[00:00:01] Speaker 02:
We'll turn to 23-2099, United States v. Gonzalez-Garros.

[00:00:39] Speaker 00:
JK Theodosia Johnson on behalf of Mr. Gonzales-Garrillo.

[00:00:45] Speaker 00:
The government agreed that four months best captured Mr. Gonzales-Garrillo's culpability and cooperation in this case.

[00:01:00] Speaker 00:
He gave substantial assistance that led to the discovery of stash houses and bigger fish.

[00:01:09] Speaker 00:
This court has said that prosecutorial discretion is near absolute and cautioned against second guessing it.

[00:01:15] Speaker 00:
Other circuits too have pointed out that the court is in a poor position to evaluate the defense cooperation.

[00:01:22] Speaker 00:
And the guidelines also point out that the court has to give substantial weight to the government's evaluation of the defense cooperation, especially in here, where it's hard to tell how much

[00:01:37] Speaker 00:
value and extent it was.

[00:01:41] Speaker 00:
Fast-track pleas, too, also reflect the government's allocution of resources, and here it decided its time and effort weren't worth this transport case.

[00:01:52] Speaker 00:
The court compounded its error when it refused to let Mr. Gonzalez-Garelli have an opportunity to withdraw his plea.

[00:01:59] Speaker 00:
It proceeded immediately to sentencing.

[00:02:02] Speaker 00:
And of course, the sentence was procedurally insubstantive unreasonable.

[00:02:08] Speaker 00:
It was a substantial upward variance in a mind-run case.

[00:02:12] Speaker 00:
The guidelines, well the purpose of considering mind-run cases is to avoid excessive sentencing similar cases with similar

[00:02:22] Speaker 00:
aggravating and mitigating factors.

[00:02:24] Speaker 00:
And here, the aggravating factor of having an unaccompanied minor was already accounted for in the guidelines.

[00:02:31] Speaker 00:
And there was nothing so egregious about his conduct in picking up a child in El Paso and driving

[00:02:38] Speaker 00:
attempting to drive her to Atlanta that warranted this upward variegate.

[00:02:42] Speaker 02:
Is there anything in the record to show when the defendant knew that the girl was not a family member connected otherwise with the adult passenger?

[00:02:55] Speaker 00:
Nothing exactly on the record.

[00:02:57] Speaker 00:
I think the hunter and man admitted that he didn't know him.

[00:03:01] Speaker 00:
At what point?

[00:03:03] Speaker 00:
I'm not sure.

[00:03:05] Speaker 00:
probably when they're at the border patrol checkpoint, when he invited scrutiny by saying that he crossed her illegally.

[00:03:12] Speaker 02:
The question in my mind is when the defendant knew this, that this girl was not connected to the man, and we don't know that.

[00:03:21] Speaker 00:
As with many things with this child, we just don't know.

[00:03:27] Speaker 00:
The court was blaming Mr. Gonzales Guerrero for not having information about the child, but in his mind, he thought he was gonna reunite her, so he must have been up when he picked it up.

[00:03:37] Speaker 00:
He thought he was gonna reunite her with her aunt in Atlanta, and he thought he was communicating with the aunt via cell phone.

[00:03:45] Speaker 00:
Turned out it was a smuggler, but he did everything he could to reunite this child with his family.

[00:03:52] Speaker 03:
But didn't the records show he lied about the fact that he was being paid for the

[00:03:56] Speaker 03:
transportation services?

[00:03:58] Speaker 00:
He did have that one lie.

[00:04:00] Speaker 00:
But everything else he did, and the government agreed, was completely helpful.

[00:04:06] Speaker 00:
And he gave them all the information that he had about the smuggling ring and about the child.

[00:04:11] Speaker 00:
And it's not Mr. Guerrero Gonzalez's responsibility that she ended up in an immigration facility, despite what the district court seemed to think.

[00:04:20] Speaker 03:
What about Judge Strickland's

[00:04:25] Speaker 03:
skepticism that this basis for believing that this was the little girl's aunt was unbelievable because it was predicated on information that had been given by the cartel.

[00:04:42] Speaker 03:
That arguably isn't crazy since he had already argued that he was doing this because of duress at the direction of the cartel.

[00:04:53] Speaker 03:
So why isn't that at least a reasonable basis for using that as a ground for an upward variance?

[00:05:06] Speaker 00:
In 2016, the guidelines were amended on the immigration facility.

[00:05:11] Speaker 00:
And one of the testimony there revealed that the cartels were actually transporting children to family members in other places, because especially in the Northern Triangle, the violence and the poverty were so bad that unaccompanied minors were there.

[00:05:26] Speaker 00:
And the cartels were legitimately transporting them.

[00:05:33] Speaker 02:
Legitimately is a strange word to use in that context.

[00:05:36] Speaker 00:
Excuse me?

[00:05:37] Speaker 02:
Legitimately seems to me a strange word to use in that context.

[00:05:41] Speaker 00:
Transport?

[00:05:42] Speaker 02:
No, legitimately.

[00:05:43] Speaker 02:
Oh, legitimately.

[00:05:46] Speaker 00:
Go ahead.

[00:05:54] Speaker 00:
So if you look at similar

[00:05:59] Speaker 00:
defendants under the Jason data, right, who are convicted of transporting and have his same criminal history category, which was zero.

[00:06:06] Speaker 00:
He had no criminal history.

[00:06:07] Speaker 00:
The average sentence is nine months.

[00:06:10] Speaker 00:
And so she varied upward by approximately three times.

[00:06:16] Speaker 00:
And the case is just simply unremarkable.

[00:06:18] Speaker 00:
The only thing she based it on was the fact that the child ended up somewhere that no one knows.

[00:06:26] Speaker 00:
We know nothing about this child.

[00:06:29] Speaker 00:
blamed Sir Gonzales Guerrero for the fact that he knew nothing, it's simply unfair and resulted in an unreasonable sentence.

[00:06:44] Speaker 00:
I disagree.

[00:06:45] Speaker 00:
I think it was futile for Mr. Gonzales-Garros' counsel to object and so that therefore it should be under abuse of discretion.

[00:06:54] Speaker 00:
Because it was clear from the beginning that there was no way she was going to accept a plea to guidelines.

[00:07:01] Speaker 00:
And so the same with the

[00:07:05] Speaker 00:
with the actual plea.

[00:07:07] Speaker 00:
Up to the last plea hearing, both the government and Mr. Gonzalez-Barrella were asking her to accept the plea.

[00:07:13] Speaker 00:
The government was actually asking for time served.

[00:07:16] Speaker 00:
We were asking for a year and a day.

[00:07:18] Speaker 00:
If

[00:07:24] Speaker 00:
For Mr. Gonzales-Garela to have gotten the sentence under the guideline offense level, he would have had to have a criminal history of six.

[00:07:31] Speaker 00:
This is a man who has no criminal history.

[00:07:33] Speaker 00:
It's simply absurd to think that he got the sentence and that the 11C1C, where he predicated his plea on this four-month sentence, was voluntary when she removed the benefit.

[00:07:50] Speaker 00:
And so that too is a,

[00:07:54] Speaker 00:
There's just two main errors in this case.

[00:07:57] Speaker 00:
It was the problem with her blowing up the plea and then not allowing him to withdraw it.

[00:08:02] Speaker 00:
And then there's this incredibly large sentence variance.

[00:08:05] Speaker 00:
I mean, we know that the guidelines are designed to cabin the district court's discretion.

[00:08:14] Speaker 00:
And here, it's not cabining it.

[00:08:18] Speaker 02:
Let me talk about withdrawal.

[00:08:20] Speaker 02:
It's clear that the defense counsel knew that he had the right to withdraw his plea if the judge didn't approve the plea bargain because the attorney said that explicitly at the first hearing that the guilty

[00:08:37] Speaker 02:
object he or she, but I don't know the gender of the defense attorney at the time, but the defense attorney did not object to the judges not informing the defendant that he could withdraw his plea.

[00:08:52] Speaker 00:
Correct.

[00:08:53] Speaker 02:
So we would do that for Plain Air.

[00:08:55] Speaker 00:
I still think it's futile.

[00:08:57] Speaker 00:
I mean, it's her responsibility to inform... Well, what would be futile?

[00:09:01] Speaker 02:
to inform the defendant that he could withdraw his guilty plea.

[00:09:06] Speaker 00:
Well, he may have informed him off the record.

[00:09:08] Speaker 00:
The important part here is that has to be on the record.

[00:09:10] Speaker 00:
That's how we ensure it's voluntary.

[00:09:12] Speaker 02:
Yeah.

[00:09:13] Speaker 02:
And it wasn't on the record.

[00:09:15] Speaker 02:
So you didn't object.

[00:09:16] Speaker 02:
The counsel didn't object.

[00:09:19] Speaker 02:
And that failure to object is reviewed, requires us then to review the failure to instruct the defendant that he could withdraw his plea.

[00:09:31] Speaker 02:
We reviewed that for plain error, because there was no problem with objecting.

[00:09:37] Speaker 02:
The defendant knew the law, the defense attorney knew the law, could easily have objected.

[00:09:44] Speaker 02:
The reason he didn't object, obviously, is there was no defense to the claim.

[00:09:52] Speaker 02:
He would have accomplished nothing by refusing, by withdrawing the plea.

[00:09:58] Speaker 02:
He would have been found guilty and he would have lost any benefit from cooperating by pleading.

[00:10:05] Speaker 00:
Well, not necessarily, right?

[00:10:06] Speaker 00:
He did have a duress defense that he could have taken

[00:10:10] Speaker 00:
to trial if he wanted to.

[00:10:11] Speaker 00:
He supposedly was threatened by Lavenia Cartel to take this.

[00:10:16] Speaker 00:
The district court admitted that there were allegations.

[00:10:20] Speaker 00:
She didn't find them to be unreliable.

[00:10:24] Speaker 00:
And preservation is not an end of itself.

[00:10:26] Speaker 00:
It's a means to fair outcome.

[00:10:29] Speaker 02:
With respect to the standard of review, though, do you really

[00:10:35] Speaker 02:
I think that there was an excuse for a defense counsel not to object to the failure to tell the defendant that he could withdraw his plea.

[00:10:45] Speaker 00:
I don't think it was defense counsel's burden there.

[00:10:47] Speaker 02:
It's always defense counsel's burden to object.

[00:10:52] Speaker 00:
It was not defense counsel's burden to inform Mr. Gonzalez-Garrillo that he had the opportunity to withdraw his plea.

[00:10:58] Speaker 00:
That was clearly on the district court.

[00:11:00] Speaker 00:
And she cannot abdicate that simply because defense counsel should have done it.

[00:11:04] Speaker 02:
And defense counsel should have objected to the failure to inform the defendant of that.

[00:11:11] Speaker 00:
Preservation.

[00:11:12] Speaker 02:
Why?

[00:11:12] Speaker 02:
Go ahead.

[00:11:14] Speaker 00:
Preservation isn't synonymous with best practices.

[00:11:19] Speaker 02:
If anything, it's stronger.

[00:11:22] Speaker 02:
You have to object.

[00:11:24] Speaker 02:
There's no excuse for not objecting to the failure to instruct the defendant that he can now withdraw his plea.

[00:11:32] Speaker 00:
I think that given the entire record

[00:11:34] Speaker 00:
There is, but to the very end, both the government and Mr. Gonzales-Garrillo's counsel were urging her to accept the plea.

[00:11:41] Speaker 00:
And then once she rejected it, she just barreled on with, I'm going to send it to you now.

[00:11:50] Speaker 02:
Yes, we'll come around and round on that, Your Honor.

[00:11:54] Speaker 02:
Will you assume for a moment that there is plain error?

[00:11:58] Speaker 02:
Yes.

[00:11:58] Speaker 02:
That we review for plain error?

[00:12:00] Speaker 02:
Yes.

[00:12:02] Speaker 02:
Okay.

[00:12:03] Speaker 00:
So it does affect his substantial rights and that goes back to whether or not it's actually voluntary.

[00:12:13] Speaker 00:
It's a binding plea.

[00:12:16] Speaker 00:
He agreed to plead guilty for a specific benefit.

[00:12:19] Speaker 00:
And when that benefit was removed, you can no longer assume that he would continue to plead guilty.

[00:12:24] Speaker 00:
It's not like Domenico's Vinitas where it was not a binding plea agreement there.

[00:12:28] Speaker 00:
So there was no question.

[00:12:30] Speaker 02:
Where is the evidence in the record?

[00:12:32] Speaker 02:
The defendant has the burden of showing prejudice.

[00:12:35] Speaker 02:
Where in the record is there any indication that the defendant, if told he could withdraw the plea, would actually have withdrawn the plea?

[00:12:45] Speaker 00:
Because as I said, it was a binding plea agreement.

[00:12:48] Speaker 00:
It was, it was premised on this, on this benefit that he has gotten, which is why it's so different from Dominguez Benitez, because there the question is, would he have still pled?

[00:12:58] Speaker 00:
And here the question is, would he have pled then, not, would he have gone back and tried to renegotiate a different deal?

[00:13:04] Speaker 00:
Would he have gotten a trial with

[00:13:07] Speaker 00:
With the duress defense, we don't know.

[00:13:08] Speaker 00:
We did know in Dominguez Benitez that he said specifically he didn't want to go to trial on the record at least twice.

[00:13:15] Speaker 00:
It affected his choice in defense and his ability to charge his own defense.

[00:13:27] Speaker 00:
And that's just fundamentally one of the precepts of our

[00:13:31] Speaker 00:
of our system and to take that choice away from him and not allow him the opportunity to try to renegotiate or go to trial, it's just unfair.

[00:13:41] Speaker 00:
It does affect his substantial rights.

[00:13:43] Speaker 00:
And as for the integrity, I think from the beginning, it gave the impression that she was meddling and that she was not a fair and impartial arbitrator.

[00:13:55] Speaker 00:
If I can reserve the rest of my time.

[00:14:12] Speaker 01:
Good morning, your honors.

[00:14:14] Speaker 01:
Sorry.

[00:14:15] Speaker 01:
May it please the court, my name is Amel Keeney for the United States.

[00:14:20] Speaker 01:
And I'll start by addressing the last points that you all were discussing, but of course I'm happy to go wherever you want to go with this.

[00:14:27] Speaker 01:
On the issue of whether the district court committed plain error by not informing defendant of his right to withdraw his guilty plea, we agree that the first two prongs are satisfied.

[00:14:41] Speaker 01:
It is the obligation of the district court to do that.

[00:14:46] Speaker 01:
And the reason why we're on plain error though is because the defense counsel didn't object.

[00:14:51] Speaker 01:
So I think that affects the standard of review.

[00:14:57] Speaker 01:
But I think we prevail on the third prong of this because the defendant hasn't identified any defense that would have made it reasonable for him to go to trial.

[00:15:10] Speaker 01:
What about coercion?

[00:15:11] Speaker 01:
Coercion?

[00:15:12] Speaker 01:
Well, I think that

[00:15:14] Speaker 01:
could be a defense in some circumstances, but what the record shows here is that that's what he told border patrol agents at first.

[00:15:24] Speaker 01:
But when they searched his phone, it turned out that he had been, that he responded to what he perceived as a job opportunity and agreed to do this instead in, to transport these two individuals in exchange for money.

[00:15:40] Speaker 01:
So I think he could get up and make that defense, but it's not a defense that's likely to succeed because the contents of his communications with the traffickers didn't back that up.

[00:15:52] Speaker 02:
What about the argument that if he withdrew his plea, they could have negotiated a different plea agreement?

[00:16:02] Speaker 01:
I think there may be some circumstances where that might be the case, but where the district court

[00:16:09] Speaker 01:
has said, rejected it on the ground that my, I believe your sentence you've agreed to is too low and I think 32 months is appropriate.

[00:16:17] Speaker 01:
I don't think that was a likely option either, that they would have been able to, that we would have been able to reach an agreement that would give him a lower sentence than he got and that would have satisfied the district court.

[00:16:31] Speaker 01:
As for the jury nullification argument, I think the problem with that

[00:16:37] Speaker 01:
is, and that's something that defense counsel raised in the reply brief, said, well, he may well have taken a shot because, you know, juries sometimes acquit, and he was already facing an upward variance.

[00:16:51] Speaker 01:
But I think the problem with that is that the district court had also told him, in response to defense counsel's questioning about the likely sentence the district court had mentioned, I'll give him 32 months if he continues

[00:17:05] Speaker 01:
based on his pleading guilty, leaving it open at least that he might get a higher sentence if he went to trial.

[00:17:13] Speaker 01:
So I don't think there's any way that the third prong here is satisfied.

[00:17:19] Speaker 01:
With respect to the rejection of the plea agreement itself,

[00:17:26] Speaker 01:
The district court, this court's decision in Sandoval Enrique, I think, answers that, at least with respect to whether the district court properly rejected the sentence bargain.

[00:17:37] Speaker 01:
The district court has wide discretion to do that, and although we would like the district court always to do what we want as the government, that doesn't always happen, and we didn't think we could make out a case that the district court abused its discretion here.

[00:17:55] Speaker 01:
With respect to the other portion of the argument, the challenge to the rejection of the plea agreement, the second challenge is that, well, defense is arguing this infringed on the government's prosecutorial discretion to bring charges and not to bring charges because of the

[00:18:17] Speaker 01:
provision in the agreement that states that if you sign this agreement, we, U.S.

[00:18:23] Speaker 01:
Attorney's Office, are not going to bring any further charges arising out of this incident.

[00:18:28] Speaker 01:
And I don't think that's a provision that's in every plea agreement that I'm aware of, and it basically exists to protect the defendant and to give him assurance that we're not going to bring further charges out of this.

[00:18:41] Speaker 01:
It doesn't mean that

[00:18:44] Speaker 01:
there are actually charges that we have consciously considered and decided not to bring.

[00:18:52] Speaker 01:
But even if you considered that as making this a charge bargain, or at least partly a charge bargain, a hybrid bargain, that wasn't the district court's problem with this agreement.

[00:19:05] Speaker 01:
The district court said that it was concerned about the sentencing aspect of the agreement.

[00:19:11] Speaker 01:
The district court didn't say,

[00:19:13] Speaker 01:
Look, I think you should have brought other charges.

[00:19:15] Speaker 01:
Look, this guy's clearly guilty of something else.

[00:19:17] Speaker 01:
Why aren't you bringing those charges instead?

[00:19:20] Speaker 01:
And I don't like that.

[00:19:22] Speaker 01:
The district court didn't say anything about that provision.

[00:19:25] Speaker 01:
So unless the court has other questions, we would ask you to affirm the district court's sentence.

[00:19:35] Speaker 03:
Tim, do you have a question?

[00:19:39] Speaker 03:
OK.

[00:19:39] Speaker 03:
I had a question about procedural reasonableness.

[00:19:43] Speaker 03:
Your adversary argues that the district court at sentencing didn't consider the elephant in the room, the fact that the defendant had cooperated.

[00:19:54] Speaker 03:
And you point out, I think, correctly, that at the third of the four proceedings that Judge Strickland did say, that's why I'm not, I think when defense counsel

[00:20:08] Speaker 03:
reiterated, that the defendant had cooperated, the prosecutor had reiterated that, and Judge Strickland said, yeah, that's why I'm not inclined to give them more than 32 months.

[00:20:19] Speaker 03:
The problem is that that was prior to the sentencing.

[00:20:25] Speaker 03:
At the fourth of the proceedings is when the judge imposed the sentence.

[00:20:29] Speaker 03:
It's sort of like, if I say something now, and then we go back and issue an opinion, well, it's all sort of enculled.

[00:20:38] Speaker 03:
until Judge Strickland had imposed the sentence.

[00:20:42] Speaker 03:
So is defense counsel correct, legally, that just mentioning something, you know, prior to sort of anticipation of imposing the sentence, she failed to consider or failed to discuss a very significant factor that would bear on the reasonableness of the sentence.

[00:21:05] Speaker 03:
What's your response?

[00:21:07] Speaker 01:
So you're asking specifically whether, if she didn't mention it specifically at the fourth sentencing hearing?

[00:21:14] Speaker 03:
Yeah, which is the only proceeding in which she's actually imposing the sentence.

[00:21:19] Speaker 03:
Right.

[00:21:19] Speaker 03:
So at sentencing,

[00:21:21] Speaker 03:
Can you really say, well, and how do we in the future say, well, it's okay, District Judge, if you don't consider the significant, discuss the significant factors bearing on the sentence, as long as you did it in previous proceedings, at the arraignment, you know, for example, or at a pre-trial status conference.

[00:21:43] Speaker 03:
Why isn't it a problem that she didn't discuss this at Senate second?

[00:21:47] Speaker 01:
Well, I think she did allude to it, and I'll point you to that.

[00:21:51] Speaker 01:
provision is, well, in two ways.

[00:21:54] Speaker 01:
In one way, she alludes to the previous three parts of this sentencing proceeding and says, I'm considering all the arguments that were made there, because that issue was extensively discussed at the second and third hearings.

[00:22:07] Speaker 01:
I'm referring to page 56 of volume 3.

[00:22:11] Speaker 01:
And then she does say, I'm considering

[00:22:17] Speaker 01:
argument that he has attempted to right the wrongs that happened in this case.

[00:22:23] Speaker 01:
And that's at lines 15 and 16.

[00:22:26] Speaker 01:
So I think she's at least alluding.

[00:22:27] Speaker 01:
At what page?

[00:22:28] Speaker 01:
That's at page 56.

[00:22:29] Speaker 01:
Okay, gotcha.

[00:22:30] Speaker 01:
Of volume three.

[00:22:32] Speaker 01:
Yeah, gotcha.

[00:22:32] Speaker 01:
Okay.

[00:22:32] Speaker 01:
And that's during the fourth sentencing hearing.

[00:22:35] Speaker 01:
I see it.

[00:22:35] Speaker 01:
Yeah.

[00:22:35] Speaker 01:
So she's referring to it in those two ways.

[00:22:39] Speaker 01:
And I think the parties also considered

[00:22:42] Speaker 01:
these proceedings to be related, these four hearings that she held.

[00:22:48] Speaker 01:
And defense counsel didn't get up again and say, well, look, you should also consider the cooperation.

[00:22:55] Speaker 01:
I don't see you considering that.

[00:22:57] Speaker 01:
So for those reasons, we think she did mention it at the fourth sentencing hearing, at least allude to it.

[00:23:03] Speaker 01:
She didn't discuss it as extensively as in the second and third, but I think she probably felt that

[00:23:10] Speaker 01:
Look, I've gone over this before.

[00:23:11] Speaker 01:
We all know what I've gone over before.

[00:23:14] Speaker 01:
But she did mention it.

[00:23:15] Speaker 01:
It was on her mind.

[00:23:18] Speaker 01:
Are there any other questions from the panel?

[00:23:21] Speaker 01:
Thank you, counsel.

[00:23:22] Speaker 01:
All right.

[00:23:22] Speaker 01:
Thank you very much.

[00:23:23] Speaker 00:
You have a little time left.

[00:23:40] Speaker 00:
The point in which you need to consider the cooperation is when you're rejecting the plea agreement.

[00:23:45] Speaker 00:
You have to consider why the government offered the plea it did, and then give your reasons it didn't.

[00:23:50] Speaker 00:
And she didn't address the cooperation in that sense.

[00:23:53] Speaker 00:
She only addressed it in regards to the sentencing.

[00:23:57] Speaker 00:
So that was error.

[00:23:58] Speaker 00:
And it didn't give appropriate deference to the government's decision to offer the fast track in lieu of the 5K.

[00:24:11] Speaker 00:
I also just want to point out that from a policy standpoint, allowing the district court to set its own policy, and I understand they're allowed to disagree with policy statements, but here,

[00:24:28] Speaker 00:
The unintended consequence can be that when a transporter is confronted with an unaccompanied minor, that they're just going to leave them, right?

[00:24:37] Speaker 00:
Because why would you take the risk of having the unaccompanied minor in your car if you're going to get hammered on it?

[00:24:42] Speaker 00:
Much easier just to leave the child on the side of the road.

[00:24:46] Speaker 00:
It's just an unreasonable sentence in a mind-run case.

[00:24:52] Speaker 00:
Please reverse.

[00:24:53] Speaker 02:
Thank you, Kelsey.

[00:24:55] Speaker 02:
Takes some business to be your excuse, but sure.