwise, what kind of incentives or what kind of incentives would a defendant have?

[00:24:11] Speaker 01:
What should he have done?

[00:24:12] Speaker 01:
Should he have given into the court's pressure and rewritten a plea agreement along those terms?

[00:24:17] Speaker 04:
Sorry to interrupt, but it seems like it is kind of like a per se rule, because you can always say, I could have received a lighter sentence somehow.

[00:24:24] Speaker 01:
Well, I think the first the first structural question is if there was a rule 11 violation and then And then it becomes the government's burden if the if the issue is preserved to show that there was no effect on sentencing so there could conceivably be a case where

[00:24:40] Speaker 01:
where they could prove harmlessness, they can't prove that here on this record.

[00:24:45] Speaker 01:
I also just want to touch briefly on that.

[00:24:47] Speaker 02:
I got confused just now.

[00:24:48] Speaker 02:
So how did the court put Mr. Gutierrez in a worse position?

[00:24:52] Speaker 02:
Didn't you agree with the court when the court asked you whether the distribution and the toddler masochistic photographs applied?

[00:25:02] Speaker 02:
You said yes.

[00:25:03] Speaker 02:
So that was already the position.

[00:25:06] Speaker 01:
Yes, that's correct.

[00:25:07] Speaker 01:
When I said worse position, what I was comparing between was a defendant who gives in to a court's improper pressure and a defendant who resists, like Mr. Gutierrez, a defendant who gives into the pressure and enters into a plea agreement essentially rewritten by the court.

[00:25:22] Speaker 01:
I don't think anyone would disagree that that is a clear rule 11 violation.

[00:25:28] Speaker 01:
But that's not what happened here.

[00:25:29] Speaker 01:
Right.

[00:25:30] Speaker 01:
But what message would it send?

[00:25:34] Speaker 01:
to rule against Mr. Gutierrez.

[00:25:36] Speaker 01:
In the future, a defendant in that same position would be incentivized to give in to the court's improper pressure and enter into a coerced plea agreement.

[00:25:45] Speaker 01:
This would encourage more coerced pleas, which is one of the things that Rule 11 is supposed to avoid.

[00:25:52] Speaker 01:
So a defendant in Mr. Gutierrez's position who rightfully stood his ground and called out the district court for violating Rule 11

[00:26:01] Speaker 01:
uh... he shouldn't be in a worse position than than a defendant who who gives into that pressure.

[00:26:06] Speaker 03:
At the top of your remarks here on rebuttal you were talking about how sometimes a plea agreement can contain a guidelines calculation that differs from the what the PSR later comes out with

[00:26:19] Speaker 03:
Mr. Mazur was saying this case was somewhat unusual in that both parties later realized that there would have been two other offense level enhancements.

[00:26:29] Speaker 03:
Do you think, is that not correct?

[00:26:31] Speaker 03:
Is this just not unusual in your perspective?

[00:26:33] Speaker 01:
It is not unusual in this district for that to happen, Your Honor.

[00:26:37] Speaker 02:
So did the parties agree not to include it in the plea agreement or did they, they discovered it after the plea agreement?

[00:26:45] Speaker 01:
Well, what went into the government's determination of what guidelines calculation to include in the plea agreement, that is up to them.

[00:26:53] Speaker 01:
It is up to them what enhancements they believe they can prove or enhancements that they choose to forego in negotiating a plea agreement.

[00:27:01] Speaker 01:
From the defense side, if a plea agreement with the offer of a certain guidelines calculation benefits the client in some way, then it's our duty to advise them to take it, which is exactly what happened here.

[00:27:12] Speaker 01:
It guarantees the government's recommendation, these types of plea agreements.

[00:27:16] Speaker 01:
And these recommendations are often tied to how the government calculates the guidelines in the plea agreement, as it was here.

[00:27:23] Speaker 01:
Their promised recommendation was tied to the calculation in the plea agreement.

[00:27:27] Speaker 01:
So if the parties had revised the plea agreement, as the district court told them to,

[00:27:34] Speaker 01:
simply adding in the two enhancements and keeping everything else the same.

[00:27:38] Speaker 01:
Functionally, what that would have done is bound the government to a higher sentence recommendation.

[00:27:45] Speaker 01:
than in the original plea agreement.

[00:27:48] Speaker 02:
So doesn't that make it more reasonable that the judge was very frustrated and not sure whether the defendant actually was aware of the foreseeable consequence of his plea if what the defense is doing is just trying to take advantage of the government's mistake?

[00:28:02] Speaker 02:
Don't you think that makes sense that the court was concerned with, did the defendant realize that there were these two other special circumstances that were going to almost double his guideline range?

[00:28:14] Speaker 01:
Well, as noted at the hearing where Mr. Gutierrez reaffirmed his understanding at the time that he reviewed the plea agreement and changed his plea, he understood that there could be a higher guidelines range.

[00:28:25] Speaker 01:
The specifics of what I discussed with him.

[00:28:29] Speaker 02:
But that was clarified after the judge was actively aggressively asking questions, as he's required to under Rule 11, to make sure that the defendant is aware of the reasonable consequences.

[00:28:41] Speaker 01:
And at the change of plea hearing where the district court judge went through the entire Rule 11 colloquy, he did everything he was required to do under Rule 11.

[00:28:52] Speaker 01:
There's nothing in Rule 11 that requires a court to advise a defendant of a specific offense level or a specific guidelines range that applies to his case, because at that point, the court hasn't calculated it yet.

[00:29:02] Speaker 02:
The attorney for the defendant has that requirement.

[00:29:05] Speaker 01:
Yes, absolutely.

[00:29:07] Speaker 01:
And if Mr. Gutierrez had said, I didn't know this, right, we'd be in a different situation.

[00:29:12] Speaker 01:
But that's not what he said.

[00:29:13] Speaker 01:
He said he reaffirmed to the court that he understood the consequences of his plea and the terms of his plea agreement and that there could be a higher guidelines range calculated by the court.

[00:29:22] Speaker 02:
He didn't say that right away because he wasn't there, right?

[00:29:24] Speaker 02:
There was some kind of administrative error.

[00:29:26] Speaker 02:
Marshalls didn't transport him or something.

[00:29:28] Speaker 01:
Yes, yes.

[00:29:29] Speaker 01:
But he did say it at the next time that he appeared before the court.

[00:29:33] Speaker 04:
Thank you.

[00:29:34] Speaker 04:
Thank you both for the helpful arguments.

[00:29:36] Speaker 04:
The case has been submitted.