United States v. Abraham De Los Santos-Sanchez ( 2021 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       NOV 18 2021
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No.    20-10206
    Plaintiff-Appellee,             D.C. Nos.
    2:18-cr-00171-MCE-3
    v.                                             2:18-cr-00171-MCE
    ABRAHAM DE LOS SANTOS-
    SANCHEZ,                                        MEMORANDUM*
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of California
    Morrison C. England, Jr., District Judge, Presiding
    Submitted November 16, 2021**
    San Francisco, California
    Before: PAEZ, WATFORD, and FRIEDLAND, Circuit Judges.
    Abraham De Los Santos-Sanchez was convicted, pursuant to a plea
    agreement, of conspiracy to grow over 1000 marijuana plants in violation of 
    21 U.S.C. §§ 841
    (a)(1) and 846. The offense carries a mandatory minimum of ten
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    years’ imprisonment, 
    id.
     § 841(b)(1)(A)(vii), to which Santos-Sanchez was
    sentenced. A defendant may, however, be sentenced below that minimum if he
    meets the several requirements of 
    18 U.S.C. § 3553
    (f), known as the “safety
    valve.” Santos-Sanchez contends that the Government breached the terms of the
    plea agreement by arguing at sentencing that Santos-Sanchez was carrying a
    firearm in connection with the offense and therefore was ineligible for the safety
    valve, see 
    id.
     § 3553(f)(2). We have jurisdiction, 
    28 U.S.C. § 1291
    , and we affirm.
    We review for plain error an unpreserved claim that the prosecution violated
    the terms of a plea agreement. Puckett v. United States, 
    556 U.S. 129
    , 135-36
    (2009). To establish plain error, Santos-Sanchez must show “(1) an error, (2) that
    is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness,
    integrity, or public reputation of judicial proceedings.” United States v. Smith, 
    424 F.3d 992
    , 1000 (9th Cir. 2005) (citing Johnson v. United States, 
    520 U.S. 461
    , 467
    (1997)).
    Any error here was not plain. The agreement’s language was, at best,
    ambiguous as to what the Government was obliged to recommend regarding the
    application of the safety valve and the mandatory minimum.1 See Puckett, 556
    1
    In fact, the most natural reading of the plea agreement is that the
    Government was obligated to argue for a below-minimum sentence only if the
    district court had determined that Santos-Sanchez met all the requirements of
    § 3553(f). Nowhere does the agreement preclude the Government from making
    2
    U.S. at 135 (“[T]he legal error must be clear or obvious, rather than subject to
    reasonable dispute.” (citing United States v. Olano, 
    507 U.S. 725
    , 734 (1993))).
    Santos-Sanchez argues that the ambiguity in the agreement should have been
    obvious to the district court, if not the breach itself. But it is precisely when “the
    scope of the Government’s commitments . . . [are] open to doubt” because of poor
    “draftsmanship” that “the second prong of plain-error review” will “have some
    ‘bite’ in plea-agreement cases.” Id. at 143; see id. (“Not all breaches will be clear
    or obvious.”). The ordinary rule that ambiguities in plea agreements are
    interpreted in the defendant’s favor is inapposite here given our standard of review.
    Moreover, any error did not impact Santos-Sanchez’s substantial rights
    because there is not a reasonable likelihood that any error “affected the outcome of
    the district court proceedings.” Id. at 135 (quoting Olano, 
    507 U.S. at 734
    ). Three
    facts in the record indicate that the district court would likely have determined the
    safety valve to be inapplicable even absent the Government’s sentencing
    arguments. First, attached to the plea agreement were photographs of Santos-
    Sanchez with a firearm in the marijuana fields. Second, the presentencing report
    any arguments related to that threshold determination. Cf. United States v. Ellis,
    
    641 F.3d 411
    , 419 (9th Cir. 2011) (rejecting an argument that the government
    breached a plea agreement “by failing to object to the PSR’s” inclusion of an
    upward sentence adjustment because “[t]he plea agreement did not require the
    government to do so”). Nevertheless, we assume for our decision that the
    agreement is indeed ambiguous on this point.
    3
    reviewed by the court concluded that Santos-Sanchez did not qualify for the safety
    valve because he was documented over video “touting [his] ability to protect the
    grow with the rifles and handgun” and saying, “[t]his is so they know we are not
    playing around.” Third, the court expressed at least a tentative view that Santos-
    Sanchez’s wildlife-protection explanation—which was the only reason he gave for
    why he was carrying a firearm—was unreasonable, even before the Government
    made its arguments.
    AFFIRMED.
    4